JULX l9S8 

COMMISSION DECISIONS 

07-08-88 

07-13-88 

07-15-88 

07-20-88 

Westrick Coal Compa11y 

Kaiser Coal Corno'ration of Sunnyside 

Sec. L.;ibor for Ron.ni.e Beavers et al. & UMWA v. 

Kitt Energy Corpo'i;ad.on ...,...,_ -

Westrick Coal Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-30-88 

07-01-88 

07-01-88 

07-05-88 

07-12-88 

07-12-88 

07-13-88 

07-13-88 

07-15-88 

07-15-88 

07-18-88 

07-18-88 

07-22-88 

07-25-88 

07-28-88 

07-28-88 

07-28-88 

Consolidation Co.al Company 

Dwight Baum v. Rochester & Pittsburgh Coal 

Mid-Continent Resources, Inc. 

F & E Erection Company, Inc. 

Rivco Dredging Corporation 

Nickie D. Ortega v~ Robert Trujillo 

J.S. Redpath Corporation 

Sec. Labor for Michael Price & Joe J. Vacha 

v. Jim Walter Res.ources & UMWA 

Terry Miller v. Benjamin Coal Company 

Joseph M. Mazenko v. Benjamin Coal Company 

Westrick Coal Company 

James Bowling v. Woods Creek Coal Corp. 

Consolidation Coal Company 

Irvin L. Gagon v. Cyprus-Plateau Mining Corp. 

Southern Ohio Coal Company 

Stanley B.aker v. Kentucky Stone Company 

The Helen Mining Company 

PENN 88-119 

WEST 86-225-M 

WEVA 85-73-D 

PENN 88-21 

WEVA 87-352 

PENN 88-203-D 

WEST 87-88 

CENT 87-53-M 

KENT 88-23-R 

CENT 88-52-D 

WEST 88-6-M 

SE 87-128-D 

PENN 88-184-D 

PENN 88-192-D 

PENN 88-21 

KENT 88-39-D 

WEVA 88-8-R 

WEST 88-144-D 

LAKE 87-95-R 

KENT 87-142-D 

PENN 88-52-R 

Pg. 853 

Pg. 856 

Pg. 861 

Pg. 872 

Pg. 874 

Pg. 880 

Pg. 881 

Pg. 887 

Pg. 889 

Pg, 89J 

Pg. 892 

Pg. 896 

Pg. 913 

Pg. 914 

Pg. 915 

Pg. 916 

Pg. 917 

Pg. 922 

Pg. 923 

Pg. 930 

Pg. 942 
JULY 1988 

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

Dennis L. Wagner v. Pittston Coal Co., .Clinchfield Coal Co., MSHA, etc., 

Docket No. VA 88-21-D. (Interlocutory Review of May 24, 1988 order, 

Judge Broderick) 

Secretary of Labor, MSHA v. Westrick Coal Company, Docket No. PENN 88-119. 

(Judge Weisberger, May 25, 1988 Default Decision) 

Rushton Mining Company v. Secretary of Labor, MSHA, Docket No. PENN 88~99-R. 

(Judge Weisberger, June 6", 1988) 

Secretary of Labor, MSHA v. Westrick Coal Company, Docket No. PENN 88-21. 

(Judge Weisberger, July 18, 1988, Default Decision) 

Beaver Creek Coal Company v. Secretary of Labor, MSHA, Docket No. 

WEST 88-145-R. (Judge Morris, June 20, 1988) 

Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. 

WEVA 87-343. (Judge Weisberger, June 20, 1988) 

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

Secretary of Labor, MSHA v. Davidson Mining, Inc., Docket No. WEVA 88-82-R, 

WEVA 88-168. (Judge Melick, June 21, 1988) 
COMMISSION DECISIONS 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

wESTRICK COAL COMPAi.'TI 

July 8, 1988 

Docket No. PENN 88-119 

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

ORDER 

BX THE COMMISSION: 

Respondent, Westrick Coal Company, after requesting a hearing to 

contest an alleged violation, failed to respond to the administrative 

law judge's pre-hearing and show cause orders. On May 25, 1988 the 

administrative law judge issued a default decision. Respondent 

filed a Petition for Discretionary Review on June 24, 1988. 

