JULY 1982 

Commission Decisions 

7- 02- 82 East over Mining Co . 

7- 06- 82 Richard Klippstein and W.O. Pickett, Jr. 

7- 15- 82 Inland Steel Coal Co. 

7- 15-82 Penn Allegh Coal Co., Inc 

7-16-82 Itmann Coal Co. 

7- 16- 82 Gerald D. Boone v. Rebel Coal Co. 

Administrative Law Judge Decisions 

Amherst Coal Co . 

Walter A. Schulte v . Lizza Industries 

Allied Products Co. 

Eastern Associated Coal Corp . 

VA 80- 145 

WEST 81-383 

VINC 77-164 

PITT 76X241-P 

HOPE 76- 197-P 

WEVA 80- 532-D 

WEVA 82- 110 

YORK 81- 53- DM 

SE 79-46-PM 

PITT 76X203 

7- 02- 82 

7- 06- 82 

7-07-82 

7- 08- 82 

7- 08-82 

7- 08- 82 

7-09-82 

7-13-82 

7- 14-82 

7- 16- 82 

7- 16- 82 

7- 16-82 

7- 16-82 

7- 19- 82 

7- 23-82 

7- 23- 82 

7- 23- 82 

7- 26- 82 

7- 28-82 

7- 28-82 

7-29-82 

Fred Ganchuk, Lesko Bugay v. Aloe Coal 

Roger A. Anderson v . Itmann Coal Co . Amherst Coal Co. 

William A Williamson v. Bishop Coal Co. 

National Mines Corp. 

Co PENN 81-164-D 

WEVA 80- 73- D 

WEVA 81-355 

VA 80-32-D 

KENT 80-130-R 

7- 30-82 

Island Creek Coal Co. 

Frederick G. Bradley v. Belva Coal Co . 

Omar Mining Co . 

ln·1WA ex rel Billy Dal e Wise v. Consol. 

UMWA ex rel Delmar Shepherd v. Peabody 

Sol MSHA ex rel Roy Logan v. Bright Coal 

William A haro v . Magma Copper Co. 

Co-op Mining Co. 

Sellersburg Stone Co. 

VA 79-74-R 

WEVA 80- 708-D 

WEVA 81-284-R 

WEVA 82- 38-D 

KENT 81- 186- D 

KENT 81-162-D 

WEST 80-482- DM 

WEST 82-68 

LAKE 80- 363-M 

Wade G. Teets v . Eastern Associated 

A.H. Smith 

Coal WEVA 82-153-D 

YORK 81-67-M 

Sol ex rel Danny H. Bryant v. Clinchfield VA 80-162-D 

Coal Co . 

Emery Mining Corp. WEST 82-48 

Pg . 1207 

Pg. 1216 

Pg. 1218 

Pg . 1224 

Pg . 1229 

Pg. 1232 

Pg. 1236 

Pg. 1239 

Pg. 1245 

Pg . 1246 

Pg. 1247 

Pg. 1263 

Pg. 1265 

Pg . 1273 

Pg. 1285 

Pg . 1287 

Pg. 1291 

Pg . 1293 

Pg. 1307 

Pg . 1338 

Pg . 1343 

Pg. 1350 

Pg. 1357 

Pg. 1362 

Pg . 1367 

Pg . 1371 

Pg . 1379 

Pg. 1450 
Commission Decisions 
JULY 

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

Secretary of Labor, MSHA v. Richard Klippstein and W.O. Pickett, Jr., Docket 

No. WEST 81-383. (Judge Merlin, Default Decision, June 3, 1982) 

Secretary of Labor, MSHA v. United States Steel Corporation, Docket Nos. 

LAKE 81-116-M, 81-77-RM. (Judge Vail, May 27, 1982) 

Secretary of Labor, MSHA on behalf of John Cooley v. Ottawa Silica Company, 

Docket No. LAKE 81-163-DM. (Judge Koutras, June 3, 1982) 

Secretary of Labor, MSHA v. United States Steel Corporation, Docket Nos. 

LAKE 82-6-RM, 82-35-M. (Judge Broderick, June 8, 1982) 

Secretary of Labor, MSHA v. Mathies Coal Company, Docket Nos. PENN 82-3-R, 

82-15. (Judge Lasher, June 8, 1982) 

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

Gerald D. Boone v. Rebel Coal Company, Docket No. WEVA 80-532-D. (Judge Melick, 

January 11, 1982) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

EASTOVER MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 2, 1982 

Docket No. VA 80-145 

DECISION 

In this case we are called upon again to interpret the cab and 

canopy standard for underground coal mines, 30 C.F.R. § 75.1710-l(a). l/ 

This mandatory standard requires installation of cabs and canopies on 

self-propelled electric face equipment pursuant to a staggered schedule 

coordinated with progressively descending "mining heights. 11 In section 

1/ Section 75.1710-l(a) states in part: 

[A]ll self-propelled electric face equipment ... which is employed in the active workings of each underground coal mine 

on and after January 1, 1973, shall, in accordance with the 

schedule of time specified in subparagraph (1), (2), (3), (4), 

(5), and (6) of this paragraph (a), be equipped with substantially constructed canopies or cabs located and installed in 

such a manner that when the operator is at the operating 

controls of such equipment he shall be protected from falls 

of roof, face, or rib or from rib and face rolls. The requirements of this paragraph (a) shall be met as follows: 

(1) On and after January 1, 1974, in coal mines 

having mining heights of 60 inches or more; 

(2) On and after July 1, 1974, in coal mines having 

mining heights of 60 inches or more, but less than 

72 inches; 

(3) On and after January 1, 1975, in coal mines having 

mining heights of 48 inches or more, but less than 60 

inches; 

(4) On and after July 1, 1975, in coal mines having 

mining heights of 36 inches or more, but less than 

48 inches; 

(footnote 1 continued) 

82-7-2 
317(j) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (Supp. III 1979), the statutory standard that section 

75.1710-l(a) implements, the Secretary is authorized to require cabs and 

canopies for such equipment "where the height of the coalbed permits." 2/ The central issues in this case are the meaning and relationship of-the key phrases, "height of the coalbed" and "mining heights." 

For the reasons that follow, we hold that "height of the coalbed" in 

section 317(j) refers to actual mined height, and that section 75.1710-

l(a) therefore properly keys compliance to "mining height. 11 We accordingly reverse the judge's decision, which is premised on a contrary 

view of the meaning of the statutory language. 1f 

footnote 1 cont'd. 

(5) (i) On and after January 1, 1976s in coal mines 

having heights of 30 inches or more, but less than 

36 inches; 

(ii) On and after July 1, 1977, in coal mines 

having mining heights of 24 inches or mores 

but less than 30 inches; 

(6) On and after July 1, 1978, in coal mines having 

mining heights of less than 24 inches. 

In Sewell Coal Company, 3 FMSHRC 1402 (June 1981), we rejected a challenge 

to the validity of section 75.1710-l(a). We concluded that in promulgating 

this standard the Secretary had "acted properly procedurally in availing 

himself of the option to improve the statutory cabs and canopies standard 

(section 317 (j)) under the authority of section 101 (a) of the Act. 11 3 

FMSHRC at 1408. 

±:._/ Section 317(j) of the Mine Act, 30 U.S.C. § 877(j), states: 

An authorized representative' of the Secretary may require in 

any coal mine where the height of the coalbed permits that 

electric face equipment, including shuttle cars, be provided 

with substantially constructed canopies or cabs to protect the 

miners operating such equipment from roof falls and from rib 

and face rolls. 

This language was originally contained in section 317(j) of the 

Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et 

(1976)(amended 1977), and was unchanged when the Mine Act was enacted. 

11 The judge's decision is reported at 3 FMSHRC 1155 (April 1981) . 

.1208 
I. 

The facts of this case are not disputed. On April 10, 1980, an 

MSHA inspector observed a continuous mining machine being operated 

without a canopy in Eastover's No. 1 mine. 4/ A continuous mining 

machine is "self-propelled electric face eq~ipment" within the meaning 

of the standard. The machine was being used in the entry of a section 

where the coal seam had narrowed due to a roll condition. In order to 

give the machine sufficient space in which to operate, approximately 15 

inches of top and bottom rock were being extracted along with the coal. 

The floor-to-roof extracted height, or actual mined height, of the entry 

in question was 53 inches; the height of the coal seam at its lowest 

point in the entry was 38 inches. 3 FMSHRC at 1155. The inspector 

cited Eastover for a violation of section 75.1710-l(a), and the Secretary subsequently sought a civil penalty for the alleged violation. 

Following a prehearing conference, Eastover moved for summary judgment. The company contended the Secretary had exceeded his authority in 

promulgating section 75.1710-1 and that as a consequence the standard 

was without force and effect. The judge issued an order to show cause 

why the Secretary's penalty petition should not be dismissed. The 

Secretary responded, asserting the validity of his promulgation of the 

standard. However, prior to a ruling on the show cause order or a 

hearing on the merits, the agreed to a settlement which the 

Secretary, on behalf of the parties, moved the judge to approve. The 

judge denied the settlement motion and granted Eastovervs prior motion 

for summary judgment. 

In his decision, the judge concluded that no violation of section 

75.1710-l(a) existed at the time the citation was issued and that, 

pursuant to our decision in Co-op Mining Co., 2 FMSHRC 3475 (December 

1980), the proposed settlement had to be ected and the case dismissed. In reaching this result, the judge construed the phrase "height 

of the coalbed" in section 317(j) of the Mine Act to mean height of the 

coal seam. 3 FMSHRC at 1156. He noted that the Bureau of Mines' 

Dictionary of Mining, Mineral, an.d Related Terms defines a coalbed as 11a 

bed or stratum of coal." Id. Although the actual extracted height, 

!:±../ Eastover had initially operated the machine with a canopy, but had 

removed it after MSHA alleged that the canopy configuration being used 

made the machine unsafe for the equipment operator. 

~/ Eastover did not expressly withdraw its previous summary judgment 

motion. The settlement motion does not contain any express admission or 

denial by Eastover of the alleged violation. However, the settlement 

motion contains references to the seriousness and good faith abatement 

of the "violation." 

1209 
floor to roof, in the mine entry in question was 53 inches, the height 

of the coal bed or coal seam was 38 inches. Taking 38 inches as 11 th_e 

controlling height for determining the requirement for canopies, 11 the 

judge stated that the Secretary had suspended the cab and canopy requirement in "coalbed heights below 42 inches 11 and concluded that no 

violation existed at the time the citation was written. Id. at 1155. Ji./ 

Ji./ Enforcement of some of the standard's requirements was suspended in 

1976 and 1977. In order to place the suspension in proper prospective, 

we briefly review the history of the standard, both under the Coal Act 

when the standard was promulgated by the Secretary of Interior, and since 

the enactment of the Mine Act. In 1971, acting under the authority of 

section lOl(a) of the 1969 Coal Act, the Secretary of Interior proposed 

an improved mandatory canopy standard that made no reference to mining 

height or coal seam height. 36 Fed. Reg. 5244 (1971). Based on objections 

received, the Secretary scheduled a hearing to determine whether there 

should be a "staggered installation schedule ..• dependent upon the 

mining height of the particular mine." 37 Fed. Reg. 12643 (1972). 

After the hearing, the Secretary concluded that technological problems 

mandated a staggered schedule of compliance keyed to descending 11mining 

heights." 37 Fed. Reg. 20689 (1972). The latter phrase was not defined 

in either the Secretary's notice of the hearing or his subsequent findings. 

Section 75.1710-l(a) was thereafter published with the compliance schedule 

contained in subparagraphs (1) through (6). In an internal memorandum 

dated September 20, 1973, the Secretary for the first time expressly 

defined "mining height," and described it as "the distance from the 

floor to finished roof less 12 inches." 

During the early enforcement history of section 75.1710-l(a), it 

was discovered that certain human engineering problems arose when canopies 

were installed at the lower mining heights. Accordingly, on June 9, 

1976, the Secretary of Interior extended the dates for compliance with 

regard to "mining heights" of less than 30 inches--that is, the heights 

covered in section 75.1710-l(a)(5)(ii) and (6). 41 Fed. Reg. 23200 

(1976). In this suspension notice, the Secretary retained the definitional 

approach to "mining height" set forth in his 1973 memorandum. Application 

of that definition meant that the suspension was directed to heights of 

less than 42 inches, since the 30 inches referred to in the standard was 

a remainder after subtraction of 12 inc.hes. On July 7, 1977, the dates 

for compliance in sections with mining heights of less than 30 inches 

(that is, 42 inches from floor to finished roof) were indefinitely 

suspended to allow time to develop· specifications for cab and canopy 

compartment configurations at those lower heights. 42 Fed. Reg. 34876 

(1977). 

After the Mine Act became effective, the Secretary of Labor continued in effect the Secretary of Interior's suspension notice and 

adopted (with minor refinements) his definitional approach to "mining 

height." MSHA Policy Memorandum No. 80-4C (August 22, 1980). 

1210 
The judge rejected the Secretary's various arguments that "mining 

height" as used in the standard, meant the actual extracted or mined 

height--that is, the distance from the roof to the floor. 3 FMSHRC at 

1156-58. The judge reviewed the record of rulemaking as reported in the 

Federal Register and found nothing to show that the "plain meaning" of 

the statutory term coalbed height had been revised or amended. The 

judge acknowledged that the Secretary of Interior's enforcement instructions issued on September 30, 1973, and his suspension of the 

enforcement of section 75.1710-l(a)(5)(ii) and (6) (n. 6 above) indicated that "mining height" meant actual mined height. However, the 

judge found that neither was issued in accordance with substantive or 

procedural rule making requirements. Consequently, he concluded, 

neither effected a "legally binding change" in the authority, granted by 

section 317(j), to require canopies on the basis of the "height of the 

coalbed." Id. Thus, the judge determined that the interpretation 

presently contended for by the Secretary had no valid legal basis, and 

that the Secretary of Interior, in promulgating the standard, "must be 

taken to have ascribed the same meaning to the term 1mining height 1 as 

Congress had ascribed to the term 'coalbed height 1 • 11 Id. at 1157 n. 6. 

II. 

The two central issues in this case are the meaning of the phrase~ 

"height of the coalbed" in section 317(j), and whether "mining height 11 in 

section 75.1710-l(a) is consistent with that statutory language. To 

understand the meaning of section 317(j) we look not only to its words, 

but also to the intent underlying the words. 

The statutory canopy standard first appeared in the Senate and 

House bills that ultimately became the 1969 Coal Act. 7/ A prime motive 

in enactment of the 1969 Coal Act was to "[i]mprove health and safety 

conditions and practices at underground coal mines" in order to prevent 

death and serious physical harm. Legis. Hist. at 128. One of the 

problems that greatly concerned Congress was the high fatality and 

injury rate due to roof falls. The legislative history is replete with 

references to roof falls as the pr.ime cause of fatalities in underground 

mines. Ji/ 

J__I Section 217(f) of S. 2917 and section 317(k) of R.R. 13950 stated: 

An authorized representative of the Secretary may require in 

any coal mine where the height of the coalbed permits that 

face equipment, including shuttle cars, be provided with 

substantially constructed canopies or cabs to protect the 

operator of such equipment from roof falls and from rib and 

face rolls. 

Senate Subcommittee on Labor, Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part 1 Legislative History of the Federal 

Coal Mine Health and Safety Act of 1969 as Amended Through 1974, at 

79 and 1013 (1975)("Legis. Hist."). 

Ji/ See Legis. Hist. at 134, 136, 148, 149, 210, 538-547, 610, 1125-

1126. 

1211 
To combat the roof fall problem, Congress devised a two pronged 

plan. One remedial course of action was aimed at reducing the number of 

falls by requiring operators to adopt various roof control practices, 

including comprehensive roof control plans. J_I The second important 

remedial provision authorized the Secretary to protect miners from those 

falls that did occur by requiring the installation of cabs or canopies 

on electric face equipment. In the express words of section 317(j), the 

devices were to be installed "to protect the miners operating such 

[electric face] equipment from roof falls and from rib and face rolls." 

The devices were to be installed where lithe height of the coalbed permits." 

As the judge noted, the word "coalbed11 may be used in mining parlance to mean bed or stratum of coal. We conclude, however, that when 

the drafters used the word "coalbed" as a benchmark for the canopy 

requirement, they were not referring literally to the height of the coal 

bed, but were conditioning installation on the actual height of the 

material being extracted. Although the legislative history does not 

contain an express explanation as to why the phrase was used, Congress 

was concerned with protecting miners under actual mining conditions. In 

practice, sound mining methodology and safety considerations of ten 

dictate extraction of more or less than the entire coal seam itself. 

Common sense suggests that in practice it is the actual extracted height 

in the entry rather than the coal seam height that provides the space in 

which to accomodate a canopy. Thus, given Congress' expressed desire to 

protect life and limb, we conclude that the drafters used the term 

"height of the coalbed" to indicate that the Secretary could require 

canopies where the actual extracted or mined height permitted. 101 

This conclusion is reinforced by examining the practical consequences 

of interpreting "height of the coalbed" in its technical sense, for such 

an interpretation yields results that impair the protection Congress so 

J_I See Legis. Hist. 150, 1125-1126. 

101 The House Committee on Education and Labor in its report on R.R. 

13950 stated that section 317(k) of that bill, which is identical to 

section 317(j) of the Act: 

authorize[d] the inspector to require protective cabs on 

face equipment where the height of the coal permits installation of such cabs to protect the operator from roof 

falls, and from rib and face rolls. 

Legis. Hist. at 1103. The judge cited to this statement in support of 

his conclusion that Congress intended the phrase "where the height of 

the coalbed permits" to mean that canopies would be required where the 

height of the stratum of coal permits. 3 FMSHRC at 1156. We are not 

convinced. The lack of consistency in the use of terms emphasizes to us 

that the drafters were not using "height of the coalbed 11 in its technical, geologic sense, but rather in a colloquial fashion to indicate the 

Secretary could require canopies where the extracted height provided 

sufficient room for their use. 

1212 
urgently sought to provide. For example, because of adverse top or 

bottom conditions an operator may be compelled to take top or bottom 

rock when extracting coal. If the coal seam height were lower than that 

at which canopies were required but the extracted height were higher, no 

canopy protection would be mandated. The same result would follow if, 

as here, an operator took top or bottom rock because the mining equipment was higher than a thin coal seam which was being mined. 

In mines where it is good practice not to mine the entire coal seam 

but to leave top or bottom coal, the judge's interpretation could also 

lead to a literal requirement that canopies be provided although the 

floor to ceiling space could not safely accommodate them. This could 

subject miners to the danger of the canopies striking roof support or to 

the danger of being crushed while trying to see around too low a canopy. 

In short, we conclud.e that the phrase "height of the coalbed" refers to 

the actual mined or extracted height from floor to roof, rather than to 

the height of the coal seam itself. 

The Secretary 1 s use of the phrase "mining heightu in section 

75.1710-l(a) is thus entirely consistent with Congress 1 intent. The 

plain meaning of the term "mining height" connotes extracted height --

that is, the height mined. Thus, the phrase fulfills the intent of its 

authorizing provision, section 317(j). We accordingly reject the judge's 

suggestion (3 FMSHRC at 1156-57) that the Secretary revised or amend~d 

the meaning of the statutory term 11height of the coalbed" when he promulgated the regulation. 11/ 

III. 

In light of the foregoing, we cannot affirm the judge's conclusion 

that the record on which the parties' proposed settlement is premised 

shows that no violation occurred. There is no dispute that the cited 

continous miner lacked a canopy and that the actual extracted or mined 

height in the entry where the machine was being used was 53 inches. 

Such a height would be subject to the non-suspended provisions of 

section 75.1710-l(a). In short, the judge's conclusion that no violation occurred cannot stand. 

11/ We likewise reject the judge's suggestion of procedural infirmities 

in the standard 1 s promulgation.·· The .judge takes issue with what he 

perceives to be a lack of notice to operators of the meaning of the term 

"mining height." 3 FMSHRC at 1157-58. Yet, as we have concluded 

above, that term in and of itself connotes extracted height. Furthermore, the chief issue discussed at the public hearing on the proposed 

canopy standard (n. 6 above) was whether "substantially constructed 

canopies [should] be required on a staggered installation schedule, 

dependent upon the mining height of the particular mine." (Emphasis 

added) 37 F.R. 11779 (1972). Eastover participated in this hearing, and 

has never argued in the present case that it was misled by the Secretary 1 s use of this phrase. The Secretary, in using a term which faithfully reflected what Congress intended and which itself gave notice of 

its meaning, did not act in violation of substantive or procedural rulemaking requirements. 

1213 
For the foregoing reasons, we reverse the judge's rejection of the 

proposed settlement and his granting of the earlier summary judgment 

motion. In the interest of judicial economy, we have considered the 

parties' settlement motion at this time. 29 C.F.R. § 2700.30. The 

Secretary originally proposed a penalty of $150 for the violation. The 

parties have proposed that a $75 penalty would be appropriate. The 

settlement motion and the stipulation to which it refers set forth 

reasons in support of the proposed settlement and information relevant 

to the six statutory penalty criteria in section llO(i) of the Mine Act. 

We have examined the reasons proffered by the parties and have weighed 

the statutory criteria. We conclude that the settlement agreement comports with the purposes and policies of the Act, and the motion for 

approval of the settlement is granted. 

1214 
Distribution 

Leslie J. Canfield, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Karl S. Forester, Esq. 

Forester, Forester, Buttermore & Turner. P.S.C. 

P.O. Box 935 

Harlan, Kentucky 40831 

Administrative Law Judge Joseph Kennedy 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Skyline Center #2 

Falls Church, Virginia 22041 

1215 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 6, 1982 

SECRETARY OF LABOR, MINE.SAFETY 

AND HEALTH ADMINISTRATION (MSHA) 

v. 

RICHARD KLIPPSTEIN and 

W. O. PICKETT, JR. 

Docket No. WEST 81-383 

DIRECTION FOR REVIEW AND ORDER 

Respondent, who is pro~' has petitioned for review under the 

provisions of section 113 of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 823, claiming that the administrative law judge erred 

in defaulting him. 

Upon reviewing the entire record in this matter, we find that under 

our rules of procedure the administrative law judge had a sound basis for 

entering the default judgment. 29 C.F.R. § 2700.63, 2700.28 and 

2700.7(b). However, because respondent is not represented by counsel, 

and because his petition presents a question of jurisdiction under the 

Act that has not been presented to the judge below, equitable application 

of our rules and the Act in this case persuades us to afford the respondent opportunity to be heard on his claim. It is expected, however, that 

from here on the respondent will follow closely the instructions of the 

judge and the Commission's rules of procedure. A copy of these rules is 

enclosed. 

Accordingly, the petition for review received from respondent 

Klippstein is granted. The default judgment is vacated and the case 

is remanded for further proceedings. 

1218 82-7-3 
Distribution 

Richard M. Klippstein 

c/o Power Controllers, Inc. 

P.O. Box 466 

Rifle, Colorado 81650 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Chief Administrative Law Judge Paul Merlin 

Fed. Mine Safety & Health Rev. Commission 

1730 K Street, N.W. 

Washington, D.C. 20006 

1217 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

INLAND STEEL COAL COMPANY 

1730 K STREET NW, 6TH . FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1982 

Docket No. VINC 77-164 

IBMA No. 77-66 

DECISION 

This proceeding arose under the Federal Coal Mine Health and 

Safety Act of 1969, 30 U.S.C. §801 et~· (1976)(amended 1977) • ..!./ The 

central issue is whether 30 C.F.R. § 75.1712-1 requires bathing facilities 

to be provided for construction employees who perform work on the surface 

of an underground coal mine. The administrative law judge concluded 

that the standard did not require bathing facilities for such workers, 

and, for the reasons that follow, we reverse. 

In 1977 Inland Steel Coal Company was developing a new underground 

coal mine in Illinois, and employed several contractors for the work. 

A major component of the mining complex was a coal preparation plant 

being constructed on the surface of the mine by the Roberts and Schaefer 

Company, one of Inland's chief contractors. Roberts and Schaefer provided 

its employees with changing facilities, but not a bathhouse. A different 

contractor was building bathing facilities for the miners Inland would 

employ when the mining complex was opened. This building was scheduled 

for completion in May 1978, although Inland did not plan to make the 

bathing facilities available to the employees of the various construction contractors. ±..! 

lf The appeal was pending befo'e the Interior Department Board of Mine 

Operations Appeals as of March 8, 1978. Accordingly, it is before us 

for decision. 30 U.S.C. § 961 (Supp. IV 1980). (The Mine Safety and 

Health Administration has been substituted for its predecessor agency, 

the Mining Enforcement and Safety Administration (MESA)). This proceeding originally arose on review of an unabated notice of violation 

issued under section 104(b) of the 1969 Coal Act. For the reasons 

stated in our decision in Eastern Associated Coal Corp., 4 FMSHRC 835, 

835-36 (May 1982), we will review the merits of the notice at this time. 

!.:../ Among the other contractors involved in the development of the mine 

was the Zeni, McKinney and Williams Corporation, which was sinking the 

shaft. Zeni provided its employees with a temporary bathhouse. In 

(Footnote continued) 

1218 82-7-8 
In August 1977, a MESA inspector ascertained that there was no 

bathhouse for the Roberts and Schaefer employees and that a number of 

those employees wanted bathing facilities. Subsequently, MESA issued 

a section 104(b) notice of violation to Inland for failure to comply 

with 30 C.F.R. § 75.1712-1. Section 75.1712-1 provides: 

Availability of surface bathing facilities; change 

rooms; and sanitary facilities. 

Except where a waiver has been granted ••• , 

each operator of an underground coal mine shall 

... provide bathing facilities, clothing change 

rooms, and sanitary facilities, as hereinafter 

prescribed, for the use of the miners at the mine. [1/] 

Section 75.1712-1 in turn implements 30 C.F.R. § 75.1712, which states: 

The Secretary may require any operator to provide adequate 

facilities for the miners to change from the clothes worn 

underground, to provide for the storing of such clothes from 

shift to shift, and to provide sanitary and bathing facilities. Sanitary toilet facilities shall be provided in the 

active workings of the mine when such surface facilities are 

not readily accessible to the active workings. 

Section 75.1712 mirrors section 317(1) of the 1969 Coal Act and was 

carried over intact as section 317(1) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et~· (Supp. IV 1980). 

Section 75.1712-1 permits operators to seek waivers from the 

standard's requirements, and after receiving the notice of violation, 

Inland applied to the MESA District Director of District Eight for a 

continued 

support of a contention that it was not an industry practice to provide 

bathhouses for surface construction workers, Inland argues that Zeni's 

provision of a bathhouse to its shaft sinking employees and Roberts and 

Schaefer's provision only of changing facilities to its construction 

employees were consistent with the collective bargaining agreement that 

both contractors had with the United Mine Workers. We need not attempt 

to resolve this question of conttactual interpretation since this case 

does not require it. This case concerns only the language of regulatory 

standards and, in addition, the Zeni employees are not involved in the 

present litigation. See generally Loe. Union No. 781, etc. v. Eastern 

Assoc. Coal Corp., 3 FMSHRC 1175, 1179 (May 1981). 

11 The original notice, which was issued on August 23, 1977, alleged a 

violation of 30 C.F.R. § 71.400. Section 71.400 notes that "[s]anitary 

facilities at surface work areas of underground coal mines are subject 

to the provisions of [ 30 C. F. R. ] § 7 5 .1712 • . • g seq. 11 Relying on this 

language, MESA modified the notice of violation on September 30, 1977, 

to allege a violation of section 75.1712-1 on the grounds that the construction work in question was being performed on the surface of an 

underground coal mine. 

1219 
waiver from the bathhouse requirements. !:!_/ District Eight denied the 

waiver in accordance with its policy of denying waivers unless a survey 

of the miners indicated they would not use a bathhouse. 5/ Inland also 

applied for review of the notice of violation. 6/ In hi; decision, the 

administrative law judge vacated the notice of violation, concluding 

that section 75.1712-1 required bathing facilities only for miners 

working underground. We disagree. 

This case turns on the meaning of section 75.1712-l's provision 

that the various facilities to be supplied are "for the use of the 

miners at the mine" (emphasis added). The underscored language raises 

two questions: whether the Roberts and Schaefer construction workers 

were "miners" within the meaning of the 1969 Coal Act and, if so, 

whether the provisions regarding bathing facilities applied to them. 

With respect to the first question, we agree with the judge that 

there is "no doubt that the broad definition of miners in the Act includes 

construction workers such as those employed by Roberts and Schaefer in 

this case. 11 Dec. at 9. Section 3(g) of the Coal Act, 30 U.S.C. § 

802(g)(1976)(amended 1977), defined a miner as "any individual working 

in a coal mine." Section 3(h) of the Coal Act, 30 U.S.C. § 302(h) 

(1976)(amended 1977), defined a coal mine as: 

Section 

applications: 

sets forth relevant procedures for such waiver 

The Coal Mine Safety District Manager for the district in 

which the mine is located may, upon written application by the 

operator, waive any or all of the requirements of §§ 75.1712-1 

through 75.1712-3 if he determines that the operator of the 

mine cannot or need not meet any part or all of such requirements, and, upon issuance of such waiver, he shall set forth 

the facilities which will not be required and the specific 

reason or reasons for such waiver. 

In applying for the waiver, Inland did not concede the applicability of 

section 75.1712-1 to the Roberts and Schaefer construction employees. 

'd.J On appeal, Inland does not argue that a waiver should have been 

granted. Accordingly, although we might question the wisdom of the 

waiver denial, that issue is not before us. We note that District 

Eight's use of surveys on waive.u appli~ations was solely its own policy, 

and was not advocated or suggested by MESA headquarters. 

!!../ Pending disposition of Inland's applications for waiver and review, 

MESA extended the time for abatement of the noticed violation. As of 

the issuance of the judge's decision vacating the notice, the alleged 

violation remained unabated. 

1220 
an area of land and all structures, facilities ••• placed 

upon, under, or above the surface of such land by any person, 

used in, or to be used in ••• the work of extracting ••. coal 

••• from its natural deposits in the earth ••• and the work of 

preparing the coal so extracted, and includes custom coal 

preparation facilities. 

(Emphasis added.) The surface coal preparation plant being constructed 

here was "to be used ••• in the work of ••• preparing coal," and thus 

would clearly qualify as part of a coal mine. Therefore, the construction workers in this case were miners. See Bituminous Coal Operator's 

Ass'n, Inc. v. Secretary of Interior, 547 F.2d 240, 244-25 (4th Cir. 

1977). 

Despite his conclusion that the construction workers were miners 

within the meaning of the 1969 Coal Act. the judge reasoned that not 

every standard necessarily applies to all miners and determined that the 

bathing facility requirements of section 75.1712-1 covered only miners 

working underground. Based on the standard's broad language and derivation, we conclude that the bathing facility provisions extended to the 

surface construction workers in this case. 

The plain language of the regulation expressly states that bathing 

facilities shall be provided for "miners at the mine." The regulation 

does not limit its coverage only to underground miners, but rather expressly requires bathing facilities for "miners. 11 We cannot discern 

from the face of the standard an intent to exclude miners such as the 

surface construction workers involved here from the broad sweep of the 

standard's coverage. Although the judge focused on the fact that the 

standard is contained in safety regulations for underground coal mines, 

the location of the standard is explicable and is not legally significant in this case. Indeed, the relevant history of the standard 

reinforces our conclusion as to its broad meaning. 

To understand the scope of section 75.1712-1, it is necessary to 

examine a related standard in Part 71. A bathing facility requirement 

for surface miners of underground coal mines was originally contained in 

30 C.F.R. § 71.400, the standard Ynder which MESA first cited Inland. 

The proposed rules for Part 71 were entitled "Mandatory Health Standards--Surface Work Areas of Underground Coal Mines and Surface Coal 

Mines." Subpart E of the proposed rules was entitled "Surface Bathing 

Facilities, Change Rooms, and Mnitary_Toilet Facilities." In its 

original proposed form, section 71.400 provided: 

On and after June 30, 1971, each operator of an underground 

coal mine and each operator of a surface coal mine shall 

provide bathing facilities, clothing change rooms and adjacent 

sanitary facilities as hereinafter prescribed, for the use of 

miners employed in surface installations and at surface work 

sites of such mines. 

1221 
36 Fed. Reg. 254 (1971)(emphasis added). This language and the relevant 

titles indicate that bathing facilities were contemplated for the 

surface work areas of both underground and surface mines. 

After public hearings on the proposed regulations, the Secretary 

deleted the reference in section 71.400 to underground coal mines. He 

specifically found: 

With respect to surface bathing facilities, change rooms, and 

sanitary flush toilet facilities, that: 

Operators of underground coal mines are presently 

required by 30 C.F.R. Part 75 to provide surface 

bathing facilities, change rooms, and sanitary 

flush toilet facilities for the use of miners. 

36 Fed. Reg. 20127 (1971). As already noted, section 71.400 as finally 

promulgated applies only to miners at surf ace mines and states that 

"[s]anitary facilities at surface work areas of underground coal mines" 

are subject to 30 C.F.R. § 75.1712 et 7/ In short, what the Secretary left out of section 71. 400 is precisely what he found was already 

covered by section 75.1712--namely a requirement for provision of 

sanitary facilities for the use of miners employed in surface installations and at surface work areas of underground coal mines. Thus, section 

75.1712-1 was intended to apply to surface miners, as well as underground 

miners, at underground coal mines. Since the construction employees in 

this case were employed at a surface installation and surface work area 

of an underground mine, we conclude that the regulation applied to them. 

For the foregoing reasons, the judge's decision is reversed and the 

notice of violation is reinstated. 

, Cmm:nissioner 

7/ The judge expressed his view that the note in section 71.400 that 

"sanitary facilities" at surface work areas were subject to section 

75.1712 et~· referred only to sanitary toilet facilities. In light 

of the history of section 71.400 set forth above, we conclude that the 

term was used broadly in this instance to cover various types of sanitary 

facilities, including those for bathing. 

1222 
Distribution 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Richard R. Elledge, Esq. 

for Inland Steel Coal Co. 

Gould & Ratner 

300 West Washington Street 

Suite 1500 

Chicago, Illinois 60606 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Donald L. Rosenthal, Esq. 

Association of Bituminous Contractors, Inc. 

2020 K Street, N.W. 

Washington, D.C. 20006 

1223 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY'AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 15, 1982 

Docket No. PITT 76X241-P 

IBMA 77-60 

PENN ALLEGH COAL COMPANY, INC. 

DECISION 

This penalty proceeding arose·under section 109 of the Federal Coal 

Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976) 

{amended 1977)("the Coal Act 11 ). 1_/ The administrative law judge concluded that Penn Allegh Coal Company, Inc., violated 30 C.F.R. § 75.1403 

and assessed a penalty of $7,500 for that violation. We affirm the 

judge. 

Section 75.1403 is contained in 30 C.F.R. Part 75, Subpart 0. Part 

75 sets forth mandatory safety standards for underground coal mines. 

Subpart 0 contains mandatory standards applicable to hoisting and haulage equipment used to transport men and materials. Section 75.1403 

reiterates section 314(b) of the Coal Act and provides: 

Other safeguards adequate, in the judgment of an authorized 

representative of the Secretary, to minimize hazards with 

respect to the transportation of men and materials shall be 

provided. 

The administrative procedures by which a representative of the Secretary 

advises an operator of other safety devices or practices required to be 

provided are found in 30 C.F.R. § 75.1403-1. This section in pertinent 

part provides: 

1/ On March 8, 1978, this case was pending before the Department of 

Interior's Board of Mine Operations Appeals. Accordingly. it is before 

the Commission for disposition. 30 U.S.C. § 961 (Supp. IV 1980). The 

Mine Safety and Health Administration (MSHA) has been substituted for 

its predecessor agency, the Mining Enforcement and Safety Administration 

(MESA). 

1224 82-7-9 
The authorized representative of the Secretary shall in 

writing advise the operator of a specific safeguard which is 

required pursuant to § 75.1403 and shall fix a time in which 

the operator shall provide and thereafter maintain such 

safeguard. If the safeguard is not provided within the time 

fixed and if it is not maintained thereafter, a notice shall 

be issued to the operator pursuant to section 104 of the Act. 

On March 5, 1973, a representative of the Secretary issued the following 

"notice to provide safeguards" to Penn Allegh: 

The two overcasts crossing No. 2 entry where the mantrip 

passed under were not posted with signs to warn of the low 

overhead clearance in the 1st right section. 

Abrupt changes in vertical clearance that present a hazard to 

persons riding on mobile equipment shall be eliminated where 

possible. Otherwise, signs, preferably luminous, shall be 

posted to warn of the change in clearance. 

On March 1, 1975, a haulage accident occurred in Penn Alleghvs mine in 

which a miner was fatally injured while operating a battery powered 

scoop in an entry. The evidence indicates that the lamp cord from the 

miner's battery lamp caught on a roof bolt or the roof itself. The 

miner was lifted out of the vehicle, and apparently squeezed between the 

vehicle and the roof. The normal floor to ceiling height of the entry 

in which the accident occurred was 48 inches. The judge found, however, 

that beginning 24 feet outby the site of the accident the floor of the 

entry gradually rose until, at the point of impact, the floor level had 

risen 8 inches. Two inches of the buildup occurred near the point of 

impact. The judge also found that beginning 10 feet outby the accident 

site, the roof of the entry rose 6 inches and then, one foot before the 

accident site, the roof dropped down 6 inches. He concluded that the 6 

inch drop in the roof together with the 8 inch rise in the floor resulted 

in a reduction in clearance at the point of impact from the normal 48 

inches to 40 inches. 

The judge's findings further.revealed that the 6-inch rise in the 

roof was caused by a cut into the roof above the normal roof line made 

in June 1972, and that the floor buildup resulted from slag being 

placed on the floor during the summer months prior to the March accident. 

Moreover, he found that the entty where the accident occurred was the 

mine's main haulage entry and was traveled daily by miners and management 

personnel. Although Penn Allegh's general manager testified that 

"everyone" knew of the reduced entry height at the point of the accident, 

neither reflectors nor other devices were posted to warn of the .reduced 

height. 

Immediately after the accident, MESA conducted an investigation 

which resulted in the issuance of the notice of violation of section 

75.1403 at issue. The notice of violation stated: 

1225 
During the investigation of a fatal accident, March 1, 1975, 

it was observed warning lights or other approved devices were 

not installed along unit tractor haulage road No. 2 main entry 

indicating the change in overhead clearance .••• [N]otice to 

provide safeguard No. 1 H.O.W. March 5, 1973. 

In finding that the alleged violation occurred, the judge concluded that 

the lowering of the roof and the corresponding rise in the floor constituted an abrupt change in vertical clearance which presented a hazard 

to persons riding on mobile equipment, and that Penn Allegh's failure to 

eliminate the abrupt change or to post warning devices violated the 

notice to provide safeguards. The judge further found that the violation was extremely serious and that Penn Allegh was "grossly negligent" 

in allowing it to exist. 

Penn Allegh argues that the judge erred in concluding it violated 

the proscriptions of the safeguard notice. The essence of its argument 

is that the condition for which it was cited in the notice of violation 

is not encompassed by the safeguard notice. Penn Allegh asserts that 

the notice of violation addresses only overhead clearance, whereas the 

notice to provide safeguards is concerned with vertical clearance. We 

disagree. The judge found, and Penn Allegh does not dispute, that 

vertical clearance is the distance between the mine floor and the mine 

roof. It is beyond question that changes in the roof, floor, or both 

affect that distance. Here 6 inches of the reduction in the floor to 

roof distance was directly attributable to the 6 inch change in roof 

height. We agree with the judge that citation of the roof condition in 

the notice of violation was encompassed by the reference to vertical 

clearance in the notice to provide safeguards. 

Penn Allegh also challenges the judge's conclusion that the clearance change was "abrupt" within the meaning of the safeguard notice. We 

reject this semantic challenge and affirm the judge's conclusion. The 

judge based his conclusion upon findings that at the point of impact the 

roof dropped 6 inches and the floor rose 2 inches out of a total 8 inch 

rise, and as a result, the entry height was reduced from 48 to 40 inches 

within the span of a foot. The element of abruptness also existed in 

view of the speed at which a miner was likely to approach that change. 

In this regard, we note the unrefuted testimony of one of the inspectors 

who issued the safeguard notice that equipment like that involved in 

the accident travels 300 to 400 feet a minute and would traverse the 24 

feet before the point of impact~in 3 o~ 4 seconds. Thus, we agree with 

the judge that the change in clearance at issue was abrupt. 

Penn Allegh next disputes the judge's determination that the 

reduction in clearance constituted a hazard to persons riding on mobile 

equipment. This argument does not warrant extended discussion. We have 

found that the change in clearance was abrupt. The record establishes 

that in travelling the entry, a miner was fatally injured at the point 

of the clearance change. We find that the record amply supports the 

judge's conclusion that the abrupt clearance change posed a hazard to 

miners. 

1226 
Accordingly, we conclude that the judge properly found all elements 

required to establish a violation of the notice to provide safeguards 

and, consequently, the cited standard. 

Penn Allegh also takes issue with the judge's findings that it was 

"grossly negligent" and that the violation was extremely serious. 

Without engaging, as did the judge, in a quantification of degrees of 

negligence, we find that Penn Allegh .failed to exercise that care 

required by the circumstances. The conditions which constituted the 

violation had existed for some time and were known to Penn Allegh. The 

evidence also establishes that the change in clearance was observable by 

section foremen who traveled the haulageway on a regular basis. Indeed, 

as we have noted, Penn Allegh's own witness stated that everyone knew 

about the "squeeze.n Thus, we conclude that the record establishes Penn 

Allegh's negligence. 'l:J 

Regarding the gravity of the violation, the notice to provide safeguards sought to eliminate the hazard posed to miners riding on mobile 

equipment by abrupt changes in clearance. In such a situation, should 

an accident occur, the resulting injury clearly could be serious, even 

fatal. The record establishes that the probability of such an accident 

occurring was heightened by the fact that the haulageway where the 

violation occurred was frequently traveled by management personnel and 

miners. Therefore, we find that the gravity of the violation was serious, 

In light of our conclusions that the violation existed, Penn Allegh 

was negligent, and the hazard presented was serious, we find that the 

penalty assessed by the judge was appropriate and consistent with the 

statutory penalty criteria. Accordin y, the judge's decision is affirmed. 

2/ Although two of the Secretary's witnesses testified that they did 

not believe the operator was negligent, the judge was not bound by their 

opinion. Rather, he was required to draw his own legal conclusion based 

upon the evidence of record considered as a whole. In our view, that 

evidence establishes the company's negligence. 
Distribution 

Charles M. Thorp, III, Esq. 

Thorp, Reed & Armstrong 

2900 Grant Building 

Pittsburgh, PA 15219 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W. 

Washington, D.C. 20006 

1228 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ITMANN COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 16, 1982 

Docket No. HOPE 76-197-P 

IBMA No. 77-58 

DECISION 

This case arose under the Federal Coal Mine Health and Safety Act of 

1969, 30 U. S.C. § 801 et ~· (1976) (amended 1977) ("the Coal Act"). Y 

The administrative law judge concluded that Itmann Coal Company committed 

two violations of section 103(e) of the Coal Act and regulations implementing that section (30 C.F.R. §§ 80.10 and .11 (1975)). The judge assessed 

a penalty of $7,500 for each violation. 

Itmann appealed the judge's decision and argues that in both instances 

the judge erred in finding violations. In the alternative, Itmann 

argues that proper application of the gravity and negligence penalty 

assessment criteria requires penalties "substantially less" than those 

assessed by the judge. 

We have reviewed the judge's decision and the record in this case 

in view of the arguments presented by Itmann on appeal. Based on our 

review, we conclude that the judge's findings of two violations of 

section 103(e) of the Coal Act ar~ supported by the evidence. To the 

extent that the judge made credibility findings to resolve conflicting 

testimony, we find no basis for disturbing those findings. 

We also find that the judge: correctly ruled upon the questions of 

law raised by the operator. In particular, we agree that the acquittal 

and dismissal of criminal charges brought against Itmann and several of 

its employees do not bar the present civil action. The criminal proceedings involved charges that the defendants conspired "to impede the 

due and proper administration of law" by fabricating a story about the 

l_/ On March 8, 1978, this case was pending on appeal before the 

Department of Interior's Board of Mine Operations Appeals. Accordingly, 

it is before the Commission for disposition. 30 U.S.C. § 961 (Supp. IV 

1980). The Mine Safety and Health Administration (MSHA) has been substituted for its predecessor agency, the Mining Enforcement and Safety 

Administration (MESA). 

1229 82-7-10 
methane ignition at issue and by giving false testimony during the 

investigation thereof, and that Itmann willfully violated mandatory 

safety and health standards. The violations of the Coal Act at issue in 

the instant civil proceeding concern Itmann's failure to properly notify 

the Secretary of an accident and to prevent the destruction of evidence 

that would assist in the investigation of the accident. Apart from the 

differences in the nature of the allegations at issue in the criminal 

and civil proceedings, different standards of proof apply, i.e., proof 

beyond a reasonable doubt and proof by a preponderance of the evidence. 

Therefore, we agree with the judge that the present civil proceedings 

are not barred. United States v. Nat 1 1 Assoc. of Real Estate Bds., 339 

U.S. 485, 94 L.Ed 1007, 70 S.Ct. 711 (1950). 

We also affirm the judge's conclusion that a civil penalty could be 

assessed for the failure to innnediately no MESA of the ignition. As 

the Board of Mine Operations Appeals held: ]he element of innnediacy 

is to be construed as an integral part of the notification and preservation of evidence obligation of section 103(e) [of the Coal Act}, 11 

U.S. Steel Corp., 8 IBMA 230, 236-37 (1977). Therefore, by to 

comply with 30 C.F.R. § 80.11 (1975), Itmann violated section 103(e) of 

the Coal Act and a penalty must be assessed for this violation. 'J:./ 

Finally, based on our review of the record, and in of the 

circumstances of this case, we conclude that the penalties assessed by 

the judge reflect consideration of the statutory penalty criteria, are 

appropriate for the violations and should not be disturbed. 

Accordingly, the decision of 

affirmed. 

the administrative law judge is 

~~J.;.~~ 

2/ Thus, we need not decide whether 

itself, a mandatory safety and health 

1230 

was, in and of 
Distribution 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N. W. 

Washington, D.C. 20036 

Michael McCord, Esq, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge William Fauver 

Fed. Mine Safety & Health Rev. Cormnission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1231 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GERALD D. BOONE 

v. 

REBEL COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 16, 1982 

Docket No. WEVA 80-532-D 

ORDER 

On June 1, 1982, counsel for Rebel Coal Company filed a petition 

for discretionary review and a "Motion to Permit Late Filing of a 

Petition for Discretionary Review. 11 We construe the latter to be a 

request for relief from a final Commission order. 29 C.F.R. § 2700.l(b) 

(Federal Rules of Civil Procedure apply in absence of applicable CoIIIIIlission rule); Fed. R. Civ, P. 60 (Relief from Judgment or Order). Cf, 

Marshall v. Monroe & Sons, 615 F.2d 1156 (6th Cir. 1980); J.I. Hass Co. 

v. OSHRC 648 F.2d 190 (3d Cir. 1981). 

On July 8, 1981, a Commission administrative law judge issued a 

decision in which he concluded that Gerald D. Boone was discharged by 

Rebel Coal Company in violation of section 105(c)(l) of the Federal Mine 

Safety and Health Act of 1977. In that decision the judge ordered the 

parties to engage in further proceedings to determine the amount of 

specific damages due Boone. 3 FMSHRC 1751 (July 198l)(ALJ). The 

Commission dismissed as premature Rebel Coal Company's Petition for 

Discretionary Review of the judge's decision. The Commission concluded 

that, in view of further proceedings ordered by the judge, his decision 

was not a reviewable "final decision11 within the meaning of the Act and 

the Commission's rules. 3 FMSHRC ~900 (August 1981). 

On January 11, 1982, the judge issued a decision and order awarding 

damages and costs to Boone. 4 FMSHRC 37 (January 1982)(ALJ). No petition for discretionary review ~the judge's decision was filed and 

forty days after its issuance it became· a final order of the Commission 

by operation of law. 30 U.S.C. § 823(d)(l). 

In its request for relief from this final order, the operator 

details the procedural history of this case including the fact that 

review of the judge's finding of discrimination had been sought, albeit 

prematurely. The operator further states that previously-retained 

counsel 11were under continuous instruction to appeal any decision 

directing [the operator] to reemploy Complainant [miner]," but "[f]or 

some unknown reason" prior counsel did not file a petition for review of 

the judge's final decision of January 11, 1982. 

1232 82-7-12 
We have reviewed present counsel's request for permission to file a 

petition for discretionary review at this time against the standards set 

forth in Fed. R. Civ. P. 60(b)(l). "};./ See 7 Moore's Federal Practice§ 

60.22[2]; 11 Wright & Miller, Federal Practice and Procedure§ 2858. 

Although the claims of previous counsel's omission and the operator's 

ignorance of the status of the litigation are not supported by affidavit, 

in the particular circumstances of this case, we accept the operator's 

representations as being made in good faith. We note that the judge's 

final decision was served on previous counsel, but not on the operator 

itself, and that the request for relief was filed within a reasonable 

time after the operator learned of the present posture of the case. 

Further, although counsel for the miner opposes the granting of any 

relief at this time, no showing has been made that the claims made by 

the operator are untrue. ];_/ 

Accordingly, in the circumstances of this case, we grant the 

operator 1 s request for permission ·1e its late-filed petition for 

discretionary review. ]_/ 

1./ Fed. R. Civ. P. 60(b)(l) provides: 

On motion and upon such terms as\ar just, the court may 

relieve a party or his legal reprts ntative from a final 

judgment, order, or proceeding fol\ he following reasons: (1) 

mistake, inadvertence, surprise, o excusable neglect •..• 

'±_/ The present situation is not.analogous to that involved in Duval 

~· v. Donovan & FMSHRC, 650 F.2d 1051 (9th Cir. 1981). In Duval the 

operator's petition for discretionary review was filed on the thirtyfirst day after the issuance of.~the administrative law judge's decision. 

Thus, although the petition for review was untimely filed under the Act 

and the Connnission's rules, the judge's decision had not become a final 

order of the Commission because 40 days had not passed since its issuance. 

30 U.S.C. & 823(d)(l). In a Duval situation, the inquiry is whether good 

cause for the untimely filing has been established. Valley Rock & Sand 

Corp., WEST 80-3-M (March 29, 1982); McCoy v. Crescent Coal Co., 2 

FMSHRC 1202 (June 1980). In the present case, however, the judge's 

decision became a final order of the Commission and, therefore, the 

request for relief is appropriately addressed under Fed. R. Civ. P. 

60(b). 

]_/ In this order we have not considered whether to grant the petition 

for discretionary review. We only rule that the petition may be filed 

at this time so that the Commission may proceed to review the issues 

raised and act upon the petition. 30 U.S.C. § 823(d)(2). 

1233 
Distribution 

Larry Harless, Esq. 

United Mine Workers of America 

1300 Kanawha Blvd., E. 

P.O. Box 1313 

Charleston, West Virginia 25325 

Douglas D. Wilson, Esq. 

Gardner, Moss, Brown & Rocovich, P.C. 

P.O. Box 13606 

Roanoke, Virginia 24035 

Michael McCord, Esq. 

Office of the Solicitor 

U.S.Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Gary Melick 

Fed. Mine Safety & Health Rev. Commission 

5203 Pike, 10th Floor 

Falls Church, Virginia 22041 

1234 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AMHERST COAL COMPANY, 

Respondent 

ION AND ORDER OF 

Civil Penalty Proceeding 

Docket No. WEVA 82-110 

A. C. No. 46-01369-03038 

MacGregor Cleaning Plant 

Counsel for the Secretary of Labor filed on June 24, 1982, in the aboveentitled proceeding a motion for approval of settlement. Under the settlement agreement, respondent has agreed to pay reduced penalties totaling $180 

instead of the penalties totaling $1,260 as proposed by the Assessment 

Office. 

The motion for approval of settlement gives the following reason for 

reducing the penalties proposed by the Assessment Office (p. 2): 

The underlying citations in this action are based on nine 

separate violations of 30 CFR 71.208(a), each of which was 

originally assessed a penalty of $140. The cited standard requires that each operator take a valid respirable dust sample 

from each designated work position on a bimonthly basis. In 

this action, subsequent to the filing of the civil penalty petition, respondent presented evidence showing that it had, in 

fact, taken the required respirable dust samples and submitted 

them to MSHA within the established timeframe. Copies of the 

dust data cards indicating that the samples were taken at each 

of the nine designated work positions are attached hereto as 

Exhibit A. However, due to the transposition of two numbers in 

block No. 10 of each dust data card, respondent was not given 

credit for having taken and submitted the sampling results to 

MSHA. Under the circumstances, the parties agree that respondent's negligence was significantly less than originally assessed 

and that a considerable reduction in penalty is warranted. 

Each of the nine citations involved in this proceeding alleges that the 

operator violated section 71.208(a) by failing to submit a required respirable 

dust sample for a certain occupation in a designated work area for the bimonthly sampling cycle of June-July 1981. Seven of the nine citations designate the area involved as the "001-0" section and two of them designate the 

area involved as the "002-011 section. The seven citations in the "001-0" 

section cite seven different occupational codes and the two citations for 

1236 
the "002-0" section designate two different occupational codes. Each citation is based on an "Advisory of Non-Compliance" sent out by MSHA's 

computer. 

Each of the Dust Data Cards furnished by respondent in support of its 

claim that it did not violate section 71.208(a) shows that respondent did, 

in fact, submit a respirable dust sample for each of the occupational codes 

involved for the bimonthly sampling cycle of June-July 1981. The only mistake which respondent made was that respondent wrote in Block No. 10 of the 

card the numbers "010-0" for the seven samples submitted for section "001-0" 

and wrote the numbers 11 020-011 for the two samples submitted for section 

"002-0". Naturally, when data for respondent's samples were entered in MSHA's 

computer, the computer gave respondent no credit for seven samples submitted 

for section 001-0 because respondent's samples had an erroneous designation 

of section 010-0. Likewise, MSHA's computer did not give respondent credit 

for two samples for section 002-0 because respondent had erroneously designated the samples for section 020-0, 

Section 71.208(a) provides as follows: 

(a) Each operator shall take one valid respirable dust 

sample from each designated work position during each bimonthly 

period beginning with the bimonthly period of February 1, 1981, 

The bimonthly periods are * * i: June 1-July 31 * * * 

The evidence submitted with the motion for approval of settlement shows without question that respondent did "take one valid respirable dust sample from 

each designated work position during" the bimonthly period here involved of 

June 1 to July 31. Section 71.208(a) does not provide that respondent shall 

make no mistakes in filling out his dust data card. The requirements of the 

regulations were fulfilled when respondent took the required respirable dust 

samples for the designated working positions and submitted them within the 

June-July 1981 time period. 

Computers perform the functions which they have been programmed to 

carry out. When mistakes are made by the human beings who feed facts into 

a computer, those mistakes are not corrected by the computer. When an operator proves, however, that he took the samples, but made a clerical error in 

submitting them to MSHA, the mistake should be corrected so that the operator 

may be given credit for the having taken the samples and having submitted 

them within the time period required by section 71.208(a). 

In Co-Op Mining Co., 2 FMSHRC 3475 (1980), the Commission reversed an 

administrative law judge's decision which had accepted a settlement agreement 

in circumstances almost identical to those which exist in this proceeding. 

In the Co-Op case, a respondent had submitted a respirable dust sample for an 

employee who did work for it but had not submitted a sample for a person who 

MSHA mistakenly thought worked for respondent. The Commission said that no 

violation of section 70.250(b) had occurred in that case. The Commission 

1237 
observed that the deterrent effect of paying penalties would not be advanced 

by having a penalty paid for a violation which had not occurred. I believe 

that the Commission's holding in the Co-Op case is controlling in the factual 

circumstances which exist in this proceeding. A respondent should not have 

to pay penalties for a clerical error. In Old Ben Coal Co., 2 FMSHRC 1187 

(1980), the Commission affirmed a judge's decision in which he had held that 

an inspector's clerical mistake of writing section 104(c)(l), instead of section 104(c)(2), on four different unwarrantable-failure orders should not be 

considered as a reason for invalidating the orders since the inspector's mistake did not in any way udice respondent. 

The purposes of 

way by the fact that 

submitting nine 

the respirable-dust standards were not thwarted in any 

were complied with when 

them within the 

inadvertently transposed two numbers when 

samples, The provisions of section 71.208(a) 

respondent took the required samples and submitted 

time Therefore, I find that no violations 

of section 71.208(a) 

that the motion for 

occurred, that the citations should be vacated, and 

of settlement should be denied. 

WHEREFORE, it is ordered: 

(A) Citation Nos. 9915322 through 9915330 dated August 13, 1981, were 

issued in error and are vacated. 

(B) The Petition for Assessment of Civil Penalty filed January 7, 1982, 

in Docket No. WEVA 82-110 is dismissed. 

(C) The motion for approval of settlement filed on June 24, 1982, in 

Docket No. WEVA 82-110 is denied. 

(D) The now scheduled to be held on August 3, 1982, in this 

proceeding is canceled. 

Distribution: 

Richard 

~<:.~~ C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Janine C. Gismondi, Attorney, Office of the Solicitor, U. S. 

ment of Labor, Room 14480-Gateway Bldg., 3535 Market St., Philadelphia, 

PA 19104 (Certified Mail) 

Richard W. Clonch, Esq., Associate General Counsel, Amherst Coal 

Company, Port Amherst, Charleston, WV 25306 (Certified Mail) 

1238 
FEDERAL MINE SA~ETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 jUL 6 \982 

WALTER A. SCHULTE, Complaint of Discharge, 

Complainant Discrimination, or Interference 

Vo 

Docket Noc YORK 81-53-DM 

LIZZA INDUSTRIES, INC., 

Appearances: 

Before~ 

Respondent 

DECISION 

G. Martin Meyers, Esq., Denville, New Jersey, for Complainant; 

Frederick Do Braid, Esq., Mineola, New York, for Respondent 

Judge Melick 

This case is before me upon the complaint of Walter A. Schulte, under 

section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 ~ ~·, the "Act," alleging that Lizza Industries, Inc., 

(Lizza) discharged him on October 15, 1980, in violation of section 105(c)(l) 

of the Act. 1/ Evidentiary hearings were held on Mr. Schulte's complaint 

in Morristown, New Jersey, on October 13, 1981, and March 29, 1982, and, in a 

telephone conference call, on April 16, 1982. 

Mr. Schulte can establish a prima facie violation of section 105(c)(l) 

of the Act if he proves by a p~eponderance of the evidence that he has 

engaged in an activity protected by that section and that the discharge of 

him was motivated in any part by that protected activity. Secretary ex rel 

David Pasula v. Consolidation ~oal Company, 2 FMSHRC 276 (1980), rev'd. on 

other grounds, Consolidation Coal Company v. Secretary, 663 F.2d 1211 

(3rd Cir. 1981). Before his discharge on October 15, 1980, Schulte had been 

1/ Section 105(c)(l) of the Act provides in part as follows: 

"No person shall discharge * * * or cause to be discharged * * * or 

otherwise interfere with the exercise of the statutory rights-of any miner 

* * * in any coal or other 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, 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 * * * 

has instituted or caused to be instituted any proceeding under or related to 

this Act * * * or because of the exercise by such miner * * * on behalf of 

himself or others of any statutory right afforded by this Act. 11 

1239 
employed at Lizza's Mount Hope Quarry as a bulldozer operator ~nd laborer. 

