MARCH 1986 

Commission Decisions 

03-04-86 Southern Ohio Coal Company 

03-26-86 Sec.Labor for Paul Sedgmer, etc. v. 

Consolidation Coal Company 

03-26·-86 Robert Simpson v. Kenta Energy & R.D. Jackson 

03-28-86 United States Steel Mining Company 

Administrative Law Judge Decisions 

03-05-86 

03-05-86 

03-07-86 

03-07-86 

03-10-86 

03-11-86 

03-12-86 

03-12-86 

03-12-86 

03-12-86 

03-13-86 

03-18-86 

03-19-86 

03-21-86 

03-21-86 

03-24-86 

03-24-86 

03-24-86 

03-25-86 

03-25-86 

03-25-86 

03-26-86 

03-28-86 

03-28-86 

02-27-86 

Homestake Mining Company 

Emerald Mines Corporation 

Youghiogheny & Ohio Coal Company 

Southern Ohio Coal Company 

E. C. Coal Sales Company, Inc. 

Boyd Asher v. Fairdale Mining, Inc. 

Bryan P. Everson v. Oneida Sand & Gravel 

Brian T. Veal v. Kerr-McGee Coal Corp. 

Hydrocarbon Resources, Inc. 

Western Rock Products Corporation 

Martha Perando v. Mettiki Coal Corp. 

Sec. Labor for Johnnie L. Jackson v. 

Turner Brothers, Inc. 

Michigan Silica Company 

Sec. Labor for Barry L. Weaver v. 

Alpine Construction Company 

Joseph Cracco 

Richards Coal Co.$ & Mylu Coal Co., Inc. 

Reidhead Sand & Rock, Inc. 

Disciplinary Proceeding 

Whitney Sand & Gravel, Inc. 

Capitol Aggregates, Inc. 

Walsenburg Sand & Gravel Co., Inc. 

Walsenburg Sand & Gravel Co., Inc. 

General Rock & Sand 

Co-Op Mining Company 

Harold J. Atkins v. Cyprus Mines Corp. 

(reprinted) 

LAKE 82-93-R 

LAKE 82-105-D 

KENT 83-155-D 

PENN 84-49 

CENT 86-24-RM 

PENN 85-298-R 

LAKE 85-76-R 

WEVA 86-29-R 

WEVA 85-170 

KENT 85-28-D 

LAKE 85-13-DM 

LAKE 86-29-D 

WEST 84-100-M 

WEST 85-23-M 

YORK 85-12-D 

CENT 86:._36-D 

LAKE 85-67-M 

CENT 85-99-D 

CENT 85-123-M 

CENT 85-69 

WEST 85-156-M 

D 86-1 

CENT 85-129-M 

CENT 85-138-M 

WEST 84-19-M 

WEST 85-79-M 

WEST 84-70-M 

WEST 85-165 

WEST 84-68-DM 

Pg. 295 

Pg. 303 

Pg. 312 

Pg. 314 

Pg. 322 

Pg. 324 

Pg. 330 

Pg. 341 

Pg. 343 

Pg. 344 

Pg. 346 

Pg. 350 

Pg. 354 

Pg. 362 

Pg. 364 

Pg. 368 

Pg. 398 

Pg. 400 

Pg. 402 

Pg. 404 

Pg. 406 

Pg. 410 

Pg. 416 

Pg. 430 

. 436 

Pg. 451 

Pg. 454 

Pg. 458 

Pg. 460 

MARCH 1986 

The following case was directed for review during the month of March: 

Secretary of Labor, MSHA on behalf of James Corbin, Robert Corbin 

and A.C. Taylor v. Sugartree Corporation, Terco, Inc., and Randall 

Lawson, Docket No. KENT 84-255-D. (Judge Melick, February 5, 1986) 

Review was denied in the following cases during the month of March: 

Secretary of Labor, MSHA on behalf of Robert Ribel v. Eastern 

Associated Coal Corporation, Docket No. WEVA 84-33-D. (Judge 

Koutras, January 21, 1986) 

Wilfred Bryant v. Dingess Mine Service, Winchester Coals, Inc., 

Joe Dingess and Johnny Dingess, Docket No. WEVA 85-43-D. (Interlocutory review of Judge Kennedy's order of January 27, 1986) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

.SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

lNITED MINE WORKERS OF 

AMERICA (UM.WA) 

v. 

SOUTHERN OHIO COAL COMPANY 

1730 K STREET NW, GTH FLOOR 

WASHINGTON, D.C. 20006 

March 4 ~ 1986 

Docket Nos. LAKE 82-93-R 

LAKE 82-94-R 

LAKE 82-95-R 

BEFORE: Backley, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

In this case arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et ., the issue is whether miner representatives who participated post-inspection conferences held on mine 

property pursuant to 30 C.F.R. § 100.6(a) are entitled to compensation 

under section 103(f) of the Mine Act (30 u.s.c. § 813(f)) for the time 

spent in the conferences. A Commission administrative law judge held 

that section 103(f) of the Act authorizes payment of compensation to a 

miner representative for time participating in post-inspection 

.conferences conducted at a mine immediately or shortly after the 

completion of a physical inspection of the Mine. 5 FMSHRC 729, 759 

(April 1983)(ALJ). However, finding that the particular conferences in 

issue were not the kind of post-inspection conferences compensable under 

section 103(f), the judge granted the operator's notices of contest and 

vacated three citations charging violations of section 103(f). 5 FMSHRC. 

at 759-63. We agree with the judge that in appropriate instances postinspection conferences at mines are compensable under section 103(f) of 

the Act. We disagree, however, with his conclusion that the conferences 

involved in this case do not qualify for section 103(f) compensation. 

Accordingly, we reverse. 
The essential facts are not in dispute. Three contested citations 

issued to Southern Ohio Coal Company ("SOCCO"), involving similar facts 

and the same legal issues, are consolidated in this proceeding. Docket 

Nos. LAKE 82-93-R and LAKE 82-94-R, arise out of conferences conducted 

on May 24, 1982, at SOCCO's Meigs No. 2 mine by inspectors of the 

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

The purpose of the meetings was to review citations for which civil 

penalties had not been proposed previously. Docket No. LAKE 82-95-R, 

involves a similar conference held on May 24 and 26, 1982, at SOCCO's 

"Raccoon No. 3 mine. 

All of the conferences at issue stemmed from MSHA's adoption on May 

1, 1982, of revised civil penalty regulations (47 Fed. Reg. 22,286, 

22,294-22,297 (1982)), codified at 30 C.F.R. Part 100. Among these 

regulations is section 100.6(a), which states: 

All parties shall be afforded the opportunity to 

review with MSHA each citation and order issued 

during an inspection. 

In publishing these regulations, MSHA indicated that all outstanding 

citations and orders that had not been reviewed for penalty proposal 

purposes under MSHA's prior rules by May 21, 1982, would be governed by 

the new procedures. 47 Fed. Reg. 22,28fi. The three conferences at 

issue were held pursuant to this policy as section 100.6(a) reviews and, 

in fact, were among the first conducted under the authority of that 

provision. 

Twenty citations were reviewed at the two conferences held at 

Sacco's Meigs No. 2 mine on May 24, 1982. The citations had been issued 

during a regular quarterly inspection at the mine between March 3 and 

May 15, 1982. The first conference, held from approximately 9:00 a.m. 

to 12:00 noon, covered 14 of the citations. This meeting was conducted 

by MSHA inspector Dalton McNece and was attended by Carl Curry, a SOCCO 

safety supervisor, and Robert Koons, a miner representative. In 

general, the participants discussed the facts surrounding the alleged 

violations. The discussion included such topics as the seriousness of 

the violations, the operator's negligence, and the good faith of the 

efforts to abate the violations. As a result of the conference, the 

designation of two of the violations as "significant and substantial" 

violations was deleted. See 30 U.S.C. § 814(d)(l). 

The second conference, held from approximately 2:00 to 2:30 p.m., 

was conducted by MSHA inspector Myron Beck. Mr. Curry and miners' 

representative Frank Goble attended this meeting. The remaining six 

citations were discussed. The content of the afternoon conference was 

substantially the same as that of the morning meeting. Inspector McNece 

testified that the time spent in these conferences was unusually long 

because of the parties' unfamiliarity with the new Part 100 procedures. 

He estimated that current section 100.6(a) conferences last from five to 

45 minutes, depending on the number of citations involved. SOCCO 

296 
subsequently refused to compensate the miner representatives for the 

time spent participating in the conferences and MSRA issued two section 

104(a) citations (30 U.S.C. § 814(a)) alleging violations of section 

103(f) of the Act. 1/ (At the hearing, counsel for SOCCO and the 

Secretary agreed that testimony regarding the third citation would be 

the same as that for the other two citations). 

The administrative law judge noted that section 103(f) specifically 

mandates that miner representatives be given an opportunity to accompany 

an inspector during the physical inspection of a mine, to participate in 

pre- or post-inspection conferences held at the mine, and to be compensated 

for the time spent in accompanying the inspector during the mine inspection. 

5 FMSHRC at 751. Because section 103(f) does not specifically mandate 

compensation during the time spent participating in pre- or post-inspection 

conferences, the judge questioned whether Congress intended that the 

miner representative be compensated for time spent in conferences or 

meetings held at the mine after the physical inspection of the mine is 

completed. After examining the legislative history of section 103(f), 

1/ Section 103(£), 30 U.S.C. § 813(f), states: 

Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by 

his miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the physical 

inspection of any coal or other mine made pursuant to the 

provisions of subsection (a) of this section, for the purpose 

of aiding such inspection and to participate in pre -or postinspection conferences held at the mine. Where there is no 

authorized miner representative, the Secretary or his 

authorized representative shall consult with a reasonable 

number of miners concerning matters of health and safety in 

such mine. 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 of the Secretary determines that more than one 

representative from each party would further aid the inspection, 

he can permit each party to have an equal number of such additional 

representatives. However, only one such representative of miners 

who is an employee of the operator shall be entitled to suffer no 

loss of pay during the period of such participation under the 

provisions of this subsection. Compliance with this subsection 

shall not be a jursidictional prerequisite to the enforcement of 

any provisions of this Act. 

[Emphasis added] 

297 
the judge concluded that Congress intended compensation for the miner 

representative if he participates in the pre-inspection conferences held 

at the mine or in the post-inspection conferences held at the mine 

immediately or shortly after the completion of the inspection. 5 FMSHRC 

at 7 59. 

The judge then held that the·conferences at issue were not 11 postinspection11 conferences, as that tennis used in section 103(f), and 

hence were not compensable. Noting that "post-inspection conference" is 

not defined in the Mine Act or in the Secretary's regulations, the 

judge, looking to the legislative history, described a post-inspection 

conference as an interchange between an inspector and members of an 

inspection party, occurring immediately after a physical inspection of a 

mine, and involving a discussion of the inspector's rationale for issuing 

a citation or order, his fixing of an abatement time and other safety 

and health matters related to the inspection. S FMSHRC at 757. The 

judge concluded that Congress desired the miner representative to be 

able to fully participate in and to be compensated for pre- and postinspection conferences so that the representative could make a meaningful 

contribution to the safety and health of miners by being afforded an 

opportunity to address safety and health concerns resulting from the 

inspection, when the facts and circumstances of the inspection are fresh 

and when the parties to the conference can explore ways to correct the 

conditions and achieve prompt abatement. 5 FMSHRC at 759, 762. The 

judge found, however, that the subject conferences had no meaningful 

effect on safety and health because they occurred long after the 

completion of the inspections and abatement of the violations, and 

because the miner representatives who participated in the conferences 

were not present during the inspections. Consequently, the judge 

concluded that the conference accomplished nothing more than affording 

the operator an opportunity to take advantage of the Secretary's Part 

100 penalty assessment procedures and were not compensable conferences. 

5 FMSHRC at 762-63. 

We agree that section 103(f) of the Mine Act requires that a miner 

representative be compensated for participation in pre- or post-inspection 

conferences. As the judge noted, section 103(f) clearly mandates that a 

miner representative be afforded the opportunity to accompany an inspector 

during the physical inspection of the mine, and to participate in preor post-inspection conferences held at the mine. Section 103(f) further 

provides that the miner representative "shall suffer no loss of pay 

during the period of his participation in the inspection made under this 

subsection." While section 103(f) does not expressly mention compensation for pre- or post-inspection conferences, the legislative history 

of the Act clearly indicates Congress' intent that section 103(f) requires 

such compensation. 

The report of the Senate Committee which largely drafted much of 

the 1977 Mine Act.states the purpose of the provision for miner participation and compensation contained in section 103(f). In addition to 

discussing the rights of the miner representative to accompany an inspector 

during an inspection, the report states: 

298 
[T]he opportunity to participate in pre- or 

post-inspection conferences has also been 

provided. Presence of a representative of miners 

at [an) opening conference helps miners to know 

what the concerns and focus of the inspector will 

be, and attendance at [a] closing conference will 

enable miners to be fully apprised of the results 

of the inspection. It is the Committee's view 

that such participation will enable miners to 

understand the safety and health requirements of 

the Act and will enhance miner safety and health 

awareness. To encourage such miner participation, 

it is the Committee's intention that the miner who 

participates in such inspection and conferences be 

fully compensated by the operator for time thus spent. 

To provide for other than full compensation would be 

inconsistent with the purpose of the Act and would 

unfairly penalize the miner for assisting the 

inspector in performing his duties. 

S. Rep. No. 181, 9Sth Cong., 1st Sess. at 28-29 (1977), reprinted in 

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

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

of 1977, at 616-17 (1978) ("Legis. Hist.")(emphasis added). The Conference Report likewise states that--anliner representative is to be 

paid by the operator "for his participation in inspections and conferences." 

Legis. Hist. at 1323. Further, the matter was discussed on the floor of 

the House during the oral report to the House by the conference committee. 

During this oral report both Congressman Perkins and Congressman Gaydos 

stated that the bill authorized miner representative participation and 

compensation for pre- and post-inspection conferences. Legis. Hist. at 

1357' 1361. 

With the intent of Congress so clear, we agree with the judge that 

section 103(f) requires compensation for a miner representative who 

participates in "pre- or post-inspection conferences" held at the mine. 

We do not agree, however, with the judge's further conclusion that to be 

compensable a post-inspection conference must be held immediately or 

shortly after the completion of l.he physical inspection of a mine. We 

need not in this opinion set forth all of the contours for compensable 

post-inspection conferences. While we agree that for greater effectiveness and orderly process, a post-irispection conference should ordinarily 

take place within a reasonably immediate time frame after completion of 

the physical inspection of a mine, circumstances may exist which lead to 

legitimate postponement or delay of the conference. 

The judge further found that the conferences at issue were noncompensable "assessment conferences", held pursuant to 30 C.F.R. 

§ 100.6(a) and incident to HSHA's civil penalty assessment authority, 

rather than compensable conferences held incident to the participatory 

rights of the miner representative as set forth in section 103, and 

therefore that they were not compensable post-inspection conferences. 

5 FMSHRC at 761. We disagree. 

299 
Our review of section 103(f) and of MSBA's Part 100 regulations 

compels us to reject the attempted distinction between MSHA's physical 

inspections and attendant post-inspection conferences, and postinspection assessment conferences conducted pursuant to section 100.6(a) 

of the Secretary's civil penalty assessment regulations. Section 103(f) 

requires compensation for "post-inspection conferences held at the 

mine." As the judge noted, neither the statute nor the Secretary's 

regulations define a 11post-inspection conference." However, as noted 

above, the purpose of the miner representatives' participation rights 

under section 103(f) is to "enable miners to understandthe safety and 

health requirements of the Act and ••• [to] enhance miner safety and 

health awareness." Legis. Hist. at 616. As Representative Gaydos 

stated," ••• attendance at the closing conference enables miners to be 

apprised more fully of the inspection results." • Hist. at 1361. 

Thus, the pertinent inqui~y is whether the substance the postinspection conference advanced these goals. 

The record establishes that at the post-inspection conferences at 

issue the inspectors reviewed each citation, explained the reasons for 

its issuance, and discussed the findings made in conjunction with the 

citation such as "gravity", "negligence", 11 good faith abatement" (section 

llO(i)) and whether the violation was "significant and substantial" 

(section 104(d)(l)). The representatives of the operator and of the 

miners had the opportunity to present their views on the asserted 

violations and the inspectors' findings. The inspectors, in turn, had 

the opportunity to modify the findings in response to the discussions. 

In fact, as a result of these discussions, the inspectors deleted two of. 

the "significant and substantial" findings. 

We conclude that the subject matter of these post-inspection 

conferences directly related to the enforcement of the Mine Act through 

the inspection process, and thus to safety and health issues. We realize 

that the discussions had another aspect in that the information exchanged 

would be considered by MSHA's Assessment Office in determining the 

amount of penalties proposed for the violations pursuant to the criteria 

and procedures set forth in 30 C.F.R. §§ 100.3 to 100.5. However, the 

inspection and assessment functions of the Mine Act are neither wholly 

discrete nor mutually exclusive. The participation of the miner 

representative in the post-inspection conferences and the resulting 

discussion of the violations could assist inspectors in carrying out 

their enforcement responsibilities and increase miner and operator 

awareness of the conditions which resulted in the cited violations. 

Even when the discussions centered on factors which would impact upon 

the penalty proposed for a violation, they served to enhance safety. A 

discussion of the "gravity" of a violation or of the "significant and 

substantialn nature of a violation involves consideration of the hazards 

to miners created by the violation. A discussion of whether the operator 

was negligent involves consideration of the standard of care an operator 

must exercise in seeking to prevent violations and hazardous conditions. 

300 
Thus, we conclude that the post-inspection conferences at issue 

here were compensable under section 103(£) of the Act.};./ 

Accordingly, the conclusion of the judge that the conferences at 

issue are not compensable under section 103(f) is reversed and the 

contests of the citations are denied. 

~ 

3/ 

Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

2/ We recognize that the judge particularly was troubled by the delay 

between the inspections and the post-inspection conferences. 5 FMSHRC 

at 755, 762. The delay here, however, was of a sui generis nature 

occasioned by the introduction and implementation of MSHA's new Part 100 

procedures. The judge was further troubled by the fact that the four 

to six miner representatives and the five management representatives who 

accompanied the inspectors at various times during the inspections were 

not present at the conferences. 5 FMSHRC at 755, 762. This fact is not 

sufficient to change the compensable character of the conferences. Many 

mines are so large that numerous miner representatives accompany an 

inspector or inspectors during an inspection, and even when post-inspection 

conferences are held close in time to the inspection, these same miner 

representatives may be unavailable to participate in the conferences. 

1J Pursuant to section ll3(c) of the Mine Act, 30 U.S.C. § 823(c), we 

have designated ourselves as a panel of three members to exercise the 

powers of the Commission. · 

301 
Distribution 

Daniel A. Brown 

Alexander, Ebinger, Fisher, McAlister & Lawrence 

1 Riverside Plaza, 25th Floor 

Columbus, Ohio 43215-2388 

Anna L. Wolgast 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Mary Lu Jordan 

United Mine Workers of America 

900 Fifteenth Street, N.W. 

Washington, D.C. 20005 

Administrative Law Judge George A. Koutras 

Federal Mine Safety and Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

302 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 26, 1986 

on behalf of PAUL SEDGMER, JR., 

EDWARD BIEGA, AND DENNIS GORLOCK 

v. Docket No. LAKE 82-105-D 

CONSOLIDATION COAL COMPANY 

BEFORE: Backley, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding involves a discrimination complaint brought by the 

Secretary of Labor under section 105(c)(2) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 815(c)(2)(1982). The complaint 

alleges that Consolidation Coal Company ("Consol") unlawfully suspended 

the complainants for refusing to operate heavy mobile eouipment at 

speeds which they considered to be unsafe. Consol maintains that the 

complainants were disciplined lawfully for operating their equipment too 

slowly. Following a hearing on the merits, a Commission administrative 

law judge dismissed the Secretary's complaint. 6 FMSHRC 1740 (July 

1984)(ALJ). For the reasons stated below, we affirm the judge's decision 

in result. 

On April 12, 1982, the complainants returned to Consol's Reclamation 

Services No. 60 Mine in Ohio to work as pan operators following a threemonth layoff occasioned by a lack of reclamation work. 1/ Several days 

later, on April 15, 1982, complainants Sedgmer and Garlock were part of 

a pan crew operating their equipment in a loading and dumping cycle. 

l/ A pan, also called a scraper, is a 95,000-pound vehi~le used to 

scrape earth and haul it to another location. 

303 
Robert Busby, the crew's foreman, believed that certain crew members 

deliberately were working slowly. He asked Mine Superintendent James 

Taylor to visit the site. Taylor did so and agreed that certain members 

of the crew were engaged in a production slowdown. Taylor asked several 

of the pan operators why they were operating their equipment so slowly 

and whether they could increase their speed. Sedgmer and Gorlock both 

told him that they were going as fast as prevailing conditions would 

permit. Following his exchange with Taylor, Gorlock asked an inspector 

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

("MSHA"), who was at the site, how fast he should operate his pan. The 

inspector responded that each equipment operator must judge proper 

operating speed based upon the conditions he encounters and the 

capabilities of his equipment. Complainant Biega was not at work that 

day. 

Not satisfied with the equipment operators' pace of production, 

Taylor asked Thomas Cyrus, a company reclamation supervisor, to structure 

a time-motion study. The time-motion study devised was to involve a 

"deadhead" operation, that is, driving empty pans from one reclamation 

area to another. Neither the pan operators nor their foreman was to 

know that the study was being conducted. The deadhead operation was 

scheduled for Friday, April 23, 1982. The regular pan crew was augmented 

that morning by bulldozer operators and mechanics. Foreman Busby used a 

list prepared by Superintendent Taylor to assign operators to the 13 

pans. The first four pans were assigned to bulldozer operators and 

mechanics. The next five pans were assigned to regular pan operators. 

The last four pans were assigned to the complainants and John Hornyak, a 

mechanic. 

The time-motion study covered almost the entire route of the equipment relocation. No times were recorded for approximately the first 

mile of the run in order to permit the operators to bring their pans up 

to operating speed. The total distance considered in the time-motion 

study amounted to approximately 9.7 miles. The results of the timernotion study showed that the fastest operator completed the run in 28 

minutes, The slowest operator in the first nine pans completed the run 

in 40 minutes. Complainant Biega took 55 minutes to finish, while 

complainants Garlock and Sedgmer took 74 minutes and 76 minutes, 

respectively, to complete the run. !:._/ 

Upon completion of the deadhead operation, the complainants were 

flagged over to the side of the road. Taylor asked each of the miners 

two questions: whether there was anything mechanically wrong with his 

pan and whether there was anything unsafe about his pan. All three of 

the complainants responded in the negative. Taylor then told the complainants to remain in their pans. They did so until the end of their 

shift, a period of about six hours. At that time, they were told to 

report to Taylor's office at 7:00 a.m. on Monday, April 26, 1982. 

2/ The first nine pans completed the run without mishap. Mechanic 

Hornyak was taken out of the deadhead by Robert Laine, a maintenance 

supervisor, because he saw the brakes on Hornyak's pan smoking. Not 

having completed the deadhead, Hornyak's results were not evaluated in 

the time-motion study. 

304 
On April 26, the complainants reported to Taylor's office accompanied by an agent of the United Mine Workers of America ("UMWA"), which 

represented Consol's employees at the mine. Taylor spoke with each man 

individually and handed each a notice of suspension with intent to 

discharge. The letter concluded that each complainant had engaged in a 

slowdown and had violated a number of employee conduct rules governing 

insubordination and participation in a work stoppage or slowdown. The 

complainants, following the grievance procedures contained in the 

collective bargaining agreement between Consol and the UMWA, appealed 

the disciplinary action taken against them. The arbitrator who heard 

the case concluded that the complainants had engaged in a slowdown, but 

that their actions did not warrant dismissal. Instead, the complainants 

each received a 30-day suspension without pay or benefits. 

Following the arbitrator's decision, the Secretary filed a complaint 

under the Mine Act on behalf of Sedgmer, Biega, and Gerlock. In his 

decision, after a hearing on the complaint, the Commission administrative 

law judge found that during the deadhead run the complainants had taken 

a "leisurely trip" relying on the belief that only equipment operators 

rightfully can determine the speed at which they will operate their 

equipment. 6 FMSHRC at 1744. As a matter of law under the relevant 

mandatory safety standard, the judge held that the speed at which a pan 

may be operated properly and safely is not within the sole discretion of 

the pan operator. 6 FMSHRC at 1745. 3/ The judge indicated that the 

question of the complainants' good faith belief in a safety hazard was 

not a controlling factor in this discrimination proceeding. Id. According 

to the judge, the crucial question was whether Consol, in taking disciplinary action against the complainants, held a good faith belief that the 

complainants were engaged in a slowdown. Id. The judge found that the 

results of the time-motion study justified-Consol's belief in this 

regard. Id. Notwithstanding his statements regarding the relevancy of 

the complainants' belief in a safety hazard, the judge examined the 

testimony regarding the dust and traffic conditions which the complainants alleged created a hazard. He found that the road conditions 

encountered by all the operators were approximately the same and not so 

severe as to justify abnormally slow speeds. 6 FMSHRC at 1743-46. The 

judge decided the case in Consol's favor and dismissed the Secretary's 

complaint. 6 FMSHRC at 1746. 

On review, the Secretary of Labor challenges the judge's decision 

on the grounds that it fails to comply with Commission Procedural Rule 

3/ 30 C.F.R. § 77.1607(c) provides: 

Equipment operating speeds shall be prudent and consistent 

with conditions of roadway, grades, clearance, visibility, traffic, 

and type of equipment used • 

. 305 
6S(a) and that it is inconsistent with the Commission's settled discrimination precedent. 4/ The Secretary argues that the judge's decision 

provides no clear findings or legal foundation that can be challenged or 

subjected to meaningful review. Accordingly, the Secretary suggests 

that the Commission either remand the case to the judge for reconsideration and entry of a decision that meets applicable standards, or that 

the Commission enter the necessary factual findings based on the record 

and analyze them in accordance with governing precedent. 

We agree that the judge's decision is not a model of clarity. 

Nevertheless, we have examined carefully the judge's findings and the 

record as a whole. Based on this review, we are satisfied that the 

judge entered the minimum necessary findings. We conclude further that, 

with certain clarifications, his determination on the merits is supported 

by substantial evidence and is consistent with applicable principles of 

discrimination law. Compare Gravely v. Ranger Fuel Corp., 6 FMSRRC 799 

(April 1984), aff'd sub nom. Gravely v. Ranger Fuel Corp. and FMSHRC, 

No. 84-1511 (4th Cir. May 24, 1985), with The Anaconda Co., 3 FMSHRC 299 

·(February 1981). 

In order to establish a prima f acie case of discrimination under 

section lOS(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 (3d 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 not motivated in any part by protected activity. If 

an operator cannot rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving that (1) it was also motivated 

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

adverse action in any event for the unprotected activities alone. The 

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

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38 (November 1982). The 

ultimate burden of persuasion does not shift from the complainant. 

4/ Rule 6S(a) provides in pertinent part: 

Form and content of judge's decision. The judge shall 

make a decision that constitutes his final disposition of the 

proceedings. The decision shall be in writing and shall 

include findings of fact, conclusions of law, and the reasons 

or bases for them, on all the material issues of fact, law or 

discretion presented by the record, and an order •••• 

29 C.F.R. § 2700.6S(a). 

306 
Robinette, supra, 3 FMSHRC at 818 n. 20. See also Donovan v. Stafford 

Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 

F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the Commission's 

Pasula-Robinette test). The Supreme Court has approved the National 

Labor Relations Board's virtually identical analysis for discrimination 

cases arising under the National Labor Relations Act. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-403 (1983). 

With respect to the first element of the prima facie case in this 

proceeding, the Secretary contends that the complainants were engaged in 

a form of protected work refusal. The Commission has held that a miner's 

work refusal is protected under section 105(c) of the Mine Act if the 

refusal is based on the miner's good faith, reasonable belief in a 

hazardous condition. Pasula, supra, 2 FMSHRC at 2789-96; Robinette, 3 

FMSHRC at 807-12; Secretary v. Metric Constructors, Inc., 6 FMSHRC 226, 

229-31 (February 1984), aff'd sub nom. Brock v. Metric Constructors, Inc., 

766 F.2d 469, 471-72 (11th Cir. 1985). See also Miller v. FMSHRC, 687 

F.2d 194, 195-96 (7th Cir. 1982). The case law addressing work refusals 

contemplates some form of conduct or communication manifesting an actual 

refusal to work. See, e.g., Sammons v. Mine Services Co., 6 FMSHRC 

1391, 1397 (June 1984).---'llowever, the facts of the present case do not 

reveal an unambiguous refusal to work. Rather, the claim is advanced 

that the miners chose to perform work in what they believed to be a safe 

manner, although it was contrary to the manner of operation envisioned 

by the operator. In Saimons, supra, the Commission indicated that, in 

appropriate cases, such activity could enjoy the protection of the Act, 

but that the involved miner must still hold a reasonable, good faith 

belief in the existence of a hazard, and ordinarily should communicate, 

or at least attempt to communicate, to the operator his belief in that 

hazard's existence. Sammons, 6 FMSHRC at 1397-98. We also made clear 

that "a difference of opinion -- not pertaining to safety considerations 

over the proper way to perform [a] task" would lie outside the ambit of 

statutory protection. Sammons, 6 FMSHRC at 1398. 

Thus, the initial issue is whether the complainants' conduct in 

driving the pans at a speed determined by the mine operator to he unacceptably slow, was predicated on a reasonable, good faith belief that 

to operate their equipment at a faster speed would have been unsafe. 

Central to this inquiry are the perceptions of the complainants that 

prevailing road conditions on April 23, 1982, justified, on safety 

grounds, their comparatively slow speed of operation. :?_/ 

SI The judge stated that the complainants' belief in the existence of 

a hazard is not a "controlling factor" and that it is "the motivation of 

the employer that is crucial." 6 FMSHRC at 1745. If the judge intended 

to suggest that the miners' belief in a hazardous condition was legally 

irrelevant, he erred. Pasula, 2 FMSHRC at 2789-96; Robinette, 3 FMSHRC 

at 807-12. 

307 
In essence, as the judge noted (6 FMSHRC at 1744-45), all three 

complainants testified to the effect that the pan operator commands an 

absolute discretion in determining how fast the equipment should be 

operated. They stated that the deadhead route was dusty and that other 

haulage traffic was present. All three alleged that these factors 

necessitated a slow speed, and also that they maintained slow speeds in 

order to reduce the generation of more dust along the route. All three 

disclaimed any intent to work slowly in order to preserve work for 

themselves. 

In evaluating the complainants' testimony, the judge found that 

they had not engaged in a deliberate slowdown designed to hamper Consol's 

operation and to avoid layoff. 6 FMSHRC at 1744. This language may be 

read as suggesting that the complainants acted in good faith. Assuming 

that they held a good faith belief, it is still necessary to establish 

the separate and conjunctive element that the belief was reasonable. 

See Secretary on behalf of Bush v. Union Carbide Corp., 5 FMSHRC at 993, 

997 (June 1983). Concerning the miners' reasonable belief -- the issue 

on which we conclude that this case turns -- the judge analyzed and 

weighed the pertinent evidence and found that the miners' "leisurely 

trip" lacked a reasonable basis in safety-related concerns. As discussed 

below, we agree with the judge's disposition of this issue and find it 

supported by substantial evidence and grounded in credibility resolutions 

that the judge was best positioned to make. 

The judge noted the existence of conflicting testimony regarding 

the road conditions encountered by the pan operators during the deadhead 

operation. 6 FMSHRC at 1743-44. Contrary to the testimony of the 

complainants, four of the operators in the main group of pans testified 

that dust was not a problem for them. Superintendent Taylor and the 

other management personnel, who traversed the deadhead route several 

times observing the pan operators' progress, testified that dust, traffic, 

and road surface conditions were not significantly different for any of 

the pan operators. 6 FMSHRC at 1744. The judge found expressly that 

the road conditions encountered during the deadhead were no more dusty 

for the complainants than they were for the other members of the pan 

crew, and that the complainants were not held up by other traffic. 6 

FMSHRC at 1744, 1746. In this regard, the judge stated that "there 

[was) no evidence of a traumatic change in the road conditions" between 

the beginning and the end of the test. 6 FMSHRC at 1744. He concluded, 

"I do not find that such extremely dusty conditions existed, and I 

cannot find that the time and motion study was unfair." 6 FMSHRC at 

1746. In reaching these factual findings, it is apparent that the judge 

credited the relevant testimony of the operator's witnesses and discounted the complainants' claims of unsafe road conditions. The judge's 

factual findings, which in part turn on credibility, are supported by 

substantial evidence and must be upheld. In reaching this conclusion we 

also rely on the testimony by the MSHA inspector that the overall safety 

consciousness of the operator was very good, that the haulage road was 

well-maintained, that management never set a speed as far as he knew, 

and that he had never issued a citation to one of Consol's operators for 

308 
operating at an unsafe speed. Tr. 665-71. 

the judge's holding that the complainants' 

safety hazard was unreasonable. !:._/ 

All of these facts supp_o.rt. 

belief in the existence of a 

Finally, we note also that while the judge observed that the 

complainants had made safety complaints from time to time, he found that 

there was no evidence that such complaints had any connection with the 

disciplinary action taken against them. 6 FMSHRC at 1745. With the 

exception of Sedgmer, whose testimony that he raised safety concerns 

prior to the deadhead run was disputed and not credited by the judge, 

none of the complainants raised any safety concerns with Consol management before, during, or after the deadhead operation. While such 

communications are not only expected, in ordinary course, in work refusal 

situations, their absence also lends weight to the conclusion that the 

disagreement here as to operating speed did not have a sound basis in 

safety concerns. Sammons, 6 FMSHRC at 1397-98. 

We conclude that substantial evidence supports the judge's conclusion, whether express or implied, that the complainants failed to 

prove that their conduct was premised on a reasonable belief in the 

existence of a hazard. Thus, they failed to establish protected 

activity and a prima facie case. The Secretary's complaint was properly 

dismissed. 

6/ We note that while 30 C.F.R. § 77.1607(c) necessarily delegates to 

the equipment operator a certain degree of latitude in determining safe 

operating speeds, this determination is not within his absolute discretion. 

Compliance with section 77.1607(c) must be judged on an objective, 

"reasonable person" basis, rather than on the basis of the subjective 

perceptions of each and every equipment operator. Cf. Great Western 

Electric Co., 5 FMSHRC 840, 841-43 (May 1983). Just as an MSHA 

inspector may determine that equipment is being operated at too fast a 

speed, a determination can also be made by persons other than the 

equipment operator that the equipment is being driven slower than 

conditions warrant. 

309 
Accordingly, on the foregoing bases, we affirm the judge's decision 

in result. ]_/ 

Richard ~~ V. Backley, Commissioner 

7/ Pursuant to section 113(c) of the Mine Act, 30 u.s.c. § 823(c), we 

have been designated as a panel of three members to exercise the powers 

of the Commission. 

310 
Distribution 

Robert M. Vukas, Esq. 

Consolidation Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

311 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ROBERT SIMPSON 

v. 

KENTA ENERGY, INC. 

and 

ROY DAN JACKSON 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 26, 1986 

Docket No. KENT 83-155-D 

·BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter presently is pending on review before the Commission. 

On January 31, 1986, the Commission issued an order directing, in part, 

that complainant Robert Simpson's Motion to Reopen the proceedings to 

pursue successorship issues be held in abeyance pending the Commission's 

resolution of the underlying question of liability for violation of the 

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

(1982). On February 10, 1986, Simpson filed a Petition for Reconsideration 

of that aspect of the Commission's January 31 order. Previously scheduled 

oral argument on the merits of this case was heard before the Commission 

on February 26, 1986. 

We confinp. our January 31 order. We conclude that it is appropriate 

to resolve first the issue of liability presented to us on review before 

directing any proceedings dealing with successorship issues. Accordingly, 

Simpson's Petition for Reconsideration is denied. The merits of this 

case as well as Simpson's Motion to Reopen stand submitted. J:./ 

J:./ Chairman Ford has elected not to participate in the consideration 

or disposition of this case. 

312 
Distribution 

Tony Oppegard, Esq" 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P.O. Box 360 

Hazard, KY 41701 

David T. Smorodin, Esq. 

Steven D. Cundra, Esq. 

Thompson, Hine & Flory 

1920 N Street, N.W. 

Washington, D.C. 20036 

Vicki Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

313 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

UNITED STATES STEEL MINING 

COMPANY, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 28, 1986 

Docket No. PENN 84-49 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

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"), 

and involves two alleged violations of a---roof control standard for 

underground coal mines, 30 C.F.R. 75.200 (1985). !::./ The administrative 

1/ The cited standard provides in pertinent part: 

§ 75.200 Roof control programs and plans. 

[Statutory Provisions] 

Each operator shall undertake to carry out on a continuous 

basis a program to improve the roof control system of each 

coal mine and the means and measures to accomplish such system. 

The roof and ribs of all active underground roadways, travelways, 

and working places shall be supported or otherwise controlled 

adequately to protect persons from falls of the roof or ribs. 

A roof control plan and revisions thereof suitable to the roof 

conditions and mining system of each coal mine and approved by 

the Secretary shall be adopted and set out in printed form ••• 

The plan shall show the type of support and spacing approved 

by the Secretary. Such plan shall be reviewed periodically, 

at least every 6 months by the Secretary, taking into consideration any falls of roof or ribs or inadequacy of support of 

roof or ribs. No person shall proceed beyond the last permanent 

support unless adequate temporary support is provided or 

unless such temporary support is not required under the approved 

roof control plan and the absence of such support will not 

pose a hazard to the miners. 

314 
law judL-= found that United States Steel Mining Company, Inc. ("U.S. 

Steel") committed two violations of the cited standard and assessed 

civil penalties of $7,500 and $350. 6 FMSHRC 2693 (November 1984)(ALJ). 

We granted U.S. Steel's petition for review of the judge's decision and 

heard oral argument. 

The issues raised by U.S. Steel are: (1) whether in regard to the 

first violation the judge properly found that U.S. Steel was negligent 

in connection with a fatal roof fall; and (2) whether the judge properly 

found that U.S. Steel violated its roof control plan by failing to 

install a temporary jack for roof support. For the following reasons, 

we reverse and remand on the negligence issue and affirm on the violation 

issue. 

The alleged violations occurred at the Maple Creek No. 1 Mine, an 

underground coal mine owned and operated by U.S. Steel. Glen Ward and 

Nathan. Klingensmith were district underground plan coordinators responsible 

for setting spads and sight lines at U.S. Steel's mines. (Spads and 

sight lines insure that entries and crosscuts will be driven straight 

and at proper angles.) As underground plan coordinators they worked in 

different mines and different areas of a mine as needed and assigned. 

On the morning of May 23, 1983, Ward and Klingensmith reported to 

Earl Walters, the acting mine foreman at the Maple Creek No. 1 mine for 

their daily work assignment. Walters testified that he and Ward discussed 

the mining that had been done on previous shifts. They examined the 

mine maps to determine where spads would be needed that day. Walters 

testified that he specifically told Ward to set spads in No. 20 split at 

the intersection of the No. 7 room. 

'When the two miners arrived at the section of the mine that contained 

the intersection of No. 20 split and the No. 7 room the section foreman, 

Walter Franczyk, was on the mine telephone conducting business. They 

greeted the section foreman, and they proceeded past him. For some 

unexplained reason, rather than going to the intersection of the No. 20 

split and No, 7 room as directed by Walters, Ward and Klingensmith 

proceeded to the intersection of the No. 20 split and No. 6 room. 