The record does not reveal the reasons for the Respondent's 

failure to respond to the judge's orders. We grant the petition and 

vacate the judge's default decision in order to allow this operator, 

who is apparently acting pro se, an opportunity to present the 

reasons for these failure-S:--and for the Secretary to interpose any 

objections to relief from the default decision. Should the judge 

determine that relief from default is appropriate, he should proceed 

with the civil penalty issues in this matter. 

~~ For;zr: Chairnran ~ 

~C-;(dA~C~ /.~ ~·~/( ·Richard V. Backley~rnmissioner --i.._ 

853 
Commissione.r .Lastowka, disse.nting: 

In my opinion the administrative law judge properly entered an order of 

default in this proceeding. Indeed, the persistent failure of Westrick Coal 

Company to do anything to participate in the hearing process left the judge 

no choice. While I endorse the Commission's previously expressed preference 

for dispositions on the merits over procedural defaults, that policy cannot 

be without 1 imi ts. I believe that to order further proceedings in the 

circumstances of this case exceeds appropriate bounds. 

The Mine Act provides a mine operator with an opportunity for a hearing 

before this Commission on citations or orders issued by MSHA. Westrick 

exercised this right by requesting a hearing on citation number 269767. In 

order to obtain the requested hearing, however, Westrick was required to 

participate in the hearing process. Wes trick igno.red every request by the 

judge and the Secretary that it do so. On March 22, 1988, the juc!ge issu·ed 

an order directing that the parties confer and exchange information, and 

noting that failure to do so could lead to default. The record indicates 

that Mr. Westrick received this order. Westrick did not respond.. On March 

25 the Secretary sent a letter to Mr. Westrick indicating that attempts to 

contact him by phone had been unsuccessful and asking Westrick to call the 

Secretary for purposes of complying with the judge's order. Westrick did not 

respond. On April 11 the Secretary recited the above chronology in a motion 

filed with the judge requesting the issuance of a default judgment. Westrick 

did not respond. On April 21 the judge issued an order directing Westrick to 

comply by May 2 with his previous order or to show cause why it should not be 

held in default for failing to respond. The record shows that Mr. Westrick 

received this order. Westrick did not respond. Accordingly, on May 25 the 

judge issued a default order. Mr. Westrick's petition for discretionary 

review of the judge's default order offers no explanation whatsoever for 

Westrick' s persistent failure to heretofore respond and participate in t;he 

hearing process. */ 

In these circumstances the judge committed no error in ·defaulting 

Westrick. The judge and the Secretary have followed the proper course in 

pursuing and resolving this proceeding, yet find themselves having to once 

again expend their time and resources in an attempt to provide a hearing to a 

party who declines .to participate in the hearing process. Because I believe 

no error was committed below, I must respectfully dissent from the remand for 

further proce~dings. 

*I Westrick's failure to offer any explanation for its failure to respond 

distinguishes this matter from other default situations where colorable 

claims of confusion over procedures or nonreceipt of ~erved documents have 

been raised. See, e.g., Rivco Dredging Corp., 10 FMSHRC 624 (May 1988); 

Perry Drilling Co., 9 FMSHRC 379 (March 1987); Patroit Coal Co., 9 FMSHRC 382 

(March 1987); Doug Connelly Sand & Gravel, 9 FMSHRC 385 (March 1987). 