He asserts three separate claims of protected activity. First, he alleges 

that two weeks before his discharge he made safety complaints to foreman 

Jesse Parzero concerning unguarded belts, inadequate 11 stop devices" on moving 

machinery, explosive and flammable material stored near electric receptable 

boxes, unsafe catwalks and obstructed fire fighting equipment. Second, he 

asserts that around the same time he had complained to some unidentified 

person or persons that he had not received training needed to safely perform an assigrunent to stem explosives. Third, he alleges that he reported 

some of the above safety complaints to an official of the Federal Occupational Safety and Health Administration (OSHA) on October 6, 1980, and later 

that same day to Bernard Quinn, an employee of the Federal Mine Safety and 

Health Administration (MSHA)o 

While the credible evidence of record does not support Schulte 1 s first 

two claims of protected activity and indeed he appears to have abandoned 

those claims in his posthearing memorandum, there is no dispute that Schulte 

did in fact report safety complaints to MSHA on October 6~ 19800 2 These 

latter complaints are clearly protected activities under section 5(c)(l)o 

Supra note 1, P• 1. Accordingly, following the Fasula analysis, the next 

step is to determine whether the operator, in discharging Schulte, was motivated in any part by those protected activitieso 

Direct evidence of motivation in section 105(c) discrimination cases 

is rare. Secretary ex rel Chacon Vo Phelps Dodge Corporation~ 3 FMSHRC 2508 

(1981). In this regard, in the Phelps Dodge case the Commission quoted 

with approval from the circuit court decision in NLRB v. Melrose Processing Co •• 351 F.2d 693 (8th Cir. 1965): 

It would indeed be the unusual case in which the 

link between the discharge and the [protected] activity 

could be supplied exclus1vely by direct evidence. Intent 

is subjective and in many cases the discrimination can 

be proven only by the use of circumstantial evidence. 

Furthermore, in analyzing the evidence, circumstantial 

or direct, the (NLRB] is free to draw any reasonable 

inferences. 

In this case, the evidence is undisputed that Mr. Schulte reported his 

safety complaints to MSHA on October 6, 1980, and that two MSHA inspector's 

'!:_/ The first allegation of safety complaints is denied by Parzero. In addition, presumably available witnesses who it is claimed would have corroborated 

Schulte's allegations in this regard were not called by Schulte to testify. 

Under the circumstances, it may be inferred that those witnesses would not in 

fact have corroborated Schulte. It is not at all clear, moreover, whether 

the second complaint was made to any management personnel. In addition, 

the credible evidence shows that Schulte was in fact trained in stemming 

explosives. 

1240 
appeared at the Mount Hope Quarry on October 14, and 15, 1980, to conduct 

their inspection. On the first day of their inspection, they cited the 

operator for inadequate guarding of a conveyor. Mr. Schulte was discharged 

on the second day of the inspection by plant manager Fred Oldenburg. The 

decision was apparently made at a meeting that day in which Oldenburg, foreman Jesse Parzero, company official Jim Greniti, and shop steward Vincent 

"Vinnie" Crawn were present. Both Oldenburg and Parzero admitted that at the 

time of Schulte 1 s discharge, they knew of "rumors" that Schulte had initiated 

the MSHA inspection. 

Oldenburg also testified that "Jimmy [Greniti] may have brought up the 

fact [at this meeting] that this [Schulte 1 s discharge] [had] absolutely nothing to do with the MSHA inspectionon This gratuitous statement, while facially a denial that Schulte's complaints to MSHA had anything to do with his 

discharge, suggests in the overall context of the circumstances a guilty 

awareness that indeed the contrary was trueo The remark is suggestive, moreover, of the existence of a conspiratorial agreement that in the event 

Schulte's discharge should be challenged the response of the conspirators 

would be that his discharge had "absolutely nothing to do with the MSHA 

inspection. 11 

The evidence that the Lizza officials had some knowledge, albeit "rumors", that Schulte had called in the MSHA inspectors, the coincidence in 

time between the MSHA inspection and Schulte 1 s discharge and the peculiar 

gratuitous denial that Schulte's discharge was the result.of the MSHA inspection are relevant circumstantial factor~ in determining motivation. ]_/ From 

this circumstantial evidence, it could very well be inferred that Mr. Schulte 1 s discharge was at least partially motivated by his protected activities. 

Even assuming, however, that Schulte had therefore established a prima 

facie case under Pasula, that 'would not be the end of the matter. The Commission also stated in Pasula that the employer may affirmatively defend 

against such a case by proving by a preponderance of all the evidence that~ 

although part of its motivation was unlawful, (1) it was also motivated by 

the miners' unprotected activities, and (2) that it would have taken adverse 

action against the miner in any event for the unprotected activities alone. 

2 FMSHRC at 2799-2800. 

3/ On the subject of motivation, Schulte had also alleged that immediately 

after he was notified of his discharge, Parzero told him, in the presence 

of co-worker Robert Boisvert, "this is what you get~ Mister, for bringing 

in MSHA". However, both Parzero and Boisvert denied that any such statement 

was made. Under the circumstances, I give no credence to Schulte's testimony in this regard. Schulte further alleged that shop steward "Vinnie" 

Crawn also said to him "you sttrred up a hornet's nest -- it's a new company 

they didn't need the trouble, that's why they routed you"o In the absence 

of any corroboration from Mr. Crawn himself, I can give but little weight 

to this hearsay evidence. Finally, Schulte also claimed that one of the MSHA 

inspectors, Robert Held, warned him that Lizza had singled him out for complaining to MSHA. Since Inspector Held flatly denied making any such statement, I am likewise able to accord but little weight to this allegation. 

1241 
Within this framework, Lizza alternatively defends by claiming that 

Schulte was fired for his attendance problems and that he would have been 

fired in any event for that unprotected reason alone. In support of this 

defense, Lizza produced Schulte's time cards dating from June 30, 1980, and 

warning letters evidencing progressive disciplinary action against Schulte 

because of attendance problems preceding his discharge. The Commission has 

stated that in analyzing this evidence, the function of the Administrative 

Law Judge is only to determine whether the asserted business justifications 

are credible and, if so, whether they would have motivated the particular 

operator as claimed. Frederick G. Bradley v. Belva Coal Company, 4 FMSHRC 

(Decided June 4, 1982). 

Plant Manager Fred Oldenburg, testified that Schulte was discharged because 

of his repeated and unexcused tardiness, early departures, and failure to 

show up for work. Referring to Mr. Schulte 1 s time cards (Operator's Exhibit 

No. 4) Oldenburg observed that Shulte's problem began on September 14, 1980, 

when he "punched out" early. Presumably Mr. Oldenburg was referring to the 

time card for the pay period ending September 14, 1980, which reflects that 

on September 10, 1980, Mr. Schulte punched the time clock shortly after 2 

p.m., giving him only 6-1/2 hours in a regular 8-1/2 hour work day. Oldenburg told foreman Parzero to talk to Schulte about this early departure. 

Oldenburg testified that he also had the letter dated September 23, 1980 

(Operator's Exhibit No. 3) prepared and that he personally delivered it to 

Schulte on September 23, or September 24, 1980. According to Oldenburg, 

Schulte signed the letter in his presence and returned it .. without protesL 

The body of the letter reads as follows~ 

Your attendance practices leave much to be desired. 

These practices cannot be tolerated. I am, therefore, 

formally informing you tqat if these practices continue, 

you will be suspended and subsequently terminated. If 

you have any questions, please let me know. 

Schulte acknowledged receiving that letter by his signature in pencil and 

by doing so, also acknowledged the following statement: 11 1 hereby understand 

that if my poor attendance practices continue, I will be suspended for 3 days 

and terminated thereafter if the practices continue." 

Schulte's attendance problems continued, according to Oldenburg, and 

led to the issuance of another disciplinary letter and to his later discharge. 

Oldenburg observed that Schulte was 6 to 10 minutes late for work on September 23, and on September 24, 1980, that he left work 1-1/2 hours early on 

September 30, 1980, and that he did not show up for work or call in 

on October 2, 1980. The corresponding time cards (Operator's Exhibit 

No. 4) support this testimony. Although Schulte claims that he called 

in concerning his absence on October 2, it is clear that none of these 

incidents was excused by the operator. Oldenburg told Schulte on 

Saturday, October 4, that he was being suspended for 3 days, and that he 

was not to report to work on the following Monday, Tuesday, and Wednesday. 

Oldenburg followed up with a letter to Schulte dated October 6, 1980, 

1242 
(Operator's Exhibit No. 2) which he personally delivered to Schulte upon 

Schulte's return from the 3-day suspension. The letter reads as follows: 

Your attendance practices and work attitude leave much 

to be desired. You have been warned about these practices, 

yet you continue to be insubordinate. You are therefore 

suspended without pay for 3 days. If your performance 

does not improve, your employment will be terminated. If 

you have any questions, please let me know. 

Schulte admits receiving and signing the acknowledgement on this letter, 

presumably on Thursday, October 9, 1980. In signing the letter, Mr. Schulte 

acknowledged the following statement: "I hereby understand that if my poor 

attendance practices and work attitude continue, I will subsequently be 

terminated. 11 Schulte reportedly stated upon his receiving the letter, "Ivm 

not going to give you any trouble. 1v11 sign it."!!__/ 

According to Oldenburg, even after the warning letters and suspension, 

Schulte continued to show up late and to leave early. Schulte left work 

one-half hour early on October 10, 1980, left early on October 14, 1980, 

and showed up 6 minutes late on October 14, 1980. Schulte's time cards 

corroborate this testimony and indeed, Schulte himself admits that he left 

early without an excuse on October 10 and 14. Moreover, although Schulte 

alleges that he called in on October 2nd, he presented no affirmative evidence that any of his absences were excμsed. 

Schulte was thereafter discharged on October 15, 1980. The discharge 

letter (Operator's Exhibit No. 1) of the same date reads as follows: 

You had been warned'several times and subsequently suspended without pay as a result of poor attendance practices 

and insubordination. At a meeting held on Wednesday, 

October 15, 1980, you stated that your attitude had not 

improved and would not improve as a result of your no longer 

operating the bulldozer out at out Mount Hope plant. 

You were reminded on several occasions, and specifically 

on Thursday, October 9, 1980, by your foreman, Jesse Parzero, 

that your job required over time each day. You have opted to 

neglect these instructions and have left your work area prior 

to the designated quiting time. 

!!_/ Schulte claims that he was handed the disciplinary letters dated September 23, 1980, and October 6, 1980, at the same time, presumably on October 9th, 

and signed those letters, one right after the other, using the same pen. The 

original letters were subsequently admitted into evidence (Operator's Exhibits 2 and 3) and clearly show that Mr. Schulte signed one in pencil and 

one in pen. Under the circumstances, I give no weight to Schulte's allegations in this regard. 

1243 
Our prior verbal warnings, written warning, and disciplinary suspension have obviously failed to rehabilitate you. 

You have therefore left us no choice but to terminate your 

employment, effective today, October 15, 1980, at 1:30 p.m. 

The uncontradicted evidence of Schulte's poor work attendance clearly 

supports the operator's alleged business justification for Schulte 1 s discharge. Schulte contends, however, that his discharge was nevertheless 

discriminatory because other employees had equally poor attendance records 

but were not similarly disciplined. This contention, if true, could very 

well affect the credibility of the operator 1 s alleged business justificationo 

Belva Coal, supra. In particular, Schulte claims that co-workers Harley, 

Bell, and Brock had attendance records as poor as his own but were not 

similarly discharged. The time cards for those employees are in evidence, 

however, and Schulte has not shown how those records support his argument. 

Moreover, from my own independent appraisal of those records, I do not find 

that they support Schulte's contention in this regard. 

In conclusion, I find that while Lizza may very well have had a 11mixed 

motivation" for.discharging Schulte, it had credible nbusiness justification to discharge Schulte exclusive of any protected activities and it 

clearly would have discharged Schulte in any event for his unprotected activities alone. Pasula supra., Belva Coal, supra. Accordingly, the complaint 

of unlawful is denied and this case is dismisse • 

Distribution: 

G. Martin 

35 West 

G -'ck 

Assist Chief 

Meyers, Esq., Suite 106, Denv~ Professional Plaza, 

Main Street, Denville, NJ 07834 (Certified Hail) 

Frederick D. Braid, Esq., Raines and Pogrebin, P.C., 210 Old Country 

Road, Mineola, NY 11501 (Certified Mail) 

124·1 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR JUL 

SECRETARY OF LABOR, 

Petitioner 

v. 

ALLIED PRODUCTS COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

Docket No. SE 79-46-PM 

AC No. 01-00040-05006-F 

Montevallo Quarry & Mill 

ORDER ON REMAND 

71982 

In Allied Products Co. v. Federal Mine Safety and Health Review Commission, 

No. 80-7935, 5th Cir. Unit B (February 1, 1982), rehearing den. March 9, 1982, 

the Court affirmed a final order of the Commission in this case, finding that 

Allied Products violated three mandatory safety standards. 2 FMSHRC 2517 (ALJ, 

Sept. 1980). The Court found, however, that the penalties assessed were an 

abuse of discretion and remanded for further proceedings "with instructions to 

recalculate the penalties based on the existing record and on considerations 

outlined in this opinion. 11 The Courtvs mandate was received by the C)mrnission 

on April 9, 1982. 

The Commission remanded the case to me on May 5, 1982, for "the initial 

determination of the necessary and appropriate action in light of the Court's 

decision and remand." 

On June 26, 1982, the parties filed a Settlement Agreement proposing total 

penalties of $5,000 for the three violations found in my original decision. I 

find this Settlement to be consistent with the Court's decision and remand. 

WHEREFORE IT IS ORDERED that: 

1. The proposed Settlement Agreement is APPROVED. 

2. The penalties issued in my decision of September 14, 1980 are hereby 

changed to read as follows: A penalty of $2,000.00 for Citation No. 81004,a 

penalty of $1,000.00 for Citation No. 81007, and a penalty of $2,000.00 for 

Citation/Order No. 81053. 

3. Respondent shall pay the Secretary of Labor the above penalties, in the 

total amount of $5,000.00,within 30 days of this Order. 

(.J~ '"itWM VV>../ 

WILLIAM.· FAUVER, JUGE 

Distribution Certified Mail: 

Terry Price, Esq., Office of the Solicitor, US Department of Labor, 1929 Ninth 

Ave •• South, Birmingham, AL 35205 

Gilbert E. Johnson, Esq., 1212 Bank for Savings Building, Birmingham, AL 35203 

1245· 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

EASTERN ASSOCIATED COAL CORP., 

Contestant 

·.·_Contest of Notice 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. PITT 76X203 

Notice No. 1 CPB; 6/24/76 

Delmont Mine 

ORDER OF DISMISSAL 

On May 3, 1982, the Commission reversed my decision of April 14, 1977, 

vacating the citation issued in this case. At the same time, the Commission 

remanded the case to me "for further proceedings consistent with this 

decision. 11 

On May 24, 1982, I directed the parties to advise me as to whether 

they desired to be heard further on the remand. 

On June 29, 1982, respondent MSHA advised me that the violation of 

June 24, 1976, has been vacated and that a civil penalty was never assessed 

against the operator. In addition, MSHA advises that Eastern Associated 

Coal Corporation no longer owns the mine in question, and considering 

the lengthy time interval si~ce the issuance of the citation, MSHA has 

decided that no further enforcement action will be initiated. 

On July 1, 1982, Eastern Associated Coal Corporation advised 

me that it desires no further opportunity to be heard in this matter, 

that it does not believe that there is a necessity of further briefing, 

and that it would appear that there are no remaining issues to be decided. 

In view of the foregoing, this matter is now DISMISSED. 

Distribution: 

R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 900 Oliver Bldg., 

Pittsburgh, PA 15222 (Certified Mail) 

Leo McGinn, Michael McCord, ., U.S. Dept. of Labor, Office of the 

Solid.tor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Ma.tce~~d~~~aAait}q., UMWA, 900 15th St., NW, Washington, DC 20005 

12.46 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

FRED GANCHUK, 

LESKO BUGAY, 

Complainants 

v. 

ALOE COAL COMPANY, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUL 

Complaint of Discrimination 

Docket No. PENN 81-164-D 

Docket No, PENN 81-165-D 

DECISION 

Appearances: Ronald J. Zera, Esquire, Belle Vernon, Pennsylvania, for 

the complainants; Robert A. Kelly, Esquire, Pittsburgh, 

Pennsylvania, for the respondent, 

Before: Judge Koutras 

Statement of the Proceedings 

On February 19, 1981, the complainants filed discrimination 

complaints with the Secretary of Labor (MSHA), t --the respondent 

pursuant to section lOS(a) of the Fed~ral Mine Safety and Health Act 

of 1977, claiming that the respondent had discriminated against them 

by issuing two letters concerning an accident which had occurred on mine 

property. Both complainants were involved in the accident, and the 

letters advised them that should such an accident be repeated, the 

respondent company would take "necessary disciplinary steps appropriate 

with the accident" against them. Subsequently, on lfay 8, 1981, MSHA 

advised the complainants that upon completion of an investigation concerning 

their complaints MSHA determined that violations of section 105(c) 

had not occurred. Complainants were advised that if they 

with MSHA's disposition of their complaints, they were free to file 

complaints on their own behalf with this Commission. Complainants 

subsequently filed their complaints ~ se with the Commission on June 3, 1981, 

and subsequently retained counsel to represent them. 

The letters which prompted the complaints of discrimination are 

dated January 2, 1981, are addressed to the complainants at their 

residences, and are signed by respondent's Safety Director, P. R. Belculfine. 

The content of both letters are identical, and they state as follows 

(Exhibit R-2): 

1247 
This letter is being written in reference to the 

incident on January 2, at noon, whereby the 275-B 

Hi-Lift backed into the right front side of Company 

Jeep #20 at the raw coal feed area of the Coal Washer. 

Due to the rash of such accidents happening in the 

last two months, we reposted a Notice in reference 

to Company Safety Rules and Policy regarding moving 

equipment in work areas. Fortunately no one has been 

injured by these accidents, but the near misses and 

expensive repair bills due to these accidents warrant 

us to put you on notice, 

Equipment operators should have their equipment in 

control at all times and personnel vehicles should 

far enough away that they will not be backed into by 

heavy equipment. 

Should such a similar accident happen again, the Company 

will have to take the necessary disciplinary steps 

appropriate with the accident, 

By agreement of the parties, these cases were consolidated for trial 

in Pittsburgh, Pennsylvania, 7, 1982, and the appeared 

and participated fully therein, Pos briefs were filed, and the 

arguments presented have been fully considered by me in the course of 

these decisions. 

Issues 

The principal issue presented in these proceedings is whether or 

not the respondent has disc~iminated against the complainants and whether 

the letters which they received as a result of the accident in question were 

in fact prompted by any protected mine health and safety activities. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301 

et~ 

2. Sections 105(c)(l), (2) and (3) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3). 

3. Commission Rules, 30 CFR 2700.1 ~~ 

Testimony and evidence adduced by the complainants. 

Lesko Bugay testified that he has been employed by the respondent 

for 38 years, is a member of the mine safety committee, and also serves 

as President of Local Union 9636. On January 2, 1981, he was performing 

1248 
his duties as a "hi-lift" operator at the coal stock pile located on a 

hill above the mine office. In accordance with the usual procedure, he 

had been relieved for lunch by Mr. Fred Ganchuk, and he drove a company 

jeep to lunch. Upon his return, he parked the jeep in the usual spot. 

As he alighted from the vehicle and looked back, Mr. Ganchuk backed 

the hi-lift up and struck the jeep. After a few words between them, 

Mr. Ganchuk went to the mine office and reported the accident. The 

next day, Mr. Pat Belculf:ine gave him a letter concerning the incident 

and informed him that "it didn 1 t mean However, upon reading 

the letter Mr. Bugay concluded that the last paragraph of the letter 

him on probation for being involved in the accident and he asked 

Mr. Belcu:Jfine to withdraw the letter. When he refused, Mr. Bugay filed 

a 11 regular grievance", and another grievance" was also sub 

filed (Tr. 10-14). 

Mr. Bugay stated that he parked the jeep in 

ques where :1r. Ganchuk had parked it when he came 

to relieve him for lunch. He also indicated that he parked it next to 

the fuel tanks near the coal pile, but no vehicles were 

there and he does not park his personal vehicle there either. Mr. Bugay 

described the coal loading process with the hi-lift and confirmed that 

he was aware of company policy and the pos of a notice on December 15, 1980, 

vehicles. 

Mr. Bugay testified that the vision to the rear of the hi-lift is 

bad because of the different equipment obstacles and he assumed that 

Mr. Ganchuk had observed him when he parked the jeep. He also indicated 

that Mr. Ganchuk did not waive to him, and he confirmed.that he was aware 

of the fact that prior accidents had ·Occurred and that from his experience 

around heavy equipment, extra precautions were called for (Tr. 14-18). 

He also confirmed that during the grievance complaint which he filed, 

his position was that an oral reprimand, rather than a written letter, 

would have been appropriate in his case and he wanted the letter retracted, 

the last paragraph (Tr. 19). He also indicated that others 

who have been involved in similar accidents never received any letters, 

and while the company did give him an opportunity to make restitution 

for the damage to the vehicles, he declined to pay because he did not 

believe it was "the right way" (Tr. 21). 

In response to bench questions, Mr. Bugay stated that the procedure 

of parking the jeep and being relieved by Mr. Ganchuk for lunch had 

been followed by both of them over a period of a year prior to the accident. 

The fender of the company jeep was damaged, but he could not estimate the 

cost of repairs, and he confirmed that a "hi-lift" is in fact a front-end 

loader (Tr. 24). It had a back-up alarm, but he could not recall whether 

it was operational and he confirmed that the loader backed into the jeep 

while the jeep was parked, and that he was s approximately 15 feet 

away at the time of impact. He did not have to out of the way of 

the loader in trying to get Mr. Ganchuk's attention, and he assumed that 

Mr. Ganchuk had seen him and that is why he parked the jeep where he did 

(Tr. 24-25). 

1249 
Mr. Bugay stated that the letter jeopardized his job because it 

places him in an "evaluation program", that "the next step could be 

my job", and that this was true even if the last paragraph of the letter 

were to be deleted. He believed that an oral reprimand would have been 

more appropriate because it makes a person be more alert "by someone 

telling you that they're not happy with it" (Tr. 26-27). 

Fred Ganchuk testified that he was operating the front-end loader 

which collided with the jeep in question on January 2, 1981. He confirmed 

that he had relieved Mr. Bugay for lunch and that he did not see Mr. Bugay 

when he parked the jeep because "he pulled into my blind spot". The jeep 

was able to move after he hit it, and he reported the accident (Tr. 27-29). 

On cross-examination, Mr. Ganchuk described the loader in question 

as a "six or seven bucket", and generally described its dimensions. 

He conceded that the accident was serious and could have resulted in a 

fatality. He also confirmed that he was aware of the posted company po 

concerning vehicles, and he explained the accident as follows (Tr. 30-31): 

Q. And yet, Mr. Bugay went ahead and parked within 

your working radius and within your blind spot 

as you say? 

A. Well, this is where we always stop at, because, 

we watch for each other coming in there. It just 

happened to be he got in when I wasn 1 t looking 

back. Got into the blind spot and I didn't see 

him. 

Q. Now, before you pull in there don't you gain 

the attention of the operator? 

A. We do now. At that time we didn't. I watched 

to make sure that he was looking back and see me 

and I pulled in there and stopped. 

Q. So before this you would always try to gain his 

attention before you entered his work area? 

A. I always watched to make sure he was looking 

back to see me. He would always give me some kind 

of a signal that he had seen me in some sort or 

other, he'd wave his hand or something. 

Q. Did you give any signal on this day that you had 

seen Mr. Bugay come back from lunch? 

A. No, sir. 

Q. In fact, you say, he must have been within your 

blind spot? 

A. Yes, sir. 

1250 
Mr. Ganchuk stated that had he seen Mr. Bugay the accident would have 

been avoidable, and had he waited until he acknowledged his presence 

the accident would not have happened. He confirmed that the company 

gave him an opportunity to make restitution for the damaged vehicles 

but that he declined to do so (Tr. 33). 

In response to bench questions, Mr. Ganchuk confirmed that the reason 

the jeep was brought in close proximity to the end loader he was operating 

was for the convenience of he and Mr. Bugay, and that this "was a routine 

thing" (Tr. 35). He also indicated that there is no written procedure 

as to where the jeep is parked when he relieves Mr. Bugay, and it is 

"a matter of habit" (Tr. 35). He believed the letter discriminated 

against him because "the next time that anything happens I lose my job" 

(Tr. 36), He believes the letter could be used against him as the first 

step in any future disciplinary action against him, and he confirmed that 

he also filed a grievance over the incident (Tr. 36). 

On further cross, Mr. Ganchuk conceded that the accident merited 

an oral reprimand from his supervisor, but since it was his first offense 

of this kind, he believes that the letter was not appropriate (Tr. 40). 

BelcuJ.fine respondent's safety engineer and safety director, 

was called as an adverse witness and confirmed that he issued the letters 

in question to Mr. Bugay and to Mr. Ganchuk. The letters were issued 

to make them aware of company policy dealing with working around equipment and they are still in their personnel files and wi~l remain there 

until the instant case is decided. He stated that the accident in question 

was a serious one and could have resulted in serious injury or death. 

He explained the last paragraph of the letter and indicated that any 

future accidents would have to be considered on the merits (Tr. 41-44). 

Mr. Belculfine identified a copy of a company Notice dated February 13, 1981, 

dealing with the operation of heavy equipment and a system for operators 

acknowledging each other. The notice was issued after the letters in 

question were served on the complainants, and it was part of the settlement 

of the Union safety grievance (Tr. 44, exhibit R-4). 

Mr. Belculfine confirmed that other accidents had occurred at the 

site of the accident involving Mr. Bugay and Mr. Ganchuk, as well as 

other accidents involving equipment operators. However, he denied that 

those involved in those accidents did not even receive a verbal warning 

(Tr. 45). In response to questions concerning prior accidents involving 

a Mr. Wolfe and a Mr. Chumpko, Mr. Belculfine acknowledged th3;t they 

received no letters from the company concerning the incidents (Tr. 46). 

Mr. Belculfine conceded that the Union had made complaints about the coal 

pile in questior., but insisted that they dealth with "different matters" 

(Tr. 46). 

With regard to the incident involving Mr. Wolfe, Mr. Belculfine 

stated that while Mr. Wolfe backed into a coal truck, the truck driver 

was at fault and Mr. Wolfe was not required to make restitution because 

it was his own truck (Tr. 46). As for Mr. Chumpko, he was verbally reprimanded, 

and it was one of the determining factors leading to his discharge (Tr. 47). 

1251 
Mr. Belcu1.fine confirmed that he spoke with Mr. Bugay about the accident, 

but could not recall whether he discussed it with Mr. Ganchuk, He denied 

that he issued the letter to Mr. Bugay because he was on the safety 

committee and the president of the local (Tr. 48). He also indicated 

that in considering other accidents which had occurred prior to the 

incident in question, each incident is taken on its own merits, and in 

certain instances, reprimands were given (Tr. 48). In response to 

questions concerning these past accidents, Mr. Belcu1.fine testified as 

follows (Tr. 50-53): 

THE WITNESS: Okay, On December 12th, there 

was a hi-lift that backed over the supply truck and 

demolished the supply truck. The person involved in 

that accident didn't come back to work. There was a 

letter drafted to be to this person. This 

person did not come back to work and this person 

voluntarily quit. 

The other accident that I think he is ref erring 

to at that time, is the Wolfe accident where the hilift backed into the coal truck. 

JUDGE KOUTRAS: Okay. And is that the case, 

in which you stated that the truck, that the trucker 

owned the truck? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: He was at fault? 

THE WITNESS: Yes, the trucker was at fault. 

JUDGE KOUTRAS: Who would have been a recipient 

of a letter, in that case, the other individual? 

I take it that since you made a determination 

that the trucker was at fault, that he was the only 

one that would have been reprimanded. And was he an 

independent contractor, owned his own truck? 

THE WITNESS: Independent, yes. 

JUDGE KOUTRAS·: Not a company employee? 

THE WITNESS: No. 

JUDGE KOUTRAS: Does that explain why you didn't 

send him a letter? 

THE WITNESS: Yes. 

1252 
JUDGE KOUTRAS: All right, Mr. Zera. 

BY MR. ZERA: 

Q. The hi-lift operator who backed into the supply 

truck, was that your employee? 

A. Yes. 

Q. He didn't receive a letter, did he? 

A. No he didn't. 

JUDGE KOUTRAS: But, Mr. Zera, I think he explained. 

Is that the gentleman that --- just a minute, 

Am I to understand that the hi-lift operator is the fellow 

that never came back to work? 

THE WITNESS: No. The supply truck driver, the union 

employee who was driving the supply truck, behind the hi-lift. 

JUDGE KOUTRAS: Didn 1 t return to work? 

THE WITNESS: No. 

JUDGE KOUTRAS: Why didn't the hi-lift operator get a 

letter? That's what he's asking you. 

THE WITNESS: Because, it was not his fault. 

BY MR. ZERA: 

. Q. Well, who's fault was the accident between Mr. Bugay and 

Mr. Ganchuk? 

A. Both. 

Q. What was the incident involving Mr. Chumpko? 

A. Foreman on the midnight turn approached Mr. Chumpko, it 

was foggy and bad visibility and he approached the hi-lift and 

the hi-lift operator didn't see him. 

Q. What happened? 

A. His wheel hit the pick up truck. 

Q. Who's wheel? 

A. The foreman's truck. The hi-lift wheel hit the foreman's 

vehicle. 

1253 
Q. Who was driving the hi-lift? 

A. Danny Chumpko. The hi-lift operator. 

Q. And he hit the foreman's truck? 

A. Yes. 

Q. And Danny Chumpko, the hi-lift operator, hit the 

foreman's truck did not receive a disciplinary letter? 

A. No. 

Q. And that's very similar to the accident between Mr. Bugay 

and Mr. Ganchuk, is it not? 

A. No. That is different. 

On cross-examination, Mr.Belculfine identified a copy of a letter that 

he had personally drafted in December 1980, for the mine superintendent 

proposing to suspend an employee for five for violating company policy 

and safety rules in connection with an accident involving a company supply 

truck. The employee subsequently quit his job voluntarily, and Mr. Belculfine 

identified a copy of company records this fact 

(Tr. 53-59; exhibits R-6 and R-7), He also indicated that after he spoke 

with Mr. Bugay about the accident on January 2, 1981, he discussed the 

matter with Mark and David Aloe in the mine office and they instructed 

him to write the two letters in quest·ion because of the seriousness 

of the accident (Tr. 61). 

In response to bench questions, Mr. Belculfine stated that he considered 

Mr. Bugay to be a very good worker and commented that I wish I had two 

more dozen men like him". He stated that the damage to the jeep was 

approximately $650 and that the loader sustained no damage. He indicated 

that there is no company policy concerning an employee making restitution 

for damaging company property, but conceded that had Mr. Bugay and Mr. Ganchuk 

made restitution the instant case would have been settled, (Tr. 63-64). In 

further explanation, respondent's counsel stated that had restitution been 

made, the letters would have been retracted and the matter resolved (Tr. 66-67). 

Testimony and evidence adduced by the respondent 

Mark Aloe, President, Aloe Coal Company, testified that he has known 

Mr. Bugay for all of his life, and that Mr. Ganchuk has worked for the 

company approximately seven years. He confirmed that he instructed Mr. Belculfine 

to send the letters in question after he informed him about the accident 

in question. He explained that he did so because of a rash of the same 

kind of accidents, which were potentially serious in that someone could 

have been injured or killed, and because of the potential loss of company 

property. He considered both Mr. Bugay and Mr. Ganchuk to be good 

and confirmed that this was the first such incident in which they were 

involved (Tr. 93-95). 

1254 
On cross-examination, Mr. Aloe stated that he was not involved in 

the question of restitution and that his brother David, a company vicepresident, made that decision. He confirmed that he employs approximately 

63 miners, but that he normally does not attend grievance meetings, but 

on occasion attends monthly union and management communications meetings. 

He never attended any meetings in which the safety of the coal pile was 

discussed (Tr. 95-97). 

Responding to the complainants' assertions that none of the individuals 

involved in the prior accidents received any reprimand letters, Mr. Aloe 

stated that each accident is taken on its own basis, and that mine management 

attempts to determine who was at fault. Conceding that a foreman was 

fired some months after his involvement in an accident, Mr. Aloe stated 

that the accident was approximately 85% of the reason why he was fired 

(Tr. 98). With regard to the so-called "rash of accidentsn mentioned 

in the letters sent to Mr. Ganchuk and Mr. Bugay, Mr. Aloe confirmed that 

they refer to the prior accidents testified to in this proceeding . 99)c 

Complainants 1 arguments 

In their post-hearing arguments, complainants assert that the 

"disciplinary letter 11 they received violates the Act in that they were 

discriminated against for engaging in protected In support of 

this conclusion, complainants maintain that the testimony at the hearing 

reflects that the Union, by and through its president and spokesman 

Lesko Bugay, made frequent complaints about the safety of the coal pile 

area, and that the respondent was aware of the employees concern about 

this area and that Mr. Bugay was the spokesman for these concerns. Since 

Mr. Bugay is president of the local, ·as well as a safety committeeman, 

complainants suggest that he was singled out for discipline so as "to 

stem the constant complaints and concerns of the membership". No such 

argument is advanced on behalf of Mr. Ganchuk. 

Aside from Mr. Bugay's service as a union officer and member of the 

safety committee, complainants argue that prior accidents had occurred 

at the coal pile area in question, but that no one involved in those 

accidents received letters of the type given to the complainants. Citing 

an incident involving a Mr. Wolfe, complainants state that he was involved 

in a serious incident where a hi-lift backed into a truck, but received 

no disciplinary letter. Citing a second incident involving a Mr. Danny 

Chumpko, where another hi-lift operator again hit a foreman 1 s truck, 

complainants assert that again, the hi-lift operator never received a 

disciplinary letter or warning. Although respondent maintained that the 

foreman was discharged as a result of this incident, since the discharge 

occurred four months after the incident, complainants argue that it is 

incredible to believe that the discharge was motivated by the accident 

in question. 

With regard to the respondent's posting of the December 15, 1980, 

"Notice", complainants maintain that this notice does not justify the 

letters issued to the complainants, and that the notice does not cover 

1255 
the circumstances of the Bugay-Ganchuk accident. Since a new "Noticen 

was reposted with·new instructions after the January 2, 1981, accident, 

complainants conclude that the respondent recognized the fact that the 

prior notice did not cover the incident in question, and that had the 

complainants violated the December 15 notice, respondent would not 

have found it necessary to post a new and different notice. 

Complainants assert that the facts of this case lead to the 

conclusion that Mr. Bugay and Mr. Ganchuk were treated disparately 

or differently than other employees who happened to be in similar or 

identical accidents, and that the only one factor that separates them 

from all of the other individuals involved in accidents at the coal 

pile is the fact that Mr. Bugay is an officer of the union and a safety 

conunitteeman, and that the respondent sought to stem the complaints 

concerning the inherent dangers in that area. 

Complainants believe that it is obvious that if all other employees 

involved in like or similar accidents at the coal pile received warning 

letters, there would be nothing to distinguish Mr. Bugay and Mr. Ganchuk 

from the normal practice of the respondent. However, on the facts of this 

case, complainants maintain that this is not so and that the complainants 

cases are a t". This is all the more shocking, argue the complainants 9 

when one considers Mr. Bugay 1 s previous unblemished record with nearly 

40 years work experience and the employervs statement that he wished he 

had "two dozen more" like him (Bugay), If that were true, maintains the 

complainants, no warning letter would issue. 

In conclusion, the complainants .assert that the letters they received 

are "threats" wh:i.ch have placed their jobs in jeopardy, even though some 

15 months have elapsed since the accident in this matter and there have 

no intervening accidents involving the complainants here. Citing the 

cases of Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d 

772 (D.C. Cir. 1974), and B~ker v. Interior Board of Mine Operations Appeals, 

595 F.2d 746 (D.C. Cir. 1978), complainants assert that they have the 

right, and are protected in the exercise of that right, to express their 

safety concerns to their immediate supervisor or to their employer. 

Respondent's arguments 

Citing v. Consolidation Coal Company, 2 FMSHRC 2786; 2 BNA MSHC 

1001, October , 1980, respondent argues that to establish a prima facie 

violation of section 105(c) of the Act, complainants must prove by a 

preponderance of the evidence: 

(1) That they engaged in a protected activity; and 

(2) That the adverse action was motivated in any part 

by the protected activity. 

1256 
Respondent maintains that a search of the pleadings and record in 

this case fails to reveal or identify the nature of the protected activity 

in which the complainants were engaging at the time the letters in question 

were given to them. Conceding that complainant Bugay has been president 

of the local Union for 12 years, and has served as a safety conunitteeman 

for 15 to 18 years, respondent points out that complainant Ganchuk holds 

no position at the mine other then as an employee. Further, respondent 

asserts that the only testimony of protected activity as argued by the 

complainants appears during the following colloquy with the presiding 

Judge in the questioning of Patrick Belculfine, respondent's safety 

director and the person who signed the letters in questions, and in the 

cross-examination of Mr. Belculfine by complainantsv counsel: 

Q. You handled both regular and contractual 

grievances and safety grievances? 

A. Yes. 

Q. As part of your duties did you also meet periodically 

with the union concerning safety matters? 

A. Yes. 

Q. How often were these safety meetings held? 

A. At least once a month we would have a two hour 

safety meeting. (Tr. 42). 

* * * * 

Q. Now you are aware that the union made constant 

complaints about the danger of that area because, 

of the height of the coal pile, were you not? 

A. Not the height of the coal pile, no. 

Q. You are aware that the union made complaints, in 

safety meetings, about that area? 

A. Dealing with different matters. (Tr. 46). 

Respondent maintains that the fact that there were conversations 

between union leaders and mine management about safety at the mine is 

not only customary in the coal industry, but is also mandated by the 

collective bargaining agreement. Respondent sees nothing unusual about 

conversations and meetings on safety, and believes that the mentioning 

of these meetings at the hearing appears to be an afterthought and not 

a basis of filing the complaint as they were never mentioned in the original 

pleadings. Respondent concludes that the accident which occurred was 

not protected activity, and to hold otherwise would mean any activity by 

an employee would qualify as a protected activity. 

1257 
Assuming that the complainants were engaged in a protected activity, 

respondent nonetheless argues that the action taker. by the respondent in 

this case was not motivated in any part by the protected activity. 

Respondent maintains that the action taken by the respondent was based 

on its sincere desire to protect its employees and1 equipment, and since 

accidents had happened previously, and since appropriate action had been 

taken by the respondent, these incidents evidence a consistent and fair 

policy by the respondent. 

With regard to the posting of the December 15, 1980, safety notice, 

respondent states that it was in fact a reposting of a safety notice issued 

March 30, 1976, and that it was posted on December 15 because of an accident 

which occurred on December 12, 1980. The notice required all employees 

to "make sure the equipment operators see you when approaching them", and 

respondent asserts that both complainants were aware of this safety 

notice and knew of its contents. Respondent asserts thac the notice was 

reposted because mine management wanted to protect its legitimate interest 

in its employees and equipment, and concludes that the accident which 

occurred would not have happened but for a violation of this rule~ 

Regarding the December 12, 1980, accident, respondent states that 

the incident occurred at a different area of the mine where a supp 

truck driven by one August Parilli, Jro, was struck by ci piece of heavy 

equipmento Since Mro Parilli was at fault a letter of reprimand was 

drafted to him but was never sent because he voluntarily terminated his 

employment. With respect to a second incident where a hi-lift operator 

backed into the side of the struck of an independent coal hauler (the 

Wolfe incident), respondent states that the truck driveT was at fault because 

his truck was in an inappropriate area and no reprimand was given to the 

hi-lift operator. Since the truck driver was an independent contractor, 

respondent states that he could not be reprimanded. 

Regarding the third accident which occurred in mid-1980, where the 

wheel of a piece of heavy equipment struck a foreman's vehicle (the Chumpko 

incident), respondent states that it was determined that because of the 

foggy conditions, the employee was not at fault. However, respondent also 

states that the foreman was orally reprimanded for this incident and it 

was but leading to his subsequent termination in 

November o 

Respondent maintains that the record in this case demonstrates that 

the next logical step by mine management when the rules were violated 

was to send a letter to those who failed to comply with those rules, 

and to deny the respondent to take this step would prevent it from any 

protection of its interests in such situations. Respondent asserts 

that the aforesaid incidents with the hi-lift and truck of the independent 

coal operator and the incident concerning the foreman further demonstrates 

the fair, consistent and unbiased approach in similar matters. Respondent 

also notes that Patrick Belculfine, when called by the complainants as 

per cross-examination, testified as to questions of counsel Zera on 

Record, Page 48, as follows: 

1258 
Q. It is also not true, had Mr. Bugay not been 

on the safety committee and president of the 

local, he would not have received this letter? 

A. I wouldn't reprimand a man because he's a union 

official, no. 

In conclusion, respondent maintains that any conclusion of a prohibited 

motivation in this case is entirely unwarranted, and that from a reading of 

the entire record, respondent suggests that the conclusion most warranted 

is that the complainants are upset that their otherwise good working record 

and history is now blemished by the letters which they received. Respondent 

notes that both complainants acknowledge some form of reprimand would have 

been appropriate. The mere fact that they do not feel the reprimand should 

have been in writing is of no consequence, since it is a matter for mine 

management to determine tbe nature and tenor it its reprimands. The 

mere fact that the complainants do not agree with the nature and tenor 

of the reprimand does not give grounds for the filing of a discrimination 

case under the Act, and the degree of discipline or whether any discipline 

should have been issued at all is not the determining factor. The test to 

be applied is whether or not the complainants were engaged in protected 

activity and whether the action of the mine operator was notivated in any 

part by reason of the protected activity. Respondent concludes that both 

items must be answered in the negative. 

Discussion 

The record in this case reflects that the union grievances filed by 

Mr. Bugay and Mr. Ganchuk concerning.the letters they received have been 

held in abeyance pending the outcome of the instant discrimination complaints. 

The grievances have progressed through the first three stages, but any 

final decision in this regard has been "allowed to lie dormant" (Tr, 37). 

With regard to the union safety grievance, exhibit R-4, concerning 

the area where the accident in question occurred, the information of record 

reflects that it was resolved at the second stage by the Union and Mine 

Management through the posting a notice and the distribution to all 

employees of an established procedure for operating equipment in work areas 

(Tr. 38-39) . 

It seems clear to me that under certain conditions a disciplinary 

letter of reprimand may be discriminatory under the Act since it may 

affect an employees pay, promotional opportunities, and even employment. 

See: Local Union 1110, UMWA et al., v. Consolidation Coal Company, MORG 76Xl38, 

Judge Michels, May 26, 1977. In that case, Judge Michels concluded that 

certain disciplinary letters were not issued in retaliation for reporting 

alleged safety violations, and therefore were not discriminatory. 

In the case of Ronnie Ross v. Monterey Cpal Company, et al., 3 FMSHRC 

1171; 2 BNA HSHC 1300 (May 11, 1981), it was held that singling out one 

safety committeeman to receive a letter of reprimand, while ignoring another 

committeeman who engaged in similar conduct, was discrimination under the 

1259 
Act. However, in Ross, the reprimand was affirmed and the complaint was 

dismissed because it was found that the conduct engaged in by Mr. Ross 

which led to the letter of reprimand was improper, and there was no showing 

that the letter was issued out of retaliation for safety complaints. 

In Local Union 1110 and Carney v. Consolidation Coal Company, 1 FMSHRC 

388 (1979), the Connnission affirmed a Judge's ruling that giving a safety 

committeeman three letters of reprimand for insubordination because he 

failed to ask mine management's permission to leave his work area for 

the purpose of filing safety complaints was discriminatory under the 

Act because the leaving of work for that purpose was protected activity. 

Complainants do not dispute the fact that an accident occurred and 

that they were at fault. In addition, they conceded that the circumstances 

surrounding the accident which occurred in this case warranted a reprimand. 

Their contention is that the reprimand should have been an oral one, 

rather than one in writing. They believe that the written record of a 

reprimand will, at some future time, possibly expose them to discharge 

if they are again found to be in violation of company rules. Aside from 

the fact that an oral reprimand is not in the form of a written document_, 

I have some difficulty in accepting complainants' conclusions on this 

question. A reprimand is a reprimand, and if it is justified in the 

first place, I see little distinction in putting it in writing. It seems 

to me that once an employee is reprimanded by management, or someone 

authorized to mete out such punishment, management is free to document 

this fact, whether it be by a notation placed in the employee's record, 

or whether it be in some other form, such as the supervisor making a 

note of the fact _that he orally admonished an employee so that he can 

rely on this in taking any future action against him if warranted. 

During the course of the hearing, the complainants' stated that their 

real concern was over the last paragraph of the letter, which they view 

as a perpetual threat to discharge or otherwise punish them at some future 

time. While it is true that the language used in this paragraph clearly 

serves as a warning, it is limited to similar accidents of the kind 

which occurred on January 2, 1981, and since it states that any future discipline 

taken "will be appropriate with the accident", I assume this means that 

lack of fault by either individual will not result in any discipline. 

This is particularly true in this case where the respondent opted not 

to discipline two employees involved in two prior accidents because they 

were not at fault. 

Findings and Conclusions 

While it may be true that complainant Bugay, acting in his capacity 

as president of the local and as a safety committeeman, was the spokesman 

for miner complaints concerning the coal pile where the accident in 

question occurred, the evidence adduced in th.is case simply does not 

support any conclusion that the letters given to the complainants were 

in reprisal for such complaints. As a matter of fact, as correctly 

pointed out by the respondent's counsel, the complaint filed in this case 

did not suggest or aver that the letters were given to the complainants 

because of any asserted safety complaints. This issue was raised for 

the first time at trial by the complaintants' counsel, and it is rejected. 

1260 
Further, the record suggests that the safety complaints concerning the 

coal pile were resolved during the grievance stage, and they were 

separately and independently addressed and resolved. 

With regard to the question of any disparate treatment of the 

complainants by the respondent with respect to the letter concerning the 

accident in question, I conclude and find that this is not the case. 

Respondent has established by a preponderance of the credible evidence 

and testimony adduced in these proceedings that it did in fact enforce 

its rules and policies concerning employee involvement in accidents 

on mine property. The testimony establishes at least three prior accident 

incidents which gave rise to some action by company management against 

certain employees who were involved in those accidents. Even though no 

actual letters were ever delivered in these instances, I conclude and 

find that the circumstances surrounding these incidents are satisfactorily 

explained by the respondent, and they do not rise to any inference, 

real or imagined, that the respondent intended to treat the individuals 

involved any differently from the complainants. 

One of the prior incidents in question involved a culpable contractor 

truck driver who was not employed by the respondent. Management decided 

not to reprimand its employee who was involved in that accident because 

he was not at fault. Under these circumstances, I cannot conclude that 

management's discretionary decision not to out any letters of 

reprimand in that instant was unreasaonble. 

With regard to the second incident involving a Mr~_ Parilli, respondent 

has established through credible testimony and evidence, which is unrebutted, 

that had Mr. Parilli not resigned his job voluntarily, he would have 

received the letter which had been drafted for the mine superintendent's 

signature by Mr. Belculfine. As for the third incident involving a foreman 

(Chumpko), respondent has established that it did not reprimand the 

employee involved because it was determined that he was not at fault. 

Again, I cannot conclude that management was wrong in not reprimanding 

him. Further, complainants' arguments that it is incredible to believe that 

Mr. Chumpko's discharge was prompted by the accident in question must 

be taken in context. Respondent does not argue that the foreman was 

discharged solely because of the accident. Rather, respondent's testimony 

is that this was but one factor in the decision to fire him. 

After careful consideration of all of the facts and circumstances 

presented in these proceedings, including the post-hearing arguments 

presented by the parties in support of their respective positions, I 

conclude that the respondent has the better of part of the argument and 

has satisfactorily rebutted any claims of discrimination in these proceedings. 

In short, I cannot conclude that the respondent discriminated against the 

complainants when it issued them the letters in question. To the contrary, 

given the circumstances of the accident, and ~he fact that prior incidents 

1261 
of the same nature resulted in damage to respondent's equipment and 

property, as well as exposing its personnel to possible serious injuries, 

I conclude that respondent acted reasonably to protect its legitimate 

interests when it issued the letters in question. Under the circumstances, 

the complaints of discrimination filed in these proceedings ARE DISMISSED. 

Distribution: 

A;L__,ir/~{~ 7~rgo/A. 

~/ Kout 

a! e&' 

as 

.. .--L'JVt.£/l:LY:1_ ~ 

Administrative Law Judge 

Robert A. Kelly, Esq., Guley, Birsic & Conflenti, 1212 Manor Building, 

564 Forbes Ave., Pittsburgh, PA 15219 (Certified Mail) 

Ronald J. Zera, Esq., R.D. #1, Box 177 Belle Vernon PA 15012 (Certified 

Mail) 

1262 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUL 

ROGER A. ANDERSON, 

Complainant 

Complaint of Discrimination 

v. 

ITMANN COAL COMPANY, 

Respondent 

Docket No. WEVA 80-73-D 

Itmann No. 3A Mine 

Appearances: F. Alfred Sines, Jr., Esq., for Complainant 

Jerry F. Palmer, Esq., for Respondent 

Before: J·1dge William Fauver 

FINAL ORDER 

On May 28, 1982, a decision finding liability was issued in this 

proceeding with the following provision pertaining to and other 

relief: 

"Pending a final order counsel for the parties are directed 

to confer in an effort to stipulate the amount of back pay, interest, 

attorney's fee, and costs due Complainant under this decision, and 

to stipulate the other terms of a proposed final order." 

On June 24, 1982, the parties advised this Judge that they had reached 

an equitable settlement for a proposed final order. Said joint stipulation 

of settlement was reduced to writing and signed by the parties on June 29, 

1982. 

Based on an independent evaluation and de novo review of the circumstances, 

I conclude the proposed settlement is in accord with the purposes and policy 

of the Mine Safety Law and the decision of May 28, 1982. 

ACCORDINGLY, IT LS ORDERED that: 

1. The Joint Stipulation of Settlement filed on July 1, 1982 is ACCEPTED 

and APPROVED, and incorporated in this order by reference. 

2. Respondent is assessed a civil penalty of $100 for its violation of 

section 105(c)(l) of the Act. 

1263 
3. Respondent shall pay to Petitioner the sum of Thirty-three 

Thousand Dollars ($33,000) within seven days of the date of this Decision, 

said sum to be apportioned between Complainant and his counsel in 

accordance with counsel F. Alfred Sines, Jr. 1 s letter to me of 

June 29, 1982, and pay to the Mine Safety and Health Administration a 

civil penalty in the amount of One Hundred Dollars ($100) within 

days of the date of this decision. 

u.2--lL- :f-..,...,~ WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

F. Alfred Sines, Jr., 

25801 

., Anderson & Sines, Drawer 1459, Beckley, W.Va. 

Jerry F. Palmer, Esq., Itmann Coal Company, 1800 Washington Road, Pittsburgh, 

PA 15241 

1264 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 9\9& 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

AMHERST COAL COMPANY, 

Respondent 

DECISION 

Docket No. WEVA 81-355 

A. C. No. 46-01364-03026V 

Amherst No. 4H Mine 

Appearances: David T. Bush, Esq., Office of the Solicitor, U. S. 

Department of Labor, Philadelphia, Pennsylvania, for 

Petitioner; 

Edward lo Eiland, Esq.~ Eiland & Bennett, Logan, 

West Virginia, for Respondent. 

Before: Judge Lasher 

A hearing on the merits was held in Charleston, West Virginia, on 

May 11, 1982, at which both parties were represented by c6unsel. After 

consideration of the evidence submitted· by both parties and proposed findings and conclusions proffered by counsel during closing argument, a decision was entered on the record. This bench decision appears below as it 

appears in the official transcript aside from minor corrections. 

This proceeding was initiated by the filing of a 

petition for assessment of civil penalty against the Respondent by the Secretary of Labor on May 12, 1981, 

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

Health Act of 1977, 30 U.S.C., Section 820(a). 

The Secretary seeks a penalty of $1,000 for the violation alleged to have occurred in citation number 912359, 

dated September 18, 1980, which was issued by the duly 

authorized representative of the Secretary (hereinafter 

"Inspector") and which charged Respondent as follows: 

"The approved roof control plan in Road 218 was not 

being complied with (sic). The TRS system was not being 

maintained in proper working condition in ~hat in Number 4 

1265 
heading crosscut left working face, the TRS supports were 

not placed firmly against the roof before the roof bolter 

operators proceeded inby permanent supports." 

In notes contained after the.description of the condition or practice on the face of the citation, the Inspector 

added, "You could see over top of the TRS when it was extended at full length, 11 and also, "Area of equipment: the 

roof bolter was removed from service." 

The citation which was issued at 1800 hours was terminated at 1830 hours on the same date, in reference to which 

the issuing Inspector, Earnest Eo Mooney, Jro~ noted~ "The 

RCP was discussed with the section crew and roof jacks were 

set as required, and the plan was being complied withou 

The Secretary contends that the alleged violation is a 

transgression of 30 CoFoRo 750200 The Respondent generally 

contends that because of the specific language of the roof 

control plan, no violation occurred. Their arguments will be 

more specifically discussed subsequently herein. Based upon 

my consideration of all the testimony, having observed the 

demeanor of the witnesses and having considered the weight 

which differing views of the evidence should be accorded, I 

find that the reliable probative evidence submitted during the 

formal hearing herein preponderates i.n the following manner. 

(1) On September 18, 1980, Inspector Mooney, while conducting a triple A inspection of Respodent's 4-H Mine and while 

being accompanied by Respondent's evening shift foreman, Robert 

Mitchem, approached a crosscut where roof bolting was being 

conducted in Road 218 by two roof bolter operators, Lee Brown 

and Ernie Adkins. Brown and Adkins were installing roof bolts 

with the use of a Lee-Norris TD-2 roof bolting machine as depicted on Exhibit 10 (Respondent's Exhibit 1), and which has on 

each side safety arms which are extendable to at least 72 inches. 

(2) The Respondent's roof control plan (portions of which 

have been placed in the record as Petitioner's Exhibit G-2) 

provides specific safety precautions for roof bolting machines 

with approved automatic supports. Page 6 of this plan provides: 

"The (ATS) and (TRS) system maintained in proper working 

condition is acceptable support during roof-bolting operations, 

provided that: 

."(a) The controls necessary to position and set the automated supports are located in such a manner that they will be 

operated from under permanent support. 

1266 
"(b) Such supports are placed firmly against the roof before 

the roof bolt operator proceeds inby permanent supports. 

"(c) The sequence of installing supports and bolts, as shown 

on the drawing, is followed. The distance from automated supports 

to the rib shall not exceed five feet unless additional support is 

installed to reduce the distance. 

n(d) The manner in which the automated support system is 

otherwise employed is consistent with the approved roof control 

plan. 

Temporary supports in accordance with an approved plan shall 

be installed prior to bolting when the automated support system 

is inoperative or does not make firm contact with the roofo 11 }:./ 

(3) At approximately 1800 hours on September 18, 1980, 

Inspector Mooney walked up to the roof bolting machine in question, sometimes referred to as a "Top Dog" machine and "double 

headed roof bolter, 11 and observed that the roof bolters were 

going around to the left of the crosscut in question. Inspector 

Mooney observed that the first cut had recently been made and 

that a normal phenomenon was ensuing, ioe., that the roof was 11working" or "falling downo 11 

(4) The Inspector observed that one of the rooJ bolters 

was working under a canopy-which is attached to the safety arm 

(or boom) which in turn is attached to the roof bolting machinewhich was not firmly set against the roof. Inspector Mooney 

asked Foreman Mitchem if he observed the same condition and, if 

so, what he was going to do about it. Mitchem told the operator 

of the machine to shut it off, after which the machine was taken 

out of service. 

(S) The canopy (or ring) under which Roof Bolter Ernie 

Adkins was working, at the time observed by the Inspector, 

was not placed firmly against the roof under which Adkins was 

working. Adkins was thus four feet beyond (inby) permanent 

supports. 

(6) After the continuous miner had made its first cut 

into the crosscut in question, Brown and Adkins cut or drilled 

and installed two rows of roof bolts (pins) and were in the 

process of installing a third row of roof bolts when the 

Inspector arrived on the scene. The first row, consisting of 

of one bolt, and the second row, consisting of two bolts, were 

both installed by Mr. Brown who was working on the left-hand 

side of the roof bolting machine under the canopy attached to 

the top of the safety arm on the left-hand side of the machine. 

The roof bolts were, according to the plan, to be set four feet 

1/ Petitioner primarily argues that Paragraph (b) is the section which was 

violated by Respondent. 

1267 
apart and the rows were to be four feet apart, thus in effect 

establishing a system of four foot centers for the placement of 

roof bolts. 

(7) After the completion of ~he second row, the roof 

bolting machine was moved forward a distance of four feet. As 

customary practice dictated, Mr. Brown on the left-hand side 

of the roof bolting machine and Mr. Adkins on the right-hand 

side of the roof bolting machine, elevated the safety arms with 

the canopies attached simultaneously. This function was completed in a matter of seconds. Upon completion of this procedure 

and before drilling on the third row commenced, both canopies 

(roof supports) were placed firmly against the roof o Adkins and 

Brown then commenced drilling holes in the roof for the placement 

of roof boltso The hole is drilled at a point in the center of 

the canopy (or ring) affixed to the boomo 

(8) After drilling approximately 35 to 40 seconds the roof 

bolting machine operator prevented their further drilling by 

turning off the machine at the direction of Mr. Mitchem. At 

some point in time during this 35 to 40 second period, the exact 

juncture of which is not subject to more precise identification9 

a defect in the bushings (sometimes referred to in the record 

as "rollers") }j occurred which resulted in the canopy-roof 

support dropping down from the roof a distan.ce of three or four 

inches. When this happened, the condition was observed by 

Inspector Mooney, who immediately took action to stop further 

drilling since the roof bolter was under unsupported roof. As 

previously noted, such action was his bringing the situation to 

Mr. Mitchem's attention. 3/ 

. (9) On September 15, 16, 17 and 18, 1980, Respondent's 

Assistant Mine Foreman Grover Grimmett, in on-shift reports, 

emphasized that he had reminded the pin crew (the roof bolting 

crew) to use jacks where the canopies didn't touch the top. 