The No. 6 room was one of two working places on the section. At 

the start of the morning shift on May 23, the No. 6 room had already 

been mined and bolted up to, but not including, the intersection with 

the No. 20 split. Prior to commencing mining on the section and prior 

to the arrival on the section of Ward and Klingensmith, Franczyk had met 

with his section crew and had visi-ted the intersection. The continuous 

mining machine operator and the operator's helper advised Franczyk that 

the roof in the intersection of No. 6 room and No. 20 split was 

drummy. ]:_/ Franczyk instructed them to cut the drumrny roof down. 

l_/ The term "drummy" is defined as, "Loose coal or rock that produces 

a hollow, loose, open, weak, or dangerous sound when tapped with any 

hard substance to test condition of strata; said especially of a mine 

roof •••. " A Dictionary of Mining, Mineral, and Related Terms, 

Department of the Interior (1968). 

315 
The continuous miner operator and his helper were at the intersection when Ward and Klingensmith arrived. The helper warned Klingensmith, 11 1 wouldnrt go in there if I were you." Tr. 31, 47. Nevertheless, 

Klingensmith proceeded under the unsupported roof where he remained for 

ten minutes installing two spads. He came out from under the unsupported 

roof, and Ward then proceeded under the unsupported roof and climbed up 

onto the continuous mining machine to put more spads in the roof, 

Klingensmith again went under unsupported roof and was preparing to 

assist Ward when the roof collapsed on the miners. Ward and Klingensmith 

were killed. As a result of the accident, MSHA issued the two roof 

control violations now before us on review. 

In one of the citations, the Secretary first asserted that U.S. 

Steel violated 30 C.F.R. § 75.200 when Ward and Klingensmith proceeded 

beyond the last permanent support and under unsupported roof, U.S. 

Steel conceded the violation but argued that the violation was not the 

result of its negligence. 3/ The judge found otherwise. In doing so, 

he relied on the testimony-of MSHA Inspector Swarrow, one of two MSHA 

inspectors who investigated the accident, that the section foreman is 

responsible for the safety of everyone on his section. The judge stated 

that the section foreman has the "authority and responsibility to control 

what happens on his section." The judge therefore concluded that foreman 

Franczyk was negligent "in not stopping the decedents to find out their 

destination and what they were going to do." 6 FMSHRC at 2696. Finding 

that the section foremanrs negligence was attributable to the operator, 

the judge found U.S. Steel negligent. We do not agree, 

The Commission has held that when a violation is committed by a 

miner, the mine operatorrs negligence may be gauged by considering the 

forseeability of the minerrs conduct, the risks involved, and the operatorrs 

supervision, training and disciplining of its employees to prevent 

violations of the standard at issue. A.H. Smith Stone Co., 5 FMSHRC 13 

(January 1983). All of the witnesses who testified in this proceeding 

agreed that the decision of Ward and Klingensmith to proceed beyond the 

last permanent roof supports and under unsupported roof was inexplicable 

and unforeseeable. Nor was any evidence offered by the Secretary to 

establish that U.S. Steel's selection or training of Ward and Klingensmith 

was in any way inadequate. To the contrary, the evidence clearly establishes 

that Ward and Klingensmith were very experienced underground plan coordinators 

who had received all required training concerning the hazards of working 

under unsupported roof and who, as far as is known, had never before 

performed their jobs under unsupported roof. Thus, there is nothing in 

the record from which to conclude that Ward and Klingensmith's own lack 

of care is attributable to U.S. Steel under the imputation principles 

discussed in A.H. Smith Stone. 

3/ Section llO(i) of the Mine Act, 30 U.S.C. § 820(i), requires that 

In assessing penalties for violations the Commission must consider, 

among other criteria, "whether the operator was negligent". 

316 
The Commission also has held that consideration of a foreman's 

negligence is proper in assessing a penalty against an operator. 

Nacco Mining Co., 3 FMSHRC 848, 850 (April 1981). Where a foreman's 

negligence is at issue the Commission looks to whether the foreman acted 

with the care required by all of the circumstances surrounding the 

violation. Southern Ohio Coal Co., 4 FMSHRC 1459, 1461 (August 1982). 

In finding negligence, the judge relied on the inspector's statement 

that a section foreman is responsible for the safety of everyone on his 

section. This ipso facto approach to a section foreman's negligence 

cannot be fully reconciled with the Commission's emphasis in Southern 

\Ohio that the determinants of a section foreman's duty of care are the 

circumstances under which the violation arose. 

The pertinent inquiry here is whether, under the circumstances 

described, section foreman Franczyk breached a duty of care toward Ward 

and Klingensmith. The record estabLishes that Ward and Klingensmith 

were employees who were not in Franczyk's chain of command. They were 

employees who worked in all of U.S. Steel's mines in the district and 

when they worked in the Maple Creek No. 1 mine, they were assigned as 

needed to different areas of the mine by the mine foreman. Nevertheless, 

Ward and Klingensmith were well known to Franczyk. Thus, when he saw 

them on his section he had every reason to assume what they were there 

to set spads, as directed by the mine foreman. This was not a situation 

in which unknown persons, with unknown responsibilities, were present in 

Franczyk's section. 

Franczyk was on the telephone conducting mine business when ·ward 

and Klingensmith arrived on his section, greeted him and proceeded past 

him. To his knowledge, Ward and Klingensmith had never installed spads 

under unsupported roof. Further, he had absolutely no basis to think 

that they would be installing spads in an area where the continuous 

miner operator and his helper were working to take down drummy roof. 

The inspector stated that the conditions in the intersection of the No. 

20 split and No. 6 room were not in violation of the Mine Act. Drummy 

roof in a working place is not uncommon and to remove the danger posed, 

30 C.F.R. § 75.200 requires the roof to be supported or adequately 

controlled. Franczyk was in the process of complying with this requirement; he ordered the continuous miner operator and his helper to take 

down the drummy roof. After the drummy roof was removed, required roof 

bolting would have commenced. While there might be conditions on a 

section so unusual and hazardous that a section foreman would be under a 

duty to warn everyone on the section of the existence of the hazards, 

here, given the obvious nature of the conditions and the expertise and 

experience of Ward and Klingensmith in working with mine roof, a warning 

to the two miners not to enter into an area of unsupported roof, and not 

to set spads until the roof had been supported, was not required and 

Franczyk's "failure" to give such warning does not constitute a lack of 

reasonable care, We conclude, therefore, that under these facts Franczyk 

was not negligent. !!./ 

4/ On review, the Secretary alternately argues that the negligence of 

Ward and Klingensmith can be imputed to the mine operator because, as 

management employees, Ward and Klingensmith were agents of U.S. Steel 

(footnote 4 continued) 

317 
The second citation charged that U.S. Steel violated its approved 

roof control plan in that a temporary jack had not been installed on the 

left side of the intersection of No. 6 room and No. 20 split as specified 

in Drawing No. 1 of the plan. The judge held that the violation occurred 

as alleged. 

Section 302(a) of the Mine Act, 30 U.S.C. § 862(a), and the mandatory 

safety standard which implements section 302(a), 30 C.F.R. § 75.200, 

require the operator to adopt and the Secretary to approve a roof control 

plan suitable to the conditions of the mine. Such plans are intended to 

be essentially negotiated agreements between the Secretary and the 

operator regarding procedures to be followed by the operator in the 

interest of miner safety and for the control and support of roof and 

ribs. Cf. Zeigler Coal Company v. Kleppe, 536 F.2d 398 (D.C. Cir. 

1976); 'Penn Allegh Coal Company., 3 FMSHRC 2767 (December 1981); 

Bishop Coal Company, 5 IBMA 231 (1975). In recognition of this 

negotiation process the Commission has held that: 

[A]fter a plan has been implemented (having gone 

through the adoption/approval process) it should 

not be presumed lightly that terms in the plan do 

not have an agreed upon meaning. 

Penn Allegh, 3 FMSHRC at 2770. The basis of the dispute in this case is 

a disagreement over the application of provisions of the previously 

agreed upon plan. The plan did not include a specific drawing for the 

mining and roof support sequence to be followed during the mining of an 

intersection, a routine occurrence. The Secretary argued and the judge 

found that Drawing No. 1 of the approved roof control plan applied to 

the mining of the intersections. Under Drawing No. 1, a second temporary 

jack is installed after the third cut of coal has been mined and before 

a fourth cut is mined. Because the second temporary jack was not set 

and a fourth cut of coal had been mined, the judge found that U.S. Steel 

was in violation of its approved roof control plan and of 30 C.F.R. § 

75.200. 6 FMSHRC 2696-97. For the reasons that follow, we conclude 

that substantial record evidence supports :he judge's findings concerning 

the applicability of Drawing No. 1 and the violation thereof. 

At the hearing MSlL~ Inspector Moody stated that Drawing No. 1 was 

applicable to the intersection. The inspector acknowledged that Drawing 

No. 1 depicts an entry with two ribs of coal and that the intersection 

Footnote 4 end. 

and their actions are directly attributable to their employer. However, 

this issue was not raised before the judge. Instead, it was first 

advanced on review. Absent a showing of good cause, section 

113(d)(2)(A)(iii) of the Mine Act precludes our review of questions of 

law and fact not presented to the judge. 30 U.S.C. § 823(d)(2)(A)(iii). 

Jones & Laughlin Steel Corp., 5 FMSHRC 1209, 1212 (July 1983). Such 

good cause has not been demonstrated. Therefore, this issue is not 

properly before us and we decline to reach the question as to whether 

employees such as Ward and Klingensmith are "agents" of an operator 

within the meaning of section 3(e) of the Mine Act. 30 U.S.C. § 802(e). 

318 
had only one rib. However, he stated that the row of roof bolts on the 

right side of the intersection (Letter "C", Op. Ex. 3) served the same 

support function as a rib and thus took the place of the right rib on 

Drawing No. 1. Further, the inspector testified that the temporary 

jack, when installed, serves a roof support function and reduces the 

area of unsupported roof to which miners are exposed when installing the 

permanent roof supports required by the plan. A first temporary jack 

was installed. The testimony of both MSHA Inspector Swarrow and of U.S. 

Steel's chief mine inspector established that a fourth cut of coal was 

mined and a second temporary jack was not installed. 

U.S. Steel contends that the judge erred in concluding that Drawing 

No. 1 applies. It argues that a different provision of its plan, Drawing 

No. 23, applies to the mining of intersections. It states that Drawing 

No. 23 depicts a situation where it is unnecessary for a miner to proceed 

under unsupported roof to advance ventilation or to take gas samples. 

According to U.S. Steel, the only purpose of the temporary jacks indicated 

in Drawing No. 1 "is to protect people going under the roof to advance 

curtain, take tests, or set bolts.n Brief at 8. It asserts that in the 

mining of the cited intersection there was no need for a miner to go 

under unsupported roof in order to advance line curtains or take gas 

samples. Stating that Drawing No. 23 is more analogous to the cited 

intersection than Drawing No. 1, it argues that the setting of temporary 

jacks was not required and that it did not violate its roof control plan 

in this respect. 2_/ 

Section 113(d)(2)(A)(ii)(I) of the Mine Act mandates that factual 

findings of administrative law judges be upheld if supported by substantial evidence of record. 30 U.S.C. § 823(d)(2)(A)(ii)(I). The 

judge here found the conclusion that Drawing No. 1 applied to the mining 

of intersections to be "inescapable". We might not have reached this 

conclusion so readily. The operator's argument that Drawing No. 23 also 

can be analogized to the mining of intersections because the required 

ventilation and gas testing can be accomplished from under the adjoining, 

previously bolted entry cannot be rejected summarily. If all required 

ventilation and gas testing can be accomplished from an adjoining entry 

without miners entering under unsupported roof, then Drawing No. 23, 

viewed in conjunction with Drawing No. 24, conceivably could be read to 

support the mining sequence argued for by U.S. Steel. However, we 

5/ U.S. Steel also argues that even if Drawing No. l applied the 

setting of a second jack was not required until mining sequence No. 3 

was completed, and that this had-not yet occurred. This argument is 

rejected. MSHA Inspector Swarrow and U.S. Steel's witness Cortis testified 

that cut No. 4 had been completed except for a little "cleaning up." 

Even if cut No. 4 was not completely finished, a second jack was required 

under Drawing No. 1 immediately upon completion of cut No. 3. The 

subsequent determination to remove more roof would not have affected the 

previously triggered requirement of setting a second jack. 

319 
cannot say that the trial judge's conclusion that Drawing No. 1 applied 

is not supported by substantial evidence. The testimony of the MSHA 

inspector that Drawing No. 1 applies to the mining of intersections was 

detailed and consistent and provides a substantial basis supporting the 

judge's finding. Also supportive of this conclusion is the fact that 

one temporary jack had been set by the miners, which would have been 

required by Drawing No. 1, but not by Drawing No. 23. 

Accordingly, we affirm the judge's conclusion that Drawing No. 1 

was applicable and was violated. We note, however, that roof control 

plans are reviewed at least every six months. If U.S. Steel continues 

to believe that a provision other than Drawing No. 1 should apply when 

mining an intersection, it has the opportunity to pursue this when the 

plan is next reviewed. 

For the foregoing reasons, we reverse the judge's finding that U.S. 

Steel was negligent in connection with the two miners working under 

unsupported roof, and we remand to the judge for recomputation of an 

appropriate penalty. We also affirm the judge's conclusion that U.S. 

Steel violated 30 C.F.R. § 75.200 by failing to install a second 

temporary jack pursuant to Drawing No. l of U.S. Steel's approved roof 

control plan. §_/ 

Joyce1 A. Doyle, Commis~oner 

ames A. Lastowk~. , Commissioner 

~,, ~~Co~~f:rv '/1 

!i/ Chairman Ford has elected not to participate in the consideration 

or disposition of this case. 

320 
Distribution 

Louise Q. Symons, Esq. 

Billy M. Tennant, Esq. 

United States Steel Corporation 

600 Grant St., Room 1580 

Pittsburgh, PA 15230 

Debra Feuer, Esq. 

Office of the Solicitor 

U.5. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety and Health 

Review Commission 

1730 K Street, N.W. 

Washington, D.C. 20006 

321 

ADMINISTRATIVE LAW JUDGE DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 March 5' 19 8 6 

HOMESTAKE MINING COMPANY, CONTEST PROCEEDING 

Contestant 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

HOMESTAKE MINING COMPANY, 

Respondent 

Docket No. CENT 86-24-RM 

Citation No. 2635045; 11/14/85 

Homestake Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 85-93-M 

A.C. No. 39-00055-05545 

Docket. No. CENT 85-118-M 

A.C. No. 39-00055-05550 

Homestake Mine 

DECISION AND ORDER OF DISMISSAL 

Appearances: Timothy M. Biddle, Esq., Crowell & Moring, 

Washington, D.C., and Robert A. Amundson, Esq., 

Amundson, Fuller and Delaney, Lead, South Dakota, 

for Contestant/Respondent; 

James Ho Barkley, Esq.v Office of the Solicitor; 

U.So Department of Labor 7 Denver 1 Coloradoq 

~or Respondent/Petitioner. 

Before~ Judge Lasher 

Docket No. CENT 85-118-M. At the conunencement of the hearing in 

·:his expedited and consolidated proceeding 1 the Secretary moved to 

-Ilithdraw his Proposal for Penalty Assessment for failure of proof. The 

motion was granted pursuant to 29 C.F.R. 2700.11 and the Section 107(a) 

Order and ~he Section 104{a) Citation No. 2358414 involved was ordered 

vacated on.the recordo Accordingly 1 this docket is DISMISSED. 

Docket No. CENT 85-93-M. Subsequent to the commencement of the 

hearing, and after further investigation, the Secretary moved to dismiss 

this proceeding for failure of proof. The motion, construed to be to 

withdraw the Proposal for Penalty Assessment, was granted pursuant to 

29 C.F.R. 2700.11, and Citation No. 2097258 was ordered vacated on the 

record. Accordingly, this docket is DISMISSED. 

322 
Docket No. CENT 86-24-RM. Subsequent to the commencement of the 

hearing, and after further investigation, the Secretary moved to vacate 

the Section 104(d) (1) Citation (No. 2635045) involved for failure of 

proof. The motion was granted on the record, and the subject Citation 

was ordered vacated. Accordingly, the docket is DISMISSED. 

The vacation of the three citations set forth above are with 

prejudice to the Secretary to reinstitute the same in the future. 

'.Ul£~~,,~·tr. ~o~~· fh-. 

YMichael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut Avenue, N.W., 

Washington, D.C. 20036 (Certified Mail} 

Robert A. Amundson, Esq., Amundson, Fuller & Delaney, P.O. Box 898, 

Lead, South Dakota 57754 (Certified Mail) 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294 

(Certified Mail) 

United Steelworkers of America, Local 7044e 501 Main Street 1 Lead, 

South Dakota 57754 (Certified Ma ) 

323 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

March 5, 1986 

EMERALD MINES CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF 

AMERICA ( UMWA) I 

Intervenor 

. . 

. 

. 

. . 

DECISION 

CONTEST PROCEEDING 

Docket No. PENN 85-298-R 

Citation No. 2401863; 8/8/85 

Emerald No. 1 Mine 

Appearances: R. Henry Moore, Esq., Rose, Schmidt, Chapman, 

Duff & Hasley, Pittsburgh, Pennsylvania, for 

Contestant; 

Heidi Weintraub, Esq., Office of the Solicitor, 

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

for Respondent; 

Torn Shumaker, United Mine Workers of America, 

Masonto~n, Pennsylvania, for Intervenor. 

Before~ Judge Melick 

This case is before me upon the Notice of Contest filed 

by Emerald Mines Corporation (Emerald) under section 105Cd) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et. ~, the "Act" to challenge the issuance by the 

Secretary of Labor of citation No. 2401863 under the provisions of section 104(d}(l) of the Act.l The Secretary 

moved for dismissal of the case on the grounds that there was 

no justiciable issue in that Emerald had already paid the 

civil penalty corresponding to the citation and that 90 days 

!section l04(d)(l) provides in relevant part as follows: 

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

authorized representative of the Secretary finds that there 

has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created 

by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard, and if he finds such violation 

to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he 

shall include such finding in any citation given to the 

operator under this Act." 

324 
had elapsed without a~y additional section 104Cd) orders 

having been issued. According to the Secretary the case was 

therefore moot. The Secretary's motion was taken in part as 

a Motion For Summary Decision under Commission Rule 64, 29 

C.F.R. § 2700.64, and documents submitted in connection with 

the motion were supplemented at limited hearings under that 

rule. The Secretary's motion was thereafter granted in part 

and denied in part. The corresponding bench decision appears 

below with only non-substantive modification: 

To the extent that Emerald does concede that 

it paid the penalty proposed by the Secretary for 

Citation Number 2401863 as a 104(a) citation, I 

find that the fact of the violation and the "significant and substantial" findings related to 

that citation have been the subject of a final 

disposition. Those issues, I find, have indeed 

been waived by payment of the penalty. [Old Ben 

Coal Co., 7 FMSHRC 205 (1985)]. 

Now whether the 104 ( d) Cl) "unwarrantable 

failure" findings that were later added to the 

citation have also been the subject of a final 

disposition by the payment of that penalty, is 

still an issue that may be further probed in 

these limited proceedings. I will provide additional opportunity for the Secretary to present 

evidence on that subject, pursuant to Commission 

Rule 64(b). 

So, to the extent that there does exist a 

genuine issue of fact based on the pleadings, 

documents, and affidavits submitted to me, 

regarding whether the 104(d)(l) citation was 

included in that penalty payment, and should 

likewise be considered waived, the Secretary's 

motion must be denied. [Commission Rule 64] 

Now, the Secretary also asserts in paragraphs 2 and 3 of his motion that the 104(d)(l) 

"unwarranta.ble failure" issue is, in any event, a 

moot issue. Now, there may be other reasons why 

this is not moot, but I find that the "unwarrantable failure" issue is not a moot issue because 

the history of violations attributed to Emerald 

reflects the existence of the more serious 

104(d)(l) citation as opposed to a less serious 

104(a) citation. This history could be used in 

any future proceedings to increase penalties 

imposed against Emerald, both by the Secretary 

under his regulations, and by the Commission, 

under section llO(i) of the Act. In other words 

325 
as long as the 104(d)(l) characterization is 

associated with that citation, there indeed is a 

viable issue because of potential prejudice to 

Emerald in the future assessment of civil 

penalties. Now, there may be other reasons why 

this issue is not moot, but I don't find it 

necessary to consider any other reasons. So, 

with respect to the Secretary's paragraphs 2 and 

3, in his motion to dismiss, those are also 

denied. 

Following limited hearings on the Secretary's Motion 

under Commission Rule 64Cb) a further bench decision was 

rendered. That decision appears as follows: 

I am prepared to rule. I find that the 

testimony of Mr. Machesky [Emerald's Safety 

Director] is, indeed, fully credible. It is 

undisputed that when Mr. Machesky paid that 

section 104(a) citation, [on behalf of Emerald] 

he believed he was paying only a penalty for a 

104(a) citation. I certainly accept his testimony that he did not then understand that his 

payment of that penalty would have had any impact 

on the 104(d)(l) modification to that citation. 

Thus, when the penalty was paid on the citation, it was paid as a section 104(a) citation, 

and the only issues that were thereby waived were 

the fact of the violation cited and the amount of 

civil penalty. Those are the only issues that 

had become final by the payment of that penalty 

and the issue of '

0 unwarrantable failuren survived 

that payment of penalty. The Secretary's motion 

to dismiss is, therefore, denied on that issue. 

Emerald 1 s Motion for Partial Summary Judgment under 

Commission Rule 64 was also considered at hearing. Emerald 

sought dismissal of the 11 unwarrantable failure" findings in 

the citation alleging inter alia that "an unwarrantable 

failure allegation must be based on an actual inspection of 

the mine and observance of the condition as opposed to an 

investigation performed after the fact.n 

The undisputed evidence on the motion is as follows. 

On August 8, 1985u at 8:00 a.m. Joseph Koscho, an inspector 

for the Federal Mine Safety and Health Administration (MSHA), 

issued Citation No. 2401863 under section 104(a) of the Act 

charging a "significant and substantial" violation of the 

standard at 30 C.F.R. § 75.308. The citation alleged as 

follows: 

326 
"During a 103Cg)(l) investigation it is determined 

that power from the continuous miner serial 

number JM2567 was not immediately de-energized 

when 2.5% to 2.6% methane was detected, also 

changes were made in the ventilation in the 

working places before the continuous miner in the 

working place was de-energized. The incidence 

[sic] took place in number 1 haulage 002 section 

in a crosscut being driven from 3 room to 2 room 

on 7/29/85." 

On August 23, 1985, Inspector Koscho modified the citation changing item 9 "Type of Action11 from "104(a) 11 to 

"104Cd)(l) 11 and noting that 11 the subject citation is hereby 

modified to show item 9-type of action to be changed from 

104-a to 104-d-l as per instruction of upper MSHA supervision." 

The events leading to the issuance of the citation are 

as follows. On July 30, 1985, Inspector Koscho had received 

a section 103(g)(l) complaint concerning an alleged accumulation of methane at the Emerald No. 1 Mine on July 29, 1985.2 

Koscho began his investigation on July 31, 1985, by visiting 

the mine and talking to Lampman Don Kelly on the surface. At 

this point he was investigating allegations that the handheld methane detectors had not been working properly and were 

poorly maintained. Koscho reviewed the records concerning 

the methane detectors and found no violations. He then 

2section 103Cg><i> provides as follows: 

"Whenever a representative of the miners or a miner in 

the case of a coal or other mine where there is no such representative has reasonable grounds to believe that a violation of this Act or a mandatory health or safety standard 

exists, or an imminent danger exists, such miner or representative shall have a right to obtain an immediate inspection by giving notice to the Secretary or his authorized 

representative of such violation or danger. Any such notice 

shall be reduced to writing, signed by the representative of 

the miners or by the miner, and a copy shall be proyided the 

operator or his agent no later than at the time of inspection, except that the operator, or his agent shall be 

notified forthwith if the complaint indicates that an 

imminent danger exists. The name of the person giving such 

notice and the names of individual miners referred to therein 

shall not appear in such copy or notification. Upon receipt 

of such notification, a special inspection shall be made as 

soon as possible to determine if such violation or danger 

exists in accordance with the provision of this title. If 

the Secretary determines that a violation or danger does not 

exist, he shall notify the miner or representative of the 

miners in writing of such determination. 

327 
proceeded into the East Mains section of the mine to interview miners who had been present at the time of the alleged 

methane violation reported in the "103(g)" complaint. 

The next day, August 1, 1985, Inspector Koscho returned 

to the mine and for the first time visited the underground 

area in which the cited violation had occurred i.e., in the 

crosscut between the No. 2 and No. 3 entry in the 002 section. 

According to Koscho, conditions on August 1 differed from 

conditions that reportedly had existed on the date of the 

violation. In this regard Koscho found "very little methane" 

on August 1st and observed that since the violation 2 full 

cuts of coal had been removed from the No. 3 entry and 1 cut 

from the No. 2 entry. Koscho tested the methane monitor on 

the continuous miner which had been used on the date of the 

violation and found it to be working. He also obtained 

records concerning the retraining of mine employees. This 

was a "long drawn out affair" since some records were not 

readily obtainable. 

Upon obtaining all of the requested documentation Koscho 

finally wrote the section 104(a} citation on August 8, 1985. 

He did not observe the violation that occurred on July 29, and 

acknowledged that conditions were different when he was physically on-site on August 1, 1985. The citation was based upon 

the unsworn statements of the miners who purportedly observed 

the violation. On August 23, 1985, Koscho modified the section 

104(a) citation to a citation under section 104(d)(l) of the 

Act based on the same information he used to issue the section 

104(a) citation. 

Within this framework of evidence it is clear that the 

citation at bar was not based on an inspection of the mine 

but upon an investigation through subsequent interviews and 

the examination of records conducted by the inspector several 

days after the incidents giving rise to the violation. A 

finding of "unwarrantable failure" under section 104(d}(l) 

must however be based upon an "inspection" of the mine. See 

Emery Mining Corporation, 7 FMSHRC 1908 (1985) (Judge Lasher) 

citing therein the order of Judge Steffey in Westmoreland 

Coal Company, WEVA 82-340-R et.al)~ Southwestern Portland 

Cement Company, 7 FMSHRC 2283 (1985) (Judge Morris) and NACCO 

Mining Company, 8 FMSHRC (Jan 14, 1986) (Chief Judge 

Merlin). Under the circumstances the "unwarrantable failure" 

allegation herein cannot be supported and the citation as a 

citation under section 104(d}(l} of the Act must fail. 

Accordingly the Motion for Partial summary Decision 

filed by Emerald is granted and the citation at bar is 

modified from a citation under section 104Cd)(l) of the Act 

to a citation under section 104(a) of the Act. Inasmuch as 

Emerald has already paid the civil penalty proposed by the 

328 
Secretary of Labor for Citation No. 2401863 as a section 

104(a) citation, further proceedings in this matter are 

unneccessary. 

f 

Distribution: 

R. Henry Moore, Esq., Rose, Schmidt, Chapman, Duff & Hasley, 

900 Oliver Building, Pittsburgh, PA 15222-5369 (Certified 

Mail) 

Heidi Weintraub, Esq., Office of the Solicitor, Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Tom Shumaker, Safety Inspector and Mary Lou Jordon, Esq., 

United Mine Workers of America, 32 Main Street, Masontown, PA 

15461 (Certified Mail) 

rbg 

329 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

March 7, 1986 

YOUGHIOGHENY AND OHIO COAL 

COMPANY, 

Contestant 

Vo 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), · Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

YOUGHIOGHENY AND OHIO COAL 

COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. LAKE 85-76-R 

Order No. 2330257; 4/25/85 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 85-31 

A. C. No. 33-00968-03582 

Docket No. LAKE 85-93 

A. C. No. 33-00968-03609 

Nelms No. 2 Mine 

DECISION 

Appearances: Robert Kota, Esq., St. Clairsville, Ohio, 

for Contestant/Respondent; 

Patrick M. Zohn, Esq., Office of the Solicitor, 

U. S. Department of Labor, Cleveland, Ohio, 

for Respondent/Petitioner. 

Before: Judge Maurer 

These consolidated cases are before me pursuant to section 105(a) and 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq., (the Act). Docket No. 

LAKE 85-37 is a civil penalty:J?roceeding filed by the petitioner against the respondent seeking a civil penalty assessment in the amount of $500 for an alleged violation of 30 

C.F.R. § 75.403 as noted in section 104 (d} {1) Citation No. 

233.1148. The primary issues before me in this case- are 

whether Youghiogheny and Ohio Coal Company (Y&O) violated 

the regulatory standard at 30 C.F.R. § 75.403 and, if so, 

a determination must be made as to the appropriate civil 

penalty to be assessed for that violation considering the 

criteria under section llO(i) of the Act. Docket No. LAKE 

85-76-R and LAKE 85-93 are before me to contest an order of 

330 
withdrawal issued to Y&O pursuant to section 104(b) of the 

Act (Order No. 2230257) and for review of a civil penalty 

proposed by the Mine Safety and Health Administration (MSHA) 

for that order and the section l04(a) citation underlying 

that order (Citation No. 2330248). In these cases MSHA 

seeks a civil penalty of $305 ~or alleged violation of 30 

c.F.R. § 71.100. In the notice of contest case, the issues 

are whether a valid order was issued and whether it should 

be sustained, vacated, or modified. In the civil penalty 

case, the issues are whether a violation occurred and, if 

so, what civil penalty should be assessed, based on the six 

criteria set forth in section llO(i) of the Act. 

An evidentiary hearing was held in Wheeling, West 

Virginia, on October 24, 1985. The parties filed post 

hearing proposed findings and conclusions, and the arguments 

presented therein have been considered by me in the course 

of this decision. 

STIPULATIONS 

The parties stipulated to the following (Tr. 10): 

1. The Federal Mine Safety and Health Review 

Commission has jurisdiction over this proceeding. 

2. The Y&O Coal Company is a moderate-sized 

operator. 

3. The Y&O Coal Company is an operator as 

defined by §3(d) of the 1977 Mine Act. 

4. The Nelms No. 2 Mine of the Y&O Coal 

Company is a mine as defined by §3(h) of the 1977 

Mine Act. 

5. The amount of penalty assessed would not 

impair the operator's ability to continue in business. 

I. Docket No. LAKE 85-37 (Citation 2331148) 

This citation was issued by MSHA Inspector Frank J. 

Kolat on September 5, 1984, and alleges as follows: 

The floor, roof and ribs in the crosscut between 

E to D entry were inadequately rock d11·ted in the 

#7 Seam Mains left side (015-0) worl<' section. 

Starting at 15 + 47 crosscut betwec to D entry 

for a distance of 45 feet, also D enwry the floor 

starting at 15 + 04 and extending inby for a distance of 66 feet. These areas were more than 40 

331 
feet outby the faces. Three (3) samples were 

collected to substantiate this citation. Butch 

Dyer was the section foreman that mined coal on 

this section on midnight shift. Ralph Dutton 

was the section foreman today on dayshift, and 

Bill Wright was the unit manager in charge. 

Inspector Kolat testified at the hearing that on September 5, 1984, he, accompanied by Mr. Andy Jacubic from 

Y&O's safety staff and Mr. Larry Ward from the union safety 

commi.ttee entered the Nelms No. 2 Mine and proceeded to an 

area of the mine known as the No. 7 Seam, 3 section left side 

No. 015. This was an active working section. They arrived 

on the section at approximately 9:15 a.m. Kolat inspected 

six entries in this section--A-1, A, B, C, D and E. While 

inspecting D entry he found the floor was black for a 

distance of 109 feet from the face. Additionally, he found 

the floor, roof, and ribs were black for approximately 45 

feet in the crosscut between D to E. However, as respondent 

points out, the inspector was less than convincing during 

his cross-examination as to whether the area needing rockdusting in D entry was 109 feet, 66 feet, or 86 feet, or 

somewhere in between. The preponderance of evidence on 

this point indicates to me that the peti.tioner has borne 

his burden of proof to the extent that 86 feet plus some 

unspecified distance beyond in D entry needed rockdusting 

to be in compliance with 30 C.F.R. § 75.403 1/ and I so 

find. I note that the respondent does not contest the 

fact that there was a violation of 30 C.F.R. § 75.403, but 

maintains that only 66 feet needed rockdusting and of that 

only 6 feet was required to be immediately rockdusted since 

the operator is required to clean and rockdust only within 

40 feet of the face and then another cut of coal may be 

taken which equals 60 feet. Likewise, with regard to the 

area inadequately rockdusted in the crosscut between E and D 

entry, respondent does not dispute the regulatory violation, 

!/ 30 C.F.R. § 75.403 provides: 

Where rock dust is required to be applied, it 

shall be distributed upon the top, floor, and sides 

of all underground areas of a coal mine and maintained in such quantities that the incombustible 

content of the combined coal dust, rock dust, and 

other dust shall be not less than 65 per centum, 

but the incombustible content in the return aircourse shall be no less than 80 pet centum. Where 

methane is present in any ventilating current, the 

per centum of incombustible content of such combined dusts shall be increased 1.0 and 0.4 per 

centum for each 0.1 per centum of methane where 

65 and 80 per centum, respectively, of incombustibles are required. 

332 
but maintains that only approximately 13 feet needed rockdusting while the inspector testified it was about 45 feet. 

The weight of the totality of the evidence on this point 

I find to be on the side of the petitioner, and I find that 

approximately 45 feet of the crosscut between D and E entry 

needed imrr~diate rockdusting to be in compliance with the 

cited regulation. 

Inspector Kolat took methane readings at the face areas 

of the entries and found 0.1% to 0.3% at the faces. He also 

took three dust samples; the first, from the floor of the 

crosscut between D and E entries was 15% incombustible; 

the second, from the roof and ribs of the crosscut between 

D and E entries was 16.2% incombustible; and the third, 

from the floor of D entry, was 26% incombustible. These 

results do indeed fall far below the 65% incombustible 

content required by 30 C.F.R. § 75.403. 

Accordingly, I find that a violation has been proven. 

An appropriate civil penalty must also be assessed if a 

violation is found and a determination must be made as to 

whether that violation was "significant and substantial." 

On that morning, respondent had nine men and some mining 

equipment operating on this section. They had a roof bolting 

machine operating in C entry at the face and a scoop car 

operating in A and B entries. However, the respondent's 

unrebutted evidence which I find to be credible is that 

this equipment was in permissible condition. Further, 

there is no evidence that there was any float dust in the 

area. 

A decision as to whether a violation has been properly 

designated as being significant and substantial must be made 

in light of the Commission's rulings in that area. The term 

"significant and substantial" was first defined by the Commission in National Gypsum Co., 3 FMSHRC 822 (1981) at page 

825, where the Commission stated: 

We hold that a violation is of such a nature as 

could significantly and substantially contribute 

to the cause and effect of a mine safety and 

health hazard if, based upon the particular facts 

surrounding that violation, there exists a reasonable likelihood that the hazard contributed to 

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

333 
In Mathies Coal Co., 6 FMSHRC l (1984), the Commission 

applied the definition of "significant and substantial" in 

four steps. The first step was whether a violation occurred, 

and I have already dealt with that by finding that a violation of 30 C.F.R. § 75.403 indeed occurred. The second 

step is whether the violation contributed a measure of danger 

to a discrete safety hazard. In this case, Inspector Kolat 

testified that the nine miners working on that section had 

been subjected to an additional hazard because of the 

potential increased danger of explosion and fire especially 

in light of the fact that this is a gassy mine, liberating 

over one million cubic feet of methane in a twenty-four 

hour period. I find that there was a discrete safety 

hazard and the violation did contribute an additional 

measure of danger. The third step in applying the definition is whether there is a reasonable likelihood that the 

hazard contributed to will result in injury, and the 

fourth step is whether there is a reasonable likelihood 

that the injury in question will be of a reasonably 

serious nature. While I have found that there were no 

immediate ignition sources proven to exist at the time 

the citation herein was issued, I nevertheless find on 

the basis of Inspector Kolat's testimony the existence 

of a reasonable likelihood of increased danger of explosion or fire resulting in serious injuries or fatalities. 

This was an active section, 86+ feet of the floor in D 

entry and 45 feet of the floor, roof, and ribs in the 

crosscut between D and E entries were black and had an 

incombustible content ranging from 15% to 26% when the 

standard requires a minimum percentage of 65%. Further, 

this is a gassy mine, liberating over one million cubic 

of methane in a twenty-four hour period. As the 

inspector testified, if you would have a gas pocket at the 

face, ignition from whatever source would reasonably 

likely lead to an explosion or fire exacerbated by the 

highly volatile nature of the unrockdusted areas that 

would or could carry the fire on through the section. 

Accordingly, I find the violation is "significant and substantial" o For the same reasons, I find a high degree of 

gravity associated with the violation, that is, the occurrence of the event against which the cited standard is 

directed was "reasonably likely." 

Appropriate Penalty 

Under section llO(i) of the Act, the following criteria 

are to be considered in assessing a civil penalty: (l} the 

operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of 

the operator charged, (3) whether the operator was negligent, 

334 
(4) the effect on the operator's ability to continue in 

business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator in attempting to 

achieve rapid compliance after notification of the violation. It is stipulated herein that the operator is 

moderate-sized and that the amount of penalty will not 

affect the operator's ability to continue in business. A 

computer printout summarizing a history of 32 prior violations of 30 C.F.R. § 75.403 at the Nelms No. 2 Mine over a 

two year period (GX-2) indicates to me that a chronic 

problem of non-compliance with this particular standard 

exists. Further, I find that the management of Y&O had 

actual knowledge of the violation at issue prior to the 

issuance of the subject citation even though the condition 

was not recorded by the previous night shift section foreman 

on his onshift report nor by the day shift foreman on either 

his preshift or onshift report, as it should have been. The 

company's position on this issue is that the day shift 

foreman had every intention to clean and rockdust the areas 

involved before mining. However, the citation was issued 

first and I find that the operator is chargea:Ole with a high 

degree of negligence in failing to correct this condition 

which it's management knew existed, especially in light of 

its violation history in this area. I have already stated 

my findings on gravity, supra, and further find that the 

operator did expeditiously clean up these areas and bring 

them into regulatory compliance after the citation was 

issued. Considering all of these facts, I conclude that a 

penalty of $400 is appropriate. 

Although the parties in their closing arguments asked 

me to make a ruling on whether the citation herein was 

properly classified as an "unwarrantable failure," inasmuch 

as the operator did not contest this section 104(d) (1) citation pursuant to section 105(d) of the Act, I am without 

authority to consider the special "unwarrantable failure" 

finding in this civil penalty proceeding. See Pontiki Coal 

Corporation v. Secretary, 1 FMSHRC 1476 (1979) and Wolf 

Creek Collieries Company, PIKE 78-70-P (1979). There is, 

however, ample evidence to support such a finding herein. 

II. Docket Nos. LAKE 85-76-R and LAKE 85-93 (Citation 

2330248 and Order 2330257) 

These cases involve the issuance of a section 104(a) 

citation (No. 2330248) on March 14, 1985, and a related 

335 
section 104(b) order (No. 2330257) issued on April 25, 1985, 

for an alleged violation of 30 C.F.R. § 71.100. ~ 

Citation 

The citation herein was issued by MSHA Inspector Nick 

Vucelich and alleged as follows: 

Based on the results of three (3) valid dust 

samples collected by MSHA inspector the average 

concentration of respirable dust in the working 

environment of the designated work position 

902-0-392, was 4.2 mg/m3 which exceeded the 

applicable limit of 2.0 mg/m3. Management shall 

take corrective action to lower the respirable 

dust and then sample each production shift until 

five (5) valid samples are taken and submitted 

to the Pittsburgh Respirable Dust Processing 

Laboratory. The following list of samples were 

those used to determine the citation. 

On the 7th, 11th, and 13th of March 1985 Inspector 

Vucelich conducted respirable dust sampling tests of Y&O's 

tipple operator. The operator wears a sampling pump 

while working at various locations on the surface, including the sampling plant, for approximately seven hours. The 

tipple operator on the 7th was Edward Krankovich. On the 

11th and 13th it was Gary sher. The tipple operator's 

duties include cleaning the sampling plant for about one 

hour per shift where coal on conveyor belts is crushed by 

a hammermill. The sampling plant is an L-shaped windowless 

building approximately 40 wide, 70 feet long and about 

40 from floor to ceiling, with a door on either end. 