854 
Distribution 

Therese I. Salus, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

3535 Market Street 

Philadelphia, PA 19104 

Mr. Ray Westrick, Owner 

Westrick Coal Company 

Patton, PA 16668 

Judge Avram Weisberger 

Office of the Administrative Law Judge 

2 Skyline, 10th Floor 

Falls Church, Virginia 222041 

855 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

KAISER COAL CORPORATION 

OF SUNNYSIDE 

July 13, 1988 

Docket No. WEST 86-225-M 

BEFORE: Ford, Chairman; Backley, Doyle, and Lastowka, Commissio.ners 

DECISION 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

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

Act"), the issue is whether Commission Administrative Law Judge August 

F. Cetti erred in finding that Kaiser Coal Corporation of Sunnyside 

("Kaiser") violated 30 C.F.R. § 75.205, a mandatory safety standard for 

underground coal mines that requires "[w]here miners are exposed to 

danger from falls of ••• ribs the operator shall examine and test the 

.•• ribs before any work or machine is started." J_/ 9 FMSHRC 1164 (June 

1987) (ALJ). For the reasons that follow, we affirm the judge's 

finding that Kaiser violated section 75.205. 

The essential facts are not in dispute. On March 7, 1986, Jerry 

Dimick, an employee of a mine equipment service company, arrived at 

Kaiser's Sunnyside No. 1 mine to examine a malfunctioning stage loader. 

Dimick was accompanied underground by Kaiser's General Longwall Foreman, 

Duane Wood. Dimick and Wood traveled to the intersection of the 19th 

Left Longwall Section and Crosscut No. 28, the area where the stage 

loader was located. Before Dimick started to inspect the stage loader, 

l/ 30 C.F.R. § 75.205 restates section 302(f) of the Mine Act, 30 

U.S.C. § 862(f), and provides: · 

Where miners are exposed to danger from falls of 

roof, face, and ribs the operator shall examine and 

test the roof, face, and ribs before any work or 

machine is started, and as frequently thereafter as 

may be necessary to insure safety. When dangerous 

conditions are found, they shall be corrected 

inunediately. 

856 
Wood visually examined the ribs 

or hazardous conditions, but he 

ribs to verify their condition. 

loader and away from Dimick. 

at the worksite for signs of instability 

did not perform any physical test of the · 

Wood then proceeded beyond the stage 

In order to examine the stage loader, Dimick knelt between the rib 

and the equipment, with his back to the rib. While Dimick was looking 

at the stage loader from this position, two of Kaiser's section foremen, 

Gary Kuhns and Darrell Leonard, walked by Dimick. Kuhns testified that 

because of the position of the stage loader, he had to walk ~etween 

Dimick and the rib to get by Dimick, and that there was no more than two 

feet of space between Dimick and the rib. Tr. 91. Both Kuhns and 

Leonard visually examined but did not physically test the rib as they 

continued down the entry. While Dimick was kneeling between the rib and 

the stage loader, a portion of the rib -- approximately six by four by 

two feet in size -- detached and fell on him. Dimick died that evening 

from injuries received in the accident. 

Inspectors from the Department of Labor's Mine Safety and Health 

Administration ("MSHA") arrived at the mine at about 6:00 p.m. on March 

7, 1986, to conduct an investigation into the circumstances surrounding 

the accident. Upon completion of the investigation on March 10, 1986, 

an MSHA inspector issued to Kaiser a citation pursuant to section 104(a) 

of the Act. ~/ The citation alleged a significant and substantial 

violation of section 75.205 and stated: 

A test of the rib condition was not conducted after 

a visual examination was made for crosscut No. 28 

and inby to the longwall face of the 19th Left 

longwall section. A service representative was 

performing an examination of a piece of equiptment 

[sic] that was not operating properly. This person 

was required to place himself in close proximity to 

the lower rib. The untested rib fell striking the 

victim and causing fatal injuries., 

The citation was abated on March 10, 1986, after all underground 

employees at the mine were given hazard training on roof and rib 

control. 

Before the judge, Kaiser argued that it had complied with the 

requirements of the standard by conducting a visual examination of the 

~/ Section 104(a), 30 U.S.C. § 814(a), provides in pertinent part: 

If, upon inspection or investigation, the 

Secretary or his authorized representative believes 

that an operator of a coal or other mine subject to 

this [Act] has violated this [Act], or any mandatory 

health or safety standard, rule, order, or 

regulation promulgated pursuant to this [Act], he 

shall, with reasonable promptness, issue a citation 

to the operator .••. 