(10) On September 18, 1980, Mine Superintendent Elster 

Hurley was told by the day shift foreman, after the day shift 

was completed, that the coal seam was getting higher and that 

2/ Shown as points "B11 to "C11 on Exhibit 10. 

3/ A conflict in the testimony between the Inspector and Mr. Mitchem on 

this point was posed at the hearing. The Inspector indicated that it 

was he who told the operator to stop the machine. Mitchem testified that 

it was he who told the operator to shut the machine off. I find this 

conflict to be a relatively unimportant disagreement on facts which have 

little, if any, bearing on the determination of the ultimate issues 

involved. I have previously concluded that Mr. Mitchem's version will 

be accepted on this point. 

1268 
the TRS equipment might not reach the top so as to support the 

same. At the time the evening shift started, approximately 

3:30 p.m., Mr. Hurley talked with section foremen and the roof 

bolters themselves to emphasize that jacks should be set before 

they started pinning since the TRS equipment might not reach 

the higher top. 

(11) The top (roof) of the 4-H Mine was "the worst 11 that 

Superintendent Hurley and Foreman Robert Mitchem has experi~ 

enced in their many years in coal mining. 

(12) After the Inspector issued citation number 912359s 

he explained the roof control plan to those of Respondent's 

employees who were concerned with the sameo The citation was 

then abated, and roof bolting continued with the use of jacks, 

which are rectangular metal poles and which were capable of 

assuming a greater length than the s~fety arm of the TRS 

systemo Subsequentlys Respondents after it had moved the defective Lee-Norris TD-2 machine out of the area, replaced it 

with a Lee-Norris TD-1 roof bolting machine. Subsequently, 

five rows of roof bolts were installed (approximately) in a 

continuation of the installation pattern which was interrupted 

at the third row when the defect in the canopy occurred~ and 

these rows were installed at a height which could have been 

accomplished by the Lee-Norris TD-2 machines which was removed 

from service after issuance of this citation. 

(13) The failure of equipment which occurred and which 

resulted in issuance of the citation, i.e., dropping of the 

canopy by reason of defective bushings, is rare. The bushings 

in question were defecti~e because of wear over a long period 

of time and not because of any traumatic happening or unusual 

circumstances which occurred on September 18, 1980. 

(14) Because the bushings or rollers in question were not 

maintained in proper working condition, they failed, resulting in the 

roof above the canopy on the right side of the roof bolting machine in question not being supported and ultimately resulting in the occurrence of an unsafe condition which jeopardized the life and well-being of the roof bolter working under 

the canopy, Ernie Adkins. 

(15) The bushings were so located on the roof bolting 

machine as to be externally visible. 

Ultimate Findings, Conclusaions and Discussion 

The background conditions affecting the circumstances 

which are involved in this litigation are that the mine in 

question has a very bad, presumably dangerous, top, and that 

the Respondent's management has taken, and had taken prior to 

the incident in question, unusual measures toward prevention 
of roof falls. One of these courses of action was causing 

those who worked under this roof to be intensely aware of 

safety precautions which should be" taken because of the unusual 

hazards posed. The record indicat~s that jacks were to be used 

whenever the TRS equipment was unable to reach the roof and 

support it because of the height of the coal seam being 

extracted. However, equipment failure is another means by 

which a safety hazard can come to fruition. The Government 

has taken the position that a violation occurred because the 

roof control plan was not complied with because when the roof 

bolting machine was moved from the second row to the third row 

of support in the crosscut in question, the seam of coal was 

too high and the result was that the TRS equipment did not reach 

the top so as to support ito I find that the Government's 

theory throti.~ :-out this case was not supported by the evidence, 

other than a rather tenuous belief of the Inspector which was 

articulated in a relatively unclear mannero Thus, much of the 

focus of the evidence in this case from the Government's standpoint was misfired. Nevertheless, I do believe that a violation 

was established within the context of the matters alleged in the 

citation and within the mandatory safety standard alleged by the 

Inspector to have been violated, 30 CoF.Ro 75.200. 

The Respondent contends that no violation occurred because, 

under Paragraph (b) of the roof control at page 6 thereof, 

the roof bolt operators did not proceed inby permanent supports 

before the TRS supports (in this case, the canopies) were 

placed firmly against the roof. The key word in Respondent's 

contention is the word "·before." Indeed, I have found that the 

great preponderance of the evidence in this case is that the 

right-hand side canopy was firmly placed against the roof when 

Mr. Adkins proceeded to institute drilling at that point" 

I have also found that the defective failure of the bushings 

occurred some time in the 35 to 40 second period after Mr. Adkins 

commenced drilling. However, Paragraph (b) is not operative without the coincidence of the prerequisites required in the opening 

paragraph of the required "Safety Precautions For Roof Bolt Machines 

With Approved Automated Supports," appearing on page 6. That paragraph requires that the TRS system to be acceptable support during 

roof bolting operations be maintained in proper working condition. 

The roof control plan is authorized by and is an extension 

of the mandatory standards implemented by Congress and further 

delineated in 30 C.F.R. 75.200. In pertinent part, that section 

provides: 

1270 
"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 on or before May 29, 1970. The plan shall show 

the type of support and spacing approved by the Secretary. 

Such plan shall be reviewed periodically, at least every six 

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 support will not pose a hazard 

to the minerso 11 

The key word in the last sentence is "adequate o 11 The requirement of the mandatory standard is that the temporary 

support system be adequateo 

Read in this light, the provision of the roof control 

plan requires that the system must be maintained in proper working 

condition, and then, in that underlying safe environment, the 

TRS supports are to be placed firmly against the roof before 

the roof bolt operator proceeds inby permanent supporto 

I find that the (essence of the violation) is t~_at the 

roof bolting machine was not maintained in proper working 

condition, and that it was inadequate. It did, indeed, fail, 

and this I find to be a violation of 30 C.F.R. 75.200. ~ 

find Respondent's argument to be hypertechnical in view of the 

testimony as to the severe problem which the roof in this mine 

presents. 

One person, Mr. Adkins, was placed in jeopardy by the 

hazards created by the violation. There is no showing of 

specific negligence in the occurrence of this violation. 

However, reference is made to the general tort principle that 

the unexcused violation of a governmental safety regulation is 

negligence per se. Gatenby v. Altoona Aviation Corp., 407 F.2d 

443 (3rd Cir., 1968); Miles v. Ryan, 338 F. Supp. 1065 (1972), 

affirmed 484 F.2d 1255~d Cir~973). I therefore find that 

the Respondent was negligent in the commission of the violation. 

The parties have stipulated that Respondent is a medium 

sized coal mine operator and that the assessment of a reasonable 

penalty in this case will have no effect on its ability to continue in business. The parties also stipuiated that the operator 

proceeded in ordinary good faith to achieve rapid compliance with 

the violated mandatory safety standard after notification 

thereof. I further find, based on stipulations, that in the 

24-month period preceding the commission of the violation in 

question the Respondent committed 105 violations of the Act. 

1271 
I find this, based upon other evidence in the record, to be a 

normal number of violations, and on that basis the penalty 

imposed will neither be increased nor decreased. 

Weighing all the factors which I have previously described in this case, and further considering the extreme 

risks-which are well documented in mine safety law-flowing 

from roof control violations, and considering the evidence 

which Respondent has placed into evidence in mitigation (for 

the most part evidence of extreme safety consciousness with 

regard to roof control violations), I find that the penalty 

initially proposed by MSHA in this case, $1,000~ is reasonable~ 

and it is so assessedc 

ORDER 

Respondent is ordered to pay the Secretary of Labor the sum of 

$1,000.00 within 30 days from the date hereofo 

'::~1i4/ 4//fl'~'/ ~{ Michael A. Lasher, Jr., Judge 

Distribution: 

David T. Bush, Esq., Office of the Solicitor, U. S. Department of 

Labor, 3535 Market St., Rm. 14480, Philadelphia, PA 19104 

(Certified Mail) 

Edward I. Eiland, Esq., Eiland & Bennett, Suite 508 National Bank 

Bldg., P. O. Box 899, Logan, WV 25601 (Certified Mail) 

1272 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WILLIAM A. WILLIAMSON, 

Vo 

BISHOP COAL COMPANY~ 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complaint of Discrimination 

Complainant 

Docket Noo VA 80-32-D 

Dry Fork Noo 37 Mine 

Respondent 

DECISION 

Appearances: James Haviland, Esq. 9 for Complainant 

Jerry F. Palmer, Esqo 9 for Respondent 

Before: Judge William Fauver 

This proceeding was brought by Complainant, William A. Williamson, under 

section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 ~~.,for review of alleged acts of discrimination. The case was 

heard at Charleston, West Virginia. 

Having considered the evidence and contentions of the parties, I find 

that the preponderance of the reliable, probative, and substantial evidence 

establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent operated a coal mine known as the 

Dry Fork No. 37 Mine in Tazwell County, West Virginia, which produced coal 

for sales in or substantially affecting interstate commerce. 

2. The mine had three working sections. Complainant was a section 

foreman in the First Left Section, afternoon shift (4 p.m. to midnight), 

which used a continuous-mining method to mine coal. The dust control and 

ventilation plan required that at least 3,200 cubic feet of air per minute 

(cfm) be supplied to each working face and that water spray pressure on the 

mining equipment be at least 75 pounds per square inch (psi). Dust at the 

working face was normally controlled by ventilation and water-suppression 

methods. The continuous-mining machine was equipped with water sprays to 

control dust. Water sprays were also installed above the chain conveyor, 

which transported coal from the face to shuttle'cars. 

1273. 
3. Section foremen were primarily responsible for implementing the 

ventilation and dust-control plan by ensuring that the continuous miner was 

supplied with adequate water for the water sprays, that the sprays were working properly, and that the working section was adequately ventilated. A 

ventilation reading was usually taken once at the start of the shift and once 

at the end of a shift. A section foreman could move the check curtains 

closer to or farther from the face to control the flow of air to the face; 

however, he was not authorized to increase or decrease the amount of air by 

opening, closing, or modifying an air regulator, a small opening made in a 

stopping or wall to control the flow of air. He was also not permitted to 

change the water pressure for the water sprays. Only the mine foreman was 

allowed to change the air regulator or the water pressure for the water 

sprays. If a section foreman was aware that insufficient air was reaching 

the section, he was instructed to adjust the check curtains, notify a supervisor, or withdraw his crew from the face. 

4. The dust-control program also included monitoring dust levels by 

issuing each miner a dust-sampling device every 6 months. This was a small 

pump that drew air from the miner's atmosphere and recorded the quality of 

air on a small cassette. Dust-sampling personnel were responsible for conducting the tests and sending the results to a lab for analysis. If the dust 

sampling results showed compliance with the dust-control plan, which required 

that levels of respirable dust not exceed 2 mg/m3? the miner would not be 

required to wear the sampling device for another 6 months. However? if the 

results showed excessive exposure to respirable dusts the miner would be 

retested. Miners showing high exposure, such as a continuous-miner operator~ 

might have to wear the device for weeks at a time. Also, if a group of dust 

samples showed an average above the 2.0 standard, Respondent would be subject 

to a citation and civil penalty for a dust violation. 

5. The dust-sampling pump was battery-operated and attached to the 

miner's belt. The cassette was supposed to be worn within arm's length of 

the mouth. A hose extended between the cassette and belt. 

6. Only dust-control personnel were trained in the operation of the 

dust-sampling device; however, the device was easily turned on and off. 

Usually a miner was handed the device and required to put it on and wear it 

for an entire 8-hour shift. 

7. A miner operator or shuttle car operator might find that the dustsampling device interfered with operation of the equipment because the 

cassette hose would become tangled with the levers on the equipment. In such 

cases the operator was allowed to remove the cassette from his clothing and 

attach it to the machine within arm's length of his mouth. If the cassette 

was not kept within that distance, the operator was supposed to turn in the 

device, void the cassette, and undergo another test. 

8. Miners assigned to wear a sampling device did not always wear it as 

required. At times, the devices were left in the bathhouse, in the dinner 

hole, or hanging on a piece of equipment while still running. No miner had 

1274 
ever been disciplined for not wearing a dust-sampling device when assigned 

~ to wear one and Respondent had never received a citation for its methods of 

sampling dust. Cassettes that had not been used properly for test purposes 

were supposed to be voided at the end of the shift, but there were times that 

such cassettes were not voided. 

9. Both mine management and mining personnel contributed to a lax or 

inconsistent approach to the dust-sampling program. For example, the mine 

superintendent, Joseph Aman, !:._/ occasionally observed improper sampling 

practices, !:.•.a•, leaving an activated pump in the dinner hole or wearing a 

deactivated pump, but took no action. Luther Young, a union safety committee 

member, toured the mine periodically and on one occasion observed sampling 

pumps hanging in the dinner hole in the Four Right Section. Aman was present; 

however he did not inquire as to why the pumps were not being worn or take 

any action to ensure that the cassettes were voided. 

Often, Young did not wear a pump that was assigned to him. He understood that it was supposed to be worn the entire shift; however, he would 

remove it if he found operation of the shuttle car difficult while wearing 

the pump. Sometimes he would leave the pump running in the dinner hole. He 

was never questioned for turning in a cassette that did not record an entire 

shift or that was unrepresentative of the mine atmosphere. 

Complainant, when assigned a dust-sampling device, rarely wore it the 

entire shift. He understood that the pump was supposed to run the entire 

shift or the sample was to be voided, but he would turn it off if it interfered with his work or if he had to go.behind a line curtain to take air 

readings. When Complainant had been an equipment operator, he had often 

disconnected his pump because he continued to get bad samples and would 

otherwise have been required to wear the sampler until he received good 

samples. 

In March 1980, Complainant observed Superintendent Aman at his desk when 

three dust pumps were sitting on top of the desk and running. On that day, 

the whole crew was supposed to be wearing dust-sampling devices. 

10. Respondent placed considerable pressure on section foremen to keep 

the dust-samples under the 2.0 level. On occasion, company officials 

threatened Luther Young about having bad dust-samples. In 1977 or 1978, 

Bubba Bradley told Young that, if samples were returned showing a violation 

of the law, the mine would be shut down. In 1980, Doc Davison· told Young 

that if the samples were out of compliance, the mine would be shut down. In 

1978, Young also heard a fire boss threatened by the day shift foreman when 

*l In pertinent parts of 1979, Complainant was Section Foreman, Evening 

Shift, of the First Left Section, Joe Aman was the Mine Superintendent, Bill 

Steel was the Day Shift Foreman, Johnny Woods was the Day Shift Section 

Foreman on the First Left Section, and Doug LaForce was the Day Shift Mine 

Foreman. 

1275 
the fire boss was going to record a bad ventilation condition in the Six 

Right Crosscut. The day shift foreman had stockpiled coal in the return and 

the flow of air was thereby reduced. 

11. The First Left Section presented a number of dust problems. It was 

in old workings, there was only one intake and usually only one return, and 

the belt haulage ventilated into the working face rather than away from it. 

Samples taken during Complainant's shift on September 27 and October 6, 1978, 

included dust levels of 2.5 and 7.0. A sample taken on Johnny Woods' shift 

(day shift) on December 12, included a dust level of 7.7. On December 20, 

1978, the First Left Section received a citation for a violation of the dustcontrol plan. The citation stated in part: 

Based on the results of 10 dust samples collected by 

the operator and reported on the attached teletype message, 

dated 12/19/78, the cumulative concentration of respirable 

dust in the working environment of the high-risk occupation 

in Section 008, was 23o7 mg/m3 of airo Management shall 

cause such working environment to be sampled every production shift until compliance with the applicable limit of 

20.0 milligrams per cubic meter of air for this section is 

achieved. · 

After receiving these results, Aman met with the section foremen on the First 

Left Section, and their shift foreman, and told them that dust levels were 

too high and had to be decreased. He explained the dangers of high levels 

of respirable dust and discussed measures required to reduce those levels. 

Aman offered advice and help to the section foremen and solicited ideas from 

them. Aman received no comments or suggestions from Complainant during that 

meeting. 

12. On March 8, 1979, the First Left Section received another citation 

for a violation of the dust-control plan. The citation stated in part: 

The 

Based on the results of 10 dust samples collected by 

the operator and reported on the attached teletype message, 

dated 3/05/79, the cumulative concentration of respirable 

dust in the working environment of the high-risk occupation 

in section 008, was 21.0 milligrams. Management shall cause 

such working environment to be sampled every production shift 

until compliance with the applicable limit of 20.0 milligrams 

per cubic meter of air for this section is achieved. 

results from the cited samples were as follows: 

Date Section Levels 

1-11-79 day 3.4 

1-19-79 midnight .5 

1-19-79 day 2.8 

1276 
1-25-79 evening 1.5 

1-25-79 day 1.8 

1-30-79 midnight 2.3 

1-31-79 evening 2o4 

2-01-79 evening 08 

2-20-79 evening lo2 

2-26-79 day 4o3 

After receiving these results, and the citation, Aman again discussed the dust 

problem with the foremen and explained the required methods of reducing dust 

levels. Aman received no comments or suggestions from Complainanto 

l3o After the first or second citation, Complainant spoke with Aman and 

Bill Steel, the Day Shift Foreman and Complainant 1 s immediate supervisor, 

about the dust conditions in the section. Complainant told them that he 

could not reduce the dust levels because water pressure for the sprays was 

too high and ventilation was inadequateo Complainant contended that when the 

water pressure was too great, the dust would be forced into the mine atmosphere instead of falling to the mine flooro Complainant had no tool ~o mea~ 

sure the water pressure; however, he conducted a test with his miner operator 

to show that, when the water hit the coal face with great force, the air and 

dust were forced back into the operator's face and sometimes even as far back 

as the shuttle car operator. The test ~as conducted with .. the miner operator 

and miner helper, and in the presence of the shift foreman, Bill Steel. Complainant's supervisors told him that he was exaggerating and that he could 

get good dust samples with the water pressure t~at was being used. Complainant also told Aman that the belt haulage was ventilating into the face 

rather than away from it. Complainant recommended that air be vented into 

the returns. 

14. On May 21, 1979, the day shift crew, supervised by Johnny Woods, 

mined the No. 1 Face in the First Left Section. The crew also spot-bolted 

between the No. 1 and No. 2 Faces. The Mine Foreman, LaForce, and two federal 

mine inspectors were present. There was adequate ventilation. At about 

3 p.m., before Complainant's shift, Woods told Complainant that the heading 

was behind and that it needed to be cut through to release the air. The 

No. 1 Face was about four cuts beyond the No. 2 Face in the working sectiono 

The No. 1 Face ventilated into the return, but the No. 2 Face ventilated into 

the old workings where the amount of air was very low. Complainant was told 

that a federal inspector was expected and to cut No. 2 through to get 

ventilation. 

Complainant entered the mine, measured the.air with an anemometer, and 

determined that no air current was reaching the No. 2 Face. He removed most 

of his crew from the section, to tighten and set timbers to seal off the check 

curtains all the way to the No. 2 Face. After about 3 hours, Complainant 

1277 
recorded air movement of about 2,100 cfm and his crew resumed production, 

although the ventilation plan required 3,200 cfm. The miner operator was 

using a dust-sampling device that shift. In all, Complainant took four 

anemometer readings on that shift and all were below the velocity required by 

the company plan and the federal regulation. 

At the end of the shift, Complainant told his immediate supervisor, 

Steel, that the air was insufficient. Complainant drew a diagram to show 

Steel how he thought sufficient quantities of air could be obtained. Steel 

then met Ermil Stacy, the Midnight Shift Foreman, and suggested a different 

method of ventilating the section to meet standardso Stacy made the changes 

and the section had sufficient quantities of airo To do this~ Stacey moved 

one check curtain from the right rib in the Noa 2 working section to the left 

rib and built a fly curtain in the crosscut between the return and intake 

entries. 

lSo On May 22, 1979~ about 8 aomo~ Aman became aware of the ventilation 

problem that had occurred on the afternoon shift on the previous dayo Aman 

took air readings and found there was enough air reaching the working section; 

however, there was still a dust problem. Dust from the No. 2 working section 

would travel to the No. 1 working section and, to correct this problem, they 

placed each working section on its own separate split of air and the volume 

of air reaching the Noa 2 Face was increased by adjusting the regulator to 

allow an additional 10,000 cfmo 

Complainant met Aman leaving the mine at about 3 p.m. Aman wanted more 

details of the problems Complainant had encount€red on May 21 and Complainant 

told him that the No. 2 Face had not received enough ventilation to prevent 

dust buildup. Later in their discussion, when Aman learned that the miner 

operator had been equipped with a dust-sampling device, he told Complainant 

that he would lose his job if the results were not in complianceo 

After meeting with Aman and Steel, Complainant met the Mine Foreman in 

the foreman's office and learned that the ventilation problem had been 

corrected during the midnight shift. 

16. Results of the May 21 sampling were included in an MSHA report 

received on the afternoon of June 4, with a citation charging the following: 

Based on the results of ten dust samples collected by 

the operator and reported on the attached teletype message, 

dated 5/31/79, the cumulative concentration of respirable 

1278 
dust in the working environment of the high-risk occupation 

in Section 008 was 22.3 milligrams. Management shall cause 

such working environment to be sampled every production shift 

until compliance with the applicable limit of 20.0 milligrams 

per cubic meter of air for this section is achieved. 

One sample taken on Complainant's shift showed a reading of 3.0 and 

another, for the miner operator, was 7.6. One reading on Woods' shift 

showed 6.9. 

Aman met with Complainant that afternoon before his shift began and told 

him of the results; however, they did not discuss disciplinary measureso 

Aman then met with supervisors Steel and LaForce to discuss the dust 

problem and possible disciplinary action. They decided that, as a disciplinary measure, the two responsible section foremen would have to work weekends" 

On June 6, 1979, at the end of the day shift, Steel told Complainant that the 

miner operator's dust sample taken on MBy 21 was in excess of the permissible 

level and, as disciplinary action, Complainant would have to work weekends 

until he demonstrated the ability to meet the dust standards. On June 7 Aman 

repeated instructions of the discipline and told Complainant that he had to 

achieve proper levels of respirable dust by using proper ventilation and 

water-suppression techniques and measures or he would be dischargedo By this 

time, Complainant had learned of his grandmother 1 s illne1:fs; he told Aman 

that he could not work weekends because of her illnesso Aman would not 

guarantee Complainant days off and told him he would have to choose between 

his family and work. On June 7, Complainant quit his employment rather than 

accept the discipline of working on weekends. 

Johnny Woods, the Section Foreman on the day shift, was also disciplined 

for high-dust levels by having to work on weekends in June. During his 

discipline, Aman examined Woods' section daily and observed that there were 

proper line curtains, adequate amounts of water, adequate levels of air, and 

a general improvement of section management. Dust samples were also taken 

and they were below 2.0 milligrams. Water pressure was not reduced to 

achieve this compliance. Aman determined that Woods had demonstrated the 

ability and attitude to meet the dust standards, and terminated his disciplinary weekend duties after about two weekends. 

17. About 2 weeks after leaving the mine, Complainant returned and 

asked to be reemployed. He filled out an application form, inserting "quit" 

in the space for reasons for leaving the last job. He has not been reemployed. 

DISCUSSION WITH FURTHER FINDINGS 

The basic issues in this case are (1) whether Complainant was engaged 

in protected activity under section 105(c)(l) of the Act and if so, 

(2) whether the Respondent discriminated against him because of such 

activity. 

1279 
Section lOS(c)(l) of the Act provides in part: 

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 * * * has instituted or caused to be 

instituted any proceeding under or related to this Act * * * 

One of the purposes of the legislation is to ensure that a miner will 

not be inhibited in exerc1s1ng his rights under the Act~ including making 

safety complaints. The Report of the Senate Committee on Human Resources 

stated: 

If our national mine safety and health program is to be 

truly effective~ miners will have to play an active part in 

the enforcement of the Acto The Committee is cognizant that 

if miners are to be encouraged to be active in matters of 

safety and health, they must be protected against any possihle discrimination which they might suffer as a result of 

their participation. S. Rpt. No. 95-181, 95th Cong., 

1st Sess. 31 (1977), reprinted in, Legislative History of 

The Federal Mine Safety and Health Act of 1977 at 623 (1978) 

(hereinafter "Senate Report"). 

The drafters of section lOS(c) intended that "[wJhenever protected activity 

is in any manner a contributing factor to the retaliatory conduct, a finding 

of discrimination should be made." Senate Report at 36, reprinted at 624. 

The Report also stated: 

It is the Committee's intention to protect miners 

against not only the common forms of discrimination, such 

as discharge, suspension, demotion, reduction in benefits, 

vacation, bonuses and rates of pay, or changes in pay and 

hours of work, but also against the more subtle forms of 

interference, such as promises of benefits or threats of 

reprisal. It should be emphasized that the prohibition 

against discrimination applies not only to the operator 

but to any other person directly or indirectly involved. 

Senate Report at 36, reprinted at 624. 

In Pasula v. Consolidation Coal Company, 2 FMSHRC 2786, 2790 [1980}, 

2 MSHC 1001, 1006 (BNA) (October 14, 1980), the Commission stated: 

1280 
We hold that the complainant has established a prima 

facie case of a violation of section lOS(c)(l) if a preponderance of the evidence proves (1) that he engaged in a 

protected activity, and (2) that the adverse action was 

motivated in any part by the protected activity. On these 

issues, the complainant must bear the ultimate burden of 

persuasion. The employer may affirmatively defend, however, 

by proving by a preponderance of all the evidence that, 

although part of his motive was unlawful, (1) he was also 

motivated by the minerrs unprotected activities, and (2) 

that he would have taken adverse action against the miner 

in any event for the unprotected activities aloneo On 

these issues 9 the employer must bear the ultimate burden 

of persuasiono It is not sufficient for the employer to 

show that the miner deserved to have been fired for engaging 

in the unprotected activity; if the unprotected conduct did 

not originally concern the e~ployer enough to have resulted 

in the same adverse action~ we will not consider ito The 

employer must show that he did in fact consider the employee 

deserving of discipline for engaging in the unprotected 

activity alone and that he would have disciplined him in 

any evento 

Complainant contends that Respondent~s dust-sampling program is one means 

of communicat to MSHA dust concentrations in the mine and that these 

communications by a miner and his efforts to ensure integrity of the dustsampling procedures are protected acti~ities under section lOS(c) of the AcL 

Complainant contends that his refusal to acquiesce in implied demands by the 

operator to permit the taking of unrepresentative dust samples was protected 

activity under section lOS(c). He contends that Respondent violated the Act 

by ordering his discipline for his upholding , the integrity of the dustsampl ing procedures by taking a valid, representative dust sample on Hay 21~ 

1979. 

Complainant argues that, although he received no express instructions to 

obtain improper samples, the dust-sampling program was poorly administered 

and notorious for unrepresentative dust samples. As examples of poor administration he points to: A lack of affirmative steps to ensure that the pumps 

were worn properly for an entire 8-hour shift; failure to void unrepresentative sam~les; threats of closing down the mine unless "good samples" (i.e.~ 

2.0 mg/rn or less) were obtained; intentional withdrawal of miners from dusty 

areas while they were equipped with sampling devices; and the withholding of 

authority of section foremen to make necessary adjustments in the air regulators and water pressure to control dust levels. 

Complainant argues that, because of the air problems on the working 

section Complainant mined coal in violation of 'the law on Hay 21, 1979, but 

that his supervisors did not object to this but threatened disciplinary 

action only if the dust sample results exceeded the 2.0 standard. There was 

no discussion concerning his running coal without adequate quantities of air. 

1281 
When the results were received and found to be in excess of 2.0,- Complainant 

was subjected to discipline. Complainant argues that the timing of the 

disciplinary action demonstrates that the reason for the discipline was not 

related to mining coal in violation of the law, but that Complainant was 

disciplined because the dust samples dtrhis shift exceeded 2.0 and this was 

discrimination because of his participation in a government-enforcement 

activity. 

Respondent contends that Complainant had the options of solving the 

ventilation dust problem on his own, seeking assistance from his superiors, 

or withdrawing his crew from the section, and that he was disciplined for 

operating his .section in violation of the dust-control plan and dust 

standards of the Act. It argues that two foremen were found responsible 

for dust violations and they were disciplined equally to achieve complianceo 

Part 70.100 of the Mandatory Health Standards, 30 CFR, requires that the 

average concentra, '.on of respirable dust in the mine atmosphere to which 

each miner is exposed be at or below 2o0 milligrams of respirable dust per 

cubic meter. 

On December 20, 1978, the 1st Left Section of the Dry Fork Mine received 

a citation because the respirable dust concentration on that section exceeded 

the allowable limits of Part 70.100. (The average level was 2.4o) Each of 

the section foremen on that section, i.e. 9 Johnny Woods, Carl Horton, and 

William Williamson (Complainant), was-told of the citation and instructed as 

to the importance of dust compliance. Each foreman was asked if he had any 

questions or needed help in having his shift comply. Complainant sought no 

help. The section came back into compliance on January 24, 1979, with an 

average concentration of 2.0. 

On March 8, 1979, the 1st Left Section received another citation for 

excessive respirable dust (average level 2.1). Each section foremen was told 

of the citation and was instructed as to the importance of dust compliance. 

Questions were solicited and help was offered. None of the foremen offered 

any excuse or reason as to why his section was out of compliance. Emphasis 

was placed on keeping sufficient air in each place, line curtains up, and 

water sprays in good order. They were told if the working place became 

dusty, mining was to cease and the miner operator was to remove himself to 

good air and not to resume operation until the dust had cleared. It was 

mentioned that if the 1st Left Section again went out of compliance, disciplinary action would probably be taken. The section came back into compliance on April 9, 1979, with an average concentration of 1.4. 

On June 4, 1979, the 1st Left Section again received a citation for 

respirable dust (average level 2.2), and each of the foremen on 1st Left was 

told of the citation and was instructed as to the importance of dust compliance. Questions as to how and why the section was again out of compliance 

were asked in an attempt to pinpoint the problem and its causes. It was 

determined that on May 21, 1979, on Complainant's shift, the miner operator, 

Jimmy Bonds, had worn a dust pump and received a high sample result. The 

1282 
section foreman, Complainant, acknowledged to Bill Steel (afternoon shift 

foreman) and Joe Aman (superintendent) that he had been lax in following the 

ventilation and dust-control plan. Also, a high dust sample was obtained on 

April 10, 1979, on the day shift, and no explanation was offered by the day 

shift section foreman, Johnny Woods. No high samples were found on the 

midnight shift. 

Management decided that the performance of Complainant and Johnny Woods was 

unacceptable and that disciplinary action was required. It was decided that 

each foremen would work each weekend until he demonstrated that he could 

perform his job in compliance with the dust standards. Termination of both 

foremen was strongly considered but it was decided that the foremen would be 

given one last chance. It was to be made clear to them that this was the 

last chance and failure to achieve acceptable dust samples would result in 

termination in the absence of a valid excuse. The logic behind the disciplinary action of working weekends was that it was stronger than just talking 

to the foremen but less stringent than termination. If a foreman could not 

demonstrate improvement, he would be terminated but if he did, he would not 

be working many weekends. Suspension without pay was also considered, but 

past experience (with other employees) had shown it to cause more harm than 

good. 

Johnny Woods was told of the disciplinary action to be taken and he 

worked June 9 and 10 (he was given off June 7 and 8)0 On June 6, Bill Steel 

told Complainant of the action to be takeno Joe Aman also discussed the 

action with Complainant on June 7o Complainant stated that illness in his 

family would prevent him from working weekends. The superintendent told him 

that, if there were idle days during the week he would have those off but he 

would be required to work on weekends until he proved himself. Complainant 

said that he would rather quit, and he did on June 7. 

When Woods was disciplined, Superintendent Aman visited the 1st Left 

Section each day looking primarily at dust control and ventilation. Aman 

later told Woods that he had demonstrated that he could perform his job 

properly and that he would not have to work any more weekends except as 

normally required of all foremen. The section was reported back in compliance on June 21 with an average concentration of .5 milligrams. The dust 

samples taken after the meeting with the foremen in June averaged 0.2. 

The discipline taken against Complainant and Woods, ordering them to 

work weekends, was to further compliance with health and safety standards at 

the Dry Fork Mine. They had been warned several times to follow the dustcontrol plan and to keep their sections in complaince. Complainant and Woods 

failed to do so and management applied equal and non-discriminatory discipline to effect compliance if possible. In prior meetings and warnings, it 

was made clear that they were expected to comply with the dust-control plan 

to keep dust conditions in compliance and, if they could not, they were not 

to work their crews in excessive dust but were to keep them out of dust and 

1283 
seek assistance from supervisors to correct the dust conditions. Management 

had considered firing Complainant and Woods but working en weekends was 

considered to be a last chance. Complainant was told that this was his last 

chance and if he went out of compliance again without a valid excuse he 

would be discharged. Johnny Woods, day shift section foreman, received the 

same warning and discipline as did Complainant. 

Complainant has shown that there were problems with the dust program, 

and that management exerted pressure to avoid obtaining dust samples above 

2.0. However, he was also given instructions, and the authority, to remove 

his men from excessive dust and to seek the assistance of supervisors if he 

could not correct an excessive-dust condition himself. Complainant has not 

proven by a preponderance of the evidence that his instructions from management meant that he was to cause misrepresentative dust samples and that he 

was disciplined for refusing to obey such instructions. His participation 

in the dust-sampling program was a protected activity under section 105(c) 

of the Act, but he has not proven that he was discriminated against 

because of such activity¢ He was disciplined for failure to meet the dust 

standards. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction of the parties and subject matter 

of this proceeding. 

2. Complainant has failed to meet his burden of proving a violation 

of section lOS(c)(l) of the Act. 

Proposed findings and conclusions inconsistent with the above are rejected 

ORDER 

WHEREFORE, IT TS ORDERED that this proceeding is DISMISSED. 

WILLIAM 

't<J~bv~ FAUVER, JUDGE 

Distribution Certified Mail: 

James Haviland, Esq., Mclntrye, Haviland & Jordan, 611 virginia Street, 

East, Charleston~ WV 25301 

Jerry F. Palmer, Esq., Bishop Coal CompanY., 1800 Washington Road, 

Pittsburgh, PA 15241 

1284 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NATIONAL MINES CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)~ 

Respondent 

DECISION ON REMAND 

Contest of Order 

Docket No. KENT 80-130-R 

Order No. 997527 

December 10, 1979 

Stinson Noo 5 Mine 

A decision was originally issued in this proceeding granting the notice 

of contest and vacating Order No. 997527, 2 FMSHRC 2576 (1980)0 The original 

decision was based on the Commissionis decisions in The Helen Mining Co. 0 

1 FMSHRC 1796 (1979), and Kentland-Elkhorn Coal Corpo, 1 FMSHRC 1833 (1979) 0 

in which the Commission had held that an operator does not have to pay a 

miner who accompanies an inspector who is making a "spot" inspection. 

The Commission issued an order on May 20, 1982, remanding the case to 

me for further proceedings consistent with the decision of the United States 

Court of Appeals for the District of Columbia Circuit in United Mine Workers 

of America v. Federal Mine Safety and Health Review Commission, 671 F.2d 615 

(1982), in which the court reversed the Commission's rulings in the Helen 

Mining and Kentland-Elkhorn cases and held that operators are required to 

pay miners for accompanying inspectors who are making "spot" inspections. 

I issued a procedural order on May 27, 1982, requesting that counsel for 

the parties advise me as to whether they wished to present any additional 

evidence or file any additional briefs before a decision on remand was 

issued. 

Counsel for contestant orally advised me on June 14, 1982, that he 

does not wish to present any additional evidence or make any additional 

arguments. Counsel for the Secretary of Labor filed on July 9, 1982, a 

letter advising me that he does not wish to introduce any additional evidence or make any additional arguments. 

Order No. 997527 was issued on December 10, 1979, citing contestant 

for a violation of section 103(f) of the Federal Mine Safety and Health 

Act of 1977 because contestant had declined to pay a miners' representative 

who had accompanied an inspector during a "spot" inspection made on 

November 7, 1979. The order was terminated on the same day after contestant 

1285 
had paid the miners' representative for accompanying the inspector on 

November 7, 1979. Inasmuch as the court's opinion in the UMWA case cited 

above requires that miners' representatives be paid for accompanying 

inspectors who are conducting "spot" inspections, I find that my original 

decision issued in this proceeding erroneously held that Order No. 997527 

was invalid. Therefore, Order No. 997527 should be reinstated and the 

notice of contest should be denied. 

WHEREFORE, it is ordered: 

(A) The order accompanying the decision issued September 11, 1980, 

2 FMSHRC 2576, is vacated as having been issued in erroro 

(B) The notice of contest filed on January 7, 1980, in Docket Noo 

KENT 80-130-R is denied and Order Noo 997527 dated December 10, 1979, is 

reinstated and affirmedo 

Distribution: 

~e.ritcg~ Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Robert L. Elliott, Esq., Attorney for National Mines Corporation, 

Harbison, Kessinger, Lisle & Bush, 400 Bank of Lexington Building, 

Lexington, KY 40507 (Certified Mail) 

Leo J. McGinn, Esq., Office of the Solicitor, U. S. Department of 

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

Harrison B. Combs, Esq., United Mine Workers of America, 900 - 15th 

Street, NW, Washington, DC 20005 (Certified Mail) 

1286 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ISLAND CREEK COAL COMPANY, 

Petitioner 

Contest of Citation 

v. 

SECRETARY OF LABOR, 

Docket No. VA 79-74-R 

Citation No. 694946 

June 4, 1979 

JIJL16J9lrl 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Re~pondent 

Virginia Pocahontas No. 4 Hine 

UNITED MINE WORKERS OF AMERICA; 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. VA 80-9 

A. C. No. 44-02134-03011 

Pocahontas No. 4 Mine 

DECISION ON REMAND AND APPROVING SETTLEMENT 

A decision was originally issued in this consolidated proceeding 

granting the notice of contest, vacating Citation No. 694946, and dismiss~ 

ing the petition for assessment of civil penalty, 2 FMSHRC 2583 (1980). 

The original decision was based on the Commission's decisions in The Helen 

Mining Co., 1 FMSHRC 1796 (1979), and Kentland-Elkhorn Coal Corp., FMSHRC 

1833 (1979), in which the Commission had held that an operator does not 

have to pay a miner who accompanies an inspector who is making a "spot" 

inspection. 

The Commission issued an order on May 20, 1982, remanding the cases 

to me for further proceedings consistent with the decision of the United 

States Court of Appeals for the District of Columbia Circuit in Mine 

Workers of America v. Federal Mine Safety and Health Review CoI!lillission, 

F. 2d 615 (1982), in which the court reversed the Commission's rulings in 

the Helen Mining and Kentland-Elkhorn cases and held that operators are required to pay miners for accompanying inspectors who are making "spot" 

inspections. I issued a procedural order on Hay 27, 1982, requesting that 

counsel for the parties advise me as to whether they wished to present any 

additional evidence or make additional arguments before a decision on 

remand was issued. 

1287 
Counsel for the Secretary of Labor filed on July 9, 1982, a response 

to the aforesaid procedμral order requesting that Citation No. 694946 and 

the petition for assessment of civil penalty be reinstated, and moving that 

a settlement agreement be approved under which the operator has agreed to 

pay a reduced penalty of $15, instead of the penalty of $34 proposed by the 

Assessment Office. 

Citation No. 694946 was issued on June 4, 1979, alleging that the 

operator had violated section 103(f) of the Federal Mine Safety and Health 

Act of 1977 by failing to compensate a miners' representative who accompanied an inspector on May 14~ 1979, with respect to a 5-day "spot" inspection. Inasmuch as the court's decision in the UMWA case cited above holds 

that a miners 1 representative is entitled to compensation when he accompanies 

an inspector during both "spot" and inspections, I find that my decision issued on September 11, 1980, in this proceeding erroneously vacated 

Citation No. 694946 and improperly dismissed the for assessment of 

civil penalty filed in Docket No. VA 80-9. 

Section llO(i) of the Act lists six criteria which are required to be 

considered in determining civil penalties. As to the criterion of the size 

of the operator's business, the proposed assessment sheet in the official 

file shows that the operator produces over 8 million tons of coal on an 

annual basis, thereby supporting a finding that Island Creek Coal Company 

is a large-sized company and that civil should be in an upper 

range of magnitude insofar as they are based on the size of the operator's 

business. 

As to the criterion of whether payment of penalties would cause the 

operator to discontinue in business, there are no facts in the official file 

pertaining to the operator's financial condition. The former Board of Mine 

Operations Appeals held in Buffalo Mining Co., 2 IBMA 226 (1973), and in 

Associated Drilling, Inc., 3 IBMA 164 (1974), that if an operator fails to 

present any evidence concerning its financial condition, a judge may presume 

that payment of penalties will not cause a respondent to discontinue in 

business. In the absence of any data in the file to support a contrary 

conclusion, I find that payment of penalties will not cause the operator to 

discontinue in business. 

As to the criterion of whether the operator demonstrated a good-faith 

effort to achieve rapid compliance after having been cited for a violation 

of section 103(f), the abatement portion of the citation shows that the 

operator paid the miner immediately after Citation No. 694946 was issued. 

Under the assessment formula then applicable, the Assessment Office assigned 

six negative penalty points, thereby giving the operator proper credit for 

prompt abatement of the alleged violation. 

The pleadings contain no data pertaining to the criterion of the operator's history of previous violations other than showing assignment of four 

penalty points under that criterion on the proposed assessment sheet in the 

1288 
official file. In the absence of any other data, I find that a sufficient 

amount was assigned by the Assessment Off ice under the criterion of the 

operator's history of previous violations. 

The remaining two criteria of negligence and gravity are discussed in 

the motion for approval of settlement. The motion states that reduction from 

the $34 proposed by the Assessment Office to the settlement amount of $15 is 

warranted because the operator declined to pay the miners' representative so 

that the operator could institute a legal challenge of the walk-around compensation provisions of section 103(f). The legal challenge did not expose 

miners to unsafe conditions. 

There is legal precedent for assessing low penalties in the circumstances which existed in this proceeding. In Bituminous Coal Operators 1 

Association, Inc. v. Ray Marshall, 82 F.R.D. 350 (D.D.C. 1979), the court 

noted that it would be necessary for an operator to violate section 103(f) 

of the Act in order to obtain judicial review of the enforcement procedures 

which MSHA intended to use with respect to a miner 1 s walk-around rights. The 

court also recognized that the operator would be subject to a civil penalty 

for violating the section just to test MSHAts enforcement procedures. The 

court then stated (82 F.R.D. at 354) that "* * * it would seem improbable 

that stiff supplemental civil penalties would be imposed where a genuine 

interpretative question was raised as to section 103(f), a provision which 

normally is not absolutely vital to human health and safety." 

On the basis of the discussion above, I find that the parties' settlement agreement should be approved. 

WREREFORE, it is ordered: 

(A) Ordering paragraphs (A) and (B) accompanying the decision issued 

September 11, 1980, in this proceeding are vacated as having been issued in 

error. 

(B) The notice of contest filed in Docket No. VA 79-74-R is denied and 

Citation No. 694946 dated June 4, 1979, is reinstated and affirmed. 

(C) The petition for assessment of civil penalty filed in Docket No. 

VA 80-9 is reinstated. 

(D) Pursuant to the parties' settlement agreement, Island Creek Coal 

Company shall, within 30 days from the date of this decision, pay a civil 

penalty of $15.00 for the violation of section 103(f) alleged in Citation 

No. 694946 dated June 4, 1979. 

1289 

~c.r;J~ 

Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 
Distribution: 

Marshall S. Peace, Esq., Attorney for Island Creek Coal Company, 2355 

Harrodsburg Road, P. O. Box 11430, Lexington, KY 40575 

Mail) 

Leo J. McGinn, ., Office of the Solicitor, U. S. Department of 

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

Joyce A. Hanula, Attorney, United Mine Workers of America, 900 - 15th 

Street, NW, Washington, DC 20005 (Certified Mail) 

1290 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 16198'l 

FREDERICK G. BRADLEY, 

Complainant 

Complaint of Discharge, 

Discrimination, or Interference 

v. 

Docket No. WEVA 80-708-D 

BELVA COAL COHPAHY, 

Respondent Belva Coal Mine 

DECISION Ai\fD ORDER 

On June 4, 1982, the Commission affirmed my decision finding that 

Respondent had discriminatorily Complainant in violation of 

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

The case was remanded to recompute the back pay award. 

On July 14, 1982, the parties submitted a stipulation showing the 

gross wages due Complainant, the actual interim earnings, the amounts 

to be withheld under State and Federal law, the interest on the back 

pay, Complainant's transportation costs, and the legal fees and 

expenses due Complainant's counsel. 

The parties agreed to waive any rights of "appeal and Complainant 

agrees to waive his right to reinstatement since he had previously 

refused an offer of Respondent, and has taken other employment. 

Having duly considered the matter, I conclude that the stipulation 

is in Complainant's interest and in the public interest and should be 

approveJ. 

Therefore, IT IS ORDERED: 

1. Respondent shall within 30 days of the date of this decision 

pay to Complainant the sum of $21,048.53 his net back pay (which 

includes interest at 12 percent per annum) plus $333 as transportation 

costs or a total of $21,381.58. 

2. Respondent shall within 30 of the date of this decision 

pay to Complainant and his attorney the sum of $2,502 as attorneys fees 

and legal expenses incurred in the prosecution of this proceeding. 

1291 
3. Complainant waives his right to reinstatement under my order 

of February 11, 1981. Therefore, Respondent need not reinstate or 

offer to reinstate Complainant. 

4. Upon payment of the above amounts, Complainant shall have no 

further rights under the Federal Mine Safety Act against Respondent 

arising out of his discharge on June 11, 1980. 

Distribution: 

Jtivvt-L6 fe6,?Jtf~ James A. Broderick 

Administrative Law Judge 

certified mail 

Daniel F. Hedges, Esq., Appalachian Research & Defense Fund, Inc., 

1116-B Kanawha Blvd., East, Charleston, HV 25302 

Ricklin Brown, Esq., Bowles, McDavid, Graff & Love, 1200 Commerce 

Square, P.O. Box 1386, Charleston, WV 25325 

Linda Leasure, Esq., Office of the Solicitor, V.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

1292 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

O~IAR MINING COMPANY, 

Contestant 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Contest of Citation 

JUL 16 & 

v. 

Docket No. WEVA 81-284-R 

Citation No. 667436; 2/3/81 

SECRETARY OF LABOR, Chesterfield Prep. Plant 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Appearances: 

Before: 

DECISION 

Donald A. Lambert, Esq., Charleston, West Virginia, 

for the contestant; Leo J. McGinn, Attorney, U.S. 

Department of Labor, Arlington, Virginia, for the 

respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a contest filed by the Contestant challenging 

the legality and propriety of a citation issued by MSHA charging the 

contestant with a violation of mandatory safety standard 30 C.F.R. 77.216-2 

(a)(l8). Respondent filed a timely answer in the proceeding asserting that 

the citation was properly issued, and pursuant to notice duly served 

on the parties, a hearing was conducted in Charleston, West Virginia, 

on April 28, 1982, and the parties appeared and participated fully therein. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

seg. 

2. 30 CFR 77.216 and 77.216-2. 

3. Commission Rules, 20 CFR 2700.1 et seq. 

Issues 

The critical issue presented is whether or not the contestant 

violated cited mandatory safety standard 30 CFR 77.216-2(a)(l8), as 

charged in the modified citation issued in this case. Additional issues 

raised by the parties are discussed at the appropriate places in this 

decision. 

1293 
Discussion 

The original section 104(a) citation in this case No. 0667436, 

was issued on February 3, 1981, and it charged the contestant with a 

violation of mandatory safety standard 30 CFR 77.216-2(b). The 

condition or practice described by the inspector as a violation states 

as follows on the face of the citation (Exh. G-2): 

Company has not submitted the additional information for impoundment 1211 WV 40430-02 which was 

requested by the District Manager on October 30, 1980. 

The citation was subsequently modified on March 10, 1981, for the 

purpose of amending the original citation to reflect the correct citation 

to the mandatory standard allegedly violated as 30 CFR 77.216-2(a)(l8). 

The October 30, 1980, letter referred to in the citation, is from 

MSHA District Manager Jim Krese (Exh. G-1), and it states as follows: 

It has recently come to our attention that the emergency 

spillway for the subject impoundment is not of adequate 

size to meet design criteria. We have evaluated the 

original design and our analysis indicates that the 

emergency spillway discharge data used in the flood 

routing was too high. 

It is requested that your company evaluate the emergency 

spillway design and submit a plan for corrective action. 

If you have any questions concerning this matter, or 

are not in agreement with our conclusion, please contact 

this office at the earliest possible date. 

Mandatory standard 30 CFR 77.216, requires a mine operator to submit 

design, construction, and maintenance plans for structures which impound 

water, sediment, or slurry if such an existing or proposed structure can: 

(1) Impound water, sediment, or slurry to an elevation 

of five feet or more above the upstream toe of the structure 

and can have a storage volume of 20 acre-feet or more; or 

(2) Impound water, sediment, or slurry to an elevation 

of 20 feet or more above the upstream toe of the structure; 

or 

(3) As determined by the District Manager, present a 

hazard to coal miners. 

Mandatory standard section 77.216-2, contains the minimum information 

required to be filed with MSHA by a mine operator once the initial plan 

1294 
required by section 77.216 is filed, and included among the kinds of 

information which must be filed is a general "catch-all" stated in 

subsection (a)(l8) of section 77.216-2, which states as follows: 

(18) Such other information pertaining to the 

stability of the impoundment and impounding structure 

which may be required by the District Manager. 

The citation issued after the inspector determined that the contestant 

had not responded to the aforementioned letter from District Manager 

Krese. 

Testimony and evidence adduced by MSHA 

MSHA Inspector Stuart H. Shelton, testified that he is a graduate 

civil engineer, that he is familiar with Omar Mining Company 1 s Robinson 

Creek Impoundment, and that as part of his MSHA inspection duties has 

"been looking at this site off and on for close to 10 years 11 (TL 12). 

Mr. Shelton identified exhibit G-1 as a copy of a letter dated October 30, 

1980, signed by MSHA District Manager J. J. Krese, and which was sent 

to the contestant. He identified exhibit G-2 as copies of the initial 

citation which he issued on February 3, 1981, and which he subsequently 

modified on March 10, 1981, citing a violation of 30 CFR 77.216-2(a)(l8), 

He confirmed that he issued the citation because of the failure by the 

contestant to provide the information requested by the district manager 

in his letter as required by the cited mandatory standard (Tr. 13-14). 

Mr. Shelton stated that he spoke with Mine Superintendent Ray Holbrook 

and Mr. Karu Ison, the Chief Engineer, and they informed him that they 

had no intention of responding to the letter. Mr. Shelton believed that 

a reasonable time had gone by from the date of the letter and the time 

the citation was issued. He also indicated that the letter was issued 

after MSHA's engineering staff at the Mt. Hope office conducted a field 

survey of the impoundment spillway to determine whether it was adequate 

in terms of capacity. These studies indicated that the spillway capacity 

was inadequate to meet the design criteria. The instant case is the 

only one that he is aware of where additional information pursuant to 

the cited standard was requested from a mine operator (Tr. 14-17). 

Mr. Shelton testified that during the time period from October 30, 

1980, until February 3, 1981, no response was received by MSHA with regard 

to the district manager's letter. However, subsequently, on February 27, 

1981, the contestant sent a letter to the district manager stating that 

MSHA had no basis for requesting any additional information concerning 

the spillway, and enclosing a legal paper explaining its position in 

the matter (Tr. 18-19; Exh. G-3). 

On cross-examination, Inspector Shelton stated that during the past 

ten years he has inspected the impoundment in question approximately three 

or four times a year, for a total of some 30 or 40 inspections. During 

1295 
this time he has issued citations concerning a fire on a slate dump 

near the impoundment, all of which were corrected. He has never issued 

any citations concerning the structural integrity of the impoundment 

until the citation in issue in this case was issued (Tr. 21, 23). 

He confirmed that he issued the citation because of the contestant's 

failure to respond to the district manager's letter of October 30, 1980 

(Tr. 23). 

Mr. Shelton stated that he is familiar with MSHA's annual report 

and certification requirements of 30 CFR 77.216-4, and the purpose of 

this requirement is to report any changes in the structure which might 

affect the stability of the impoundment. He identified copies of three 

letters dated June 13, 1979, July 23, 1980, and July 30, 1981, from 

MSHA 1 s district manager to the contestant, all advis the contestant 

that the information submitted meets the requirements of section 77. 216-l; 

(Tr. 24-27; Exh. C-1 through C-3). 

Mr. Shelton stated that the "certification" requirements of section 

77.216-4, the mine operator's ered to certify 

that the impoundment was built according to a plan approved by MSHA's 

district manager, and "it doesn't say anywhere in there that it is 

(Tr. 28), 

With regard to any "approved MSHA plan" for the impoundment structure 

in question, Mr. Shelton testified in part as follows (Tr. 28-31): 

Q. All right. 

Can we not garner from the approval of the 

plan that the District Manager must necessarily feel 

it's a safe structure or he would not approve the plans? 

A. 

moment. 

does not 

accepted 

it. 

You are treading on a very gray area at the 

Omar Mining Company is one of the sites that 

have a specific approved plan. They -- we 

it. We did not actually, specifically accept 

Now, for practical purposes, we did accept it. 

But, if you are going to say "approved plan", technically, 

they've never had an approved plan. 

Q. Is that because MSHA wasn't in existence or 

didn't have jurisdiction of these structures when it 

was started? 

A. You want a conclusion? 

Q. No. 

1296 
JUDGE KOUTRAS: Do the best you can with the question. 

THE WITNESS: All right. 

JUDGE KOUTRAS: If you don't understand the question, he 

can clarify it. 

THE WITNESS: Well, as I understand it, his question 

is: why was no approved plan ever issued for this site? 

When we first got started, we were as inexperienced in 

all of this as anybody else was and a number of sites slipped 

through under much the same condition as Omar. They, more or 

less, submitted information and we approved the plan, or we 

"accepted" the plan, or however you want to say it. There 

was no formal procedure for approving or disapproving a plan. 

That did not come until later. 

BY MR. LAMBERT: 

Q. In essence, or to sum up this line of questioning, 

Mr. Shelton, your letter of October 30th, 1980 came about, 

or was delivered -- let's see: July 23rd -- August, September 

* * * 

A. Right. 

Q. Ninety-three (93) days later, after we got a 

certification or our structure, they felt it necessary to 

ask for additional information. 

JUDGE KOUTRAS: Mr. Krese did? 

MR. LAMBERT: Mr. Krese did, right. 

THE WITNESS: Well, this comes back to the question which 

was never really decided as to what 77.216.4 addresses. As I 

understand it, it basically addresses changes in the structure. 

BY MR. LAMBERT: 

Q. And any other aspect of the impounding structure 

affecting its stability -- I'm asking you: would the District 

Manager give us a -- I'm calling it a "certification" of our 

structure if he felt the structural integrity was in doubt? 

A. The District Manager approved the plan as it came 

out at the time. 

1297 
Q. And, even after you issued the citation notice, 

June 30, 1981, you again approved our plan without giving 

us any information as to any structural deficiency; is that 

correct? 

A. As far as I see that I have anything to do with it, 

the two are not related. The two are different questions. 

They are different sections of the law. 

Q. You, in response to a question by Mr. McGinn --

you said the basis of the letter, as far as you are concerned, 

was based on hearsay testimony. 

A. I said that I don't know for a fact what happened. 

Thatrs correct. I was not involved in it. 

Q. And you were simply instructed to issue a notice; 

is that correct? 

A. Issued it because the paper had not been -- the 

response had not been submitted by Omar Mining Company. 

With to the specific impoundment design criteria information 

that the district manager sought to obtain from the contestant in this 

case, Mr. Shelton responded as follows (Tr. 31-33): 

Q. Did you ever inform Mr. Ison or Mr. Holbrook or 

the company of what the standard criteria you wanted them 

to respond to -- in other words, were they to respond to a 

probable maximum floor or a hundred-year flood or to 

standard engineering practices, or what were they to respond 

to? 

A. The company itself has admitted that the proper --

that there are structures that are downstream of the impoundment. That is beyond any dispute. The offices are below the 

impoundment. There are several communities below the impoundment and the currently accepted practice where loss of life 

is possible is to use the probable maximum precipitation as 

the criteria. 

Q. Has the District Manager informed this company, or 

any other company of that change of criteria from what is 

contained in 77.216? 

A. That is the criteria; so far as I'm aware, there is 

no dam in the sub-district that I work that has a lesser criteria 

than the PMP. This is the criteria that has always been 

accepted ever since about 1974 when we finally got organized. 

1298 
Q. Since when, Mr. Shelton? 

A. It was about 1974 or thereabouts when we started 

using the probable maximum precipitation for any impoundment 

which has the possibility of loss of life if it failed. 

Q. What is the PMP criteria? 

A. The Probable Maximum Precipitation is a criteria 

that has evolved based on historical records and also assuming 

the worst possible set of conditions. If you ask me exactly 

how it is evolved, I would have to say: I do not know. It is 

figured by the U.S. Weather Bureau. They put out a publication 

called TP-4 which shows what it is for each area of the country. 

For this area of the country, it is 27 inches in a six-hour 

period. Excuse me, that's been corrected a year or so -- a 

couple of years ago -- go 28 inches. The previous was 27 but, 

about two years ago, they changed it to 28 inches in six hours. 

Q. What was the design criteria on the storm in 1974 

except the criterion on the enegineers hydrolics and so 

forth? 

A. So far as I'm aware, it has always been the probable 

maximum precipitation, among experienced hydrologists, where 

loss of life is possible. We did not pick these figures out 

of a hat. It's what the Corps of Engineers uses. It's what 

the Bureau of Reclamation uses, and those are probably two 

of the biggest dam-building groups in the United States. 

Q. They are the ones that built Teton? 

A. Yes. 

Q. Subsequent to the notice of the filing of the amendment and so forth, Mr. Shelton, have you had conversations 

with the District Manager as to what he feels is reasonable 

required of Omar in the way of design data? 

A. No, I have not. 

Contestant's testimony 

Karu Ison, contestant's Chief engineer for the past eleven years, 

testified that he is acquainted with the impoundment in question and 

has been the Chief engineer beginning with its design and construction. 

The company hired a consulting engineering firm to do the initial dam 

design after a permit was obtained from the West Virginia Public Service 

Commission. Construction of the impoundment was completed sometime in 

1974, and it was initially inspected by the Bureau of Land Management. 

Correspondence with MSHA after the plans were filed began either in 1973 

1299 
or 1974, and MSHA inspected the site. In addition, "as-built" dam 

drawings and construction maps were submitted to MSHA, and they made 

certain recommendatio~s concerning the emergency spillway. In his 

opinion, the spillway was designed and built according to MSHA's recommendations (Tr. 51-55). 