As the coal enters t.he building, the hammermill crushes it. 

The tipple operator's job in this building is to sweep 

the coal dust off the walls, floors, and equipment with a 

broom and hand brush. 

Mr. Fisher testi at the hearing and stated that the 

sampling plant was extremely dusty at the time the citation 

'?:./ 30 C.F.R. § 71.100 provides: 

Each operator shall continuously maintain the 

average concentration of respirable dust in the mine 

atmosphere during each shift to which each miner in 

the active workings is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air. 

Concentrations shall be measured with an approved 

sampling device and expressed in terms of an equivalent concentration determined in accordance with 

§ 71.206 (Approved sampling devices; equivalent 

concentrations). 

336 
was issued and had been since it was installed and put on 

line some two years before. It took him on average one hour 

per shift to clean the plant and after it was back in operation for an hour he states you couldn't hardly tell anyone 

had been in there. He was concerned about the atmosphere in 

the sampling house because with all the float dust in suspension there was danger of an explosion. 

The results of the three aforementioned respirable dust 

sampling tests were 3.3 milligrams of respirable dust on 

March 7, 1985; 1.5 milligrams on March 11, and 8.0 on 

March 13, 1985. Theaverage was 4.2 milligrams. This 

amounts to a violation of 30 C.F.R. § 71.100 which requires 

that exposure level be maintained at 2.0 milligrams or less. 

The operator again admits that there was a violation of the 

cited standard and accepts the fact that the samples showed 

this. 

On March 14, 1985, after he received the results o~ the 

sampling, Inspector Vucelich issued the 104(a) citation 

herein and gave the company twenty working days to abate the 

same. 

The operator was and had been aware of the excessive 

dust in the sampling plant and was attempting to alleviate 

the problem. They tried various corrective measures such 

as washing it down with a water hose, installing limit 

switches on the feed conveyor to shut down the hammermill 

when there was no coal on the conveyor, and using small 

industrial-type vacuum cleaners. None of these things 

worked. Ultimately, they installed a tota'.l: dust collection 

system at a cost of $45,000. 

Inspector Vucelich made a finding of moderate negligence on this citation because the hazard presented, i.e., 

an extremely dusty environment, could cause an occupational 

illness called coal worker's pneumoconiosis or "black lung," 

and these conditions had prevailed in the sampling plant 

for some two years, since it was opened in 1983. He made a 

gravity finding of "reasonably likely" and marked this as 

a "significant and substantial" violation because the level 

of respirable dust in the sampling plant was such that it 

was reasonably likely to lead to serious health problems 

for the tipple operators who spend approximately one hour 

a day in that environment and/or could cause an ignition 

of coal dust. 

In its defense, Y&O contends that even though the samples 

demonstrate a violation of 30 C.F.R. § 71.100, the negligence 

finding, the gravity finding and the "S&S" finding on the 

337 
citation are not supported by the evidence. I disagree. 

It is undisputed that the operator knew of the extremely 

dusty conditions in its sampling plant for the two years of 

its existence. Even given the fact that this was a difficult 

engineering problem to solve and a relatively expensive one 

to correct, two years is simply too long to have allowed 

this situation to exist. As for the danger to the health 

of the tipple operators who had to spend approximately one 

hour per shift in that environment for a period of two 

years, it is evident to me that it is reasonably likely 

there has been some adverse impa to their health of a 

serious nature, i.e., chronic lu_ ~sease (pneumoconiosis). 

The additional danger of an exp lo~ .. 1 caused by the suspended float dust also existed for chis extended period·of 

time. I find that the violation has been proven as charged. 

The Withdrawal Order 

During the abatement period, the operator took and · 

submitted samples as follows: 

March 20, 1985 1.4 milligrams 

March 21, 1985 1.5 ft 

March 22, 1985 3.9 It 

April 8, 1985 1. 5 II 

April 9, 1985 3.9 " 

The average respirable dust concentration of these five 

samples is 2.4 milligrams which was still out of compliance 

with the pertinent regulation. 

Therefore, on April 25, 1985, Inspector Vucelich issued 

a section 104(b) withdrawal order alleging as follows: 

Results of the five (5) most recent samples received by ADP and collected by the operator from 

the working environment of the designated work 

position surface area No. 902-0 occupation code 

392 shows an average concentration of 2.4 mg/m3. 

Due to the obvious lack of effect by the operator to control resp-irable dust, the period of 

reasonable time for abatement of this violation 

is not further extended and all miners working 

in the area shall be withdrawn until the violation is corrected. 

When Inspector Vucelich issued the aforementioned order, 

it is clear and undisputed that the violation had not been 

abated within the time specified in the citation, i.e., by 

8 a.m. on April 15, 1985. The question before me then is 

whether the inspector acted reasonably in refusing to extend 

338 
the time for abatement. The reasonableness of his actions 

must be determined on the basis of the facts confronting him 

at the time he issued the order. United States Steel 

Corporation, 7 IBMA 109 (1976). 

In determining whether the period for abatement should 

have been extended by Inspector Vucelich at that time, the 

following factors should be considered: (1) the degree of 

danger that any extension would have caused to miners, (2) 

the diligence of the operator in attempting to meet the 

time originally set for abatement, and (3) the disruptive 

effect an extension would have had upon operating shifts. 

Consolidation Coal.company, BARB 76-143 (1976). 

The overriding consideration in this regard is, of 

course, the degree of danger that any extension would have 

caused the tipple operators. It is obvious that any extension of the abatement period would have commensurately 

extended the individuals' exposure to the hazards enumerated 

above. 

The second consideration is the diligence of the operator in attempting to meet the time originally set for 

abatement. Inspector Vucelich testified that the excessively dusty condition had existed for some two years and in ·his 

opinion just issuing a regular citation and giving extensions was not getting the problem resolved. He stated that, 

"with this (b) Order we started to get results." Accordingly, I conclude that Y&O did not make a diligent effort to 

abate the condition until the section 104(b) order was 

issued. 

Lastly, the third factor to consider is the disruptive 

effect that an extension of abatement time would have on 

operating shifts. There are no allegations made by the 

parties on this point and no evidence was taken apropos of 

this issue. Therefore, I find that any adverse effect the 

order had is far outweighed by the other factors considered 

herein. I therefor conclude that Inspector Vucelich did 

not act unreasonably in not extending the time for abatement. 

Accordingly, Order of Withdrawal No. 2330257 was properly 

issued and is affirmed. 

Appropriate PenaltJ:: 

Under section llO(i) of the Act, the following criteria 

are to be considered in assessing a civil penalty: (1) the 

operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the 

operator charged, (3) whether the operator was negligent, 

339 
(4) the effect on the operator's ability to continue in 

business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator in attempting to 

achieve rapid compliance after notification of the violation. 

The operator and the mine here at issue are moderate in size 

and is stipulated that the amount of penalty assessed 

would not impair the operator's ability to continue in 

business. The only other violation of the cited standard 

in evidence in this record is one in April of 1984. However, 

the record is replete with evidence that the operator had 

actual knowledge of the excessively dusty conditions in the 

sampling plant for some two years. I specifically find 

that the operator was highly negligent in failing to abate 

the cited condition within the time specified for abatement 

after it knew of the condition for two years. It is therefore 

obvious to me that Y&O failed to exercise good faith to 

achieve timely abatement and indeed did not achieve abatement until after the order withdrawal had been issued. 

The health hazard and potential for an ignition of suspended 

coal dust was allowed to continue to exist for a very long 

period of time. These conditions posed a danger of at least 

serious injury to at least two miners. Considering all of 

these factors, I conclude that a penalty of $400 is appropriate. 

ORDER 

Citation No. 2331148 is AFFIRMED. 

No. 2330248 and Order No. 2330257 are 

Youghiogheny and Ohio Coal Company is 

penalty of $800 within 30 days of the 

Likewise, Citation 

hereby AFFIRMED. 

ORDERED to pay a 

date of this decision. 

Roy J urer 

Admi istrative Law Judge 

Distribution: 

Robert Kota, Esq., Youghiogheny & Ohio Coal Co., P. o. 

Box 1000, St. Clairsville, OH 43950 (Certified Mail) 

Patrick M. Zohn, Esq., Office of the Solicitor, u. s. 

Department of Labor, 1240 East Ninth St., Cleveland, OH 

44199 (Certified Mail) 

340 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SOUTHERN OHIO 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

March 7, 1986 

COAL COMPANY, . . CONTEST PROCEEDING 

Contestant : 

: Docket No. WEVA 86-29-R . 

. Citation No. 27057341 

10/23/85 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH Martinka No. 1 Mine 

ADMINISTRATION (MSHA) I . 

. Respondent 

ORDER OF DISMISSAL 

Appearances: David A. Laing, Esq., and Alvin J. McKenna, 

Esq., Alexander, Ebinger, Fisher & Lawrence, 

Columbus, Ohio, for Contestant1 

Robert A. Cohen, Esq., Office o£ the Solicitor, 

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

Respondent. 

Before: Judge Broderick 

Pursuant to notice, the above proceeding was called for 

hearing in Fairmont, West Virginia on November 20, 1985. The 

parties agreed on the record to a settlement of the contested 

citation, whereby MSHA would remove certain areas from the 

scope of the citation (requiring the installation of guard 

rails), and Contestant agreed to install berms and guardrails 

in the remaining areas. The abatement time of the citation was 

extended. 

On March 5, 1986, Contestant filed a motion to withdraw 

its Notice of Contest on the ground that the provisions of the 

agreement had been effected and the citation was terminated. 

Premises considered, the motion is GRANTED and this 

proceeding is DISMISSED. 

-/fv/lu?.8 ~j'd;&_ t-r; R... 

.I 

.._,,.· James A. Broderick 

Administrative Law Judge 

341 
Distribution: 

David A. Laing, Esq., Alexander, Ebinger, Fisher & Lawrence, 

1 Riverside Plaza, 25th Floor, Columbus, OH 43215-2388 

(Certified Mail) 

Robert A. Cohen, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

slk 

342 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

March 10, 19.86 

SECRETARY OF LABORu CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

E.C. COAL SALES CO~ANY, INC., 

Respondent 

Docket No. WEVA 85-170 

A. C. No. 46-06661-03503 

No. 3 Mine 

DEFAULT DECISION 

Before: Judge Maurer 

. On February 19, 1986, a show cause order was issued in 

this case giving respondent ten (10) days to show cause why 

its ANSWER should not be struck and a DEFAULT DECISION 

entered against it for its failure to answer official correspondence or otherwise actively defend this case. 

Respondent has again failed to respond and therefore 

is deemed to have waived any further right to a hearing. 

The proposed civil penalties shall therefore be made the 

final order of the Commission. 

WHEREFORE IT IS ORDERED that respondent pay the Secretary's proposed civil penalties in the amount of $186 within 

30 days of this decisiono 

Law Judge 

Distribution: 

Patricia Larkin, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203. 

(Certified Mai 1} 

E. C. Coal Sales Companyu Inc., P. o. Box 2005, Beckley, WV 

25802 (Certified Mail) 

343 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

BOYD ASHER, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

March 11, 1986 

Complainant 

. . 

. . 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 85-28-D 

MSHA Case No. BARB CD 84-40 

FAIRDALE MINING, INC., 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Melick 

Efforts by the Commission Chief Judge and the undersigned 

to serve show cause orders upon Respondent by certified and 

first class mail at the addresses provided by Complainant have 

been unsuccessful with the documents most recently being 

returned marked by the U.S. Postal Service as "Attempted - Not 

Known" and addressee "unknown" at those addresses. 

Accordingly on February 25, 1986 an order to show cause 

was issued to the Complainant requiring him to provide evidence of service of his Complaint upon a lawfully designated 

corporate agent, and to provide the undersigned with the 

address of said corporate agent, on or before March 7, 1986. 

Counsel for the Complainant replied on February 28, 1986, but 

did not provide sufficient evidence that the complaint was 

served upon a lawfully designated corporate agent, did not 

identify any lawfully designated corporate agent upon whom 

service could be made and did not provide a valid address for 

said corporate agent. 

Commission Rule 7, 29 C.F.R. § 2700.7 provides in relevant part that a complaint of discharge, discrimination or 

interference "shall be served by personal delivery or by 

registered or certified mail, return receipt requested." 

Rule 4(d)(3) Federal Rules of Civil Procedure (applicable 

hereto by virtue of Commission Rule l(b), 29 C.F.R. § 

2700.l(b)) provides that service upon a domestic corporation 

shall be made "by delivering a copy of the • • • complaint to 

an officer, a managing or general agent, or to any other 

agent authorized by appointment or law to receive service of 

process and, if the agent is one authorized by statute to 

receive service and the statute so requires, by also mailing 

a copy to the defendant." 

The Complainant in these proceedings has failed to 

provide satisfactory proof of service upon a lawfully 

designated corporate agent and has failed to provide the 

344 
identity of or address for any such agent after adequate 

opportunity has been given. Under the ci umstances I ave 

no choice but to dismiss these proceedings. 

ar~ Melick 

Admi·r.p.strati ·' . . v Judge 

Distribution: i 

Mr. Boyd Asher, Box 835, Hyden, KY tl74~ (Certified Mail) 

Phyllis Robinson Smith, Esq., P.O. Box 1230, Hyden, KY 41749 

(Certified Mail) 

Fairdale Mining, Inc., 111 Reservation Avenue, Beckley, WV 

25801 (Certified Mail) 

rbg 

345 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

March 12, 1986 

BRYAN P. EVERSON 

Complainant 

v. 

ONEIDA SAND & GRAVEL, INC., 

Respondent 

. . 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 85-13-DM 

MSHA Case No. MD 84-32 

Oneida Sand & Gravel 

Appearances: Roy Batista, Esq., Andrews, Greg, Batista & 

Andrews, Canton, Ohio, for Complainant 

James B. Lindsey, Esq., Boggins, Centrone & 

Bixler, Canton, Ohio, for Respondent 

Before: Judge Melick 

This case is before me upon the complaint by Bryan P. 

Everson alleging that he was discharged from Oneida Sand & 

Gravel, Inc. <Oneida) on March 23, 1984, in violation of 

section 105(c)(l) of the Federal Mine Safety and Health Act 

Of 1977 30 U S C ;;::. 801 et SPen .- , the "Act. 11 , • • • i::I =.::t...:.. 1 

In order for Mr¢ Everson to establish a prima facie 

violation of section 105(c)(l) of the Actu he must prove by a 

preponderance of the evidence that he engaged in an activity 

protected by that section and that his discharge from Oneida 

was motivated in any part by that activity. Secretary ex 

rel. David Pasula v. Consolidation Coal Company, 2 FMSHRC 

2786 (1980) 9 rev 1 d on other grounds sub nom Consolidation 

Coal Comoany Vo Marshall~ 663 F.2d 1211 (3rd Cir. 1981). See 

also Boitch Vo FMSHRC, 719 F.2d 194 (6th Cir. 1983) and NLRB 

Vo Transportation Management Corpu 462 U.S. 393 (1983)u ~~ 

lsection 105Cc)(l) reads in part as follows: 

~No person shall discharge • o • or cause to be discharged 9 •• or otherwise interfere with the exercise of the 

statutory rights of any miner, ••• in any ••• mine subject to this Act because such miner, ••• has filed or made 

a complaint under or related to this Act, including a complaint notifying the operator or the operator's agent, ••• 

of an alleged danger or safety or health violation in any 

• mine or because of .the exercise by such miner, ••• 

on behalf of himself or others of any statutory right afforded 

by this Act. 11 

346 
affirming burden of proof allocations similar to those in the 

Pasula case. 

In this case Mr. Everson maintains that he refused to 

show up for work at the Onieda sand and gravel plant on 

March 21, 1984, because of hazardous conditions caused by 

freezing rain. According to the evidence the Complainant had 

several years experience at various sand and gravel operations and knew most of the jobs in the business. He had 

previously worked for Oneida beginning in 1983 but, because 

of the seasonal nature of the business, was laid-off and 

began receiving unemployment benefits in December 1983. In 

early March 1984, Oneida vice president Rodney Smitley wished 

to resume operations .and tried to locate Everson. Everson 

was then continuing to collect unemployment benefits and was 

in Florida for the Daytona races. Smitley was finally able 

to contact Everson on March 14, 1984, and asked him to return 

to work immediately. Everson, who was continuing to receive 

unemployment benefits, requested a delay until ·Monday March 19 

and Smitley agreed. 

It is not disputed that Everson thereafter worked at the 

Oneida Plant on March 19 and 20 but called in on March 21, 

telling Smitley that because of the freezing rain "we can't 

work" and "the best thing to do was to wait for the weather 

to clear up". Everson also informed Smitley in this phone 

call that since the weather for the next 3 days was forecast 

to be similar he would not appear for work for the remainder 

of the week. Smitley then offered Everson work inside the 

garage but Everson declined because the heaters were not 

vented outside and claimed that the fumes would bother him. 

Everson concedes that he did not inquire as to the conditions 

at the job site nor did he visit the job site either that day 

or the following 2 dayso He does not contend, moreover, that 

his refusal to show up for work was based on any inability to 

drive to work because of hazardous road conditions. 

Rodney Smitley acknowledged that Everson called on the 

morning of March 2lu and said that he was taking the rest of 

the week off. According to Smitley he told Everson during 

this phone call that it was important for him to appear for 

work that day because he already had trucks waiting to be 

loaded. Smitley anticipated that Everson would operate the 

front end loaderu loading trucks with sand and gravel when 

they appeared, and while waiting for empty trucks, would work 

inside the heated garage disassembling spare parts for the 

drag line. ' 

It is not disputed that the front-end loader was equipped 

with a heated cab and windshield wipers. Moreover, according 

to Smitley, conditions at the plant were not unsafe that 

347 
morning. Smitley himself loaded the trucks that day without 

any particular difficulty. According to Smitley the area in 

which the front-end loader operated was flat and paved with 

gravel. There was little snow accumulation and there was no 

hazard. 

Smitley was obligated by contract to continue to provide 

sand and gravel so he found it necessary to hire a replacement for Everson. Commencing on March 22nd, the new employee 

performed the jobs that Everson would have performed including 

work in the garage disassembling parts and loading trucks with 

the front-end loader. On March 23rd Everson called Smitley 

asking if he could return to work the following Monday. 

Smitley told him that he had already been replaced. 

In order for Everson 1 s work refusal in this case to be 

considered protected under the Act he must prove that he then 

entertained a good faith, reasonable belief that to work 

under the conditions presented would have been hazardous. 

Miller v. FMSHRC, 687 F.2d 194 (7th Cir. 1982): Robinette v. 

United Castle Coal Company, 3 FMSHRC 803 (1981). In this 

regard Everson testified that as he was driving to work on 

the morning of March 21st his car window started freezing up 

and there was ice and snow on the trees, ground and sidewalks. 

After driving about 2-1/2 miles he stopped and called the 

plant, advising Smitley that the weather was so bad it would 

be hazardous to work. It is not disputed that during this 

phone call Smitley told Everson that he was needed that day 

to load trucks already waiting and that he could also work 

inside the heated garage. 

The only evidence regarding conditions at the Onieda 

plant on that day comes from Rodney Smitley. He operated the 

front~end loader in Eversons absence and did not find the 

conditions to be hazardous. The loader was operated from a 

heated cab on a flat gravel surface. Thus, as a factual 

matter, the conditions have not been shown to have been 

hazardous. Moreover Everson never inquired about nor checked 

the conditions at the plant himself and refused to show up 

for work for the rest of the week based upon a long range 

weather forecast. Under the circumstances I cannot find that 

Everson entertained a reasonable or good faith belief that 

the conditions at the plant were hazardous in regard to the 

contemplated work. 

In reaching this conclusion I have not disregarded 

Everson's testimony that he suffered a concussion several 

years before at another plant when he fell some 12 feet from 

a screen and struck his head on frozen ground. However 

Everson was never asked to work on the screen at the Oneida 

plant on the day at issue and there is no evidence that 

348 
Everson would have been asked to perform 

has accordingly failed to establish a pr 

of section 105(c)(l) of the Act and this 

fore be dismissed. Fasula, supra.2 

Distribution: 

Roy Batista, Esq., 4808 Mundson, 

(Certified Mail) 

such work. Everson 

ma facie violation 

omplaint must thereMr. Bryan P. Everson, 800 5th N.W., Apt. 6, Canton, OH 44703 

(Certified Mail) 

James B. Lindsey, Esq., Boogins, Centrone & Bixler, Central 

Trust Tower - 7th Floor, Canton, OH 44702 {Certified Mail) 

Mr. Rod Smitley, Oneida Sand & Gravel, 8000 Blade Road, 

Malvern, OH 44644 (Certified Mail) 

rbg 

2rn his complaint filed with this Commission on November 16, 

1984, Mr. Everson also made vague allegations of subsequent 

discriminatory activity and clarified at hearing that "probably 

in May 1984 11 he had been offered a job by Rod Smitley 

conditioned on his "unemployment" getting "straightened out" 

but that Smitley later said that his father would not allow it 

because of complaints Everson made to OSHA and MSHA. The 

record at hearing shows that Everson in fact did file complaints to MSHA and OSHA in April 1984 and that, as a result, 

Oneida was issued several MSHA citations. These allegations of 

unlawful discrimination are separate and distinct from the 

allegations before me and have not been presented to the 

Secretary of Labor as required by section 105Cc)(2) of the Act. 

Accordingly, I found at hearing that these complaints were 

premature and that I was without jurisdiction at that time to 

~ntertain them. 

349 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

March 12, 1986 

BRIAN T. VEAL, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

KERR-McGEE COAL CORP., 

Respondent 

. . 

. 

0 

. 

& 

Docket No. LAKE 86-29-D 

ORDER DENYING MOTION TO DISMISS 

PREHEARING ORDER 

On December 19, 1985, Complainant filed a complaint 

alleging that he was discharged by Respondent in violation of 

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

1977 (the Act). On January 14, and February 18, 1986, 

Respondent filed a Motion to Dismiss on the grounds that the 

complaint fails to state a cause of action and is frivolous. 

The motion does not attempt to analyze or discuss the documents 

filed pro ~ by Complainant, but merely states the conclusion 

that they do not state a cause of action under the Act. 

The Complaint, in the form of a letter to the Commission 

dated December 16, 1985, alleges: 

11 The MSHA District Manager wrote a complimentary 

letter to Respondent. 

2) Complainant was denied the right to representation 

during the MSHA investigation of his complaint. 

3) MSHA did not notify Complainant of the basis for its 

denial of his complaint. 

I conclude t.hat none of these allegations state a cause 

of action under section 105(c) since they do not involve 

adverse action by Respondent against Complainant for activities 

protected under the Act. 

The Complaint goes on to list 9 "specifications" in 

support of Complainant's claim: 

la The vehicle involved, called a "gopher," was an 

experimental one and was undergoing testing and 

evaluation. (It appears elsewhere that claimant 

350 
contends he was discharged following an accident 

while he was operating the vehicle.) A brake 

caliper bolt was broken on the vehicle. The 

vehicle did not have an independent emergency brake. 

The vehicles at Respondent's mine were modified for 

third and fourth gear operation, which could be 

hazardous. This fact was known to the Respondent 

and to MSHA, but the vehicle operators were not 

warned of the hazard. 

2. Operator and passenger training for personnel driving 

and riding in the gophers was brief, informal and 

inadequate. Safety devices were not installed. 

3. The terrain in the mine was hazardous for the 

vehicles. The company or MSHA closed off a section 

following the accident. 

4. Job performance competition imposed mental pressures 

on personnel which affected safety. 

5. Complainant worked under a supervisor who was not 

properly certified or trained. 

6. Respondent provided false information to the MSHA 

investigator concerning Complainant's safety records. 

7. Respondent failed to provide prompt and proper 

emergency medical treatment following Complainant's 

accident and performed blood analysis testing without 

reasonable cause. 

80 The investigation failed,to recognize a deficiency in 

the training and qualifications of instructors. 

9. The Respondent prompted and coaxed witnesses during 

the investigation and attempted to force Complainant to 

sign an accident report which was false. 

The claim filed with MSHA on October 8, 1985 asserted that 

Complainant had been dismissed because he had an accident 

because of bad brakes on a vehicle that had been red tagged. 

"The PV was given to me to use by my supervisor who had been 

driving it and there was no red tag on it. 11 The complaint 

further stated that Complainant was discharged because he is 

taking medication for an injury due to a previous accident. 

The file contains a copy of a handwritten statement taken 

by an MSHA Investigator on November 6, 1985, which copy was 

sent to the Commission by Complainant. 

351 
The statement indicates that Complainant was injured in a 

roof fall accident in January 1985 and was off work for some 

time. It states that he is still receiving treatment. After 

returning to work he was "worked hard" and "harrassed." The 

company "used my injury as an example and told all the 

employees that they were beat out of a safety award because of 

my accident. • • ·· 

The statement describes the accident of Septemb.er 30, 

1985 when Complainant was driving a PV and collided with a coal 

pillar because he had no brakes. The following day he was 

asked to sign an accident report, but refused "because it did 

not state the cause of accident properly." " ••• they got 

angry and • • • harrassed me and told me to fill out another 

accident report." The following day he was told he was being 

terminated bec.;.use he "neglected to turn in the weak brakes on 

the P.V." He was not given a written explanation of his 

termination. 

Complainant requests reinstatement and back pay. 

In order to establish a prima facie case of 

discrimiantion under section 105(c) of the Mine Act, a 

complaining miner bears the burden of production and proof to 

establish 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 Fasula 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 198l)e The operator may rebut the prima facie case by 

showing either that no protected activity occurred or that the 

adverse action was not in any part motivated by protected 

activity. If an operator cannot rebut the prima facie case in 

this manner it nevertheless may defend affirmatively by proving 

that (1) it was also motivated by the miner's unprotected 

activities, and (2) it would have taken the adverse action in 

any event for the unprotected activities alone. The operator 

bears the burden of proof with regard to the affirmative 

defense. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38 

(November 1982). The ultimate burden of persuasion does not 

shift from the Complainant. Robinette, 3 FMSHRC at 818 n. 20. 

See also Boich v. FMSHRC, 719 F.2d 954, 958-59 CD.C. Cir. 1984) 

(specifically approving the Commission's Pasula-Robinette test). 

The Supreme Court has approved the National Labor Relations 

Boards's virtually identical analysis for discrimination cases 

arising under the National Labor Relations Act. NLRB v. 

Transportation Management Corp.l 462 U.S. 393, 397-403 (1983). 

352 
The question presented by the Motion to Dismiss is 

whether Complainant has stated a cause of action under section 

105Cc>, that is, whether he has alleged that the adverse action 

visited upon him (his dismissal) was motivated in any part by 

protected activity. In deciding this question without having 

heard any evidence, I am mindful that Complainant is not 

represented by counsel, and that his "pleadings" are rambling 

documents. They do, however, allege Cl) safety related 

complaints, (2) an animus on the the part of Respondent 

apparently related to those complaints. 

Under the circumstances, I conclude that the documents in 

the file allege facts which, if true, are sufficient to 

establish a prima facie case. Therefore, the Motion to Dismiss 

is DENIED. Respondent is ORDERED to file an answer to the 

complaint within 15 days of the date of this order. 

PREHEARING ORDER 

In accordance with the provisions of section 105Cc) of 

the Act,this case will be called for hearing at a time and 

place to be designated in a subsequent notice. 

The parties are directed to exchange lists of witnesses 

who may be called to testify at such a hearing and copies of 

exhibits which may be offered in evidence. Copies of witness 

lists and exhibits shall be exchanged and furnished me on or 

before March 28, 1986. The parties shall by the same date. 

indicate the preferred hearing site, and inform me of any dates 

in May 1986 which would pose scheduling difficulties were I to 

select them for hearing. 

Distribution~ 

'~ dt~dLVl~ ~v·James A. Broderick 

Administrative Law Judge 

Brian T. Vealv 1612 Eldorado Street, Eldorado, IL 62930 

(Certified Mail) 

Carolyn G. Hill, Esq., Human Resources Division, Kerr-McGee 

Coal Corporation, P.O. Box 25861, Oklahoma City, OK 63125 

(Certified Mail) 

slk 

353 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 March 12 I 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

HYDROCARBON RESOURCES, INC., 

Respondent . . . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 84-100-M 

A.C. No. 42-01789-05502 

Cottonwood Mine 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for the Petitioner; 

Mr. Chad Evans, Former General Manager, Hydrocarbon 

Resources, Inc., Salt Lake City, Utah, pro~· 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration (MSHA) , charges respondent with violating safety 

regulations promulgated under the Federal Mine Safety and Health Act, 

30 U.S.C. § 801 et seq., (the Act). 

After notice to the parties, a hearing on the merits took place 

on May 21, 1985, in Salt Lake City, Utah. 

The parties waived their right to file post-trial briefs. 

Issues 

The issues are whether respondent violated the regulations; if 

sov what penalties are appropriate. 

Citations 

There are four citations contested in this case. 

Citation 2008144 alleges a violation of 30 C.F.R. § 57.3-22, 

now codified as § 57.3022, which provides as follows: 

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 

354 
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. 

Citation 2008145 alleges a violation of 30 C.F.R. § 57.19-110, 

now codified as § 57.19110, which provides as follows: 

A substantial bulkhead or equivalent protection shall be provided above persons at 

work deepening a shaft. 

Citation 2008146 alleges a violation of 30 C.F.R. § 57.19-24(b), 

now codified as § 57.19025, which provides as follows: 

(a) Wire rope shall be attached to the 

load by a method that develops at least 80 

percent of the nominal strength of the rope. 

(b) Except for terminations where use of 

other materials is a design feature, zinc 

(spelter) shall be used for socketing wire 

ropes. Design feature means either the manuturer' s original design or a design approved by a registered professional engineer. 

(c) Load and attachment methods using 

splices are prohibited. 

Citation 2008147 alleges a violation of 30 C.F.R. § 57.11-37, 

now codified as § 57.11037, which provides as follows: 

Ladderways constructed after November 15, 

1979, shall have a minimum unobstructed 

-cross-sectional opening of 24 inches by 

24 inches measured from the face of the 

ladder. 

Stipulation 

At the commencement of the hearing the parties stipulated that 

Bruce Green, an employee of respondent, was fatally injured when struc~ 

by a falling rock. 

Respondent's representative further stated that the company has 

six employees. In addition, respondent has gross income under $10,000 

(Tr. 6-9). 

The Secretary's Case 

After being advised of a fatality, MSHA, by its Inspector Ronald 

L. Beason, inspected respondent's Cottonwood Mine on December 28, 1982 

(Tr. 13-16). The mine was under development and at the time the only 

355 
activity was the driving of a shaft, by hand, at the 415-foot level 

(Tr. 16, 80). The vertical 12-foot-wide shaft went from foot wall to 

hanging 1/ wall. A slight bend could be observed in the shaft as it 

descended (Tr. 17, 18). 

The shaft was divided into three compartments. They consisted 

of a utility compartment with a vent line, a manway compartment with 

an emergency escapeway and a skip compartment. The skip compartment, 

through which the mine is entered, was an open 8 by 8 foot area (Tr. 18, 

19). The skip bucket was 22 inches thick, i.e., from front to back. 

It had a one-ton capacity and measured 46 inches wide and 48 inches 

deep (Tr. 19, 20). 

Bruce Green was killed on December 23, 1982. On the day of the 

subsequent inspection the bottom 100 feet of the mine had filled with 

water (Tr. 20, 21). The inspector learned of the configuration of the 

bottom of the shaft from the company's representative, Chad Evans 

(Tr. 2 2) • 

At the time of the accident the mining procedure was for the 

miners to hand muck the ore in the bottom of the shaft. They would 

thereafter hand muck the ore into the skip bucket when it returned 

after a six-minute trip to the surface. When the skip was filled and 

moved to the surface, the miners would continue digging in the skip 

compartment and move the ore to the utility and manway compartments 

(Tr. 22-25, 29-30). The company had been mining in this manner for 

three weeks. Prior to that time the miners used a vacuum system to 

move the gilsonite to the surface. But that system became inoperative 

three weeks before the accident (Tr. 22). 

When the bucket went up and down the shaft it dragged the sides 

and the hanging wall (Tr. 28). When the inspector descended into the 

shaft he observed and sounded the loose ground in a number of areas. 

The following levels were tested: 10 to 60, 163, 170, 177, 190, 200, 

215, 240p 290, 300, 315 and 320. There was a large hump at the 260-foot 

level where the shaft went from hanging to foot wall. At this point 

the g sonite vein separated from the shaft (Tr. 28, 34-38). There 

were no bolts or lagging to prevent rocks from falling into the shaft 

(Tr. 40). There was danger that the whole area of the hanging wall 

could fall from the 10-foot level to the 60-foot level. A number of 

rocks had fallen (Tr. 40). 

In the inspector 1 s opinion the condition of loose ground he observed five days after the fatality, especially at the 60-foot level, 

also existed on the day of the accident (Tr. 39, 40, 49). 

1/ A foot wall is at the bottom of an angle; a hanging wall is 

overhead (Tr. 17). 

356 
The skip compartment did not have a bulkhead (Tr. 29-31). When 

using the vacuum system the skip itself could be used as a bulkhead; 

however, it could not serve as such when it was hauling ore to the 

surface. There was a two-foot opening on each side of the skip. This 

would permit rocks to fall and strike miners (Tr. 31-33). The company 

had a type of a bulkhead at the surface. This bulkhead would not 

prevent loose material from dropping down the shaft. Its function 

was to prevent ore from dropping down the shaft after it had been 

dumped at the surface (Tr. 33}. 

In a mine of this type a bulkhead should be positioned immediately over the miners working in the bottom of the shaft. The bulkhead 

protects the miners from being struck by any material that might fall 

in the shaft. There were bulkheads over the utility and manway compartments together with a landing every ten feet (Tr. 26-29, 62-63). 

Bruce Green was killed when he was struck by a 6 by 6 by 1/2 inch 

rock. At the time Green and his father were basically under the utility 

compartment. Bruce Green had reached out and was mucking in the bottom 

of the shaft (Tr. 41, 42, 61). A proper bulkhead over the skip would 

have prevented the rock from striking the miner (Tr. 42). 

The company's log books failed to indicate that there had been 

shaft inspection from December 21 through December 23 {Tr. 44). 

Inspector Beason also inspected the six U-bolts that held the rope 

to the skip bucket. The saddle was on the shorter, or the dead end of 

the rope. The rope can be damaged when a bolt is placed on its working 

end. The bolt itself designed so as to protect the live end of the 

rope (Tr. 45, 46, 79). 

The manway compartment served as an emergency escapeway. Tenfoot ladders extend from one level to another. Several of the manways were obstructed. One such passage, through a bulkhead, measured 

only 8 inches by 14 inches. To continue up the manway it would be 

necessary to crawl out into the open shaft and swing up to the next level 

(Tr. 46-47). 

The Respondent's Case 

Chad L. Evans indicated that he was the general manager for the 

company at the time of this accident. 

Evans, who was present during the MSHA inspection, also conducted 

his own investigation (Tr. 87-89}. The witness submitted a drawing of 

the shaft (Tr. 90, 91; Ex. Rl). 

Evans indicated that as the bucket was ascending, Royce Green 

was standing under the utility area and his son was under the manway 

area. The miner was killed when he bent over to pick up a shovel. 

357 
The area between the skip and the sidewalls was probably less 

than two feet on each side. However, he also indicated the lateral 

distance from the skip to the sidewalls varied from 26 inches to 

four feet (Tr. 94, 96). 

MSHA told the company they could use the skip again. In addition, 

three previous inspections in 1982 and 1983 failed to show a violation 

of the regulations contested here (Tr. 99; Ex. R2, R3, R4). 

Evans had instructed his miners never to go into a skip compartment without overhead protection (Tr. 120). Evans' mining experience 

indicated a need for a bulkhead before the fatality (Tr. 124, 125). 

He had been advised that a bulkhead was in place. The placement of a 

skip over the miners constituted such a bulkhead (Tr. 124, 125). 

In rebuttal Inspector Beason testified that Evans indicated that 

he had not known that a bulkhead was necessary (Tr. 130, 136). In 

addition, the hoist reports and daily logs indicated that 20 buckets 

were moved on the day shift. This evidence contradicted Evans' testimony that three buckets were moved each shift (Tr. 133). The number 

of buckets indicated to the inspector that the two miners were working 

when the skip was moving (Tr. 126, 133). 

Discussion 

We will consider the citations in numerical sequence. 

Citation 2008144 

This citation requires that the ground be taken down or adequately supported before any other work is done. The operator failed 

to comply with this regulation" The inspector described in detail the 

loose ground he both observed and sounded in the shaft. Respondent's 

manager confirmed this evidence when he testified that forty percent 

of the loose was removed-in abating the violative condition (Tr. 100). 

Citation 2008144 should be affirmed. 

Citation 2008145 

The evidence relating to the installation of a substantial bulkhead indicates there was no such bulkhead. The operator's management 

confirmed this condition. The miners at the time were deepening the 

shaft. These work conditions made the standard directly applicable. 

Citation 2008145 should be affirmed. 

358 
Citation 2008146 

In connection with this citation the inspector detailed his 

findings concerning the U-bolts. He further expressed his opinion 

that the operator violated the regulation. 

Respondent offered no cont~ary evidence. 

Citation 2008146 should be affirmed. 

Citation 2008147 

The record indicates that the ladderways were obstructed. One 

such ladderway only measured 8 inches by 14 inches. These facts 

establish a violation of the regulation. The operator offered no 

contrary evidence. 

However, § 57.11-37 by its very terms applies to ladderways 

constructed after November 15, 1979. There is no evidence in this 

case indicating when this ladderway was constructed. 

Such evidence is necessary in order to sustain a violation of 

the regulation. 

Civil Penalties 

The statutory mandate for assessing civil penalties is contained in 30 u.s.c. § 820{i). It provides as follows: 

The 

(i} The Commission shall have authority to assess 

all civil penalties provided in this Act. In 

assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous 

violations, the appropriateness of such penalty 

to the size of the business of the operator charged, 

whether tne operator was negligent, the effect on 

the operator's ability to continue in business, the 

gravity of the violation, and the demonstrated good 

faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation. 

Secretary proposed the following penalties: 

Citation 2008144 (loose ground) $4,000 

Citation 2008145 (bulkhead) 2,000 

Citation 2008146 (U-bol ts) 20 

Citation 2008147 (ladderways) 20 

The record indicates the operator had no previous violations 

(Tr. 85; Ex. R2, R3, R4, RS). The operator should be considered as 

small in view of its income as well as the number of its employe~s. 

The negligence of the operator is apparent inasmuch as the violative 

359 
conditions were all open and obvious. The only evidence of the operator's financial condition bearing on its effect to continue in business 

is that the company's gross income was under $10,000. In the absence 

of any facts to the contrary I find that the payment of penalties will 

not cause respondent to discontinue its business. Buffalo Mining Co., 

2 IBMA 226 (1973) and Associated Drilling, Inc., 3 IBMA 164 (1974). 

The loose ground and the lack of a bulkhead directly contributed to 

the death of the miner, hence the gravity is apparent and exceedingly 

high. In support of its good faith the operator argued that it has 

always attempted to provide a conscientious and well-maintained [safety] 

effort (Tr. 145, 146). The evidence fails to establish the operator's 

claim. However, the company established its statutory good faith by 

abating the violative conditions in this case. 

On balance, I believe the penalties as set forth in the order of 

this decision are appropriate. 

Conclusions of Law 

Based on the entire record and the factual findings made in the 

narrative portion of this decision, I enter the following conclusions 

of law: 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated 30 C.F.R. § 57.3-22, § 57.19-110 and 

§ 57.19-24{b). 

3. The Secretary failed to prove a violation of 30 C.F.R. § 

57.11-37. 

ORDER 

Based on the foregoing findings of fact and conclusions of law 

I enter the following order: 

1. Citation 2008144 is affirmed and a penalty of $2,000 is 

assessed. 

2. Citation 2008145 is affirmed and a penalty of $2,000 is 

assessed. 

3. Citation 2008146 is affirmed and a penalty of $20 is 

assessed. 