857 
rib. Kaiser asserted that, because of the particular rib conditions at 

the mine, testing of the ribs would be ineffective in detecting flawed 

ribs that might fall or could even create or enhance the possibility of 

such falls. Kaiser argued that it was not required under the standard 

to test the ribs in such circumstances. The judge rejected these 

arguments, holding that the standard unambiguously requires both visual 

~xamination and testing of ribs. He further held that in view of the 

conditions under which Dimick had to work, he was exposed to a danger of 

a rib fall and that¢Kaiser was therefore required by the standard to 

test the ribs. The judge also found that the violation was of a 

significant and substantial nature, and he assessed the civil penalty 

amount of $1,000 for the violation. J/ 9 FMSHRC at 1176-78. We 

conclude that substantial evidence supports the judge's finding of a 

violation of section 75.205. 

There is no dispute that the Sunnyside No. 1 mine has a history of 

unstable ribs. Witnesses for the Secretary and Kaiser agreed that 

because of this Kaiser's miners and MSHA's inspectors have made it a 

practice to walk in the center of the entries in order to position 

themselves as far from the ribs as possible. At the scene of the fatal 

accident, the travelway between the stage loader and the rib was 

approximately seven and one-half feet wide, as contrasted with the 

normal entry width of nineteen and one-half feet. Exhibit 2. In order 

to work on the malfunctioning stage loader, Dimick had to position 

himself two feet from the rib, on his knees and with his back to the rib 

-- a position which left him vulnerable to rib falls from behind. In 

addition, the inspector testified without dispute that approximately 

fifteen minutes before the accident, the longwall shearing machine had 

cut coal in the vicinity of the stage loader and that the shearing 

process generally causes the ribs to loosen. Tr. 36-37, 104. We agree 

with the judge that under these circumstances, Dimick was exposed to a 

danger of a rib fall and that under the standard it was incumbent upon 

Kaiser to test as well as to examine the ribs before work on the stage 

loader commenced. In failing to test the ribs, Kaiser violated section 

75.205. If Kaiser believes that there may be instances where the 

testing of the ribs at the mine will diminish safety, we agree with the 

judge that the remedy lies in petitioning the Secretary for modification 

of section 75.205 pursuant to section lOl(c) of the Act, 30 U.S.C. 

§ 81l(c). 9 FMSHRC at 1176-77. See Penn Allegh Coal Co., Inc., 

3 FMSHRC 1392, 1398 (June 1981). 

Finally, Kaiser asserts that the section 104(a) citation was 

issued because there had been a fatality, rather than because the 

inspector believed that there had been a violation of section 75.205. 

Kaiser argues that, as a result, the citation is invalid and should be 

vacated. We have reviewed Kaiser's contention and find it to be without 

merit. Section 104(a) provides that an inspector shall issue a citation 

"[i)f .•• [he) •.• believes that an operator of a •.. mine ... has 

violated .•. any mandatory health or safety standard." See n.2, supra. 

Our review of the evidence establishes that the section 104(a) citation 

J/ Review of the significant and substantial finding or of the 

penalty amount assessed has not been sought. 

858 
was issued because the MSHA inspector believed a violation of a 

mandatory safety standard occurred. See Tr. 42-45. We find that the 

section 104(a) citation was based on the inspector's belief that, in 

failing to test the rib, Kaiser had violated section 75.205. That this 

belief had its genesis in the investigation of a fatal accident at the 

mine does not undermine the validity of the section 104(a) citation. 

The decision of the administrative law judge is affirmed. 4/ 

~~ 

Richard 

e.~~· V. Backley, Commissioner 

J~~e.tf~t&1t;4 

~/ Commissioner Nelson did not participate in the consideration of or 

decision on the merits of this case. 

859 
Distribution 

Barry F. Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Holtkamp, Esq. 