Mr. Ison confirmed that during the period 1974 until 1980, the 

company has been required to submit to MSHA certifications from a 

registered professional engineer as to the physical integrity of the 

impoundment structure, and that MSHA has accepted these without making 

any recommendations for changes. The 1980 certification was submitted, 

and MSHA did not question the integrity of the structure or the emergency 

spillway, nor has MSHA ever told him what information was required after 

the district manager 1 s letter in question (Tr. 55-56). He also indicated 

that he does not really know how to respond to the letter, but he understands that MSHA was asking the company to enlarge the spillway. However, 

he has no competent engineering advice from his consultants indicating 

that the spillway is inadequate. He confirmed that the response finally 

made by the company taking exception to the district manager 1 s judgment 

was the only answer he could make. The company believes that since it 

hired competent engineers to design the impoundment, "it is way late 

in the game to try to make changes now" (TL 5 7). 

On cross-examination, Mr. Ison confirmed that if the regulations 

concerning the approval of dams went into effect on September 9, 1972, 

all correspondence between the company and MSHA would have taken place 

prior to that date (Tr. 57). He also confirmed that he disagreed with 

the contents of the district manager's letter of October 30, 1980, and 

did not express his disagreement in response to that letter, but did so 

later after the citation was issued (Tr. 58). 

In response to further questions, Mr. Ison stated that the consulting 

firm of L. Robert Kimble Associates was selected by the company from a 

list of such firms recommended either by MSHA or another Federal agency. 

After the initial plans were submitted, MSHA and the Bureau of Land 

Management conducted a field inspection at the site and issued a report 

and recommendations. After the spillway was enlarged and relocated according 

to these recommendations, it was approved by MSHA as the "as-built 

structure" (Tr. 60-61). This approval was sometime in 1974 after the dam 

was built (Tr. 62). 

Contestant's arguments 

In its post-hearing "statement of facts", contestant states that 

the impoundment in question (#1211Wv40430-02), was constructed during 

1973 and 1974, was essentially completed in 1974, and is used as an 

alternate slurry disposal area. Contestant asserts that at the time 

of the design-construction phase of this structure, such dams were under 

the jurisdiction of the West Virginia Public Service Commission. Subsequently the United States Bureau of Land Management and three other 

1300 
agencies became involved in the permitting of such structures. In 

1973 MSHA became involved, requiring submission of data as set out in 

§ 77.216,30 C.F.R. At this stage, the structure was, for all practical 

purposes, a completed structure, and that under§ 77.216 a plan for the 

continued use of an exis structure would be required before May 1, 1976. 

Prior to this date, MSHA was supplied "as built" drawings and these were 

evaluated by the "Denver Technical Support Group" of MSHA. After a review 

of the "as built" drawings MSHA required an alteration to the spillway 

design and after a review by the companyrs engineering consultants, 

a revised plan was submitted for MSHA review. 

Contestant maintains that after MSHA review, the spillway was 

altered in that this portion of the structure was relocated and expanded 

according to the ostensibly approved plans. This necessitated the 

expenditure of a considerable amount of time and money but the result 

was a wider, deeper and more stable structure. The structure is equipped 

with a under-flow drain of 48" x 48" totaling 1700 feet in length. A 

Decant system, to allow water to flow out of the impoundment into the 

underflow system, is in and apparently is functioning as designed. 

The spillway, in place for approximately 7 years, has never received water 

and remains "as built" after the required MSHA alterations referred to 

above. 

Contestant submits that all of the plans section 

77.216-2, have been submitted to MSHA and are on file at the District 

Manager's Office in Mount , West Virginia. In addition, contestant 

states that the required annual certifications, as required by section 

77.216-2(17), have been filed by the contestant. I take note of the 

fact that the annual certifications for the past three years are a matter 

of record in this proceeding (Exhs. C-1, C-2, and C-3). In addition, 

by agreement of the parties, additional exchanges of correspondence 

during the time period November 14, 1973, through April 24, 1979, concerning 

the structure in question are a part of the record by way of "background", 

and the parties have been furnished copies of these documents. 

With regard to the October 30, 1980, letter in question, contestant's 

Notice of Contest filed March 2, 1981, asserts that the letter was based 

on receipt by MSHA of a compiled by the State of West Virginia 

Department of Natural Resources, Coal Refuse and Dam Control Section, 

which report was prepared under a contract with the U.S. Corps of Engineers 

under the National Dam Inspection Act. Contestant points out that the 

letter lacks any reference to a specific "design criteria" relied on 

by the district manager to support the "presumptive" conclusion that the 

energency spillway "is not of adequate size", and that "corrective action" 

is necessary. Contestant states that upon receipt of the letter, it 

informed Inspector Sheltom that it took exception to the district managerrs 

conclusion, and that contestant was of the opinion that the structure 

was safe and that its design was in accordance with current prudent 

engineering practices as required by section 77.216-2(17). 

1301 
Contestant views the critical issue in this case to be as follows: 

Does the citation, including the District Manager's 

letter of October 30, 1980, contain sufficient specificity 

to adequately inform the Contestant of the nature of the 

supposed violation? 

- Phrased in another fashion -

Is it a violation of the law on the part of the company 

to fail to answer or reply to a request for additional 

information made by the District Manager when the request 

for such information is made in presumptive, pre-judgment 

terms applying an unknown standard or criteria? 

Citing the case of Secretary of Labor v. Walker Stone Company, 

1 MSHC 2262, decided by Judge Michels on December 10, 1979, contestant 

argues that the instant citation should be vacated because it is vague 

and ambiguous, and does not give sufficient notice as to the exact nature 

of the violation. In Walker Stone, the inspector cited a violation of 

30 CFR 56.12-35, which requires that all metal enclosing or encasing 

electrical circuits be grounded or provided with adequate protection. 

In vacating the citation, Judge Michels ruled that "If the citation is 

based on an improper grounding, it should specify what standards set out 

in the Code was violated so that the company will know exactly what it 

is being charged with" (emphasis added). 

Comparing the Walker Stone decision with the case at hand, contestant 

asserts that the citation issued by Inspector Shelton would not stand 

the test of specificity in that contestant was not informed by the district 

manager, the inspector, nor through the citation issued as to the standard 

or criteria that has been supposedly violated: Further, contestant states 

that to require the contestant to speculate or guess as to the standard 

or design criteria of impoundments used by the district manager to determine 

that the impoundment spillway "is not of adequate size to meet design 

criteria", is unthinkable in any due process sense, and that the attendant 

expenditure of resources by the contestant and the likelihood of nonacceptance of the conclusions by the district manager creates an impossible 

predicament for this Contestant. 

Another point made by the contestant as to whether the inspector 

was justified in issuing the citation is the fact that no time or deadline 

was set out in the district manager's letter, nor does§ 77-216(2)(a)(l8), 

place a time limit on a response date by contestant. Even assuming that 

the citation is justified under any conceivable set of existing conditions, 

contestant concludes that it was premature. · 

Concluding its arguments, contestant suggests that MSHA's district 

manager should be required to inform the contestant as to the "design 

criteria" he used to make the stated determination enunciated in his letter. 

1302 
At this point, the contestant could then evaluate its plan and design, 

and either take exception to the district manager's findings, or challenge 

the criteria used as being outside of or repugnant to "prudent engineering 

practice". Contestant concludes further that it would appear that the 

district manager, after reading or being informed of the contents of what, 

for purposes of this case, amounts to a "phantom report" from an agency 

not a party to these proceedings, adopted a design criteria that is outside 

the laws, regulations and standards that he is charged to uphold and 

administer. Should this be the case, contestant strongly suggests that 

the district manager be required to state and publish that he has, in 

fact, adopted such criteria, thus allowing the contestant an opportunity 

to either accept such design criteria and to properly evaluate its impounding 

structure in this light, or to take exception to the criteria and offer 

evidence of what it considers the criteria to be, consistant with prudent 

engineering practices. 

Respondent MSHA's position 

MSHA did not file any post-hearing arguments in this case. However, 

during the course of the hearing, its position is that the citation in 

this case was validly issued because of the contestant's noncompliance 

with the reporting requirements of the cited standard. In short, MSHA 1 s 

position is that by failing to respond to the district manager 1 s letter, 

contestant violated the cited standard, and the citation was warranted 

(Tr. 70). In addition, MSHA's counsel indicated that notwithstanding the 

merits of its arguments concerning the design of the spillway in question, 

the fact is that the contestant opted not to respond to the district manager's 

letter, even to record its disagreement, and under these circumstances, 

a violation of the cited standard has occurred (Tr. 73). MSHA's counsel 

concedes that the citation has presented the district manager with an 

available vehicle to initiate further enforcement action to correct 

certain conditions concerning the impoundment in question (Tr. 75). 

Since the citation remains unabated, I assume that what counsel has in 

mind is that MSHA can issue a withdrawal order for contestant's failure 

to abate the cited violation. 

MSHA's counsel also indicated that pursuant to section 77.216, the 

mine operator initially formulates a plan and design for the construction 

and maintenance of an impoundment and submits it to MSHA for evaluation 

(Tr. 65). However, prior to the promulgation of this section, another 

mandatory standard required that all impoundment structures which can 

impound water, sediment, or slurry shall be of "substantial construction". 

The submission of "as-built" plans were required separately under this 

general "substantial construction" standard, but subsequently, detailed 

submissions for such impoundments were required to be filed with MSHA 

pursuant to section 77. 216 (Tr. · 65-66). 

Inspector Shelton indicated that pursuant to the presPnt impoundment 

criteria considered by MSHA, the impoundmer.t in question mu.st adequately 

control any designed storm. The mine operator has discretion whether 

1303 
to do this by a "de-cap pipe" which permits water to flow automatically, 

or by means of a spillway to control the maximum water level. Another 

alternative is to simply store the water and drain it out during a 

"ten-day draw-down pei:iod" (Tr. 66-6 7). 

Mr. Ison indicated that the impoundment in question has never used 

the emergency spillway, and that it has a 48-inch pipe under the entire 

11 "d II structure to carry away the normal water stream, as we as a ecant 

system to drain any water away. He also indicated that there has 

never been a need to release any water through the emergency spillway, 

and that the 1700 feet of 48-inch pipe was designed as part of the emergency 

spillway (Tr. 68). Mr. Ison did not believe that anything has occurred 

since October 30, 1980, that would cause the district manager to change 

his position with regard to the spillway design (Tr. 69). 

Findings and Conclusions 

Fact of violation 

In this case the contestant is charged with a violation of mandatory 

standard section 77.216-2(a)(l8), because of an asserted failure to 

respond to a letter of October 30, 1980, from MSHA's District Manager 

Krese. In that letter, the district manager informed the contestant 

that the emergency spillway for the impoundment in question was not of 

adequate size to meet certain design criteria. The letter does not 

inform the contestant where the information supporting the "inadequate 

size" statement came from, but based on an "evaluation" and "analysis", 

apparently conducted by the district manager's office, he concl~ded 

that corrective action was necessary, and he requested the contestant 

to evaluate the spillway design and to submit a plan for corrective action. 

The general regulatory scheme found under section 77.216, requires a 

mine operator to submit certain plans for the design, construction, and 

maintenance of impoundments if such impoundments impound water, sediment, 

or slurry under the conditions stated under section 77.216(a)(l) or (2), .£.!:. 

the impoundment presents a hazard to miners as determined by the District 

Manger. Section 77.216-2(a) provides guidelines for the minimum information 

required to be filed by an operator when he submits the plan specified 

in section 77.216, and the cited subsection, 77.216-2(a)(l8) requires an 

operator to submit "/s/uch other information pertaining to the stability 

of the impoundment and impounding structure which may be required by 

the District Manager". The citation issued when the inspector discovered 

that the contestant had not responded to the letter of October 30, 1980. 

Contestant's defense is based on an argument that the District 

Manager has already made a judgment that the impoundment spillway 

in question is of inadequate design, that it poses a hazard to miners, 

and that corrective action is necessary. Since the contestant obviously 

disagrees with these conclusions, contestant maintains that before it 

can be charged with a violation, it must first be informed of the specific 

1304 
design criteria which the District Manager has in mind, and must be given 

an opportunity to refute the contention that the spillway is unsafe. 

Citing the inspector's testimony that there are no published regulatory 

standards for the design and construction of impoundments, contestant 

concludes that it is placed in the untenable position of accepting the 

District Manager's unchallenged judgment that the spillway needs to be 

redesigned to correct certain uncommunicated defects which he (the manager) 

believes makes the spillway unsafe. 

The record in this case reflects that since the original construction 

of the impoundment sometime in 1973 or 1974, several State and Federal 

agencies were involved in policing the construction and maintenance of 

the impoundment in question. Subsequent to this time, from 1973 

to the present, MSH.A and the contestant have exchanged correspondence 

concerning the impoundment, and contestant has filed its annual reports 

and certifications as required, and until this controversy arose, the 

impoundment apparently met all of MSHAvs requirements. 

During the course of the hearing in this case, MSHAvs counsel asserted 

that the contestant chose not to file any response to the letter of 

October 30, 1980, even to record its disagreement with the District 

Manager 1 s conclusions. I venture a guess that had contestant simply voiced 

its objections, it would still be cited because the letter specifically 

requests the filing of In any event, the 

inspector testified that contestant advised him that it did not intend 

to respond to the letter, and it seems clear to me that the letter, on 

its face, concludes that the spillway is unsafe and that something must 

be done to correct this condition. I find that the method used to achieve 

compliance in this case to be somewhat arbitrary, and I agree with the 

contestant's arguments in support of its position in this matter. As a 

matter of fact, the inspector indicated that this is the first case 

that he is aware of where the standard in question was used to elicit 

information from an operator. 

I conclude and find that the letter of October 30, 1980, fails 

to advise the contestant of the specific inadequacies in its spillway 

design, that it fails to adequately inform the contestant as to the basis 

for the District Manager's unsupported conclusion that the spillway 

presents a hazard, and that it fails to support any conclusion that 

corrective action needs to be taken. Further, it seems to me that if 

MSHA believes the spillway in question is unsafe and fails to meet des 

criteria (whatever they may be), then MSHA should address this question 

head-on rather than relying on some vague and rather obscure regulatory 

requirement for the filing of "such other information * * which may be 

required". This is particularly true in a case such as this where 

the citation remains unabated. Only in this way will the contestant have 

a fair and open opportunity to chellenge and rebut the conclusions that 

its spillway design is anadequate and presents a hazard. 

1305 
In view of the foregoing findings and conclusions, the citation, 

as modified, IS VACATED, and this case IS DISMISSED. 

Judge 

Distribution: 

Leo J. McGinn, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Donald A. Lambert, Esq., P.O. Box 4006, Charleston, WV 25304 (Certified 

Mail) 

1306 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUL 161982 

UNITED MINE WORKERS OF AMERICA, 

ON BEHALF OF BILLY DALE WISE, 

Complainants 

Complaint of Discrimination 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Docket No. WEVA 82-38-D 

Ireland Mine 

Appearances: Thomas Myers, Esquire, United Mine Workers of America, 

Shadyside, Ohio, for the complainants; Jerry F. Palmer, 

Esquire, Pittsburgh, Pennsylvania, for the respondent. 

Before: Judge Koutras 

This matter concerns a discrimination complaint filed by the complainants 

against the respondent pursuant to section 105(c)(3) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. 801 Complainant Wise claims 

that he was unlawfully discriminated against suspended from his job for 

three days by the respondent for engaging in activity protected under 

section 105(c)(l) of the Act. Respondent filed a timely answer denying 

any discrimination and asserting that complainant Wise was suspended because 

he violated State and Federal mine laws. A hearing was convened 

on March 16, 1982, in Pittsburgh, Pennsylvania, and the parties appeared 

and participated therein. 

Issue Presented 

The principal issue presented in this case is whether Mr. Wise's 

suspension was prompted by protected activity under the Act. Additional 

issues raised are discussed in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301 

et~· 

1307 
2. Sections lOS(c)(l), (2) and (3) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3). 

3. Commission Rules, 20 CFR 2700.1, et seq. 

The discrimination complaint filed in this case states the following 

circumstances on which the alleged act of discrimination is based: 

1. At all times relevant to this proceeding Complainant Billy 

Dale Wise was a member of the Mine Health and Safety Committeeo 

In connection with his duties as a member of the Mine Health 

and Safety Committee, Mr. Wise regularly inspects areas of the 

mine and reports unsafe or unhealthy conditions to the employer 

and to the appropriate federal and state agencies. 

2. On or about June 30, 1981, Complainant Wise reported a condition 

involving an improperly functioning belt feeder to the West 

Virginia Department of Mines. After investigating the complaint, 

the State Department of Mines assessed a personal fine against 

Mine Superintendent Mr. Omear. 

3. On or about July 2, 1981, Complainant Wise filed a complaint 

with the State Department of Mines, which alleged that miners 

were permitted to enter an area of the mine prior to such area 

being declared safe by the fireboss. After investigating Mr. Wise's 

complaint, the West Virginia Department of Mines assessed a 

personal fine against Mine Superintendent Mr. Omear. 

4. In the course of conducting an inspection of the mine on Friday, 

July 10, 1981, Mr. Wise and another m~mber of the Safety Conunittee, 

Mr. Leo O'Connor, observed that parts of the 1 North submain 

track entry contained inadequate roof support, a condition which 

they believed posed a serious danger to the miners at the Ireland 

Mine. 

5. After observing the above-described dangerous condition, Mr. Wise 

called Mr. Omear, the Superintendent of the Ireland Mine, and 

informed him that the area should be dangered off. When Mr. Omear 

disputed Mr. Wise's evaluation of the condition of the track entry, 

Mr. Wise requested that MSHA Inspectors Moffitt and Tyston be 

called to the affected area to evaluate the condition. Mr. Omear 

thereupon indicated that such action would not be necessary and 

that he would assign men to correct the situation. 

6. Approximately two hours later, the Safety Committee returned to 

the affected area to check on the progress being made toward 

correcting the condition. While he was inspecting the area in 

question and questioning the workers regarding the adequacy of 

the temporary supports, Mr. Wise was ordered by Mr. Omear to 

leave the area. After assuring himself that the miners assigned 

to correct the dangerous condition were proceeding to do so in a 

safe manner, Mr. Wise left the dangered-off area. 

1308 
7. Later that day, Mr. Omear informed Complainant Wise that 

his action in remaining in the dangered-off area constituted 

insubordination and that he would be disciplined for this 

activity. The following Tuesday, July 14, 1981, Complainant 

Wise was suspended for three days. 

On July 15, 1981, Mr. Wise filed a complaint of discrimination with 

MSHA, and on September 28, 1981, he received written notification of the 

Secretary's determination that no violation had occurred. The instant 

complaint followed, and complainants maintain that Mr. Wise's suspension 

resulted directly from activity protected under the Act and that his 

suspension was, therefore, a violation of section 105(c), 

Respondent 1 s answer admits to the 

1. Billy Dale Wise is employed at Consolidation 

Coal Companyvs Ireland Mine in Moundsville, 

West Virginia, and is a miner as defined in 

section 3(g) of the Act. 

2. At all relevant time herein mentioned, 

Respondent Consolidation Coal Company did 

business and operated the Ireland Mine in 

the production of coal and therefore was 

an "operator" as defined in section 3(d) of 

the Act. 

3. The subject Ireland Mine, located in or near 

Moundsville, West Virginia, is a "mine" as 

defined in section 3(h)(l) of the Act, the 

products of which enter or affect commerce. 

4. At all times relevant to this proceeding 

Complainant Billy Dale Wise was a member of the 

Mine Health and Safety Committee. In connection 

with his duties as a member of the Mine Health 

and Safety Committee, Mr. Wise regularly 

areas of the mine and reports unsafe 

or unhealthy conditions to the employer and to 

the appropriate federal and state agencies. 

Testimony and evidence adduced by the complainants 

Billy Dale Wise testified that he has been employed at the mine 

for over 15 years and has been a member of the safety committee for 

some 13 years. He is familiar with the provisions of the 1981 Bituminous 

wage agreement as well as his rights and responsibilities under the 

applicable state and Federal mine safety laws. On July 10, 1981, sometime 

after 10:00 a.m. he and two members of the safety committee conducted a 

regular safety inspection of the mine and while in the One-North section 

observed three overcasts which were in need of attention. After discussing 

1309 
the situation with shift foreman James Siburt, mine superintendent 

Robert Omear was called to the scene. After inspecting the area further, 

Mr. Omear agreed that. the overcasts needed attention, and Mr. Wise advised 

him that work should proceed immediately to correct the conditions. 

Mr. Wise observed that several roof bolts were not tied into the roof, 

the overcasts were loaded with stone, and wire mesh was hanging down. 

Although Mr. Wise told Mr. Omear that the conditions did not present 

an imminent danger, he suggested to Mr. Omear that two Federal inspectors 

who were in the mine could be brought to the area to inspect the overcasts, 

Mr. Omear stated that this would not be necessary and assured Mr. Wise 

that the conditions would be immediately corrected. Mr. Siburt and 

Mr. Omear hung "Danger" tags over the overcast area, Mr. Wise left the 

area to inspect another mine section, and Mr. Omear proceeded to make 

preparations to correct the conditions. 

Sometime between 1:30 and 2:00 p.m. on July 10, 1981, Mr. Wise 

and safety committeeman Leo Connor returned to the overcast areas. A 

man-door had been erected near the first overcast, and although Mr. Wise 

could observe two men working outby the door and from his position outby 

the danger tags, he could not observe the men who were working behind 

the door and a wall. He and Mr. Connor proceeded beyond the danger tags 

and Mr. Wise looked in the man door and asked one of the workmen, Kenneth 

Simmons, about how the work was progressing and whether they '\.1ere making 

the area safe." Mr. Simmons advised Mr. Wise that they were "making it 

safe as we go". 

Mr. Wise stated that after leaving the overcast area and g9ing outside 

at approximately 2:30 p.m. Mr. Omear advised him that he was "wrong" 

in going past the danger sign at the overcast area and that he was going 

to discipline him but did not know exactly what course of action he would 

take. The following Monday, July 13, Mr. Wise and Mr. Omear discussed 

the matter further but no decision was made. On Tuesday, July 14, they 

discussed it again, and later that evening Mr. Wise was summoned to 

Mr. Omear's office and he was advised that he would be suspended for 

three days for insubordination for going beyond the danger tag. Mr. Omear 

tqen gave him a letter of suspension (exhibit C-1), confirming his suspension 

in writing. 

Mr. Wise testified that after receiving the letter of suspension 

he took the next two days off, and since the mine was on strike on Friday 

he consulted with his union as to whether he should count that day as a 

suspension day. He was advised not to, and therefore stayed off work 

the next Monday and reported to work on Tuesday. He subsequently filed 

a grievance contesting his suspension, and the results of his arbitration 

hearing held on October 22, 1981, were made a part of the record (exhibit C-2). 

Mr. Wise stated that he was not aware of any company policy or procedure 

concerning a miner crossing a posted danger tag. He indicated that he 

has in the past crossed beyond such posted signs while conducting regular 

inspections in his safety committeemen's capacity and that his July 14 

suspension was his first for doing so. 

1310 
Regarding prior safety complaints, Mr. Wise confirmed that on 

June 29, 1981, he observed pipe being carried on a personnel carrier 

"jeep" and advised Mr. Omear that it was a safety violation. Mr. Omear 

disagreed with him, ~nd Mr. Wise reported the incident to a state of 

West Virginia mine inspector that same day and requested an investigation. 

A second incident occurred on June 30, 1981, when Mr. Omear summoned him 

to a belt feeder located in the 6-D, 2-South supply track section where 

a mechanic was performing some work. Mr. Wise observed a protective 

cover which had been removed from the belt, and he also observed that 

the feeder had been "pumped out" while the belt was running. He advised 

Mr. Omear that this was a violation and then reported it to the state 

mine inspector and requested an investigation. A third incident occurred 

on July 2, 1981, when Mr. Wise was informed that two men went into the 

mine at 3 p.m. before it was firebossed, He learned that Mr. Omear had 

sent them in and he discussed the matter the next morning with Mr. Omear 

and advised him that sending men into the mine before it was fire-bossed 

was a safety violation. Mr. Omear stated that he would send men into 

the mine 11 anytime he fel , and Mr. Wise then filed a complaint with 

state mine inspector Arthur Price (Tr. 8-59). 

On cross-examination, Mr. Wise confirmed that he is aware of the fact 

that the respondent has taken prior inary action against employees. 

He also confirmed that he was aware that employee Rex Whipkey had received 

a five day suspension, but had no concerning prior discip 

actions taken against employees Roger King, Joe D. Marciano, and Alan Goody, 

He also testified that he has in the past observed danger signs posted - 0 

in the mine and that did not cross beyond them. He also indicated that 

by crossing beyond such danger signs he exposes himself to the hazards 

which may be present in the danger areas. 

Mr. Wise stated that when he first arrived at the overcast areas 

which had been posted with danger he could not observe the men 

behind the man door from where he outby the danger signs. 

Although he did not disagree with corrective action being taken by 

Mr. Omear with regard to the roof conditions, he proceeded beyond the 

danger signs in order to inspect the area and work being done beyond 

the danger signs in order to inspect the area and work being done behind 

the man-door and to ascertain from the men working there as to the progress 

of the work. He indicated further that Mr. Siburt said nothing to him 

about crossing beyond the danger sign, and although Mr. Connor had also 

passed beyond it nothing was said to him. After crossing the sign Mr. Wise 

leaned in through the man door and discussed the work going on with Mr. Simmons. 

After determining that the area was "being made safe" he left the area. 

He estimated that he was in the "danger" area for about five minutes 

and he reiterated that he crossed the danger area because he believes 

he has a right to do in his capacity as a safety committman in order 

to check any area of the mine where men are working (Tr. 59-77). 

Kenneth P. Simmons, employed by the respondent as a pumper, testified 

that on July 10, 1981, he was instructed to take some cribbing material 

to the overcast area in question, and when he arrived there Mr. Omear 

1311 
instructed him to proceed with the installation of roof cribbing in 

the first overcast location. Mr. Simmons observed that construction 

work was proceeding t? complete a man door in the side of the overcast 

and he also observed a roof bolter in the area. The car carrying the 

cribbing material was parked near the man door beyond the danger signs 

which had been posted. Mr. Omear showed him where to install the cribs. 

Mr. Simmons and another miner were installing jacks and cribs inby the 

man door, and two other miners were outby passing the cribbing material 

through the door to them. 

Mr. Simmons stated that at approximately 2:30 or 3:00 p.mo, after 

completing the installation of two cribs and while working on the third 

one he heard some conversation outside the door. Mro Wise then looked 

inside and asked him how the work was progressing. Mro Simmons showed 

Mr. Wise where the jacks and cribs were installed and he heard Mr. Omear 

yelling at Mr. Wise not to go beyond the posted danger signs. Mro Omear 

was positioned oubty the danger signs approximately 20 feet from the door, 

Mr. Simmons stated that he asked Mr. Omear it was not safe for Mr, Wise 

to be there, what about me," Mr. Omear told him to "shut up and keep 

working". He continued working until 3:25 p.m. when he left the area 

at the end of the shift (Tr. 99-108). 

On cross-examination, Mr. Simmons confirmed that while Mr, Wise 

did not pass through the man door where he was working, he did lean in 

to observe the area and to inquire how the work was progressingo He also 

confirmed that Mr. Omear also looked in behind the man door after he had 

completed his work on the roof cribbing (Tr. 109-110). 

Leo Conner testified that he has been employed by the respondent 

for approximately 15 years and is the president of the local union 

as well as a member of the safety committee. ,He confirmed that he was 

with Mr. Wise on July 10, 1981, during a post-vacation mine inspection 

when they observed an overcast area along the haulage track which needed 

attention. They passed through a man door for a closer inspection of one 

of the overcasts and observed that it needed roof support. The conditions 

were called to the attention of shift foreman James Siburt and Mr. Omear 

was then sununoned to the scene. Although all of them agreed that the 

conditions did not present an imminent danger, Mr. Conner and Mr. Wise 

informed Mr. Omear that the overcast conditions required immediate attention 

and Mr. Omear agreed to take care of the situation. Mr. Conner and Mr. Wise 

then left to visit another area of the mine. 

Mr. Conner stated that at approximately 2 or 2:30 p.m. on July 10, 

he and Mr. Wise returned to the overcast area. Mr. Conner had a hand 

saw with him and Mr. Siburt had asked him to bring it with him. Upon 

their return to the area Mr. Omear was there, and Mr. Simmons and several 

others were working on the roof crib installation. Mr. Conner proceeded 

beyond the danger sign, and as he was returning Mr. Wise walked inby 

the danger sign and proceeded to the man door to inspect the work which 

1312 
was going on. Mr. Conner overheard M 0 "H •t i r. mear comment ow easy i s 

to forget", but he said nothing to Mr. Conner about passing beyond the 

danger sign. Mr. Conner later learned that Mr. Omear would take 

disciplinary action against Mr. Wise for passing beyond the danger sign. 

Mr. Conner testified that he had no knowledge of any company policy 

regarding employees passing beyond a posted danger sign and never saw 

such a policy posted. He confirmed that weekly safety meetings were 

held between the safety committee and mine management, but was not aware 

that any policy concerning danger signs was discussed. He confirmed 

that he had previously crossed beyond danger signs while accompanied by 

mine inspectors or company management (Tr. 125-139). 

On cross-examination, Mr. Conner stated that he was not aware 

that any employee at the Ireland Mine had ever been disciplined for 

violating safety regulations. He also confirmed that when he passed 

beyond posted danger signs in the past he was engaged in walkaround 

inspections with state or Federal Mine inspectors or inspecting the 

mine face areas. He also confirmed that when he passed beyond the signs 

in the company of management personnel he was authorized by management 

to do so. In the instant case, since he was carrying a hand saw to be 

given to the crew installing roof cribs he believed he was authorized 

to go beyond the posted danger s and Mr. Omear said nothing to him. 

Mr. Conner stated that he believed he and Mr. Wise had the authority 

to go beyond the danger sign in their capacity as safety committmen in 

order to check on the men working in the area, and he did not believe 

he needed Mr. Omear's authorization to do.so. Mr. Conner confirmed 

that he commented to Mr. Omear that "you can't get me", and he explained 

his comment by indicating that since he had brought in a hand saw as 

directed he believed he had permission from management to pass beyond 

the posted danger sign (Tr. 140-171). 

Arthur Price, State of West Virginia Mine Inspector, confirmed the 

fact that he investigated the complaints concerning three alleged violations 

of state mine laws which occurred at the mine on June 29 and 30, and 

July 2, 1981. The complaints concerned the matter of hauling pipe on 

a personnel carrier, a belt feeder safety switch being by-passed, and men 

entering the mine before it was fire-bossed. He explained the procedures 

he followed in conducting the investigations and confirmed that he interviewed 

Mr. Omear during the course of his investigations. He also confirmed 

that he recommended and proposed that individual personal assessment 

fines be issued to Mr. Omear for at least two of the citations and identified 

two reports which he prepared concerning the matter (exhibits C-3 and C-4; 

Tr. 172-191). 

On cross-examination, Mr. Price referred to sections of the West 

Virginia mining laws which set out the prohibitions against persons going 

beyond posted danger boards, specifically sections 22.114 and 22.2-21. 

1313 
Mr. Price also testified that mining companies should make available 

to miners copies of the applicable laws and regulations and he confirmed 

that he was once employed by the respondent at the Ireland Mine but quit 

to go to work with the state as a mining inspector. He confirmed that 

Mr. Omear did contact him to inquire whether it was legal for a person 

to cross beyond a posted danger sign and he advised Mr. Omear that it 

would depend on the circumstances presented but gave him no definitive 

answer (Tr. 191-192). 

Testimony and Evidence Adduced by the Respondent 

Robert E. Omear, testified that he is the general superintendent 

at the Luveridge Mine, but that in July 1981, he was the underground superintendent at the Ireland Mine. He discussed the general company policy 

concerning employee safety violations, and indicated that depending on 

the circumstances or facts of a given case, employees may be reprimanded 

orally or in writing, or they could be discharged. The policy was enforced 

while he was superintendent at the Ireland Mine, and during that time he 

and members of the mine safety committee had weekly meetings concerning 

safety matters of mutual concern. He confirmed that during his tenure as 

the underground mine superintendent, Mr. Wise was a member of the safety 

committee, and he worked with him for a period of some eight years on 

matters dealing with mine safety. During this time he has discussed the 

matter of union safety committeemen going beyond "danger boards" and 

has advised them of his belief that they had no right to go beyond such 

signs (Tr. 213-216). 

Mr. Omear testified that on July 10, 1981, he met with Mr. ·Wise, 

Mr. Conner, and foreman Siburt underground for the purpose of inspecting several 

overcasts which Mr. Wise and Mr. Conner believed were in need of some work. 

He agreed that the work needed to be done, an~ men and materials were 

called in to install some cribs and a man door. A danger sign was hung 

on the first rail of the overcast and Mr. Wise and Mr. Conner left to 

continue on their inspection rounds. Mr. Omear remained in the area to 

instruct the men as to where the work was to be performed and after 

calling over the radio for a saw to be brought in he left to have a cup 

of coffee which was on the motor car used by one of the miners performing 

the work (Tr. 217-222). 

Mr. Omear testified that while he was having coffee Mr. Wise and 

Mr. Conner arrived on a jeep and parked it some 45 feet from the area 

where the danger board had been posted. Mr. Conner was carrying the saw 

which he (Omear) asked to be brought in, and both Mr. Wise and Mr. Conner 

proceeded to walk beyond the danger sign. Mr. Omear then yelled at them 

and told them that they should not be beyond the danger sign. Mr. Conner 

left the saw in the area and immediately came out, but Mr. Wise stayed 

in for about six minutes and refused to come out. After he came out, 

Mr. Omear advised Mr. Wise that he was violating company policy as 

well as state and federal laws by walking beyond the danger sign and 

that possible disciplinary action would be taken against him. Mr. Wise 

advised Mr. Omear that as long as union people were working on the overcast 

he would stay in until he got ready to come out (Tr. 223-224). 

1314 
Mr. Omear confirmed that Mr. Wise did not have his permission to 

go beyond the danger board to check on the work which was in progress. 

Had he asked, permission would have been granted and Mr. Omear would 

have gone in with Mr. Wise to show him what was being done and to insure 

that he was safe (Tr. 225). Upon leaving the mine, Mr. Omear telephoned 

state mine inspector Price who agreed that state law may have been violated. 

Mr. Omear then contacted higher mine management to determine the course 

of further action to be taken against Mr. Wise, and it was decided that 

Mr. Wise should be suspended for three days for going beyond the danger 

sign. Prior to this incident, Mr. Omear had never observed a safety 

committeeman go beyond a danger sign unless he accompanied them (Tr. 226-229). 

On cross-examination, Mr. Omear stated that the prohibition against 

walking beyond a danger sign has been a policy at the Ireland for as long 

as he has been there, and while the policy is not in writing "it is a policy 

that we 1ve lived with" (Tr. 230). Such policy is sometimes communicated 

verbally at meetings and sometimes its posted (Tr. 231). At one time 

all company policies dealing with safety matters were in a book published 

by the company but he has not seen it for the past five or six years 

(Tr. 233). With specific reference to crossing beyond a danger sign, 

Mr. Omear stated that while it is not in writing every coal miner knows 

that a danger board ''means exactly what it says, you do not go beyond a 

danger board" (Tr. 234). This policy is generally communicated to the 

work force at weekly safety meetings and during annual retraining (Tr. 235). 

Mr. Omear stated that the men performing the work in the overcast 

area were under his supervision, and that after he determined that the 

roof cribs were being installed in the right place for roof support and 

that the men understood his instructions, he left to use the radio to 

order a saw and to have a cup of coffee (Tr. 238). Mr. Omear confirmed 

that he told Mr. Wise three times to come out of the area where the 

work was being done, and he also confirmed that Mr. Conner came out 

immediately after leaving the saw and that Mr. Conner commented "you can 1 t 

get me I was delivering a saw" (Tr. 241). He did not see Mr. Conner lean 

through the man door to observe the work going on and he indicated that 

Mr. Conner heeded the first warning that he gave to Mr. Wise and came out 

immediately without arguing the point (Tr. 242). 

Mr. Omear stated that he and other members of mine management discussed 

the incident in question and determined that Mr. Wise had violated federal 

or state mining laws by crossing beyond the danger board in question, but 

he could not specify the specific section of the law he had in mind (Tr. 248). 

Mr. Omear could not state when the policy in question was last discussed 

with the safety committee, and he assumed everyone was aware of the policy. 

He also confirmed a past incident involving safety committeeman Bob Carney 

who reportedly passed under a danger board while in the company of a 

federal inspector who was conducting a mine inspectioR Mr. Carney was 

not disciplined and he did not repeat the offense again (Tr. 252). 

In response to bench questions, Mr. Omear stated that company policy 

dealing with employee sanctions for violations of safety rules is posted 

on the mine bulletin board and it is in the form of general work rules 

1315 
(Tr. 255, 258). Mr. Omear confirmed that at the time he ordered Mr. Wise 

not to pass beyond the danger board, and during the time disciplinary 

action was being considered against Mr. Wise, he was aware of the fact 

that Mr. Wise had reported mine violations and made safety complaints 

to state mine inspectors. However, he denied that he was influenced by 

this in taking the action which was taken against Mr. Wise in this case 

(Tr. 264). He also confirmed that certain state mine violations which 

may subject him to individual personal assessments still have not been 

resolved (Tr. 270). In response to a question as to his assessment of 

Mr. Wise as a member of the safety committee, Mr. Omear responded as 

follows (Tr. 273): 

JUDGE KOUTRAS: Is he well intentioned? 

THE WITNESS: I don't--honestly, I don't believe he 

is, no. 

JUDGE KOUTRAS: Why do you say that? 

THE WITNESS: I don't believe he'd give you a fair 

shake or gives you a fair chance to take care of things 

inhouse without--I think his first thing out of the bag 

is to get the company, and the heck with it, you know, 

and that's just the way I feel about it. That's my opinion. 

James Siburt testified that on July 10, 1981, he was employed as an 

acting shift foreman at the mine in question, and on that day he was 

escorting the mine safety committeemen Wise and Conner on their "end of 

vacation" safety inspection tour of the mine. Upon inspection ~f the one 

north section, Mr. Wise pointed out an overcast which was sagging and 

in need of attention, and Mr. Omear was called to the area. Mr. Omear 

agreed that work was required to correct the condition and he and Mr. Omear 

hung some danger signs. Mr. Siburt then left the area with Mr. Wise 

and Mr. Conner to examine another mine area and they were gone for about 

three hours. Upon returning to the one north section, they got off the 

jeep and Mr. Wise and Mr. Conner walked under and past the danger signs. 

Mr. Conner had a saw which he delivered to the crew doing the work and 

Mr. Wise looked in through the man door to observe the work which was 

being performed to correct the overcast condition. Mr. Omear asked Mr. Wise 

to come out from the area at least three times and Mr. Wise stated that 

he was "checking on his people". Mr. Siburt then left the area, and he 

stated he had no part in the decision to discipline Mr. Wise for going 

under the danger signs (Tr. 275-281). 

On cross-examination, Mr. Siburt stated that in the past the company 

has had a policy concerning the violation of safety regulations by miners 

and he indicated that the initial training of a new miner includes the 

fact that no one is to go inby danger boards or roped-off roof supports. 

He had no idea as to how long the company policy has been in effect, did 

not know whether it was in writing, and had never seen it in writing. 

1316 
He stated that everyone working underground knows that there is a policy 

against going beyond a danger board, and he knows of no company guidelines 

dealing with any discipline taken against miners for safety policy violations. 

He observed both Mr. Wise and Mr. Conner cross beyond the danger sign, 

but did not know who went in first and he confirmed that he heard Mr. Omear 

tell Mr. Wise to come out at least three times and Mr. Wise's response that 

he "was checking on his people". He also confirmed that Mr. Omear asked 

Mr. Wise if he had two-hundred and fifty-dollars to pay for walking under 

the danger boards (Tr. 281-289). 

Mr. Siburt confirmed that he has passed beyond danger boards to check 

on mine conditions and to see that certain work is performed by the crew 

and that he did so on July 10, 1981. On these occasions, he did not have 

Mr. Omear's permission because he is certified by the State of West Virginia, 

and as a member of mine management is authorized to determine whether work 

to correct violations is being done properly. He also indicated that 

Mr. Wise is not certified by the State of West Virginia, and he is not aware 

of the fact that Mr. Wise has certification papers to conduct pre-shift, 

on-shift, or fire-boss inspections (Tr. 296-299). 

State Mine Inspector Arthur Price was recalled and testified that 

when he spoke with Mr. Omear about Mr. Wise walking under a sign 

he referred him to Article 22-1-4 of the state mining code and advised 

him that "he may or may not have a case" and that he should check further 

with the Inspector-at-Large. Mr. Price also indicated that by walking 

beyond the danger sign Mr. Wise was in violation of the state fire-bossing 

articles which state that it is a violation for anyone to pass beyond a 

danger board once the area has been fire bossed and dangered off as a result 

of that fire boss inspection (Tr. 303-304). However, in his 39 years of 

mining experience, the general practice is for miners to respect a danger 

sign and not walk beyond it unless they are going in to correct the 

conditions (Tr. 305). Mr. Price also cited state mining provision 22-2-54 

which requires mine operators, as well as employees, to insure that state 

mining laws are complied with. This law also requires the publication 

and posting of applicable mine laws in a conspicuous place at the mine 

and that they be made available to employees upon request (Tr. 307). 

Mr. Price stated that he worked at the mine in question for 12 years 

before quitting in 1969 and going to work for the State of West Virginia 

Department of Mines in 1971. He also inspected the mine for four years 

and had a good working relationship with the committee as well as 

the company (Tr. 308). 

The UMWA's Arguments 

Mr. Wise's alleged violations of State. and Federal mining laws 

In its post-hearing brief, the UMWA argues that Consol's reliance 

on the ventilation provisions of section 303(d)(l) of the Act in support 

of its contention that Mr. Wise was not authorized to go inby the posted 

1317 
danger signs in question is erroneous, and that this cited provision of the 

Act simply is inapplicable to the facts of this case because there is 

absolutely no evidence in the record to indicate that Mr. Wise had crossed 

the kind of "danger" ~ign contemplated in section 303(d)(l). The UMWA 

asserts that the incident in question occurred early in the morn~ng, 

well after the time frame set out in section 303(d)(l) for pre-shift 

fire bossing, and that the respondent's reliance on this section is 

clearly misplaced. The UMWA points out that paragraphs (e) and (f) 

of section 303 contain a specific "carve out" for certain persons, which 

entitled those persons to enter an area of the mine from which all persons 

must be withdrawn, and that these paragraphs state in pertinent part: 

If such condition creates an imminent danger, 

the operator shall withdraw all persons from the 

area affected by such condition to a safe area, 

except those persons referred to in section 104(d) 

of this Act, until such danger is abated. (Emphasis 

added). 

The UMWA asserts that Section 104 of the Act is the provision which 

governs mine inspections by Federal inspectors, and that pursuant to 

the withdrawal order provisions of section 104(c), there are 

governing those persons who must be withdrawn from a mine area closed 

by a Federal inspector, namely: 

(1) any person whose presence in such area is 

necessary, in the judgment of the operator or an 

authorized representative of the Secretary, to eliminate 

the condition described in the order; 

(2) any public official whose official duties 

require him to enter such area; 

(3) any representative of the miners in such 

mine who is, in the judgment of the operator or an 

authorized representative of the Secretary, qualified 

to make such mine examinations or who is accompanied 

by such a person and whose presence in such area is 

necessary for the investigation of the conditions 

described in the order; and 

(4) any consultant to any of the foregoing. 

The UMWA maintains that Subparagraph (3) of section 104(c) is clearly 

designed to allow representatives of the miners or other persons accompanied 

by a representative of the miners to enter an area for which a withdrawal 

order has been issued when their presence is necessary for the investigation 

of the conditions described in the order. In support of this conclusion, 

the UMWA asserts that the legislative history bears out the fact that a 

miner and his representatives must play a key role in enforcement of 

the Act, and that section 104(c)(3) does just that, because it enables 

1318 
representatives of miners to participate in th~ inspection of conditions 

cited in the various types of orders that can be issued under section 104. 

Citing the D.C. Circuit Court of Appeals decision in Phillips v. 

Interior Board of Min~ Operations Appeals, 500 F. 2d 772 (D.C. Cir. 1974), 

the UMWA emphasizes the need for a liberal construction of the provision 

concerning discrimination, and maintains that liberal construction of 

section 105(c) (formerly section llO(b)) has been applied without question 

in an effort to effectuate the purpose of the Act. 

Given the liberal construction of the Act,. the UMWA states that 

Consol is unjustified in asserting that Mr. Wise violated section 303(d), 

especially when a more pertinent provision, section 104(c), is more 

applicable to the facts of this case. Surely argues the lJ}fivA, had an 

inspector dangered off the area in question, Mr. Wise would be statutorily 

authorized to enter such area to insure that the union employees were 

working under safe conditions. 

The UMWA does not take issue with the arg,uments made Consol s 

counsel during the hearing (Tr. 156-157) that the representative of the 

miners must, in the judgment of the operator be qualified to make such 

mine examination. However, the UMWA maintains that by virtue of the 

1981 Coal Wage Agreement, Mr. Wise is so qualified. In support of this 

conclusion, the UMWA has incorporated verbatim Article II=, section 

of the wage agreement dealing with the Mine Health and Safety Committee 

as part of its Brief. The pertinent portions of this section a the 

agreement are as follows: 

(1) At each mine there shall :be ·a Mine Health 

and Safety Committee made up of miners employed at 

the mine who are qualified by mining experience or 

training and selected by the local·union. The 

local union shall inform the Employer of the names 

of the Committee members. The Committee at all times 

shall be deemed to be acting within the scope of their 

employment in the mine within the meaning of the applicable 

workers' compensation law. 

(2) * * * * 

(3) The Mine Health and Safety: Committee may 

inspect any portion of a mine and surface installations 2 

dams or waste impoundments and gob p~les connected 

therewith. If the Committee believes conditions found 

endanger the lives and bodies of the :.Employees, it shall 

report its findings and recommendations to the Employer. 

* * * 

( 4) i( * * * * 

(5) * * * A Cornrnitte·e member shall not be 

suspended or dischaxged for his official actions as a 

Committee member. (Emphasis added), 

1319 
The UMEA argues that the aforesaid contract provisions clearly 

indicate that Mr. Wise is qualified to make such mine examinations in 

..::;.':."'.___J_':~~~-=-=-_=:.:=-~~~-=-=.:=..:~ as required by section 104(c), and for 

the respondent to argue that he is not so qualified in this particular 

instance violates the wage Agreement as well as the direct language of 

section 104(c)(3). In light of the specific language set out in 104(c)(3), 

the UMWA concludes that it cannot be reasoned that Mr. Wise was in violation 

of section 303(d) of the Act. 

In response to Consol's contention that Mr. Wise was in violation 

of Chapter 22, Article 22-2-21 of the West Virginia Code when he passed 

inby the posted danger sign, the UMWA asserts that this argument is faulty 

simply because that State code provision is to the facts in 

this case. Section 22-2-21 states in pertinent 

It shall be the duty of the fire boss or 

a certified person acting as such, to prepare 

a danger signal (a separate signal for each shift) 

with red color at the mine entrance at the 

of his shift or prior to his entering the mine to make 

his examination and, except for those persons already 

on assigned duty, no person except the mine owner, 

operator, or agent, and only then in case o necess 

shall pass beyond this danger signal until the 

mine has been examined by the fire boss or other certified 

person and the mine or certain parts thereof reported 

by him to be safe. When reported by him to be safe, 

the danger sign or color thereof shall be changed to 

indicate that the mine is safe in order that employees 

going on shift may begin work. • 

The UMWA asserts that the cited State code provision relied 

on by Consol, like section 303(d) of the Federal Act, to the 

pre-shift fireboss examination required before miners may enter the mine 

at the beginning of the shift, and that it does not to the facts 

presented in this case. Furthermore, the UMWA cites West Virginia State 

Code Article 22-1-14, paragraph (c), which it asserts contains an exemption 

similar to that found in section 104(c) of the Federal Act, for groups 

of persons authorized to enter mine areas which have been closed for 

the purpose of insuring that dangerous conditions do in fact get corrected 

and that they are corrected in a proper manner. Paragraph (c) of the 

State code states: 

(c) The following persons shall not be 

required to the withdrawn from or prohibited 

from entering any area of the coal mine subject 

to an issue under this section: 

1320 
(1) Any person whose presence in such 

area is necessary, in the judgment of the 

operator or an authorized representative of 

the director, to eliminate the condition described 

in the order; 

(2) Any public official whose official duties 

require him to enter such area; 

(3) Any representative of the miner in such 

mine who is, in the judgment of the operator or 

an authorized representative of the director, qualified 

to make coal mine examinations or who is accompanied 

by such person and whose presence in cush area is 

necessary for the investigation of the conditions 

decribed in the order; and 

(4) Any consultant to any of the forego 

With regard to Mr. Omear 1 s testimony during the hearing (Tr. 226), 

that State Inspector Price agreed that Mr. Wise 1 s action in going beyond 

the posted danger sign violated State law, the UMWA points out that when 

called in rebuttal, Mr. Price testified that he made no such assessment 

(Tr. 304), but simply stated that if one were to apply State Code .Article 

22-2-21, there would be a violation, but that he knew of no other 

condition which have made Mr. Wise's action a violation (Tr. 304-185). 

In summary, the UMWA submits that Mr. Wise did not violate section 

303(d) of the Federal Act or Article 22-2-21 of the West Virginia Code 

by going inby the danger board to check on the men abating the roof 

condition for which the area was dangered off, and that the reliance 

of Consol on these provisions is misplaced, especially in view of the 

existence of section 104(c) of the Federal Act and Article 22-1-14 

of the Code of West Virginia, which more clearly and closely address 

the fact circumstances presented in this case. 

Mr. Wise's alleged violation of company policy 

The UMWA characterizes Consol's Employee Conduct Rules (exhibit C-5), 

as a "general outline of some rather common sense policies", but points 

out that they are devoid of any company policy concerning the proper 

conduct in regard to danger boards, and therefore should be given no 

probative value in determining whether Mr. Wise violated the asse.rted 

policy. The UMWA argues that neither Mr. Omear nor Mr. Siburt could 

state with any degree of certainty that a company policy regarding 

danger boards even existed at the Ireland Mine, (Transcript - Mr, Omear, 

Pages 230-236; Mr. Siburt, Pages 281-284), and that at best, each of these 

men hint to the fact that the company policy is synonymous with f E;deral 

and state laws. To that extent, the UMWA submits that Mr. Wise viclated 

no statutory provision of federal or state law. 

1321 
Assuming that Consol can establish a viable policy regarding 

the crossing of posted danger boards, the UMWA .nonetheless argues that 

any such policy must not be inconsistent with federal or state law and 

it cites the provisio~s of Article III, section (g) of the Wage Agreement 

and Chapter 22, Article 22-2-54 of the West Virginia Code in support of 

this proposition. Further, even though the Federal Mine Act contains 

no such provisions, the UMWA suggests that it is axiomatic that a company 

policy cannot conflict with state or federal law. Further, the UMWA 

asserts that had the danger board in question been posted by an MSHA 

inspector, Mr. Wise would fall into the category of individuals exempt 

from a total withdrawal, and that federal and state law are explicit 

on this point. The UMWA concludes that Consol cannot assert that since 

Mr. Omear posted the danger board, Mr. Wise can be refused entry into 

the area where union employees are engaged in abating the condition, and 

that this is especially true in light of the lati'.Epolicy favoring 

participation and cooperation by the miners in enforcing the act. 

Finally, in analyzing whether Consol had a policy concerning danger 

boards, the UMWA suggests that I should strongly rely on the arbitration 

decision rendered in Mr. Wise's case. Since Consol has asserted that 

Mr. Wise violated company policy, and that such conduct is not protected 

under the Act, the UMWA maintains that, to that extent, the arbitrator's 

decision should be relied on in determining if such a policy existed 

or if Mr. Wise was insubordinate. Once such a determination is made~ 

consideration should then be given to whether Mr. Wise's activity was 

protected under the Act, its legislative history, and the administrative 

and judicial decisions interpreting the Act and its history. 

Whether Mr. Wise was engaged in protected activity when he went inby 

the danger board. 

In support of its arguments that Mr. Wise was engaged in protected 

activity when the ventured inby the danger board in question, the UMWA 

cites the legislative history of the Act, and emphasizes that, in the 

enactment of section 105(c)(l), Congress was well aware that the active 

involvement of the miners in the enforcement of the law could only be 

obtained by providing these miners with protection from retaliation for 

their efforts. Citing Phillips v. Interior Board of Mine Operations Appeals, 

500 F.2d 772 (D.C. Cir. 1974), a case interpreting the 1969 Coal Act, the 

U}fl~A points out that in recognizing that the purpose of the statutory 

provision was to encourage the reporting of suspected violations of health 

and safety regulations, the Court refused to limit the scope of protection 

to the bare words contained in the statute. 

The UMWA maintains that the record in this case indicates that 

Mr. Omear forbid Mr. Wise from entering an area of the mine for the purpose 

of observing compliance or non-compliance with safety and health standards. 

If such activitiy were to be ruled unprotected, the UMWA asserts that it 

would impede the ability of miner's representatives to participate in 

the enforcement of the Act, and would also provide Consol with an effective 

means of inhibiting safety activity in that in future situations where 

1322 
a hazardous condition is pointed out to Consol, its management could put 

up its company danger board and prohibit safety committeemen from entering 

the area. Such a result, argues the UMWA, would be inconsistent with 

the purposes of the Act. 

In support of its arguments that the Act should be liberally construed 

in favor of Mr. Wise, the UMWA cites Secretary of Labor, ex rel., Fasula 

v. Consolidation Coal Company, 2 FMSHRC 2786, October 14, 1980. In Fasula, 

while the Act was silent on the right of a miner to refuse to work in 

hazardous conditions, the Commission relied on the legislative history in 

affirming the right of the miner. Just as the Act is silent on the 

right to refuse work, so too is it silent on the rights of Mr, Wise to 

enter the dangered off area, But the UMWA asserts that in order to 

effectuate the purposes of the Act, Mr. Wise's venturing inby the danger 

board must be held to be protected activity, 

The UMWA argues that the importance of removing unnecessary restrictions 

on the ability of the miners' representative to engage in protected 

activity was recognized by the Commission in Local Union 1110 and Carney 

v. Consolidation Coal Company, 1 FMSHRC 388 (1979). In Carney, the 

Commission upheld Judge Broderick 1 s decision striking down a company 

policy requiring safety committeemen to obtain permission before leaving 

their work area to perform their mine safety committeeman 1 s duties, 

If, as the Commission has held in an employer cannot prevent a 

safety committeeman from leaving his work area to perform his official 

functions, the UMWA suggests that it would appear to be just as inherently 

discriminatory for an employer to interfere with the ability of the Safety 

Committees to enter a given area, and it submits that the Carney case is 

controlling and should be followed in Mr. Wise's case. 

In distinguishing the Commission decisions in Maynard v. Standard 

Sign and Signal Company, 2 MSHC 1186 (1981), and Ross v. Monterey Coal Company, 

2 MSHC 1300 (1981), from the facts in Mr. Wise's case, the UMWA asserts 

that in Maynard, the administrative law judge dismissed a complaint for 

failure to state a claim because the Act did not protect an employee for 

his failure to abate violations. A supervisor was fired because he had 

run coal prior to correcting cited violations as a result of his misunderstanding his orders from the superintendant. Although the case was 

dismissed, Maynard was allowed to amend his complaint so that it would 

state a cause of action. 

In Ross, the UMWA asserts that the administrative law judge dismissed 

the complaint on the grounds that Ross had attempted to exercise his 

authority as a safety committeeman outside the employment cGntent. He 

had no direct employment contact with either party committing the alleged 

discriminatory action. Since no question exists in regard to Mr. Wise's 

employment relationship with Consol, the UMWA concludes that the Ross 

holding is inapplicable. 

1323 
Whether the disciplinary action taken by Consol was discriminatory and a 

violation of section 105(c) of the Act. 

The UMWA concludes that if it is held that Mr. Wise engaged in 

protected activity on July 10, 1981 by going inby the danger board 

to check on the union employees abating the roof condition, the actions 

by Mr. Omear in suspending Mr. Wise amount to discrimination prohibited 

by the Act. Further, the UMWA asserts that the "dual motive" or "but for" 

test set out in Pasula, does not come into play, for Consol has not 

asserted that absent the protected activity, it would have suspended 

Mr. Wise, has not cited any other activity which could be asserted as 

an independent basis for Mr. Wise's suspension, but merely argues that 

Mr. Wise's activity of going inby the danger board is unprotected activity 

for which he can be disciplined. If the activity in question was protected, 

the UMWA concludes that the disciplinary action was unwarranted and 

discriminatory. If the activity was not protected, then the UMWA concedes 

that the disciplinary action was not discriminatory under the Act. 

Summarizing its position in this case, the UI:1WA asserts that Mr. Wiseis 

actions were protected activity under the Act for which he could not 

be disciplined, and to hold otherwise would effectively impede the ability 

of safety representatives to actively participate in the enforcement of 

the Act. Since the record clearly indicates that he was suspended only 

for going inby the danger board posted by Mr. Omear, such discipline 

constitutes discrimination under the Act for which Consol should be held 

accountable. The UMWA requests that a finding of discrimination be made, 

that a notice to that effect be posted at the Ireland Mine, that a fine 

be imposed on Consol, and that reasonable expenses and attorneyis fees 

be assessed against Consol. 

Respondent Consol's Arguments 

Respondent prefaces its post-hearing arguments with a quotation 

from the Commission decision Pasula v. Consolidation Coal Company, 

2 MSHC 1001, 1010, October 14, 1980, concerning the elements of a prima 

facie case under section 105(c) of the Act and the operator's defenses 

thereto as follows: 

We hold that the complainant has established a 

prima facie case of a violation of section 105(c)(l) 

if a preponderance of the evidence proves (1) that he 

engaged in a protected activity, and (2) that the adverse 

action was motivated in any part by the protected activity. 

On these issues, the complainant must bear the ultimate 

burden of persuasion. The employer may affirmatively 

defend, however, by proving by a preponderance of all 

the evidence that, although part of his motive was un·-

lawful, (1) he was also motivated by the miner's unprotected 

activities, and (2) that he would have taken adverse action 

against the miner in any event for the unprotected activities 

alone. On these issues, the employer must bear the ultimate 

burden of persuasion. (Emphasis in original). 

1324 
Whether Mr. Wise was engaged in protected activity on July 10, 1981, 

when he went by the danger board. 

Consol concedes·that Mr. Wise engaged in protected activity :J;n 

filing complaints with the West Virginia Department of Mines, but submits 

that this activity is sufficiently divorced from the three-day suspension 

of which Mr. Wise complains so as not to form the basis of a prima facie 

case. Consol asserts that in this case Mr. Wise did not introduce any 

testimony that mine management had threatened or harrassed him on' rtc·count 

of his safety activity prior to his suspension. 

Consol submits that the crux of the case is whether it was proper 

for Consol to discipline Mr. Wise for going past a danger board antl refusing 

to heed the order of mine Superintendent Omear to leave the dangered-off 

area once he had entered it. It is Consol's position that Mr. Wise violated 

state and federal law in ignoring the danger board and was insubo'rdinate 

when he refused to leave the dangered-off area. Thus, Consol believes 

that the issue for decision is whether Mr. Wise was engaged in protected 

activity on July 10, 1981, when he went by the danger board. 