4. Citation 2008147 and all penalties therefor are vacated. 

5. Respondent is ordered to pay to the Secretary the sum of 

$4,020 within 40 days of the date of this decision. 

Law Judge 

360 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

Mr. Chad Evans, Hydrocarbon Resources, Inc., 3098 Highland Drive, 

Suite 100, Salt Lake City, Utah 84106 (Certified Mail) 

/ot 

361 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W, COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 

March 12, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

WESTERN ROCK PRODUCTS 

CORPORATION, 

Respondent 

: 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 85-23-M 

A.C. No. 42-00415-05506 

Cedar City Mine 

Docket No. WEST 85-24-M 

A.C. No. 42-01572-05505 

Sorenson Pit Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Robert J. Lesnick, Esq., Office of the Solicitor, 

u~~IleJ;>gJ'."'l::Irl~nt _of Labor, Denver I Colorado I 

for Petitioner; 

Mr. Darrell G. Whitney, Western Rock Products 

Corporation, St. George, Utah, 

pro ~· 

Before: Judge Lasher 

Subsequent to the commencement of the hearing in the above 

two consolidated dockets, Respondent agreed to pay the penalties 

set forth in the Secretary's Proposal for Penalty in full, to 

witg 

Docket No. WEST 85-23-M 

Citation No. 

2358849 

2358850 

2358851 

2358852 

2358853 

2358854 

2358855 

Proposed and 

Agreed Penalty 

$ 227.00 

20.00 

227.00 

227.00 

227.00 

276.00 

276.00 

TOTAL $1,480.00 

362 
Docket No. WEST 85-24-M 

Citation No. 

2358856 

2358858 

2358859 

2358860 

2360661 

2360662 

2360663 

Proposed and 

Agreed Penalty 

$ 58.00 

20.00 

20.00 

20.00 

20.00 

20.00 

20.00 

TOTAL $178.00 

Both parties agreeing, and the settlement appearing 

reasonable and proper, the settlement was approved from the bench. 

That approval is hereby affirmed and both proceedings are 

DISMISSED. The reasonableness and good faith approach of both 

parties is noted. 

ORDER 

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 $1,658.00. 

Distribution: 

;?'~...e ct p:;A41!.-c. A.· 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Mr. Darrell G. Whitney, Western Rock Products Corporation, 675 N. 

Industrial Road, #3, St. George, UT 84770 (Certified Mail) 

/blc 

363 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 13 1986 

MARTHA PERANDO, 

Complainant : 

DISCRIMINATION PROCEEDING 

v. 

METTIKI COAL CORPORATION, 

Respondent 

. . 

. . 

. . 

Docket No. YORK 85-12-D 

MSHA case No. MORG CD 85-17 

DECISION DENYING MOTION TO DISMISS 

Appearances: Martha Perando, Deer Park, Maryland, pro se 

Lisa B. Rovin, Esq., Crowell & Moring, 

Washington, DC on behalf of Respondent. 

Before: Judge Melick 

This case is before me upon the complaint by Martha 

Perando under section 105(c)(3) of the Federal Mine Safety 

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

alleging discrimination and discharge by the Mettiki Coal 

Corporation CMettiki) in violation of section 105{c)(l) of 

the Act. 

More particularly Ms. Perando has cited five alleged 

acts of discrimination culminating in her discharge on 

March 27, 1985: 

First, I was not advised of my rights as a miner. 

Second, I was transferred from the mine sight [sic] 

to the lab at a loss of pay. Underground gross 

$520.20. Lab gross $383.20. The lab was not any 

better. Third, the form 11001 has not been filed 

after reporting shortness of breath and heavy 

preasher [sic] on my chest. Fourth, I was harassed 

due to·filing a compensation claim against Mettiki 

Coal, letters of reprimand being placed upon me 

without any notice of not doing the work up to the 

standards of the company. Fifth, I was terminated 

on March 27, 1985 while off work under doctor's 

care. 

Mettiki subsequently filed a motion to dismiss the complaint on the grounds that it failed to state a claim for 

which relief may be granted under section 105(c){l) of the 

364 
Act.l The motion is deemed in part to be a motion for 

summary decision under Commission Rule 64, 29 C.F.R. § 

2700.64, and documents submitted in connection with the 

motion were supplemented at limited hearings under that Rule. 

At those hearings the Complainant withdrew paragraphs 1 and 3 

of her complaint and clarified the remaining paragraphs. To 

the extent that there is any deviation from her original complaint with respect to paragraphs 2, 4 and S, I consider the 

complaint to have been amended by Ms. Perando's testimonial 

presentation. 

In determining whether the complaint in this case "fails 

to state a claim for which relief may be granted under 

105(c)(l)" of the Act, the well pleaded material allegations 

of the complaint are taken as admitted. Goff v. Youghiogheny 

& Ohio Coal Company, 7 FMSHRC 1776 (1985); 2A Moores Federal 

Practice i12.oa. A complaint should not be dismissed for 

insufficiency unless it appears to a certainty that the Complainant is entitled to no relief under any state of facts 

which could be proved in support of a claim. Pleadings are, 

moreover, to be liberally construed and mere vagueness or 

lack of detail is not grounds for a motion to dismiss. id. 

lRection 105(c)(l) of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

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

any miner, representative of miners or applicant 

for employment in any coal or other mine subject 

to this Act because such miner, representative of 

·miners or applicant for employment, has filed or 

made a complaint under or related to this Act, 

including a complaint notifying the operator or 

the operator's agent, or the representative of 

the miners at the coal or other mine of an 

alleged danger or safety or health violation in a 

coal or other mine or because such miner, representative of miners or applicant for employment 

is the subject of medical evaluations and 

potential transfer under a standard published 

pursuant to section 101 or because such representative of miners or applicant for employment 

has instituted or caused to be instituted any · proceedings under or related to this Act or has 

testified or is about to testify in any such 

proceeding, or because of the exercise by such 

miner, representative of miners or applicant for 

employment on behalf of himself or others of any 

statutory right afforded by this Act. 

365 
Ms. Perando alleges in the second paragraph of her complaint that she suffered unlawful discrimination when she 

suffered a loss of pay after being transferred from underground work to laboratory work. She alleges that she 

acquired a severe health impairment, industrial bronchitis, 

as a result of her underground work at Mettiki and was 

informed by her doctors that she should no longer work in the 

underground coal mine environment. Ms. Perando maintains 

that she informed Mettiki officials that she could no longer 

work underground and thereafter was given a lower rate of pay 

for work in the laboratory. 

I find that these allegations are sufficient under 

either of two theories of unlawful discrimination under the 

Act. Her loss of pay following transfer could be viewed as 

retaliation for "notifying the operator or the operator's 

agent ••• of an alleged danger ••• or health violation". 

In addition her allegations could support a claim of discriminatory reduction in pay because of a protected work refusal 

i.e., the refusal to continue working in the good faith 

reasonable belief that to continue working would have been 

hazardous. Miller v. FMSHRC, 687 F.2d 194 C7th Cir. 1982); 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 Cl981). 

Accordingly I find that Perando's complaint in this regard 

presents a claim or claims cognizable under the Act. 

In reaching this conclusion I have not disregarded 

Respondent's argument that the right of transfer without a 

loss of pay under section 105(c)(l) is limited to those cases 

arising under "a standard published pursuant to section 101" 

of the Act i.e., limited to cases where the Secretary has 

promulgated specific standards governing the cited health 

impairment. However Ms. Perando has not alleged a violation 

of those specific "right-to-transfer" provisions. Moreover I 

find nothing in the language of section 105(c)(l) or any 

Congressional intent that would bar an action based on the 

allegations herein under the legal theories cited in the 

preceding paragraph. See Atkins Vo Cyprus Mines Corporation, 

8 FMSHRC Docket No. WEST 84-68-M, February 27, 1986 

(Judge Morris). 

Ms. Perando also alleges in her complaint that she was 

harrassed after she filed a workmans compensation claim with 

the state of Maryland. That claim was filed on December 17, 

1984, and alleged that she contracted industrial bronchitis 

while working underground at Mettiki. Ms. Perando alleges 

that Mettiki. officials knew of this filing and discriminated 

against her by thereafter requiring her to report her absences 

on a daily basis one half hour before the beginning of her 

work shift even though no·one was present at that time to 

receive her calls. 

366 
She further alleges that because of her inability to 

complete these telephone calls in the absence of a responsible company official she was discriminatorily charged with 

unexcused absences. She seeks to have all such unexcused 

absences expunged from her personnel records. I find that 

these allegations are sufficient to set forth a claim of 

discrimination based on Ms. Perando's purported notification 

to "the operator or the operator's agent ••• of an alleged 

danger • • • or health violation". Accordingly these allegations also present a claim cognizable under section 105(c)(l) 

of the Act. 

Finally Ms. Perando alleges in her complaint that she 

was terminated on March 27, 1985, while off work under a 

doctor's care. She explained at hearing that what she meant 

was that she was discharged because she had a serious medical 

condition caused by Mettiki and that she could not and would 

not work because of the hazardous health environment presented 

in the laboratory and in the underground mine. This complaint may also be construed as an alleged work refusal in 

the face of hazardous conditions. See discussion of paragraph two of the complaint, supra. Accordingly, I find that 

this allegation also sets forth a claim cognizable under the 

Act. 

Under the circumstances Mettiki's m9tion to dismiss 

filed in this case is denied. This matteLl will accordingly 

be set for hearing on the merits., \ . ~ 

V\ \W Gary/ Melick J ·~ 'Admi'n.istrativ Law Judge I ' . 

' i Distribution: I \ · 

Ms. Martha Perando, P.O. Box 30121 Leer Par\ MD 21550 

(Certified Mail) V'"' 

Lisa B. Rovin, Esq., Crowell, Moring, 1100 Connecticut 

Avenue, N.W., Washington, DC 20036 (Certified Mail) 

rbg 

367 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

March 18, 1986 

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

. . Docket No. CENT 86-36-D 

MSHA· Case No. MADI 85-17 

JOHNNIE LEE JACKSON, 

Complainant 

: 

: Rogers No. 2 Mine 

v. . . 

TURNER BROTHERS, INC., 

Respondent 

. . 

DECISION AND ORDER DENYING TEMPORARY REINSTATEMENT 

Appearances: 

Before: 

Frederick w. Moncrief, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for Complainant; 

Robert Petrick, Esq., General Counsel, Mark 

Secrest, Assistant General Counsel, Turner 

Brothers, Inc., Muskogee, Oklahoma, for 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns an Application for Temporary 

Reinstatement filed by MSHA on January 22, 1986, pursuant to 

section 105Cc)(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 Johnnie Lee 

Jackson to his position of bulldozer operator at the respondent's Rogers No. 2 Mine. MSHA has concluded that the complaint of discrimination filed by Mr. Jackson is not 

frivolous. In support of this conclusion, MSHA included an 

affidavit executed by Michael Yanak, Jr., Technical 

Compliance specialist, Office of Technical Compliance and 

Investigation, MSHA, Arlington, Virginia, a copy of the complainant's complaint executed September 23, 1985, and a prior 

statement executed by him on September 18, 1985. 

368 
The respondent filed a response to the request for temporary reinstatement on January 28, 1986, and requested a 

hearing pursuant to the Court's decision in Southern Ohio 

Coal Company, et al., v. Donovan et al., 774 F.2d 693 

(6th cir. 1985). A hearing was convened in Muskogee, 

Oklahoma, on February 5, 1986, and the parties appeared and 

participated fully therein. 

Issue 

The issue presented in this proceeding is whether or not 

the complainant is entitled to temporary reintatement pending 

the adjudication of the merits of his claim that he was unlawfully discharged for making safety complaints to mine 

management. 

MSHA's Testimony and Evidence 

Complainant Johnnie Lee Jackson testified that he was 

discharged by the respondent on September 9, 1985. At the 

time of his discharge he was employed as a D-10 bulldozer 

operator, and he had been employed by the respondent for 

4-1/2 years. He stated that he had operated the bulldozer 

for approximately a year and a half and that he has 10 years 

of experience as a bulldozer operator (Tr. 25-26). 

Mr. Jackson stated that he believed he was discharged 

because the respondent wanted to get rid of him for making 

safety complaints about his bulldozer. He stated that he was 

discharged by mine superintendent Ronald Sisney, and he 

asserted that Mr. Sisney gave him no reason for the discharge. 

Mr. Sisney simply told him that Robert Turner, the mine owner 

told him to fire him and that if he didn't, Mr. Turner would 

fire Mr. Sisney (Tr. 27-28). 

Mr. Jackson stated that immediately prior to his discharge the left wall of the rock overburden which had been 

shot caved in on his bulldozer and came through the door of 

his machine. He was in the process of "slot pushing" the 

overburden with his machine. The overburden was being pushed 

into the pit and he was pushing or cutting 22 foot wide cuts 

while taking the overburden down to the coal layer. He 

described the procedure and the work being performed immediately prior to the accident. 

Mr. Jackson stated that after the material caved in on 

his machine he had to climb over the rock in order to get out 

of his machine. After getting out of his machine, he waited 

for approximately 10 minutes, and mine operator Robert Turner 

was the first person to appear at the scene (Tr. 29-36). 

369 
Mr. Jackson stated that immediately before the slide, he 

had backed up his machine to the highwall and put the blade 

down. He then observed some movement of rocks and pebbles on 

the 45 to 50 foot highwall and knew that the wall was going 

to slide in on him. He pulled up his blade and started to 

move out, but ~ portion of the wall slid and fell in on the 

left side of 3 machine. A large rock came through the left 

door of the 1 .hine, and other rocks landed on the machine at 

the left tra . and hood, and one rock came through the window 

on the driv• 's side of the machine. He climbed out and over 

the rock f m the left side of the machine. He could not get 

out of t 1 right side because the right door latch would not 

work ar .e could not get the door open (Tr. 38). 

Mr. Jackson stated that the right door of his machine 

could not be opened, and he asserted that it had been in this 

condition for "a couple of weeks." He stated that he had 

complained about the condition of the door daily to Mr. Sisney 

and to the dirt foreman, Terry Beck. When he complained· to 

Mr. Sisney, Mr. Sisney simply told him to use the left door. 

Mr. Jackson believed that the condition of the door was unsafe 

because he could be trapped in the machine in.the event of an 

emergency (Tr. 39-41). 

Mr. Jackson described how he got out of his machine after 

the rock slide, and he stated that he sustained injuries to 

the lower right side of his back and to his neck between the 

shoulder blades, and that glass got into his eyes (Tr. 42). 

He received medical treatment for his injuries, and a doctor 

advised him that he had a 10 percent disability because of his 

injuries (Tr. 43). 

Mr. Jackson stated that the accident was not avoidable, 

and that while in his machine he was watching the highwall, 

which was his normal practice. He stated that the highwall 

"looked good" prior to the accident, and "it looked like a 

good solid wall" (Tr. 44). In his opinion, there was nothing 

he could have done to foresee the accident, and he confirmed 

that it had never happened to him in the past. 

Mr. Jackson stated that he was aware of the fact that 

the respondent has fired -0ther employees for causing accidents and for being involved in accidents which they did not 

cause. He was also aware of individuals wh0 have commented 

that they were either involved in accidents or caused accidents but were not fired (Tr. 46). He has never seen any 

written company policy stating that causing or creating an 

accident would result in a discharge (Tr. 47). 

370 
Mr. Jackson denied that he did anything to cause the 

rock to fall on his machine, and he was not aware that the 

respondent made an investigation of .the accident (Tr. 48). 

However, he was told that the machine door glass was knocked 

out, a precleaner breather knocked off, and that the .door 

frame was bent. He was told that the machine was out of 

service for about an hour and a half or two hours (Tr. 49). 

Mr. Jackson stated that he constantly complained about 

the slick tracks on his machine, but he indicated that any 

safety concern over this condition would depend on where the 

machine was operating. The slick tracks would be a safety 

problem if the machine were operating on a hill because there 

would be no tractic>n. However, while "slot pushing11 on level 

ground, the slick tracks would not present a safety hazard. 

He operated his machine with slick tracks for approximately a 

month and a half, but the respondent took care of the problem 

and replaced the tracks. The tracks on his machine were 

replaced approximately 2 or 3 weeks before the accident -(Tr. 

49-53). 

Mr. Jackson stated that he also constantly complained 

about the rear-view mirrors being knocked off of the end-dump 

machine he was operating (Tr. 54). He confirmed that the 

mirrors are knocked off trucks at least once a month by the 

end loaders, and he conceded that this was 11 normal wear and 

tear" (Tr. 56). He confirmed that the respondent eventually 

would replace the mirrors, but only after his repeated 

complaints (Tr. 58). 

Mr. Jackson confirmed that he knew he had a right to 

refuse to operate unsafe equipment, and he conceded that he 

would operate a piece of equipment which he knew to be unsafe 

because he had to work to support his family. He also confirmed that while he never refused to operate a piece of 

equipment which lacked a rear view mirror, he engaged in 

heated arguments over the condition. He conceded that on one 

occasion a foreman took a truck out of service until the rear 

view mirrow was replaced (Tr. 60). 

Mr. Jackson stated that he also complained about the 

D-clutch brakes on the 992 loaders, but that "nobody ever 

seemed to care whether they was working right or not." He 

believed that he would have been fired had he refused to operate equipment which he considered to be unsafe because 

"there's too many people out there that would run it" (Tr. 

6 0). 

371 
On cross-examination, Mr. Jackson stated that he is 

physically able to go back to work. He confirmed that he 

sustained injuries to his back, side, and his neck as a 

result of the accident. He denied-that he has any permanent 

eye impairment, but confirmed that he had to see a doctor to 

remove glass from his eye. He also confirmed that when he 

returned to the mine to pick up his pay checks he did not 

inform Mr. Sisney, Mr. Beck, or Mr. Turner that he had 

suffered any injuries as a result of the accident (Tr. 62). 

Mr. Jackson stated that he was not presently experiencing any discomfort to his neck, back, or side as a result of 

his injuries. He confirmed that he did suffer back and eye 

injuries as a result of the accident. He also confirmed that 

he has filed a workmen's compensation claim because of ear 

damage "because of the overall period of running the machinery." He stated that his doctor advised him that his hearing 

is being impaired because of the large machinery noise to 

which he is exposed. When asked whether he will continu·e to 

be exposed to loud noise if he operated bulldozers and heavy 

equipment, he responded "that's what I do for a living" (Tr. 

64). He also stated that his doctor advised him to get 

better ear protection. He conceded that he "sometimes" wore 

ear protection but could not remember whether he was wearing 

earplugs while operating his machine at the time of the 

accident (Tr. 65). 

Mr. Jackson denied that he was ever stopped in the operation of his equipment by his fcreman or supervisor and told 

to wear his hard hat or to cease operating the machine with 

his doo'rs open. He admitted that he was told to wear his 

seat belt, and to wear his hard hat while on the job CTr. 

6 6) 0 

Respondent's counsel produced a medical report from 

Mr. Jackson's doctor dated November 21, 1985, stating that 

Mr. Jackson has a 10 percent partial disability and that he 

is released from treatment. Counsel pointed out that the 

report does not state that Mr. Jackson is physically able to 

go back to work, and in fact states that "he will probably 

experience chronic reoccurring symptoms" (Tr. 71, exhibit 

R-3), and Mr. Jackson acknowledged the report (Tr. 75). 

Respondent's counsel produced a state workmen's compensation claim filed by Mr. Jackson on September 12, 1985, based 

on his back and eye injuries, and "nerves and ulcer" conditions, and Mr. Jackson acknowledged that the claim is still 

pending and that he is represented by an attorney in that 

matter (Tr. 72-73; exhibit R-1). 

372 
Respondent's counsel produced a state workmen's compensation claim filed January 10, 1986, filed by Mr. Jackson claiming a hearing loss as a result of working for the respondent, 

and that he will continue to do so. Mr. Jackson acknowledged 

that he filed it (Tr. 74; exhibit R-2). 

MSHA's counsel produced a February 3, 1986, statement 

from Mr. Jackson's doctor certifying that he has recovered 

sufficiently to be able to return to regular work without 

restrictions and by agreement of the parties it was made a 

part of the record as exhibit RX-4 (Tr. 76-78). 

Mr. Jackson explained the "slot dozing" procedures he 

followed while operating his bulldozer, and he stated that he 

would not have been there if the highwall appeared unsafe. 

He also explained the condition of the wall as it appeared to 

him before the accident occurred (Tr. 78-83). 

Mr. Jackson confirmed that Mr. Sisney, Mr. Beck, and 

Mr. Turner were the only individuals present during the 

period immediately after the accident and his.discharge, and 

that none of them gave him any verbal reasons for his 

termination (Tr. 84). 

Mr. Jackson stated that he was positive that his prior 

complaints concerning the right door of the D-10 bulldozer 

being inoperable for 2 weeks referred to the same bulldozer 

he was operating at the time of the accident. He denied that 

Mr. Sisney exited from the right door of the bulldozer after 

retrieving and giving him his personal belongings from the 

bulldozer involved in the accident. He claimed that 

Mr. Sisney exited out over the top of the rock, and that 

Mr. Sisney tried to get in through the right door but could 

not (Tr. 85). 

Mr. Jackson stated that he previously operated bulldozer 

817, which was an older machine, but was subsequently given a 

new dozer 529 approximately ·a month or a month and a half 

prior to the accident. He confirmed that the new machine had 

been completely rebuilt and that new tracks were installed 

approximately 2 to 3 weeks prior to the accident (Tr. 86). 

Mr. Jackson stated that the bulldozer he was operating 

at the time of the accident was completely enclosed with 

glass, had a center mirror, and had a seat which enabled him 

to see to the front, back, and side (Tr. 87). 

373 
Mr. Jackson acknowledged his statement to MSHA, made on 

September 18, 1985, and he confirmed that no one from mine 

management stated that he was being.fired for making safety 

complaints (Tr. 88). When asked why this statement does not 

include an allegation that he was fired for making safety 

complaints, Mr. Jackson responded as follows (Tr. 89-90): 

THE WITNESS: No. I always knew they wanted 

to fire me because I complained too much. 

THE COURT: Well, if the accident hadn't 

happened, would they have fired you? 

THE WITNESS: First chance they got. 

THE COURT: You mean to tell me that for four 

and a half years they couldn't find an excuse 

to fire you if they wanted to fire you? 

THE WITNESS: No, they could have fired me. 

THE COURT: But they didn't. 

THE WITNESS: No, they didn't. 

THE COURT: You say they were using this as 

some kind of an excuse, the accident as some 

kind of an excuse? 

THE WITNESS: I would say so. 

Mr. Jackson confirmed that he had an ulcer condition 

prior to his employment with the respondent, and he acknowledged that he missed some work as a result of this condition, 

but continued his employment with the respondent (Tr. 91). 

He also acknowledged that he had some financial problems and 

that the respondent loaned him money to assist him in resolving these problems and kept him employed regardless of garnishment and tax levies filed against him CTr. 91). He also 

acknowledged that when he requested to work overtime, the 

respondent allowed him to do so CTr. 91). 

In response to further questions, Mr. Jackson identified 

exhibits C-1 and C-2 as releases from the doctors who treated 

his back and neck injuries and his ulcer condition indicating 

that he was able to return to work. He confirmed that he 

obtained the statements on February 3, 1986, prior to the 

hearing, and that he did so at the request of MSHA's counsel 

(Tr. 93). He denied that any doctor has advised him that he 

374 
is incapable of performing the job of bulldozer operator, and 

confirmed that he discussed the matter with two doctors treating him for his hearing condition. .He stated that these doctors advised him that he was able to return to work but 

advised him to obtain better hearing protection {Tr. 94)o 

Mr. Jackson stated that the respondent provided him with 

earplugs, but that they disintegrated when they are washedv 

and that he was unable to get new earplugs every day because 

they were not available (Tr. 95}. 

When asked to explain why he omitted any reference to 

slick bulldozer tracks when he filed his two prior statements 

with MSHA, Mr. Jackson responded "I just forgot about it•u 

(Tr. 98). He also stated that he complained about other 

matters, but did not include them in his prior statements. 

He conceded that when he complained about the slick tracks 

and rear-view mirrors, the respondent corrected the conditions 

(Tr. 99). 

In response to further questions concerning his termination and safety ·complaints, Mr. Jackson stated as follows 

(Tr. 101-106): 

THE COURT: Well, was it the company's position that it was your fault? 

THE WITNESS: was it the company's position to 

say it was my fault? 

THE COURT: Yes. This accident, when the 

rocks came in on your dozer, did the company 

take the position that you were the one that 

put yourself in that situation and that you 

were the one that could have avoided the accident but you didn't avoid it and that, therefore, that's what they were firing you for. 

THE WITNESS: I guess that's probably the way 

they looked at it. 

THE COURT~ And no one told you that? 

THE WITNESS: No, no one told me that. I 

mean, no one, no, they didn't. 

THE COURT: The gentleman that said that you 

were fired, Ron Sisney, didn't he tell you why 

he was firing you? 

375 
THE WITNESS: No. Ron Sisney said --

him, I said, "Why are you firing me?" 

said, "Rob told me to either .fire you 

going to fire me." 

THE COURT: You didn't ask why? 

I asked 

He 

or he's 

THE WITNESS: Yeah, I asked why, but nobody 

answered me. 

THE COURT: Did Mr. Turner talk to you at the 

time you were fired? 

THE WITNESS: At the time I was fired, no. He 

talked to me later on, up at the pickup. Ron 

took me to my car probably -- Rob followed us 

up there, and I talked to him up there. 

THE COURT: Did you ask Mr. Turner then why 

you were being fired? 

THE WITNESS: I asked him for another chance. 

I was wanting my job back. I knew they had 

done fired me. 

THE COURT: But nothing came up during that 

conversation that would give you any idea as 

to why they fired you? 

THE WITNESS: No. They done said they fired 

me, and I was begging for my job back, is what 

I was doing. 

THE COURT: Do you have any idea why they 

fired you? What did you believe? What did 

you speculate? You must have had -- something 

must have gone through your mind as to "why 

they are doing this to me." 

THE WITNESS: They wanted to get rid of me. 

THE COURT: For what reason? 

THE WITNESS: Cause I complained a lot, complained a lot, and it looked like the dozer 

was tore up, I guess you could say. I really 

can't say, you know. It's my opinion. 

376 
* * * * * * * 

THE COURT: Did you ever see any MSHA inspectors out at the Turner proper~y, mine inspectors doing inspections? 

THE WITNESS: Inspectors, yes. I've seen a 

number of inspectors out there. As far as 

knowing whether they were MSHA and all this, I 

really don't know. 

THE COURT: Did you ever complain to any MSHA 

inspectors about any safety complaints? Ever 

make any complaints to them? 

THE WITNESS: No. 

* * * * * * * 

THE COURT: Okay. Had you ever had any problems at Turner Brothers before during your 

employment; ever received any warnings, reprimands, or anything like that? 

THE WITNESS: Never received no reprimands, 

no, sir. 

THE COURT: Do you know any other employees at 

Turner Brothers that have ever been fired for 

making complaints? 

THE WITNESS: No, sir. 

Mro Jackson stated that his ulcer condition which caused 

him to miss 4 days of work occurred a year and a half ago, 

and that his financial difficulties took place approximately 

a year ago (Tr. 107). 

Mr. Jackson stated that his September 18, 1985, statement to MSHA contains his signature, but that he did not 

write it out. He stated that he could not remember who wrote 

it out (Tr. 110), but respondent's counsel asserted that he 

was informed by MSHA's counsel that Mr. Jackson's wife wrote 

out the statement (Tr. 122}. 

Mr. Jackson stated that he has not been employed since 

his discharge, and that his present source of income consists 

of $122 a month from the Veterans' administration. He confirmed that he has received a $1,700 payment on his 10 perc_e_nt 

377 
disability claim, and respondent's counsel confirmed that the 

respondent made the payment to Mr. Jackson and that the workmen's compensation carrier will be billed for the payment. 

Counsel also confirmed that the payment was made pursuant to 

the workmen's Compensation Court claim for temporary total 

disability. The question of permanent disability compensation 

is still pending. The temporary benefits are in connection 

with Mr. Jackson's back and eye injuries. Mr. Jackson confirmed that he is in contact with his lawyers regarding these 

claims, and respondent's counsel stated that he is still awaiting medical evaluations from Mr. Jacks·on' s attorney regarding 

his loss of hearing condition and that the matter will be 

heard in court within the next 3 or 4 weeks (Tr. 246-249). 

Allen G. Howell testified that he is an MSHA District 10 

senior special investigator, and he confirmed that he conducted 

an investigation of Mr. Jackson's complaint after obtaining his 

prior two statements on approximately September 28, 1985. 

Mr. Howell stated that he interviewed four complainant witnesses, three respondent witnesses, and three doctors. He identified the respondent's witnesses-as Mr. Turner, Mr. Beck, and 

Mr. Sisney (Tr. ·129-131). Mr. Howell stated as follows with 

respect to the result of his interviews, (Tr. 131-133): 

Q. Whom did you interview for the respondent? 

A. I interviewed Mr. Turner, Mr. Beck, and 

Mr. Sisney. 

Q. Were you present this morning for 

Mr. Jackson 1 s testimony? 

A. Yes, I was. 

Q. Did you hear him testify that he had been 

fired for making safety complaints? 

A. Yes, I did. 

Q. Did he tell you that he had been fired for 

making safety complaints? 

A. Yes, he did. 

Q. In the course of your investigation, did 

you uncover any evidence to support the allegation that he had made safety complaints? 

A. Yes, I did. 

378 
Q. More specifically, did any of respondent's 

witnesses concur in his claim to have made 

safety complaints? 

A. Yes, they did. 

Q. would you tell us what they said? 

A. There was some inconsistency but, basically, that Mr. Jackson had made·safety complaints on occasion to management. Some 

people said -- one of the statements was "a 

few times , " and another one was 11 constantly. 11 

One of the statement was, too, that most of 

the complaints were founded, that there was a 

legitimate complaint. The other one was that 

75 to 80 percent of the time his complaints 

was not founded, that he just didn't want to 

work on the machine. 

A. Did you find support among the complainant's witnesses for the claimed safety 

complaints? 

A. Yes, I did. 

And, at (Tr. 136-139): 

Q. What was the reason stated for the discharge of Mr. Jackson? 

Ao By who? 

Q. By the respondent. 

A. The accident. 

Q. And what specifically, with respect to the 

accident, was the basis for the discharge? 

A. The respondent contends that if anyone at 

the mines is involved in an accident which 

causes property damage to their equipment 

and/or delay, that that person would be 

discharged. 

* * * * * * 

379 
Q. CBy Mr. Moncrief) Now, was it simply the 

fact that Mr. Jackson was involved in an 

accident? 

A. That he caused damage to the machines. It 

may be any accident. I'm saying that the conclusion I drawed from the interviews was that, 

if a person was involved in an accident that 

damaged the company's property or it was his 

fault, that the person was discharged. 

Q. That's your conclusion. 

A. That's my conclusion. That's what I 

thought I was asked. 

Q. Now, you mentioned -- well, possibly you 

were. I should be more careful. You mentioned the matter of fault. Were you told --

well, what were you told specifically by the 

three members of mine management was the company policy with respect to property damage? 

A. I can't say specifically. I can tell you 

in general. Without reading their statements, 

I wouldn't want to try to quote anyone. 

Q. Did it require culpability or negligence 

or fault? 

A Yesv that would be one of their guidelines, 

in my opinion. 

Q. Did anyone say that simply being involved 

in an accident would be enough, anyone from 

management? 

A. I don't think in that words, no. 

Q. Okay. This was stated to you as a policy, 

did you say? 

A. Right. 

Q. To the best of your knowledge, was this 

policy ever reduced to writing? 

MR. PETRICK: I will so stipulate that it was 

not. 

380 
THE COURT: All right. 

Q. (By Mr. Moncrief) It's b~en stipulated 

that there was no written statement of this 

policy. Can you testify from your interview 

with the three men that you have cited, 

whether their statements of this policy were 

consistent? 

A. Yes. It was. 

Q. The statement was consistent? 

A. Are we talking about the respondent's 

witnesses? 

Q. Yes. 

A. Yes, their statements in regards to the 

policy for discharge, as far.as their statements was consistent, that if the person. was 

involved in an accident that they felt was his 

fault and was avoidable, it would entail a 

discharge. 

With regard to the results of his investigation concerning the accident, Mr. Howell testified at follows (Tr. 

144-147). 

Q. Okay. Did you question any of these witnesses as to the cause of the accident? 

A. Yes, I did. 

Q. Did you get an understanding as to what 

caused the accident? 

A. From the complainant's witnesses I've 

talked to, there was no abnormal mining conditions at the mines. They hadn't had any real 

problems with mining in that area. There was 

no damaged high walls or unsafe areas that 

anybody was aware of, and the mining was proceeding in a normal manner at the time the 

accident occurred. 

381 
Q. Did you find from these witnesses any --

or these individuals, did you find any indication that the fall was the result of 

Mr. Jackson's negligence? 

A. No. To the contrary, everyone said that 

the complainant's witnesses all stated that 

they didn't think that he could have been 

aware of it prior to it falling. 

Q. What was the version of the accident given 

you by the respondent's witnesses? 

A. That Mr. Jackson was operating in the 

manner in which he would normally be operating. 

I guess to elaborate on both their statements 

of management is that the responsibility is up 

to the operator to ensure the security of the 

machine and his safety while in the slot. 

It's his judgment to do that. On the other 

side when talking to the complainant's witnesses, the thing that I based my conclusions 

on was as to whether or not they was observing 

anything unusual and had taken any unusual, 

any extra steps, and they all stated that they 

hadn't, but then Mr. Jackson was the only one 

in that slot. 

Q. Did any of the people you spoke to for the 

respondent assess the blame for the accident? 

Ao Could you rephrase that? I didn't really 

understando 

Qo Did anyone say that Mr. Jackson was at 

fault in the accident that occurred? 

Ao Yes. Are you talking about the respondent's witnesses? 

Q o Yes. 

P.H Yes. 

Q. What did they say? 

A. I think that -- not in regards to the accident. I think the main contention of Mr. Beck 

was that he attempted to move the dozer after 

382 
the rock had fallen on it, causing further 

damage; and the contention of Mr. Turner and 

Mr. Sisney is that he should have been more 

careful in observance of the )ligh wall in the 

mining area to prevent an accident before it 

occurred. 

Q. Had any of the respondent's witnesses 

observed the accident? 

A. No, one was an eye witness to the accident. 

Q. {By Mr. Moncrief) Who fired Mr. Jacksonv 

according to your investigation? 

A. Mr. Sisney. 

Q. Okay. Do you know what knowledge he had 

when he made the decision, or announced the 

decision to fire Mr. Jackson, with respect to 

the accident and its cause? 

A. Mr. Sisney said it was his decision. He 

told Mr. Jackson when he was taking him back 

to his vehicle in the truck. Conversations 

other than that was -- I would rather read a 

quote or let them tell theirself. 

Q. What I'm asking you is: did he state what 

his decision to fire Mr. Jackson was based on? 

Ao The fact that he had an accident that had 

caused damage to the machinev and it was avoiaablep it could have been an avoidable accident. 

On cross-examination, Mr. Howell identified the statements he took from Mr. Beck, Mr. Sisney, and Mr. Turner during his investigation of the complaint (Exhibits R-6 through 

R-8)" Mro Howell confirmed that he did not ask for my information from the respondent regarding any employees who were 

negligent and involved in accidents but were still employed 

by the respondent (Tr. 178). He also confirmed that the 

respondent had no knowledge of Mr. Jackson 1 s injuries until 

after he returned to the mine after the accident and so 

informed management (Tr. 181). 

383 
Respondent's Testimony and Evidence 

Joseph Haberland testified that he is employed by the 

respondent as a D-10 bulldozer operator, and he confirmed 

that in August and September 1985, he operated D-10 dozer No. 

529. He stated that the machine had been out of service due 

to a fire, but that it was completely rebuilt and assigned to 

him. He operated the dozer on a 4-day, 12-hour a day shift, 

and Mr. Jackson would operate it for the next 4-day shift. 

Mr. Haberland stated that he operated the dozer on the 

4-day shift immediately before the shift on which Mr. Jackson 

was terminated, and that both doors worked properly and he 

had no occasion to make any safety complaint concerning the 

inability of the right-hand door to be opened and closed. He 

confirmed that he operated the machine with the doors open 

and that most of the time when he arrived on his shift the 

doors were closed (Tr. 207-209). 

On cross-examination, Mr. Haberland denied that he ever 

told Mr. Jackson that the right door of the machine would not 

work, and he denied that he was aware of any MSHA investigation or that he ever spoke with Inspector Howell. He confirmed that Mr. Sisney called him the morning of the hearing 

and asked him to come. He also confirmed that Mr. Sisney did 

not ask him about the door, and he did not know why he was 

asked to appear at the hearing (Tr. 210-212). 

Mr. Haberland confirmed that he and Mr. Jackson operated 

the same D-10 dozer, but denied Mr. Jackson ever discussed 

the condition of the right door with him. He stated that 

when he next operated the machine after Mr. Jackson's discharge, the glass was out of the left door, the door was 

dented, and the heat shield was bent. However, the right 

hand door was still operating properly (Tr. 214-215). He 

stated that Mr. Jackson operated the machine with the doors 

closed and the air conditioning on, while he operated it with 

the doors opened and the doors swing open and latched back 

(Tr. 216}. 

Robert A. Turner, testified that he is the secretary of 

the corporate operator Turner Brothers, Incorporated, and 

that he holds a B.S. degree in civil engineering from the 

University of Missouri and has worked in construction and 

mining all of his life. He explained the "slot dozing" 

method of mining used at the mine, including the safety precautions expected of a dozer operator while performing his 

duties. He stated that the machine operator has the responsibility to watch and maintain the slopes, and when he is out 

384 
of his machine he is supposed "to inspect the area and see 

that everything is fine" (Tr. 217-221). 

Mr. Turner stated that he was- the first person to arrive 

at the scene of Mr. Jackson's accident. When he arrived, 

Mr. Jackson was standing on the bank waiting for someone to 

come by, and Mr. Turner looked at the machine and saw two 

rocks that had slid approximately 12 to 15 feet up on the 

wachine. Material was under the rocks, and they had fallen 

on the machine (Tr. 221-222). 

Mr. Turner stated that in his opinion the rocks came off 

the slope because it had not been properly maintained, and he 

confirmed that "slot dozing 11 has taken place at the mine with 

D-10 dozers since 1981. He gave the following reasons for 

Mr. Jackson's discharge (Tr. 223-224): 

Q. Would you tell us the reason, or reasons, 

for the termination of Mr. Jackson? 

A. Mr. Jackson was terminated for not doing 

his prescribed duties as a D-10 operator. and 

that he had to maintain the slopes of his slot 

so that material would not fall on him. There 

was no evidence that he had ever been up on 

top of the slot immediately to the left of him 

and tried to maintain or look for rocks to 

protect himself. 

Q. You mean in the whole time that he was 

cutting that slot, he had not been up on top 

of there? 

A. There was no dozer tracks. There had not 

been any work with the dozer to prevent 

anything. 

Q. Did you look for those dozer tracks? 

A. Yes. 

Q. You did not observe any? 

A. There was none there. 

Q. was there any other reason that Mr. Jackson 

was terminated other than what you just said? 

A. No, sir. 

385 
Q. Did the question of any safety violations 

even come up while you were there? 

A. No. 

Q. You did talk with Mr. Jackson at the time, 

did you not? 

A. He asked me if he could ha.ve another 

chance. 

Q. Is that the extent of the conversation you 

had with him? 

A. And I said that he'd had his chances. 

Q. Any other conversation? 

A. No, sir. 

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

was interviewed by Mr. Howell, he did not tell him about the 

matters he has testified to in this hearing because Mr. Howell 

did not ask. He confirmed that he did not advise Mr. Howell 

that Mr. Jackson had caused the damage to the dozer because 

Mr. Howell asked specific questions and he answered them. 

Mr. Turner denied that he fired Mr. Jackson or ordered him 

fired (Tr. 226). 