Van Cott, Bagley, Cornwall & McCarthy 

Kaiser Coal Corporation 

50 South Main Street, Suite 1600 

Salt Lake City, Utah 84145 

860 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

on behalf of RONNIE D. 

BEAVERS, et al. 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C.. 20006 

July 15, 1988 

UNITED MINE WORKERS OF AMERICA 

v. Docket No. WEVA 85-73-D 

KITT ENERGY CORPORATION 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This case involves a discrimination complaint brought by the 

Secretary of Labor on behalf of Ronnie D. Beavers and 25 other miners 

against Kitt Energy Corporation ("Kitt"), pursuant to the Federal Mine 

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

Act"). The issue presented on review is whether Kitt violated section 

lOS(c) of the Mine Act, 30 U.S.C. § 815(c), when it laid off the 

complainants who were surface miners, notwithstanding their seniority in 

terms of length of service and their technical ability to perform the 

remaining underground jobs, solely because they required additional 

health and safety training under 30 U.S.C. § 825 and 30 C.F.R. Part 48 

861 
before they could perf9rm those jobs. l/ Administrative Law Judge 

ll Section 115 states in part: 

(a) Approved program; regulations 

Each operator of a coal or other 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 not more than 180 days 

after the effective date of the Federal Mine Safety 

and Health Amendments Act of 1977. Each training 

program approved by the Secretary shall provide as a 

minimum that--

(1) new miners having no underground mining 

experience shall receive no less than 40 hours of 

training if they are to work underground. Such 

training shall include instruction in the statutory 

rights of miners and their representatives under 

this [Act], use of the self-rescue device and use of 

respiratory devices, hazard recognition, escapeways, 

walk around training, emergency procedures, basic 

ventilation, basic roof control, electrical hazards, 

first aid, and the health and safety aspects. of the 

task to which he will be assigned; 

(2) new miners having no surface mining experience 

shall receive no less than 24 hours of training if 

they are to work on the surface. Such training 

shall include instruction in the statutory rights of 

miners and their representatives under this [Act], 

use of the self-rescue device where appropriate and 

use of respiratory devices where appropriate, hazard 

recognition, emergency procedures, electrical 

hazards, first aid, walk around training and the 

health and safety aspects of the task to which he 

will be assigned; 

(3) all miners shall receive no less than eight 

hours of refresher training no less frequently than 

once each 12 months, except that miners already 

employed on the effective date of the Federal Mine 

Safety and Health Amendments Act of 1977 shall 

receive this refresher training no more than 90 days 

after the date of approval of the training plan 

required by this section; 

(4) any miner who is reassigned to a new task in 

which he has had no previous work experience shall 

receive training in accordance with a training plan 

approved by the Secretary under this subsection in 

the safety and health aspects specific to that task 

prior to performing that task; 

(5) any training required by paragraphs (1), (2) 

862 
Roy J. Maurer held that the complainants were "miners" within the 

meaning of the Act and therefore were entitled to the training required 

by the Mine Act and 30 C.F.R. Part 48. The judge concluded that Kitt, 

by laying off the complainants, unlawfully interfered with their 

statutory rights to training in violation of section lOS(c)(l) of the 

Act. ~/ 8 FMSHRC 1342 (September 1986)(ALJ). The judge assessed a 

or (4) shall include a period of training as closely 

related as is practicable to the work in which the 

miner is to be engaged. 

(b) Training compensation 

Any health and safety training provided under 

subsection (a) of this section shall be provided 

during normal working hours. Miners shall be paid 

at their normal rate of compensation while taking 

such training, and new miners shall be paid at their 

starting wage rate when they take the new miner 

training .... 

30 U.S.C. § 825(a) & (b). 

30 C.F.R. Part 48 implements section 115 of the Act and sets forth 

the regulatory training requirements for miners. 