Ill' support of its contention that Mr. Wise violated the Fede:rl'al Mine 

Act, Consol cites section 303(d)(l) of the Act, which specifically mentions 11 danger signs" in connection with the posting of such signs in mine areas 

which are found to be hazardous by those certified persons designated 

by the operator to conduct the preshift examination of the active' workings 

of the mine. Once such an area is posted, the statute provides that: 

No person, other than an authorized representative 

of the Secretary or a State mine inspector or persons 

authorized by the operator to enter such place for 

the purpose of eliminating the hazardous condition 

therein, shall enter such place while such sign is 

so posted. 

Consol also cites other provisions of the Act which establish similar 

criteria as to who may enter a dangered-off mine area. As examples, 

Consol asserts that once an MSHA inspector issues a closure order pursuant 

to section 104 or 107 of the Act, section 104(c) provides that no one 

is permitted to enter the subject to the order except: 

(1) any person whose presence in such area is 

necessary, in the judgment of the operator or 

an authorized representative of the Secretary, 

to eliminate the condition described in the order; 

(2) any public official whose official duties require 

him to enter such area; 

(3) any representative of the miners in such mine who 

is, in the judgment of the operator or an authorized 

representative of the Secretary, qualified to make 

1325 
such mine examinations or who is·accompanied by 

such a person and whose presence in such area is 

necess~ry for the investigation of the conditions 

described in the order; and 

(4) any consultant to any of the foregoing. 

Consol argues that the complianants' suggestion that section 303(d)(l) 

of the Act is inapplicable in this case because Mr. Siburt and Mr. Omear 

were not making a preshift examination at the time the danger sign was 

posted is a very technical one, which if accepted, would contravene the 

policy of the Act. 

Consol submits that a distinction should not be drawn between danger 

boards hung by federal inspectors in the course of a health and safety 

inspection, by firebosses on preshift and onshift examinations, and by 

certified persons such as Messrs. Siburt and Omear in the course of a 

contractually mandated safety run. In all of these cases, the danger 

board is serving the same purpose, i.e., to warn miners of a hazardous 

condition beyond the danger board and to stop them from going inby. 

Furthermore, Consol submits that if a miner is not present at the time 

the danger board is installed, he may not be able to tell whether it was 

posted by a federal inspector, a preshift or onshift examiner, or by 

another certified person so the proposed distinction sought the union 

in this case would not be practical in the mine environment. Finally, 

Safety Committeeman Conner 1 s testimony is revealing on this question. 

He testified that a federal inspector would haye put a danger tag on 

the area, so Mr. Conner apparently saw no diffe~ence in a danger sign 

posted by a federal inspector as opposed to a certified examiner. 

(Tr. 129-130). 

Consol maintains that since the danger signs in the case at hand 

were installed pursuant to an examination comparable to one made under 

§ 303(d)(l) of the Act and since it contravenes the purpose of the Act 

and is also impractical .to draw distinction based upon when and by whom the 

sign was hung, the question becomes whether Complainant Wise fell within 

one of those categories of persons who are permitted under the Act to 

go inby a danger board. Consol concludes that·: Mr. Wise was not an 

authorized representative of the Secretary or a State mine inspector, 

and that he admitted at the hearing that he did not seek authorization 

from Superintendent Omear to go inby the danger.board. (Tr. 69) 

Consol points out that Mr. Wise also filed a grievance with regard 

to his suspension pursuant to the National Bituminous Coal Wage Agreement 

of 1981, and that Aribrator Miles Ruben affirmed the grievance and ordered 

Consol to reimburse Mr. Wise for lost wages and"expunge the suspension 

from his personnel records. Consol states tha~ on the basis of Article III, 

Section (d)(3) of the Wage Agreement, Arbitrator Ruben found: 

1326 
It is of course true that no specific authorization 

was given by Management to the Grievant and the Chairman 

of the Mine Safety Committee, Mr. Conner, to enter the 

dangered-off area. However, a general, pre-existing 

authorization from Mine Management can be inferred from 

the provisions of the collective bargaining contract which 

gave members of the Safety Committee the right to inspect 

any portion of the mine when acting in pursuit of their 

official duties. (Page 16 of the Arbitration Award, Exh. 

C-2). 

Consol maintains that the complainant's argument that the contractual 

provision found in Article III granted safety committeemen the authority 

to go inby posted danger boards should be rejected. Consol submits that 

Mr. Wise's argument, as well as the arbitrator's interpretation on this 

point, should not be accepted because the labor agreement provision in 

question does not refer to the federal and state laws regarding 

signs, and the arbitrator was required to draw an inference from the 

contract that Mr. Wise had authorization to go inby a danger board. 

However, Consol argues that I should not adopt the arbitrator's reasoning, 

and its supporting arguments follow. 

First of all, Consol points out that section 303(d)(l), was 

not introduced into evidence at the arbitration hearing (footnote 3 

on page 16 of the Arbitration Award). Since the arbitrator did not have 

the relevant portion of Section 303(d)(l) of the Act before him when he 

interpreted the labor agreement, his finding of preauthorization so far 

as federal law is concerned is erroneous. The arbitrator could not make 

an inference that Mr. Wise was authorized to go past a danger board when 

he (the arbitrator) was not informed of the scope of the authority set 

out in federal law. For this reason alone, Consol maintains that 

the arbitrator's reasoning should not be followed. 

Furthermore, Consol maintains that the arbitrator's finding of 

preauthorization exceeds the authority established by section 303(d)(l). 

The arbitrator found that a safety committeeman had the right to inspect 

any portion of the mine, and because he had that right, he had the right 

to go past a danger board. However, Consol points out that under section 

303(d)(l), ming management is permitted to allow persons (other than a 

federal or state inspector) to go inby a danger board to eliminate the 

hazardous condition. The right to inspect the mine is not equivalent 

to eliminating the hazardous condition. The right to inspect the mine 

permitted Messrs. Wise and Conner to make the safety run and to identify 

the hazardous condition that resulted in the posting of the danger signs 

in this case. Once the danger signs were posted, then the contractual 

right to inspect was qualified by the prohibition contained in federal 

law, and the safety committeemen were required to observe the danger 

board. At this point, the policy behind the contract and the Act had 

been served, i.e., miner participation in identifying hazardous conditions, 

and the management's right to direct the work force in correcting the 

conditions took precedence. 