Mr. Turner stated that after Mr. Sisney arrived on the 

scene he looked the machine over, took Mr. Jackson's lunch 

box out of it, and then took him to his car and fired him 

(Tr. 226}. Mr. Turner stated that he did not know whether 

Mr. Sisney looked for any dozer tracks on the slopev but that 

"he looked the whole area over" {Tr. 227). He also stated as 

follows (Tr. 227-228): 

Q. So you donit know whether Mr. Sisney saw 

what you say is evidence to indicate that 

Mr. Jackson had not been maintaining the shot 

wall? 

A. Mr. Sisney looked the whole area over. 

Q. Do you know whether he looked for the 

dozer tracks? 

A. No, sir. 

386 
Q. But you did not tell Mr. Sisney to fire 

Mr. Jackson? 

A. No. 

Q. And the way you know that Mr. Jackson was 

responsible for the damage to his dozer was 

that there were no dozer tracks on the shot 

wall, top. 

A. And the way the rock was laying on the 

dozer, that because of the angle of repose and 

the way i·t was up as high as it was on the 

dozer, it had to fall out of the face and on 

to the dozer. 

Q. Has it ever happened that a properly maintained shot wall has fallen? 

A. I wasn't aware of any there. 

u. Does it ever happen? 

A. Not if it's properly maintained and the 

operator looks for rocks and does his job. 

Q. When is it that the operator is supposed 

to go up and lay down these tracks on the shot 

wall? 

A. Well, if he is digging through the area 

where -- if you listened to what I said, there 

was different stratas of rocks, and there 0 s 

one layer in there where this rock came out of 

that is normally blocky and hard to get 

through, and it is a problem, and if they --

when a guy works through that, he should, he 

goes by it for two or three hours while working, backing up his slope, maintaining his 

slope, and all that, and if he is doing his 

job and observing the wall, he should notice 

those. 

Mr. Turner stated Mr. Jackson had worked the slot most 

of the morning prior to the accident for approximately 

3 hours, and except for the time that he is out of the 

machine,. he is supposed "to keep an eye peeled to the wall" 

as he is operating. He would have had to observe the slope 

387 
wall while operating the machine because in order to bring 

the slope down, he had to back by it constantly. Mr. Turner 

concluded that Mr. Jackson simply ignored a danger to himself 

and his equipment for some signifi~ant period of time (Tr. 

230). 

In response to further questions, Mr. Turner stated that 

Mr. Jackson never complained to him about safety matters, his 

equipment being inoperative, or problems with any of his 

equipment. He also stated that no complaints by Mr. Jackson 

ever came into his attention (Tr. 230). 

Mr. Turner stated that he had previously observed 

Mr. Jackson operating his dozer, but that he was not his 

supervisor. Mr. Sisney supervised Mr. Jackson and Mr. Sisney 

advised him that he had to constantly motivate Mr. Jackson 

and had to remind him to use his seat belts, and to operate 

the machine properly while stacking materials with the dozer 

(Tr. 231). 

Mr. Turner stated that his company policy calls for the 

immediate termination of an employee who causes an accident 

resulting in damage or injuries. An employee not at fault 

would not be terminated. The policy is verbally communicated 

to employees and it is not in writing or in the form of 

policy directives. He confirmed that employees are trained 

according to MSHA regulations. Equipment operators are constantly trained by company superintendents and foremen, and 

they are expected to do what they are trained to do (Tr. 232). 

Mr. Turner stated that his company has about 300 employees" Payroll and training records are maintained at each 

mineo He confirmed that Mr. Jackson 1 s discharge was not 

reduced to writing, and that employee discharges are not in 

wr ing because "we just don't need the paperwork" and "we've 

always done things kind of out of the seat of our pocket" 

(Tr. 234). 

Mr. Turner stated that he believed Mr. Jackson knew 

Mr. Sisney discharged him for "tearing up a piece of equipment11 because 11 it didn't take 20 minutes from the time that 

we knew that it happened for us to make up our mind and for 

Mr. Jackson to be terminated." Mr. Turner stated that 

Mr. Sisney fired Mr. Jackson because he is the superintendent 

and does the hiring and firing (Tr. 235). 

Mr. Turner stated that after arriving at the scene of 

the accident and looking around, he concluded that Mr. Jackson 

was at fault. After Mr. Sisney arrived, they walked around 

388 
the machine and discussed the accident in question. He and 

Mr. Sisney did not collectively decide that Mr. Jackson was at 

fault, and that Mr. Sisney made his ·own judgment in this 

regard. Had Mr. Sisney decided not to discharge Mr. Jackson, 

Mr. Turner stated "I would have stood behind him" (Tr. 236). 

Mr. Turner stated that other employees were fired for 

damaging company equipment. He stated that Charles Fraum was 

discharged at the Welch Mine for backing a truck into another 

truck and that MSHA investigated the matter. Randy Willis 

was discharged at the Claremore Mine for backing up a 992 

into a pickup, and another employee at Claremore (first name 

Darell) was fired for backing a 992 into a truck (Tr. 237). 

Ronald L. Sisney testified that he is employed by the 

respondent as the superintendent of the Claremore Mine. He 

stated that after Mr. Jackson's accident he crawled into the 

left side of the machine over the rock to look at the damage 

and to remove Mr. Jackson's dinner bucket and water jug.· He 

exited the machine through the right door, and while the door 

was jammed or hard to open, the door latch was operable (Tr. 

237-239). 

With regard to Mr. Jackson's termination, Mr. Sisney 

stated as follows (Tr. 239-240): 

Q. Okay. Now, with regard to the termination 

of Mr. Jackson, did you have a conversation 

with him before terminating him or at the time 

of termination? 

A. Yes 1 I did. 

Q. Where was this? 

A. On top of the high wall behind the dozer. 

Q. Did the conversation continue in your 

pickup truck? 

A. Yes, it did. 

Q. Did you advise Mr. Jackson as to why he 

was being terminated? 

A. Yes, I did. 

Q. Would you tell us, give us all the reasons 

you gave him for terminating him? 

389 
A. Best I can remember the way I said it was, 

I'm firing you because you didn't maintain the 

slopes on that cut and let the rock come down 

on your tractor. 

Q. was there ever any mention of any complaints, safety violations, or anything, at 

that time? 

A. Not at that time, no. 

Q. When did you first hear about it? 

A. About the 

Q. Complaint of safety violations. 

A. It was after the investigation, or at the 

time of the investigation. 

Q. By Mr. ·Howell? 

A. By Mr. Howell. 

Q. Did the safety violations or the complaints 

of Mr. Jackson in whatever manner have anything 

to do with his termination? 

A. No, none at all. 

Q. Was there any other reason, other than the 

fact that you felt at that time that he was 

negligent 7 for terminating him? 

A. At that particular timev that was the only 

reason I terminated him. 

In response to further questionsr Mr. Sisney stated that 

he could not recall Mr. Jackson ever complaining to him about 

the door on his machine. He confirmed that Mr. Jackson did 

complain at different times about safety concerns such as the 

lights on his machine or cracked glass. Mr. Sisney stated 

that he acknowledged the complaints and tried to fix the 

items in question. Although he received a lot of complaints 

from Mr. Jackson, as well as others, he did not consider him 

to be a chronic s ety complainer. Mr. Sisney considered 

most of Mr. Jackson's complaints to be legitimate, while some 

were not. Mr. Sisney denied that his decision to discharge 

390 
Mr. Jackson had anything to do with his safety complaints, 

and that he could not remember discussing these complaints 

with Mr. Jackson at the time he fired him (Tr. 240-242). 

Mr. Sisney could not recall telling Mr. Jackson that if 

he didn't fire him, that someone else would have fired him 

(Sisney). He also denied that Mr. Turner influenced his decision to fire Mr. Jackson, and he could offer no explanation 

as to why the discharge was not reduced to writing CTr. 242). 

Mr. Sisney stated that he viewed the accident area about 

an hour and a half prior to the accident, and he concluded 

that the rock which struck the machine should have been 

removed while Mr~ Jackson was cutting the slot. He agreed 

that Mr. Jackson could have concluded that the rock would not 

dislodge. Mr. Jackson simply told him that the rock "just 

fell in, just slid in" (Tr. 245). Mr. Sisney believed the 

accident could have been prevented. 

The parties stipulated that the prior statements made by 

Mr. Sisney, Mr. Turner, and Mr. Beck to MSHA investigator 

Howell during his investigation may be incorporated by reference in this proceeding (Tr. 245; exhibit R-6 through R-8). 

Arguments Presented by the Parties 

During the course of the hearing, MSHA's counsel contended that Mr. Jackson was discharged because of his safety 

complaints, and that the respondent reacted and retaliated 

against him by discharging him. With regard to MSHA's 

support for its application for temporary reinstatement, 

counsel asserted that Mr. Yanak's supporting affidavit was 

based on the facts then known to the Secretary, including a 

summary of the statements made to special investigator Howell 

during his investigation of the complaint (Tr. 14-16). 

Respondent's counsel took the position that Mr. Jackson 

was not discharged for making safety complaints, and that he 

was discharged for causing an accident which was his fault. 

Counsel asserted that the accident resulted in property 

damage to the respondent's equipment, and that the discharge 

was consistent with company policy (Tr. 16-17). 

MSHA's counsel asserted that in order to support 

Mr. Jackson's temporary reinstatement, all that is required 

to be established is that the complaint has merit, and he 

does not have to establish that he will ultimately prevail on 

the merits of his complaint (Tr. 17). 

391 
Respondent's counsel agreed that the complainant must 

establish that his claim of discrimination has merit. However, counsel further asserted that.any temporary reinstatement order must be in accord with ~he standard provided under 

the Federal Rules of Civil Procedures for temporary court 

orders issued pursuant to Federal Statutes. Counsel suggested 

that the standard to be applied in this case is whether or not 

the complainant can establish that there is a reasonable likelihood of success on the merits of his case (Tr. 19). 

MSHA's counsel disagreed with the respondent's argument, 

and he asserted that the term "frivously brought" should be 

applied in the context of whether the complainant acted 

frivously in filing his complaint and not whether the complaint itself is frivolous. In the instant case, counsel 

asserted that the complaint has a degree of merit which establishes that it is not frivolous, but well justified and 

meritorious (Tr. 22-23). 

At the close of MSHA's case, the respondent moved that 

the application for temporary reinstatement be denied on the 

ground that the·evidence presented in support of the application is insufficient to support the complainant's temporary 

reinstatement (Tr. 187). 

Respondent also asserted that there are compelling 

medical reasons for denying the complainant's temporary reinstatement. Counsel pointed out that Mr. Jackson has not 

demonstrated that he is physically fit and able to perform 

his job without subjecting the respondent to liability for 

additional and future injuries with respect to Mr. Jackson's 

hearing situation and his back, neck, body, and stomach conditions. Counsel asserted that Mr. Jackson's doctor has rated 

him 10 percent disabled and has also indicated in his work 

release report that Mr. Jackson is subject to injury in some 

greater degree than would normally be expected of an employee 

(Tr. 188). He also confirmed that Mr. Jackson's claim for 

permanent disability is still pending. 

MSHA's counsel conceded Mr. Jackson's 10 percent permanent disability, but asserted that with the exception of his 

ear doctor, his other doctors have released him for work without limitation. Counsel also conceded that Mr. Jackson's 

disability may subject him to pain from time to time, but 

asserted that it would not incapacitate him or more likely 

subject him to injury (Tr. 190). 

In response to the motion to dismiss, MSHA's counsel 

asserted that the testimony of Mr. Jackson and Inspector 

392 
Howell establish that Mr. Jackson was a frequent complainer 

about safety matters, and that he specifically complained 

about the unsafe condition of the right door of his bulldozer 

everyday for a week before his termination. 

MSHA's counsel asserted that the facts related to the 

rock fall demonstrate that this was an unsafe condition and 

that Mr. Jackson was fired immediately following the accident 

by individuals who saw or knew anything but that there was a 

bulldozer with rocks on it. 

MSHA's counsel did not dispute the fact that the respondent has a policy that culpable employees will be discharged 

in the event of property damage. However, counsel contended 

that this policy is followed as a matter of convenience in 

order to permit the respondent to terminate employees when 

there is only an inference of negligence on the employee's 

part. Counsel argued that the respondent has stated no basis 

for the determination that Mr. Jackson had any culpability in 

the damage to the bulldozer. 

MSHA's counsel conceded that Mr. Jackson has a 10 percent 

disability as a result of the injuries sustained by the accident. However, counsel took the position that the fact that 

Mr. Jackson may have state workmen's compensation claims pending in connection with his loss of hearing, and certain back 

and eye injuries stemming from the accident, this is no basis 

for concluding that he is not physically able to return to the 

work he was performing prior to his discharge (Tr. 67-69). 

However, counsel stated that "the question of ear protection 

and the like is something that may be worth delving into" (Tr. 

67). He then suggested that Mr. Jackson may be willing to go 

back to work wearing ear protection, and assuming he were to 

"undertake whatever risk is involved, perhaps he should be 

allowed to do so" (Tr. 68). Counsel also asserted that 

"Mr. Jackson didn't say he had no compunction about operating 

in unsafe conditions, equipment, and was quite willing to do 

so" (Tr. 69). 

MSHA's counsel recognized that in the event the respondent can establish that it would have fired Mr. Jackson based 

on a reasonable belief that his negligence caused the accident which resulted in damage to the bulldozer, regardless of 

any protected activity, the issue of supervening motivation 

would have to be resolved. However, counsel maintained that 

the evidence produced here does not provide a basis for concluding that Mr. Jackson was culpable, and that MSBA has met 

its burden (Tr. 190-193). Counsel suggested that its possible that the respondent's conclusion that Mr. Jackson was 

393 
culpable may simply be a convenient basis on which to discharge a person who has made substantial safety complaints 

and who, operating a piece of equipment which was unsafe, was 

almost killed on company property JTr. 195). 

The respondent's motion to dismiss was taken under 

advisement (Tr. 197). 

Findings and Conclusions 

Although I cannot conclude from all of the evidence and 

testimony adduced during the reinstatement hearing that 

Mr. Jackson's claim of discrimination is frivolous or totally 

lacking in merit, I do conclude and find that the respondent 

has established that there is a serious question concerning 

Mr. Jackson's physical condition and ability to perform the 

duties of a bulldozer operator if he were to be temporarily 

reinstated pending the adjudication of the merits of his 

claim. I also conclude and find from the documentary ev.idence presented by the respondent that the temporary reinstatement of Mr. Jackson at this time will place him in a 

working environment where there is a real potential for 

further injury and exacerbation of his prior injuries and 

claimed existing loss of hearing. 

In support of its argument that Mr. Jackson is physically unable to fully perform his job, the respondent has 

presented documentary evidence consisting of doctor's statements and reports, and compensation claims filed by 

Mr. Jackson before a state workers compensation court. 

Mr. Jackson has apparently retained counsel to represent him 

in those proceedings, and as of the reinstatement hearing, 

the claims were still pending for adjudication. MSHA's evidence to the contrary consists of two recently obtained statements that Mr. Jackson is free to return to work. For the 

reasons which follow, I have given greater weight to the 

statements produced by the respondent, and little weight to 

the "work release" forms produce by MSHA. I believe it is 

obvious that these forms, one of which deals with an ulcer 

condition, were obtained in an effort to summarily convince 

me that Mr. Jackson is physically able to return to work. 

There is no evidence that the doctors who executed the 

work releases obtained by Mr. Jackson at the request of MSHA's 

counsel a day or so before the reinstatement hearing were even 

aware of his claimed loss of hearing due to equipment noise 

exposure, and MSHA's counsel conceded that the doctor's were 

probably unaware of the condition when they signed the release 

statements. A copy of Mr. Jackson's claim filed with the 

394 
worker's compensation court on January 21, 1986, (exhibit 

R-2), a week or so before the hearing, reflects that he suffers from "tennitis or ringing in the ears" as a result of 

loud equipment noises. In response to a question on the claim 

form regarding any pre-existing disabilities, Mr. Jackson 

answered in the affirmative and indicated that his compensation case for injuries to his "back and various parts of body" 

is still pending in court. 

One of the work releases dated February 3, 1986, is from 

the doctor who treated Mr. Jackson for an ulcer condition, 

and a second one is from the chiropractor who treated him for 

his neck, shoulder and back injuries. I note that the "return 

to work" slip (exhibit C-1) signed by this doctor states that 

Mr. Jackson is able to return to work on November 5, 1985, 

with no restrictions. This is in direct conflict with this 

same doctor's discharge report of November 5, 1985, a copy of 

which was filed with the state workers compensation court on 

January 14, 1986 {exhibit R-4). That report states in pertinent part as follows: 

Mr. Jackson has suffered a severe injury 

of the supportive ligaments of the cervical 

thoracic spine, which predispose this patient 

to reoccuring exacerbation of symptoms and 

reiPjury. * * * Mr. Jackson has remained temporarily and totally disabled for employment 

as a result of his injury which occurred on 

09-09-85. 

In a letter dated November 21, 1985, from the same chiropractor to Mr. Jackson's attorney, the doctor stated in pertinent part as follows: 

It is my professional opinion, from the 

examination findings, and this patient's severity of symptoms, that he will require periodic 

care for the rest of his life as a result of 

these injuries. He probably will experience 

chronic reoccurring symptoms. * * * Mr. Jackson 

has 10 percent permanent impairment of the 

whole man as the result of the injuries he sustained on the job on 09-09-85. 

The testimony and evidence adduced in this case with 

respect to the procedure of "slot dozing" refl.ects that a 

dozer operator is constantly maneuvering his machine back and 

forth while cutting into the overburden, and the machine is 

not always on level ground. It maneuvers over grades and 

395 
slopes while controlling the materials, and the operator is 

obviously subjected to constant jostling, particularly if his 

seat belt is not fastened. In this ·case, the evidence establishes that at the time of the accident. Mr. Jackson was operating his machine alone and was not under observation. As a 

matter of fact, after the accident, he had to crawl out of 

his machine and wait for someone to arrive on the scene. 

Under these circumstances, and given Mr. Jackson's physical 

disability and prior injuries, I conclude that temporary reinstatement to his prior job will expose him to a real potential for further injury. 

The fact that Mr. Jackson may be willing to assume the 

risk of further aggravating his loss of hearing, or to risk 

further injury to his back and neck, is no reason to discount 

his injuries and disabilities. Aside from Mr. Jackson's physical well being, the respondent has a right to protect itself 

against further liability in the event that Mr. Jackson is 

reinjured. Simply because Mr. Jackson may be willing to· 

place himself in further jeopardy, or is willing to work 

under conditions which he knows are unsafe, is no justif ication for granting temporary reinstatement. 

Mr. Jackson has candidly admitted that he has in the 

past exposed himself to unsafe work conditions, but continμed 

to work because of his opinion that he would lose his job if 

he did otherwise. Respondent presented testimony that 

Mr. Jackson has been cautioned in the past about the use of 

seat belts and wearing his hard hat on the job. Under these 

circumstances, I believe one may reasonably assume that in 

the event Mr. Jackson were to be temporarily reinstated, he 

will again take further risks which may lead to disastrous 

results. Even if Mr. Jackson did not take such risks, given 

his disability and injuries as reflected in the medical documentation adduced during the hearing, the potential for 

further injury while operating a bulldozer is real and present and cannot be discounted. 

Although I recognize that Mr. Jackson is not presently 

gainfully employed, in the event he prevails on the merits of 

his discrimination complaint, he will be entitled to be made 

whole and to receive back-pay. However, I cannot in good 

conscience disregard the consequences which may result from 

his temporary reinstatement at this time, nor can I disregard 

the attendant potential liability to the respondent for reinstating an employee with known physical conditions or impairments which resulted from injuries suffered in the course of 

his prior employment. 

396 
In view of the foregoing, MSHA's request for the temporary reinstatement of Mr. Jackson IS DENIED. A hearing on the 

merits of the discrimination complaint will be docketed in 

the near future, and the parties will be notified accordingly. 

Distribution: 

4~~ d/ Koutras 

4~~ Administrative Law Judge 

Frederick W. Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

Robert Petrick, Esq., North Highway 69, P.O. box 447, 

Muskogee, OK 74402 (Certified Mail) 

/f b 

397 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

March 19, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MICHIGAN SILICA COMPANY, 

FORMERLY KNOWN AS 

OTTAWA SILICA COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 85-67-M 

A.C. No. 20-00608-05511 

Michigan Silica Company 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a civil penalty proposal filed by 

the petitioner against the respondent pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 820(a) v seeking a civil penalty assessment in the amount of 

$500 for a violation of section 105(c) (1) of the Act. The 

respondent contested the alleged violation and proposed civil 

penalty, and the case was docketed for a hearing on the merits. 

However, the parties have now submitted a proposed settlement 

pursuant to 29 C.F.R. § 2700.30, and the respondent has agreed 

to pay $250 for the violation in question. 

The violation in this case is the result of a discrimination 

complaint filed by MSHA against the respondent in 1981. My 

decision upholding the complaint was issued on June 3, 1982, 

4 FMSHRC 1013, and on appeal it was affirmed by the Commission 

at 6 FMSHRC 516 (March 1984). On November 11, 1985, the U.S. 

Court of Appeals for the Sixth Circuit affirmed the Commission's 

decision that the respondent violated section 105(c) (1) of the 

Act, Secretary of Labor v. Michigan Silica Company, Formerly 

Known as Ottawa Silica Company, Case No. 84-3859, 6th Cir. (1985). 

398 
The parties state that they have discussed the agreed upon 

settlement, and I have reviewed the pleadings and am familiar 

with all of the facts and circumstances since I presided at the 

discrimination hearing and adjudicated the merits of that case. 

In support the reduction of the proposed civil penalty in 

this case, the parties assert that they wish to settle the matter 

in order to avoid the additional expense of litigation. I note 

that the respondent has already incurred great expenses in the 

litigation of the case and has paid in excess of $40,000 for back 

wages and other benefits to the employee who was ordered reinstated to his job. 

After careful and further consideration of this matter, I 

conclude and find that the proposed settlement is reasonable and 

in the public interest. Accordingly, pursuant to 29 C.F.R. 

§ 2700.30, the settlement IS APPROVED, and the petitioner's 

motion seeking my approval IS GRANTED. 

ORDER 

The respond~nt IS ORDERED to pay a civil penalty in the 

amount of $250 for the violation in question. Payment is to be 

made to MSHA within thirty (30) days of the date of this decision 

and order, and upon receipt of payment, this matter is dismissed. 

The hearing scheduled for April 10, 1986, is cancelled. 

~~.i~ Administrative Law Judge 

Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department 

of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 

60604 (Certified Mail) 

Robert Oren, Vice President, Industrial Relations, Michigan 

Silica Company, P.O. Box 577, Ottawa, IL 61350 (Certified Mail) 

/fb 

399 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

March 21, 1986 

DISCRIMINATION 

MINE SAFETY AND HEALTH . . PROCEEDING 

ADMINISTRATION (MSHA), . . Docket No. CENT 85-99-D 

On Behalf of 

BARRY L. WEAVER, . . Alpine No. 4/7 

Complainant . . v. Jerrett Canyon 

ALPINE CONSTRUCTION COMPANY, 

Respondent . . 

DECISION AND ORDER APPROVING 

SETTLEMENT AND DISMISSING PROCEEDING 

Before: Judge Lasher 

Mine 

Project 

The parties have reached an agreement in the above 

proceeding, the intent of which is to settle all of Complainant's 

claims. Pursuant thereto, Respondent, without admitting a 

violation, agrees to pay Barry L. Weaver the sum of $3,746.68 as 

back wages and interest, Mr. Weaver waives any right to reinstatement and to reapply for employment with Respondent, and 

the Secretary waives assessment of a civil penalty. 

The s·ettlement appearing reasonable and just in the 

premises, the same is approved. 

ORDER 

Cl) On or before 30 days from the date hereof, Respondent 

shall pay Barry L. Weaver the sum of $3,746.68. 

(2) This proceeding is dismissed. 

/ / 

~~ . / / /./""'/,./~~/~.,,. 7,1'.1::-::~'-1' pt/~~~ ;::;-:::. 

Michael A. Lasher, Jr. 

Administrative Law Judge 

400 
Distribution: 

Mr. Barry L. Weaver, Route 5, Box 144, McAlester, OK 74501 

(Certified Mail) 

Jill D. Klamm, Esq., Office of the Solicitor, U.S. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Ed Edmondson, Esq., 416 Court Street, P.O. Box 11, Muskogee, OK 

74402-0011 (Certified Mail) 

Alpine Construction Company, P.O. Box 339, Stigler, OK 74462 

(Certified Mail> 

/blc 

401 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JOSEPH CRACCO, 

Respondent 

March 21, 1986 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 85-123-M 

A.C. No. 39-00055-05551 A 

Homestake Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

This js a civil penalty proceeding initiated by the 

petitioner against the respondent pursuant to Section llO(c} of 

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

§ 820(c). 

Prior to a hearing, the petitioner filed a motion seeking 

approval of a settlement agreement entered into by the parties. 

l. The agreement reflects that at all times mentioned 

herein respondent was acting as master ropeman and foreman at the 

gold mine operated by the Homestake Mining Company in Lead, South 

Dakota. 

2. On July 25, 1984 MSHA issued Citation 2097234 against 

the corporate mine operator alleging a violation of 30 C.F.R. 

§ 57.15-5. Subsequently, the corporate operator paid a civil 

penalty of $8,000 for the foregoing violation. 

3. Thereafter, MSHA charged respondent with having 

knowingly authorized, ordered or carried out the corporate mine 

operator's violation as an agent of said operator. A civil 

penalt~ of $1,000.00 was propos~d. 

4. Subsequently, respondent proposed that the case be 

settled for the amount of $750. 

5. In mitigation petitioner states that respondent had been 

acting as a temporary foreman for only a short period of time. 

Under these circumstances and in consideration of the criteria 

contained in Section llO(i) of the Act I find that the proposed 

settlement is reasonable and in the public interest. 

402 
Accordingly, I enter the following: 

ORDER 

1. The settlement agreement is approved. 

2. The petition to assess a civil penalty is affirmed. 

3. A civil penalty of $750 is assessed. 

~~~ hn J. ris 

minis tive Law Judge 

Distribution: 

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

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Robert A. Amundson, Esq., Amundson, Fuller & Delaney, 203 West 

Main Street, P.O. Box 898, Lead, SD 57754 (Certified Mail) 

/blc 

403 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th .FLOOR 

5203 LEESBURG PIKE 

.. FALLS CHURCH, VIRGINIA 22041 

March 24, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

Petitioner 

v. 

RICHARDS COAL COMPANY, 

and 

MYLU COAL COMPANY, INC., 

Respondents 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 85-69 

A.C. No. 34-01404-03505 

Docket No. CENT 85-70 

A.C. No. 34-01404-03506 

Taft No. 1 Mine 

SUMMARY DECISIONS AND ORDERS 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern civil penalty proposals filed by 

the petitioner against the respondents 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 in. the amount of $200 

for three alleged violations of certain mandatory standards 

found in Parts 50, 71, and 77, Title 30, Code of Federal 

Regulations. 

The proposed civil penalty assessments were mailed to the 

respondents by the petitioner on May 28, 1985. However, the 

respondents have failed to f any answers, and subsequent 

orders requiring them to answer have been returned by the postal 

service as undeliverable. 

By letter dated March 13, 1986, petitioner's counsel advised 

me that she was informed by the MSHA Subdistrict Off ice in 

McAlester,.Oklahoma, that the Mylu Coal Company was the unsuccessful successor of the Richards Coal Company and that the mine 

has been abandoned since at least ,July, 1985. Counsel also 

advised that all mobile equipment has been removed from the 

property and the mine has been placed in a nonproducing status. 

404 
Discussion 

The respondents have failed to answer the proposals for 

assessment of civil penalties as required by Commission Rule 

29 C.F.R. § 2700.28. ! They have also. failed to respond to the 

subsequent orders issued by me and_by Chief Judge Merlin. Under 

the circumstances, I conclude and find that the respondents are 

in default, and that these proceedings may be disposed of pursuant to the Commission's summary disposition procedures pursuant to 29 C.F.R. § 2700.63. 

ORDER 

In view of the respondents default, and pursuant to the 

provisions of 29 C.F.R. § 2700.63(b), the respondents are jointly 

and severally assessed civil penalties for the violations in 

question, as follows: 

CENT 85-69 

Citation No. 

9947:390 

CENT 85-70 

Citation No. 

2218437 

2218639 

Date 

11/27/84 

Date 

12/19/84 

1/7/85 

30 C.F.R. Section 

71. 802 

30 C.F.R. Section 

50.30(a) 

77.170l(a) 

Assessment 

$ 106 

Assessment 

$ 20 

$ 74 

The respondents ARE ORDERED to pay the civil penalties in 

the amounts shown above for the violations in question, and 

payment is to be made to MSHA within thirty (30) days of the 

date of these decisions and order. 

4.~~ ~istrative Law Judge 

Distribution: 

Jill Klamm, Esq., Office of the Solicitor, U.S. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Rick Curry, Officer in Charge of Safety and Health, Mylu 

Coal Company, Inc., 1218 Foxcroft Circle No. 7, Muskogee, OK 

74401 (Certified Mail) 

Mr. Randy Hair, Richards Coal Mine, P.O. Box 2788, Muskogee, 

OK 74402 (Certified Mail) 

/fr 

405 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 March 24, 198 6 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

REIDHEAD SAND & ROCK, INC., 

Respondent 

: CIVIL PENALTY PROCEEDING . . 

. . 

. . 

. . 

Docket No. WEST 85-156-M 

A.C. No. 02-01398-05502 

Reidhead Sand & Rock, Inc. 

DECISION 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Petitioner. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administation, (MSHA), charges respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 U.S.C. § 801 et seg., (the Act). 

After notice to the parties, a hearing on the merits took 

place in Phoenix, Arizona on January 29, 1986. 

Respondent failed to appear at the hearing and further 

failed to reply to an order to show cause issued after the 

hearing. 

Summary of the Case 

Gary Day, an MSHA supervisory mine inspector since 1975, 

inspected respondent on March 28, 1985 CTr. 3). 

·on that occasion he observed that a 16 foot wide roadway, or 

ramp, lacked berms or guards. The ramp provides the only access 

to a dump hopper1 further, it was elevated on a repose of zero to 

five feet <Tr. 5, 8}. 

A ten foot wide front-end loader travels the ramp to dump 

material into the hopper (Tr. 5). The loader, which weighed 

several tons, had a ten foot wide bucket with six foot tires (Tr. 

6). The loader travels forward with the bucket elevated, then it 

backs down after dumping its load CTr. 7). 

406 
The foregoing facts caused the inspector to issue Citation 

2087473 for a violation of 30 C.F.R. § 56.9022. The cited 

regulation provides as follows~ 

Berms or guards. Berms or guards shall be provided on 

the outer bank of elevated roadways. 

Inspector Day further observed that there was no handrail to 

serve as a guard for the conveyor. In addition, there was no 

emergency stop cord device along this waist high walkway which! 

was adjacent to the rollers of the conveyor (Tr. 9, 10}. Various 

workers use the walkway to service and inspect the conveyor (Tr. 

10) • 

The foregoing facts 9aused the inspector to issue Citation 

2087474 for a violation of 30 C.F.R. § 56.9007. The cited 

regulation provides as follows! 

Unguarded conveyors with walkways shall be equipped 

with emergency stop devices or cords along their full 

length. 

Discussion 

The facts establish a violation of each regulation. 

There.were no berms or guards on the outer edges of the 

elevated roadway. Accordingly, the initial citation was properly 

issued. 

Concerning the second citation: the evidence establishes 

that the conveyor along part of its walkway was unguarded. In addition~ the walkway lacked an emergency stop device or cord. 

The citations should be affirmed. 

Civil Penalties 

The criteria to assess civil penalties is set forth in 

Section llO{i) of the Actu now 30 u.s.c. § 820(i). It provides 

as follows~ 

The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil monetary 

penalties, the Commission shall consider the operator 1 s history 

of previous violations, the appropriateness of such penalty to 

the size of the business of the operator charged, whether the 

operator was negligent, the effect on the operator's ability to 

continue in businessc the gravity of the violation, and the 

demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

407 
Concerning the foregoing criteria: since it was favorable to 

respondent the judge accepted counsel's representation that the 

operator's history was relatively good inasmuch as the company 

had only two prior citations. In addition, the operator abated 

the violative conditions (Tr. 4). The evidence also indicates 

that the imposition of a penalty would not impair the operator's 

ability to continue in business (Tr. 8). The operator was 

negligent since both of the violative conditions were open and 

obvious. The gravity of each violation was high since a fatality 

could result: however, the inspector indicated that it was 

"reasonably unlikely" that an accident would occur. 

The Secretary argues that the Commission should not be 

bound by MSHA' s characterizations of the violations as non s & i .. :. 

Therefore, it is asserted that the automatic twenty dollar 

penalty as proposed here is not appropriate (Tr. 13, 14). 

I agree that the Commission is not bound by the MSHA formula. 

Sellersburg Stone Company v. FMSHRC, 736 F.2d 1147, 1152 C7th 

Cir. 1984). However, in this case the evidence indicates the 

exposure to the loader operator was minimal. The loader only 

traveled 25 to 30 feet to where it dead-ended into the hopper. 

In connection with the unguarded conveyor, I note there was a 

handrail which served as a guard on a portion of this walkway. 

Apparently only a small portion was unguarded. 

On balance, I deem that the proposed penalties are 

appropriate. 

Conclusions of Law 

Based on the antire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated 30 C.F.R. § 56.9022 and§ 56.9007. 

3. The citations and the proposed civil penalties therefor 

should be affirmed. 

ORDER 

Based on the foregoing facts and conclusions of law I enter 

the following order: 

1. Citation 2087473 and the proposed penalty of $20 are 

affirmed. 

408 
2. Citation 2087474 and the proposed penalty of $20 are 

affirmed. 

3. Respondent is ordered to pay to MSHA the sum of $40 

within 40 days of the date of this decision. 

~~~ hn J. lS 

minist tive Law Judge 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department of Labor, 11071 Federal Building, 450 Golden Gate Avenue, 

San Francisco, CA 94102 (Certified Mail) 

Reidhead Sand and Rock, Inc., Mr. Jack Zellner, General Manager, 

P.O. Box 7, Taylor, AZ 85938 (Certified Mail) 

/blc 

409 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 24, 1986 

DISCIPLINARY PROCEEDING Docket No. D 86-1 

Appearances: 

Before: 

DECISION 

Timothy W. McAfee, Esq., Norton, Virginia; 

James B. Leonard, Esq., Arlington, Virginia 

for the Secretary of Labor. 

Judge Merlin 

This disciplinary proceeding is before me pursuant to order 

of the Commission dated January 8, 1986. A hearing was held on 

March 7, 1986. 

The matter was initially referred to the Commission pursuant 

to Commission Procedural Rule 80, 29 C.F.R. § 2700.80 l/ for 

ll Rule 80 provides in pertinent part: 

Standards of conduct; disciplinary proceedings. 

(a) Standards of conduct. Individuals practicing 

before the Commission shall conform to the standards of 

ethical conduct required of practitioners in the courts 

of the United Stateso 

(b) Grounds. Disciplinary proceedings may be 

instituted against anyone who is practicing or has 

practiced before the Commission on grounds that he 

has engaged in unethical or unprofessional con- duct~ 000 or that he has violated any provisions of the laws and regulations governing practice 

before the Commission •••• 

(c) Procedure. o•• [A] Judge or other person 

hgving knowledge of circumstances that may warrant 

disciplinary proceedings against an individual who 

is practicing or has practiced before the Commission, 

shall forward such information, in writing, to the 

Commission for action. Whenever in the discretion 

of the Commission, by a majority vote of the members 

present and voting, the Commission determines that 

the circumstances reported to it warrant disciplinary 

proceedings, the Commission shall either hold a 

hearing and issue a decision or refer the matter to 

a Judge for hearing and decision •••• 

29 C.F.R. § 2700.80. 

410 
disciplinary consideration by Administrative Law Judge 

George A. Koutras due to the failure of attorney 

Timothy W. McAfee to appear at a scheduled hearing on October 3, 

1985, in a civil penalty proceeding under the Federal Mine Safety 

and Health Act of 1977. 

On July 10, 1985 Judge Koutras issued a Notice of Hearing in Secretary of Labor v. White Oak Coal Company, (Docket No. VA 

85-21) which was a civil penalty proceeding under the Federal 

Mine Safety and Health Act of 1977 The notice concluded with 

the following instruction: 

Any proposed settlements filed later than the 

ten-day period noted above will be rejected and the 

parties will be expect~d to appear at the scheduled 

trial of the case. 

Mr. McAfee was not engaged as counsel for the operator until 

after July 10. But he was in the case on August 12 when he sent 

Judge Koutras the operator 1 s response to the Secretary 1 s Request for Admissions. 

On August 30 Mr. McAfee and Mr. Mark R. Malecki, the Solicitor representing the Secretary of Labor, instituted a conference 

call with Judge Koutras. Pursuant to request of counsel Judge 

Koutras continued the hearing for several weeks and changed the 

hearing site. Mr. McAfee testified at the disciplinary hearing that prior to the conference call he was told by Mr. Malecki 

about the Judge's 10-day requirement (Tr. 9-10). Also at the 

disciplinary hearing, Mr. Malecki described the discussion of the 

10-day requirement during the conference call itself (Tr. 32). 

On September 3 and September 24, Judge Koutras issued amended 

hearing orders scheduling the hearing for October 3 in Duffield, 

Virginia. Mr. McAfee received copies of these orders. He also 

received from the Judge a letter dated September 10, enclosing a 

letter the Judge had received from the operator. On October 2 

the day before the scheduled hearing, Mr. McAfee and Mr. Malecki 

met in the former•s office to discuss the case. On that occasion 

Mr. Malecki told Mr. McAfee he thought it was too late for a 

settlement in view of the Judge's 10-day requirement (Tr. 23, 30). 

Judge Koutras was mentioned by name (Tr. 30). 

On the day of the hearing, October 3, at 7:30 a.m., the 

operator telephoned Mr. McAfee advising that he would pay 

the penalty of $500 proposed by the Mine Safety and Health Administration (MSHA), and would not come to the hearing. 

Mr. McAfee then telephoned Mr. Malecki and told him that the 

operator was willing to pay MSHA 1 s proposed penalty and that in 

light of this he saw no need to appear at the hearing (Tr. 6, 33). 

Mr. Malecki said he did not know what Judge Koutras would do, but 

411 
that in light of the 10-day requirement he doubted the Judge 

would approve the settlement of $500 and that he might have to 

put on his case (Tr. 33-34). As Mr. Malecki predicted, Judge 

Koutras proceeded with the hearing. 

On the next day, Judge Koutras issued an order directing 

Mr. McAfee to show cause within 10 days why he should not be 

referred to the Commission for disciplinary action pursuant to 

29 C.F.R. § 2700.80 for his failure to appear at the hearing and 

for his failure to advise the presiding Judge that he would not 

appear. In his response filed October 17, Mr. McAfee stated that 

at the time the operator telephoned him on October 3 he did not 

have the file which reflected who the administrative law judge 

was and only knew where the Solicitor was staying. In the cover 

letter to his response Mr. McAfee asked Judge Koutras what disciplinary rule he had violated so he could further respond to the 

show cause order. On the same day Judge Koutras replied, citing 

29 C.F.R. 2700.80(c) and giving Mr. McAfee a copy of the Commission1s decision in Disciplinary Proceedings, 7 FMSHRC 623 

(1985). The Judge gave Mr. McAfee an additional 10 days to 

respond, stating as follows: 

The purpose of the show-cause order is to 

afford you an opportunity to explain your failure 

to appear at the scheduled hearing in this matter, 

or to advise me that you would not appear. Upon 

receipt of your reply, I will then determine 

whether or not to refer the matter to the Commission 

for possible disciplinary action pursuant to its 

rules. 

Mr. McAfee did not respond further an~, as already noted, Judge Koutras referred the matter to the Commission in his 

decision dated December 4, 1985. 