~/ Section lOS(c)(l) provides in pertinent part: 

Discrimination or interference prohibited; 

complaint; investigation; determination; hearing 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory•rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

[Act] because such miner, representative of miners 

or applicant for employment has filed or made a 

complaint under or related to this [Act], including 

a complaint notifying the operator or the operator's 

agent, or the representative of the miners at the 

coal or other mine of an alleged danger or safety or 

health violation in a coal or other mine ..• or 

because such miner, representative of miners or 

applicant for employment is the subject of medical 

evaluations and potential transfer under a standard 

published pursuant to section [101] ... or because 

such miner, representative of miners or applicant 

for employment has instituted or caused to be 

instituted any p~oceeding 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 

863 
civil penalty of $1,000 for the violation of section 105(c)(l), awarded 

the complainants back pay, and ordered Kitt to pay attorneys' fees. 

8 FMSHRC at 1355; 9 FMSHRC 93 (January 1987)(ALJ). ]./ Because we 

conclude that the judge granted rights to the complainants beyond the 

text and intent of section 115, we reverse. 

The facts are not in dispute. Kitt owns and operates the Kitt No. 

1 Mine, an underground coal mine located at Philippi, West Virginia. 

Both Kitt and the UMWA, the recognized representative of miners at the 

mine, are parties to the National Bituminous Coal Wage Agreement of 1981 

(the "Wage Agreement"). On August 29, 1983, as the result of a 

legitimate reduction and realignment of the workforce, Kitt reduced the 

total underground and surface workforce at the mine from 565 to 210 

miners and the surface workforce from 91 to 59. On September 6, 1983, 

Kitt laid off 43 more miners, reducing the total workforce to 167 miners 

and the surface workforce to 15. 

To determine which employees would be retained in the jobs 

remaining after each layoff, Kitt was bound by the Wage Agreement. 

Article XVII(b)(l) of the Wage Agreement provides: 

In all cases where the workforce is to be reduced, 

employees with the greatest seniority at the mine 

shall be retained provided that they have the 

ability to perform available work. 

"Seniority" is defined in Article XVII(a) of the Wage Agreement as 

"length of service and the ability to step into and perform the work of 

the job at the time the job is awarded." In deciding whether a miner 

had such "ability to step into and perform the work of the job, 11 Kitt 

considered whether the miner met the "experienced miner" definitions of 

30 C.F.R. Part 48, 30 C.F.R. §§ 48.2(b) and 48.22(b). ~/ Kitt deteremployment on behalf bf himself or others of any 

statutory right afforded by this [Act]. 

30 U.S.C. § 815(c)(l). 

}./ Before the judge, the United Mine Workers of America ("UMWA") 

sought and was granted the right to participate in the case as an 

intervenor. 

~/ 30 C.F.R. § 48.2(b) defines "experienced [underground] miner" as: 

[A] person who is employed as an underground miner, 

as defined in paragraph (a)(l) of this section, on 

the effective date of these rules; or a person who 

has received training acceptable to MSHA from an 

appropriate State agency within the preceding 12 

months; or a person who has had at least 12 months 

experience work~ng in an underground mine during the 

preceding 3 years; or a person who has received the 

training for a new miner within the preceding 12 

months as prescribed in § 48.5 (Training of new 

864 
mined that in order to be retained as an employee and to be assigned one 

of the remaining jobs at the mine, a miner was required to have training 

or prior·experience as defined by the regulations or to have been 

employed underground on October 13, 1978, the effective date of the 

training regulations (the "Grandfather Provision"). 

At the time of Kitt's reduction of its workforce, the complainants 

were surf ace miners who sought to be employed in underground positions 

remaining at the mine. Of the 26 complainants, 23 did not qualify as 

"experienced miners" pursuant to 30 C.F.R. § 48.2(b) and therefore 

required safety and health training before Kitt would consider them 

eligible to work underground. Because they lacked the appropriate 

underground training they were laid off by Kitt. (Three other 

complainants qualified as "experienced miners" by virtue of the 

Grandfather Provision, but were laid off due to Kitt's mistaken belief 

that they were n2._t qualified.) The parties stipulated that had Kitt not 

interpreted the Wage Agreement to require underground training, the 

complainants would have been placed in the jobs that they sought. The 

parties also agreed that all of the miners who were retained as Kitt's 

employees in the underground positions sought by the complainants 

qualified as experienced miners in accordance with Kitt's policy. 