1327 
Consol cites the case of Ronnie R. Ross v. Monterey Coal Company, 

~~~ 

al. VINC 78-38 (1979), where Administrative Law Judge Michels 

recognized that a safety committeeman's authority to inspect a mine is 

limited. In that cas~, Complainant Ross received a disciplinary letter 

for inspecting areas of the mine site where his employer was not working. 

Similarly, in this case, Consol maintains that it was proper for Consol 

to discipline Mr. Wise for going into an area where he was not aurhotized 

to travel. 

Consol's disciplinary policy regarding danger boards. 

Consol states that at the , Complainant Wise, through his 

counsel, argued that it was unfair to discipline Mr. Wise because Consol 

did not have a written policy notifying its employees that they would 

be disciplined for going inby boards. Although Consol believes 

that this argument does not have any bearing on the question of whether 

Mr. Wise was engaged in protected when he went past the 

board, it presented the which follow below. 

Consol states that it does have a list of employee conduct rules 

posted at the Ireland Mine. Rule No. 1 notifies the employees that 

will be disciplined for to observe safety regulations. At the 

hearing Mr, Wise admitted that he was aware of Consol's policy of 

disciplining employees for state and federal safety laws. 

(Tr. 59-60). Consol notes that Mr. Wise never introduced any 

that the miners at Ireland Mine were unaware of the general prohibition 

in state and federal law against passing by danger signs. It is Consol's 

understanding that Mr. Wise contends that he was protected from 

not because the miners as a whole were not aware that they could not go 

past danger signs, but because he was empowered to do so as a 

committeeman. Consol does not understand Mr. Wise and the union to argue 

that any miner at Ireland Mine could have gone by the danger board at 

One North Section on July 10, 1981, and not have been held accountable 

for his action. 

In concluding its arguments, Consol maintains that the issue in 

this case is whether Mr. Wise's inby a danger board on July 10, 1981, 

was activity protected by the Act, and that it is Mr. Wise and the union 

that bear the ultimate burden of persuasion by a preponderance of evidence 

that a safety committeeman going inby a danger sign is protected 

Consol anticipates that Mr. Wise and the Union may make two arguments: 

(1) The danger signs were not posted pursuant 

to a § 303(d)(l) examination of the mine 

and, therefore, the prohibition against passing 

by a danger sign is inapplicable, and 

(2) Even if § 303(d)(l) applies, Mr. Wise, as a 

safety committeeman, is not bound by the 

prohibition found in§ 303(d)(l). 

1328 
In response to these arguments, Consol asserts that it has demonstrated 

that the complainants first argument is a technical one that leads to 

absurd results and does not advance the policy of the Act. Their second 

argument ignores the specific authorization language of § 303(d)(l) 

which restricts the persons allowed to go by a danger board to those 

who are working on correcting the hazardous condition. Consol concludes that 

Mr. Wise fulfilled his role as a safety committeeman at Ireland by 

locating and identifying the hazardous condition, but after having done 

so, he overstepped his authority and entered a dangered-off area for which 

he could properly be disciplined. 

Discussion 

The crucial facts in this case are not in dispute. It seems clear 

to me that Mr. Wise did in fact walk inby a posted danger sign on July 10, 

1981. It is also clear that when he was ordered to come out of the area 

at least three times by Mine Superintendent Omear, he chose to ignore 

those directives and came out after he was satisfied that his mission 

had been accomplished. Mr. Wise obviously believes that as a duly elected 

safety committeeman, he has a right to enter any area of the mine, 

including those areas that are dangered-off, for the purpose of insuring 

compliance with mine safety and health laws, as well as to insure the 

safety of miners while engaging in work connected with the correction 

and abatement of hazardous conditions brought to the attention of mine 

management. Conversely, while conceding that Mr. Wise has certain 

prerogatives in his capacity as a safety committeeman, including access 

to most areas of the mine for the purpose of conducting inspections to 

insure compliance with the law, Consol takes the position that simply 

serving as a conmitteem:m does not give Mr. Wise carte-blanche authority 

to go wherever he pleases, and that his access to certain mine areas, 

particularly those that are dangered-off, is limited and restricted by 

state and federal law to those individuals specifically authorized to 

be there pursuant to those laws. 

The crux of Consol's defense is that when Mr. Wise walked inby the 

posted danger sign he over-stepped his authority as a member of the mine 

safety committee, acted outside the scope of any "special status" which 

he may have enjoyed as a committeeman, and could therefore be held 

accountable for his actions. Recognizing the fact that the Act insulates 

Mr. Wise from reprisals by mine management for his safety activities, 

including acts of insubordination where it can be established that such 

insubordinate conduct was in fact protected activity, Consol takes the 

position that not only did Mr. Wise's action violate company.policy, 

it also violated federal and state law and therefore could not be deemed 

to be protected activity under the Act. 

As correctly pointed out by Consol, Mr. Wise does not contend that 

the disciplinary action taken against him was out of reprisal for his 

filing safety complaints with the State of West Virginia mining aurhorities. 

1329 
Although there is some testimony that one or more of these complaints 

may have resulted in a personal assessment or fine against Mr. Omear 

under state law and regulations, the UMWA does not advance an argument 

that Mr. Omear, or any other mine management official, suspended Mr. Wise 

because of these complaints. Although the grievance record concerning 

Mr. Wise's grievance contains a reference to the Union's attempts to 

establish that Mr. Wise was suspended in retaliation for having filed 

safety complaints against company personnel (pg. 6, Exh. C-2), 

the arbitrator never reached that issue, and at page 20 of his decision 

he states as follows: 

* * * the Arbitrator finds that the Grievant 

in knowingly entering into a dangered-off area 

for the purpose of checking on the safety of the 

crew assigned to effect repairs, although in contravention of the directions of Superintendent 

Omear to quit the area, was nevertheless acting 

in his official capacity and protected against the 

suspension sanction. 

In light of the foregoing, the Arbitrator 

finds it unnecessary to consider the Unionis contentions that the sanction violated the Federal Mine 

Safety and Health Act of 1977, as amended, and that it 

was imposed because of the Grievant 1 s filing of 

complaints ov violations of the mine safety code of 

the State of West Virginia. 

I am in agreement with Consol's view of the limited issue in this 

case; namely, whether Mr. Wise's entry into an area of the mine which had 

been "posted" or lldangered-off" was protected activity. The thrust o..f. 

Mr. Wise's discrimination complaint throughout this proceedings is his 

belief that he has a right to go anywhere in the mine in his capacity 

as a committeeman, including areas that have been closed down by mine 

management, and he has not claimed, nor has he produced any evidence, 

to support any claim that the action taken against him by Consol was in 

retaliation for his filing of safety complaints. Nor has he advanced 

any arguments or evidence that mine management harrassed, threatened, or 

otherwise intimidated him for his safety activities. 

There is no question that representatives of miners are afforded 

many rights and protections under the Act. They are free to request 

mine inspections or file complaints if they believe that a violation has 

occurred or dangerous conditions are present in the work environment. They 

are free to accompany mine inspectors on their inspection tours, at no 

loss of pay or other compensation. As miners, they are also free to refuse 

to work under unsafe conditions, and may leave their work area if they 

believe they are exposed to safety or health hazards. In addition, they 

are insulated from reprisals, intimidation, or harrassment by mine 

operators because of the exercise of these and other rights protected under 

the Act, and bythe case law. In addition, pursuant to the existing Wage 

Agreement between miners and the industry, miners are assurred of a safe and 

healthful place to work, and the safety and health committees are afforded 

many rights, as well as responsibilities. 

1330 
I recognize the validity and merits of the competing interests 

which cut across this entire proceeding. On the one hand, we have a 

safety committeeman who sees no limits to his authority as a safety 

committeeman. On the.other hand, we have a mine operator who concedes 

that a safety committeeman has certain prerogatives under the Act, 

but nonetheless believes that management has the prerogative to manage 

and control its mine and the employees who work there. The crucial 

question presented after balancing these interests, is to decide which 

one outweighs the other in the context of the applicable law. In this 

regard, an examination of two relevant Commission decisions is in order. 

The case of Local Union 1110 and Carney v. Consolidation Coal Company, 

1 FMSHRC 338 (1979) (hereinafter "Carneyu), concerned a safety committeeman 

who received three disciplinary letters of reprimand after several 

confrontations with mine management over his leaving his work area for 

the purpose of reporting safety violations and engaging in union business, 

He was charged with insubordination for failing to obtain management 1 s 

permission before leaving his work area to perform duties as a safety 

committeeman. In affirming Judge Broderickvs decision finding discrimination, 

the Commission, stated in pertinent part as follows at pg. 341 of its 

decision: 

* * *we concur in the judge's holding that the 

enforcement of the Company's "permission policy11 

violates section llO(b). The purpose of section 

llO(b) is to encourage communication between the 

miners, their representatives and the Secretary 

concerning possible dangers or. violations. The 

Company's policy effectively impedes a miner's 

ability to contact the Secretary when alleged 

safety violations or dangers arise, a time when 

free access to the Secretary is most important. 

We therefore ect the Company's objections to 

the judge's order that the Company cease and desist 

from enforcing its policy. 

* * * we agree with Judge Broderick that issuance 

of the three letters of reprimand to Carney violated 

section llO(b) of the act. After voicing a safety 

complaint to his foreman, Carney left the mine section 

to contact MESA officials, through the chairman of 

the mine's Health and Safety Committee, to bring the 

safety dispute to MESA's attention and to obtain its 

view on the legality of the Company's safety practice. 

* * * Because Carney's activity was protected, and 

because the Company could not lawfully require him 

to obtain its permission before engaging in such 

activity, the first letter of reprimand was an act 

of discrimination. Further, the second and third 

1331 
letters were, as Judge Broderick found, "certainly 

related to the first letter and [were] issued in 

part at least because of the activity protected by 

section llO(b) •. " (Footnotes omitted). 

In the Commission obviously recognized the fact that limiting 

a safety committeeman's free access to mine inspector's for the purpose 

of communicating real or alleged safety violations or dangerous conditions 

violated the intent of the anti-discrimination provisions of the Act that 

communication between the miners, their representatives and the 

be encouraged. Further, in his decision, Judge Broderick weighed the 

effect of mine 's "permission policy" and concluded that it 

severely limited the ability of miners to complain of hazards and violations 

during a working shift, by permitting only such complaints as mine management 

deems acceptable. Recognizing the fact that a contrary rule restricts 

managementvs ability to control production, Judge Broderick held that 

the health and of miners clearly outweighed production. 

The UMWA argues that the importance of removing 

restrictions on the ability of the miners' safety representatives to 

engage in protected activity was clearly recognized by the Commission in 

Carney. The UMWA maintains that if, as in Carney, an employer cannot 

prevent the committeeman from leaving his work area to 

his official functions, it would appear to be just as inherently 

discriminatory for an employer to interfere with the ability of the 

Committees to enter a given area. The UMWA believes that the .=::.=.::.=.~ 

holding is controlling in the instant case and that I should it. 

Ronnie R. Ross v. Monterey Coal Company et al., 3 FMSHRC 

1171; MSHC 11, 1981), concerned a safety committeeman 

who was reprimanded for inspecting a mine area where his employer was not 

conducting any work. With regard to Ross, it~should be noted that the 

UMWA's factual statement of this decision is not totally accurate. 

to the UMWA's assertion in its brief that Mr. Ross had no direct employment 

contact with either party committing the alleged discrimination, and 

that he attempted to exercise his authority as a safety committeeman 

"outside the employment content" (UMWA brief, p. 24), the fact is that 

Mr. Ross was an employee of one of three respondent's against whom he 

filed his discrimination complaint. In Ross, Monterey Coal Company was 

the owner and developer of a coal mine. The underground portion of the 

mine development was completed and Monterey was mining coal. Construction 

of the mine development was completed and Monterey was mining coal. 

Construction of surface facilities and related activities were underway 

by several contractors, including the McNally-Pittsburgh Corporation, and 

Mr. Ross was employed by McNally as a carpenter. As a condition of 

employment at the mine site, the employees of each contractor were required 

to be members of the UMWA local union, and Mr. Ross was selected by 

McNally employees to serve as a health and safety committeeman. 

During the course of an inspection tour of the project, Mr, Ross 

alleged that he had been abused and threatened by another contractor 

working at the site (Looking Glass Construction Company). Judge Michels 

1332 
found that Monterey,like Looking Glass, was not the employer of Mr. Ross 

and none of their ac.tions directly affected his employment or pay. He 

concluded that Monterey and Looking Glass had not discriminated against 

Mr. Ross, and at page 77 of his reported decision, 1 FMSHRC 77, April 1979, 

Judge Michels stated "There was no direct employment connection with 

respect to either party named in this charge." Therefore, it seems clear 

to me that Judge Michels' conclusion of 11 no employment connection" was 

clearly limited to the one charge of alleged harrassment lodged against 

Looking Glass and Monterey. 

The second alleged act of discrimination in Ross concerned a letter 

delivered to Mr. Ross on November 30, 1977, by his employer McNally. 

The letter was the result of information which came to the attention of 

McNally that Mr. Ross was inspecting areas other than where McNally 

employees were working. These areas included Monterey's underground 

mine, as well as the Looking Glass areas which prompted the aforementioned 

charge of harrassment. The McNally letter advised Mr. Ross that unless 

he limited his duties as committeeman to the McNally work site, he would 

be suspended, subject to discharge. The entire text of the letter is 

set out in Judge Michels' decision, and is as follows: 

This is to advise you that your duties as 

Project Union Health and Safety Committeeman are 

limited exclusively to McNally Operations at the 

Monterey Coal Mine #2. 

In the event of your violating the above, you 

will be suspended-Subject to discharge. 

With regard to the letter incident, Judg~ Michels concluded that 

since Mr. Ross was singled out to receive the letter, while other committeeman 

in approximately similar circumstances were not, he was discriminated 

against within the meaning of the Act. However, in addressing the question 

of whether the discrimination was motivated by or in retaliation for 

the reporting of alleged safety dangers or violations, Judge Michels 

observed that the letter was directed to Mr. Ross's safety inspections 

outside of McNally's area of operations, and that it did not limit inspections 

otherwise. Considering the 1974 Contract which governed McNallyts 

relationship with its employees, Judge Michels ruled that limiting 

Mr. Ross' activities as a committeeman to inspections on the McNally 

site was not unreasonable and that the motive for the letter was to 

prevent Mr. Ross from inspecting off the McNally site, not to punish him 

for reporting asserted dangers or violations. Recognizing the fact that 

an employer may reasonably control the activities of its work force, 

Judge Michels concluded that Mr. Ross was disciplined for unauthorized 

activity, and that the letter presented to him was to prevent him from 

engaging in activity reasonably perceived by management to be unauthorized 

and was not in retaliation for reporting safety complaints. After finding 

no violation of the Act on the part of McNally, Judge Michels dismissed the 

case. 

1333 
Findings and Conclusions 

The first issue to be addressed in this case is whether Mr. Wise's 

refusal to leave the ~angered off area in question after being directed 

to do so at least three times by Mr. Omear constituted insubordination 

warranting the disciplinary action taken against him. Assuming that the 

answer is in the affirmative, the next question is whether or not the 

refusal by Mr. Wise to leave the area when ordered to do so was based 

on some legitimate right bestowed on him by the Act to remain. In short, 

the question is whether or not Mr. Wise was engaged in some protected 

activity at the time he was asked to leave the area, If he was, then 

the charge of insubordination as the basis for the disciplinary action 

taken must fail, and Mr. Wise will prevail. If Mr. Wise was not engaged 

in protected activity, then I believe his refusal to obey direct orders 

from Mr. Omear constituted insubordinate conduct warranting the action 

taken against him. 

Consol 1 s arguments that Mr, Wise 1 s conduct violated State and 

Federal mine safety laws is rejected. On the basis of the entire record 

adduced in this case I cannot conclude that Consol has established any 

such violations as a legitimate basis for supporting the disciplinary 

action taken against Mr. Wise. In my view, Consol's reliance on section 

303(d)(l) of the Act is not supported by the record. That section 

specifically applies to the preshift "fireboss" examination required to 

be made by certified mine examiners, Once that examiner posts a "danger" 

sign, no one may pass except for those persons specifically designated 

by the law. While it is clear that Mr. Wise does not fall into any 

of the categories of "persons" enumerated in section 303(d)(l), .it is 

also clear that there is no evidence that the posting of the area resulted 

from any firebossing examination by a certified mine examiner. I reach 

the same conclusion with respect to the cited Article 22-2-1 of the West 

Virginia Code. 

The parties rely on the withdrawal order exceptions found in section 

104(c) and (d) of the Act in support of their respective positions 

concerning Mr. Wise's asserted violation of this section of the Act. 

Consol takes the position that Mr. Wise does not fall within any of the 

exceptions noted in section 104(c), and concludes that he violated the Act 

when he went inby the danger board. Unfortunately, the parties failed 

to call any Federal inspectors as witnesses to testify on this question 

and they rely on their legal conclusions based on their interpretation 

of the language of the exceptions. However, I would venture a guess 

that if an MSHA inspector concluded that Mr. Wise did not fall within 

one of the categories of persons permitted to remain in an area subject 

to a withdrawal order, he would probably cite Consol for the violation 

for failure to withdraw Mr. Wise from the area in question. 

The UMWA concedes that under subsection (3) of section 104(c), 

the operator has a say as to who may be qualified to make mine exRminationR 

under section 104(a). However, the UMWA concludes that pursuant to 

certain provisions in the 1981 Coal Wage Agreement Mr. Wise is so qualified 

1334 
and that Consol is bound by these contract pr:ovisions. I have reviewed 

the cited contract provisions, but I cannot conclude that the fact that 

a committeeman selected by his union peers on the basis of his "mining 

experience or training" necessarily transforms him into a qualified or 

certified mine examiner for purposes of section 104 of the Act. 

The term "qualified person" as defined by section 75.2(b) of Title 30, 

CFR is an individual designated by the operator to make tests and examinations required by Part 75 of the regulations. Further, the terms "qualified" 

and "certified" as they pertain to mine examinations by certain individuals 

are defined in various sections of Parts 75 and 77, Title 30, Code of 

Federal Regulations. Acceptance of the UMWA's theory could lead to the 

conclusion that anyone selected by a local union to serve as a 

committeeman is "qualified" or "certified" for the purposes of the Act 

simply because of his selection as a committeeman. Under the circumstances, 

I reject the UMWA's arguments that Mr. Wise comes within the 

found in section 104(c)(3) of the Act, and that this section authorized 

his presence in the dangered-off area in question. 

I reject the UMWA 1 s suggestion that the record in this case supports 

a conclusion that Consol tried to bar Mr. Wise's entry into an area which 

had been dangered off for the purpose of preventing him from 

compliance or noncompliance with safety standards, I do not view this 

case as one where a mine operator is attempting to conceal certain conditions 

or practices from a safety committeeman for the purposes of avoiding 

compliance with mandatory safety standards. In my view, the incident 

which sparked this controversy is a classic example of a labor-management 

confrontation challenging each others "turf". 

With regard to any asserted violation of company policy by Mr. Wise, 

I do not believe it necessary to make any specific findings concerning 

the question as to whether company policy specifically prohibits miners 

from entering mine areas which have been dangered off because of hazardous 

conditions. In my view, anyone who needs to have this admonition 

in writing has no business working in an underground coal mine. 

Regardless of any such written policy, the question here is whether Mr. Wise's 

disregard of direct orders from mine management to leave the area constituted 

insubordination warranting a three-day suspension. 

During the course of the hearing in this case, both sides presented 

testimony regarding the question of miners crossing inby a mine area which 

had been dangered off. Mr. Wise testified that as a member of the 

committee he often passed beyond such posted areas during regular mine 

inspections. Mr. Omear stated that he never observed any committeeman 

go beyond such an area unless he had permission or was accompanied by 

a mine management representative. Safety committeeman Connor's testimony 

supports Mr. Omear's position. Although Mr. Connor stated that he had 

previously crossed beyond danger signs, he indicated that he was always 

accompanied by mine inspectors or company management representatives, and 

that in these instances he had management's permission to do so. Further, 

1335 
there is a strong inference that Mr. Connor did not believe he had an 

absolute right to be in the area with Mr. Wise since he heeded Mr. Omear's 

admonition to leave and did so immediately. Mr. Connor's purported 

comment "you can't get me", was in obvious reference to the fact that 

Mr. Connor was carrying a saw which had been requested by Mr. Omear 

and supports a further inference that Mr. Connor believed he had a 

legitimate excuse for being in the area. Once the saw was delivered, 

he immediately withdrew. 

In this case the conditions or practices which led to the posting 

of the danger board by Mr. Omear were initially discovered by Mr. Wise 

and the shift foreman during a routine safety run of the section. Once 

those conditions were called to the attention of management, Mr. Omear 

agreed, albeit after some debate, that the area should be closed and 

corrective action taken. Mr. Omear posted the area and proceeded to 

attend to the conditions by seeing to it that work began to correct the 

conditions in question. Mr. Omear was at the scene supervising and 

directing the work, and Mr. Wise conceded that the corrective action being 

taken by Mr. Omear was correct and proper. As a matter of fact, once 

the area was posted, Mr. Wise left the area to continue with his inspection 

rounds and was gone for several hours before returning, and while he was 

gone, work to abate the conditions progressed under the supervision 

of Mr. Omear, apparently without incident. At this point in time, mine 

management was directly responsible for the area and work being conducted 

there and had a legitimate right to direct the workforce. As a matter 

of fact, the primary obligation to correct any hazardous conditions in a 

mine lies with the operator. It is the operator who is faced with a 

mine closure or civil penalty assessments for noncompliance, not the union. 

It seems to me that once the hazardous conditions are called to management's 

attention, and since the compliance obligation lies with the operator, 

he should be permitted to go about his abatement business in an orderly and 

reasonable manner. Of course, should the operator refuse to correct the 

conditions, then the union has ample recourse to insure compliance. 

On the facts of this case, it seems clear to me that Mr. Wise performed 

all of his duties as committeeman without interference from mine management. 

Once he discovered the conditions which he believed needed attention, 

management put the wheels in motion to insure that the conditions were 

corrected. Since management had the responsibility for correcting the 

conditions, I believe that management has the right to dictate the terms 

under which those corrections will be made. Here, Mr. Wise concedes 

that Mr. Omear was taking the appropriate corrective action. Had Mr. Wise 

had any question about this, I. would assume that he would have attempted 

to remain in the area to supervise the work, rather than leaving for several 

hours to inspect other mine areas. Further, although Mr. Wise indicated 

that he had crossed beyond danger signs in the past, on cross-examination 

he conceded that he has also observed and respected such signs for fear 

that he might expose himself to hazards which may have been present 

in those areas. By the same token, I believe that he should also 

respect the right of mine management to protect him from those hazards, 

thereby reducing its liability in the event he were injured or killed while 

venturing into such areas without prior knowledge or approval. 

1336 
After careful consideration of all of the arguments made by the 

parties in this case, I conclude and find that Mr. Omear's direct orders 

to Mr. Wise, made three times, to vacate and withdraw himself from the 

area which had been dangered off, were reasonable and proper, and that 

Mr. Wise's refusal to comply constituted insubordination. I further 

conclude and find that Mr. Wise's conduct in refusing to depart an area 

of the mine that had been dangered off for the purposes for correcting 

conditions called to mine management's attention was not protected 

activity under the Act. Once the conditions were called to mine management's 

attention, mine management then had responsibility and aurhority to 

correct the conditions and to direct the work force to insure that the 

job was done. Included in this authority was the discretion to determine 

who could assist them in this task. In the instant case, Mr. Wise simply 

took it upon himself to walk beyond a danger board without seeking mine 

management 1 s permission. Had he asked and been refused, he may have been 

in a better position to litigate his case. Since he did not ask, I 

cannot conclude that management was wrong in suspending him for ignoring 

the mine superintendent 1 s direct orders to leave the area. In my view, 

a contrary conclusion could lead to a situation where a committeeman, 

simply because he holds that position, could take it upon himself to walk 

into any dangered-off areas in a mine, thereby exposing himself to a 

multitude of hazards and dangers without the knowledge of mine management. 

Since mine management has the primary obligation under the law to insure 

compliance and to preclude any of its being ured or killed 0 

by walking into these areas, I see nothing unreasonable in mine management 1 s 

requiring that they be allowed to monitor and control these areas. 

In view of the foregoing findings and conclusions, I conclude and 

find that the three-day suspension given Mr. Wise for insubordinate 

conduct was reasonable and proper in the circumstances, and that Consol 

did not discriminate against Mr. Wise. Accordingly, this case IS DISMISSED. 

~~!r~ Administrative Law Judge 

Distribution: 

Jerry Palmer, Esq., Consolidation Coal Company, Consol Plaza, Pittsburgh, 

PA 15241 (Certified Mail) 

Mary Lu Jordan, Esq., UMWA, 900 15th St., NW, Washington, DC 20005 

(Certified Mail) 

Thomas Myers, Esq., UMWA District #6, 56000 Dilles Bottom, Shadyside, OH 

43947 (Certified Mail) 

1337 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 191982 

UlUTED MINE WORKERS OF AMERICA, Complaint of Discharge, 

Discrimination, or Interference 

On behalf of 

DELMAR SHEPHERD, Docket No. KENT 31-186-D 

Complainant 

v. Camp Underground Hine 

PEABODY COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Hary Lu Jordan, Esq., Washington, D.C., for Complainant; 

Thomas R. Gallagher, Esq., and Hichael O. ~icKown, Esq., 

St. Louis, Missouri, for Respondent. 

Administrative Law Judge Broderick 

STATE~IENT OF THE CASE 

Complainant charges that Respondent's refusal to recall him to 

work at a job initially offered him constituted~discrimination under 

the Act, because it was grounded on his need for additional training 

under State and Federal laws. The case was submitted for decision on 

a stipulated set of facts. Both parties have filed briefs. 

FACTS 

I accept the stipulations signed by counsel for both parties and 

filed in this case on Harch 10, 1982, together with the documents 

filed on July 13, 1982, pursuant to my request, as the facts on which 

this decision will be based. 

Complainant Delmar Shepherd was employed by Respondent Peabody 

as a miner beginning in June 1981. He worked in an underground mine 

from June 23, 1971 to November 20, 1978. Thereafter, he worked in 

surface mines for Peabody. 

1338 
From October 8, 1980 until he was laid off on November 18, 1930, 

he worked at Peabody's Alston Surface Mine. He was a member of the 

United Mine Workers of America which had a collective bargaining 

agreement with Peabody. The agreement provided that laid-off employees 

had the right to be recalled to work on the basis of seniority when 

jobs for which they were qualified became open at certain other Peabody 

Mines. Seniority is recognized as length of service and the ability 

to step into and perform the work of the job at the time the job is 

awarded. 

On December 1, 1980, Respondent contacted Complainant and told 

him that on the basis of his seniority he was entitled to be recalled 

at one of 13 job openings available at the Camp Underground Mine. 

Complainant selected a job and was told that he would be notified when 

to report to work. Later the same day, Respondent called Complainant 

and informed him that none of the jobs would be made available to him 

because he would need additional training required for working in an 

underground mine by Federal and State law, He further stated that 

Respondent would not provide the training, but that Complainant would 

have to obtain it himself. Other miners with shorter lengths of service 

were recalled. Complainant lost wages and claims reimbursement therefor 

for the period from December 3, 1980 through January 20, 1981. 

\ 

Respondent had an MSHA-approved training plan for training and 

retraining of underground miners effective at the time of the alleged 

discriminatory action. The plan provided a training program of from 

6-1/2 to 11-3/4 hours for newly employed experienced miners. Part of 

the training was to be done at a company training center and part of it 

at the mine site. The Complainant, having wor~ed in an underground mine 

from 1971 to November 20, 1973, was an experienced miner. 1 

Complainant was returned to work in the subject underground mine 

on June 11, 1981. Presumably he received the required training. The 

record does not indicate whether it was provided by Respondent or 

whether Complainant was paid while being trained. 

1/ Although the stipulations are not specific in this regard, I am 

assuming that it was Respondent's position that Complainant required 

training as a newly employed experienced miner per 30 C.F.R. § 48.6 and 

not as a new miner per 30 C.F.R. § 48.5. The regulations in Part 48 

were published in the Federal Register October 13, 1978, 43 FR 47 

In the absence of a specified effective date, became effective 

30 days thereafter or November 12, 1978. 5 U.S.C. § 553. According 

to the stipulations, Complainant was employed as an underground miner 

on that date and therefore was an "experienced miner." 30 C.F.R. 

§ 48.2(b). 

1339 
STATUTORY PROVISIONS 

Section 104(c)(l) of the Mine Safety Act provides as follows: 

(c)(l) 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 1 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 miner, representative of miners or 

applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act 

or has testified or is about to testify in any such 

proceeding, or because of the exercise by such miner 

representative of miners or applicant for ,employment on 

behalf of himself or others of any statutory right 

afforded by this Act. 

Section 115(a) of the Act provides in part: uEach operator of a 

• mine shall have a health and safety training program which shall 

be approved by the Secretary. The Secretary shall promulgate regulations with respect to such health and safety training programs ;'< -J~ ;'<." 

Section 115(b) of the Act provide in part: "Any health and safety 

training provided under subsection (a) shall be provided during normal 

working hours. Miners shall be paid at their normal rate of compensation while they take such training ~" ;'< -J~." 

REGULATORY PROVISIONS 

30 C.F.R. § 48.2(b) provides in part: 

"Experienced miner" means a person who is employed 

as an underground miner, ;'< ·k * on the effective date of 

these rules [November 12, 1978]; '" ~'< '"·or a· person who 

has had at least 12 months experience working in an 

underground mine during the preceeding 3 years ;, ;'< * 

1340 
30 C.F.R. § 48.3(a) provides in part: "Each operator of an underground mine shall have an HSHA approved plan containing programs for 

training new miners, training newly-employed experienced miners '/: '/: *·" 

30 C.F.R. § 58.6(a) provides: "A newly employed experienced miner 

shall receive and complete training in the program of instruction 

prescribed in this section before such miner is assigned to work 

duties." 

ISSUE 

Whether Respondent's refusal or failure to recall Complainant 

because he required additional training under the regulations constituted 

discrimination under the Act? Putting the issue differently, whether 

Respondent was required under the Act to recall Complainant for a·job 

opening and to provide the required for that job? 

CONCLUSIONS OF LAW 

It is the responsibility of the mine operator to provide the 

training required under the Mine Act. The Act specifically states 

(Section 2) that "the operators of such mines with the assistance of 

the miners have the primary responsibility to prevent the existence of 

[unsafe and unhealthful] conditions and practices in the mineso" 

Section 115 requires that mine operators have an approved health and 

safety training program, that the training shall be- provided during 

normal working hours and that the miners shall be paid at their normal 

rate of compensation while undergoing such training. 

On the basis of these provisions, Judge Morris ruled in 

Secretary/Bennett et al v. Emery Mining Corporation, 3 F11SHRC 26l;8 

(1981), that a requirement that a job applicant obtain miner training 

at his own expense as a precondition of employment constitutes discrimination under the Mine Act. In the Emery case the Complainants 

underwent the required training at their own expense and on their own 

tir.ie and were thereafter hired by Emery. Judge Morris ordered 

reimbursement for the cost and expenses of the training and payment 

of wages for the time spent in the training program. I agree with 

Judge Horris' reasoning and his conclusions. However, the facts in 

the case before me are different. If two miners apply for a position 

in an underground mine, one of whom requires training and the·other of 

whom does not, the operator does not violate the Act if he hires the 

latter. 

1341 
If Complainant had obtained training on his own time and at his 

own expense, and then was hired by Respondent, the facts would be 

analogous to those in Emery, and I would hold that a violation of 

lOS(c) was shown, because this would be an obvious attempt to shift 

the responsibility and cost of training from the mine operator, on 

whom the Act places it, to the miner. On the other hand, the Act does 

not require that, on the basis of seniority or otherwise, miners who 

require training must be hired or rehired rather than miners who do 

not require training. I assume that the miners who filled the job 

sought by Complainant in the subject mine, which miners "had a shorter 

length of service than Hr. Shepherd," did not require training. 

It is not the function of the Commission to interpret the collective bargaining contract between Respondent and the United Hine Workers 

of America, and I venture no opinion as to whether Respondent's failure 

to recall Complainant violated the contract. Nor have we been given the 

responsibility of overseeing Respondent 1 s hiring practices except as 

they may conflict with the Hine AcL I find no such conflict in the 

facts submittted to me in this case. 

ORDER 

Therefore, IT IS ORDERED that the complaint is DISMISSED. 

~l t 1'<..C S' AfJ~ V(~~ ~rc.ef :___ 

James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Ms. Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, DC 20005 

Thomas R. Gallagher, Esq., and Michael O. McKown, Esq., Peabody Coal 

Company, P.O. Box 235, St. Louis, HO 63166 

1342 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JlJL 231982 

SECRETARY OF LABOR, Complaint of Discharge, 

MINE SAFETY AND HEALTH Discrimination, or Interference 

ADMINISTRATION, (MSHA), 

On behalf of 

ROY LOGAN~ 

Vo 

Complainant 

Docket No: KENT 81-162-D 

(PIKE CD 81-10) 

Noo 2 Hine 

BRIGHT COAL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

William F. Taylor, Esq., and Ralph Do York, Esqo, Office of 

the Solicitor, U.S. Department of Labor, Nashville, Tennessee, 

and Michael G. Finnie, Special Investigator, MSHA, Pikeville, 

Kentucky, for· Complainant; 

Ralph G. Polly, Esq., and Gene Smallwood, Jr. Esq., Whitesburg, 

Kentucky, for Respondent. 

Judge Moore 

This is a discrimination case and the principle issue is one of 

credibility. George Roy Logan says that on January 19, 1981, Superintendent 

Jack Collins told him to go under bad roof to set safety posts. He says that 

he told Jack Collins that he would go if Jack Collins or someone else would 

accompany him to assist, but that he would not go alone. He then says that 

Jack Collins told him "if you won't do that you might as well go on home and 

I'm going to get rid of you." Jack Collins admits that he fired George Roy 

Logan, but says he had not asked him to go under bad roof. He says that he 

fired Logan for threatening the foreman, failing to do his job of keeping 

the tailpiece clean, and mistreatment of the scoop when he was driving a 

scoop. 

No one overheard the conversation of January 19, 1981, and both Roy Logan 

and Jack Collins gave their testimony in a straight-forward manner with no 

indication that I could detect of any hesitancy or signs of deceitfulness. 

From hearing the testimony of both, I have no way of knowing who was telling 

the truth, but credibility is the essential issue and must be resolved on 

1343 
the basis of other instances and the surrounding circumstances. If either 

were willing to perjure himself with respect to some other incident involved 

in the case, I have to assume that he might be willing to perjure himself 

when testifying about the most crucial incident. In judging the credibility 

issue I must consider all of the aspects of this case. 

At the outset is the discovery issue. At the request of Respondents, I 

ordered the government to produce any exculpatory information that might be 

contained in its files. The government did not deny that it had such material 

but instead resisted disclosure invoking the informers privilege, the executive privilege, and the so-called privilege involving the work product of an 

attorney. It did not properly invoke the executive privilege (even if it 

had, it would not have been pertinent) and Respondents were not seeking the 

work product of the government 1 s attorneyo They were seeking the information 

discovered by the government's investigating inspector which would have 

supported their contentions that there were ample reasons for firing Roy Logan 

other than an unlawful discrimination under the Acto I ruled that the 

informers privilege was also inapplicable because a witness who gave evidence 

favorable to the Respondent was not an informer. I ordered production of the 

exculpatory material, but the government refused to comply with the order. 

Prior to trial I issued a subpoena duces tecum requring the production of the 

information at the trial~ but the government refused to comply with that 

subpoena. I then offered the Respondents the opportunity to seek court 

enforcement of the subpoenao 

By letter of June 24, 1982 Respondent~s attorney advises that both he 

and the U.S. Attorney decline to seek court enforc,ement on the ground that 

I had no authority to delegate subpoena enforcement to a private party. While 

I would not agree with that without seeing some authority I think the answer 

given by the U.S. Attorney begs the question. The delegation was not merely 

to a private party. It was to Mr. Polly "and to the United States Attorney •• 0

11 

If I can not delegate the authority to file an enforcement action to someone, 

then the authority is of little value because I can not appear in court as 

a litigant against a party appearing before me. The enforcement proceeding 

would be ancillary to the instant proceeding and in a sense I would be an 

advocate in a case over which I was presiding. I would have to recuse myself 

in order to enforce the subpoena. 

Respondent's had asked to me to dismiss the case because of the government's refusal to produce the material, but I considered that too drastic 

a remedy in view of the fact that Mr. Logan was not being representd by his 

own counsel but by government counsel, and I did not wish to punish him for 

'something government counsel did. At the trial, government counsel denied 

that they were representing Mr. Logan, but I think they were mistaken in 

this denial. They were representing Mr. Logan. I nevertheless refused to 

dismiss. 

The most reasonable sanction I can impose is to assume that there is 

exculpatory material similar to the evidence produced,by Respondents on 

defense in this case. I cannot assume any exculpatory evidence as to the key 

1344 
issue of whether, on January 19, 1981, Respondent Jack Collins ordered Roy 

Logan to go under unsafe roof and discharged him when he refused to do so. 

But I will make assumptions adverse to the government with the respect to other 

phases of the evidence. I would like to emphasis that these assumptions could 

have been avoided if the government had denied existence of exculpatory information. If the government had offered to let me look at the material in camera 

I might have been able to see good reason why it should not be disclosed. 

No such offer was made, however, and I made no request that I be allowed to 

see the entire file. 

Because of the credibility issue at the very heart of this proceeding, 

I allowed evidence to be introduced which, while not directly relevant to the 

events leading up to Mro Logan's discharge might nevertheless bear on the 

credibility of the witnesses. One example of that type of evidence is the 

section 103(g) inspection that was made subsequent to Mr. Logan 1 s firing. 

During the course of the discrimination investigation, a miner alleged to an 

inspector that unsafe conditions existed at the mine, and he requested an 

immediate inspectiono The inspection was made and while a citation was issued, 

it was unrelated to the nine specific charges made by the miner in question. 

I find that there was nothing in the evidence concerning this inspection that 

would bear on the credibility of any of the witnesses. };/ 

There were other post discharge events testified to which, as it turned 

out, do not have a bearing on the credibility issue herein. One such incident 

occured when Mr. Logan met Mr. Mike Joseph to exchange a company (Joseph 

Brothers) lamp and battery charger for Mr. Logan 1 s final paychecko There was 

a 22 rifle lying across either the trunk or the hood of Mr. Logan 1 s car. But 

there was no evidence that would justify a finding that Mr. Logan was 

attempting to threaten Mr. Joseph with the rifle. I accept Mr. Logan's 

explanation that he and his brother had merely been "plinking" at tin cans 

and bottles in the river. 

While Mr. Logan alleges that he was fired because of his refusal to work 

under bad top alone on January 19, 1981, Respondents allege that he was fired 

for a number of reasons including the manner in which he operated his scoop, 

including unsafe and reckless operation which damaged the scoop, insubordination, threats to a foreman, and failure to perform his job after he was taken 

off of the scoop. There was also an allegation that he took food from the 

other miners'lunch boxes, but whether this added to the other items as a part 

of the reason for Mr. Logan's discharge is unclear. 

1/ During a colloquy concerning of the 103(g) inspection, I called counsel 

to the bench for an off-the-record discussion. I asked if Mr. Logan, in 

his deposition, had not already revealed himself as one who complained to 

MSHA about unsafe conditions and the lack of preshift examinations. Both 

Counsel agreed that the matters referred to in Mr. Logan's deposition were 

not the ones giving rise to the 103(g) inspection. Inasmuch as I do not know 

who made the complaint I cannnot use the results of the inspection as affecting the credibility of any witness. 

1345 
On January 15, 1981, Mr. Paul Reid of Celtite Corporation conducted a 

pull test in Respondent's mine. While the pull test was not described in 

detail the idea is to pull out a roof bolt and see just how much force it 

takes to pull it out. There is disagreement as to what time of day the pull 

test was made, but all who testified as to the date agreed that it was 

January 15, 1981. Mr. Logan's immediate supervisor, foreman Scott Johnson, 

told Logan that he could watch the test if his tail piece area was clean. 

It is at this point that the versions of what took place differ. Roy Logan 

says that before the first part of the pull test was completed Scott Johnson 

came up to him and embarrassed him in front of his fellow workers by telling 

him to get back to work. Logan says he then threatened Johnson with words 

such as "I'll whip you before I leave" and said that several others should 

have heard his statement. This testimony by Logan was given in his deposition 

which was, without objection, made part of the record. At the trial, however~ 

he said he sort of muttered the threat and did not intend anyone to hear 

it. While no one else at the pull test including Johnson, Collins, and 

several others, testified that they heard the threat, several heard either 

Collins or Johnson or both tell Logan to get back to work. According to 

Johnson and Collins the first part of the pull test was over. Johnson said 

that when they went to test the second bolt, a part of the testing equipment 

broke sp there was no point in allowing anybody to remain because the pull 

test was then over, at least for that day. Scott Johnson testified that he 

had to tell Logan three times to get back to work. Willard Blair heard 

Johnson tell Logan to go back to work. He did not say how many times. 

Eugene Lewis a state mine inspector heard Jack Collins tell Logan to go back to 

work at least twice, but said that Logan just sat there. And Jack Collins 

said he told Logan to go back to work two times when the first test was over 

and that Scott Johnson told him to go back to work two times. The weight 

of the evidence is that if Logan went back to the tail piece to work, he 

did not do so when he was instructed by his two superiors to get back 

to work. 

State Inspector Eugene Lewis testified that on the day of the pull test 

but prior thereto, he saw Roy Logan at the tail piece and Roy Logan told him 

that he was going to whip Scott Johnson. Later in the day, Lewis related that 

information to Jack Collins and Jack Collins at some unspecified time thereafter relayed the information to Scott Johnson. Both Scott Johnson and Jack 

Collins corroborate Mr. Lewis' version of the way the threat was communicated 

to Mr. Johnson. It is noted that Mr. Logan's statement at the trial, that 

he did not mean for anyone to hear him and sort of muttered the threat, is 

inconsistent with the statement in his deposition that four to six people 

probably heard him tell Johnson that he would whip him before he left. 

The above incidents involving the pull test all took place January 15, 

1981, the discharge took place on January 19, 1981. The rest of the incidents 

that will be considered took place at unspecified dates, either before 

January 15, or subsequent to the dischage on January 19. Scott Johnson 

testified that when Logan first came to work for Bright Coal Company, he was 

a very good scoop operator. He then began to slow down and appeared to avoid 

the foreman; that is, when the foreman was on the outside, Logan would be at 

1346 
the face and when the foreman was in the mine, Logan would be broken down 

outside. Buford Stonic testified that Logan's scoop seemed to be broken down 

an awful lot. Jack Collins testified that Logan "tore up" his scoop all 

the time. Gears, universal joints and other items were constantly being overstressed because of Logan's reckless driving. Levon Williams, a foreman at 

the other mine, said that Logan was sent to his mine at one time and managed to 

get his scoop stuck in an area sideways. Mr. Williams was uunable to explain 

clearly what happened but he thought it was deliberate and it took several 

hours to correct the matter. He left instructions that Logan should not be 

sent to his section again. Although both scoops in the mine were fairly new, 

Logan had the newest one, and according to Mr. Collins, the other scoop driver 

had no trouble with his scoop. It was just Logan's scoop that broke down all 

the time. 

Another incident that is alleged to have occurred at an unspecified time 

(which Mr. Logan denies), is a near accident involving the other scoop driver. 

The other scoop driver, Jim Cornett, said that he was driving the scoop underground when Roy Logan who had been engaged in some hazardous horse play jumped 

out in front of Cornett 7 s scoop. He considered it very fortunate that he did 

not run over Logan. He related this incident to Jack Collins when he saw him. 

Jack Collins testified that Jim Cornett had almost run over Logan ~1ile Logan 

was asleep and that after hearing about it, he went back down into the face 

area and found Logan asleep. Mr. Cornett did not see Logan asleep nor has 

he seen anyone asleep in the mines although he had heard, he thinks from Jack 

Collins that Logan had been asleep. At his deposition Logan denied both 

allegations although he did not present any rebuttal testimony at the trial. 

There were other predischarge events testified to by Mr. Logan during the 

course of his deposition, but they will be considered later. 

Mr. Logan testified, both in his deposition and at the trial, that on 

the day of the firing, January 19, 1981, after the shift was over, it was 

decided by Mr. Jim Hogg that Logan could ride to and from work with 

Mr. Jack Collins. Logan said he put his knee pads in Collins' Bronco 

expecting to be picked up the next morning at a store between his house and 

the mine. He says the next morning he was at the store which had been the 

agreed meeting place and that Mr. Collins drove right on by. Mr. Collins 

denies that there was an arrangement to pick up Mr. Logan. Mr. Jim Hogg 

was on the stand at the trial but nobody bothered to ask him whether he had 

been a party to any arrangement whereby Jack Collins would pick up Roy Logan 

on the day after he had been fired. 

Roy Logan says that on the evening of January 20 he learned indirectly 

from his brother that he had been fired and that he phoned Scott Johnson 

and Jack Collins to ask about it. He said Jack Collins denied any knowledge 

and suggested that he call Jim Hogg. He said when he called Jim Hogg, Jim 

suggested that he call Jack Collins and that when he again called Jack 

Collins, Jack told him he had been fired. Scott Johnson, testified that 

Mr. Logan had called him and that he, Scott Johnson, had said he knew nothing 

about the firing. Mr. Collins testified that Logan called him to try to get 

his job back and that when he refused, Logan threatened him with such words 

1347 
as "your time is coming" and added "I know where you live and I know where 

your children go to school." Logan denies making the statement about the 

children although he concedes saying something about "your time is coming". 

Jack Collins said that he and his wife and daughter were shopping in a store 

later when Logan came up and called him a "son-:-of-a-bitch" in front of his 

family. He said he took Logan out of the store and knocked him down. Logan 

denies all of this. 

After Logan was fired from Bright Coal Company, he went to work for 

Joseph Brothers as a scoop operator. After a short time, Charles Joseph 

fired him because he was damaging the equipment with his reckless driving. 

Mike Joseph corroborated the fact that Logan could not keep the scoop 

running because he was too rough on the equipmento They even thought Logan 

deliberately let the air out of the tires to avoid work. Logan denied that 

he had been fired but during the course of his deposition he did say that it 

was almost the same as being fired. He said that Joseph Brothers had laid 

off the second shift but let the others continue working anyway. He nevertheless denied being directly fired. Hike Joseph said he fired him. 

Near the end of the trial, counsel for Respondents offered preshift 

examination reports to show that the required examinations had in fact been 

made. Government counsel objected on the grounds that they were not relevant 

because the government had at no time charged or contended that the proper 

preshift examinations were not being made. When counsel for Respondents 

asked if the government was abandoning its claim that proper preshift exami--

inations were not made, government counsel stated that he was not abandoning 

the contention, because he had not made it in the first place. The government was simply not contending that there was any flaw in Respondent's preshift examination procedures. At Mr. Logan's deposition, however, he made 

quite a point of the fact that proper preshift examinations were not being 

made. He said they were never made and that he had argued with Scott Johnson 

about not making them. He alleged that neither Jack Collins nor Scott Johnson 

ever went into the mine before Logan himself went in. Johnson would sometimes 

come in after they started working and put his initials in places, but he 

was faking the preshift examination according to Logan. He even complained to 

Jack Collins about Logan not making the preshift but Collins said there wasn't 

any point in making one. Logan stated that the only time Johnson would mark 

anyplace on the roof with his initials was when he had to come up to the 

face for some other reason and it was in no way a preshif t examination. He 

also said that he complained to the MSHA inspector's about the failure of 

the company to make preshift examinations. He also mentioned a time prior to 

the discharge and pull test when Jack Collins asked him to go under what he 

considered bad roof to rock dust. He refused to do so. 

All of the above would tend to establish a very poor policy on Respondents' part regarding mine safety. All would have been in support of a discriminatory discharge. None of these items were brought forth during the 

trial, however. None of the miners who testified alieged that they had been 

asked to work in unsafe conditions, none mentioned the failure of Respondents' 

to make preshift examinations, and Mr. Logan did not testify at the trial 

1348 
concerning these matters. In my opinion, the circumstances give rise to the 

inference that the government does not believe the sworn statements of 

Mr. Logan regarding these matters. If the government had information tending 

to disprove the statements of Mr. Logan, it was obliged, under Brady v. 

Maryland 273 U.S. 83 (1963), to disclose that information. Since it has 

neither denied that it has such information, nor disclosed such information 

to Respondents, I am making the assumption that it has such information. 

I make the further inference that if Mr. Logan made misstatements under 

oath as to the items referred to above, he may well have made similar misstatements under oath as to the principle issue herein, i.e., why he was fired. 

I have no similar evidence that would indicate that-Mr. Collins may have made 

misstatements under oath. 

Considering the inferences that I have made, it is obvious that the 

government has failed to satisfy its burden of proof that Mr. Logan was discharged because he refused to work under unsafe roofo I therefore render 

judgment for the defendants Bright Coal Company and Jack Collins and the 

case is DISMISSED. 

Distribution: Certified Mail 

{}lud~ (. ?/Jc'rff!<; a . Charles C. Moore, Jro, 

Administrative Law Judge 

W.F. Taylor, Esq., Office of the Solicitor, U.S. Department of 

Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

Ronald G. Polly, Esq., 

Box 786, Whitesburg, 

Mr. George Roy Logan, 

KY 41858 

Polly, Craft, Asher & Smallwood, P.O. 

KY 41858 

P.O.B. 146-A, King Street, Whitesburg, 

Bright Coal Company, Inc., Main Street, Whitesburg, KY 41858 

Mr. Jack Collins, P.O.B. 242, Ermine, KY 41815 

Thomas P. Piliero, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

1349 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUL23J9&? 

) 

WILLIAM A. HARO, ) 

) 

Complainant, ) 

) 

v. ) 

) 

MAGMA COPPER COMP ANY, ) 

) 

Respondent o ) 

) ~~~~~~~~~~~~~~~~~~-

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

DOCKET NO. WEST 80-482-DM 

MD 80-26 

MINE: San Manuel Division 

DECISION AND ORDER 

Appearances: 

Thomas G. Martin, Esq. 

1601 No Stone Avenue 

Tucson~ Arizona 85705 

For the Complainant 

N. Douglas Grimwood, Esq. 

Twitty, Sievwright & Mills 

100 West Clarendon 

Phoenix, Arizona 85013 

For the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

Complainant, William A. Haro, filed a complaint against Respondent, 

Magma Copper Company alleging that on August 24, 1979, he was suspended for 

five days for alleged insubordination, and that on November 16, 1979, he 

received a reprimand when he allegedly left his work area without 

permission. Haro alleges that the five day suspension and reprimand were 

administered against him by the respondent in retaliation for Haro having 

exercised his rights which were protected pursuant to section 105(c) 

(1) J:../ of the Federal Mine Safety and Health Act of 1977 (hereinafter 

the "Act"). 

1/ Section 105(c)(l) reads in pertinent part "No person shall •.• 

discriminate against ••. any miner ••• because such miner ••• has ••• made 

a complaint under or related to this Act, including a complaint notifying 

the operator ••• of an alleged danger or safety or health violation in a 

••• mine ••• " 

1350 
FINDINGS OF FACT 

The respondent, Magma Copper Company, operates an underground copper 

mine, mill, smelter, refinery and rod plant at San Manuel, Arizona. 

Several years prior to 1979, respondent had initiated a six point safety 

program. The safety program refers to a six point check list which is to 

be completed by each employee and his supervisor. After the safety slip is 

filled out each day by the employee, it is given to his supervisor. 

Approximately 1500 to 1600 employees fill out the safety slips daily. Six 

questions must be checked on each slip, however, only the first three 

questions are relevant in this proceeding. The first three questions are 

as follows: 

YES NO 

1. Check entrance to place of work? 

2. Are equipment and working area in good order? 

3. Is work assignment understood? 

On May 19, 1979 when Haro filled out his safety slip, he checked 

question No. 1 "No" because he had observed that there were splinters in 

the shower room benches and that the benches should be sanded and euo 

Haro~s supervisors explained to him that the first question referred ::c 

Haro 1 s actual work place, and that for unsafe conditions outside Haro:s 

work area a notation should be made in the iiconnnent section at the bottom 

of the safety slip. Haro believed that the entrance to his place of work 

included the shower room because that was his first entrance to the job 

where Haro put on his work clothes. Haro informed the mechanical general 

foreman that unless Haro was allowed "freedom of choice" on fi 11 ing out the 

safety slips he would not fill them out any more. He stated that his 

decision was not subject for negotiation. Haro also felt he was being 

coerced as to what the meaning of immediate work area meant. Haro 1 s 

supervisor informed him that he was expected to fill out the safety slips~ 

and no further action was taken in regard to this incident. On May 25, 

1979, Haro was informed that the shower room benches had been sanded and 

painted. 

On August 16, 1979, Haro again marked "no 11 on question No. 1 on the 

safety slip. Haro testified that in his opinion his entrance to his work 

place was unsafe because respondent would not allow Haro to apply his craft 

as a journeyman mechanic with respect to the welding of concrete pots used 

in the underground mine department. Haro had observed the welding work 

being done on the concrete pots by certified welders, and Haro believed 

that it was unsafe. Haro had further concluded that respondent was 

limiting Haro's abilities to perform his duties, and respondent was not 

letting Haro comply with his "specified requirements." Haro 1 s supervisor, 

Mr. Hamilton, later informed Haro that Haro was a mechanic, not a welder, 

and if Haro did not like how things were being done, to get another job. 

1351 
On August 16, 1979, Haro also marked "no" to question No. 2 on the 

safety slip in regard to whether the equipment in the area was in good 

working order. Haro marked the slip "no" because the overhead crane in the 

surface car shop could not be used and had not been repaired. The crane 

had been taken out of service approximately one month before, on July 24, 

1979, and the air lines to it had been disconnected and the control box 

"tagged out". This action had been taken after an MSHA inspector had 

inspected the crane on July 24, 1979, at the request of Haro. When 

questioned by Mr. Hamilton about Haro's mark "no" on the safety slip, Haro 

acknowledged that the overhead crane was out of service, but Haro stated 

that he could climb to the roof of the shop, reconnect the air hoses, and 

thus use the crane. Hamilton told Haro that if Haro did that, he would be 

in violation of a direct order given to everyone in the shop in that the 

crane was tagged out of service. 

As to question No. 3 on the safety slip, whether the work assignment 

was understood, Haro had marked it Bno11 on August 16, 1979 9 because Haro 

did not understand the work being done by the welders on the concrete pots, 

Hamilton explained to Haro that Haro was a mechanic, not a welder, and that 

there was no need for Haro to understand any weld repairs being done within 

Haro's shop. 

On August 22~ 1979, Haro was surrnnoned by Mr, Hamilton, the mechanical 

general foreman~ to discuss the method Haro had used to fill out the safety 

slip on August 16, 1979. Mr. Hamilton concluded the meeting by explaining 

to Haro that respondent's expectations in regard to the. safety slips had 

now been explained to Haro and that he could either comply with the program 

or look for work elsewhere. 

On the next day, August 23, 1979, Hamilton discovered that Haro had 

turned in his safety slip with the first three questions left unanswered. 

Hamilton sent Haro's irrnnediate supervisor to Haro in order to have him fill 

it out. The supervisor returned and told Hamilton that Haro had refused to 

fill it out, and that Haro had said if Hamilton wanted it filled out, then 

Hamilton could do it himself. At 4:25 p.m., Hamilton ordered Haro brought 

to his office and when Haro arrived, Hamilton asked Haro why some of the 

questions on the safety slip had been left unanswered. Haro replied, that 

it had slipped his mind, or he had forgotten. Haro than took a pencil from 

his pocket, checked the three unanswered questions "yes", and tossed the 

safety slip on a chair. Haro left work at 4:30 p.m. 

Mr. Hamilton did not believe that Haro had forgotten to fill out the 

safety slip, but that Haro had refused a direct order as to how to fill it 

out. Hamilton contacted his supervisor, explained what had occurred, and 

recommended that Haro be fired for insubordination. However, the final 

decision was that Haro be given a five day disciplinary layoff commencing 

August 24, 1979, for insubordination. The notice to Haro gave the 

explanation that the layoff was for "failure to comply with a direct order 

concerning six point safety slip." Mr. Hamilton's supervisor testified 

that Haro was the only employee who had refused to fill out a safety slip 

in compliance with instructions. 

1352 
Haro filed a grievance pursuant to the union contract on August 16, 

1979, alleging that "Mr. Hamilton was forcing me against my will in filling 

out safety slips and was doing it through coercion." On August 22, 1979, 

Haro filed a grievance because Haro concluded that he was unable to leave 

his work area during lunch hour and felt that he should, therefore, be paid 

for his lunch hour. 

On November 16, 1979, Haro received a written warning for being away 

from his work area. During the lunch period Haro had left his work area to 

file a second step proceeding in a grievance that Haro and another miner 

had filed previously. Allegedly, Haro had not asked the permission of his 

supervisor in order to leave his authorized work area during the lunch 

period to make the filing at the Administration Building. 

During the three years prior to Augusts 1979 3 Haro had filed approximately 20 grievances against respondent and had also filed two "discriminat ion11 complaints against respondent for alleged violations of 

section lOS(c)(l) of the Act. These complaints were pending at the time 

Haro was suspended for insubordination. 

ISSUES 

The issues in this proceeding as agreed to by counsel for Haro and 

counsel for the respondent were whether or not the discipline which was 

administered to Haro regarding the five day disciplinary layoff on August 

24, 1979, for insubordination and the subsequent reprimand on November 16, 

1979, for leaving the work place were done in accordance with legitimate 

company policies, or whether these disciplines were pretextual and contrary 

to section lOS(c)(l) of the Act. 

DISCUSSION 

Haro has the burden of showing that he engaged in protected activity 

and that his suspension and reprimand were motivated in part by such protected activity. The Secretary of Labor, on behalf of David Pasula v. 

Consolidation Coal Company, 2 FMSHRC 2786 (1980). 

Was Haro suspended for five days connnencing August 24, 1979, because 

he had made complaints in regard to alleged dangers or safety or health 

violations, and did Haro receive the reprimand on November 16, 1979, for 

the same reasons? 

Counsel for Haro contends that because of Haro's complaints to MSHA in 

July 1979, which resulted in the inspection of the overhead crane on July 

24, 1979, and Haro's history of resorting to MSHA assistance, respondent 

took revenge and discriminated against Haro by suspending him for five days 

for alleged insubordination; and, that for the same reasons respondent 

reprimanded Haro for leaving his work area on November 16, 1979, without 

permission, in order to file a second step of a grievance. Thus, Haro 

1353 
claims that the protected activity in which he engaged consisted of having 

made safety complaints to MSHA and that because of that activity protected 

by the Act, respondent retaliated against Haro. The facts do not bear out 

this contention. 

According to the testimony of Haro he was in disagreement as to the 

manner in which the respondent required him to fill out safety slips. On 

May 19, 1979, Haro marked "no" to question No. 1 which stated "Check 

entrance to place of work?" Because he disagreed with respondent's 

interpretation as to the location of his "place of work. 11 Although Haro 

may have believed that the splinters on the shower room benches were a 

danger or health or safety violation, the point he raised was that he was 

coerced into filling out the safety slips to show that the entrance to 11 place of work" was the innnediate work place of the miner, whereas Haro 

believed it to be the entrance to the mine property where he was first 

subject to orders by a supervisor. Thus, there was no protected activity 

involved in this occurrence. 

On August 16, 1979, when Haro again marked 11non to question No. 1 on 

the safety slip there was no showing by Haro that he was complaining of an 

alleged danger or safety or health violation. Haro testified that his 

entrance to his work place was unsafe because respondent would not allow 

Haro to apply his craft as a journeyman mechanic with respect to the 

welding of concrete pots" 

At the request of Haro an MSHA inspector inspected the overhead crane 

in the car shop on July 24, 1979. As a result of that inspection, the 

crane was taken out of service due to certain deficiencies. A supervisor 

"disabled" the crane so that it could not be operated. He had the crane 

moved to the end of the building, parked, and unhooked it from its air 

supply, and the controlling mechanism was "tagged". The crane was not put 

back into operation until February 25, 1981, according to Harois 

testimony. Although the evidence was unclear as to what the alleged danger 

consisted of, Haro's action in calling MSHA was protected activity. 

However, there is no inference from the evidence that the suspension of 

Haro on August 24, 1979, or the reprimand on November 16, 1979, was 

motivated in any part by that protected activity. 

On August 16, 1979, Haro marked "no" to question No. 2 on the safety 

slip. The question was "Are equipment and working area in good order?" 

Haro testified that he had been marking "no" to that question because he 

was unable to obtain an answer from management as to when the overhead 

crane would be repaired. This complaint was not activity protected by the 

Act. Since the crane had already been "tagged out" of service for approximately a month, its presence could hardly be called a possible danger 

or safety or health violation. 

On the same date, August 16, 1979, there was no protected activity in 

regard to Haro's answering question No. 3 "no", that the work assignment 

1354 
was not understood. Haro testified that he did not agree with the way the 

concrete pots were welded. He was not a welder, but was a mechanic who 

worked on maintaining the undercarriage of the rail cars on which the 

concrete pots were placed. There was no substantial evidence to show that 

Haro was making notification of an alleged danger or safety or health 

violation in regard to the method used to weld concrete pots. 

There is no evidence that the reprimand given to Haro on November 16, 

1979, when he left his work area without permission in order to file the 

second step of a grievance was motivated in any part by any protected 

activity. The filing of a second step in the grievance procedure was not 

shown to be in any way related to notification of an alleged danger or 

safety or health violation. 

The Act protects the miner when he makes notification of an alleged 

danger or safety or health violation. Protected activity does not consist 

of allowing Haro to fill out the safety slips in any manner that he may 

have felt was the proper way, The manner in which the safety slip was 

required to be filled out was respondent 0 s prerogative. Although the 

method may have limited Haro 1 s "freedom of choice", it was, nevertheless, 

the legitimate exercise of a managerial right of the respondent, 

Substantial evidence is convincing that Haro was suspended and 

reprimanded because respondent decided that Haro was insubordinate and 

failed to follow company policies in filling out safety slips, and also 

that Haro left his work area without permission of a supervisor. 

Respondent's decision was not an unreasonable one based.on the evidence. 

CONCLUSION 

I find that the complainant, William A. Haro, has failed to sustain 

his burden of showing that his five day suspension and reprimand were 

motivated in any part by protected activity. 

ORDER 

The complaint is dismissed. 

1355 
Distribution 

Thomas G. Martin, Esq. 

1601 North Stone 

Tucson, Arizona 85705 

N. Douglas Grimwood, Esq. 

Twitty, Sievwright & Wright 

1700 TowneHouse Tower 

100 West Clarendon 

Phoenix, Arizona 85013 

1356 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Jlll 23111 

SECRETARY OF LABOR, 

1!1.INE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 82-68 

Petitioner A.C. No. 42-00081-03032 V 

v. 

CO-OP MINING COMPANY, 

Respondent 

Docket No. WEST 82-69 

A.C. No. 42-00081-03033 V 

Appearances: 

Before: 

DECISION 

Docket No. WEST 82-101 

A.C. No. 42-00081-03034 

Co-op Mine 

Katherine Vigil, Esq., Of of the Solicitor, U.S. Department of Labor, Denver, 

Colorado, for Pet ioner1 

Carl E. Kingston, ., Salt Lake City, 

Utah, for Respondent. 

Judge Melick 

These consolidated cases are before me upon petitions 

for assessment of civil penalty under sqction llO(a) of the 

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

et~., the "Act, 11 in which the Secretary has proposed 

penalties against the Co-op Mining Company (Co-op) of 

$1,094 for three violations of mandatory standards. The 

general issues are whether the Co-op Mining Company (Co-op) 

has violated the regulations as alleged in the petitions 

and, if so, whether the violations were "significant and 

substantial." Appropriate civil penalties must also be assessed for any violations found. Hearings in these cases 

were held on May 13, 1982. 

Docket No. WEST 82-68 - Order No. 1023129 

The validity of Order No. 1023129, issued under section 

104(d) (1) of the Act not in itself at issue in this civil 

penalty proceeding, but only the violation charged therein. 

Secretary v. Wolf Creek Collieries Company, PIKE 78-70-P 

(March 26, 1979); Pontiki Coal Corporation v. Secretary, 1 

FMSHRC 1476 (October 1979). 

1357 
The order alleges a violation of the mandatory standard 

at 30 CFR section 75.305. That standard provides in relevant part as follows: 

"In addition to the preshift and daily examinations 

required by this subpart D, examinations for hazardous conditions, including tests for methane, 

and for compliance with the mandatory health or 

safety standards, shall be made at least once each 

week by a certified person designated by the operator in the return of each split of air where it 

enters the main return, on pillar falls, at seals, 

in the main return, at least one entry of each 

intake and return aircourse in its entirety, idle 

workings, and, insofar as safety considerations 

permit, abandoned areas. * * * A record of these 

examinations, tests, and actions taken shall be 

recorded in ink or indelible pencil in a book 

approved by the Secretary kept for such purpose 

in an area on the surface of the mine chosen by 

the mine operator to minimize the danger of destruction by fire or other hazard, and the record 

shall be open for inspection by interested persons." 

The Order reads as follows~ 

There was no evidence of the weekly examinations 

of the return aircourse or intake and the book 

provided on the surface for this purpose was 

not filled out for the week of 8/18/81 and 

8/26/81 and 9/2/81. Thus, the last examination of intake and return in its entirety 

was preformed [sic] on 8/12/81. 

The order appears to charge two separate violations of 

the cited standard, i.e. (1) a failure to perform the weekly 

examinations and (2) a failure to record such examinations. 

The operator conceded at hearing that the entries required 

by the cited standard had not been made in the examination 

books. The violation of that part of the standard is therefore proven as charged. Whether I find that the required 

inspections had nevertheless been made depends on my determination of the credibility of the witnesses. MSHA coal 

mine inspector John Turner testified at hearing that the 

examination book indeed did not have entries corresponding 

to weekly examinations required for the three week period 

August 15, 1981, through September 2, 1981. When Turner had 

shown the examination book to section foreman Kevin Peterson, Peterson acknowledged that the entries had not been 

made. Peterson, in fact, never claimed that the inspections 

had been made. 

1358 
3 

Mine Superintendent Bill Stoddard testif that 

shortly before the .MSHA inspection here at issue, he had 

assigned maintenance foreman Clyde White to perform the 

required weekly inspections. White reportedly told Stoddard 

that he had performed all of the required inspections, but 

merely failed to enter them into the designated book and 

failed to place his initials in the return aircourse as 

required by the cited standard. According to Stoddard, 

White also said that he had reported the results of his 

inspections to another foreman, Ken Defa, and that he 

assumed Defa was making the necessary book entries and was 

placing his (Defavs) initials in the return recurse even 

though Defa had not performed the inspectionso 

Neither White nor Defa appeared at hearing to testify 

concerning these matters and no reason was given for their 

non-appearance. The statements attributed to them were, 

therefore, not given under oath nor subjected to the scrutiny of cross examination. Under all the circumstances, I 

can accord but little weight to this self-serving hearsay. 

On the other hand, it may reasonab be inferred from the 

absence of the required entries in the examination book and 

from the absence of an inspector's initials in the return 

aircourse that the required inspections had never been made. 

The violations have accordingly been proven as charged. 

Whether these violations were "signi cant and substantial", however, depends upon whether they could be a major 

cause of a danger to safety or health and whether there 

existed a reasonable likelihood that the, hazard contributed 

to would result in an injury or illness of a reasonably 

serious nature. Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC 822 (1981). The test essentially 

involves two considerations: (1) the probability of resulting injury, and (2) the seriousness of the resulting injury. 

If the weekly examinations had actually been performed 

here and the only violation was the failure to record those 

examinations, then that violation would undoubtedly not have 

been "significant and substantial". That, however, is not 

the case. According to Inspector Turner, other required 

inspections made at the Co-op Mine on a daily basis_ would 

cover all areas but the return entries. Only the weekly 

exam required by the cited standard provides for inspection 

of the return entry. Moreover, there is no dispute that the 

weekly examination of the return entry could lead to discovery of roof falls that might hinder ventilation of the 

working areas of the mine, defective air stoppings, and coal 

1359 
4 

dust and methane. Although methane has never been detected 

at the cited mine an~ inadequate ventilation through the· 

return entry can be detected by other inspections and tests 

such as inspection of the exhaust fan chart, and the ventilation and methane tests made during pre-shift examinations 

and every 20 minutes during production, these factors do not 

in my opinion detract from the significance of the weekly 

inspection. Clearly, if these other inspections were handled 

in as negligent a manner as the weekly inspections, there is 

a good chance that the extremely hazardous conditions described by the inspector could escape undetected. If accumulations of float coal dust remain undetected, there is no 

disagreement that the risk of an explosion and resultant 

serious injury or death to the eight miners ordinarily 

working underground is greatly increased. Accordingly, I 

find that the violation was "significant and substantial" 

and constituted a serious hazard. 

I find also that the operator was negligent in failing 

over a rather long period of time to see that the inspections required by the cited standard were being performed. 

In determining the amount of penalty herein, I have also 

taken into consideration that the operator had an annual 

production of 141,000 tons of coal and had 20 employees. It 

also had a history of 104 violations over a recent 2-year 

period. Under the circumstances, I find that a penalty of 

$500 is appropriate. · 

Docket No. WEST 82-69 

At hearing, the parties moved for approval of a settlement agreement requesting a reduction in proposed penalties from $300 to $150. The parties provided sufficient 

information at hearing from which I determined that the 

proposed settlement was appropriate under the criteria set 

forth in section llO(i) of the Act. The motion for approval 

of settlement was accordingly granted. 

Docket No. WEST 82-101 

At hearing, Co-op requested to withdraw its Answer and 

agreed to pay the proposed penalty of $44. Under the circumstances, permission to withdraw was granted and a default 

decision entered. 

Order 

The Co-op Mining Company is hereby ordered to pay the 

following civil penalties within 30 days of the date of this 

decision: 

1360 
5 

Docket No. WEST 82-68 

Docket No. WEST 82-69 

Docket No. WEST 

$500 

$150 

$ 44 

Katherine Vigil, Esqo, Office of the Solicitor, DoSo Department of Labor 1585 Federal Building, 1961 Stout Street, 

Denver, CO 80294 

1361 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR JUL 261982 

SECRETARY OF LABOR, 

Petitioner 

v. 

SELLERSBURG STONE COMPA1TY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DECISION 

Civil Penalty Proceedings 

Docket No. LAKE 80-363-M 

AC No. 12~00109-050061 

Docket No. LAKE 80-364-M 

AC No. 12-00109-05007 

Appearances: Stephen P. Kramer, Esq., Office of the Solicitor 

U.S. Department of Labor, for Petitioner 

Edwin S. Sedwick, Esq., for Respondent 

Before: Judge William Fauver 

These consolidated proceedings were brought by the Secretary of 

Labor under section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et~· for assessment of civil penalties for 

alleged violations of mandatory safety standards. The case was heard at 

Louisville·, Kentucky. 

Having considered the contentions-of the parties and the record as 

a whole, I find that the preponderance ·of the r~liable, probative, and 

substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent operated an open-pit, multiplebench, crushed limestone operation in Clark County, Indiana; its products 

were regularly produced for sales or use in or substantially affecting 

interstate commerce. 

2. After material was blasted from the side of the quarry ("primary 

blasting"), a frontend loader was used to gather boulders that were too 

large to go through the stone-crusher. These were moved to the floor of 

the quarry where they were exploded by "secondary blasting." 

3. "Secondary blasting" involved: a) drilling a hole into-a boulder 

with a jackhammer drill; the hole was about 1 inch x 18 inches; b) loading 

the hole with a 1-"inch x 4-inch stick of dynamite; adding a primer cord; 

and packing the hole with fine stones; and c) detonating the dynamite, in 

blasts of about 20 boulders at a time. The boulders were piled or grouped 

in a rather close cluster for drilling and blasting. 

1362 
4. In secondary blasting, at times a dynamite charge would not 

explode. After the blast, the standard safe practice in the industry was 

to inspect all boulders remaining to see whether any contained undertonated 

dynamite, and this inspection required turning the boulder over to drill 

all sides for a drill hole. However, Respondent did not follow the practice 

of turning boulders over, and relied upon visual inspection of the top 

and sides of a boulder. 

5. In secondary blasting, at various times some boulders would be 

turned over by the blast so that if a boulder were unexploded the drill 

hole might be on the bottom and not detectable unless the boulder was 

turned over for visual inspection. 

6. The boulders were about two to four feet in diameter, and 

usually the drill hole did not exit, so that there would be only one 

hole visible on a boulder. 

7. On December 13, 1979, two men were assigned to do secondary 

blasting. Carl Sparrow, the blaster, had about four or five months 

experience in blasting and David Hooper, the driller, had about three 

months experience. Neither was carefully or well trained in 

the performance of his duties. 

(a) That morning they inspected about 20 boulders; Hooper 

drilled them and Sparrow loaded them with dynamite and primer cord. At 

times Hooper helped pack or load a hole. 

(b) They set off a blast of about 20 boulders, and went to 

lunch. When they returned, Sparrow worked around his truck and Hooper 

started inspecting and drilling boulders. The first boulder he inspected 

had no visible drill hole, but he could not see the bottom. The boulder 

was about four feet in diameter and too heavy to turn over without 

equipment, such as a frontend loader. Respondent had such equipment, 

but did not use it or make it available for turning over boulders for 

inspection. He started drilling a hole.' When he was about halfway 

through the boulder it exploded. Hooper received permanent disabling 

injuries, including loss of the sight of one eye and a crippled leg. 

(c) Respondent did not preserve the accident site; after 