In his petition to the Commission, Mr. McAfee again stated 

that on the morning of October 3 he did not know the name of the 

Judge and asserted that any implication to the contrary was 

unfounded. 

It is difficult to accept Mr. McAfee's assertion that on 

October 3 he did not know Judge Koutras' name. Between August 30 

and October 3 he participated in a telephone conference call with 

the Judge and received two orders and a letter from him. And on 

the day before the hearing Judge Koutras was referred to by name 

in the meeting Mr. McAfee had with Mr. Malecki. But even accepting Mr. McAfee 1 s proferred excuse and viewing this aspect of 

the matter in the light most favorable to him, he could have obtained the Judge's name from Mr. Malecki when he spoke to 

Mr. Malecki on the morning of October 3. It is clear from Mr. 

McAfee's testimony at the disciplinary hearing that he did not 

412 
obtain Judge Koutras' name or call him because the operator had 

agreed to pay MSHA's proposed penalty of $500 (Tr. 16~17). According to Mr. McAfee it did not occur to him that the Judge would have any objection to an uncontested settlement (Tr. 17). 

This explanation cannot be accepted as a valid excuse for not 

appearing at the hearing. Mr. McAfee knew about the Judge's 

10-day requirement. At the meeting on the day before the 

hearing, Mr. Malecki told Mr. McAfee he thought it was already 

too late for a settlement in light of the 10-day requirement (Tr. 

30). And when Mr. McAfee spoke with Mr. Malecki on the morning of October 3, Mr. Malecki expressed the view that Judge Koutras 

would not approve the settlement and that he would have to put on 

his case (Tr. 33). At this point, both counsel were speaking about a settlement of $500, MSHA's proposed penalty. Accordingly, on the morning of October 3 Mr. McAfee knew that despite the operator's willingness to pay $500, his appearance was 

required and a good chance existed the hearing would go forward. 

Nevertheless, Mr. McAfee deliberately chose to disregard the 

Judge's orders and did so without bothering to personally notify 

him. 

At the disciplinary hearing, Mr. McAfee stated he was unaware that a Commission Judge does not have to accept a proposed 

settlement even if it is for MSHA's proposed amount {Tr. 13). 

This asserted lack of knowledge is reject~d in view of the advice 

Mr. McAfee received from Mr. Malecki that the hearing would pro- bably go on despite operator acceptance of the $500 penalty. In 

any event, such ignorance, even if true, cannot justify the 

failure to appear. As an attorney undertaking to act in cases 

under the Mine Safety Act, Mr. McAfee can be expected to be conversant with one of the most elementary principles governing 

these proceedings, i.e., the Judge 1 s de novo authority in penalty 

cases. Sellersburg Stone Company v. Federal Mine Safety and 

Health Review Commission, 736 F.2d 1147 (7 Cir. 1984). In this 

case after the hearing at which on~y the Solicitor appeared, the 

Judge issued a decision exercising his de nova authority and 

assessing a penalty of $600. No appeal-Wastaken. Of course, 

one does not know what would have happened if Mr. McAfee had 

appeared and cross-examined MSHA's witnesses. But he certainly did his client no service by his absence, leaving the Judge to 

decide the matter on a one-sided record. 

Moreover, after being advised at the disciplinary hearing of 

the Judge's de nova authority in penalty cases, Mr. McAfee 

expressed noregret for his ignorance of applicable law or for 

his failure to appear, but rather stated that it was "disturbing" 

to ~im that a Judge would act the way Judge Koutras did. 

Mr. McAfee consistently has denied any responsibility and 

has instead criticized the Judge. In his petition to the Commission, Mr. McAfee asserted that Judge Koutras was incorrect in 

stating that he failed to respond. At the disciplinary hearing 

it was explained to Mr. McAfee that Judge Koutras was not 

413 
referring to the show cause order dated October 4 but to his 

subsequent letter of October 17. Mr. McAfee then stated: 

"I had already answered the man. And, he 

wanted me to answer him more and I didn 1 t have 

any more to tell him 11 (Tr. 19). 

Mr. McAfee 1 s criticism of the tone of Judge Koutras' orders 

and letter is unfounded (Tr. 19). If the orders and letter 

indicate anything, it is that the Judge was giving Mr. McAfee 

every chance to explain his failure to appear. Insofar as 11 tone 11 

is concerned, Mr. McAfee's written responses and oral testimony 

demonstrate irritation and impatience. 

As an attorney appearing before a Commission Judge, 

Mr. McAfee was bound not to disregard any of his orders or 

rulings. Disciplinary Rule 7-106 of the Code of Professional 

Responsbility. But far from showing any sense of obligation to 

comply with the Judge 1 s orders Mr. McAfee's lack of respect is 

evident from his statement at the disciplinary hearing: 

11 Well, ! 1 11 be happy.to submit this to the 

Virginia State Bar and allow them to discipline 

me as they see fit. But I don't feel like I've 

violated any disciplinary rule or any 

ethetical [sic] consideration" (Tr. 20). 

In addition to his refusal to acknowledge his professional 

obligations, Mr. McAfee also fails to understand that this Commission like any other institution in which lawyers or other professionals participate, has authority to police the behavior of 

practitioners appearing before it. Polydoroff v. I.C.C., 773 

F.2d 372 (D. C. Cir. 1985). It would be impossible for the 

judges of this Commission to function if, as in this case, their 

orders were ignored with impunity and they themselves were held 

in such low regard by attorneys who practice before them. 

In addition, Commission Judges travel at public expense to 

hearing sites convenient to the parties 29 C.F.R. § 2700.51. 

That is what the Judge did in this case and Mr. McAfee knew it. 

But this factor obviously meant nothing 9 and as the record of the 

disciplinary hearing disclose$~ still means nothing to Mr. McAfee 

(T r .· 1 7 -18 ) • 

The mere fact of counsel 1 s absence from the hearing would 

not warrant disciplinary action if the absence resulted from good 

cause or excusable neglect. Thyssen Inc. v. S/S Chuen On, 693 

F.2d 1171 (5 Cir. 1982). In light of the circumstances set forth 

herein, I find that there was no good cause or excusable neglect. 

Mr. McAfee intentionally failed to appear although he knew his 

presence was required, had not been excused and that the case 

might well proceed in his absence. 

414 
I am aware that this is the first Commission case in 

which Mr. McAfee nas appeared and that this circumstance could be 

considered in mitigation. Disciplinary Proceedings, 7 FMSHRC 623 

(1985). However, I conclude this is not an appropriate case for 

mitigation of disciplinary action. Mr. McAfee 1 s inexperience was 

taken into account at the disciplinary hearing where applicable 

law was explained to him at length. ~ut even then, he did not 

apologize or express regret either for his lack of knowledge or 

for his failure to appear. Throughout, his attitude toward this 

Commission and the Judge has been one of contempt and defiance. 

In light of the foregoing, attorney Timothy W. McAfee is 

hereby REPRIMANDED and is hereby SUSPENDED from practicing before 

this Commission for a period of 60 days for unprofessional 

conduct in deliberately failing to appear at a hearing duly scheduled pursuant to orders of an Administrative Law Judge of 

the Commission. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

James B. Leonard, Esq., Office of the Solicitor, U. S. Department 

of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203 

(Certified Mail) 

Mark R. Malecki, Esq., Office of the Solicitor, U. S. Department 

of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington. VA 22203 

(Certified Mail) 

Timothy W. McAfee, Esq.~ Cline, McAfee & Adkins, Professional 

Arts Building. 1022 Park Avenue, N.W., Norton, VA 24273-0698 

(Certified Mail) 

Mr. Jerry Deel, Route 2, Box 54, Haysi. VA 24256 (Certified 

Mai 1 ) 

/g1 

415 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

. FALLS CHURCH, VIRGINIA 22041 

March 25, 1986 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

: Docket No. CENT 85-129-M 

: A.C.-No. 41-03217-05505 

: 

WHITNEY SAND & GRAVEL 

INCORPORATED, 

Respondent 

: Docket No. CENT 86-14-M 

: A.C. No. 41-03217-05506 . . 

: Whitney Sand & Gravel 

Appearances: 

Before: 

: Incorporated 

DECISIONS 

Allen Reid Tilson, Esq., Office of the 

Solicitor, U.S. Department of Labor, Dallas, 

Texas, for the Petitioner; 

John E. Agnew, Esq., Carter, Jones, Magee, 

Rudberg & Mayes, Dallas, Texas, for the 

Respondent • 

. Judge Koutras 

Statement of the Proceedings 

~hese proceedings concern proposals for assessment of 

civil penalties filed by the petitioner against the respondent pursuant to section llOCa) of the Federal Mine Safety 

and Health Act of 1977. The petitioner seeks civil penalty 

assessments for three alleged violations of certain mandatory 

safety standards found in Part 56, Title 30, Code of Federal 

Regulations, and one violation of the reporting requirements 

30 C.F.R. § 50.30Ca). 

The respondent filed timely answers to the petitioner's 

proposals, and a hearing was conducted in Dallas, Texas. The 

parties waived the filing of posthearing arguments or briefs, 

but I have considered any oral arguments made on the record. 

416 
Issues 

The primary issue presented is ·whether or not the respondent violated the cited safety staadards, and if so, the 

appropriate civil penalties which should be assessed taking 

into account the civil penalty assessment criteria found in 

section llOCi) of the Act. Additional issues raised by the 

parties are discussed 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. § 820Ci). 

3. Commission Rules, 29 C.F.R. § 2700.l et seg. 

Stipulations 

The respondent agreed that its plant is a "mine" within 

the meaning of the Act, and it agreed that the plant and the 

company are subject to MSHA's enforcement jurisdiction, and 

to the jurisdiction of the Mine Safety and Health Review 

Commission. 

Discussion 

Docket No. CENT 85-129-M 

Section 104Ca> "S&S" Citation No. 2240701, February 14, 

1985, cites an alleged violation of 30 C.F.R. § 56.12025, and 

the condition or practice is stated as follows: "The wet 

process screening plant was not grounded in that there was no 

low impedance path back to the electrical source which 

supplies power to all plant drive motors. Employees are 

required to come in contact with the plant equipment during 

operation. ue 

Section 104Ca) "S&S" Citation No. 2240702, February 14, 

1985, cites an alleged violation of 30 C.F.R. § 56.12028, and 

the condition or practice is stated as follows: "Continuity 

and resistance of grounding systems test has not been performed at this plant. 11 

Docket No. CENT 86-14-M 

Section 104(a} "S&S" Citation and 107Ca} imminent danger 

Order No. 2241058, August 15, 1985, cites an alleged violation of 30 C.F.R. § 56.9003, and the condition or practice is 

stated as follows: "The Allis-Chalmers Loader, Co. i 514 was 

not provided with operable foot brakes that would stop the 

417 
unit on level ground. Loader is used to load truck and perform clean-up in the plant area. Moderate foot and truck 

traffic is present in the working ar.ea." 

Section 104(a) Citation No. 2241214, September 9, 1985, 

cites an alleged violation of 30 C.F.R. § 50.30(a), and the 

condition or practice is described as follows: "The operator 

had failed to submit Form 7000-2 Quarterly Employment and 

Production Reports for the First and Second Quarters of 

FY 1985 as required." 

Testimony and Evidence Adduced by the Petitioner 

Docket No. CENT 85-129-M 

MSHA Inspector Michael Sanders testified as to his background, training, and experience and he confirmed that he has 

been employed as an inspector since 1977. He confirmed that 

he conducted inspections at the respondent's plant on 

February 14, and August 11, 1985. He described the respondent's operation as a sand processing plant. He stated that 

sand is mined from an open pit by use of a drag line. The 

sand is loaded and processed through a series of conveyors 

and it is screened, washed, sized, and stockpiled for later 

transportation. The plant employs approximately seven to 

nine people and operates 5 or 5-1/2 days a week, and one 

daily 8-hour shift. 

Mr. Sanders identified exhibits P-1 through P-6 as photographs of the plant and some of the equipment which he took a 

week or so prior to the hearing. He stated that the source 

for all electrical power for the plant is depicted in exhibit 

P-2u and that the electrical lines are routed to the electrical control center shown in exhibit P-1. This control center 

serves as the "electrical nerve center" for the electrical 

equipment such as conveyor drive motors, screens, shakers, 

and conveyor belts. 

Mr. Sanders stated that all of the electrical boxes for 

the plant equipment are located in the control center shed. 

The plant was dpwn at the time of his inspection, and he 

determined that the plant was not properly grounded by simply 

opening the electri~al boxes and observing the absence of a 

ground wire providing a low impedance electrical path back to 

the eletrical source. He did observe a properly grounded 

water pump which had recently been installed. 

Mr. Sanders stated that none of the plant equipment or 

motors in question were battery operated, and he confirmed 

____ ,,. 

418 
that they were all operated from the electrical sources shown 

in the photographic exhibits. Mr. Sanders s·tated that he did 

not physically check each motor, and that his determination 

that the plant was not properly gr~unded could readily be 

observed by opening the electrical boxes and visually observing the lack of a low impedance ground wire. 

Mr. Sanders stated that the plant and the equipment is 

primarily of steel construction an~ that it normally operates 

on 440 volts of power. He believed that the lack of proper 

grounding posed a hazard of electrical shock. In the event 

of an electrical short circuit in the plant wiring, there is 

a potential for "live circuits." In the event someone 

touched the equipment or otherwise contacted it, he could 

receive a shock. The lack of proper grounding, the presence 

of standing water, and the fact that the number 1 and 2 

screens are always wet increased the potential shock hazards. 

Mr. sanders stated that the plant operator, as well as 

two or three other employees, would be exposed to the hazard 

of shock or electrocution. He also stated that when the 

plant was originally installed and wired, it was not wired 

correctly. He conceded that prior MSHA inspections did not 

result in any prior violations for the lack of proper 

grounding. 

Mr. Sanders confirmed that the respondent did not originally install or wire the plant equipment, and it took over 

the operation of the plant from a previous owner in March, 

1984. He also confirmed that it took him 15 to 30 minutes 

during his inspection to detect the violation, and that the 

respondent eventually corrected the condition by completely 

rewiring the plant and installing ground wires on all equipment and motors. This was a ·major project, but he did not 

know how much it cost to properly wire the plant. 

Mr. Sanders stated that he issued Citation No. 22040701 

because of the lack of proper grounding for the plant wiring. 

He used no testing devices to support the violation, and 

relied on his visual observations of the control boxes. 

On cross-examination, Mr. Sanders stated that the "other 

equivalent protection" language provided for in section 

56.12-25, could be the isolation of the electrical circuits. 

Although wire insulation provided a measure of protection, he 

did not believe that the use of such insulation in and of 

itself could serve as "equivalent protection." 

419 
Mr. Sanders confirmed that there were no reported accidents concerning the lack of grounding, and he could not 

state why previous inspections did not result in the issuance 

of any violations for the condition. He also confirmed that 

the condition could have been abated earlier by the respondent, and that his abatement was made after he later visited 

the plant and found that the condition had been correcte~. 

Mr. Sanders stated that a ground fault interceptor circuit could serve as "equivalent protection," but that such an 

alternative was not installed or in use at the time he viewed 

the cited conditions. 

Citation No. 2240702 

Inspector Sanders testified that he issued the violation 

after determining that the respondent had not conducted any 

grounding tests for its plant electrical equipment as 

required by mandatory standard section 56.12-28. He stated 

that plant foreman Murphy had no knowledge that the test had 

been done and he could not produce the test records when 

asked. 

Mr. Sanders stated that the hazards resulting from the 

failure to conduct the required tests are the same as those 

resulting from the previous violation No. 2240701. Had the 

test been conducted annually as required by the standard, the 

lack of proper grounding would have been detected. 

Mr. Sanders stated that the violation was abated after 

the respondent retained a knowledgeable independent contractor to conduct the test, and after the records of the test 

were retained at the plant office. Mr. Sanders confirmed 

that he reviewed the test results and was satisfied that compliance had been achieved. He also confirmed that he left 

written instructions with foreman Murphy as to how to conduct 

the required ohm resistance test. 

Docket No. CENT 86-14-M 

Citation No. 2241058 

Inspector Sanders testified that he issued the violation 

after finding inadequate foot brakes on an Allis-Chalmers 

front-end loader being operated at the plant. The loader was 

used to clean up and load materials, and other trucks were 

operating in the vicinity of the loader. Mr. Sanders stated 

that he asked the loader operator to drive the loader in a 

420 
forward motion and to apply the foot-brake, and when he did, 

the loader would not stop. 

Mr. Sanders believed that the-inadequate brake condition 

presented a hazard to those employees on foot and to the 

other vehicles operating near the loader. He confirmed that 

there was one employee on foot near the loader, and that he 

and the foreman were also there. He also believed the loader 

was operated on ramps and elevated roads. 

Mr. Sanders believed that the loader was removed from 

the property and replaced by a new one, and he confirmed that 

he issued a combination 104Ca) citation and 107{a) imminent 

danger order in order to insure the removal of the loader 

from service. 

On cross-examination, Mr. Sanders confirmed that plant 

foreman George Hart informed him of the inadequate brake condition on the loader prior to his inspection of the vehicle. 

He stated that Mr. Hart told him that he had limitea the operation of the loader to level ground and that it cou~d be 

stopped by use of the parking or hand brake. Mr. Hart also 

advised him that he had requested a mechanic to perform maintenance on the truck. Mr. Sanders stated that he observed 

the loader stopping and loading trucks (Tr. 7-77>. 

Citation No. 2241214 

The respondent conceded and admitted that it failed to 

file the first and second quarter FY 1985 reports as required 

by mandatory reporting regulation 30 C.F.R. § 50.30(a). 

Under the circumstances, the inspector who issued the violation was not called to testify (

1

Tr o 79}. 

Respondent's Testimony and Evidence 

Citation No. 2241214 

Wayne Roberts, testified that he is employed by the 

respondent as its controller, and he confirmed that it was 

his responsiblity to file the quarterly reports in question. 

He stated that he delegated this responsibility to one of his 

secretaries who was subsequently fired for not doing her job. 

He later learned that the secretary had not filed the reports, 

and the un-f iled forms were found among her unfinished work on 

her desk. After he discovered that they had not been filed, 

he filed them immediately. 

421 
Mr. Roberts stated that prior reports had always been 

timely filed and that the respondent has not been previously 

cited for failure to file the reports (Tr. 79-83). 

Citation No. 2241058 

George K. Hart, plant foreman, testified that he informed 

Inspector Sanders about the lack of adequate foot brakes on 

the front-end loader before he began his inspection. Mr. Hart 

stated that the brakes had "gone bad" 2-days prior to the 

inspection and that he had reported the condition to a 

mechanic who was supposed to repair them. 

Mr. Hart stated that the loader operator was an experienced operator, and he instructed him to operate the loader 

on level ground and to restrict its operation to the stock 

pile area loading sand on the trucks. Mr. Hart stated further that the loader was the only one available at the plant 

and that its use with inadequate foot brakes was only a temporary measure. There was no foot traffic in the area where 

the loader was operated, and Mr. Hart estimated that it operated at a speed of 1 or 2 miles an hour. He stated that the 

loader could be stopped by means of the hand brake or parking 

brake, and that during the time it was operated with inadequate foot brakes, no harm or damage was done. 

Mr. Hart stated that he told Inspector Sanders about the 

condition of the loader so that he would know that the loader 

was needed to be used until a replacement loader was received. 

A replacement loader had been ordered and it arrived a day or 

two after the citation was issued. 

On cross-examination, Mro Hart stated that the loader 

was fueled once a day at the end of the shift. He also 

believed that oil would be added at least once a day. The 

fueling and oiling took place at the storage shack area, and 

he indicated that the loader would be driven around the sand 

stock pile areas and not on the main plant road. He also 

indicated that the loader operator would park the loader 

approximately 30 minutes before the other plant employees 

ended their shift, and he denied that anyone on foot was 

expqsed to any hazard. 

Mro Hart stated that the loader operator and other 

employees were notified about the condition of the loader, 

and he believed that it could be safely operated under the 

controlled circumstances under which it was operated (Tr. 

84-104). 

422 
J. R. Marriot, respondent's operating officer, testified 

that he first became aware of the brake condition on the 

front-end loader on the day after the inspection. Had it 

been brought to his attention earlier, both the machine and 

plant would have been shut down because only one loader was 

available. He stated that the respondent was in the process 

of ordering a new loader, and that the maintenance operation 

and mechanic who worked on the equipment were located in 

Dallas. The mechanic had to travel to the plant site to perform maintenance, and Mr. Marriot did not know whether the 

mechanic had been informed about the conditions of the brakes 

(Tr. 105, 107). He stated that it is not company policy to 

operate equipment witho~t operable foot brakes because "it's 

against the law" and "a danger to everyone" (Tr. 106, 107). 

Mr. Marriot stated that the electrical wiring system for 

the plant has been in place since approximately 1983, when he 

purchased the operation from S&S Sand and Gravel. He stated 

further that he has experienced no problems with the system, 

but that after the grounding citation was issued substantial 

work was performed to install ground wires at an approximate 

cost of $4,000 to $5,000, and compliance was achieved within 

the next month of the issuance of the citation (Tr. 109). 

Mr. Marriot stated that he has instituted procedures for 

making employees aware of MSHA's compliance requirements, and 

that he issues internal citations to employees who violate 

safety regulations. After three citations, an employee is 

subject to discharge. He also stated that he has begun a 

system of personal inspection of the operation to insure that 

all safety regulations are complied with (Tr. 109-110). 

In response to further questions, Mr. Marriot stated 

that there were problems with the loader in question and that 

the new loader was ordered because of these problems (Tr. 

111). 

Inspector Sanders was recalled as the Court's witness, 

and he testified that he had no reason to question Mr. Hart's 

assertions that he was aware of the loader brake condition 

and had instructed the operator to use it under "controlled 

conditions." Mr. Sanders conceded that he was aware of this 

when he issued the citation (Tr. 114). He confirmed that at 

the time of his inspection he did not speak with the loader 

operator, nor did he determine how much vehicular traffic was 

in the area where the loader was operating (Tr. 115). 

Mr. Sanders stated that he considered the loader citation to be "S&S" because the brakes were inoperable and it 

423 
was the only loader available. In the event of an emergency 

situation where the loader would be needed in other areas of 

the plant, he believed that there would have been no hesitancy by the respondent to use the_ loader in those other 

areas. He also believed that had he not been there on an 

inspection, the loader would have been used with faulty 

brakes until the new one was placed in service (Tr. 116-117). 

Findings and Conclusions 

Docket No. CENT 85-129-M 

Citation Nos. 2240701 and 2240702 - Fact of Violation 

The respondent conceded that the plant was not grounded 

in accordance with the requirements stated in mandatory standard 30 C.F.R. § 56.12025 (Tr. 125). Although the respondent 

suggested that the insulation on the plant wiring provided an 

"alternative" means of compliance and provided an equiva·lent 

means of protection, no credible testimony or evidence was 

produced to establish this as a defense. Accordingly, this 

argument is rejected. 

Mandatory standard 30 C.F.R. § 56.12025, requires that 

all metal enclosed or encased electrical circuits be grounded 

or provided with equivalent protection. In this case, the 

evidence established that the cited drive motors in question 

were not grounded in accordance with MSHA's requirements pursuant to section 56.12025, nor is there any credible evidence 

that equivalent protection was provided. Accordingly, I conclude and find that the petitioner has established a violation by a preponderance of the evidence, and Citation 

No. 2240701 IS AFFIRMED. 

Mandatory standard 30 C.F.R. § 56.12028, requires that 

the electrical grounding system in question be tested immediately after installation, and annually thereaft~r. Inspector 

Sanders testified that he issued the citation after finding 

no evidence that the system had ever been tested. The plant 

foreman had no knowledge as to whether any of the required 

tests had ever been made, and the respondent produced no 

records to establish that any tests had ever been made. 

While it is true that the system was in place when the respondent acquired the plant from the previous owner in 1983, 

there is no evidence that it ever conducted any annual tests 

subsequent to that time as required by the standard. Under 

the circumstances, I conclude that a violation has been established, and Citation No. 2240702, IS AFFIRMED. 

424 
Docket·No. CENT 86-14-M 

Citation No. 2241214 - Fact of Violation 

The respondent conceded and admitt~d that it failed to 

file the reports required by 30 C.F.R. § 50.30(a) (Tr. 79). 

I conclude and find that a violation has been established, 

and the citation IS AFFIRMED. 

Citation No. 2241058 - Fact of Violation 

The respondent conceded that the cited loader was operated with inadequate foot brakes (Tr. 119), and the evidence 

establishes that the respondent was aware of the fact that 

the foot brakes were inoperable. The respondent's defense is 

that the loader was only operating in a "controlled environment," and that a new loader was on order to replace the one 

that was cited. Respondent also asserted that a mechanic was 

scheduled to repair the cited loader the day after the citation was issued, but did not appear (Tr. 118). 

Mandatory standard 30 C.F.R. § 56.9003, requires that 

all powered mobile equipment be provided with adequate brakes. 

The evidence in this case established that the foot brakes on 

the cited loader would not stop the machine when tested on 

level ground. I conclude and find that the brakes were not 

adequate and that the petitioner has established a violation 

by a preponderance of the credible testimony and evidence 

adduced at the hearing. Accordingly, the violation IS 

AFFIRMED. 

Size of Business and Effect of Civil Penalty on the 

Respondent's Ability to Continue in Business 

The record establishes that the respondent is a small 

mine operator employing approximately seven to nine people in 

the operation of a sand processing plant. I conclude and 

find that the civil penalties assessed by me for the violations in question will not adversely affect the respondent's 

ability to continue in business. 

History of Prior Violations 

Exhibits G-8, are two computer print-outs reflecting the 

respondent's prior compliance record for the periods 

August 15, 1983 through August 14, 1985, and February 

1983 through February 13, 1985. The citations listed 

second print-out are also included on the first one. 

ingly, I have considered only the first listing which 

~25 

14, 

on the 

Accord-
reflects that the respondent was served with 26 section 

104(a) citations and two section 107(a) orders. Two of the 

citations listed (2240701 and 2240702) are the subject of the 

instant proceedings. The print-out reflects that the respondent has been assessed civil penalties in the amount of 

$4,589, for the listed violations, and that it has made civil 

penalty assessment payments in the amount of $2,188 through 

August 14, 1985. 

During the course of the hearing, Inspector Sanders 

stated that the respondent has been previously charged with 

"many more" violations for defective brakes on its equipment 

(Tr. 122). Mr. Sanders stated that it was his "recollection" 

that he issued two additional orders for defective brakes at 

the time of his inspection, but since he did not bring his 

file to the hearing, he could not substantiate this (Tr. 123). 

The print-out reflects two prior section 107(a) orders for 

violations of mandatory standard section 56.9003, for which 

the respondent paid $1,200 in civil penalty assessments "($600 

for each order). Mr. Sanders believed that these prior violations concerned a different loader and a haul truck (Tr. 124). 

I conclude and find that the respondent's overall compliance record is not such as to warrant any additional increases 

in the civil penalty assessments made by me in these proceedings. However, in view of the two prior imminent danger 

orders for inadequate brakes on its mobile equipment, I 

believe that the respondent needs to pay closer attention to 

its equipment maintenance program, particularly with respect 

to the brakes on its mobile equipment. I have taken these 

prior violations into account in assessing the civil penalty 

for the brake violation which has been affirmed in Docket No. 

CENT 86-14-M. 

Good Faith Abatement 

I conclude and find that all of the violations were subsequently abated in good faith by the respondent. 

Gravity 

I conclude and find that reporting violation (No. 2241214) 

was non-serious. I conclude and find that the grounding citation (No. 2240701) and the testing violation (No. 2240702) were 

both serious violations. Failure to ground the electrical circuits in question presented a shock hazard to mine personnel. 

Had the respondent conducted the required tests, there is a 

strong probability that it would have detected the lack of 

grounding and thus avoided the hazard. 

426 
With regard to the inadequate brake violation 

(No. 2241058} I conclude and find that this was a serious 

violation. Even though the respondent may have instructed 

the loader operator to operate the machine on level ground 

and in an area where there was little foot or vehicular 

traffic, and the. loader could be stopped by means of the hand 

brake or parking brake, the lack of inadequate foot brakes 

presented an accident and injury hazard. The loader had been 

operated with inadequate foot brakes for at least 2-days 

prior to the inspection. 

Negligence 

I conclude and find that the grounding, testing, and 

reporting violations all resulted from the respondent's failure to exercise reasonable care, and that this amounts to 

ordinary negligence. 

With regard to the braking violation, the evidence establishes that the plant foreman was aware of the fact that the 

loader foot brakes were inadequate and that tbe machine was 

in operation with inadequate brakes for at least 2-days prior 

to the inspection. Under the circumstances, I conclude and 

find that the violation resulted from a high degree of negligence on the part of respondent bordering on gross negligence. 

However, in mitigation, I have considered the fact that the 

removal of the loader from operation would have effectively 

shut down this small operator's operation, that the hand 

brakes and parking brakes could stop the loader on level 

ground, and that the foreman instructed the loader operator 

to restrict the operation of the loader to an area with the 

least possible exposure to accident or injury and so advised 

the inspector at the time the violation was issued. 

Significant and Substantial Violations 

Inspector Sanders testified that the plant and equipment 

were constructed primarily of steel materials and that the 

plant operated on a 440 volt electrical system. He believed 

that the lack of proper grounding posed a hazard of electrical shock. In the event of a short circuit in the system, 

and in view of the wet plant conditions, someone contacting a 

"live circuit" resulting from a short in the system could be 

shocked or electrocuted. In addition, the record establishes 

that the plant wiring had been in place for some time without 

proper grounding or testing. Under the circumstances, I conclude and find that the testing and grounding conditions presented a reasonable likelihood of an accident or 'injury of a 

427 
reasonably serious nature. Accordingly, I conclude and find 

that Inspector sanders' "significant and substantial" findings with respect to Citation Nos. 2240701 and 2240702, are 

fully supported, and they ARE AFFIRMED. 

With regard to the inadequate brakes violation, the 

record establishes that the loader was operated in that condition for at least 2-days prior to the inspection. fnspector 

Sanders believed that it would have been operated for a 

longer period of time had he not been at the mine for an 

inspection, and while he acknowledged ·that it may have been 

operated in a "controlled environment," he was concerned that 

it would have been operated until some unspecified time pending the arrival of a new one. 

Although the respondent asserted that a new loader was 

on order, the fact is that its maintenance shop was in Dallas 

and the mechanic had to travel to the plant for maintenance. 

Respondent asserted that the loader was not repaired before 

the inspection because the mechanic did not show up as scheduled. Since the respondent had a new loader on order, I 

believe one can reasonably assume that it would not expend 

money for a brake job given the fact that a new one was on 

order. I believe that there is a strong inference in this 

case that the respondent intended to use the loader with 

inadequate foot brakes until the new one was placed in operation. Since the loader with inadequate brakes was the only 

one available at the plant, I further believe that the inspector's concern that it would have been used if necessary in 

areas outside the "controlled environment" was real and reasonable. Under the circumstances, I conclude and find that 

the inadequate brake condition constituted an accident and 

injury hazard, and had an accident occurred, I believe it is 

reasonably likely that disabling injuries would have resulted. 

Accordingly, the inspector's "S&S" finding with respect to 

Citation No. 2241058, IS AFFIRMED. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of section llO(i) of 

the Act, I conclude and find that the following civil penalty 

assessments are appropriate and reasonable for the violations 

which have been affirmed. 

428 
Docket No. CENT 85-129-M 

Citation No. Date 30 C.F.R. Section Assessment 

2240701 2/14/85 56.12025 $213 

2240702 2/14/85 56.12028 $213 

Docket No. CENT 86-14-M 

Order/ 

Citation No. Date 30 C.F .R •. section Assessment 

2241058 8/15/85 56.9003 $1,250 

2241214 9/9/85 50.30Ca> $ 20 

ORDER 

The respondent IS ORDERED to pay the civil penalties 

assessed by me in these proceedings within thirty (30) days 

of the date of these decisions. Payment is to be made to 

MSHA, and upon the receipt of same, these proceedings are 

dismissed. 

~.l~ Administrative Law Judge 

Distribution: 

Allen Reid Tilson, Esq., Office of the Solicitor, U.S. 

Department of Labor, 525 South Griffin Street, Suite 501, 

Dallas, TX 75202 (Certified Mail) 

John E. Agnew, Esq., Carter, Jones, Magee, Rudberg & Mayes, 

2400 One Main Place, Dallas, TX 75250 (Certified Mail) 

/f b 

429 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

: Docket No. CENT 85-138-M 

A.C. -No. 41-00010-05502 

: Capitol Cement Plant 

·CAPITOL AGGREGATES, INC., 

Respondent 

. . 

Appearances: 

Before: 

DECISION 

James L. Manzanares, Esq., Office of the 

Solicitor, U.S. Department of Labor, Dallas, 

Texas, for Petitioner; 

Richard L. Reed, Esq., Johnston, Ralph, Reed & 

Cone, San Antonio, Texas, for Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns civil penalty proposals filed 

by the petitioner against the respondent pursuant to section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 820(a), seeking civil penalty assessments for 

three alleged violations of certain mandatory safety standards found in Part 56, Title 30, Code of Federal Regulations. 

The respondent filed a timely answer and contest, subpoenas were issued, and pursuant to notice the case was heard 

in San Antonio, Texas, on February 25, 1986. 

Issue 

The issue in this case is whether the respondent violated the cited mandatory safety standards, and if so, the 

appropriate civil penalties which should be assessed for the 

violations in question. Additional issues raised by the parties are identified and discussed in the course of this 

decision. 

430 
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 llOCiJ of the 1977 Act, 30 u~s.c. § 820Ci). 

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties agreed that the respondent's Capitol Cement 

Plant is a "mine" as that term is defined by the Act, and 

that the respondent and ·the plant in question are subject to 

MSHA's enforcement jurisdiction as well as the jurisdiction 

of the Mine Safety and Health Review commission. 

The parties agreed that at all times relevant to this 

proceeding the respondent's plant worked 277,985 annual · 

man-hours, and that the corporate entity controlling the operation of the plant worked 607,510 annual man-hours.· 

The parties agreed that the assessment of the proposed 

civil penalties for the citations in question will not 

adversely affect the respondent's ability to continue in 

business. 

The parties agreed that the respondent abated the citations in question in good faith. 

Exhibit P-1 is an MSHA computer print-out reflecting the 

respondent's prior history of violations. The information 

provided reflects that for the period February 21, 1983 to 

February 20, 1985~ the respondent had three assessed violations for which it paid civil penalties totaling $60. For 

the period prior to February 21, 1983, respondent had seven 

assessed violations, and paid a civil penalty assessment of 

$98 for one of the violations. 

Discussion 

The alleged violations in this case were all issued after 

an MSHA fatality investigation at the respondent's plant. The 

facts show that an intoxicated laboratory technician employed 

by the respondent intentionally misused and inhaled nitrous 

oxide gas which resulted in his death. The alleged violations 

which were issued are as follows: 

431 
Section 104(a) "S&S" Citation No. 2231659, February 21, 

1985, cites an alleged violation of 30 C.F.R. § 56.20-1, and 

the condition or practice is stated·as follows: 

A fatal accident occurred November 24th, 

1984, at about 0200 hours, when an employee 

was found on the floor, unconscious, in the 

main room of the laboratory. The employee was 

pronounced dead at the hospital approximately 

1 hour later. The autopsy report showed 0.171 

alcohol in the blood and nitrous oxide in the 

bile due to intentional inhalation by the 

employee. 

Section 104(a) "S&S" Citation No. 2241817, March 13, 

1985, cites an alleged violation of 30 C.F.R~ § 56.18-2, and 

the condition or practice is stated as follows: 

A fatal accident was experienced on 

November 24, 1984. The operator had failed to 

cause safety and health hazard inspections of 

all work areas to be conducted each shift. No 

persons were designated to conduct these 

inspections and record these findings. Conductance of such inspections would have acted as 

a deterrent to the apparent abuse of the industrial gas, Nitrous Oxide, and the presence of 

workers under the influence of alcohol at the 

mine site. 

Section 104(a) "S&S" Citation No. 2241818, March 13, 

1985, cites an alleged violation of 30 C.F.R. § 56.20-11, and 

the condition or practice is stated as follows: 

A fatal accident occurred on November 24, 

1984. There had been no signs posted at the 

exterior laboratory industrial gas supply and 

service area, or within the laboratory to warn 

employees of the nature of the hazards 

involved and the protective action required. 

Highly combustable, explosive and asphyxiating 

gases were being routinely used in these 

areas. 

432 
Findings and Conclusions 

Citation No. 2231659 - Fact'of Violation 

30 C.F.R. § 56.20-1, provides as follows: "Intoxicating 

beverages and narcotics shall not be permitted or used in or 

around mines. Persons under the influence of alcohol or narcotics shall not be permitted on the job." 

The respondent denied that it permitted any person under 

the influence of alcohol or narcotics on the job, or that 

intoxicating beverages and narcotics were permitted by the 

respondent, or used in or around its mine. 

The inspector who issued the citation on February 21, 

1985, subsequently modified it on April 23, 1985, and his 

modification states as follows: 

The negligence * * * is reduced from low 

to none. The company had done all that would 

be reasonably expected of them to be required 

and not allow alcohol on the property or drug 

useage by publishing safety rules which were 

printed and signed as to being read by the 

victim. 

Petitioner's couns~l moved to withdraw Citation 

No. 2231659, on the ground that the evidence will not support 

a violation of the cited mandatory safety section 56.20-1. 

Counsel stated that the petitioner cannot establish that the 

respondent permitted the use of intoxicating beverages or 

narcotics on the job. 

Petitioner's motion to withdraw its proposal for assessment of a civil penalty for Citation No. 2231659, February 21, 

1985, 30 C.F.R. § 56.20-1, IS GRANTED, and the citation IS 

VACATED. 

Citation No. 2241817 - Fact of Violation 

30 C.F.R. § 56.18-2, provides as follows: 

(a) A competent person designated by the 

operator shall examine each working place at 

least once each shift for conditions which may 

adversely affect safety or health. The operator shall promptly initiate appropriate 

action to correct such conditions. 

433 
(b) A record that such examinations were 

conducted shall be kept by the operator for a 

period of one year, and shall be made available for review by the Secretary or his authorized representative. 

The parties proposed to settle this violation by the 

respondent agreeing to pay a civil penalty assessment in the 

amount of $168. The initial proposed "special assessment" 

was in the amount of $500. 

In support of the reduction of the proposed civil penalty assessment, petitioner's counsel took into consideration 

the fact that the respondent could not have reasonably 

foreseen that the employee would have intentionally and voluntarily inhaled the nitrous oxide kept in the plant laboratory 

for the respondent's legitimate business needs. Although 

counsel believed that he could support a finding of high neg11gence because a daily examination may have acted as a deterrent, he also believed that the gravity of the violation is 

less than originally assessed because such an examination 

would not likely have prevented the employee from intentionally inhaling the nitrous oxide. 

Petitioner's counsel confirmed that the intentional act 

of the employee in question endangered only himself and no 

other miners, and that the respondent has taken appropriate 

action to insure or preclude future incidents of this kind. 

After careful consideration of the arguments presented 

in support of the proposed settlement of the violation, I 

conclude and find that it is reasonable and in the public 

interest, and IT IS APPROVED. The citation IS AFFIRMED. 

The respondent's counsel stated that in agreeing to 

settle the violations in question and to pay the agreed upon 

civil penalty assessments the respondent does not agree to 

liability for the alleged violations, but has taken into consideration the cost of ~urther litigation. 

Citation No. 2241818 - Fact of Violation 

30 C.F.R. § 56.20-11, provides as follows: "Areas where 

health or safety hazards exist that are not immediately 

obvious to employees shall be barricaded, or warning signs 

shall be posted at all approaches. warning signs shall be 

readily visible, legible, and display the nature of the 

hazard and protective action required." 