On or about September 7, 1983, MSHA advised Kitt that use of the 

training provisions as a basis to lay off miners conflicted with MSHA's 

training regulations and that the laid off employees should be recalled. 

Kitt disagreed with MSHA's position, but in order to limit its exposure 

to potential civil penalties and damages, Kitt abandoned its policy of 

laying off surf ace miners who required underground health and safety 

training. On September 13 and 14, 1983, Kitt recalled the complainants 

to work and provided them with the necessary training to permit them to 

work underground. 

Subsequently, the complainants filed a complaint with MSHA 

alleging that they had been unlawfully discriminated against when they 

were laid off by Kitt. In addition, the UMWA challenged the experienced 

miner policy through the arbitration procedure of the Wage Agreement. 

On February 24, 1984, the arbitrator held that Kitt's interpretation of 

the phrase "ability to step into and perform the work of the job" to 

miners) of this Subpart A. 

30 C.F.R. § 48.22(b) defines "experienced [surface] miner" as: 

[A] person who is employed as a miner, as defined in 

paragraph (a)(l) of this section, on the effective 

date of these rules; or a person who has received 

training acceptable to MSHA from an appropriate 

State agency within the preceding 12 months; or a 

person who has had at least 12 months' experience 

working in a surface mine or surface area of an 

underground mine during the preceding 3 years; or a 

person who has received the training for a new miner 

within the preceding 12 months as prescribed in § 

48.25 (Training of new miners) of this Subpart B. 

S65 
include a requirement that a miner meet the "experienced miner" 

definitions of 30 C.F.R. Part 48 did not violate the Wage Agreement~ 

On January 8, 1985, following an investigation of the 

complainants' allegations, the Secretary filed a complaint with the 

Commission on the complainants' behalf. The complaint asserted that by 

laying off the complainants because they lacked underground training, 

Kitt had violated section 105(c) of the Mine Act. The complaint 

requested that Kitt be ordered to reimburse the complainants for all 

backpay and damages resulting from the layoff. Judge Maurer decided the 

case on the basis of stipulated facts and cross-motions for sununary 

decision. In holding for the complainants, the judge focused upon the 

fact that when the complainants were laid off they were "miners" within 

the meaning of the Mine Act and therefore were entitled, in the judge's 

view, to the training granted by section 115 and Part 48. The judge 

stated: 

The fact that all the employees of Kitt who were 

considered for lay off were "miners" within the 

meaning of the Act at the time the operator picked 

and chose among them based on the federal training 

requirements is ... decisive in this case. As 

"miners", the complainants ... were entitled to 

whatever training was required under section 115. 

By laying off these complainants rather than 

providing the required training-, the operator 

interfered with their statutory right to training 

under section 115. 

8 FMSHRC at 1354. ~/ 

The Commission granted Kitt's petition for discretionary review. 

The principal question on review is whether the judge erred in 

concluding that the complainant~ enjoyed a statutory and regulatory 

right to obtain the training that would have, entitled them to assignment 

to the remaining underground jobs. 

The general principles governing analysis of discrimination cases 

under the Mine Act are settled. In order to establish a prima facie 

case of prohibited discrimination under section 105(c) of the Act, the 

complainant bears the burden of proving (1) that he engaged in protected 

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

any part by that activity. Secretary on behalf of David Pasula v. 

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

on other grounds sub !!2!!!..:.. Consolidation Coal Co. v. Marshall, 663 F.2d 

1211 (3rd Cir. 1981); Secretary on behalf of Thomas Robinette v. United 

21 The judge also found that the three complainants who qualified as 

experienced miners under the Grandfather Provision, but who Kitt 

mistakenly believed would need training, were unlawfully discriminated 

against because they were ·laid off based upon Kitt's "perceived lack of 

federally mandated training" on the part of the miners. 8 FMSHRC at 

1354. 