Hooper was taken to the hospital, all evidence of the accident was 

removed or disturbed and normal mining was resumed. 

(d) Respondent did not report the accident to MSHA by telephone 

or by other prompt means. Its first notice to MSHA was a Form 

70001, mailed to MSHA's Vincennes, Indiana subdistric~ office on January 

2, 1980. 

1363 
DISCUSSION WITH FURTHER FINDINGS 

The Secretary has alleged three violations. The first citation 

charges a violation of 30 CFR § 56.6106, which provides: 

Faces and muck piles shall be examined by a competent 

person for undetonated explosives or blasting agents 

and any undetonated explosives or blasting agents 

found shall be disposed of 

Respondent did not properly examine the muck pile after secondary 

blasting, because after such blasting it drilled boulders without turning 

them over to examine each boulder for a dynamite drill hole on the 

bottom of the boulder. This failure was contrary to standard safe 

practice in the industry, and violated 30 CFR § 56.6106. Respondent's 

practice constituted gross negligence and a grave risk of drilling into 

a dynamite charge because the driller would not know whether a boulder 

had a dynamite charge that had failed to fire. I reject Respondent's evidence to 

the effect that the blast of a boulder could not move nearby boulders or 

turn them over. I also ect Sparrow's testimony that he had found a 

drill hole in the boulder that exploded and injured Hooper, and that he 

had ordered Hooper not to drill into that boulder. I credit Hooper's 

account of the facts and accident, including the fact that he had inspected 

the boulder before drilling and found no drill hole, that he .drilled 

nearly halfway through the-boulder when it exploded, that often boulders 

were piled on one another and a secondary blast moved boulders around 

and over. 

This was a most serious violation resulting from gross negligence. 

The second citation alleges a violation of 30 CFR § 50.12, which provides: 

Unless granted permission by an MSHA District 

Manager or Subdistrict Manager, no operator may 

alter an accident site or an accident related 

area until completion of all investigations 

pertaining to the accident except to the extent 

necessary to rescue or recover an individual, 

prevent or eliminate an imminent danger, or 

prevent destruction of mining equipment. 

This regulation implements § 103(j) of the Act, which states in applicable 

part: 

1364 
In the event of any accident occurring in 

any coal or .. other mine, the operator shall 

notify the Secretary thereof and shall take 

appropriate measures to prevent the 

destruction of any evidence which would 

assist in investigating the cause or causes thereof. 

No effort was made to preserve the accident site. The jackhammer 

and air compressor were removed and normal blasting operations were 

resumed. Nothing was left to indicate that an accident had happened. 

The investigators could not tell where the accident occurred, the actual 

number of rocks involved, the location of the accidental blast in 

relationship to the planned blast, the location of the jackhammer and 

air compressor, etc. MSHA's permission was not obtained to alter the 

accident site, nor was there a need to alter the site to recover Mr. Hooper 

or to avoid destruction of mining equipment. No imminent danger existed 

after the explosion. Respondent's conduct violated 30 CFR § 50.12, and 

by the exercise of reasonable care this violation could have been avoided. 

Respondent was therefore negligent. 

This was a serious violation. Failure to preserve the accident site 

hindered MSHA 1.s function of investigating the cause of the accident and of 

identitying and recommending steps to prevent or avoid a similar accident. 

The third citation charges a violation of 30 CFR § 50.10', which provides: 

If an accident occurs, an operator shall 

immediately contact the MSHA DistricS or 

Subdistrict Office having jurisdiction 

over its mine. If an operator cannot 

contact the appropriate MSHA District ' 

or Subdistrict Office it shall immediately 

contact the MSHA Headquarters Office in 

Washington, D.C., by telephone, collect 

at (202) 783-5582. 

This provision reasonably implies that an operator is required immediately 

to telephone or use other prompt means, e.g., a telegram, to notify the MSHA 

District or Subdistrict Office. 

1365 
Notice by mail involves a substantial delay in contacting MSHA. MSHA 

Form 7000-1 is a separate and independent reporting requiremen~ The 

information on that form is used for different purposes than the notification 

required under § 50.10. Respondent violated § 50.10 by failing to telephone 

or at least telegraph the proper MSHA office on the day of the accident. A 

violation of this kind has a serious effect on MSHA's ability to conduct an 

effective investigation. The accounts of witnesses in this case involved a 

number of contradictions, which the inspectors were impeded in resolving 

primarily because they were unable to investigate the incident in a timely 

fashion. This violation resulted from management's negligence. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction over the parties and subject 

matter of this proceeding. 

2. On December 13, 1979, Respondent violated 30 CFR § 56.6-106 as 

alleged in Citation No. 36811. Based upon the statutory criteria for 

assessing a civil penalty, Respondent is assessed a penalty of $7,500 for 

this violation. 

3. On December 13, 1979, Respondent violated 30 CFR § 50.12 as alleged 

in Citation No. 367185 as modified. Based upon the statutory criteria for 

assessing a civil penalty, Respondent is assessed a penalty of $1,000 for 

this violation. 

4. On December 13, 1979, Respondent violated 30 CFR § 50.10 as alleged 

in Citation No. 366810 as modified. Based upon the statutory criteria for 

assessing a civil penalty, Respondent is assessed a penalty of $1,000 for 

this violation. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the Secretary of 

Labor the above-assessed civil penalties, in the total amount of $9,500.00, 

within 30 days from the date of this decision. 

Ul~~vM__ WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

Stephen P. Kramer, Esq., and Thomas A. Mascolino, Esq., US Department of 

Labor, Office of the Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203 

Edwin S. Sedwick, Esq., 100 Heritage Bldg., Sellersburg, IN 47172 

1366 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WADE G. TEETS, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. WEVA 82-·153-D 

EASTERN ASSOCIATED COAL CORPORATION, 

Respondent 

Federal No. 1 Mine 

DEFAULT DECISION 

The complaint in the above-entitled proceeding was filed on February 8, 

1982, under section 105(c)(3) of the Federal Mine and Health Act of 

1977. Inasmuch as the complaint was filed without benefit of legal advice, 

I wrote a letter to complainant on March 18, 1982, explaining to him the 

procedures which would be used in holding a hearing and deciding the issues 

raised by his complaint. The letter also requested that complainant notify 

me by May 20, 1982, whether he expected to obtain an attorney to represent 

him at the hearing. The letter emphasized that it was necessary for him to 

decide before the case was set for hearing whether he intended to obtain an 

attorney so that the hearing would not be delayed after a date for the hearing had been scheduled in a formal notice of hearing. The letter also explained to complainant that it would be necessary for him to answer the 

questions or interrogatories served upon him by respondent's attorney and 

explained the procedures he should follow in the event he wished to ask 

questions of respondent's personnel. Finally, the letter advised complainant that if he failed to respond to my request as to whether he expected to 

obtain an attorney, that he would receive a show-cause order requiring him 

to explain in writing why he should not be found to be in default and why 

his complaint should not be dismissed. 

A return receipt shows that complainant received my letter on March 22, 

1982, but complainant did not reply in any way to the letter of March 18, 

1982. Therefore, on July 1, 1982, a show-cause order was issued requiring 

complainant to explain in writing by July 20, 1982, why he should not be 

found to be in default and why his complaint should not be dismissed for 

failure to reply to my request of March 18, 1982. The return receipt shows 

that complainant received the show-cause order on July 6, 1982, but complainant has submitted no response to the show-cause order. 

Counsel for respondent filed on July 6, 1982, a motion for sanctions 

pursuant to Federal Rule of Civil Procedure 37(d) and 29 C.F.R. § 2700.l. 

Federal Rule 37(d) provides in pertinent part as follows: 

(d) Failure of Party to Attend at Own Deposition or Serve 

Answers to Interrogatories or Respond to Request for Inspection. 

If a party or an officer, director, or managing agent of a party 

or a person designated under Rule 30(b)(6) or 31(a) to testify 

1367 
on behalf of a party fails (1) to appear before the officer who 

is to take his deposition, after being served with a proper 

notice,*** the· court in which the action is pending on motion 

may make such orders in regard to the failure as are just, and 

among others it may take any action authorized under paragraphs 

(A), (B), and (C) of subdivision (b)(2) of this rule. In lieu 

of any order or in addition thereto, the court shall require the 

party failing to act or the attorney advising him or both to pay 

the reasonable expenses, including attorney's fees, cause.d by 

the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust, 

The failure to act described in this subdivision may not be 

excused on the ground that the discovery sought is objectionable 

unless the party failing to act has applied for a protective 

order as provided by Rule 26(c), 

The motion for sanctions correctly states that respondent duly filed 

interrogatories on complainant and obtained an order for leave to initiate 

discovery after expiration of the 20-day period provided for in section 

2700.SS(a) because the complaint in this proceeding was not served on 

respondent until March 3, 1982, although it had been filed with the 

Commission on February 8, 1982, Respondent 1 s counsel then asked complainant 

to provide a date for taking his deposition, When complainant failed to 

respond to that request, respondent scheduled the deposition for April 29, 

1982. That date was changed to May~. 1982, after complainant's ·wife 

advised respondent's counsel that complainant was sick and unable to be 

present on April 29. Complainant's wife thereafter advised respondent's 

counsel that complainant would not be well enough to attend the deposition 

rescheduled for May 6. The time for completion of discovery was consented 

to by complainant and I issued an order on May 18, 1982, extending the 

time for completion of discovery to June 30, 1982, A new date of June 8, 

1982, was set for the deposition and complainant was served with a notice 

of deposition. 

The motion for sanctions further states that respondent's counsel 

traveled by automobile from Pittsburgh, Pennsylvania, to Fairmont, West 

Virginia, for taking complainant's deposition. A court reporter also 

appeared at Fairmont on June 8, 1982, in order to record the deposition, 

but complainant failed to appear. The motion therefore requests that 

complainant be required to pay the expenses of the court reporter, the 

mileage fees, and attorney's fees, or a total of $439.75, incurred by 

respondent in its fruitless attempt to take complainant's ·deposition. 

Complainant has filed no answer in reply to respondent's motion for 

sanctions. 

Rule 37(d) provides that a judge may require a party to pay the expenses associated with failure to appear at an appointed place for taking 

of a deposition if the judge elects not to take the action provided for 

1368 
under Rule 37(b)(2), paragraphs (A), (B), or (C). Paragraph (C) provides 

that a judge, for fai1ure of a party to appear at a deposition, may issue: 

(C) An order out pleadings or parts thereof, or 

staying further proceedings until the order is obeyed, or dismissing the action or pro or any part thereof, or rendering a judgment by default against the disobedient party; 

Although complainant did finally appear on June 22, 1982, for the purpose of giving a deposition in connection with the issues raised in this 

proceeding, respondent's counsel has filed copies of two different letters, 

the last one having been filed on July 21, 1982, in a futile attempt to 

persuade complainant to check the deposition for errors and return a signed 

copy of it to respondent 1 s attorney, 

Section 2700.63 that when a party fails to comply with an 

order of a judge or these rules, an order to show cause shall be directed 

to the party before the of any order of default or dismissal. As indicated above, a show-cause order was duly directed to complainant on July 1, 

1982, requesting that he why he should not be found to be in default for failure to comply with my request of March 18, 1982, to the effect 

that he advise me as to whether he intended to obtain an attorney to represent him in this proceeding. He has at no time replied to any of my requests for information and he has been uncooperative in providing the information properly requested by respondent's counsel under the Commission's 

discovery procedures. 

Section 2700.l of the Commission's rules provides that a judge may be 

guided by the Federal Rules of Civil Procedure on procedural matters not 

regulated by the Commission's rules. I believe that complainant's failure 

to appear at the place scheduled for his deposition after respondent's 

attorney had already rescheduled the time for the on two previous dates should also be considered as a ground for finding complainant in 

default. I find complainant to be in default pursuant to section 2700.63(a) 

of the Commission's Rules and Rule 37(b)(2), paragraph (C), of the Federal 

Rules of Civil Procedure. 

WHEREFORE, for the reasons hereinbefore given, it is ordered: 

(A) The motion for sanctions filed on July 6, 1982, is granted, but 

the relief given is granted under Federal Rule 37(b)(2), paragraph (C), 

instead of the alternative relief requested by respondent of ordering complainant to pay the cost of the deposition pursuant to Rule 37(d), 

(B) The complaint filed in Docket No. WEVA 82-153-D is dismissed, 

1369 

~e9ie!13t;!h- Administrative Law Judge 

(Phone: 703-756-6225) 
Distribution: 

Mr. Wade G. Teets, Route 1, Box 148, Fairmont, WV 26554 (Certified 

Mail) 

R. Henry Moore, Esq., Attorney for Eastern Associated Coal Corp., 

Rose, Schmidt, Dixon & Hasley, 900 Oliver Building, Pittsburgh, PA 

15222-5369 (Certified Mail) 

1370 
FEDERAL MINE SAFETY· AND HEAL TH REVIEW COMMISSION 

OFFICE Of" ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUL 281982 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

CIVIL PENALTY PROCEEDINGS 

Docket No. YORK 81-67-M 

AoCo NOo 18-00481-05007 

Vo 

A. Ho SMITH, 

Appearances: 

Before: 

Petitioner 

Respondent 

DECISION 

Docket No. YORK 82-5-M 

AoCo NOo 18-00481-05008 

Brandywine Pits and Plant 

Covette Rooney, Esqo~ Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania 

for Petitioner; 

Wheeler Green, Branchville, Maryland for Respondent 

Judge Melick 

These cases are before me upon petitions for assessment of civil 

penalties under section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. section 801, et seq., the "Act," alleging violations of mandatory health and safety standards. The general 'issues are whether A.H. Smith 

(Smith) has violated the regulations as alleged in the petitions filed herein, 

and, if so, whether those violations are ''significant and substantial". An 

appropriate civil penalty must also be assessed for any violation found. 

Contested Citations 

Citation No. 302475 charges a violation of the mandatory standard at 30 

C.F.R. section 56.5-50, specifically alleging that the noise level around the 

operator of the "clam" shovel was 189% of the permissible limit. According 

to the charges, neither feasible engineering nor feasible administrative controls were being used to reduce the level of noise to eliminate the need for 

personal hearing protection. The citation was issued on July 19, 1978, and 

the operator was initially given until September 20, 1978, .to' abate the con~ 

dition. Further extensions were granted as follows: (1) on February 1, 1979, 

an extension was granted to April 18~ 1979, on the grounds that sound absorption material had been ordered by the operator but had not yet arrived; (2) 

on May 2, 1979, an extension was given to July 10, 1979, because the sound 

1371 
aborption material had still not arrived; (3) on August 1, 1979, an extension 

was granted to August 21, 1979, after a noise survey performed on July 31, 

1979, showed that the noise level around the operator of the cited shovel 

was 196% of the permissible limit (at the time of that survey, a sound barrier curtain had been installed but apparently had not been installed tightly 

against the ceiling and walls of the cab); (4) on February 6, 1980, an extension was granted to March 26, 1980, because the plant had been shut down and 

the inspector was therefore unable to perform a noise survey; (5) on June 4, 

1980, an extension was granted to July 3, 1980, because the shovel had broken 

down and the noise survey could not be completed. 

Precisely one year later, on June 4, 1981, a section 104(b) withdrawal 

order J:j was issued (Order No. 312018). The order provided as follows: 

"No apparent effort was made by the operator to reduce the 

noise level of the Manitowac clam shovel in order to eliminate the need for hearing protection on five previous attempts to survey this machine. It either broke down early 

in the survey or was not running at all during an inspect ion of this plant. The operator had insulated curtains 

installed on the shovel but they were not being used. The 

noise level on the shovel was 192% of the permissible limit 

at 5 hours of the survey when this machine went out of service again. Ear plugs [sic] worn by operator of shovel. 

Four days later, on June 8, 1981, the withdrawal order was modified after 

the soundproof curtains were reinstalled by the operator and a muffler was 

placed over the exhaust. A sound level meter indicated a reduction in noise 

levels from "102 dBA's to 92 dBA's". Additional controls were accordingly 

required to bring the noise level to within permissible limits. No subsequent action has apparently been taken on this equipment as the operator has 

withdrawn it from service. 

There is no dispute in this case that the cited Manitowac shovel emanated 

noise levels above those permitted by the cited regulation, and indeed, that 

the shovel emanated noise when first cited at 189% of the permissible level. 

Smith's principal defense rests upon the language of the cited regulation 

which provides in part as follows: 

1/ Withdrawal orders may be issued pursuant to section 104(b) of the Act 

~fter a violation has been cited under section 104(a) and .has not thereafter 

been time abated. The validity of the section 104(b) withdrawal order is 

not in itself at issue in this civil penalty proceeding. Insofar as the order 

concerned a failure to abate the cited violation, however, it may be relevant 

evidence under section llO(i) of the Act in determining the amount of any 

penalty that may be imposed. 

1372 
When employees' exposure exceeds that listed * * *, feasible 

administrative or engineering control shall be utilized. If such 

controls fail to reduce exposure to within permissible levels, 

personal protection equipment shall be provided and used to reduce 

sound levels to within the levels of the table. 

MSHA contends that feasible engineering and administrative controls 

did exist and the operator failed to implement them. Smith maintains, 

on the other hand, that the proposed administrative and engineering controls 

were not, and are not now, feasible, emphasizing that such controls are not 

economically viable under the circumstances. 

As I observed in Secretary of Labor v. Callanan Industries Inc. 3 

FMSHRC 168, pet. for rev. granted February 

The term "feasible" as used in a similar noise standard 

promulgated in regulations under the Occupational Safety and 

Health Act (29 CFR section 1910.95(b)(l)) has been judicially 

construed to include economic feasibility. RMI Company Vo 

Secretary of Labor, et al., 594 F.2d 566 (6th Cir. 1979); 

Turner Company v. Secretary of Labor, 561 F.2d 82 (7th Cir. 

1977). In determining such feasibility? the court in RMI 

approved of the cost-benefit analysis employed by the 

Occupational Safety and Health Review Commission (OSHRC) in 

the case of Continental Can Company~ 1966 through 1967 

CCH OSHD ~[21,009 4 BNA OSHC 1541 (1976). The OSHRC stated 

therein that the standard should ,be interpreted to require 

those engineering and administratlve controls which are 

economically as well as technically feasiQle. Controls may 

be economically feasible even though they are expensive and 

increase production costs. But they will not be required 

without regard to the costs which must be incurred and the 

benefits they will achieve. 

In determining whether controls are economically feasible, all the relevant 

costs and benefit factors must be weighed. [Citations omitted.] In setting 

forth a general test to be followed in determining economic feasiblity, the 

court in RMI stated as follows: 

The benefits to oyees should weigh heavier on the 

scale than the cost to employers. Controls will not necessarily be economically infeasible merely because they are 

expensive. But neither will controls necessarily be · 

economically feasible merely because the employer can 

easily (or otherwise) afford them. In order to justify the 

expenditure, there must be a reasonable assurance that there 

will be an appreciable and corresponding improvement in 

working conditions. The determination of how the cost benefit balance tips in any given case must necessarily be made 

on an ad basis. We do not today prescribe any rigid 

1373 
formula for conducting such analysis. We only insist that 

the Secretary and the OSHRC on review, weigh the costs of 

compliance against the benefits expected to be achieved 

thereby in order to determine whether the proposed remedy 

is economically feasible. RMI, at pages 572-573. 

[See also Samson Paper Bag CO:-, ENA OSHC 1515, 1980 

CCH OSHD, 24,555 (No. 76-222, 1980)]. 

Just as in the Callanan case, I find in this case that the test applied 

by the OSHRC to essentially the same regulatory standard is relevant and 

reasonable and, in the the absence of precedent from the Mine Safety and 

Health Review Commission, I apply that test to the facts of this case. As 

I also observed in the Callanan case, the Federal Circuit Court in the Ri~I 

decision, again citing OSHRC decisions on point, also concluded that 

Secretary has the burden of proving both the technologic and economic 

feasibility of the proposed controls and of showing that a violation of the 

noise standard has occurred. RMI at page 574, Anaconda Aluminum Coo, 

9 ENA OSHC 1960, 1981 CCR OSHD , o 13102, 1981)0 See also 

Administrative Procedure Act, section 7(d), 5 u.s.c. section 566(d) and 

Diebold Inc. v. i1arshall, 585 F.2d 1327, 1333 (6th Circuit 1978). I find 

in this case that MSHA has that burden here. 

The precise question before me. then, is whether MSHA has met its burden 

of proving the feasibility of the controls proposed in this case. I find that 

it has. MSHA specialist John Radomski testified at hearing in this 

that, based on his experience with many shovels similar to the Manitowac clam 

shovel here cited, noise reduction in the cab area of such shovels can 

easily and economically be attained by installing a sound barrier between the 

motor and cab area and by installing glass or plexiglass windows in 

the cab. Radomski testified that he knew of several diesel shovels under 

similar circumstances that had been brought into compliance with the noise 

standard by the installation of a sound barrier alone. According to Radomski, 

for $100 or less the operator could have constructed his own barrier made of 

plywood and soundproof material or, for $400 to $500, the operator could have 

purchased an installed prefabricated sound barrier curtain. Prefabricated 

curtains were then available on the market and at the time the citation was 

issued Radomski provided Mine Superintendent Dennis Critchley with the name 

and address of a company producing such curtains. Radomski also concluded 

that it would cost $100 to $200 to install safety glass in the windows of the 

cited shovel. Finally, Radomski concluded that if the sound proof barrier 

and glass windows were not sufficient to bring the shovel into compliance, most certainly the addition of a muffler costing from $50 to $100 

(installed cost) would bring the shovel into compliance. According to 

Radomski's calculations based on 1978 cost estimates, the operator could have 

brought the cited shovel into compliance with the cited standard for $600 or 

less. 

By way of defense the operator argues that the actual cost of the sound 

proofing material alone was $948.70. While the operator does not challenge 

1374 
the cost estimates cited by Inspector Radomski for the purchase and installation of safety glass and a muffler, it nevertheless maintains that the proposed engineering controls were economically infeasible. I disagree. Even 

assuming, as the operator contends, that the soundproofing material cost 

$948.70, and that a muffler would cost $100, safety , $200, and additional labor costs, $150, I do not find this economic burden unreasonable 

to bring the cited shovel into compliance. In reaching this conclusion, 

I find from the uncontradicted testimony of Inspector Radomski that other 

similar shovels have been brought into compliance with similar or even less 

modification. Accordingly, I find on the facts of this case ample assurance 

that there would be full compliance with the standard resulting from a relatively modest outlay of financial resources. 

I find, in addition, that the administrative controls proposed by MSHA 

were also feasible. Based on his analysis of the noise level, Inspector 

Radomsky concluded that the cited shovel could be operated in compliance with 

the standard by utilizing two shovel operators, each on a four hour shift. 

According to Radomski, the operator of the cited shovel was then being paid 

less than $5 an hour, although the normal pay for that job was then between 

$7 and $10 an hour. He observed that Smith also employed other skilled 

workers such as truck drivers, front end loaders, and two other shovel operators. Industry pay scale for loader operators was then from $7 to $9 an 

hour. Within this framework it appears that other multiskilled workers then 

employed by Smith or newly hired could have been rotated to work the cited 

shovel on four-hour shifts and to op.erate other equipment for the remainder 

of their shift without any additionai cost (or with only minimal additional 

cost) to the mine operator. Under al~ the circumstances, I find that the 

Secretary has carried his burden of proving the violation of the standard at 

30 CFR section 56.SO(b) as alleged. Anaconda Aluminum Co., supra. 

Whether that violation was "significant and. substantial" depends on 

whether that violation could be a major cause of a danger to safety or health 

and whether there existed a reasonable likelihood that the hazard contributed 

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

Secretary v. Cement Division, National Gypsum Co., 3 FMSHRC 822 (1981). In 

this regard, Inspector Radomski testified that the exposure of the shovel 

operator to the level of noise cited would result in hearing loss over a 

period of time. He admitted that he did not know how long such an exposure 

would be required to result in hearing loss but speculated that it would be 

more than five years continuously. No scientific or medical evidence was 

produced to substantiate Radomski's testimony in an area that indeed requires 

some specialized expertise. The inspector's testimony in this regard is 

particularly inadequate in light of the evidence that the shovel operator was 

apparently wearing personal hearing protection. In light of this, and the 

• rather speculative testimony offered, I cannot properly assess the probabilities. I do not find therefore that the evidence as presented in this case 

is sufficient to demonstrate that the cited violation was "significant and 

substantial" under the National Gypsum test. For the same reasons, I do 

not find sufficient evidence to establish a high level of gravity. 

1375 
I do find, however, that the operator was negligent in regard to this 

violation in failing to conduct its own noise survey on equipment that, based 

upon the undisputed noise levels found, must obviously have been emanating 

excessively high noise levels. Also significant in this case is the lack 

of good faith shown by the operator herein in failing to achieve compliance 

after notification of the violation. The citation was issued on July 19, 

1978, and the violation still had not been abated nearly three years later 

when the section 104(b) withdrawal order was issued on June 4, 1981. While 

Smith did apparently purchase over $900 in noise abatement material during 

this time, it did not put forth a genuine effort to properly install that 

material. In determining the amount of penalty, I have also considered the 

operator's previous history of seventeen violations and that the operator is 

small in size. No evidence has been submitted to indicate that the operator 

would be unable to pay the penalties here assessed. Under all the circumstances, 

I find that a penalty of $300 is appropriate for the violation. 

Citation No. 311781 alleges a violation of the mandatory safety standard 

at 30 C.F.R. section 56.9-3. The citation alleges as follows: 

Both accuators [sic] on the rear wheels of the 980-B F.E.L. 

were not working. When running the F.E.L. at normal rate of speed, 

the loader traveled a distance of 8 feet to 10 feet before coming 

to a stop. This test was conducted on a flat surface. 

The cited standard provides only t.hat "powered mobile equipment shall be 

provided with adequate brakes". As I stated in the case of Secretary v. 

Concrete Materials, Inc. 2 FMSHRC 3105 (1980): 

The language of the cited standard, i.e., that "powered 

mobile equipment shall be provided with adequate brakes," 

indeed does not afford any concrete guidance as to what is to 

be considered "adequate brakes." A regulation without ascertainable standards, like this one, does not provide constitutionally adequate warning to an operator unless read to 

penalize only conduct or conditions unacceptable in light of 

the common understanding and experience of those working in 

the industry. Cape and Vineyard Division of the New Bedford 

Gas and Edison Light Company v. OSHRC, 512 F.2d 1148 (1st Cir. 

1975); National Dairy Corporation, supra, United States v. 

Petrillo, 332 U.S. 1, 67th S.Ct. 1538, 91 L.Ed. 1877 (1947). 

Unless the operator has actual knowledge that a condition or 

practice is hazardous, the test is whether a reasonably 

prudent man familiar with the circumstances of the industry 

would have protected against the hazard. Cape and Vineyard, 

supra. The reasonably prudent man has recently been defined 

as a "conscientious safety expert seeking to prevent all 

hazards which are reasonably foreseeable. 11 General Dynamics 

Corporation, Quincy Shipbuilding Division v. OSHRC, 599 F.2d 

453 (1st Cir. 1979). 

1376 
The initial question before me, then, is whether Smith knew that the 

operation of the front end loader with brakes in the cited condition would 

be hazardous or whether a conscientious safety expert would have protected 

against the brake conditions existing here because they presented a reasonably foreseeable hazard. The undisputed testimony of MSHA inspector Walter 

McGinn was that the brake actuators for the rear wheels of the cited front 

end loader were simply not working. He observed that the operator of the 

front end loader was not even bothering to apply his brakes but was using 

the reverse gear to stop. The machine operator admitted to McGinn that the 

brakes were not working. In a test the front end loader was driven at a 

"normal rate of speed" which was not more than five miles per houro 

Inspector McGinn observed that the vehicle continued to travel some 8 to 

10 feet after application of its brakes. According to McGinn, the loader 

should have stopped within one foot under the conditions of the test. When 

McGinn returned to abate the violation two weeks later, he observed that new 

brake actuators had been installed on the rear wheels, that the brakes functioned properly, and that the vehicle stopped "right away" upon application 

of the brakes. Within this framework of evidence, it is clear Smith had 

sufficient knowledge that the brakes on the cited front end loader were not 

"adequate" in the context of the cited standard. I also conclude that Smith, 

and any conscientious safety expert, would have recognized the hazardous 

nature of the brakes in the cited condition. 

The essentially undisputed testimony of Inspector McGinn, noted above, 

also provides ample proof of the violation. I further find that Smith was 

negligent in allowing this equipment to continue operating with defective 

brakes, a condition admittedly known to the machine operator. I find, moreover, that the hazard presented by the defective brakes was serious. It is 

undisputed that at the time McGinn issued the-citation, there were three 

vehicles in the area of the front end loader and that the three drivers were 

walking about in the same general vicinity. Under the circumstances, I find 

that injuries of a serious nature were likely to occur. The violation was 

accordingly also "significant and substantial." Secretary v. Cement Division 

National Gypsum Company, Supra., 3 FMSHRC 822. Under the circumstances and 

considering the criteria under Secion llO(i) of the Act, I find that a penalty 

of ~150 is appropriate for the violation. 

Settlement Motion 

Prior to hearings in these cases, the Secretary filed·a motion for 

approval of a settlement agreement with respect to eight of the nine citations set forth in Docket No. YORK 81-67-M. The Secretary had initially 

proposed penalties of $738 for those eight violations. A reduction in penalties to $506 was proposed. I have considered the representations and documentation submitted in connection with the motion and I conclude that the 

prof erred settlement is appropriate under the criteria set forth in section 

llO(i) of the Act. Accordingly, the motion for approval of settlement is 

granted. 

1377 
ORDER 

Docket No. YORK 81-67-M 

It is ORDERED that Respondent, A. H. Smith, pay a penalty of $906 within 

30 days of the date of this decision. 

Docket No. YORK 82-5-M 

It is ORDERED that Respondent, A. H. Smith, p y a penalty of $150 within 

30 days of this decision. 

Distribution (by certified mail): 

Covette Rooney, Esq., Office of the Solicitor, UoSo Department of Labor, 

Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

Wheeler Greene, A. H. Smith, Branchville, HU 20740 

1378 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG P1KE 

FALLS CHURCH, VIRGINIA 22041 JUL29191! 

SECRETARY OF LABOR ON BEHALF OF 

DANNY H. BRYANT, 

Complaint of Discrimination 

Complainant 

v. 

CLINCHFIELD COAL COMPANY, 

Respondent 

Docket No. VA 80-162-D 

Kennedy 

STATE:t:IENT OF THE CASE .•.••.•.•.•••••.•.•• , .•........... , . . . . . . . l 

ISSUES PRESENTED ••• '°' •••••••••••••••• o o ••••••• o • o o o °' o o o ,,, o o o • (l o o ., ,, 3 

FINDINGS OF FACT .. o ... o "' • o o " o., Q (l '°' Q Q • o •• o o ., ., (> o o • o ., " o ,,, ..... ·) o e o " o o o o o o o L~. 

Management Animus .•...•.... ., •..•..•.......•...•.•.• ,.,..... 4 

The Incident With The Julie Car............................ 8 

The Jack and J ackbar .... ,,,, .•••.•..••.••. , .••.•....•.•• ~· 11 

The Fire Extinguisher. . . • • .. • • • • . . . . . . • . . . . . • • . • • . . • . • • 13 

The Safety Glasses •••.•.•••....••••• : ••• o o •• o ••• o ., ••• o o 14 

The June 1, 1979 Meeting............................... 16 

Bryant's Refusal to Set Jacks. . . • • • . • • • . . • . . . . • . • • • . . . . . • . . 18 

Fear of the Job •.•.•••••.•..•••.•...... o•••·•••o••o•oo 30 

Impaired Physical Condition........................... 32 

The Post Hoc Medical Evidence......................... 38 

The Wildcat Strike. • . • • • • • • • • • . . • • • • • • • . . . . . . • . • • • • • • . • . . • . 4 3 

Legality of the Wildcat Strike •.•••••.•.•••.••••.......•.•• · 58 

CONCLUSIONS OF LAW.............................................. 63 

OPINION. • • • • • • • • • • • • • .. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . 64 

ORDER. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 70 

1379 
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, Complaint of Discrimination 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VA 80-162-D 

ON BEHALF OF DANNY H. BRYANT, 

Complainant 

Vo 

CLINCHFIELD COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

James Ho Swain~ Esqo~ Office of the Solicitor 0 

U.S. Department of Labor, Philadelphia, Pennsylvania 

for Complainant; 

W. Challen Walling, Esq., Penn, Stuart, Eskridge and 

Jones, Bristol, Virginia, and Paul R. Thomson, Jr., Esq., 

The Pittston Coal Co. Group, Lebanon, Virginia, for 

Respondent. 

Judge Kennedy 

STATEMENT OF THE CASE 

The captioned complaint against reprisal presents the novel question 

of whether a miner's declared lack of competence and fitness to perform 

a temporary work assignment is a protected activity under section lOS(c)(l) 

of the Mine Safety Law. The operator considered the miner's conduct a 

transparent attempt to shirk an onerous and distasteful work assignment, 

charged him with insubordination and suspended him with notice of intent 

to discharge. 

1380 
Thereafter, the miner allegedly instigated a wildcat strike and the 

matter went to grievance and arbitration under the National Bituminous 

Coal Wage Agreement of 1978. The arbitrator found the miner's explanation 

for why he was too sick to work unconvincing. He further found the circumstantial evidence was persuasive of the fact that the miner encouraged 

and instigated a wildcat strike in support of his grievance. These combined 

instances of misconduct, he concluded, were just cause for the miner's 

discharge. 

While the matter was in arbitration, the miner filed a complaint for 

reprisal (discrimination) with the Department of Labor. After a field 

investigation, the Office of the Solicitor concurred in MSHA's finding 

that the miner's refusal to accept the temporary work assignment was a 

protected activity. Subsequently, a complaint ?lledging unlawful discharge 

and seeking reinstatement and back pay was filed by the Secretary with the 

Commission. The complaint charged the miner was suspended with intent to 

discharge for both an antecedent and an immediate refusal to work. The 

operator denied the charges and raised as a plea in bar the miner's violation of his no-strike pledge and failure to mitigate damages. See, 

Ford Motor Co. v. EEOC, U.S. , decided June 28, 1982; 

Constructors, Inc., 4 FMSHRC 791, 804-805 (1982). The Secretary's reponse 

was a denial that the miner instigated a wildcat strike. 

After extensive pretrial and discovery, the matter came on for an 

evidentiary hearing in Abingdon, Virginia on December 7, 8, and 9, 1981. 

The record was closed and the case submitted on April 1, 1982. 

1381 
ISSUES PRESENTED 

1. Whether a miner's discharge for refusal to accept a 

temporary work assignment was a pretext for firing him 

for antecedent protected activity. 

2. Whether a miner's refusal to accept a temporary assignment 

on the ground that performance of the task might impair 

his health is a protected activity under section lOS(c)(l) 

of the Mine Acti in the absence of a showing of a causal 

relation between a mine health or safety hazard and the 

refusal to work. 

3. Whether upon a showing that a miner had mixed motives in 

refusing work assignments,~the Secretary had the burden··of 

persuasively showing that the true motives for claimed 

protected refusals to work were untainted by impermissible 

motives. 

4. Whether a miner's post-refusal conduct created an independent 

ground and constituted just cause for his discharge, because 

it amounted to an illegal instigation of a wildcat strike. 

5. Whether the Secretary carried his burden of persuasion 

on the issues of (1) protected activity and (2) the 

discriminatory motive for the miner's discharge. 

1382 
FINDINGS OF FACT 

Management Animus 

Complainant, Danny Bryant, was first employed by the Pittston Company 

at its Kentland-Elkhorn Mine in Mouthcard, Kentucky in March 1975. Starting 

as a general inside, Mr. Bryant advanced to motor switchman and later to 

repairman. Although his formal education stopped at the sixth e, Danny 

learned quickly and was considered a good and diligent workero So good; 

in facts that during the latter half of 1978 he persuaded Lloyd White 

Manager of the Birchfield Division of the Clinchfield Coal Company, another 

subsidiary of Pittston, to obtain a waiver of the company cy against 

intercompany transfers without a break in service. As a result, around 

the middle of February 1979~ Bryant was able to transfer to Pittston~s 

Pilgrim Mine J:./ which was located just six miles from his new home in Wise, 

Virginia with a minimal break in service and loss of income. 

The function of a repairman is to perform electrical, mechanical and 

hydraulic repairs on all types of mining equipment. Much of the work was 

performed above ground in the repair shop which was warm and dry but 

frequently involved working underground to repair equipment in the low 

coal (32 to 36 inches) of the Pilgrim Mine. In the winter of 1980, this 

required a miner to work in a cold, damp, dusty, physically demanding 

and restricted underground environment. 

1/ The Pilgrim was a UMWA mine. In August 1981 Pittston closed the mine 

and turned it over to a contract operator. 

1383 
As a Mine Safety Committeeman, and as a safety conscious worker, Bryant 

on several occasions during 1979 found himself at odds with management over 

conditions and practices which he questioned as unsafe or unwise. 2/ With 

respect to these incidents, only one of which played any part in Bryant's 

challenged discharge, the Solicitor has sought in retrospect to magnify 

the importance of expected and normal tensions and disagreements over safety 

between a mine safety committeeman and managemento The claim that these 

incidents considered either singly or in the aggregate resulted in a "grudge" 

or management "animusn against Bryant and a determination to "get him" I 

view as overblowno This trial judge takes notice of the fact that safety 

committeemen, like other enforcement officials who do their job, are seldom 

candidates for popularity awards by managemento Mro Bryant understood this, 

and, prior to his discharge, thought little of ito For example, Mro Bryant 

testified that even when he was warned that his activities were incurring 

the displeasure of the evening shift foreman, Cecil Blevins, he did not give 

it "much consideration" and at the first opportunity transferred from the 

third (hootowl) shift to Mr. Blevins's evening (4 to 12) shift. 

A searching review of the record reveals no convincing evidence that 

Lloyd White, who was responsible both for hiring and discharging Mr. Bryant 

harbored any secret or overt animus against Danny for reporting safety 

infractions. He did consider serious and unjustified the hazing of 

Mr. Tate, a maintenance foreman and Danny's immediate supervisor which 

2/ Bryant was also Chairman of the Mine Committee which meant that he 

had to represent miners in the presentation of grievances against 

management. 

1384 
resulted in a disruption of the work effort by Mr. Bryant on June 1, 

1979. The effort to establish this as part of a bona fide protected 

activity and the "real motive" for Mr. Bryant's challenged discharge 

for insubordination and instigation of a wildcat strike in March 1980, 

I find unpersuasive. 

Though by the time he left 9 Danny 1 s feisty combativeness had earned 

him a reputation as a "troublemaker 9 7i there is no basis on this record for 

imputing to management generally or to Mro White in particular a pervasive 

resentment against Danny that resulted in an attempt to set him up or to 

discharge him under the cover of a legal pretext. The Secretary's attempt 

to supply by assertion the deficiency in his proof is unconvincingo 3/ 

3/ Because of his involvement with the circumstances that led to Mro Bryant's 

discharge and his departure from the~Pilgrim Mine under a cloud sportly 

after Mr. Bryant, Henry Canady's testimony must be heavily discounted. 

Mr. Canady was the maintenance foreman.on the evening shift and Mr. Bryant's 

close friend and supervisor at the time of the challenged discharge on 

March 7, 1980. Mr. Canady's uncorroborated, anecdotal testimony concerning 

the single occasion when he was allegedly privy to an incident in which 

he claimed management was displeased with Bryant 1 s report of an unsafe 

condition hardly establishes a predisposition on the part of Lloyd White 

or any other member of management to "get" Bryant for carrying out his 

duties as a safety committeeman. Mr. Canady's testimony reveals that he, 

not Bryant, was primarily responsible for the ten minute delay required 

to correct a fault in the braking system of a locomotive. His testimony 

further reveals that he was not asked to single out Bryant for an adverse 

personnel report on this incident but had merely been instructed to make a 

report on any miner whom he believed occasioned an unnecessary disruption 

in operations or conducted himself in a manner inimical to good order and 

discipline. As Mr. Canady admitted, an adverse report was never made on 

the incident because he considered himself responsible for. the brief work 

stoppage. A second incident, attributable to a misunderstanding of some 

directions Mr. Canady gave for the utilization of company property, did 

not involve a safety complaint and resulted in a complete exoneration of 

Mr. Bryant of any charge of wrongdoing or troublemaking. Mr. Canady's 

credibility was further seriously impugned by his admission that he failed 

to intercede with management on Danny's behalf on March 7, 1980 at a time 

when such intercession might have persuaded Mr. White that Danny was not 

a malingerer. 

1385 
The Solicitor's has urged sweeping conclusions on the basis of 

recitations of atypical. and inapt examples. This is no substitute for 

substantial evidence, the standard by which I must be guided. Section 

7(c) of the APA, requires that I measure both the qualitative and quantitative sufficiency of the evidence in determining whether the Secretary has 

met his burden of persuasion by a preponderance of the reliable, probative 

and substantial evidence" Steadman Ve SEC, 450 UoSc 91 (1980); Charlton 

Vo FTC, 543 Fc2d 903, 907 (D.Cc Ciro 1976)0 

It is not enough that viewed in isolation the Secretary may have 

adduced "such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion" because at the trial level where the 

evidence is pro and con, the judge sitting as trier of fact must evaluate 

the credibility and weight of the evidence and must decide in accordance 

with the preponderance of the reliable, probative and substantial evidence 

in the record considered as a whole. Steadman, supra, 78; Charlton, 

supra, 907. Thus, only where reliable and probative evidence preponderates 

in favor of the existence of a challenged fact, such as the state of mind 

of management or its individual members, will the Secretary meet his burden 

of persuasion. This does not mean proof to a certainty. Proof by a preponderance means only that proof which leads the trier of fact to find 

the existence of a contested fact is more probable than its nonexistence. 

McCormick, Evidence, 794 (2d ed. 1972). This burden is not met, however, 

by evidence which creates no more than a suspicion of the existence of a 

predisposition to fire Mr. Bryant for reporting safety infractions. 

1386 
The Incident With the Julie Car 

The Julie car is a three wheeled, rubber tired personnel carrier that 

was used at the Pilgrim Mine to transport repairmen and mechanics from the 

surface to areas of the underground mine where machinery maintenance work 

was required. 

On June 1, 1979, some nine months before the date of Mro Bryant 1 s 

discharge, Mr. Bryant instigated a work stoppage that involved himself 

and two other members of his maintenance crew that lasted approximately 

on hour. The grounds for the stoppage were (1) that the Julie car did 

not have a fire extinguisher and when this was found and provided that 

(2) the Julie car did not have a jack and jackbar and when this was provided 

that (3) Mr. Bryant and the other two miners did not have their safety 

glasses with them. When Delmar Tate, the maintenance foreman, finally 

borrowed some glasses from the desks or lockers of other foreman, Mr. Bryant 

and the other two miners proceeded to their work stations and Mr. Tate 

filed a complaint of their conduct with Lloyd White, the division manager. 

This all occurred ori the third or hootowl shift. At 7:00 a.m. the 

following morning Mr. White held a meeting with Mr. Tate, Mr. Bryant and 

the two other miners involved. The miners were provided with a union 

representative. A transcript of most of what transpired was provided for 

the record as RX-16. This was supplemented by testimony from Mr. White, 

Mr. Bryant and one of the miners involved, Mr. Robert Stair. 

The Secretary claims this incident created in the mind of Lloyd 

White and other members of the mine management team an abiding animus 
toward Bryant for the exercise of rights guaranteed and protected under 

the Act and that but for this animus Mr. White would not have discharged 

Mr. Bryant for refusing to accept a work assignment on March 7, 1980. 

The operator claims the work stoppage was inspired by a personal dislike 

or resentment on the part of Mr. Bryant toward the maintenance foreman, 

Delmar Tate. The operator contends the claim that the Julie car incident 

was justified by the exercise of rights guaranteed under the Act was a 

pretext for a concerted effort to undermine Mro Tate 1 s supervisory authority 

and to embarrass and humiliate him in the eyes of the other miners and 

members of management. 

I find it more probable than not that Mr. Bryant 1 s motive for the 

work stoppage was, in fact, mixed, and stemmed from (1) his resentment 

over his recent transfer by Mr. Tate from the Mains to the 1 Right' Section, 

(2) his ambition to be a safety committeeman, and (3) his desire to 

embarrass Mr. Tate. I conclude that while Mr. Bryant's reporting the 

absence of a fire extinguisher was protected, it was not grounds for 

prolonging a work stoppage while Mr. Tate was made to chase down a jack, 

jackbar and safety glasses. 

What are the operative facts and reasonable inferences that support 

these findings? 

The Pilgrim Mine was a two section low coal mine. Delmar Tate, whom 

we must view through the prism of others perceptions, was maintenance 

foreman on the third shift, the shift to which Bryant was assigned on 

June 1, 1979. As maintenance foreman on the third shift, Tate had 

1388 
responsibility for maintenance work on both the 1 Right Section and the 

Mains Section where Bryant worked. Tate, while not unpopular, did not 

easily command obedience from the contract miners. He had trouble 

maintaining discipline among the members of his maintenance crews, 

especially the crew on the 1 Right Section. Tate's recent promotion from 

general inside to maintenance foreman was resented by Bryant who felt that 

Joey Stapleton, a close friend of Bryant's should have had the promotiono 

Bryant himself had a hidden agenda in that he was preparing to run for 

the office of mine safety committeeman and wished to impress his peers 

with his ability to stand up to management on safety issueso 

Approximately a week before the incident with the Julie car~ Tate 

announced that the maintenance crew on the Mains Section~ including Bryant, 

Robert Stair and Scott Parrott, would be transferred to the 1 Rig9t Sectiono 

The miners resented this because they felt they had been doing a good job 

on the Mains Section. Tate did not deny this but because of his difficulty 

with the crew on the 1 Right Section he and hts supervisors, including 

Lloyd White, felt the better crew should be assigned to the 1 Right Section 

in an effort to get maintenance and repair work done and production up • .!:_/ 

Bryant, Stair and Parrott rebelled at the idea of having to correct 

the work of the crew on the 1 Right Section. They blamed the problem on 

Tate's inability to get work out of the other crew. They did not think 

they should be called upon to' cover up for his lack of leadership and 

that if he could not hack it he ought to get off the hill. 

4/ The mine was a marginal producer and its continued operation was in a 

probationary status. 

1389 
Thus, when Delmar Tate ordered Bryant and the others to take a Julie 

car underground to repair a bearing on a tail piece on June 1, 1979, Bryant 

thought he saw an opportunity to engage in some protected activity at 

Tate's expense. Bryant claimed he initially led the refusal to obey 

Tate's order because the personnel carrier was not equipped with a jack 

and jackbar as required by 30 C.F.R. 75.1403-6(b)(l); that when this was 

provided by Tate the refusal was repeated because the carrier had no fire 

extinguisher as required by 30 C.F.R. 75oll00-2(d); and that when Tate 

searched for and found an extinguisher Bryant still refused to budge 

because he and the other two miners did not have safety glasses to wear 

while operating the carrier as required by 30 C.F.R. 1403-7(e). 2_/ 

The Jack and Jackbar 

Under close questioning, Bryant for the first time admitted the 

personnel carrier involved in the June 1 incident was a Julie car, a 

three wheeled rubber tired vehicle and not a "railrunner" or track ·mounted 

vehicle. 6/ Bryant further admitted that under the law and the mandatory 

5/ At the prehearing conference, it was stipulated this was the principal, 

if not the sole, incident of antecedent protected activity claimed to 

support a showing of animus toward Bryant because of safety complaints. 

As previously indicated, there is no substantial evidence to support the 

view that other complaints played any significant or adverse role in 

management's attitude toward Bryant. 

6/ Up to this point there had been some "confusion" of this incident 

with another incident involving the absence of a jack and jackbar that 

occurred in August 1979. This was shortly before Mr. Bryant transferred, 

at his request, to the evening shift. This incident resulted from 

Mr. Bryant's activity as a safety committeernan--a position to which he 

was elected after the June 1 incident. It did not involve a refusal to 

work. Mr. Bryant merely reported the absence of a jack and jackbar on a 

track mounted (railrunner) personnel carrier to Mr. Tate. When an operative jack could not be found, management delayed the third shift mantrip 

1390 
standard a jack and jackbar are required only on track mounted personnel 

carriers. He claimed this was immaterial to his conduct because it was 

company policy to require jacks and jackbars on "all" personnel carriers, 

not just on the railrunners. Assuming that was true, the fact remains 

that the absence of such equipment on a rubber tired vehicle does not 

affect its operational safety nor is its presence mandated by the Mine 

Safety Law. 7/ Mr. Bryant, as an experienced miner, knew that the principal 

function of a jack and jackbar is to assist in remounting a track mounted 

carrier that has derailed. That it might be useful for other purposes 

such as lifting track or changing a tire may have been relevant to the 

company policy but is not probative of the reasonableness of Mr. Bryant's 

refusal to operate the Julie car. I find Mr. Bryant 1 s knowledge that a 

jack and jackbar are not required is probative of the lack of sincerity 

and honesty of his belief that the absence of this equipment created a 

fn. 6 (continued) 

for two hours. During this time Cecil Blevins, mine foreman on the 

second or evening shift, stayed over and went -underground to find a 

workable jack. Because there were two railrunners the requirement of the 

safety standard was not met, but Bryant agreed they could proceed inside 

by keeping the two carriers close together. On their way in, Delmar told 

Danny he might want to reconsider transferring to Mr. Blevins's shift 

because the incident angered Mr. Blevins and Delmar thought Cecil might 

hold it against Danny and might even try to discharge him. Bryant said 

he didn't give Tate's advise much consideration and went ahead with his 

transfer. 

7/ Section 314(b) of the Act, 30 C.F.R. 75.1403, authorizes issuance of 

safeguard notices against hazards connected with the trans?ortation of 

men and materials. Until such a notice is issued, the regulatory 'criteria 

set forth at 30 C.F.R. 1403-2 through 75.1403-11 are not applicable or 

enforceable. The Secretary failed to prove that safeguard notices relating 

to the transportation of men ever issued to this mine. Since the law did 

not authorize such a notice for the Julie car and since the Secretary's 

effort to impeach Mr. Bryant on this point was unpersuasive, I am constrained 

to find that a jack and jackbar were not required on the Julie car. 

1391 
hazard of sufficient gravity to justify the initiation or prolongation 

of his June 1 work stoppage. For these reasons, I conclude Mr. Bryant's 

refusal to operate the Julie car in the absence of a jack and jackbar 

(1) did not justify his work stoppage on June 1, (2) was not a protected 

activity because the absence of this equipment resulted in no preceptible 

hazard, and (3) merited criticism by managemento 

The Fire Extinguisher 

There is no dispute about the fact that portable fire extinguishers 

are required on all personnel carriers, 30 C¢FoRo 75.1100-2(d), and that 

the Julie car in question did not have one on the third shift on June 1, 

19790 Nevertheless, to justify a work stoppage in the face of a hazard 

that presented no clear and present danger, there must be a persuasive 

showing that the miner had a good faith i.e., honest belief that a 

recognizable hazard existed 8/ and that belief must be validated by a 

showing that the miner's perception of the hazard, including the affirmative, self-help taken to abate it, was "reasonable under the circumstanceso" 

Thomas Robinette v. United Castle Coal Company, 3 FMSHRC 802, 810-812 

(1981). Where a protected activity is inextricably intertwined with 

an unprotected refusal to work an inference of management hostility 

toward miners who exercise rights guaranteed under the Act is not 

shown by evidence that the miners involved were merely admonished to 

§_/ Neither the Commission nor the courts have yet decided the level of 

severity, seriousness or imminence that a mine hazard must present to 

justify a miner's refusal to work. Consolidation Coal Company v. Marshall 

(Pasula), 633 F.2d 1221, 1226 (C.A. 3, 1981) (dissenting opinion). 

1392 
mend their ways. 2/ An unlawful motive for an employer's conduct may 

not be inf erred if it would be just as reasonable to inf er a lawful 

motive. CCR Labor Law Reports Par. 4095. There is no more elemental 

cause for "dressing down" an employee than conduct so flagrant it 

threatens an employer's ability to maintain order and respect in the 

conduct of his business. American Tel. & Tel. Co., v. NLRB, 521 F.2d 

1159 (2d Cir. 1975); NLRB v. IBEW Local 1229, 346 U.S. 464 (1953). 

When considered in the light most favorable to the Secretary 

I find the evidence as to the fire extinguisher insufficient to 

establish a discriminatory motive for the challenged discharge of 

March 7, 1980. 

Even if I asslillle, as I do, that a brief work stoppage was justified 

by the absence of the portable fire extinguisher I find that the miners 

overracted and that their real intent or motive was not as much a concern 

for their safety as to haze Mr. Tate. 

The Safety Glasses 

Generally speaking where a notice to provide safeguard has issued, 

safety glasses are to be worn by all persons being transported in opentype personnel carriers, including Julie cars. 30 C.F.R. 1403-7(e). l.Q/ 

9/ The Commission and the Supreme Court have recognized that the unreasonable, irrational or irresponsible exercise of rights conferred by the Act 

are not deserving of statutory protection. Gateway Coal Co. v. Mine Workers, 

414 U.S. 368, 385-386 (1973); Robinette, supra at 811-812. 

10/ There was no showing that such a notice had ever issued. The operator 

made no point of this, however, and seemed to assume the requirement applied. 

1393 
The record shows that two pairs of such glasses were furnished to each 

miner when he was hired~ 11/ Messrs. Stair and Parrott did not deny 

this. Mr. Stair said he repeatedly lost his glasses and sometimes asked 

for a replacement but admitted he and the other miners regularly rode the 

mantrips without wearing their safety glasses even when they had them. 

In any event, there is no dispute about the fact that Messrso Bryant, 

Stair and Parrott reported for work on the third shift on June 1, 1979 

without their protective glasses. There is also no dispute about the 

fact that after Mro Tate provided a portable fire extinguisher and a jack 

and jackbar the three miners led by Mr. Bryant seized on the absence of 

their glasses as yet another excuse for prolonging their refusal to work 

and to harrass Mro Tateo 

On balance, I find Mr. Bryant's -refusal to ·ride the Julie car· without 

safety glasses stemmed from his own misconduct and was not based on a good 

faith belief that he would be exposed to a safety hazard of a severity 

sufficient to justify prolongation of his work stoppageo Mro Bryant's 

claim that on June 1 he suddenly perceived a hazard he had ignored for the 

four months he had ridden the Julie car without glasses is at war with 

the Secretary's claim that Mr. Bryant had a good faith reasonable belief 

11/ Mr. Bryant, who worked in another Pittston mine before coming to the 

Pilgrim Mine, claimed he was not furnished new glasses when he transferred 

but did not claim he was never furnished safety glasses or that he ever 

requested his original issue glasses be replaced from the time of his 

reemployment at the Pilgrim Mine in February 1979 to the time of the 

June 1 Julie car incident. He admitted he was furnished with prescription 

safety glasses later in June 1979. 

1394 
that a realistic hazard existed. In Robinette, supra, the Commission held 

that "protected activity loses its otherwise protected character if pursued 

in an opprobrious manner." Id. at 817. 

As noted, immediately after he satisfied the demands made by Messrs. 

Bryant, Stair and Parrott for a jack, jackbar, portable fire extinguisher 

and safety glasses, and they proceeded to their work assignment, Mr. Tate 

reported the incident to Mr. White the division manager and complained 

that he felt the miners harbored an ill-will toward him and were trying 

to harrass him because of their dissatisfaction with the change in their 

shift assignments (Tr. 437-455). Mr. White instructed Tate to have the 

three miners report to him at 7:00 a.m. in the morning. 

The June 1 Meeting 

At the 7:00 a.rn. meeting Mr. White warned the miners they were skating 

on thin ice in acting as they did toward Mr. Tate and assured them he was 

not going to "let contract people run a boss off." The tone of the meeting 

was neither hostile nor threatening. It was a firm and temperate statement 

of top management's determination to back Delmar Tate and to put Mr. Bryant 

on notice that his conduct was considered insubordinate, irresponsible and 

unjustified by the circumstances. 

I am persuaded that as a result of the June 1 incident, 'Mr. White was 

not prepared to tolerate any refusal to work by Mr. Bryant that was not a 

responsible reaction to a clearly perceived hazard. I find the admonition 

or warning was not an unlawful discrimination or retaliation but an appropriate management response to Mr. Bryant's irresponsible hazing of Mr. Tate. 

1395 
I am also satisfied it was this resistance to accepting management's decisions 

on work assignments that tied this incident in Mr. White's mind to.Mr. Bryant's 

refusal to accept the order to set jacks in March 1980. 

When viewed objectively and dispassionately, I find in Mr. White's 

admonishment of the miners over the Julie car incident nothing more sinister 

than a healthy, adversarial exchange of views on the appropriate roles 

of management and labor in the management of the mine and in achieving 

compliance with the mandatory safety standards. Certainly, Messrs. Bryant, 

Stair and Parrott made their point, which was that management~s level of 

safety consciousness left much to be desired and was in need of improvement. 

Mr. White indicated he understood, if he did not fully appreciate, this 

point but made clear that unnecessary disruption in the work effort and 

harrassment of supervisors in the name of marginal or irresponsible safety 

complaints would not and could not be. tolerated. 

Insofar as Mr. Bryant was concerned, the incident did nothing to deter 

his commendable zeal for safety. He went on to win election as a safety 

committeeman and in August did not hesitate to challenge management's failure 

to provide jacks and jackbars on the railrunners, a complaint that resulted 

in shutting down operations for two hours. This complaint which management 

treated as responsible resulted in no discernible retaliation or animus 

by Mr. White or any other member of management. 12 

12/ The propriety and certainly the legality of Mr. White's conduct 

I judge by whether it had the effect of chilling the exercise of 

rights guaranteed Mr. Bryant under the Act. Mr. Bryant said it did not 

1396 
In conclusion, I find that because of (1) the ulterior motives involved 

in Mr. Bryant's conduct with respect to the Julie car incident; (2) the fact 

that much, if not all, of the allegedly protected activity was clearly 

unprotected; and (3) management's reasonable and temperate reaction, the 

Secretary has failed to carry his burden of persuasion on the issue of 

antecedent management animus toward Mr. Bryant for making safety complaints 

or the harboring of a secret intent to discharge him at the earliest opportunity for making such complaints. 

Were it not for the fact that on March 7 9 1980 9 Lloyd White cited the 

June 1979 incident as another instance of Bryant's insubordinate attitude, 

the Julie car matter would have to be dismissed as too remote to be considered 

of any probative value. Compare Santistevan v. C.F. & I. Corporation, 2 FMSHRC 

1710, 1717, 1 BNA MSHC 2524 (1980), petition for discretionary review dismissed 

September 23, 1980. 

Bryant's Refusal To Set Jacks 

The events leading up to Danny Bryant's refusal to set jacks on March 7, 

1980, began around February 25. After a three week absence due to an 

fn. 12 (continued) 

and his actions confirmed this. In fact, he said he knew of no action 

before his discharge of March 7, 1980 that he considered discriminatory. 

Obviously, the admonition and. warning of June 1 did nothing to deter 

Mr. Bryant from asserting a right to refuse work on March 7, 1980. In 

the face of this hard evidence, I cannot accept the Secretary's claim 

that Mr. White's action on June 1 was an unlawful attempt to coerce or 

intimidate the miners in the exercise of rights guaranteed under the Act. 

1397 
injury, 13/ Danny had run out of paid sick leave and vacation days and 

badly needed to return to work. The difficulty was that he did not feel 

he was well enough to work or to perform his normal work assignment as 

a classified repairman. This problem was overcome when he persuaded Henry 

Canady, his immediate supervisor and the maintenance foreman on the second 

shift to allow him to return to work on a "light duty" basiso 14/ According 

to Danny and Mro Canady, this meant Mro Canady would cover for Danny and 

protect Danny from assignment to any strenuous tasks by doing them himself 

13/ Around the end of January 1980, Bryant cut three fingers of his left 

hand. He was on sick leave as a result of this injury from Feburary 1 

through February l5o He was treated for his injury and a cold by Dro Bausch 

at the Wise Clinic, Wise, On February 15, Dro Bausch found 

sufficiently recovered to return to work and gave him an unrestricted work 

slip that allowed him to return to work on Monday, February 18, 1980. 

Instead of going to work, Bryant laid out on paid leave and on Wednesday, 

February 20, went to the emergency rdom at the Norton Community Hospital 

complaining of a cold, sore throat and coughing. As a result of a blood 

test and diagnosis made by Dr. Fonesca;- the doctor on duty, it was determined that Mr. Bryant had a virus infection of his pharynx but that he 

was not too sick to work. On Friday, February 22, the doctor prescribed an 

antibiotic for the condition that was to be taken four times a day for two 

weeks. Mr. Bryant began taking his prescription on Saturday, February 23, 

1980 and returned to work on an unrestricted basis the following Monday, 

February 25. Dr. Fonesca's final diagnosis was that Mr. Bryant had 

mycoplasma pharyngitis or a viral infection of the pharynx. According to 

Dr. Fonesca, Mr. Bryant's X-Ray showed his lungs were clear and his heart 

normal. He was not running a temperature and did not have bronchitis 

or pneumonia. Mr. Bryant did not seek further medical attention until 

the evening of March 7, 1980, the day he was suspended with intent to 

discharge for shirking work as a jack setter. Mr. Bryant did not ask 

that any of his absence during the week of February 18 be excused for 

illness and returned to work under the unrestricted permit issued by 

Dr. Bausch on February 15, 1980. 

14/ Even though Dr. Fonesca found no evidence of pneumonia or of an 

intestinal tract problem, Danny convinced Mr. Canady he had walking 

pneumonia and was suffering from a stomach ulcer. Mr. Canady admitted 

the only physical evidence of illness he noticed, however, was that Danny 

had a cough and seemed to break out in a sweat any time he was asked to 

exert himself. 

1398 
or assigning the work to others. Danny would only be expected to "piddle 

around" at light tasks in the warm, dry, fresh air of the well-illuminated 

repair shop and would not be asked to go underground to work in the cold, 

cramped, wet and dusty environment of a 32 to 36 inch low coal seam. 

Bryant's return to work on February 25, 1980 was unremarked by top 

management, which was unaware of the arrangement for "light duty" worked 

out between Canady and Bryant. Canady, Joey Stapleton and the other miners 

friendly to Bryant managed to cover for him on the underground tasks so 

that he was able to work at the lighter tasks in the relative comfort of 

the repair shop. Bryant testified that it was during this or the following 

week that his stomach began to act up so that he was, or so he claimed~ 

seldom able to eat his onshift dinnero 

There was nothing in the records. of Dr. Fonesca's examinations and 

testing to corroborate Bryant's statement that he had complained of stomach 

trouble as early as February 20 to 22. Prior to March 12, 1980 Dr. Fonesca 

did not treat Bryant for any disorder of his gastrointestinal tract. 

As a result of Bryant's complaints he was treated prior to March 7, 1980 

only for a sore throat or what the doctor called mycoplasma pharyngitis, 

a viral infection of the pharynx. Despite this, Bryant convinced himself 

and Henry Canady that he had a stomach and lower respiratory condition 

during the period of February 25 t.o March 7 that precluded. assigning him 

to perform tasks in the underground low coal environment. 

15/ Dr. Fonesca testified that prior to March 7 he treated Bryant only for 

an infection of his upper respiratory tract. 

1399 
All proceeded smoothly and quietly except that Bryant took a paid 

vacation day on Friday, February 29. He rested and attempted to recuperate 

over the weekend, or so he said. I assume he continued to take his prescription for pharyngitis. He did not seek medical attention for either of his 

claimed stomach or lower respiratory disorders. On Monday March 3, 1980, 

he again returned to work on a "light duty" basis as per his arrangement 

with Henry Canadyo Bryant pointed out that this was a "personal" arrangement between him and Henryo He did not consider it a favor extended by 

the company" In fact, he knew or should have known the arrangement was not 

sanctioned by company policyo Bryant~ however, had no qualms of conscienceo 

He believed that as long as Henry Canady was satisfied the company had 

no just complaint of the "light work" arrangemento 

The work week that began March 3 went without incident until- Friday 

March 7, 1980. That was the day before Danny finished taking the prescription for pharyngitis given him two weeks before by Dr. Fonesca. On 

arising, Danny did not feel any the worse for·the wear and maybe a little 

better than he had for the last two weeks. He certainly did not consider 

himself in need of medical attention and did not seek such attention. 

His wife packed his dinner and he went to work expecting, as he said, 

to pull the usual light shift. 

When he arrived at the mine, sometime between 3:30 and 4:00 o'clock 

he changed into his work clothes, including his hard hat and cap lamp 

and went to the repair shop. There he met Henry Canady who told him 

they were going to have to go underground to transport and install a 

5 ton power center on the Union (Unit) #1 section. He told Bryant he 

1400 
would also have to help remove and reinstall a considerable amount of 

brattice curtain. According to Henry, Danny was not expected to do anything strenuous because Henry was under the impression Danny was still 

recovering from a bout with pneumonia and an intestinal disorder. This, 

of course, was not true. But Henry, if he is to be believed, did not 

know the truth. In any event, he planned to assign Danny to operate the 

locomotive to pull the transformer into place and to help him make the 

final electrical connections. 

The 11 light work11 arrangement was rudely interrupted when Cecil Blevins? 

the evening shift mine foreman, suddenly appeared in the repair shop and 

told Danny Bryant he was needed to set jacks on the Wilcox miner on the 

Union 1 section because two faceman had failed to report for work G the 

evening shift. 16/ Joey Stapleton, a belt examiner, was also assigned to 

work out of classification. 17/ Stapleton was assigned to run the bridge 

conveyor, which also involved jack setting. He made no complaint about 

his assignment. 

Bryant, who said he was shocked at this turn of events voiced no 

protest to Blevins who thought he had accepted the assignment. Instead 

when Blevins left Bryant immediately turned to Canady who, if he is to 

be believed, was also shocked but also voiced no complaint. Canady 

16/ These instructions came from Tom White, the day shift mine foreman, 

not Lloyd White, the division manager. 

17/ Temporary assignment out of classification is authorized under the 

miners' collective bargaining agreement. 

1401 
testified he was convinced Bryant was in such bad physical condition 

that performance of the. assignment might kill him. He speculated that 

this might result from exposure of Bryant's lungs to the dust and water 

encountered in face work or from the sheer physical exertion involved in 

setting jacks in low coal, or both. Bryant reminded Canady of his weakened 

physical condition attributable, he claimed, to a bout with pnetnnonia that 

had left him with fluid and congestion in his lungsc 18 I find it of 

more than passing significance that Canady, who was responsible for 

Bryantvs claimed predicament~ 19/ shrank from the opportunity to present 

on behalf of Bryant his claimed belief that Bryant was too sick to do 

anything but light work in the repair shop. Instead, Henry's advice to 

Danny was to protest Blevins 1 s and Tom White 1 s instructions to their 

superiors, Lewis Blevins, the mine superintendent and Lloyd White the 

division manager. Bryant did not fol~ow Henry's advice. He took his 

protest to Henry's superior, Bud Kilbourne, the chief electrician. 

18/ There was no support in Bryant's medical history for the claim that 

he was recovering from pneumonia or any other lung condition. Dr. Fonesca's 

X-Rays showed Mr. Bryant's lungs were clear on February 22, 1980, just two 

weeks before. In the interim there had been no diagnosis or treatment 

for pnetnnonia or any other lower respiratory condition. Dr. Fonesca's 

examination of Bryant on March 7, 1980 disclosed he had "recovered" from 

his pharyngitis and had no respiratory infection. 

19/ In allowing Bryant to work "light" and covering for him, Canady 

violated company policy. While the company may have permitted men in the 

final stages of recuperation from injuries to return to work early at 

assignments they were fully capab1e of performing, it did riot allow supervisors to encourage men who merely claimed they were ill to malinger on 

the job at company expense. 

1402 
Bryant heatedly told Kilbourne that he did not think he should have 

to set jacks because he was a maintenance employee. He further stated 

he had "busted his ass" for Clinchfield and this was "the thanks he got--

it was like putting a man in a mudhole." Kilbourne thought Bryant had a 

big "chip on his shoulder." Bryant seemed to feel that the company was 

"trying to run over the top of him." Kilbourne tried to explain to 

Bryant that they were short-handed and that because the mine was on 

probation they needed to run coal or take the risk of shut downo 

He told Bryant several times that the only work for him that afternoon 

was setting jacks and that in effect he could take it or leave ito 

Kilbourne did not attempt to physically restrain Bryant or force him to 

set jacks. On the other handi Kilbourne did not tell Bryant he was 

released and "free to go homeo 11 Whert Bryant complained he was too. sick 

to set jacks, Kilbourne did not believe him because the very vigor of 

his attack seemed to belie his claim of physical weakness. 

While the altercation was going on between Bryant and Kilbourne, Tom 

White told Lloyd White, who was concerned over the low productivity of 

the mine, that Bryant's refusal to work on the production section meant 

it would have to be idled. As he approached Kilbourne's office, Lloyd 

White overheard Bryant's remarks about this was "the thanks he got for 

busting his ass and being put in a mudhole." He also heard Bryant say 

he had been sick for two weeks and didn't feel like setting jacks. As 

Bryant turned to leave the room, both White and Lewis Blevins arrived on 

the scene and Blevins asked what was going on. Bryant restated his 

position. He, Blevins and White argued, rather excitedly, over Bryant's 

1403 
claim that he deserved better than to be sent to set jacks in the mudhole that was the Union 1 section. Blevins and White backed up Kilbourne 

and Tom White and made clear to Bryant that if he persisted in his refusal 

to work on the section he could expect disciplinary action. Bryant, who 

by this time felt they were ganging up on him, said he was going to the 

bathhouse to change and go see a doctor. He said he would return with 

proof that he was too sick to work. He also offered to take White with 

him, an off er that White declined because he did not believe Danny was 

sick. According to Bryant~ this exchange with management was the first 

time he felt he was being harrassed for making a complaint about working 

conditions. 

Bryant took a shower and changed into his street clotheso He told 

some of the day shift miners, includl~g Harlan Hall, who also had had a 

disciplinary discharge, about his run-in with White. In the meantime, 

Lloyd White, Tom White and Lewis and Cecil Blevins tried to realign the 

work crews so that at least one of the production sections could run coalo 

Before a final decision was made on how to operate, Lloyd White told Cecil 

Blevins to go to the bathhouse and once again order Bryant to set jacks. 

If Bryant still refused, Blevins was to tell him to report to White before 

he went home. Cecil Blevins did as instructed and when Bryant again 

refused an order to set jacks Blevins told him to report to Lloyd White, 

which Bryant did. Bryant said that at this point he felt he was being 

unnecessarily harrassed and that they should have taken his word for the 

fact that he felt too weak to set jacks. He felt management was just out 

1404 
to punish and demean 'l:.!21 him but he did not feel he was being punished 

for pulling "light duty." 21/ 

When Bryant reported to Lloyd White, White gave him a direct order 

to proceed to the Union Ill section to set jacks on the Wilcox miner. 

When Bryant again, and for the third time, refused the order, 22/ White 

said he wanted to go on the record and directed the mine clerk, Sharon 

Blevins, to turn on the recordero A transcript of what transpired 

thereafter shows that Bryant immediately demanded that James Nichols, a 

mine committeeman, be called out to represent himo White complied with 

this request and Nichols was called out from his underground assignment 

as a miner operator on the Union #1 section. 

20/ Jack setting on a Wilcox miner ip low coal is considered an unskilled, 

common labor job. To have accepted s~~h work without protest would have 

humiliated Bryant in the eyes of his pe~rs. He felt he could not afford 

to let management "run over" his self esteem and still retain the respect 

of the contract miners. 

21/ Top management was apparently unaware of the.extent of Mr. Bryant's 

"'iffight work" assignment on March 7, 1980. In fact, during the course of 

the discussion Bryant told Lloyd White he was willing and able to perform 

his duties as a repairman. Since White did not understand this was confined 

to "light, outside work" this admission, he felt, only served to confirm 

his belief that Bryant wa's not too sick to work at the temporary assignment. 

There was no charge that a discriminatory intent was to be inferred from 

the fact that Bryant instead of some other miner was assigned a difficult, 

dangerous and dirty job. The evidence shows no other miner was readily 

available. Even if one were available, I can find nothing in the statute 

that mandates giving preferential treatment to safety activists. Section 

105(c) was not intended to diminish traditional management prerogatives. 

22/ The record shows that Bryant was twice ordered to set jacks by Cecil 

Blevins, once in the repair shop and once in the bathhouse. The third 

order came from Lloyd White. In addition, the Chief Electrician twice 

told Bryant that the only work for him was setting jacks which Kilbourne 

and White considered tantamount to an order to set jacks. 

1405 
White explained for the record that Bryant had been directed to work 

as a jack setter because they were short handed--only eleven men including 

Delmar Tate the section foreman were available and they needed twelve, 

six on each section, to run coal. He also pointed out that the mine 

was on probation because of its low productivity and that they had to 

run coal or risk being shut down. He then summarized the earlier discussions between management and Bryanto Bryant then stated his positiono 

A review of this contemporaneous recital and the testimony at the hearing 

shows that Bryant declined the jack setting assignment because: (1) he 

felt it was demeaning, scut work--the kind of work that a highly paid, 

skilled repairman should not have to do, especially one who had given a 

100% effort and who had been willing to risk his health by coming to work 

sick; (2) because he claimed to be seriously ill--Bryant claimed to have 

an infection of the bronchial tubes,~severe stomach pains and nausea, and 

an inability to digest his food. In his recorded conversation with White 

he claimed his stomach "was tore all to pieces 110 and "was killing me." He 

said he thought he had "pneumonia or the flu or something." As previously 

noted, Henry Canady thought Bryant was just getting over pneumonia and was 

willing to believe Bryant was too sick to do anything but "light work." 23/ 

Lloyd White told Bryant he did not believe he was sick because he did not 

look or act like he was in pain or nauseated. To most of those who saw 

!:]_/ According to Henry this did not exclude working underground. 'Bryant, 

on the other hand, said that if Canady had asked him to do maintenance 

work underground "I would probably have went to the doctor." Bryant at 

first denied but when confronted with his earlier testimony admitted that 

Canady expected him to help install a 5 ton power center underground the 

same day Bryant refused to set jacks. 

1406 
him he looked perfectly normal. Even those who professed to believe he was 

too sick to set jacks refrained from offering to take his place at the job. 

Lloyd White, Lewis and Cecil Blevins, Tom White and Bud Kilbourne, all of 

whom carefully observed Bryant, thought he was not too sick to set jacks 

that day. Bryant said he would prove he was sick because he was going to the 

doctor immediately, even offered to take them with him, and would return with 

a doctor 1 s slip excusing him from worko Although Bryant returned to the mine 

on the following Monday, he did not produce a slip from the doctor attesting 

to his conditiono Lloyd White testified that if Bryant had brought in a 

medical excuse on Monday March 10, justifying his refusal of Friday~ March 7 

he would not have discharged Bryant. It was the consensus of 

that Bryant was "faking" his illness to avoid an onerous work a 

In a statement which I find revep.ling as to his true motivation~ 

Bryant repeatedly said he did not want .,_to set jacks because he was "a 

classified repairman and I just didn't feel like setting those jacks." 

This refrain when considered together with Bryant's statement that the only 

time he tried to set jacks he suffered a "fright" over the personal danger 

involved disclosed a phobia about the job that was possibly disqualifying 

but which Bryant obviously did not wish to demonstrate to his employer or 

his peers. 24/ To cloak his mental reservations, Bryant took the position 

'!:.!:.../ Bryant's fear of setting jacks was revealed in the folJowing colloquies: 

Judge Kennedy: Well, why wouldn't you be able to set jacks in the 

condition you were in? 

Bryant: Well, on account of the breathing problem I had, and my stomach 

was bothering me, and also Mr. Morgan, like I said, removed me from 

jack setting one time and told me personally it was dangerous and, you 

know, he inflicted a fright upon me on this, you know. 

1407 
that the hazard was to his physical health which he claimed would worsen 

if he attempted to perform the jack setting assignment. He admitted that 

had he demonstrated at the face an inability to do the job the operator 

would have relieved him of the task. 

Another reason Bryant gave for being excused from the jack setting 

assignment was the fact that he had never been given new task training or 

shown how to accomplish the job. This objection was without merit. Jack 

setting is a low skill job that simply involves the repetition of the motions 

involved in setting 40-pound jacks from 30 to 60 times a shift. 25 Aside 

from his mental reservations, Bryant was fully capable of mastering the 

fn. 24 (continued) 

Judge Kennedy~ You were afraid of setting jacks~ weren~t you? 

Bryant: Up to an extent, withou~ any training; yes sir. 

Tr. 131 

Judge Kennedy: So is it your testimony that you would be happy 

to go underground tomorrow and work as a jack-setter for the 

next 10 years. 

Bryant: If I went back to work for Clinchfield I wouldn't care 