434 
The respondent agreed not to contest the citation further, and agreed to make full payment of the proposed civil 

penalty assessment of $16~I have .considered this proposal 

as a settlement proposal, and with_. the agreement of the petitioner, and after consideration .of the six statutory criteria 

found in section llOCi> of the Act, I conclude it is in the 

public interest, and IT IS APPROVED. The violation IS 

AFFIRMED. 

ORDER 

In view of the foregoing, Citation No. 2231659, IS 

VACATED, and the petitioner's civil penalty proposal IS 

DISMISSED. The respondent IS ORDERED to pay a civil penalty 

in the amount of $168 for Citation No. 2241817, and a civil 

penalty in the amount of $168 for Citation No. 2241818. 

Payment is to be made to MSHA within thirty (30) days of the 

date of this decision and order, and upon receipt of payment, 

this case is dismissed. 

Distribution: 

~$.-Koutras ~~L,ti1~ Administrative Law Judge 

James J. Manzanares, Esq., Office of the Solicitor, U.S. 

Department of Labor, 525 Griffin Street, Suite 501, Dallas, 

TX 75202 (Certified Mail) 

Richard L. Reed, Esq., Johnston, Ralph, Reed & Cone, 

2600 Tower Life Building, San Antonio, TX 78205 (Certified 

Mail) 

/fb 

435 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 . 

DENVER, COLORADO 80204 March 25 I 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), · Petitioner 

v. 

WALSENBURG SAND AND GRAVEL 

COMP ANY, INC. , 

Respondent 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 84-19-M 

A.C. No. 05-01054-05501 

San Aroya Mine or 

San Araya Pit 

Appearances: Robert J. Lesnick, Esq., Office of the Solicitor, 

U.S. Department of Labor,. Denver, Colorado, 

for the Petitioner; 

Ernest u. Sandoval, Esq., Walsenburg, Colorado, 

for the Respondent. 

Before: Judge Carlson 

This case, heard under the provisions of the Federal Mine 

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

arose from inspections of the respondent's sand]?it near Walsenburg, 

Colorado on March 3 and March 7, 1983. On those dates, federal 

mine inspectors issued a total of 13 citations for violations of 

various safety standards promulgated by the Secretary of Labor 

pursuant to the Act·. The respondent, Walsenburg Sand and Gravel 

Company, Inc. (Walsenburg), contested the Secretary's petition for 

imposition of civil penalties. The case was heard at Pueblo, Colorado, 

with both parties presenting evidence. Neither party wished to file 

briefs or other post-hearing submissions. 

GENERAL BACKGROUND 

The undisputed evidence shows that Walsenburg's San Aroya 

Pit, where the inspections occurred, is located in an old riverbed. Sand is extracted from the surface with front-end loaders. 

It is washed, screened, and stored in large piles at the site 

until needed. It is then loaded and trucked away. The company 

actually extracts and processes sand during warm-weather months 

only; frozen ground surfaces prevent removal during the remainder 

of the year. Sand is trucked away from storage piles throughout 

the year, however; as construction demands dictate. 

On March 3, 1983, when the Secretary issued the first citation 

in this case, the plant or processing machinery was not in operation. The gates at the site were open, howeve,r, and two employees 

were engaged in loading sand and trucking it away. 

436 
On March 7, 1983, the Secretary's representatives returned 

to the site again. At that time, the processing plant was in 

operation. Walsenburg employees were testing out the conveyors 

and other machinery preparatory to the beginning of production. 

Walsenburg concedes that its activities affect commerce within 

the meaning of the Act. 

REVIEW AND DISCUSSION OF THE 

EVIDENCE RELATING TO ALLEGED VIOLATIONS 

Citation No. 2098376 

On March 3, 1983, Jake DeHerrera, a federal mine inspector, 

visited Walsenburg's San Araya pit. On that occasion he observed 

approximately 150 feet of an electrical power line lying on the 

ground at the site. Closer inspection revealed that some of the 

poles intended to support the line had collapsed, and that the 

220-volt line was energized. The last standing supporting pole 

for the line was immediately adjacent to a 500-gallon diesel fuel 

tank where respondent's front-end loader was refueled. The inspector issued a citation to Walsenburg charging a violation of the 

mine safety standard published at 30 C.F.R. § 56.12-30. That 

standard provides: 

When a potentially dangerous condition 

is found it shall be corrected before 

equipment or wiring is energized. 

Walsenburg does not deny that the inspector correctly described 

the condition. It did, however, deny that its management knew of the 

condition, and also asserted that the line was the responsibility of 

a local power company. Louis P. Vezzani, who described himself as 

"co-owner" of the sand and gravel company, further testified that the 

line had supplied power to a trailer home once situated on the pit 

site at the instance of the lessor of the site, and that it therefore 

served no purpose related to his company•s operation. 

I must conclude that the facts nonetheless establish a violation of the cited standard. The undisputed evidence shows that 

the last standing power pole to which the 220-volt line in question 

was attached also furnished 110 volts of power to the pump for the 

diesel tank. (See photograph, petitioner's exhibit 1.) Thus, the 

power distribution system in question was not totally divorced from 

that supplying the Walsenburg operation. Even were this not so, 

however, the downed 220-volt line lay on the Walsenburg site and 

presented a hazard to its employees. The evidence shows that the 

two Walsenburg miners present at the time of the inspection, one 

operating a truck, the other operating a loader, had unrestricted 

access to the area where the line lay. There were no warning signs 

·or barricades to restrict their approach or to give warning. Moreover, the downed line was partially covered by snow - an indication 

437 
that the line had been on the ground for some time (Tr. 27). 

It was Walsenburg's duty to notice the hazard presented by the 

line and to take the necessary steps to correct it. This was in 

fact easily accomplished shortly after the citation was issued. 

Walsenburg simply notified the San Isabel Electric Company, whose 

employees de-energized the line. 

Citation No. 2009814 

On his March 3, 1983, inspection, Mr. DeHerrera was accompanied by Inspector Elmer E. Nichols. Inspector Nichols testified that the 110-volt electrical outlet on the power pole near 

the diesel fuel tank and pump was not grounded. He therefore 

issued a citation charging a violation of the safety standard 

published at 30 C.F.R. § 56.12-25. That standard, as pertinent 

here, provides: 

All metal enclosing or encasing electrical circuits shall be grounded or 

provided with equivalent protection. 

According to Inspector Nichols, he plugged an outlet tester into 

the receptacle on the pole. It showed that the energized outlet 

was not grounded. Terrance D. Dinkle, an electrical engineer from 

the staff of the MSHA Denver Technical Support Center, testified 

at length concerning hazards involved in this and other citations 

alleging electrical violations. Mr. Dinkle asserted that fuses or 

circuit breakers on circuits which lack proper grounding will not 

prevent electrical shock to persons coming into contact with the 

circuit, should there be an electrical fault. 

Walsenburg presented no evidence on this citation. The evidence of record establishes the violation alleged. 

Citation No. 2098378 

Inspector DeHerrera visited Walsenburg's San Aroya Pit again 

on March 7, 1983. On that occasion he observed that the electrical 

service to the fuel pump at the 500-gallon diesel tank was not an 

"explosion type." He therefore charged Walsenburg with a violation 

of the safety standard published at 30 C.F.R. § 56.12-2. That 

standard provides: 

Electric equipment and circuits shall 

be provided with switches or other 

controls. Such switches or controls 

shall be of approved design and construction and shall be properly installed. 

In his testimony Inspector DeHerrera indicated that the 

electrical connections lacked proper bushings, featured Romex 

cable rather than an "explosion type," and that the cable lacked 

a grounding wire. 
I find no violation. The standard in question is quite specific: it applies only to switches and controls. The Secretary's 

evidence dealt with devices and equipment other than switches or 

controls. The inspector spoke of cables and bushings. Perhaps 

the bushings referred to were on a switch box or other control enclosure. The evidence, however, was unclear. The Secretary bears 

the ultimate burden of proof, and failed to carry it in this instance. 

Citation No. 20983 9 

During the inspection on March 3, 1983, Inspector DeHerrera 

observed that the opening where electrical wires entered the breaker 

box on the service to the piesel fuel pump lacked bushings. He 

therefore issued a citation charging violation of the standard 

published at 30 C.F.R. § 56.12-8. That standard provides: 

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, 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. 

DeHerrera testified that the box was fastened to the power 

pole near the pump at about 5 to 5-1/2 feet above ground level. 

The standard requires that the openings be bushed, he asserted, 

for two reasons. First, without bushings, the metal edges of the 

openings may wear away the insulation on the wires, thus creating 

a short or fault where bare wire contacts the box. Second, the 

wires must be bushed to provide "strain relief." Without the 

bushings, he indicated, any pulling or other exterior strain on 

the wires could loosen them from their terminal connectors within 

the box, thus creating a fault. Mr. Dinkle, the Secretary's 

electrical expert, supported the inspector's testimony. The evidence shows that should an employee touch the box, once a fault 

had occurred, he could receive an electrical shock. Dinkle also 

testified that where a fault occurs in a circuit, a circuit breaker 

or fuse does not provide any assurance that a person coming in 

contact with the circuit will not receive a significant shock. 

(This particular observation was directed to all citations involving electrical fault hazards.) (Tr. 258). 

Walsenburg presented no testimony concerning the citation. 

The Secretary's evidence establishes a clear violation of the 

standard. 

439 
Citation No. 2098380 

This citation concerns another alleged defect at the diesel 

fueling station. During his visit to the San Aroya site on March 7, 

1983, Inspector DeHerrera noted that the 500-gallon diesel fuel 

tank rested on a foundation of wooden timbers. DeHerrera believed 

th.is condition violated the safety standard published at 30 C.F.R. 

56.4-4. That standard, as pertinent here, provides: 

Flammable liquids shall be stored in 

accordance with standards of the 

National Fire Protection Association 

or other recognized agencies approved 

by the Mine Safety and Health Administration. 

According to DeHerrera, The National Fire Protection Codes 

(published by the National Fire Protection Association) provide 

at chapter 30, section 2-5.l, that timbers may not be used as a 

foundation for a flammable liquids tank. The pertinent portion 

of the section declares: 

Tanks shall rest on the ground or on 

foundations made of concrete, masonry, 

piling or steel. 

DeHerrera testified that the timbers constituting the foundation 

appeared to be soaked with diesel fuel, thus posing a fire hazard. 

I have a major difficulty with the Secretary's case. I am not 

certain that the standard in question absolutely' forbids the use of 

timbers in foundat1ons. The Secretary's position appears to be 

predicated upon that belief. I note that the N.F.P.A. publication 

allows tank foundations made of "piling." "Webster's Third New 

International Dictionary (1976)" defines a pile as "a long slender 

member usu. of timber, steel or reinforced concrete driven into the 

ground to carry a load, to resist a lateral force, or to resist 

water or earth pressure." (Emphasis added.) It also offers the 

first definition of "piling" as follows: "pile driving: the 

formation of (as of a foundation) with piles." 

I am thus unable to conclude, as the Secretary would have me 

do, that the N.F.P.A. altogether proscribes the use of timbers in 

foundations. On the contrary, timber pilings are apparently welcome. 

Similarly, for tank supports above a foundation, timbers may also be 

used in some instances. Chapter 30, section 2-5.2 of the Code, 

which pertains to such supports for tanks storing flammable liquids, 

provides in part: 

Single wood timber supports (not cribbing) 

laid horizontally may be used for outside 

aboveground tanks if not more than 12 inches 

high at their lowest point. 

440 
No e~idence in the present case clearly describes the function 

of the timbers which caused the inspector's concern. The inspector 

said only that the tank was not on a foundation that complied with 

the N.F.P.A. requirement because it was on "[t]imbers - wooden 

timbers" (Tr. 90). 

Study of the photograph of the tank and its surroundings 

(respondent's exhibit 1) is not helpful. It shows that the pump 

adjacent to the tank is on a shadow-obscured platform of some sort, 

but the foundation of the tank itself is not visible. The tank 

appears to rest upon the ground. 

Absent evidence that the timbers referred to were not pilings 

driven into the earth, I cannot hold that the Secretary proved a 

violation here. The citation will be vacated. 

Citation No. 2098581 

On March 7, 1983, Inspector DeHerrera noted that the drive 

flywheel on Walsenburg's sand classifier machine lacked an adequate 

guard. He cited this condition as a violation of the safety 

standard published at 30 C.F.R. § 56.14-1. That standard provides: 

Gears; sprockets; chains; drive, head, 

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. 

According to DeHerrera, the 36-inch flywheel was located about 

3 to 5 feet above the ground. He acknowledged that the rim of the 

wheel was properly guarded. The face of the wheel and the shaft, 

however, were not protected. DeHerrera maintained that as the 

classifier was in operation with two employees in the vicinity, the 

unguarded portion of the flywheel presented a hazard to those employees. Specifically, he believed that an employee checking the 

operation of the machine, or simply walking by, could stumble into 

the exposed, rotating parts and suffer injury. 

For Walsenburg, Mr. Louis P. Vezzani testified that 'the center 

of the large flywheel was 7 feet above the ground, and that the 

operator's station was a considerable distance away. When the 

operator was not at his panel, Vezzani said, he would shut down 

the machine and thus could not be endangered. He did acknowledge, 

however, that there was some possibility that employees could come 

in contact with the wheel (Tr. 110). 

The credible evidence establishes that although the hazard was 

not great, Walsenburg violated the guarding standard. Whereas the 

wheel did not present a great threat of injury, neither could it be 

said that it was sufficiently guarded by the rim guard, or that it 

needed no guard because of an inaccessible location. 

441 
Citation No. 2098582 

Inspector DeHerrera, on his March 3, 1983, inspection, observed that the 220-volt electrical services to the feed conveyor 

and classifier 1/ drive motor were not protected by bushings where 

the wire or cable left the junction box. He also found that the 

box lacked a cover and was not weatherproof. He therefore issued 

a citation charging a violation of the safety standard published 

at 30 C.F.R. § 56.12-8. The text of that standard has been previously set forth in this decision in the discussion of citation 

no. 2098379. It requires power cables and wires to be "insulated 

adequately where they pass in and out of electrical compartments." 

It similarly provides that cables shall enter compartments or other 

enclosures only through "proper fittings." Finally, it requires 

that "insulated wires other than cables" must be "substantially 

bushed with insulated bushings" where they pass through holes in 

metal frames. 

For the reasons which follow, I must hold that no violation 

was proven. The cited standard makes a clear distinction between 

insulated wires and cables. It requires bushings for wires but 

not for cables. For cables it merely requires "proper fittings." 

The evidence describing the lines in question was confusing. 

The inspector himself repeatedly referred to them as "cables." 

Mr. Vezzani also spoke of them as cables and insisted they were 

encased in conduit. Upon the record made, I must conclude that 

the Secretary did not establish that the lines were "wires" rather 

than "cables. 11 Thus, the bushings violation was not proved. 

That the junction box lacked a cover was undisputed. The 

only part of the standard which could conceivably apply to that 

defect, however, is that part which declares that cables "shall 

enter •.. electrical compartments only through proper fittings." 

Rather plainly, the provision applies only to that part of an 

enclosure through which the cable enters. I do not read it to 

impose requirements concerning other construction features of the 

box itself. Perhaps this provision would have had relevance had 

it been shown that the cable entered the box through the space 

left open by the missing cover, rather than through the bottom, 

top, or side. There was no such evidence, however. 

I nave the same problem with whether the box was "weatherproof." The Secretary's electrical engineer, Mr. Dinkle, made 

out a convincing case of the need for weatherproofing in such an 

installation (Tr. 242-244). He indicated that the box was not of 

an "approved design" because of the lack of full enclosure of 

1/ Ultimately, the inspector acknowledged that the classifier was 

not involved (Tr. 128). 

442 
connections and rubber gaskets to keep out moisture. His testimony, 

however, was directed to citation no. 2098378, earlier discussed 

in this decision, which involved 30 C.F.R. § 56.12-2. That is a 

standard which speaks to "approved-design and construction" (Tr. 245-

246). Perhaps the term "proper fittings" referred to in the instant 

standard is a term of art among electrical experts, one broad enough 

to encompass weatherproofing. I doubt it, however. If it is, the 

record lacks expert testimony sufficient to demonstrate such a 

meaning. As the record stands, no violation is proved because the 

cited standard appears inapposite. 

Citation No. 2098583 

This citation also arose out of Inspector DeHerrera's visit 

to the pit on March 7, 1983. His inspection of the drive unit for 

the feeder conveyor revealed several pinch-points which were not 

guarded. Specifically, the drive chain and sprockets lacked any 

guarding. Also, the feeder mechanism itself - two large moving arms 

on an eccentric wheel - was unguarded. Finally, the tail pulley on 

the feed conveyor was unguarded. DeHerrera cited these conditions 

as violations of 30 C.F.R. § 56.14-1. That standard, requiring 

guarding of moving parts of machinery, is set out in the discussion 

of citation No. 2098581. 

Mr. Vezzani, for Walsenburg, pointed out that guarding in the 

form of barrier-railings was available for the cited areas. The 

railings, however, were unbolted and lying on the ground (Tr. 140-

141). The inspector agreed that the railings (which were later 

installed to abate the alleged violations) would have been adequate 

guards (Tr. 139). 

The evidence shows that Walsenburg violated the standard as 

alleged. The equipment was in operation and two employees of the 

operator were in the general vicinity. Some of the moving parts 

were partially guarded by virtue of their locations with respect 

to metal frames or o"ther parts of the equipment. Such partial 

guarding by location, however, is not the equivalent of the full 

guarding required by the standard. There was a small but nevertheless realistic possibility that employees could have been injured. 

Citation No. 2098584 

On March 7, 1983, Inspector DeHerrera cited a grounding defect 

in the 110-volt service furnishing electric power to the diesel 

pump at the fueling station described earlier in this decision. 

The citation alleged a violation of the grounding standard set out 

at 30 C.F.R. § .56.12-25. The standard is set out in full in the 

discussion of citation no. 2009814 in this decision. 

443 
According to Inspector DeHerrera, only two conductors went 

into the motor makeup box. The cable in question had a third 

or "ground" wire, but it was not attached to the motor frame to 

complete the ground. Presence of a circuit breaker, he testified, 

did not furnish protection equal to a proper grounding arrangement. 

Walsenburg presented no evidence directed to this citation. 

The Secretary's evidence clearly establishes the violation 

charged. The circuit had no ground as required by the standard, 

and the presence of a circuit breaker does not provide electrical 

fault protection equivalent to a ground. 

Citation No. 2009968 

On March 7, 1983, MSliA electrical specialist Larry J. Day 

found that the electric cable providing power to five 220-volt 

three-phase motors included an energized wire insulated with a 

green covering. Green wires, he testified, are universally used 

for noncurrent-carrying ground wires. Anyone familiar with electrical practice, according to Mr. Day, would, during maintenance, 

assume the green line was nonconductive. Since it was energized, 

however, a repair person could receive a severe shock. This would 

most likely occur should the green wire be attached to the equipment frame, as is the common practice. Mr. Dinkle, the Secretary's 

electrical engineering expert, supported Mr. Day's analysis. 

The citation charged a violation of the standard published 

at 30 C.F.R. § 56.12-30. That is the standard, discussed in connection with citation no. 2098376, which requires correction of 

"potentially dangerous conditions" in wiring or equipment. 

Gary M. Vezzaniv who described himself as an electronics 

engineer with three associate degrees in electronics, testified 

for Walsenburg. He agreed that it was improper to use the green 

wire. He suggested, however, that a careful repairman would not 

rely on the color of the wire, but would routinely test all wires 

to determine which were energized. He also appeared to suggest 

that if the energized green wire was mistakenly attached to the 

equipment frame, the repairman would be saved from injury by the 

circuit breaker. He disagreed with certain statements by the 

government's Mr. Nichols concerning grounding. Grounding, however, 

was not mentioned in the citation and is not an issue here. 

I must conclude that the evidence establishes the violation 

charged. Walsenburg admits that the green wire was improperly 

used. I do not find credible the notion that repairmen would not 

rely on the color-coding of electrical wires. For the reasons 

discussed earlier in this decision, neither do I accept the proposition that circuit breakers can protect workers from electrical 

shocks from circuit faults. Such faults could develop from handling 

the energized green wire in the belief that it was a ground. 

444 
Citation No. 2009970 

On March 7, 1983, MSHA electrical specialist Larry Day issued 

a citation charging a violation of the safety standard published at 

30 C.F.R. § 56.12-4. That standard, as pertinent here, provides: 

Electrical conductors exposed to 

mechanical damage shall be protected. 

According to Day, a three-wire Romex cable attached to the side 

of a power pole was exposed to damage from vehicles. He testified 

that he saw cuts on the cable covering, and that protection from impact should have been provided by running the exposed lower 8 feet 

of the cable through a rigid pipe or flex pipe. If the wires were 

laid bare by an impact, he maintained, a fault could result which 

could energize the ground wire or cause a fire. This could endanger 

the two employees in the area. 

Walsenburg presented no testimony on this citation. The evidence establishes that the respondent violated the standard in the 

manner alleged. 

Citation No. 2009972 

Day also cited respondent with a violation of the guarding 

standard, 30 C.F.R. § 56.14-1, for an unguarded drive pulley powering 

the belt drive operating the shaker screen. He was unable to recall 

the height of the pulley from the ground, but could recall that it 

was accessible to persons in the area. The pulley had no guarding, 

he testified, and could therefore catch the clothing, hands or fingers 

of any worker who might happen by. 

Walsenburg furnished brief testimony on this citation by Louis 

Vezzani. He asserted that the drive pulley was ordinarily 8 feet 

above the ground, and thus above the reach of workers. He admitted, 

however, that on March 7, 1983, the day of the inspection and citation, 

excess sand accumulations near the shaker screen had raised the ground 

level sufficiently to put the pulley within reach of persons standing 

near the equipment. 

The evidence shows that the standard was violated as alleged. 

Citation No. 2009973 

Day, on the March 3, 1983, inspection, also cited what he described as a guarding violation on the tail pulley of the shaker belt. 

The belt was moving and carrying material at the time he observed it. 

He maintained that the lack of a guard on the pulley constituted a 

violation of 30 C.F.R. 56.14-1, the guarding standard discussed several times previously in this decision. He recalled the height of the 

tail pulley to be 6 to 8 inches above the ground. The two employees 

who were running the plant, he testified, were exposed to the hazard 

created by this unguarded pinch-point. 

445 
For Walsenburg, Louis Vezzani testified that the part in 

question was not a tail pulley, but a roller which was best described as a mere shaft. Moreover, he contended that the end of 

the roller was 6 inches inside the frame of the conveyor, and was 

thus guarded by the frame. Day disputed this, claiming that 

despite the frame a worker walking by could catch loose clothing 

between the roller and belt and thus suffer injury. Vezzani did 

acknowledge that this could occur (Tr. 235-236). 

Plainly, the violation here was minor, but there was nevertheless a foreseeable possibility of some injury. The citation 

must be affirmed. 

SIGNIFICANT AND SUBSTANTIAL ISSUE 

The Secretary contends that one of the 13 violations alleged 

in this case should be considered "significant and substantial," 

as that term is used in the Act. The charge is made in connection 

with citation no. 2098376, which involved the downed 220-volt 

electric line. 

The Commission in Cement Division, National Gypsum Company, 

3 FMSHRC 822 (1981), set out the test for determining whether a 

violation, in the words of the statute, 11 ••• could significantly 

and substantially contribute to the cause and effect .•• of a mine 

safety or health hazard." Such a violation, the Commission held, 

is one where there exists" •.• a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of a 

reasonably serious nature." 

For the reasons which follow, I conclude that the violation 

established does not rise to the ''significant and substantial" 

levelo The evidence shows that the energized 220-volt line, some 

of whose supporting poles had collapsed during the winter, did 

lie on the ground within the pit area. The evidence also shows, 

however~ that its path did not take it close to any fixed machinery 

locations or other likely work places. It was attached to a pole 

next to the diesel fueling station, but that pole was still standing. 

Thusu the only likely exposure would occur if a loader operator 

should drive his vehicle over the downed portion of the line. 

Mr. pinkle, the Secretary's principal electrical expert, 

pointed out that rubber tires; contrary to common belief, have 

some conductive properties because of their high carbon content. 

He also explained, however, that the shock received from a driver's 

running over the downed line would likely amount to no more than 

a "tingle" (Tr. 256). That slight shock might be enough to cause 

a driver to lose control of the vehicle, which could lead to further 

physical harm, he testified. 

446 
This witness also indicated that a pedestrian close to the 

downed wire on damp earth could experience a minor shock (Tr. 255). 

On the other hand, if a person should absorb the full 220-volt load 

of the line, he would likely be electrocuted. 

I find Mr. Dinkle's testimony credible. In the context of the 

other evidence, however, it does not· tend to demonstrate that any 

likely encounter with the wire would 11 ••• result in an injury of a 

reason?.bly serious nature." On the contrary, it tends to show that 

injury, if any, would likely be transient and mild. It must be 

remembered that the sand processing plant was not yet in seasonal 

operation when the inspector issued his citation (March 3, 1983). 

Only two employees were on the grounds, and they were merely loading 

and trucking away sand from distant storage piles. It is not 

probable that they would have had occasion to be near the line at 

all. Had one of the workers.approached it, it is overwhelmingly 

likely that he would merely have driven across it in a rubber-tired 

vehicle and have received, at most, a mild shock. The chance that 

a momentary loss of control of the vehicle from the shock would 

have resulted in an injury accident was remote. In the area of the 

pit where the line lay, there were really no objects to run into. 

It is surely true that if a person were to.absorb the full 

220-volts carried by the line he would, as Mr. Dinkle said, be 

electrocuted. No witness, however, explained how this might happen. 

The evidence shows that most of the insulation was intact. Presumably, a severe or lethal shock could occur should a person decide for some reason to handle the line at a spot where the insulation 

was defective. I must note, however, that such an incident would 

have been most unlikely in view of the limited loading activity in 

progress at the time in question. One could, after all, conceive 

of similar unlikely possibilities for each of the other electrical 

violations in this case which the Secretary chose not to cite as 

"significant and substantial. 11 

DETERMINATION OF APPROPRIATE PENALTIES 

Except for the single citation alleged to have been "significant and substantial," (citation 2098376), the Secretary proposes a 

civil penalty of $20.00 for all violations. For that single exception, the proposal is for $68.00. 

Section llO(i) of the Act requires the Commission, in penalty 

assessments, to consider the operator 0 s s , its negligence, its 

good faith in seeking rapid compliance, its history of prior violations, the effect of a monetary penalty on its ability to remain 

in business, and the gravity of the violation itself. 

The evidence shows that the Walsenburg operation was quite 

small. It further shows that the operator achieved speedy abatement 

of all the violative conditions. The operator had no history of 

prior violations. No evidence was presented concerning the effect 

447 
of payment on the proposed penalty on Walsenburg's ability to remain 

in business. I must agree with the Secretary that there were no 

significant differences in the degree of negligence present in each 

of the violations for which the $20.00 penalties were sought. I 

conclude that the negligence in each instant was in the low-tomodera te range. I also agree that the gravity of each of those 

violations was similiar and was not deserving of a weighty penalty . .,.. In each instance only the sam• two employees were exposed to the 

hazard, and their exposure was in terms of access to the dangerous 

conditions. Actual contact with the unguarded parts of equipment, 

or with the defective electrical wiring or fixtures was not likely. 

For these reasons I conclude that a modest penalty of $20.00 is 

appropriate for each of those violations for which that sum was 

proposed. 

That leaves for determination citation no. 2098376, for which 

the Secretary proposed the $68.00 penalty. As previously indicated, 

I am not convinced that the 220-volt distribution line which had 

fallen to the ground constituted a "sigriificant and substantial" 

violation under the Act. I must now go further and declare that 

that violation neither involved more operator negligence nor more 

gravity than the other violations proved by the Secretary. While 

the line did cross the grounds of the worksite, it was unlikely that 

any worker would encounter it unless he should drive across it in a 

rubber-tired vehicle. The probability that the vehicle operator 

would receive more than a mild electrical shock was quite remote. 

Consequently, the appropriate penalty for that violation is also 

$20.00. 

CONCLUSIONS OF LAW 

Based upon the entire record herein, and in accordance with 

the factual determinations contained in the narrative portion of 

this decision; the following conclusions of law are made: 

(1) The Commission has the jurisdiction to decide this matter. 

(2) The respondent, Walsenburg, violated the mandatory safety 

standard published at 30 C.F.R. § 56.12-30 as alleged in citation 

no. 2098376. 

(3) The violation was not "significant and substantial" within 

the meaning of section 104(d) of the Act. 

(4) Walsenburg violated the mandatory safety standard published 

at 30 C.F.R. § 56.12-25 as alleged in citation no. 2009814. 

(5} Walsenburg did not violate the mandatory safety standard 

published at 30 C.F.R. § 56.12-2 as alleged in citation no. 2098378. 

448 
(6) Walsenburg violated the mandatory safety standard 

published at 30 C.F.R. § 56.12-8 as alleged in citation no. 

2098379. 

(7) Walsenburg did not violate the mandatory safety 

standard published at 30 C.F.R. § 56.4-4 as alleged in citation 

no. 20983 80. 

(8) Walsenburg violated the mandatory safety standard 

published at 30 C.F.R. § 56.14-1 as alleged in citation no. 

2098581. 

(9) Walsenburg did not violate the mandatory safety 

standard published at 30 C.F.R. § 56.12-8 as alleged in citation 

no. 2098582. 

(10) Walsenburg violated the mandatory safety standard 

published at 30 C.F.R. § 56.14-1 as alleged in citation no. 

2098583. 

(11) Walsenburg violated the mandatory safety standard 

published at 30 C.F.R. § 56.12-25 as alleged in citation no. 

2098584. 

(12) Walsenburg violated the mandatory safety s~andard 

published at 30 C.F.R. § 56.12-30 as alleged in citat~on no. 

2009968. 

(13) Walsenburg viola.ted the mandatory safety standard 

published at 30 C.F.R. § 56.12-4 as alleged in citation no. 

2009970. 

(14) Walsenburg violated the mandatory safety standard 

published at 30 C.F.R. § 56.14-1 as alleged in citation no. 

2009972. 

(15) Walsenburg violated the mandatory safety standard 

published at 30 C.F.R. § 56.14-1 as alleged in citation no. 

2009973. 

(16) The reasonable and appropriate civil penalty for 

each of the violations affirmed in this case is $20.00. 

ORDER 

Accordingly, citations numbered 2098378, 2098380 and 

2098582 are ORDERED vacated; all other citations are ORDERED 

affirmed~ and Walsenburg is ORDERED to pay the Secretary of 

Labor a civil penalty totaling $200.00 within 30 days of the 

date of this decision. 

449 

John A. Carlson 

Administrative Law Judge 
Distribution: 

Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 

80294 (Certified Mail) 

Ernest U. Sandoval, Esq., P.O. Box 541, Walsenburg, Colorado 81089 

(Certified Mail) 

450 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE «<lO 

DENVER, COLORADO 80204 March 26, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

WALSENBURG SAND & GRAVEL 

COMPANY, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-79-M 

A.C. No. 05-03920-05501 

Vezzani Pit Mine 

Appearances: Robert J. Lesnick, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for the Petitioner; 

Ernest u. Sandoval, Esq., Walsenburg, Colorado, 

for the Respondent. 

Before: Judge Carlson 

This case, heard under the provisions of the Federal Mine 

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

Act), arose from an inspection of respondent's gravel pit on 

December 5, 1984. On that day a federal mine inspector issued a 

single citation for the violation of a mandatory safety standard 

promulgated by the Secretary of Labor pursuant to the Act. The 

respondent, Walsenburg Sand & Gravel Company, Inc. (Walsenburg), 

contested the Secretary's petition for imposition of a $20.00 

civil penalty4 The case was heard at Pueblo, Colorado, with 

both parties presenting evidence. Both parties waived the filing 

of briefs or other post-hearing submissions. 

REVIEW AND DISCUSSION OF THE EVIDENCE 

On December 5, 1984, two federal mine inspectors, Ralph 

E. Billips and Carl Baron, visited Walsenburg's gravel pit in 

Huerfano County, Colorado. In the course of inspecting the 

company's heavy equipment, they observed a fluid leak from the 

rear differential of a Hough 70 Series front-end loader. The 

leak was on the right side of the differential, and the fluid 

was present on the exterior of the right-rear wheel. 

The four-wheeled loader was dumping rock into the rock 

crusher at the time of the inspection. The two inspectors knew 

that the loader had drum brakes in the rear, and feared that 

the leaking differential fluid - they believed it came from a 

defective seal - would reduce the efficiency of the right-rear 

wheel brakes, or render them wholly inoperable. This, they 

reasoned, would endanger the operator of the loader. 

451 
Inspector Billips stopped the loader operator and 

questioned him about the brakes. According to Billips, the 

operator replied that the leaking fluid " ••• was definitely 

affecting the right-rear brakes of the loader" (Tr. 8-9). 

Later, Billips testified that the loader operator said that 

the right-rear brakes were 11 completely inoperable" (Tr. 15). 

Inspector Baron, who was present during the conversation, 

indicated that the operator said" ••. he was having problems 

with the right-rear brake" (Tr. 36). 

Based upon this information, Inspector Billips issued a 

citation charging Walsenburg with violation of the mandatory 

safety standard published at 30 C.F.R. § 56.9-2. That standard 

provides: 

Equipment defects affecting safety 

shall be corrected before the equipment is used. 

Mr. Louis Vezzani testified for Walsenburg. He indicated 

that he is the "owner and operator" of the company. Vezzani 

acknowledged that the rear differential was leaking some fluid. 

He testified, however, that he and a mechanic pulled the rightrear wheel and examined the brakes after Billips issued the 

citation. The bands and drums, he claimed, were wholly free 

of fluid and were in proper working order. He said that the 

seal itself was not leaking; but he found that the plate upon 

which the seal was seated had a small "ding" which accounted 

for the escape of differential oil. He found nothing which would 

impair the effectiveness of the brake. He and his helper repaired the "ding," and replaced the seal, but did nothing more 

(Tra 22-24) a 

Moreover, according to Mr. Vezzani, no employee had reported to him any difficulty with the loader's brakes. 

It is clear from the inspectors' testimony that they did 

not contend that the mere presence of differential fluid on the 

exterior of the rear wheel was a defect "affecting safety" under 

the cited standard. Otherwise they would not have gone on to 

explain the hazards of brake failure associated with the fluids 

reaching the interior of the wheel and specifically the bands 

or drums. Put another way, the presence of the fluid raised in 

their minds a possibility that effective braking was jeopardized. 

They found confirmation for that suspicion in the admission of 

the operator of the loader that the right-rear brake was defective. 

452 
Counsel for Walsenburg maintained that the declarations of the 

loader operator should be excluded as hearsay. The statements of 

the operator were clearly admissible, however, under 80(d) (2) (D) of 

the Federal Rules of Evidence as statements of an agent concerning 

a matter within the scope of his employment. Such statements are 

not hearsay under the Rule. While the employee's statements were 

admissible, the question confronting us here is one of testimonial 

weight. 

Mr. Vezzani testified that he inspected and tested the brakes 

and found no defect. Mr. Vezzani was a forthright witness, and I 

found his testimony convincing. I do not doubt that the loader 

operator spoke as the inspector said he did. Unlike Vezzani, however, who was present and subject to cross-examination, neither 

the accuracy of the operator's observations or his possible motives 

or biases were open to courtroom scrutiny. 

I therefore conclude that the Secretary has failed in his 

proofs. The citation must be vacated. 

CONCLUSIONS OF LAW 

Upon the entire record herein, and in accordance with the 

factual findings contained in the narrative part of this decision, 

the following conclusions of law are made: 

(1) This Commission has jurisdiction to hear and decide this 

matter. 

(2) Walsenburg did not violate the standard published at 

30 C.F.R. § 56.9-2 as alleged. 

ORDER 

Accordingly, the citation in this case is ORDERED vacated and 

this proceeding is dismissed. 

Distribution: 

ohn A. Carlson 

dministrative Law Judge 

Robert J. Lesnick, Esq., Office of the Solicitor, U!S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 

80294 (Certified Mail) 

Ernest u. Sandoval, Esq., P.O. Box 541, 110 E. 6th Street, Walsenburg, 

Colorado 81089 (Certified Mail) 

/ot 

453 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GENERAL ROCK & SAND, 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 M h 2 8 19 S 6 DENVER, COLORADO 80204 arc I 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 84-70-M 

A.C. No. 02-01918-05501 

Gravel Pit Mine 

Appearances: Theresa Kalinski, Esq., Office of the Solicitor, 

U.S. Department of Labor, Los Angeles, California, 

for the Petitioner. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, charges respondent with violating safety regulations 

promulgated under the Federal Mine Safety and Health Act, 30 U.S.C. 

§ 801 et seq., (the Act). 

After notice to the parties, a hearing on the merits took place 

in Phoenix, Arizona on January 28, 1986. 

Procedural Matters 

At the commencement of the hearing the Secretary moved for dismissal of the respondent 0 s notice of contest on the grounds that the 

operator had failed to appear at the hearing. 

The judge denied the motion and directed that the Secretary 

proceed with his proof. Subsequently, the judge issued an order to 

show cause directed to respondent. The respondent failed to reply 

to tb.e ordero 

Summary of the Case 

Colby Lumpkins, Jr., an MSHA inspector and a person experienced 

in mining, inspected respondent on December 14, 1983. 

The inspector found that the conveyor was not provided with a 

stop cord or barrier. A tension cable could have been used (Tr. 6). 

There were two or three workers operating the plant and employees 

would be in this area for maintenance purposes. 

454 
In the inspector's opinion the hazard in this situation was that 

it would not have been possible to stop the conveyor if a worker became 

entangled in the equipment. 

The foregoing facts caused the inspector to issue Citation 2088144 

for the violation of 30 C.F.R. § 56.9-7. The regulation provides as 

follows: 

Unguarded conveyors with walkways 

shall be equipped with emergency 

stop devices or cords along their 

full length. 

Inspector Lumpkins further observed that the wires connecting to 

the junction box lacked a bushing connection. A bushing serves to 

hold the cable steady as well as secure. It also prevents the cable 

from being pulled out. The junction box itself was attached to a 

drive motor on a shaker screen. Its position subjected it to vibration. 

In the inspector's opinion this violative condition could cause 

the insulation to wear through. Electrical shocks could result if 

this occurred (Tr. 8,9}. 

The foregoing facts caused the inspector to issue Citation 2088145 

for the violation of 30 C.F.R. § 56.12-8. The cited regulation provides 

as follows: 

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, 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 Lumpkins further observed an unguarded tail pulley 

section. In his opinion both sides of the tail pulley should have 

been guarded. Employees could be caught in the unguarded pulley 

(Tr. 12). 

The foregoing facts caused the inspector to issue Citation 2446500 

455 
for the violation of 30 C.F.R. § 56.14-1. The cited regulation provides as follows: 

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. 

Discussion 

The record establishes a violation of each of the contested 

citations. They should be affirmed. 

Proposed Civil Penalties 

The statutory criteria for assessing civil penalties is contained in 30 U.S.C. § 820(i) which provides as 'follows: 

The Commission shall have authority to assess 

all civil penalties provided in this Act. In 

assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous 

violations, the appropriateness of such penalty 

to the size of the business of the operator charged, 

whether the operator was negligent, the effect on 

the operator's ability to continue in business, 

the gravity of the violation, and the demonstrated 

good faith of the person charged in attempting to 

achieve rapid compliance after notification of a 

violation. 

The record establishes that the operator has no previous adverse history. In addition, the operator must be considered to be 

small inasmuch as it only employs two or three workers. The record 

does not present any information concerning the operator's financial 

condition. Therefore, in the absence of any facts to the contrary, 

I find that the payment of penalties will not cause respondent to 

discontinue its business. Buffalo Mining Co., 2 IBMA 226 (1973) 

and Associated Drilling, Inc., 3 IBMA 164 (1974). The operator 

.was negligent since the violative conditions were open, obvious and 

known to the operator from a prior inspection. The gravity of the 

violations was high since severe injuries could have resulted from 

these conditions. To the operator's credit was its rapid abatement 

of the violations. 