to set their jacks, but I would take a repairman's job again. 

Judge Kennedy: You wouldn't care to set jacks? 

Bryant: No, sir. 

Judge Kennedy: Why not? 

Bryant: Well, I'm not sick; I'm not physically sick. I feel I'm 

able to do it, but I wouldn't care to. I would have went tha~ 

night if I hadn't been sick; yes, sir I would have been more than 

glad to went. 

Tr. 115 

25/ While jack setting is a low skill job, it is also very dangerous 

because so much of the work, which is done in low coal (32 to 36 inches), 

is often done under unprotected roof in a noisy, dusty, extremely damp 

1408 
simple, if arduous and dangerous, physical tasks involved. 26/ The law 

permits and Lloyd White offered to give Bryant the necessary supervised 

task training required to qualify him as a jack setter. 30 C.F.R. 48.7(c); 

National Industrial Sand Assn. v. Marshall, l MSHC 2033, 2051-52; 601 F.2d 

689 (3d Cir. 1979). Since new task training cannot be given when the 

miner refuses the task, the operator could not have discriminated by 

failing to give training that was refusedo 

In summary~ I find that Bryant's refusal was based on his mental 

attitude toward, i.e., distaste for and fear of, the task as much 9 if not 

more, than his physical condition. Nor, as we shall see, was his physical 

condition as bad as he claimed. What I find most significant 9 however, 

is that Bryant never claimed that, aside from his own physical condition, 

there was any danger or hazard in the mine or on the Union 1 section 

which justified his refusal to work. ·Bryant emphasized that the only 

hazardous condition he was concerned about was his "health" or present 

physical condition, which he felt would be worsened by the conditions 

normally encountered on the production section. 

Fear Of The Job 

Before reaching the question of whether a miner's refusal to work 

because of a claimed physical condition is, standing alone, a protected 

fn. 25 (continued) 

environment. Communication depends almost entirely on signals with the 

miner's head lamps. If a jack is not properly set, it can pull loose 

and become a lethal missile. 

26/ As Bryant repeatedly said, he knew in his own mind that if he tried 

to set jacks that day he would fail. He attributed this to his physical 

condition and not to his mind set. Bryant was most reluctant to perform 

any task that involved working at the face. 

1409 
activity, I must also consider whether a miner's refusal to perform 

an assigned task solely on the ground that his mental condition is 

such that he is fearful of performing it safely is a protected activity. 

The undisputed facts here show that there was no condition or circumstance on the Union #1 section itself which constituted a hazardous '!:]_/ 

condition. Such hazard as existed was in the person of Bryant himselfo 

Because the reasonableness of a fear can only be validated by a 

consideration of the gravity of the specific hazard addressed, a generalized 

fear of the job, unrelated to any condition or hazard actually confronting 

the miner, is too subjective to evaluate. 

Consequently fear on the part of an otherwise healthy miner of performance of a risky or dangerous task regularly performed by other miners 

is not, standing alone, a protected j~stification for refusing to attempt 

27/ By this I mean a condition affecting health or safety that exceeds the 

hazards normally incident to and generally accepted in the mining of coal. 

Underground mining is not inherently dangerous but is singularly unforgiving 

of carelessness, negligence or relaxation of the federal enforcement effort. 

Recent Congressional hearings on the mine disasters that occurred last 

December and January attest to the fact that an enfeeblement of the Federal 

enforcement effort is inevitably attended by a sharp increase in deaths 

and disabling injuries. Overall coal mine fatalities jumped a dramatic 51% 

in the first three months of 1982~43 fatalities during that time period 

compared to 22 fatalities during the first three months of 1981. Fatalities 

attributable to roof falls doubled during the first six months of 1982--from 

9 in 1981 to 29 in 1982. The evidence strongly suggests the soaring accident 

rate to which Stapleton testified was the result of shortcutting a~d failure 

to follow safe work practices. Because the Mine Safety Committee failed 

to document its complaints, the evidence is too sparse to establish what 

management's overall attitude was on safety, or what part that attitude, 

if any, played in Bryant's fear of the jack setting job. 

1410 
to perform the task. Pilot Coal Company, 2 FMSHRC 504, 1 BNA, MSHC 2363 

(1980); Kaiser Cement Company, 4 FMSHRC 82 (1982). 

To justify a refusal to make an attempt to perform a classified assignment, a miner must be able to point to a condition or practice in the mine 

that can be said to have induced a good faith, reasonable fear that performance 

of the rejected task will require the assumption of a recognizable risk not 

normally encountered.]!}__/ Duncan v. T. Ko Jessup, Inc. 9 3 FMSHRC 1800 

(1981); Boone Vo Rebel Coal Co., 3 FMSHRC 1707 (1981); Adkins v. Deskins 

Branch Coal Co., 2 FMSHRC 2803, 2 BNA, MSHC 1023 (1980); Victor McCoy Vo 

Crescent Coal Company, 3 FMSHRC 2211 (1981). 

Impaired Physical Condition 

What are the facts with respect to Bryantvs claim that his physical 

condition, standing alone, justified his refusal to set jacks. As we have 

seen, when Bryant set out for work on March 7 he has just finished taking 

the antibiotic prescribed for his sore throat and laryngitis. According 

to his doctor, he was fully "recovered." He said he was feeling run down 

but not too weak to work. He was not running a temperature and had no 

plans to seek medical attention. 

When he arrived at the mine .he changed into his work clothes and 

reported to Henry Canady who told him they were going und~rgroun~ to 

install a power center on the Union #1 section. Henry expected Danny 

28/ See Note 27, supra. 

1411 
to operate the locomotive and tractor required to move the transformer 

onto the section. He also expected Danny to help him connect 1,000 feet 

of high voltage cable to the power center and to remove and reinstall 

brattice curtain that would have to be taken down to make the installation. Bryant voiced no objection to performing this work which would take 

him underground into the 32 to 36 inch coal and would require considerable 

physical activity in the same bent over position that would be required 

to set jacks. !!!_/ Jack setters and timbermen usually work on their hands 

and knees in low coal or squat and crab around on their hauncheso 

As we have seen, after Bryant refused Lloyd Whitevs order to set 

jacks, White directed that Bryant be suspended with intent to discharge 

for repeated insubordination in accordance with the applicable provisions 

of the collective bargaining agreement. Whitevs position was: ·

11 1 ani not 

going to get into a situation here or a_nywhere else to where if I give 

a man a job to do that he doesn't want to do and he can just simply say 

I am sick and that is it." RX-5, p. 6. 

Thereafter, Bryant, accompanied by his wife, was seen by Dr. Fonesca 

in the emergency room of the Norton Community Hospital at 6:39 p.m., the 

evening of March 7, 1980. According to the emergency room record he came 

in ambulatory complaining of a sore throat and nausea. The admitting nurse 

did not record that he was suffering abdominal pain. He was not running 

29/ Bryant's willingness to perform work for Canady conflicts with his 

statement to White that "if we was working outside I could make it, but 

if I had to go inside, even on maintenance, I would probably have went 

to the doctor." (RX-5, p. 10). 

1412 
a temperature. Bryant complained to the doctor of discomfort in his stomach 

which led the doctor to believe he was suffering from gastritis or an 

inflammation of the stomach tissues due to hyperacidity. Since this condition was consistent with the symptoms associated with peptic ulcer disease, 

Dr. Fonesca ordered a G.I. Series for Monday morning, March 10, 1980. 

Because Bryant's condition was as consistent with a benign or temporary 

stomach upset as with peptic ulcer disease including reflux esophagitis 9 

the doctor wanted to run the tests necessary to allow him to "rule out~" 

i.e., prove or disprove the existence of the suspected conditiono He did 

not deem it necessary to prescribe any medication as Bryant did not appear 

to be suffering from any severe or disabling pain. In fact, he did not 

even suggest that Bryant take a dose of Pepto Bismol or any other antacid 

to relieve his claimed stomach disordero The doctor released Bryant and 

told him to return Monday, March 10 for a barium treatment and'X-Ray of 

his upper gastrointestinal tract. 30/ 

On Monday morning Bryant returned for his G.I. Series. Dr. Straughan, 

the doctor who performed the series, noted on his clinical report that 

Dr. Fonesca wanted him to "Check for reflux" and to "rule out peptic 

ulcer disease." RX-13. The G.I. Series disclosed Mr. Bryant had an 

inflammation of the lower stomach or antrum which is the area of the 

gastrointestinal tract where the lower stomach enters the duodenum or small 

bowel. There was no indication of an inflammation of the upper digestive 

tract, or reflux esophagitis, which is caused by a back flow of hydrochloric 

30/ Bryant did not ask the doctor for a statement he could take to Lloyd 

White showing he was too sick to work that day. 

1413 
acid from the stomach into the esophagus, or of peptic ulcer disease. Thus, 

Dr. Fonesca's suspicion as to reflux esophagitis and/or peptic ulcer disease 

was not borne out by the G.I. Series. 31/ 

Except for a sore throat, Bryant did not complain to the doctor of 

any problem with his respiratory tract although he had just told the mine 

managers one reason he could not work in the dust and dampness of the 

face area was because he had fluid in his lungs and a bronchial infectiono 

Dr. Fonesca said his examination of Bryant disclosed that the infection 

of his pharenyx had 11 improved" to the point he could be considered 

"recovered." 32/ 

The final diagnosis of Mro Bryant's condition was that on March 7~ 

10 and 12~ 1980 9 he was suffering from a disorder in his antrum and 

duodenum, i.e., 11Antral gastritis and ,,_duodenitis." The abnormal condition was described as "hyperactivity" i"Q the antrum and duodenum with 

swelling of the "bulb and postbulbar region," which is the area where the 

two tracts are joined. Bryant's problem was in the lower digestive tract~ 

not the upper digestive tract as the doctor originally suspected. 

31/ It is to be remembered that on March 7, 1980, Bryant was seeking not 

only medical attention but also support of his claim that setting jacks 

in low coal would worsen his physical condition. Dr. Fonesca said he 

suspected a reflux or inflammation of the upper digestive tract because 

Bryant told him he felt nauseated and that bending over was painful. 

Bryant, of course, had just come from his argument with White over whether 

the claimed pain in his stomach would worsen if he was required to set 

jacks in low coal. 

32/ Dr. Fonesca thought Bryant's scratchy throat condition was a residual 

effect of the pharyngitis but required no further medication. 

1414 
When, as directed, Bryant returned to see Dr. Fonesca on Wednesday, 

March 12, 1980, the do·ctor, on the basis of the clinical evidence and his 

physical diagnosis, ruled out peptic ulcer disease or reflux esophagitis 

as the cause of Bryant's stomach disorder. He accepted the clinical evidence 

as establishing the disorder was antral gastritis and duodenitis (colonitis) 

and prescribed (1) Librex, a tranquilizer to relieve Mr. Bryant's stress 

and reduce the hyperactivity of the duodenum~ 33 (2) Tagamet~ a drug which 

blocks the passage of acid-stimulating impulses down the main nerve 

vagus nerve) to the parietal cells which produce hydrochloric acid and 

pepsin, and (3) Mylanta, an antacid, to neutralize the hydrochloric acid 

in Mr. Bryant's stomach. 

Dro Fonesca then discharged Bryant with a return to work slip that 

put no restrictions on the type of work he could performo 34/ He told 

Bryant to return for a checkup with him in a month. Bryant never did 

this. 

If Bryant had severe abdominal pain or disabling cramps on March 7 9 

it was not apparent from his physical appearance or actions. Even Henry 

33/ Joey Stapleton said that recent layoffs had required that fewer men 

had to do more work, often out of their primary classification, and this 

had created unrest, stress and tension in the workforce. In addition, 

in January 1980, Clinchfield had announced it might have to close the mine 

because of low productivity, so people were worried about keeping their 

jobs. 

34/ Dr. Fonesca testified he thought he told Bryant he was not to work 

underground and was to do only "light work." On cross-examination, however, 

the doctor admitted this was only a "guess" on his part. He was never 

confronted with his signed statement of March 12, 1980, which shows he put 

no limitations on the work Bryant could perform. Ex. 3, RX-26. 

1415 
Canady, one of his most sympathetic supporters, said that for the two weeks 

he worked light he observed only a cough and a tendency to break out in 

a sweat when Bryant exerted himself. 35/ Even to the practiced eye of 

Dr. Fonesca, Danny did not look sick when he saw him on March 7. There 

were certainly no "objective manifestations 11 of pain that a layman could 

detect from observing Mr$ Bryant. Pain, unless severe or disabling, is 

highly subjective, the doctor said. The doctor said it was obvious that 

Mr. Bryant was not suffering disabling pain and that he, himself, could not 

say whether Mr. Bryant's pain was moderate or severe. No record was made 

of the severity of the pain complained of on March 7. On March 12, the 

clinical record shows only that Bryant complained of generalized abdominal 

pain. Since Dr. Fonesca prescribed no analgesic~ not even an antacid~ to 

relieve the claimed discomfort on March 7, and since Dr. Straughanus clinical 

report of March 10 did not characterize the severity of the inflammation 

noted, I find the inflammation noted was not causing Mr. Bryant severe 

pain. 36/ 

Although Danny Bryant told Lloyd White on March 7 he was going to 

the doctor to obtain proof that he was too sick to work as a jack setter, 

he never obtained such a statement. The statement of findings and 

unrestricted return to work slip Dr. Fonesca gave him on March 12 were 

35/ Joey Stapleton, the other repairman assigned to set jacks, testified 

Bryant told him he had been ill. Because of this and the fact that Danny 

was working light he assumed Danny was ill. He was not asked whether 

Danny looked or acted sick on March 7. 

36/ Five days elapsed between the time Dr. Fonesca saw Mr. Bryant on 

March 7 and the time he prescribed medicine for his condition on March 12. 

I cannot believe a doctor would permit a patient to suffer severe abdominal 

pain for five days when a mild antacid could have done much to ease it. 

1416 
first produced by his union representative at the arbitration hearing 

held on April S, 1980. 

I find (1) that on March 7 Mr. Bryant was suffering from the same condition diagnosed on March 12, namely a mildly painful inflammation of the lower 

stomach and duodenum and (2) that despite the existence of this condition the 

doctor proffered and Danny accepted without protest an unrestricted return to 

work slipo Based on the clinical evidence and the doctor 1 s contemporaneous 

actions, I conclude Mro Bryant failed to prove by a preponderance of the 

evidence that he was unfit to attempt to set jacks on March 7, 19800 37/ 

The Post Hoc Medical Evidence 

After March 12 9 Dro Fonesca did not see Mro Bryant again until 

July 31, 1980. Dr. Fonesca 1 s clinical notes show Mro Bryant was 

complaining of a sharp, burning pain 'in the upper abdominal area about 

a half hour after eating. Dr. Fonesca found some tenderness in the 

upper abdomen but was also concerned that Bryant seemed anxious, tense 

and depressed. Bryant told him that about a week before, when he was 

hospitalized for an acute muscular strain, 38/ a Dr. Miranda performed 

a gastroscopy on him and told him to take Maalox, a nonprescription 

37/ The most probative evidence of Dr. Fonesca's state of mind and 

diagnosis of Bryant's physical condition is to be found in his contemporaneous clinical notes and in his statement of findings. These 

documents convincingly refute the Secretary's claim that "·Based on his 

examination of Bryant on March 7, 1980, Dr. Fonesca diagnosed a mfcroplasmic (sic) infection of the pharynx and possible reflux esophagitis, 

a stomach condition which is aggravated by bending." Secretary's Br. 

p. 17. 

38/ In June 1980, Bryant went to work for the Paramount Coal Company. 

1417 
antacid, for his stomach condition. Dr. Fonesca told his secretary to 

obtain a copy of Dr. Miranda's gastroscopy report, and in the meantime 

prescribed the same tranquilizer, Librex, and cimetidine, Tagamet. He 

told Bryant to return on,Monday, August 4. 

By the time Bryant returned, Dr. Fonesca had reviewed Dr. Miranda's 

gastroscopy report which disclosed Bryant had "moderate to severe 

gastritis" and a "small hiatal hernia with minimal esophagitis. 11 39 

(JX-2, p. 3). Although Dr. Mirandavs report did not say Mr. Bryant had 

iireflux, 11 Dr. Fonesca interpreted the finding of "minimal esophagitis" as 

clinical support for a suspicion he said he had as early as March 7~ that 

Mr. Bryant had reflux esophagitis. 40 He continued Mr. Bryant on Tagamet 

for his acid indigestion, and prescribed antacids for Mr. Bryant s heart~ 

burn and sour stomach. He found Mr. Bryant recovered after four weeks 

of treatment. 

In response to the question whether an individual in Bryant's claimed 

physical condition on March 7, 1980 could set jacks, Dr. Fonesca said he 

did not think so because Bryant "was having pain, and he was having 

respiratory symptoms.u This was a reference to Mr. Bryant's pharyngitis 

which the doctor later admitted was "improved" to the point in March 

that no further treatment was indicated and which in his statement of 

39/ It was agreed that, standing alone, a hiatal hernia would not have 

justified Bryant's refusal to set jacks on March 7, 1980 (Tr. 397-398). 

!!!}_/ Dr. Fonesca chose to ignore the fact that his findings and those of 

Dr. Straughan "ruled out" reflux in March 1980 as the condition causing 

Mr. Bryant's claimed discomfort. 

1418 
findings, which he gave to Bryant on March 12, he described Mr. Bryant 

as "recovered." 41/ 

There is nothing in the clinical evidence--that is in the evidence 

based upon the actual observations and tests conducted by Doctors Fonesca 

and Straughan on March 7, 10, or 12--to support the view that either doctor 

was concerned during that period with a "respiratory conditiono" If 

Dr. Fonesca was truly concerned during that period with a respiratory 

condition that might worsen if Mro Bryant worked underground~ why did he 

certify Mr. Bryant was "recovered" from the condition and give him an 

unrestricted return to work slip on March 12. !:!.:!:_/ I conclude that in his 

zeal to assist Mro Bryant and the Secretaryvs case 9 Dro Fonesca expressed 

a professional concern at the hearing that did not 9 in fact 9 exist on 

March 7 or 12, 1980. 

Dr. Fonesca also suggested that on March 7, Mr. Bryant was unfit 

because of a pain that "was manifested by a burning sensation and nagging 

41/ This statement was, I find, the most definitive and objective evidence 

of Mr. Bryant's condition on March 7. It stated: 

TO WHOM IT MAY CONCERN: 

Danny Bryant was seen first by me at Norton Community Hospital Emergency 

Room on 2/20/80 with complaints of a rattle in his chest and sore throat. 

Evaluation and studies revealed he had mycoplasma pharyngitis for which 

he was treated and recovered. The next time I saw him was.on'3/7/80 with 

symptoms consistent with peptic ulcer disease. Contrast studies of his 

upper GI tract revealed antral gastritis and duodenitis and he was 

started on treatment. RX-15; Tr. 365. 

42/ Concern over a respiratory condition was also inconsistent with 

Mr. Bryant's willingness to work underground with Mr. Canady to install 

the power center. 

1419 
pain over his abdomen" which indicated reflux. These were symptom_s which 

the clinical evidence shows were not manifest until Dr. Fonesca examined 

Bryant on July 31, 1980. Because of this the doctor was asked whether 

there was any "objective manifestation" of pain or discomfort on March 7. 

The doctor's reply was a dissertation on the subjectivity of pain that 

concluded with an admission that the answer to my question was "none, 11 

and certainly none discernable to a layman, because on March 7 Danny did 

not appear to be "suffering," at least "not very mucho 11 Tro 364-3650 

Dr. Fonesca said that the only way he could have determined the condition 

of Bryant's gastrointestinal tract with any degree of certainty in March 

1980 was to perform a gastroscopy which he did not do. 43 Furthermorei 

the clinical evidence shows that when Dro Miranda did a gastroscopy on 

July 24i 1930 some five months later he did not find 11 reflux esophagitis 11 

merely "minimal esophagitis" a much less severe condition. The record 

shows Dr. Fonesca never had any clinic~l evidence of reflux. 

Dr. Fonesca' s medical opinion on Bryant 1 s_ fi.tness to set jacks as 

expressed at the hearing can be accorded little weight. Not only is it 

contrary to the weight of the clinical evidence it is also contrary to 

his release of Bryant to return to work without limitation on March 12. 

Dr. Fonesca's medical opinion was based on the assumption that Bryant was 

suffering from two conditions that did not exist on March 7, namely a 

lower respiratory tract infection and reflux esophagitis. Dr. Fonesca 

43/ Dr. Fonesca said that while the tests performed by Dr. Straughan in 

March would not necessarily rule out reflux, only a gastroscopy could do 

that, he did not insist that a gastroscopy be performed in March. 

1420 
was willing to assume that what Dr. Miranda found in July "minimal 

esophagitis" existed in March and that it supported his findings, without 

further clinical observation, on August 4 that the condition was reflux, 

which he suspected in March but had ruled out. To assume Bryant had reflux 

in March because Dr. Fonesca diagnosed it in August is to engage in the 

most egregious post hoc propter hoc reasoning and flies directly in the 

face of the clinical evidence which supports at best a finding that Bryant 

had "minimal esophagitis" in Julyo 44/ As Dr. Fonesca admitted, the 

symptoms for gastritis are different from those for reflux and in March 

the clinical evidence supported only a finding of gastritis or acid 

indigestion and not reflux. This was why Bryant was not treated for reflux 

in March. 

On balance, I am impelled to the conclusion that Dr. Fonesca did not 

believe Bryant's acid indigestion made him unfit to set jacks on March 7. 

If he did he would certainly have said so, and would not have been driven 

to include symptoms which he had ruled out in March and for which he had 

only tenuous support in July and August. 

Further, if Bryant actually had the serious, chronic, respiratory and 

gastrointestinal track infections he alleged, it is my opinion that his refusal 

to work would not be protected. Any claim of protected activity that is not 

grounded on an alleged violation of a health or safety standard or which does 

not result from some hazardous condition or practice existing in the mine 

environment for which the operator is responsible falls without the penumbra 

of the statute. Kaestner v. Colorado Westmoreland, Inc., 3 FMSHRC 1994 (1981). 

44/ Post hoc reason is the logical fallacy of thinking that a symptom 

or condition found to exist in August was the cause of Bryant's discomfort in March. 

1421 
I do not believe a miner can, consistent with the good faith, reasonable 

belief requirement, present himself as ready, willing and able to work 

in accordance with the terms of the collective bargaining agreement and 

at the same time claim a protected right to refuse that work because of 

his impaired physical condition, even if his position is thereafter supported 

by sound medical opinion. 45/ I do not believe that in enacting the Mine 

Safety Law Congress intended to turn management's responsibility for 

disciplining the workforce over to the medical or legal professionso 

The Wildcat Strike 

Having found that Bryant's discharge for refusing to set jacks was not 

a protected activity or a pretext for retaliating against an antecedent 

protected activity~ it becomes necessary~ in the event the Commission disagrees, to consider the operator's failsafe defense, namely that Bryant in 

reprisal for his discharge instigatea a wildcat strike that justified his 

disciplinary discharge. I say it becomes necessary because neither the 

Commission nor the courts have definitively indicated the extent to which 

the Commission may substitute its judgement of the facts and credibility 

45/ I think we might all agree that a miner whose physical condition is 

impaired by the use of drugs, including alcohol, might refuse to work 

because of his impaired physical condition and that a doctor might well 

agree that for him to work would be unsafe or detrimental to his health. 

But I also think we would all agree that such a refusal to work was not 

protected and that the operator would have just cause to discipline the 

miner. The analogy to the present case is that if Danny Bryant is to 

be believed he knew he was too sick to perform to the contract for at 

least two weeks before he refused the assignment to set jacks but did 

not seek to remedy his condition until after his suspension. Under' the 

circumstances, Danny's degree of culpability in presenting himself for 

work on March 7 was not that much different from the miner caught drinking 

or using drugs or just sleeping it off on the job. On the other hand, 

fatigue, illness or injuries suffered on the job that affect a miner's 

ability to continue to perform his normal work tasks safely may well 

justify a refusal to work. Whether such a refusal is a protected 

activity is not presented by this record. 

1422 
of the witnesses for that of the trial judge. Because the determinations 

of protected activity.and discriminatory motive are pure questions of fact 

the Commission may not have authority to substitute its evaluation of the 

evidence for that of the trial judge. !!j_/ Pullman-Standard v. Swint, 

u.s. ; 50 L. W. 4425, 4429 (1982). In view of the uncertainty in this ----

area of the law, however, I deem it judicious to set forth my findings on 

this issue also. 47/ 

46/ Under the substantial evidence standard, which I understand governs 

the Commission's review of the trial judge's factual findings, the reviewing 

body may not "displace the ftrier of fact's] choice between two 

conflicting views, even though the [reviewing body] would have justifiably 

made a different choice had the matter been before it de novo. 11 Universal 

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950). Findings may 

be overturned if a reviewing authority "cannot conscientiously find that 

the evidence supporting the decision is substantial, when viewed in the 

light that the record in its entirety furnishes." Id. As the Court has 

recently noted, under the substantial evidence test, the authority 

may not "weigh the evidence" but may only determine whether on the record 

considered as a whole the evidence is sufficient to support the trial 

tribunal's findings and conclusions.~ Steadman v. SEC, 450 u.s; 91, 99, 

and n. 20 (1981). Where Congress has.prescribed a standard of administrative or judicial review, the Commission and the courts must, of course, 

abide by it. Id. 94-95. 

47/ Under Section 7(c) of the APA, the trial judge resolves contested 

i"Ssues of fact by the preponderance of the evidence rule. Under section 

113(d) of the Mine Safety Law, the Commission reviews the trial judge's 

findings under the substantial evidence rule. Secretary v. Kenny 

Richardson 3 FMSHRC 8, 12, n. 7 (1981). Consequently, it would appear 

a trial judge's findings, especially those on credibility, are to 

be accorded greater weight under the Mine Safety Law than under the APA. 

Under the latter, the agency is not required to accept the trial judge's 

findings because the agency on appeal determines the matter de novo. The 

language and legislative history of the Mine Safety Law make clear that 

Congress intended the trial tribunal be accorded greater freedom to find 

facts including those based on impressions of credibility gleaned from 

demeanor, to the end that findings reflect either belief or disbelief of 

any particular testimony. I understand that to mean that in reviewing, 

as it does, a dead record, the Commission must accord considerable deference 

to the "lost demeanor" evidence that was available only to the trial judge. 

Labor Board v. Walton Mfg. Co., 369 U.S. 404 (1962); Alford v. Am. Bridge 

Division, 642 F.2d 807, 809 (5th Cir. 1981); Dir. Wk.rs' Comp., Etc. v. 

Bethelem Steel Corp., 620 F.2d 60, 63-64 (5th Cir. 1980); Atlantic & Gulf 

Stevedores v. Director, Etc., 542 F.2d 602 (3rd Cir. 1976 • 

1423 
Word of Bryant's suspension with intent to discharge spread quickly 

among the miners on the second shift on Friday evening, March 7. The 

men's mood turned sour and by the time the shift ended Joey Stapleton 

was satisfied there would be a sympathy strike for Danny on Monday. 

Stapleton was so sure of his reading of the collective intent that he 

determined to take a vacation day on Monday so he would be paid despite 

the anticipated strike (Tr. 262-267). Stapleton, whom I credit with 

considerable insight, testified the suspension of Bryant was the "catalyst" 

that triggered festering discontent among the rank-and-file miners over 

the way they were being treated by management. 

In the Spring of 1980 the Pilgrim Mine was a paradigm of all that 

troubles labor relations in the mining industry. Working short-handed 

when combined with the push for prod¥ction created considerable stress 

and tension (Tr. 267). 

Morale was very low due, among other things, to recent and prospective 

layoffs, Lloyd White's efforts to curb absenteeism and increase production? 

a soaring accident rate, 48/ working men out of their classification without 

new task training, complaints of unsafe mining practices, 49/ and, of course, 

work slow-downs and stoppages. 

48/ On March 5, 1980, Lewis Reed was seriously injured when the chain came 

off the drive clutch of the bridge conveyor. The injury occurred because 

he was required to operate the machine with the guard off the driV'e clutch 

chain. Stapleton said after they took Reed· to the hospital Cecil Blevins, 

the mine foreman, ordered him to operate the bridge conveyor for the rest 

of the shift without a guard even though he had received no new task training 

for the job. 

49/ George Johnson, President of the UMWA Local, said he was receiving 

and transmitting safety complaints regularly to the company safety 

inspector, Mutt Townes. Some of these involved running the Wilcox miner 

1424 
In addition to the causes for discontent over alleged mistreatment, 

traditional cultural ties and class loyalty dictated the miners show 

solidarity and support for a popular brother and leader like Bryant 

against what the miners viewed as the oppressive and burdensome policies 

of the company and Lloyd White. Don Kennedy, the company's labor relations 

manager, indicated Bryant would not have to solicit or persuade his brothers 

to come to his supporto It was common knowledge that they would even 

if it hurt him and them more than the ubosseso" The U.MoW.B.C.OoAo 

Arbitration Review Board has taken "judicial notice 11 of the fact that 

11 one man, known to be a member of the Union and about whom information 

is gained that he has a grievance, can and does furnish ample signal to 

cause a work stoppage." Under the collective agreement 1 s 

arbitration procedure such circumstances create a rebuttal inference or 

presumption of unlawful picketing or~strike instigation that shifts the 

burden of persuasion to the miner in the event of a sympathy strike. 50/ 

fn. 49 (continued) 

without water to suppress the dust. Others involved setting jacks and 

pinning under unsupported roof. According to Johnson, whose classification was jack setter, he was not supposed to set jacks under unsupported 

roof, "but there is no way you can run a Wilcox without it." Bryant 

complained about being required to perform welding without a methane 

spotter and Lewis Blevins, the mine superintendent, said they were so 

short-handed on March 7 that "to work both sections we couldn't do any 

bolting of the roof during the shift." In May 1980, two months after 

Bryant's discharge, Lewis Blevins quit his job because he found it 

impossible to "get the mine straightened out" and "to producing good 

coal" due to absenteeism and strikes. Henry Canady quit the mine in 

April over a dispute concerning the use of alcoholic beverages on mine 

property and later in the year Lloyd and Tom White, among others, were 

indicted for alleged criminal violations of the Mine Safety Lawo In 

December 1980, Clinchfield pleaded guilty to four counts of violating 

the Mine Safety Law and paid a fine of $100,000. 

50/ Thus, under the "law of the shop" a miner is presumed guilty until 

he proves his innocence. 

1425 
ARB, Decision 108, issued October 10, 1977, at 16-17. The Arbitration 

Review Board further held that in view of the "Miners' traditional willingness to shut down mines in supposed aid of fellow Miners" even informational picketing as distinguished from work stoppage picketing "cannot 

realistically be viewed as the exercise of constitutionally protected 

freedom of speech and must be viewed, instead, as a contractually improper 

act of work-stoppage inducement." Ido at 21. 

The significance of the conventional wisdom for this case is that 

both Danny Bryants the complainant 9 and Don Kennedy, the company labor 

relations manager, agreed that whether or not Bryant did anything other 

than provoke his suspension on , March 7~ 1980~ he would surely be 

discharged for instigating a wildcat strike if the miners walked out on 

Monday (Tr. 165-166, 168, 173-175; RX-18, p. 40; 183, 658-159). · 

While Bryant had ample opportunity to advise and consult with his 

brothers on Friday and over the weekend, his testimony, if it is to be 

believed, was that he talked to no one except, I assume, his wife about 

his suspension. 'il_/ Dr. Fonesca indicated much of the stress, hyperactivity and agitation observed in Bryant that day may have been attributable to his suspension and prospective unemployment. 

51/ Henry Canady contradicted Bryant stating that after Bryant was suspended 

on Friday afternoon he came back to the repair shop and announced that "he 

was fired. It was over" (Tr. 251). Henry told Joey Stapleton what had 

happened when Joey came out to make his belt examiner's report. The word 

spread quickly and according to Stapleton before the shift was over all 

the miners knew of the disciplinary action taken against Danny (Tr. 264). 

Scott Parrott, a maintenance man, told George Johnson, President of the 

Local, "about Danny getting fired" when Scott came up on the working section 

Friday night (Tr. 313). 

142,S 
After Bryant was suspended and before he talked to Canady, he and 

Nichols conferred briefly in the bathhouse about their next step. It 

was agreed that Danny would carry his grievance to the second stage and 

that Nichols would contact the District 28 representative about when to 

schedule the second stage meeting. Over the weekend or on Monday, James 

Nichols contacted the District 28 representative, Ken Holbrook, and the 

latter talked to Don Kennedys the company representative. They arranged 

to hold the second stage meeting on Tuesdays March 11, 1980 at 2:30 p.m.~ 

at the mine site. Bryant never denied that he knew about this arrangemento 

Management was encouraged to think the miners might not support Bryant 

when the third or hoot-owl shift reported for work without incident on 

Sunday nighto The situation was tense, however» and the tension rose 

further when the day shift also repor'-ted for work at 7:30 a.m. ,. Monday 

morning, March 10, 1980. 

This was the morning Bryant had his G.I. Series with Dr. Straughan 

at the Norton Community Hospital. By this time, Danny was convinced, as 

he said he was from the beginning, that management was out to 0 punish" 

him and that he would not prevail in his appeal of the suspension under 

the arbitration procedure. 52/ When he returned home from the hospital, 

52/ Indicative of Bryant's mood was the fact that he filed his discrimination complaint with MSHA on Friday, March 14, 1980, three days before 

the second stage meeting. The thrust of Bryant's initial complaint was 

that the assignment to set jacks was in retaliation for his refusal to 

operate the Julie car without a jack, jackbar and fire extinguisher in 

June 1979. He was convinced in his own mind that management picked him 

to do a dirty job when it could just as well have assigned it to someone 

else, such as the roof bolter Charlie Webb, because White wanted to 

"harrass" and npunish" him. White may well have wanted to make an example 

1427 
around noon, Danny called the mine office and talked to Sharon Blevins, 

the mine clerk. He told her to tell Lewis Blevins he wanted to come by 

and turn in his tools and pick up his clothes. E._/ Sharon told him he 

would have to call back around 2:00 p.m. because Lewis was underground. 

Danny waited until 2 or 2:15 p.m. to call back. In the meantime, Lewis 

Blevins called Lloyd White who was at another mine and asked for instructions 

on Danny's requesto White told Blevins to tell Danny not to come to the 

mine until after the evening shift went underground which would be sometime 

between 4~00 and 4~30 p.m. 

White said if he came earlier and the men struck it would be bad for 

Bryant 1 s case because then he would also be charged with instigating a work 

stoppage. When Danny called, Lewis Blevins conveyed White 1 s instructions. 54/ 

fn. 52 (continued) 

of Bryant but it was not because of any protected activity. White felt 

he had to assert his authority or risk losing control over his workforce. 

Bryant, on the other hand, felt he was being unnecessarily demeaned and 

seized upon his claimed illness and lack of new task training as an excuse 

for his resentment over being "singled out" for the dirty work. Since new 

task training cannot take place if a miner refuses to accept the assignment 

where the training is to be given, Bryant's anticipatory refusal was 

obviously not a protected "affirmative action." 

53/ This action was the first overt indication or "signal" of Danny's 

concern over the outcome of the pending arbitration case. This may have 

stemmed from his failure to obtain a timely excuse due to illness from 

Dr. Fonesca. 

~/ At the hearing much was made over whether Blevins told Bryant not 

to come until after 4:00 p.m. or 4:30 p.m. It is undisputed that ~ryant 

appeared at the bathhouse at five minutes to 4 on the excuse that he was 

looking for Nichols to sign his grievance. Bryant knew, of course, that 

if the men struck he would be held accountable regardless of what he did 

or did not do to foment a work stoppage. Bryant, Don Kennedy, Lewis 

Blevins and others confirmed that this is the tradition in the coalfields. 

Thus, everyone agreed that it was "common knowledge" that if a union member, 

1428 
Bryant then asked for James Nichols' phone number and Lewis put Sharon 

on the line. He told Sharon and Lewis that he needed to meet with James 

Nichols, his mine committeeman, that afternoon so that he could sign his 

grievance and thereby preserve his right to arbitration of his dispute 

with Lloyd White. 

I find it impossible to credit Bryant's version of why he needed to 

meet James Nichols before he went underground on the afternoon of Monday~ 

March 10, 19800 The record shows that on Friday, March 7, at the conclusion of the suspension hearing it was agreed by all present, including 

Bryant that the 48 hour limitation on holding a second stage meeting was 

waived because of the intervening weekend (RX-5, po ll)o It also shows 

that by Monday, March 10, Nichols had spoken with Ken Holbrook 0 the 

Union's District 28 representative and that the latter had agreed with 

Don Kennedy, the operator's labor relations manager, to extend the time 

for the second stage meeting to 2:30 p.m., Tuesday, March 11, 1980 (RX-18, 

P• 3). 

Under the collective bargaining agreement, there was no need for 

Bryant to sign a request for formal arbitration until the time of the 

fn. 54 (continued) 

and especially a union leader, is suspended with intent to discharge, there 

will almost "automatically" be a work stoppage and management will retaliate 

by charging the miner with instigating a wildcat strike. The miner will 

then have to assume the all but impossible burden of proviqg he did not 

provoke the strike and when he fails, as he almost invariably does, the 

arbitrator will uphold the imposition of a disciplinary discharge, the 

industrial equivalent of capital punishment. The Arbitration Review Board 

feels these draconian measures are needed to force the miners to honor the 

obligation to arbitrate these disputes and enforce the no-strike provision 

of the collective bargaining agreement. 

1429 
second stage meeting (RX-29, Art. XXIV(d)). Bryant had not elected to go 

to immediate arbitration and knew the second stage meeting which he had 

requested was set for Tuesday, March 11. 55/ Furthermore, whether or not 

a second stage meeting was held, the collective bargaining agreement 

guaranteed Bryant five days from the date the suspension notice issued to 

file a formal request for arbitration (RX-29, Arto XXIV(d))• Bryant 

testified that on Monday afternoon he was only on the third day of the 

five days allowed to file his request for arbitrationo :2£/ 

Bryant made no effort, according to him, to reach Nichols over the 

weekend or at any time Monday prior to the time Lewis Blevins warned him 

against doing anything that might be construed as a signal for a sympathy 

strikeo It was only at that point that Bryant determined he had to seek 

Nichols that afternoon and, if neces~ary, on the mine site. 

I find that Bryant who was Chairman of the Mine Committee and who 

was advised and represented throughout the grievance and arbitration proceedings by a knowledgeable District 28 representative knew or should have 

known there was no urgent need for him to meet with James Nichols to sign 

a request for arbitration before Nichols went underground with the second 

shift at 4:00 p.m., Monday March 10, 1980. I further find that his claimed 

55/ Because of the work stoppage that occurred on Monday afternoon, this 

meeting was postponed until Monday, March 17. 

56/ Since the suspension notice issued at 4:00 p.m., Friday, March 7, 

1980 Bryant had until 4:00 p.m., Wednesday, March 12, 1980 to file his 

formal grievance and request for arbitration by an umpire. Bryant knew, 

of course, that if there was a strike management would refuse to go forward 

with the second stage meeting until the men returned to work. He also knew 

that this would automatically toll the running of the five day period. 

1430 
need to see Nichols was an ingenious, if nevertheless manufactured, excuse 

or pretext for violating the instructions against being at the mine site 

Monday afternoon before the evening shift went underground. 

After Bryant spoke to Lewis and Sharon Blevins he called James Nichols 

at his mother-in-law's house in Jenkins, Kentucky. This was around 2:30 p.mo 9 

Monday, March 10, 1980. At that time he was told James had already left for 

work. 57/ 

According to Bryant~ he left home imediately to try to intercept Nichols 

before he arrived at the mine. The undisputed evidence shows that James 

Nichols and Henry Canady were the only two miners on the evening shift who 

used the Bold Camp Road~ State Route #633~ to approach the mine access road 

from the north (RX-31). All the others, including Danny Bryant~ came in 

from roads that fed into Bold Camp Rci~d from the south and then right off 

that into the mine access road. 

When Danny started from his home in Wise,_ V~rginia to catch Nichols 

he took Route #23 north to Pound, Virginia and thereby bypassed the mine 

access road off Route #633. At Pound, he turned on to the Bold Camp Road 

57/ James Nichols said he left home around 2:30 p.m., Monday afternoon to 

meet with Holbrook at the District 28 office in St. Paul, Virginia. After 

he finished talking to Holbrook about Danny's grievance, he left St. Paul 

on his motorcycle and arrived at the mine access road from the south--

coming up the hill around 3:30 p.m. He denied seeing Danny who by, this 

time was waiting for him halfway up the hill at the wide spot above the 

mine access road. The first time he remembered seeing Danny was in the 

bathhouse about a half hour to forty-five minutes after the men struck. 

Bryant denied seeing Nichols at all that day. I find it significant that 

Bryant seemed to lose all interest in finding Nichols after the strike 

occurred. 

1431 
at Singleton's Department Store and headed south. He believed he was 

ahead of Nichols who would, he thought, be coming down through Pound from 

Jenkins which is north of Pound on Route #23. The mine access road is 

seven or eight miles south of Pound. Bryant was in his jeep and had 

his young son with him. Although he was confident he was ahead of Nichols, 

he did not stop along the road away from the mine but, while he watched 

for Nichols in his rear view mirror, he continued to drive south until 

he reached a wide spot in the road about 100 feet off mine property and 

approximately 500 to 1,000 feet above the mine access roado When he st 

his vehicle it was about 3:15 p.m. He and his son got out and stood beside 

the road looking, he said, for Nichols. The wide spot where Bryant stopped 

was on the downslope of the hill above the mine access roado The Bold 

Camp Road ran on down the hill to the point where it intersected the mine 

access road. Vehicles approaching fr'om the soutb could see the spot where 

Danny was standing and he could see them. 

Danny claimed that he could not be seen by miners in the parking lot 

or mine office but never denied that he could be seen by miners approaching 

from the south on the Bold Camp Road. Harlan Hall a union miner who 

worked the day shift was called as a witness by Danny's Union representative, Ken Holbrook, at the second stage meeting on Monday, March 17, 1980. 

Mr. Hall said he was familiar with the wide spot in the road where Danny 

parked because "I was parked up there when I was off the other tim~ I 

was discharged" (RX-18, p. 48). At the arbitration hearing, Lewis Blevins 

testified that Hall's discharge also resulted in a wildcat strike (RX-26, 

p. 139). Larry Boggs, a union miner and a member of Bryant's Mine Committee, 

1432 
further testified that from the wide spot in the road, "Yes, you can see 

cars coming up the hill" (RX-18, p. 51). The MSHA investigator confirmed 

that anyone with prior knowledge of the existence of the spot where Danny 

stopped and who looked would have been able to see Bryant. 

At the time Bryant and his son dismounted from the jeep and stood 

beside the road, the other miners on the evening shift were approaching 

the mine access road from down the hilla James Nichols came up the hill 

and turned into the access road sometime between 3:30 and 3:45 p.mo Henry 

Canady also passed the spot where Bryant was standing with his son sometime between 3:15 and 3:30. Henry denied seeing Danny and Danny denied 

seeing Henryo Bryant did admit he saw Lloyd White pass on his way to the 

mine office around 3:30 porno 

Upon arriving at the mine office, White told Lewis Blevins he saw 

Bryant beside the road about a 100 feet off mine property. White told 

Blevins that if there was a work stoppage he wanted to add a charge of 

instigating a strike to Bryant's notice of suspension. 

Most of the miners on the evening or second shift, Danny's shift, 

arrived for work around 3:30 p.m. Apparently the miners had decided 

on their course of action before they arrived. In any event, around 

3:45 p.m. the evening shift miners led by George Johnson, the President 

of the Local, approached Lloyd White and Lewis Blevins in the mine 

office and told White a "majority of the men voted to stay off from work 

until (White] brought Danny back to work." Lloyd White declined the demand 

1433 
stating the matter was now the subject of a grievance and until that was 

settled the best thing ·they could do for Danny was to let the arbitration 

take its course. If Danny was reinstated, he would get back pay, but 

if they called a strike they and he would both be the losers. The miners 

then walked off the hill and did not return until Friday, March 14, 1980. 

I find a preponderance of the evidence establishes that the sympathy 

strike of March 10 to 13, 1980 at the Pilgrim Mine was to protest the 

suspension of Danny Bryant and to put economic pressure on the operator 

to reinstate Bryanta 58/ 

In the meantime, Danny accompanied by his son decided to drive to 

the mine officeo They arrived at the bathhouse~ which was in the same 

building, about five minutes to fouro While I find it incredible. Bryant 

said that by that time the entire evening shift had left. The only person 

~ 

he saw, he said, was Harlan Hall of the day shift who told him the evening 

shift had struck and left. Later he admitted he also saw Larry Boggs 

the day shift mine committeeman who accompanied him when White called him 

in to tell him that a charge of instigation was being added to the charges 

against him. He said he did not see James Nichols and did not inquire as 

to his whereabouts. 59/ 

58/ As a result of the four day stoppage, the operator claims it lost 

2;150 tons of coal production. 

59/ Nichols contradicted this at the second stage meeting. He said he saw 

Bryant in the bathhouse about 30 to 45 minutes after the mine was struck. 

Nichols was subpoened by counsel for the Secretary but the subpoena was 

never served and, despite repeated assurances by counsel, Nichols was 

never produced. The trial tribunal was thus deprived of an opportunity 

to test Bryant's version of why he needed to see Nichols on March 10 

1434 
At the arbitration hearing, Lewis Blevins testified, without contradiction, that on the afternoon of Tuesday, March 11, 1980, the entire 

Mine Committee consisting of Bryant, Nichols and Boggs accompanied by George 

Johnson the president of the Local came to his office and again told him 

a majority of the miners had voted to strike until management put Danny 

back to work (RX-26, p. 136; RX-4, p. 4). Bryant gave no indication that 

he was not present when the vote was taken or that he did not concur in 

his brothers' action. 

I find that with the possible exception of Joey Stapleton~ Bryant 

and the other miner witnesses who testified seriously undermined their 

credibility by their understandable !l!J../ but nevertheless transparent 

attempts to stonewall and disinform the trial tribunal over Danny's and 

the Local Union's involvement in the sympathy strikeo !:.!/ 

fn. 59 (continued) 

against Nichols's version. The record shows that on Tuesday, March 11, 

1980, Bryant went with Nichols and others to see Lewis Blevins about the 

second stage meeting and to file Bryant's grievance. At that time, Bryant 

apparently signed a request for arbitration dated March 11. When Blevins 

told them management would not meet with them until the strike ended, 

they took the document back. It was redated on March 17, when the second 

stage meeting actually occurred. 

60/ Until the Supreme Court's decision in Complete Auto Transit, Inc. v. 

Reis, 451 U.S. 401 (1981), it was not clear to what extent union members 

who participated in a wildcat strike might be held personally liable in 

damages to their employer. And while most local unions are judgment proof, 

they are not immune from damage suits occasioned by wildcat strikes. 

g/ For example, George Johnson, the president of the Local, could- not 

remember why the miners decided to walk off the hill that day, even 

though he admitted to the MSHA investigator that he demanded management 

put Danny Bryant back to work as the price of settling the strike. 

1435 
My conclusion, which is congruent with that of the arbitrator, is 

that Bryant's excuse for stationing himself beside the public road at a 

point where he could see and be seen by miners entering the mine access 

road was a mere pretext or cover for picketing the mine and a mute plea 

for support from his brothers. It was also a silent pledge of solidarity 

from Danny to his brothers who were doing only what he knew they had to 

I find it unrewarding to attempt to draw any metaphysical distinction 

over whether Danny actively fomented the strike or was merely an interested 

bystander. Under the circumstances, his presence on the road was not a 

protected activityo His participation in the vote and the carrying of the 

message to Blevins on Tuesday is convincing evidence of his conscious strike 

activityo Nor do I find Danny's responsibility was in any way lessened 

because of the tradition among the miners which made the strike inevitable. 

Whether the miners struck only because of their loyalty to Danny or also 

because they had little or no faith in the fairness or equity of the 

arbitration system or for other reasons lost in the mists of tradition 

and memory I need not determine. 

My conclusions are, therefore, that Danny did picket and otherwise 

help instigate the strike of March 10, 1980; that management was justified 

in charging him with instigating the strike; and that the arbitrator was 

correct in finding him guilty of that charge. 62/ 

62/ A full immersion in this record is persuasive of the fact that a 

majority of the miners at the Pilgrim Mine felt, as miners have for eons, 

that the only way to redress their sense of outrage over what they 

perceived as a rank injustice to Bryant was to take direct action and 

1436 
I further conclude that but for Danny's overt picketing before the 

sympathy strike he woul9 not have been discharged. 63/ 

Legality of the Wildcat Strike 

Implicit in the arbitrator's finding that instigation of the 

wildcat strike of March 10 was njust cause" for Bryant's discharge is 

a finding that the wildcat strike was illegalo Indeed, the Secretary 

has not contended that instigation of a strike is a protected activityo 

His focus was on sustaining Dannyvs exculpatory excuse for standing beside 

the public road. My finding, as well as that of the arbitrator~ is that 

the reasons given for Bryant being there were not convincingo 64/ 

fno 62 (continued) 

shut down the mineo I reject the idea that the strike was the result of 

some arcane signal that Bryant sent to his brothers. Their support, he 

firmly believed, could not help him. , Yet he wanted and needed it.. Their 

action and his sprang from a deep well of resentment over the way the 

workforce was being treated. This was ,the same resentment toward what was 

perceived as management's callous disregard for human dignity that caused 

Bryant to rebel against the assignment to set jaeks in the first place. 

For whatever reason, Lloyd White was driving his workforce to the breaking 

point. Maybe it was the insatiable push for production. Maybe it was the 

sloth and intransigence of the workforce. The reaction on both sides was 

a conditioned overreaction. The roles seemed preordained, Pavlovian and 

almost trance like. It has been difficult to separate the legal rights 

from the legal wrongs in this minor tragedy in human and labor relations. 

Everyone seems to have been as much a victim as a villain. 

63/ The arbitrator found that standing alone, the refusal to work on 

March 7, 1980 did not merit a disciplinary discharge. He concluded that 

it was the "misconduct of March 7 ••• combined with his [Bryant's] 

inducing a wildcat strike on March 10" that was "just cause for the 

discharge" (RX-7, p. 8). 

64/ Generally, the law recognizes that intention or purpose can be 

ascertained either from verbal or nonverbal conduct of a party. The 

simplest proof is where the actor admits he consciously intended his 

conduct to produce the result it did. 

The more usual situation is where intention must be inferred from 

a person's conduct. Under the circumstances of this case, the trial 

1437 
My research leads me to conclude Bryant's conduct was a clear 

violation of the implied no-strike and compulsory arbitration clauses 

of the National Bituminous Coal Wage Agreement of 1978, the agreement 

in effect on March 10, 1980 and to which as a member of the union he 

was a party. 65/ 

In Gateway Coal Company Vo Mine Workers, 414 U.So 368 (1974), the 

Supreme Court held the broad, compulsory arbitration provision of the 

1968 National Bituminous Coal Wage Agreement required the arbitration of 

safety disputes and based on the well known presumption of arbitrability 

enunciated in the Steelworkers Trilogy implied a no-strike obligation on 

the part of the Union and its members "coterminus" with the arbitration 

provision. The Mine Workers Union had called a work stoppage in the 

Gateway mine, alleging that hazardou~ working conditions were created 

by the presence of two foremen, responsible for keeping ventilation 

records. These miners had recently been convicted of falsely preparing 

records so as to indicate no inadequacy in the ventilation. Although 

the 1968 Wage Agreement provided for the arbitration of "any local 

trouble of any kind arising at the mine," it contained no explicit 

fn. 64 (continued) 

judge has evaluated the degree of probability that Bryant's presence 

beside a road at a point visible to miners approaching the mine access 

road contributed to the occurrence of the strike. Because.of the high 

degree of probability that such presence or picketing would result' in a 

strike, the trial judge has inferred that in<lucing such a strike was 

Bryant's intent or purpose in being there. 

~/ The National Bituminous Coal Wage Agreement of 1978 runs between each 

signatory employer and the International Union "on behalf of each member 

thereof" (RX-29, Art. I). 

1438 
no-strike clause. The Court, after holding that the safety dispute was 

subject to arbitration, concluded it was proper to imply a no-strike 

obligation. 

Shortly after the Gateway decision, Article III(p) was added to the 

National Bituminous Coal Wage Agreement. This section specifically provides 

for the arhitration of "Health or Safety Disputes" (RX-29, p. 25)o There 

seems to be no question but that Danny Bryant was under a commitment not 

to strike or to picket to induce a sympathy strike over a health or safety 

dispute. U.S. Steel Corp. v. United Mine Wk.rs. of America, 593 F.2d 201 

(3d Cir. 1970); Cedar Coal Company v. United Mine Workers, 560 F.2d 1153 

(4th Cir. 1977). As these decisions make clear, a sympathy strike over 

an arhitrable dispute is not sheltered by the Supreme Court 1 s decision 

in Buffalo Forge Co. v. United Steelworkers, 428.U.S. 397 (1976) •. · 

It is true, of course, that section 105(c) ·of the Mine Safety Law 

confers on miners such as Danny Bryant specific substantive rights that 

are not subject to the contractual dispute-resolution procedures of the 

Wage Agreement. Pasula v. Consolidation Coal Co., 2 MSHC 1001, 1007 

(1980) (Arbitral findings even those perfectly congruent with issues before 

the Commission are not binding on the Commission), affirmed on this ground, 

reversed on other grounds Consolidation Coal Company v. Marshall, 663 F.2d 

1211, 1218-1219 (3d Cir. 1981). Barrentine v. Arkansas-Best Freight System, 

450 U.S. 728 (1981); Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 (1974). 

But the fact that rights guaranteed individual miners under the antireprisal provisions of the Mine Safety Law are "nonwaivable" and therefore 

1439 
not subject to compulsory arbitration does not mean that in the exercise 

of such rights a miner or his local union may violate with impunity their 

no-strike pledge. Emporium Capwell Co. v. Western Addition Community Org. 

420 50, 70-73 (1975). 

In Emporium Capwell, the Court held that concerted activity in support 

of an arbitrable grievance is unprotected and renders the participants 

susceptible to <lischargeo Such activity which includes picketing is 

considered a prohibited resort to self-help and economic coercion because 

it contravenes the orderly disputes settlement process contemplated by the 

NLRA and the arbitration provisions of the collective bargaining agreemento 

Id. note 12 and accompanying texto Nor does the strong congressional policy 

of protecting miners from operatorsq reprisals in the exercise of rights 

guaranteed under the Mine Safety Law sanction violations of the no-strike 

pledge. The Court in Emporium Capwell rejected the claim that in order •,, 

to give full sway to the anti-retaliation provi~ions of Title VII of the 

Civil Rights Act picketing and other concerted activity to protest racially 

discriminatory employment practices must be recognized as a protected 

activity under sections 7 and 8 of the National Labor Relations Act. 

The Court noted: 

Even assuming that ~704(a) protects employees' picketing 

and instituting a consumer boycott of their employer, 

the same conduct is not necessarily entitled to affirmative protection from the NLRA. Under the scheme of that 

Act, conduct which is not protected concerted activity may 

lawfully form the basis for the participants discharge. 

That does not mean that the discharge is iminune froni attack 

on other statutory grounds in an appropriate case. If the 

discharges in these cases are violative of ~704(a) of 

Title VII, the remedial provisions of that title provide 

the means by which [complainants] may recover their jobs 

with back pay. Id. 71-72. 

1440 
Picketing to induce a wildcat sympathy strike where the underlying 

dispute is over a preex~sting health or safety problem even where it involves 

a protected refusal to work is not, therefore, a protected activity under 

either the National Labor Relations Act or the Mine Safety Law. 66/ 

Because Danny Bryant violated the no-strike provision of his collective bargaining agreement with Clinchfield Coal Company, the operator had 

667--oil" the other hand, a concerted refusal to work because of a good 

faith, reasonable belief that a hazard exists is protected activity under 

section 105(c) of the Mine Safety Lawo Dunmire and Estle Vo Northern Coal 

Co., 4 FMSHRC 126, 134 (1982); Isaac Ao Burton, et alo Vo South East Coal 

COnlpany, 4 FMSHRC 457, 462 (1982); Hark Segedi, et aL v. Rethleham Mines 

Corporation, 3 FMSHRC 765 (1981). The right to s-t-rike over-;afety-arl"dhealth issues is also protected by section 7 of the National Labor Relations 

Act and section 502 of the Labor Management Relations Act. Whirlpool Corp. 

Vo Marshall, 445 U.S. 1, 17, n. 29 (1980); NLRB Vo Washington Aluminum Coo 0 

370 UoS. 9 (1962): NLRB v. Knight~Morley Cor:p::- 251 F.2d 753 (6_t_h--Ci-r:----

1957). 

The effect of these provisions a,s well as t,hose found in the Occupational 

Safety an(l Health Act is to create an'.exception to a no-strike obligation 

in a collective bargaining agreement. ~d.; Gateway Coal Co. v. Mine Workers, 

414 U.S. 368, 385 (1974). While different standards of proof may be required 

to trigger the immunity, all provide protection ,to \vorkers who walk off 

their jobs because of hazardous conditions. In addition, the :niners' 

collective bargaining agreement authorizes individual miners to withdraw 

their labor in the face of "abnormally and immediately dangerous" conditions 

(RX-29, p. 18). The Mine Safety and Health Commlttee can close down a 

mine or any portion thereof that it has reason to helie\Te presents an 

imminent danger to the lives or bodies of the miners (RX-29, p. 12). 

But a miner may not hypass the arhi.tral process and resort to selfhelp by inducing a wildcat sympathy strike in an effort to coerce an 

operator into resolving an existing health or safety dispute ln his fo11or. 

Emporium Capwell, supra. In this case, the Secretary never claimed thr:: 

strike was a protected activity or that it involved a refusal to work 

because of any hazardous or extrahazardous condttion that existed in the 

mine. On the contrary a preponderance of tht"- eV'idence established that 

the underlying dispute that triggered the strike was Bryant.' s suspension. 

The strike was not, therefore~ in furtherance of any rights guaranteed 

under the Mine Safety Law to Danny Bryant or the other miners who 

participated. The absence of any right to engage in economic coercion 

is negated by the availability of the remedy of reinstatement pending 

resolution of a protected health or safety dispute. 

1441 
the right under that agreement and the law to discharge him without 

right of reinstatement. Complete Auto Transit Inc. v. Reis, 451 U.S. 

401, 415, n. 16, 416, n. 18, 420 (1981); Atkinson v. Sinclair Refining 

Company, 370 U.S. 238, 246 (1962); NLRB v. Sands Mfg. Co., 306 U.S. 332 

(1939). 67/ 

CONCLUSIONS OF LAW 

Based on the foregoing findings I conclude that as a matter of law: 

1. Bryant's refusal to accept a strenuous work task assignment based 

on his asserted belief that performance of the task in conditions normally 

encountered in the environment of a low coal mine would aggravate or 

worsen his claimed respiratory and gastrointestinal ailments was not an 

activity protected under section 105(c)(l) of the Mine Safety Law. To ~ ~ 

enjoy protection under the anti-repris~l provisions of the Mine Safety Law, 

a refusal to work must (1) be based on some conqition or practice in the 

mine or working environment for which the operator is responsible and 

(2) create a hazard or danger to the miner's health or safety that is 

recognizable and in excess of that inherent in the operation and normally 

encountered. Where, as here, the claim of protected activity concerns 

not some identifiable presently existing threat to the miner's health or 

safety, but rather a generalized doubt on his part as to his competence 

67/ Compare, Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d 1981), 

where the court held that while a miner has a right to refuse to work in 

the face of a hazard to his safety or health he does not have the right to 

prevent others from working by shutting down the means of production. See 

also Blankenship v. W-P Coal Company, 3 FMSHRC 969 (1981); Gooslin v. 

Kentucky Carbon Corporation, 3 FMSHRC 640 (1981). 

1442 
and physical fitness to perform the task, Congress did not intend that 

the public policy favoring the arbitration of grievances be circumvented 

and supervening jurisdiction over the dispute conferred on the Commission 

merely because a refusal to work was involved. 

2. Danny Bryant's instigation of a work stoppage on June 1, 1979 

in connection with the Julie car was not a protected activity under 

section 105(c)(l) of the Mine Safety Lawo 

3. The Secretary failed to prove by a preponderance of the reliable~ 

probative and substantial evidence that Danny Bryant 1 s refusal to accept 

Mr. White's order to perform the job of a jack setter on March 7 9 1980~ 

was a protected activity under section lOS(c)(l) of the Mine Safety Lawo 

4. The operator proved by a pfeponderance . of the reliable~ probative . 

and substantial evidence that Danny Br<ant was one of the instigators of 

the wildcat strike that commenced on Monday, March 10, 1980. This activity 

was unlawful and in breach of Bryant's no-strikepledge under his calleetive bargaining agreement with the operator. This activity furnished just 

cause for Bryant's discharge. 

OPINION 

This was not a dual motive case. Reams have been written.over the 

pleading and proof requirements in anti-reprisal (discrimination) ,cases 

involving dual or mixed motives. See, e.g. Lasky and Leathers, Applying 

the Wright Line Test: Mixed Results In the Circuits, NLJ, 3/22/82, p. 32. 

Applying the tests for evaluating a prima facie case of protected activity 

.1443 
as developed by the Commission in Pasula/Robinette I conclude the Secretary 

failed to prove by a pr~ponderance of all the evidence that Bryant was at 

any time engaged in a protected activity. This eliminates, therefore, the 

necessity of making any extended "pretextual" or "but for" analysis. 68/ 

Compare, NLRB v. Chas. H. Batchelder Co., 646 F.2d 33, 42-44 (2d. Cir. 1981). 

I realize that because of Congressional concern over protecting the unhibited 

exercise of the right to refuse to work all the Act requires is proof that 

the miner honestly and reasonably believed that he confronted a threat to 

his safety or health. Consolidation Coal Co. v. Marshall 9 663 F.2d 1211; 

1219 (3d Cir. 1981). I also understand that such a refusal is protected 

from retaliation by the operator even if the evidence ultimately shows that 

68/ The Secretary argues that Bryant was fired for engaging in two instances 

of protected activity: (1) the Julie car incident, and (2) the refusal to set 

jacks. The Secretary says both incid~nts stemmed from a managemen_t animus 

against safety activists and were inspired by a single discriminatory motive. 

My evaluation of the evidence shows: (1) the Julie car incident did not 

involve any protected activity because the absence of a fire extinguisher 

presented no immediate or recognizable hazard that justified a work stoppage 

and, even if it did, it was under the circumstances so clouded by pretextual 

reasons for harrassing the section foreman that it lost all independent 

significance as a cause of management's displeasure with Bryant's conduct; 

(2) the refusal to set jacks was unprotected because there was no immediate 

or long-term health or safety hazard that justified Bryant's claimed right 

to be selective in his work assignments. Since both activities relied upon 

were unprotected, a presumption of discriminatory motive was never established. Both the prima facie and rebuttal cases show the sole reason for 

Bryant's suspension was his refusal to work at setting jacks. This was a 

serious breach of his employment obligation that justified disciplinary 

action. Whether it was of a magnitude sufficient to justify discharge, I 

need not, and probably should not,. be concerned. See, Chacon v. Phelps 

Dodge CorporatioE_, 3 FMSHRC 2508, 2516, 2 BNA MSHC 1505 (19~1); Bradley 

v. Belva Coal Co., FMSHRC , Dkt. WEVA 80-708-D, decided 

June 4, 1982. In any event, the undisputed evidence shows Bryant was 

actually fired because he instigated a wildcat strike, a breach of his 

employment obligation that undoubtedly justified his discharge. The fact 

that few, if any, tears were shed over his departure may be regrettable 

but it was not unlawful. 

1444 
the conditions were not as serious or as hazardous as the miner honestly 

believed them to be. Id. 

Under the circumstances presented in this case, however, I am not 

persuaded that the miner either had a good faith, reasonable belief that 

his illness was as serious as he claimed it was or, regardless .of the 

bona fides of his belief, that it was the kind of threat to his safety 

or health covered by the Acto I do not believe Congress intended to afford 

miners the right knowingly to present themselves for work in a physical 

condition that precludes the safe or healthful execution of their tasks 

and then to decline or refuse to perform such tasks with total immunity 

from discipline by their employerso 

For these reasons~ I have determined that even if Mro Bryant had a 

good faith, reasonable belief that hi$ claimed weakened physical condition 

would not permit him to perform the ta~ks of a jack setter safely and 

without detriment to his health, this subjectiv~ belief was not, under 

the circumstances, a justification for his refusal to work because it 

stemmed from his own misconduct and violation of company policy in presenting himself for work in that condition. 

Finally, I find the operator made a persuasive affirmative showing 

that subsequent to his disciplinary suspension Mr. Bryant was one of the 

instigators of a wildcat strike and that but for that activjty Mr. Bryant 

would not have been discharged. The operator thus successfully carried 

a heavier burden than some of the courts of appeals would require and 

at least as heavy a burden as the Commission fashioned in Pasula and 

1445 
Robinette. 69/ Not only did Bryant fail to validate the purity of his 

motives and the reasonableness of his beliefs with respect to the claimed 

antecedent protected activity but the operator successfully established 

through contemporaneous clinical evidence that Bryant's actually physical 

condition on the critical date did not render him unfit to perform the 

work assignment he refused. 

The decision in this case has turned on a careful weighing of all the 

evidence in the record considered as a whole. Because the Secretary failed 

to prove Bryant engaged in protected activity~ it has not focused on any 

narrow issues concerning burdens of proof as to motive. As a practical matter~ 

those considerations fell away once the trial was concluded. I do not believe 

it productive 9 therefore~ to attempt to unravel the labyrinthine holdings 

and literature spawned by the Commission 1 s Fasula and the NLRB 1 s Wright Line 

decisions. The reconciliation of these<.writings and their implications for the 

correctness of the Commission's allocation of the burdens of proof in dual 

motive cases under section 105(c) of the Mine-Safety Law I must leave to 

another day or to the law reviews 70/ and the Commission. Suffice it to say 

that my distillation of the holdings and literature leads me to conclude that 

under Pasula and its progeny once a showing has been made that a disciplinary 

decision was tainted or motivated "at least in part" by a miner's protected 

activity, the burden of persuasion shifts to the operator to show that the 

69/ Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800, 2 BNA 

MSHC 1001 (1980); Robinette v. United Castle Coal Co., 3 FMSHRC 803, 

817-818, 2 BNA MSHC 1213 (1981). 

70/ See, generally, Broderick and Minahan, Employment Discrimination 

Ullder the Federal Mine Safety and Health Act, 84 W.Va. L. Rev. 

(1982). 

1446 
decision was motivated "at least in part" by unprotected activity and that 

"but for" the unprotected activity, and for that activity "alone," the 

miner would not have been disciplined or discharged. 71/ 

Whether shifting the ultimate burden of persuasion to the operator 

to show a plausible motive for a disciplinary action contravenes section 

7(c) of the APA or whether the Commission's burden shifting rule 

is more in accord with the Congressional purpose that underlies the 

anti-reprisal provisions of the Mine Safety Law~ I need not decideo 72/ 

JJ:_/ Robinette, supra: Chacon Vo Phelps Dodge Corporation, 3 FMSHRC 2508 0 

2 BNA MSHC 1505 (1981); Bradley v. Belva Coal Co., FMSHRC --- Dkt. WEVA 80-708-D, decided June 4, 1982. The courts appeal are 

over the authority of the NLRB to shift to an employer the burden of 

persuasion in rebutting a charge of discrimination under the National 

Labor Relations Act. Compare Behring International, Inco 0 Vo NLRB 

No. 81-1937 (3d Cir. April 7, 1982); NLRB v. Wright Line, 662 F. 899 

(1st Cir. 1981); TRW v. NLRB, 654 F.2d 307 (5th Cir. 1981) with NLRB v. 

Fixtures Manufactw::fng corp:-, 669 F. 2d 547 (8th Cir. 1982); NLRB~ 

Lloyd A. Fry Roofing Co., (7th Cir. 1981); and NLRB v. Nevis--rrldustries 

Inc., 647 F.2d 905 (9th Cir. 1981). 

72/ The Commission relied on Mount Health City Board of Education v. Doyle, 

429 U.S. 274 (1977) for guidance in arriving at its position. On the other 

hand, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) indicates the ultimate burden of persuasion as to the motive for a disciplinary 

action lies on the Secretary and not the operator. In Chacon, supra, however, 

the Commission greatly diluted the operator's Pasula burden by holding that 

it is carried merely by a showing that the operator's motive for a disciplinary 

suspension was "not plainly incredible or implausible." 

If the Commission is ultimately required to follow Burdine, the operator to rebut a prima facie case or presumption of discrimination, need only 

articulate a legitimate, nondiscriminatory reason for the allegedly unlawful 

action. Contrary to Pasula, the operator would not need to persuade the 

trial tribunal it actually was motivated by the proffered re~son and that 

"but for" the permissible reason and that reason "alone" the miner would 

not have been disciplined. The. burden of proceeding would then shift back 

to the Secretary and then, as the Court stated, "This burden now merges 

with the ultimate burden of persuading the court that [the complainant] 

has been the victim of intentional discrimination. [The complainant] may 

succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing 

that the employer's proffered explanation is unworthy of credence." Id. 

1447 
Burdens of production and persuasion in an administrative proceeding 

are usually significant only where the evidence is in "equipose," that 

is, where after all the evidence has been submitted, it cannot fairly be 

said to preponderate in favor of either party. NLRB v. Transportation 

Management, Corp., (1st Cir., April 1, 1982) (concurring opinion). 

The burden of persuasion is crucial, however, in retaliation cases 

which turn on the elusive concept of motiveo Under Fasula and Wright 

Line the party bearing the burden of persuasion will lose when the evidence shows the employervs true motive was just as likely a business 

reason as retaliatory. In other words where the evidence is in equipoise 

the operator~ not the complainant, will loseo By relieving the Secretary 

of the burden of persuasion on the issue of true motive~ the Commission 

has cast the balance in favor of findtng a discriminatory motive ip most 

cases where a protected activity was 11 iJ;l any way" involved. The Senate 

Committee Report, of course, supports this allocation of the burden of 

proof. S. Rep. 95-181, 95th Cong. 1st Sess., 36 (1977). See also, 

Larry D. Long v. Island Creek Coal Company, et al., 2 FMSHRC 1529, 2 BNA 

MSHC 1437 (1980); affirmed 2 BNA MSHC 1436 (4th Cir. 1981). 

In this case, the operator not only rebutted the Secretary's showing of 

protected activity but positively negated the existence of such activity. By 

doing so, the operator successfully neutralized the claim ot culpable motive 

for Bryant's discharge. In the absence of a showing of protected activity, 

there can be no "mixed" or "bad" versus "good" motive for a discharge. 

Bryant was suspended for an act of unprotected insubordination on March 7, 

1448 
1980 amd discharged for that activity and for subsequent unlawful misconduct 

in instigating the wildcat strike of March 10, 1980. No matter how allocated, 

the operator carried his burdens of rebuttal and persuasion with respect 

to all of these issues by a clear preponderance of the reliable and probative 

evidence. It follows that Bryant's discharge was for just cause and for 

legitimate, nondiscriminatory business reasons. It was 9 therefore 9 in all 

respects proper. 

ORDER 

The premises considered, D that this matter be, and 

hereby is 9 terminated and the 

Judge 

Distribution: 

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

3535 Market St., Philadelphia, PA 19104 .(Certified Mail) 

w. Challen Walling, Esq., Penn, Stuart, Eskridge & Jones, Dominion Nat'l 

Bank Building, Box 1135, Bristol, VA 24201 (Certified Mail) 

Paul R. Thomson, Jr., Esq., The Pittston Coal Co. Group, Lebanon, VA 

24266 (Certified Mail) 

1449 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

JUL 30\982 5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

EMERY MINING CORPORATION, 

Respondent 

and 

EMERY MINING CORPORATION 

Applicant 

v. 

SECRETARY OF LABOR9 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

DECISION 

Civil Penalty Proceedings 

Docket No: WEST 82-48 

A.O. No: 42-00121-03103 

Docket No: WEST 82-80 

A.O. No~ 42-00121-03106 H 

Deer Creek Mine 

Contest of Order 

Docket No: WEST 81-400-R 

Order No: 1022357; 9/9/81 

Deer Creek Mine 

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

Department of Labor, Denver, Colorado, for Petitioner 

Evert W. Winder, Manager, Health and Safety, Emery 

Mining Corporation, Huntington, Utah and 

Todd D. Peterson, Esquire, Attorney for Respondent 

Before: Judge Moore 

The above three docket numbers were consolidated for hearing and 

were tried together on May 18, 1982 in Price, Utah. 

At the outset counsel for the government announced a settlement of 

the two violations involved in Docket No: WEST 82-80. The government 

announced that it had insufficient evidence to support one of the two 

alleged violations and that with respect to the other alleged violation 

it would amend its imminent danger order to a normal citation and settle 

the matter for $1,000 rather than the $2,500 that had originally been 

assessed. I approved the settlement. 

With respect to the other violations, most of the facts were stipulated. 

My decision herein will rest on an interpretation of 30 C.F.R. 48.B(a) which 

states: 

1450 
"each miner shall receive a minimum of 8 hours of 

annual refresher training as prescribed in this section". 

It is the Company's position that "8 hours of annual refresher training 

means 8 hours of refresher training in each calendar year." It is the 

government's position that the annual refresher training is required every 

twelve months without regard to the calender year. The miners in question 

in this case, all received 8 hours of refresher training in each calendar 

year, but the refresher training in 1981 was given more than twelve months 

after the refresher training that was given in 1980. 30 C.F.R. 48.3{a) 

requires each operator to have an MSHA approved plan "containing programs 

for training new miners, training newly employed experienced miners, training 

miners for new tasks, annual refresher training, and hazard training for 

miners as follows: "The training plan submitted by respondent to MSHA 

provides that annual refresher training will be given by December 31 in 

each calender year. The plan was approved by MSHAo Respondent 1 s 

exhibit No. 1), 

The citations in the instant cases were issued in reliance on government 

exhibit 1, which is a policy memorandum issued by MSHA on June 1, 1981. The 

policy memorandum is couched in terms that would lead one to believe that 

it was a relaxation of a former more strict interpretation of the refresher 

training standard. It says "in order to provide practical flexibility and to 

reduce record keeping for Part 48, this office has determined that miners 

may complete their annual refresher' training any time during the last 

calendar month of their annual training cycle. For example, a miner 

beginning work on June 5, 1981, may domplete his annual refresher training 

any time before June 1982." In the next paragraph the memorandum states 

that this policy permits records and training schedules to be maintained 

on a monthly basis instead of tracking individual calendar days." The 

implication is that prior to this memorandum a miner who began work on 

June 5 of one year, would have to have his refresher training completed by 

June 5 of the following year. No memoranda to that effect has been 

produced or referred to by the parties. If the standard is interpreted 

in accordance with government exhibit 1, almost 13 months could elapse 

between refresher training periods. Under the mine operator's plan, 

however, almost two years could elapse between training periods. If, 

for example, a miner was hired and trained early in one year, and not given 

his refresher training until December of the following year, the interval 

could be close to two years. Section 115{a)(3) of the Act says "all 

miners shall receive no less than 8 hours of refresher training no less 

frequently than once each twelve months ••. " This could mean training in 

one 12 month period and training in the next 12 months period or it 

could mean that no longer than 12 months shall separate training sessions. 

I think that the Congress may well have intended that refresher training 

be given at least once every twelve months. I think it clear, however, 

that in preparing the regulation in question here, the Secretary did 

not intend that refresher training be given every twelve months. The 

1451 
regulations demonstrate that when the Secretary intends to say twelve 

months, he does so explicitly. See for example 30 C.F.R. 48.2(b), 

30 C.F.R. 48.7(a), 30 C.F;R. 48.ll(b) and similar provisions regarding 

surface mines and surface areas of underground mines. 30 C.F.R. 

48.ll(b) refers to hazard training and states "miners shall receive the 

instruction required by this section at least once every twelve months." 

If 30 C.F.R. 48.8(a) means the same thing, why were not the same words 

used? I think MSHA meant to require training in every calendar year, 

and it seems cl~ar that the format it supplied for the preparation of a 

training plan contemplated training in each calendar year. Item 6 on 

the training plan is "predicted time when regularly scheduled refresher 

training be given" and the Respondent mine has in its plan "by December 31 

annually." If every miner had to be trained within twelve months of 

being hired or of his last refresher training there would be no way to 

respond to the question without giving a date for each miner. Also in 

Respondent's favor is the normal use of the word "annual". Annual 

banquets and annual meetings are not necessarily within twelve months 

of each other. 

The fact that Congress may have intended that refresher training be 

conducted within twelve months of the previous training is not controlling 

as to the meaning of the regulation promulgated by the Secretary. In 

Service vs. Dulles 354 U.S~ 353 (1957) Congress had given the Secretary 

of State absolute discretion to discharge anyone who he suspected of 

being disloyal to the United States~ A regulation had been published 

providing for a hearing for anybody ~uspected of being disloyal. In 

this case a hearing was held. It turned out that the results of the 

hearing were deemed improper, but it was argued by the government that 

since Congress gave the Secretary absolute discretion the results of the 

hearing were not important. The Supreme Court held that even though 

Congress gave the Secretary absolute discretion, if regulations were 

promulgated providing for a procedure to be followed, then the Secretary 

no longer had absolute discretion but must follow the procedure. Similar 

results were reached in Accardi vs. Shaughnessey, 347 U.S. 260 (1954) and 

Vitarelli vs. Seaton, 359 U.S. 535 (1959). See also Pacific Molasses 

Company vs. Federal Trade Commission, 356 (Fed 2d. 386, 389, (5th 

Cir. 1966). Taken together, I consider these cases stand for the proposition that regardless of the intent of Congress, if any agency publishes 

a regulation that is not so harsh as the one authorized by Congress, the 

public is bound only by the agency regulation. Therefore, I hold that even 

though Congress may have intended that refresher training be conducted 

every twelve months, the regulation published by MSHA is controlling, and 

only requires refresher training during every calendar year. 

The Citations are vacated and the case is DISMISSED. 

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Charles C. Moore, Jr., 

Administrative Law Judge 
Distribution: By Certified Mail 

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

of Labor, 1585 F.O.B. 1961 Stout Street, Denver, CO 80294 

Evert W. Winder, Manager, Health & Safety, Emery Mining Corporation, 

P.O.B. 310, Huntington, UT 84528 

Todd D. Peterson, Esq., Attorney for Emery Mining Corporation, 

Crowell and Moring, 1100 Connecticut Avenue, NW., 

Washington, D.C. 20036 

<'u.s. GOVERNMENT PRINTING OFFICE: 19s2-o-J61-6JR/4J7J 

1453