After considering the statutory criteria, I deem that the 

proposed penalties are appropriate. 

456 
Conclusions of Law 

Based on the entire record and the factual findings made in the 

narrative portion of this decision, the following conclusions of law 

are entered. 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated 30 C.F.R. § 56.9-7, § 56.12-8 and 

§ 56.14-1. 

3. The contested citations and the proposed civil penalties 

therefor should be irmed. 

ORDER 

Based on the foregoing facts and conclusions of law I enter the 

following order: 

1. Citation 2088144 and the proposed penalty of $20 are affirmed. 

2. Citation 2088145 and the proposed penalty of $20 are affirmed. 

3. Citation 2446500 and the proposed penalty of $54 are affirmed. 

4. Respondent is ordered to pay the sum of $94 within 40 days 

of the date of this decision. 

Distribution: 

Theresa Kalinski, Esq., Office of the Solicitor, U.S. Department of 

Labor, 3247 Federal Building,· 300 N. Los Angeles Street, Los Angeles, 

California 90012 (Certified Mail) 

Mr. Merril Jessop, Owner, General Rock & Sand, P.O. Box 237, Page, 

Arizona (Certified Mail) 

/ot 

457 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

' OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRE~ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CO-OP MINING COMPANY, 

Respondent 

333 W. COLFAX AVENUE, SUITE 400 M h 2 B 19 B 6 DENVER, COLORADO 80204 arc , 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 85-165 

A.C. No. 42-01697-03540 

Bear Canyon No. 1 Mine 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for the Petitioner; 

Carl E. Kingston, Esq., Co-op Mining Company, 

Salt Lake City, Utah, 

for the Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, (MSHA), charges respondent with violating 

safety regulations promulgated under the Federal Mine Safety and 

Health Act, 30 U.S.C. § 801 et seq., (the Act). 

After notice to the parties, a hearing on the merits commenced in Salt Lake City, Utah on February 11, 1986. 

At the hearing the parties stated that they had reached a 

settlement agreement. No person objected to the proposal. 

The citations, the standards allegedly violated, the original 

assessments and the proposal dispositions are as follows: 

Citation 

Number 

2501153 

2501155 

2501157 

2072270 

2072271 

2072272 

Stand·ard 

C.F.R., Title 30 Assessment Settlement 

§ 77.205(a} $1000 Vacate 

§ 48.7(c) 2000 Vacate 

§ 48.5(a) 400 Vacate 

§ 77.209 5000 $5000 

§ 77.1710(g) 4000 3000 

§ 48.5(a) 2000 Vacate 

458 
Discussion . 

In support of his motion to vacate Citations numbered 2501155, 

2501157 and 2072272 the Secretary states that the alleged violations 

of the training requirement involved a single miner. It is further · 

indicated that the miner in question received such training but that 

fact was improperly recorded. 

In support of his motion to vacate Citation numbered 2501153 

the Secretary states the citation is redundant and such alleged 

violations are within the allegations contained in Citation numbered 

2072270. 

I have reviewed the proposed settlement and I find it is in 

order and in the furtherance of the public interest. 

·Accordingly, I enter the following: 

ORDER 

1. Citation 2501153 and all penalties therefor are vacated. 

2. Citation 2501155 and all penalties therefor are vacated. 

3. Citation 2501157 and all penalties therefor are vacated. 

4. Citation 2072270 and the proposed penalty of $5,000 are 

affirmed. 

5. Citation 2072271 and the penalty, as amended, in the amount 

of $3,000 are affirmed. 

6& Citation 2072272 and all penalties therefor are vacated. 

Law Judge 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 

80294 (Certified Mail) 

Carl E. Kingston, Esq., Co-op Mining Company, 53 West Angelo Avenue, 

P.O. Box 15809, Salt Lake City, Utah 84115 (Certified Mail) 

/ot 

459 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 FEB 2 71986 

HAROLD J. ATKINS, 

Complainant 

DISCRIMINATION PROCEEDINGS 

v. 

CYPRUS MINES CORPORATION, 

Respondent 

Docket No. WEST 84-68-DM 

MD 82-82 

Cyprus Northumberland Project 

DECISION 

Appearances: Mary Gray Holt, Esq., Jolles, Sokol & Bernstein, 

Portland, Oregon, 

for Complainant; 

John F. Murtha, Esq., Woodburn, Wedge, Blakey & 

Jeppson, Reno, Nevada, 

for Respondent. 

Before: Judge Morris 

Complainant Harold J. Atkins, (Atkins), brings this action 

on his own behalf alleging he was discriminated against by his 

employer, Cyprus Mines Corporation, (Cyprus), in violation of the 

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

seq. , (the Act ) • 

Section 105(c) of the Act, provides in part, as follows: 

No person shall discharge or in any other manner discriminate against ••• or otherwise interfere with the 

exercise of the statutory rights of any miner ••• because such miner • • • has filed or ma,de a complaint under 

or relating to this Act, including a complaint notifying 

the operator or the operator's agent, or the representative of the miners ••• of an alleged danger or safety or 

health violation ••• or because such miner ••• has instituted or caused to be instituted any proceeding under 

or related to this Act or has testified or is about to 

testify in any such proceeding, or because of the exercise by such miner ••• on behalf of himself or others of 

any statutory right afforded by this Act. 

After notice to the parties, a hearing on the merits took 

place in Reno, Nevada on June 19, 1985. 

The parties filed post-trial briefs. 

460 
Issues 

The issues are whether complainant was discriminated against 

by respondent in violation of the Act. If such discrimination 

occurred, then what damages should be awarded. 

Summary of the Evidence 

Complainant's Evidence 

Harold J. Atkins, 43 years of age and inexperienced in 

mining, was hired by Cyprus on July 9, 1981. His initial duties 

included utility work and cleaning the leach pads. His activities also involved work in the ADR l; unit where the utility crew 

helped mix cyanide and haul water. -The water, dumped into a 

preholding tank, feeds the boiler (Tr. 34-37, 41). 

After three months Atkins transferred to the pit as a grater. 

operator where he remained about 2 1/2 to 3 months (Tr. 37). 

About October 1, 1981, because of higher pay, Atkins 

transferred to the ADR plant as an operator (Tr. 38>. He had no 

previous experience and the foreman trained him to run the mill 

(Tr. 39). The work process in the ADR was described as follows: 

material containing gold and precious metals enters a preg pond 

from the leach pads. The material then goes into the ADS circuit. 

Solution is filtered through and captured in the carbon (Tr. 39). 

I 

After a time the material is moved into a preheat holding 

tank and later transferred to a strip tank. The solution is then 

heated by a boiler and it then goes to electrowind where the gold 

is removed (Tr. 40). The procedures include stripping, reclaim~ 

ing and preheating. The stripping process was almost continuous 

(Tr. 40, 42) • 

After two or three weeks in the ADR plant Atkins experienced 

1 "nuisance" from the ammonia released in the stripping process. 

He had headaches; in addition, his nose was dry and bothering him. 

Since he felt the condition was minor he did not see a doctor at 

that time (Tr. 41, 42). 

Atkins was elected to the mine safety committee and attended 

his first meeting in February 1982. The Committee discussed 

first aid, inadequate ventilation and communications in event of 

emergencies. When Atkins applied for the foreman's position he 

was told he could not remain as a member of the committee if he 

received the promotion (Tr. 42-44, 48). 

1/ ADR: an acronym for absorption, deabsorption and refining CTr. 

254). 

'461 
Atkins first became concerned about mercury because of 

workers Eagle, Legace and Bowers. Worker Eagle pointed out that 

the mercury (which could be seen) was accumulating in ADR tank 

No. 1. Legace spoke to Atkins about his dizziness and other 

problems which he related to the ADR work (Tr. 44, 45, 235). 

Atkins thought Legace's physical problems and symptoms might 

be relevant to a worker in the ADR because of the carbon, the 

open tanks and the refining process (Tr. 46, 47). Atkins thought 

he was also exposed to mercury. Legace said it should be checked 

out. He further recommended that Atkins and anyone else in the 

ADR contact a doctor. This was the reason Atkins sought medical 

attention (Tr. 47). 

Sometime in April, about the time of the discussions with 

Legace, Atkins thought he had a physical problem. The buildup of 

the ammonia was progressing to a point where he knew he should 

have his sinuses checked. His nose was dry all of the time and 

he was having breathing problems. Additional symptoms included 

headaches, dizziness and blurred vision. Neither food nor coffee 

tasted right (Tr. 49-51). 

Most of the time during his stay in the ADR, Atkins' main 

problem and concern was exposure to ammonia fumes (Tr. 120; Ex. 

R23, pg. 2). MSHA did not issue any citations for excessive 

levels of ammonia (Tr. 121). 

Atkins visited Dr. Horgan on April 24, 1982. A quantitative 

test for mercury showed a level of 65. Industrial guidelines 

indicate an acceptable level is under 150. A toxic level is 

above 150. Atkins wasn't satisfied with the doctor's answers (Tr. 

193-196; Ex. RS). 

On April 29, 1982, Atkins had a quantitative test from Dr. 

Andrews. The doctor stated that 65 was high and he indicated the 

State level was 150 milligrams. Atkins knew Legace was experiencing problems with a level of 86 or 87 (Tr. 49-53). 

Atkins was the day foreman when MSHA inspector Frank B. 

Seale came on the premises on May 4, 1982. A 3M tag was used to 

test for mercury. There were no fans and the inspector, according to Atkins, was "staggered" at some of the readings (Tr. 60, 

61, ?21). 

Atkins was not aware of the later MSHA visit on June 14. 

But in the interim Cyprus had taken corrective measures: these 

included warning signs, fume surveys, mercury testing and 

respirators (Tr. 223, 224, 318). 

Within two or four days of the violation Atkins stopped at 

Seale's office to talk about the testing equipment. He was also 

interested in seeing the MSHA books. Seale gave Atkins copies of 

462 
the Cyprus citation (Tr. 61-63). The citations had not been 

posted in the mine (Tr. 63). Atkins later received a full documentation from the MSHA Arizona office (Tr. 64). 

There was probably more concern in the plant for ammonia 

than for mercury. There was no ventilation and you could feel 

the ammonia instantly (Tr. 64, 65). 

After the MSHA inspection the company took care of the 

problem to a large degree <Tr. 65). 

On June 9, 1982, Atkins visited Dr. Andrews, a pulmonologist. Complaints to Andrews included chemicals, ammonia, 

cyanide fumes and exposures to mercury. Complete blood and urine 

tests failed to confirm mercury poisoning. The blood mercury 

level was identified as less than 1. The reference range is less 

than 2.6; the level is potentially toxic if it is over 2.6 (Tr. 

202-204; Ex. Rl4). 

On June 10, 1982, Dr. Givens, a company doctor, gave Atkins 

a general physical examination. The symptoms exhibited by 

Atkins, which all occurred about June 10, included nausea, 

colitis and split vision. The doctor was more interested in 

writing than in listening so Atkins did not tell him all of his 

symptoms (Tr. 54, 69, 70). Atkins showed Dr. Givens the 

quantitative test. He stated that things were "alright" (Tr. 

55). Dr. Givens also told Atkins that his health was generally 

excellent. Dr. givens did not comment on the symptoms (Tr. 55). 

On June 29, 1982, Atkins saw Dr. Badshah, his family 

physician, to whom he also showed the quantitqtive test. Dr. 

Badshah diagnosed Atkins' condition as colon colitis. He also 

had a lower and upper G.I. performed as well as a rectal 

examination. The blood tests forwarded to Dr. Badshah by Dr. 

Andrews were normal (Tr. 55-58, 65, 215). 

Atkins was concerned about his health and he mentioned to 

superintendent Leveaux that he would like to temporarily leave 

the ADR because of his health. Leveaux said management would 

need a doctor's statement to that effect (Tr. 65-67, 238). 

Atkins believed that the severity of the colon problem was 

worsening, and the condition was playing on his nerves. Atkins 

felt the ADR was unsafe for him because his medical problems 

started there and they were not clearing up. He was having split 

vision, mostly in the right eye. This occurred four times in a 

30 day span just after he started going to Dr. Badshah (Tr. 68, 

69, 242). Badshah had suggested Atkins contact Dr. Schonders, an 

ophthalmologist. The specialist, in turn, suggested that Atkins 

go to the University because the problem was complicated (Tr. 69, 

213). Dr. Schonders, as well as Doctors Horgan, Andrews and 

Givens failed to confirm mercury poisoning. But Or. Badshah said 

it was possible (Tr. 214, 220). 

463 
Atkins returned to Dr. Badshah on July 9, 1982, where he related the same symptoms; namely, exposure to chemicals including 

ammonia, cyanide and fear of mercury exposure. Dr. Badshah gave 

Atkins a note which stated: 

To whom it may concern: Jim Leveaux. This patient is 

having cramping, abdominal pains, nausea. On exam there 

is marked spasticity of the colon. He is advised to 

avoid exposure to chemicals which are likely to aggravate 

this condition. (Tr. 71, 72, 215, 216; Ex. R23). 

Leveaux looked at the doctor's note and stated it would be 

necessary to talk to Appelberg, the Cyprus personnel manager (Tr. 

73, 74). Appelberg told Atkins he would transfer him to utility 

but cut his pay. In the ensuing discussion Atkins claimed this 

was a medical situation and his miner's rights guaranteed that he 

keep his foreman's pay in the utility job. Appelberg agreed to 

the transfer (Tr. 73-79). Atkins went to utility thinking he 

would retain his foreman's pay (Tr. 126-127). 

The next day Appelberg told him his pay was cut. He could 

either go back into ADR, leave the property, or be fired. Rather 

than be fired Atkins returned to the ADR. Atkins also stated he 

returned to utility the next day (Tr. 73-79). 

One day before he was terminated Atkins explained the 

ultimatum and medical situation to MSHA inspector Frank Seale at 

the MSHA office. The next day (July 15) Atkins was told to work 

in the ADR or be fired (Tr. 78-81). 

Before July 15th, between the two MSHA inspections, Atkins 

had told management that it was unsafe to work in the ADR. On 

the day he was terminated he did not say it was unsafe because he 

was more concerned about getting a note from the doctor than in 

closing down the ADR (Tr. 243). 

Atkins also told Appelberg that he needed to get out of the 

ADR. It was unsafe for him <Tr. 238). 

Atkins confirmed the contents of the typewritten note given 

to him by Appelberg when he was terminated and as well as his 

handwritten reply requesting an additional examination by a 

company doctor before he would return to the ADR (Tr. 112, 117, 

118, 119; Ex. C21, R24). 

Atkins was fired on July 15 as he refused to work in the ADR. 

The evidence contains a two page medical report, dated July 16, 

1982, from Dr. Nur Badshah. The report states, in part, as 

follows: 

IMPRESSIONS: 

1. Loss of central vision of right eye, due to optic 

neuritis of the right eye, etiology most probably toxic 

neuritis due to metallic poisoning. 

464 
2. Occult lower GI bleeding, probably due to gastroenteropathy related to metallic poisoning. 

3. Spastic colitis. 

So far, I have not received the copies of the report from 

the pulmonologist. I recommend that patient needs to be 

further evaluated by a neurologist, because metallic 

poisoning can cause nervous system changes affecting 

especially the cerebellar system. This should be 

thoroughly evaluated by a neurologist. I also recommend 

that the patient should be thoroughly evaluated by a 

gastroenterologist for his gastrointestinal symptoms. 

Until he is further evaluated by a neurologist and 

gastroenterologist, patient is advised to avoid contact 

with chemicals and he has been given a note to that 

effect on 7-9-82. (Exhibit Cl4). 

Atkins believed he suffered mercury poisoning in 1982. His 

quantitative test was 65. He could not state whether the ADR was 

a safe place to work in July 1982. When he discussed termination 

with Appelberg on July 15, 1982, he may not have claimed that it 

was unsafe to work in the ADR. But at the time of that 

discussion he believed the levels were close to acceptable and it 

could have been perfectly safe in the ADR (Tr. 109). Atkins 

would go back in the ADR today (Tr. 109-110). Further, he would 

have gone back if there hadn't been a problem (Tr. 124). 

Before Atkins moved from Round Mountain he would have 

accepted a job in the ADR if it had been offered to him. He 

would not have gone back to work in the ADR in August or 

September 1982 because of a possible NIC medical evaluation (Tr. 

99-100)0 

Atkins last hourly wage at Cyprus was $10.35 or $11.47 as 

the ADR foreman. If he had not been fired he would have earned 

$36,000. After being laid off in two months, Atkins found employment with Ray Dickinson earning $5 an hour. He worked there 

two and one-half months (Tr. 80-85). He was also employed at 

Teague Motor Company in 1984 earning $800 per month. In 

addition, he had a county job for three months earning $800. 

After the county job Atkins received unemployment compensation. 

He has not worked since that time except about eight months ago 

he occasionally played in a band on weekends. This part-time 

work pays $80 a weekend (Tr. 80-85, 94, 97, 98; Ex. C21, C27, 

C28). Atkins "guesses" that he has earned $300 playing in the 

band since he was terminated by Cyprus (Tr. 94). 

The 1040 U.S. income tax returns for 1981 and 1982 show, respectively, wages of $12,924 and $15,639 (Tr. 89; Ex. C25, C26). 

465 
Atkins' trailer had been gutted before he acquired it in 

1972 or 1973. At that time he paid $4,000 for it. He fixed it 

and estimated its value at $8,000. He sold it for $4,000 because 

there was pressure on him to leave the company property (Tr. 87, 

93, 94). 

After he sold the trailer Atkins moved back to Oregon three 

and one-half months after he was terminated. There were two 

trips involved which cost him $800 to $900 for trailer rentals 

(Tr. 88, 109-110). 

Atkins acknowledges that he received a written notice of 

having had eight absences in the previous twelve months (Tr. 114; 

Ex. R22). 

Mrs. Atkins testified that her husband's health problems 

began in 1982. He complained and became irritable. Additional 

symptoms were mostly abdominal cramping and nasal headaches. She 

related his ill health to conditions in the mine because he had 

been in good health before working there (Tr. 250-252). 

Respondent's Evidence 

William Hamby, James Appelberg, Frank Seale and Sharon 

Badger testified for Cyprus. 

William Hamby, the plant superintendent and metallurgist, 

indicated that Cyprus was closing down its operation in September 

1985. He did not expect to be employed at the end of 1985 (Tr. 

253, 254, 296, 297). 

Hamby and Atkins were in daily contact when Atkins began 

working as an operator in the ADR in October 1981. Atkins had 

successfully bid on the operator's job. As an ADR operator 

Atkinsv duties included monitoring the pump, reagent mixing, and 

reagent determinations for strength, advancing carbon and mixing 

it (Tr. 256-261). 

In February 1982, Cyprus learned of mercury problems in the 

ADR. The mercury, which came as a surprise to Cyprus, was 

detected by monitoring with a 3M 3600 Model badge type dosimeter 

(Tr. 265, 266). 

·In March 1982 Cyprus ordered and installed a 98,000 C.F.M. 

fan in the ADR (Tr. 296). 

When Atkins became safety representative he voiced his 

concerns about the plant environment, the mercury and the quality 

of the air. He also complained about ammonia CTr. 261). There 

were four leaky pipes about the plant but, for the most part, 

ammonia in the atmosphere occurred when an operator would leave a 

hatch open. That would be the major source of the ammonia smell 

466 
(Tr. 262). When Atkins complained about the ammonia Hamby instructed them to keep it out of the atmosphere (Tr. 262). Prior 

to March 1982 Cyprus was not certain what was "going on" in relation to the possibility of mercury being in the plant (Tr. 

262) • 

Hamby wasn't sure of the circumstances but Atkins told him 

that he believed it was unsafe or hazardous to work in the ADR 

(Tr. 262-263). 

In April 1982 Atkins was promoted to working foreman. The 

position opened because Cyprus went to full production. Hamby, 

Leveaux and three other working foremen thought he was best 

qualified for the position (Tr. 263). Because of the direct line 

between management and foreman it was suggested to Atkins that 

he might want to relinquish his duties as safety representative 

(Tr. 264). 

Hamby denies that he ever threatened Atkins' job. Once he 

told him he was shooting his mouth off. In a handwritten note, 

dated April 23, 1982, he recorded that he told Atkins to keep 

his opinions to himself about possible contamination· by mercury. 

Further, some of the people were complaining that he didn't know 

what he was talking about and it was upsetting them. Atkins replied that he would "cool it" (Tr. 282, 283; Ex. R4). 

On April 27 Hamby, in a letter to plant personnel, sought to 

bring all employees together with the plant hygienist and company 

doctor to discuss mercury (Tr. 269; Ex. R7). 

The company considered mercury to be a problem because of 

the hazards associated with it. Before May 4 the company had 

taken steps to discover the source of the mercury levels by using 

a Bacharach MB-2 sniffer. On May 4, 1982, the new equipment was 

not operating properly. It had been inoperative for a week CTr. 

267-269). 

On May 4 MSHA inspector Frank B. Seale inspected the ADR. 

On that day he issued five citations. They allege Cyprus failed 

to post warning signs concerning health hazards in the ADR; 

atmospheric concentrations of mercury vapor exceeded the excursion limit for an eight hour TWA coupled with a failure to use 

respiratory protection; failure to conduct fume surveys; failure 

to use shielding during arc welding and failure to guard a chain 

sprocket. The foregoing citations were subsequently abated by 

Cyprus (Tr. 171-179; Ex. R9). 

On the day of the inspection 3M badges were placed on 

employees Herrera, White and Atkins. The 3M badges were analyzed. 

The analysis indicated the three refinery workers had been 

exposed to mercury fumes. The TWA rates for Herrera, Wh.ite and 

Atkins were, respectively, .081, .084 and .168 (Mg/M3). Atkins' 

467 
dosimeter badge was 3.36 times the TLV. Further, it was twice 

the TLV of the other two employees. Citation No. 2008502 was 

issued by inspector Seale on July 20, 1982, for the exposure to 

the mercury fumes to Herrera, White and Atkins that occurred on 

May 4, 1982 (Tr. 171, 172, 189, 190; Ex. R9). The delay of over 

three months was caused in part by the time required to analyze 

the exposure (Tr. 171, 172, 189, 190; Ex. R9). On August 10, 

1982, Citation 2008502 was terminated when it was found that the 

TLV for mercury complied with the standard (Tr. 184; Ex. R27). 

Witness Seale also testified generally converning the 

meaning of the TLV and TWA for mercury (Tr. 164-167; Ex. R6). 

Hamby and Atkins discussed the TLV's. Atkins was always 

trying to convert the TLV's to parts per million. But there is 

no relationship between the two (Tr. 282). 

After the MSHA inspection Cyprus continued to test for 

mercury by using 3M badges, sniffer equipment, as well as urine 

and blood sampling. Hamby discussed rules and practices with 

employees and instructed them to wear respirators (Tr. 268, 

270-273, 285; Ex. RlO, Rll). The purpose was to address the 

mercury problem and protect the employees (Tr. 272). On one 

occasion Atkins was not wearing his respirator and Hamby advised 

him of the company policy (Tr. 174, 273; Ex. Rll). 

To alleviate the mercury problem Cyprus also hired 

D'Appalonea, a mercury clean-up company. They used sulfur dust, 

an industrial vacuum cleaner and sponges to clean-up the ADR in 

June (Tr. 280; Ex. Rl2). 

In June 1982 Cypru? also ordered a new ventilation system. 

It was installed in the ADR in August 1982 (Tr. 296). 

In a performance report of July 6, 1982, Hamby rated Atkins 

unsatisfactory in hygiene, safety, housekeeping, willingness to 

work, dependability, attendance and initiative (Tr. 275, 277; Ex. 

Rl3). 

Concerning attendance, it was company policy to advise an 

employee when he had accrued six absences. After missing eight 

days the employee receives a written warning stating that termination is possible on the tenth absence. Atkins was given a 

written warning on July 8, 1982, for his eighth absence. Atkins 

refused to sign the notice because of a disagreement over what 

constituted an excused absence (Tr. 276; Ex. R22). 

Atkins' doctor said he couldn't be exposed to chemicals so 

he couldn't be placed back in the ADR (Tr. 289). 

468 
On July 15, 1982, Atkins refused to go into the ADR. He 

wanted a doctor's approval to return to work (Tr. 263, 290). He 

was terminated because he refused to work in the ADR CTr. 289, 

290). Hamby claimed the ADR was a safe place to work (Tr. 289, 

290). 

James M. Appelberg, the supervisor of office services for 

Cyprus, participated in the decision to fire Atkins (Tr. 299, 

301) • 

According to Appelberg, Atkins requested a transfer to 

utility from ADR because mercury contamination and ammonia vapors 

were causing him diminished sight in one eye, sinus and nose problems, as well as inflammation of the lungs (Tr. 301). They had 

several conversations regarding the transfer. Dr. Badshah's note 

indicated he should not work in a chemical environment (Tr. 301, 

302, 312). Atkins was unwilling to take a cut in pay. An MSHA 

representative recommended that Atkins be kept at his present 

level of pay (Tr. 301-304). 

Atkins worked on the utility crew for three days then he 

went back to the ADR for a day shift. He returned to the ADR 

because the Cyprus supervisor in Denver stated Atkins would have 

to take an appropriate cut in pay if he remained on utility work 

(Tr. 303). In the period of July 13th to July 15th Appelberg 

expressed his opinion to Atkins that the ADR had not been 

determined to be a hazardous place to work. Atkins concern was 

to get himself out of the ADR because of the chemical vapors (Tr. 

304, 305). 

On July 15, Appelberg advised Atkins in a typed note that he 

(Atkins) had been given a physical exam on June 10th by Dr. 

Givens and approved to work in the ADR plant. The note further 

stated that since he continued to refuse to do his assigned work 

"you leave us no alternative but to terminate your employment" 

(Tr. 305~ Ex. R24). Atkins' final options were to go on disability, NIC (Nevada Industrial Commission), or remain as ADR 

plant foreman. Appelberg indicated it would not be a job related 

illness (Tr. 304, 313, 316). Atkins replied something to the 

effect of "OK, fire me 11 (Tr. 305). 

At the time of the termination Atkins wrote on the termination notice that he would work in the ADR if the company doctor 

would examine him and state in a letter that he was physically 

able to work in the mill atmosphere (Tr. 305, 306; Ex. R24). In 

his handwritten reply Atkins further referred to the letter of 

June 30, 1982, and stated that his doctor (Badshah) had found 

colon colitis and further found that chemicals were aggravating 

his condition. In additi'on, he could not stand the smell of 

ami:nonia in the ADR. The ammonia smell and the mercury in the 

plant had not been corrected (Ex. R24). 

469 
Appelberg replied that ~tkins had been cleared for work by a 

company doctor five weeks before. Further, MSHA had abated the 

citations in the ADR, so there was no proven health problem (Tr. 

305, 306). Prior to the termination Appelberg had received a 

note Cl July 1982) from Dr. Givens stating, in part, that he had 

not advised Atkins to consult outside medical help. Further, he 

told Atkins that the company would assume no financial obligation 

for his self procured medical attention (Tr. 306; Ex. R20). 

Dr. Givens, in a telephone conversation, told Appelberg that 

he did not find that Atkins had been contaminated by mercury. 

In addition, Atkins should be able to perform his duties as plant 

working foreman (Tr. 307). 

During conversations between July 1st and 15th Atkins 

claimed he had miner's rights in that he would not have to take a 

pay cut if he was transferred to utility. An MSHA representative 

said the easiest approach was to transfer him to utility at his 

current pay (Tr. 307, 308). According to Appelberg, Atkins 

assertion of his miner's rights did not enter into the decision 

to terminate him (Tr. 308). 

Atkins was earning $11.97 an hour as a working foreman 

compared with $9.33 as a utility worker (Tr. 309, 310). 

Appelberg testified that Joseph Legace had worked in the ADR 

for about two months. He filed a workmen's compensation claim 

alleging mercury contamination. The claim was disallowed (Tr. 

310) • 

Sharon Badger, chief of benefit services for the State of 

Nevada Industrial Insurance System, indicated the state agency 

accepted Atkins' claim on September 17, 1982. On that day Atkins 

was placed on temporary total disability that was back dated to 

July 9, 1982. Atkins received travel benefits and, in addition, 

he was paid $8,226.16 ($38.44 a day x 214 days). He was also 

sent to Parnassus Heights Disability Consultants for a 

comprehensive integrated workup by medical specialists. The 

consultants were paid $6,753.23 for their services (Tr. 155-159). 

The disability evaluation by the Parnassus Consultants 

including psychological, neuropsychological and psychiatric 

examinations, "revealed that the patient's clinical picture 

warr~nted a diagnosis of Schizophrenia, Paranoid type. This type 

of illness is considered virtually independent of environmental 

etiology and is, therefor, not industrial in origin." (Ex. R32). 

Atkins status under temporary total disability was 

terminated on the basis of the Parnassus report. NIC's last 

payment was February 7, 1983 (Tr. 80-81, 153-159; Ex. R32). 

470 
For various reasons Atkins doubts the Parnassus diagnosis. 

A portion of the medical examination was not completed. Specifically, the small bowel series was never performed by Parnassus. 

Atkins felt he should have facts, not opinions (Tr. 131-138). 

Atkins agrees he had some d.iff iculty expressing his medical 

symptoms to the Parnassus doctors. But this difficulty occurred 

because he had driven directly to San Francisco from Oregon (Tr. 

139-141, 149). 

Atkins lacks medical or related training but in his opinion 

his symptoms had to be related to chemicals (Tr. 135, 143). 

In the Parnassus report one of the physicians stated that 

"although the vision became poor after employment, he had not 

sought earlier consultation for this problem because of job 

threats" (Tr. 146; Ex. R32, pg. 19). Atkins states he was 

threatened by Hamby over a conversation concerning the manifold 

inside the ADR. Hamby also told him to mind his own business and 

to pickup his pay check (Tr. 146). Hamby stated he didn't like 

the idea of Atkins talking to miners about mercury problems (Tr. 

147). 

On August 10, 1982, MSHA inspector Seale reinvestigated the 

Cyprus plant. The investigation was caused by a letter dated 

July 18, 1982, identified in the exhibit index as an "Atkins to 

Fraser" letter. The letter refers to certain unhealthy · 

conditions in the ADR. Inspector Seale failed to find any 

violative conditions. Specifically, he found that the alleged 

hazards did not exist, or it did not present a condition of 

imminent danger, or that it was not a violation of the Act or a 

violation of a mandatory standard (Tr. 180-184; Ex. R26, R27). 

Discussion 

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 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 FMSBRC 

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 not in any part motivated 

by protected activity. If an operator cannot rebut the prima 

facie case in this manner it nevertheless may defend affirmatively by proving that (1) it was also motivated by the miner's 

unprotected activities, and (2) it would have taken the adverse 

action in any event for the unprotected activities alone. The 

471 
operator bears the burden of proof with regard to the affirmative 

defense. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38 

(November 1982). The ultimate burden of persuasion does not 

shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. 

See also Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)1 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 

1984)(specifically approving the Commission's Fasula-Robinette 

test). The Supreme Court has approved the National Labor Relations Board's virtually identical analysis for discrimination 

cases arising under the National Labor Relations Act. NLRB v. 

Transportation Management Corp., 462 U.S. 393, 397-403 (1983). 

The vast majority of cases arising under Section 105(c) of 

the Mine Act concern matters of safety. However, the Commission 

applied the above legal analysis in Rosalie Edwards v. Aaron 

Mining, Inc., 5 FMSHRC 2035 (1983), a case involving unsanitary 

toilet facilities. 

In his post-trial brief Atkins asserts that his request for 

a transfer was a protected activity within the meaning of Section 

10l(a)(7) of the Act; further, that he had a reasonable good 

faith belief that the conditions in the ADR plant constituted a 

threat to his safety or health; finally, that Cyprus' termination 

of Atkins was motivated by Atkins' protected activity. 

We will initially consider whether a request for a transfer 

is a protected activity. In this regard Atkins relies on Section 

10l(a)(7) of the Act which provides as follows: 

(7) Any mandatory health or safety standard promulgated 

under this subsection shall prescribe the use of labels 

or other appropriate forms of warning as are necessary 

to insure that miners are apprised of all hazards to 

which they are exposed, relevant symptoms and appropriate 

emergency treatment, and proper conditions and precautions safe use or exposure. Where appropriate, such 

mandatory standard shall also prescribe suitable protective equipment and control or technological procedures 

to be used in connection with such hazards and shall provide for monitoring or measuring miner exposure at such 

locations and intervals, and in such manner so as to 

assure the maximum protection of miners. In addition, 

where appropriate, any such mandatory standard shall prescribe the type and frequency of medical examinations or 

other tests which shall be made available, by the 

operator at his cost, to miners exposed to such hazards 

in order to most effectively determine whether the health 

of such miners is adversely affected by such exposure. 

Where appropriate, the mandatory standard shall provide 

that where a determination is made that a miner may 

472 
suffer material impairment of health or functional capacity by reason of exposure to the hazard covered by 

such mandatory standard, that miner shall be removed from 

such exposure and reassigned. Any miner transferred as a 

result of such exposure shall continue to receive compensation for such work at no less than the regular rate 

of pay for miners in the classification such miner held 

immediately prior to his transfer. In the event of the 

transfer of a miner pursuant to the preceding sentence, 

increases in wages of the transferred miner shall be 

based upon the new work classification. In the event 

such medical examinations are in the nature of research, 

as determined by the Secretary of Health, Education, and 

Welfare, such examinations may be furnished at the expense of the Secretary of Health, Education and Welfare. 

The results of examinations or tests made pursuant to 

the preceding sentence shall be furnished only to the 

Secretary or the Secretary of Health, Education, and 

Welfare, and, at the request of the miner, to his designated physician. 

Atkins• particularly relies on the underlined portion of 

Section l0l(a)(7). 

Atkins states there has not been any standard published 

pursuant to Section 10l(a)(7). However, he argues that the only 

applicable standard in this factual situation is the threshold 

limit value (TLV) for mercury adopted in 1973 by the American 

Conference of Governmental Industrial Hygienists as contained in 

30 C.F.R. § 55.5-1 (now recodified at 30 C.F.R. 56.5001). 

Atkins has misconstrued the scope of the Mine Act. By its 

very terms under § 105(c) the miners particularly protected are 

those miner 1 s that are the subject of medical evaluations and 

potential transfer under a standard published pursuant to Section 

101. There are no medical evaluations or potential transfers now 

contemplated within the terms of the TLV for mercury, 30 C.F.R. 

§ 56.5001. Accordingly, the above regulation cannot be held 

applicable. 

The Commission recently ruled that a miner may state a cause 

of action under Section 105(c)(l) if he is the subject of medical 

evaluations and potential transfers under such a standard 

published by the Secretary. Goff v. Youghiogheny and Ohio Coal 

Company, 7 FMSHRC 1776 (November 1985). But there was no 

indication in the decision that the Commission intended to extend 

the doctrine any further than to encompass those situations where 

the Secretary specifically addressed, by his rulemaking 

authority, the issues of medical evaluations and transfers. 

Compare the Secretary's extensive standards at 30 C.F.R., Part 90 

involving miners who have evidence of the development of pneumoconiosis as involved in Goff. 

473 
Atkins' brief further asserts that the statutory right to a 

transfer combined with his good faith reasonable belief that the 

conditions in the ADR plant constituted a threat to his safety or 

health. Atkins claims that he was suffering ill-effects to his 

health due to mercury contamination in the ADR plant. This conclusion is urged on the basis of certain facts: 

First, coworkers Legace and Bowers had been diagnosed as 

having mercury poisoning in the Cyprus refinery. Further, Legace 

had described his symptoms in detail to Atkins. 

Secondly, Atkins' quantitative urinalysis, taken at Legace's 

suggestion, revealed a level of 65 mcg/24 hours. Atkins was 

alarmed because 0-20 mcg/24 hours is considered normal but 65 mcg 

is still within the state's guidelines. 

Thirdly, Atkins knew the atmospheric conditions in the ADR 

violated the MSHA TLV standards for mercury. Atkins had been 

with the MSHA inspectors when he monitored the mercury levels in 

the ADR. Atkins had seen the mercury in the tanks. He also knew 

the citations issued by Inspector Seale were not posted by 

Cyprus, hence, he knew the company was not being candid with its 

employees. 

Fourth, Atkins' family doctor, Dr. Badshah, examined and 

treated him for his headaches, sinus and breathing problems, 

gastroenteropathy and spastic colon. Dr. Badshah told Atkins he 

thought the health problems were related to exposure to mercury 

vapor in the Cyprus mine. Dr. Badshah subsequently wrote a note 

for the plant manager, Jim Leveaux. Atkins then based his 

request for transfer to the utility crew on Dr. Badshah's advice. 

Atkins 1 claim lacks merit. The first four incidents he 

relies on occurred several months before he was terminated. 

Specifically, the Legace/Bowers conversations took place in April 

1982. The quantitative urinalysis was in the same month. The 

TLV excursion for mercury was in May 1982. The Badshah medical 

reports relate to previous alleged exposures. 

Atkins certainly may have had a reasonable basis of concern 

for his health. But the pivitol issue is whether he had a 

reasonable good faith belief that the work he refused to do on 

July 15, 1982, was hazardous to his health at or about that time. 

Bush v. Union Carbide, 5 FMSHRC 993 (1983). 

A careful study of the record causes me to conclude that no 

credible evidence supports Atkins' reasonable belief that the ADR 

was hazardous on or about July 15, 1982. 

474 
On the contrary, Atkins' evidence establishes that the ADR 

was safe. Particularly, Atkins indicated that corrective 

measures were taken by Cyprus between May 4 and June 15. These 

measures included fume surveys, mercury testing of the atmosphere, and the use of respirators {Tr. 223, 224). Further, after 

the MSHA citations the company attempted to cleanup the plant 

and, according to Atkins, Cyprus took care of the problem "to a 

great degree" CTr. 65). In addition., on June 9, 1982, complete 

blood and urine tests failed to confirm mercury poisioning {Tr. 

202-204). 

When he was asked about the conditions in the ADR on July 

15, 1982, Atkins said that he "believed the levels were close to 

acceptable." Further, the ADR "could have been perfectly safe at 

that time" (Tr. 108, 109). 

Finally, Dr. Badshah's note of July 9, 1982, written for 

Atkins, addresses his physical coqditions. It does not establish 

the conditions in the ADR at or about mid-July. 

On his termination notice <Ex. C21, R24) Atkins wrote that 

he would work in the ADR if the company doctor said he was physically able to work in the mill atmosphere. His stated reason was 

that he could not stand the smell of ammonia. In addition, he 

asserts the ammonia and the mere {mercury) had not been corrected 

(Ex. R24). 

I do not find the statements concerning the mercury to be 

credible. At the hearing, when speaking of Exhibit R24, Atkins 

stated "[t]he mercury was not a problem" (Tr. 112, 113). 

For the foregoing reasons Atkins refusal to work was not a 

protected activity. 

Cyprus at all times asserted that the ADR was a safe place 

to work at or about July 15th. But, since Atkins was not engaged 

in an activity protected by the Act, it is not necessary to examine respondent's evidence. 

Briefs 

Counsel have filed detailed briefs which have been most 

helpful in analyzing the record and defining the issues. I have 

reviewed and considered these excellent briefs, However, to the 

extent they are inconsistent with this decision, they are rejected. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, I enter the following 

conclusions of law: 

1. The Commission has jurisdiction to decide this case. 

475 
2. Respondent did not discriminate against complainant in 

violation of Section 105Cc> of the Act. 

ORDER 

Based on the foregoing facts and conclusions of law, I enter 

the following order: 

The Complaint of discrimination filed herein is dismissed. 

Law Judge 

Distribution: 

Mary Gray Holt, Esq., Jolles, Sokol & Bernstein, 721 Southwest 

Oak Street, Portland, OR 97205 (Certified Mail) 

John F. Murtha, Esq., Woodburn, Wedge, Blakey & Jeppsen, One East 

First Street, Reno NV 89505 (Certified Mail) 

/blc 

476