866 
Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). See also Eastern 

Assoc. Coal Corp. v. FMSHRC 813 F.2d 639, 642 (4th Ci;:-1987), Donovan 

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

FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving 

Connnission's Pasula-Robinette test). Cf. NLRB v. Transportation 

Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly 

identical test under National Labor Relations Act.) 

If the complainant does not establish that he engaged in a 

protected activity, the discrimination complaint must fail. The judge 

concluded that "[t]he insistence of the complainants on their right to 

be provided training ... is activity protected by the Act. 11 8 FMSHRC at 

1354. Thus, the initial question, and the one dispositive of this case, 

is whether under the Mine Act the complainants had a protected right to 

the training at issue here. 

Section llS(a) of the Mine Act provides that "new miners having no 

underground mining experience shall receive no less than 40 hours of 

training if they are to work underground." The complainants in this 

case were "miners" since at the time of the alleged act of 

discrimination they fell within the broad definition contained in 

section 3(g) of the Mine Act. §_/ Under the Secretary's regulations 

implementing section 115(a) of the Mine Act, the complainants were "new 

miners having no underground experience" because they did not have the 

requisite degree of underground training or experience set forth in 30 

C.F.R. § 48.2(b) and (c), supra. As a consequence, under the Mine Act 

Kitt could not have transferred the complainants to underground 

positions without providing them training. Instead, Kitt laid off 

complainants in favor of other miners who already were qualified as 

experienced underground miners and thus did not require additional 

section 115(a) training. We conclude that in asserting that Kitt's 

policy in choosing miners for layoff contravened the Mine Act, 

complainants claim too broad a statutory right to operator-provided 

training. 

In Peabody Coal Co., 7 FMSHRC 1357, 1363 (September 1985), and Jim 

Walter Resources, 7 FMSHRC 1348, 1354 (September 1985), af f' d sub nom-. -

Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 1987), the- -

Commission concluded that mine operator policies to bypass for rehire 

laid-off individuals because those individuals lacked current safety and 

health training required by the Mine Act did not constitute 

discrimination under the Mine Act. The Conunission determined that 

£/ Section 3(g) of the Act provides: 

For the purpose of this [Act], the term --

* * * 

"miner" means any individual working in a coal or 

other mine. 

30 u.s.c. § 802(g). 

867 
section 115 of the Act grants training rights to "new miners" and that 

laid-off individuals do not become entitled to the training rights of 

section 115 until they are rehired as miners. Thus, since there is no 

statutory right to operator-provided training for those on lay off 

status, we concluded that an operator's refusal to rehire a laid-off 

individual due to lack of required training does not violate the Mine 

Act. 

In Peabody and in Jim Walter the Commission stressed that the Mine 

Act is a health and safety statute, not an employment statute. The 

Commission noted that in enacting section 115 Congress was concerned 

with preventing "the presence of miners .•. in a dangerous mine 

environment who have not had .•. training in self-preservation and 

safety practices." S. Rep. No. 181, 95th Cong., 1st Sess. 50 (1977), 

reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 

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

Health Act of 197/, at 637-38 (1978). The Commission determined that 

the rights of particular laid-off individuals to recall, including the 

extent to which an operator can favor for recall fully trained persons 

over persons with greater length of service, properly are within the 

sphere of collective bargaining and arbitration. 7 FMSHRC at 1364; 

7 FMSHRC at 1354. 

On appeal, the United States Court of Appeals for the District of 

Columbia Circuit affirmed the Commission's decision. Brock v. Peabody 

Coal Co., supra, 822 F.2d 1134. In its decision the D.C. Circuit also 

emphasized that the purpose of section 115 of the Mine Act and the 

Secretary's training regulations is to protect the health and safety of 

miners. 822 F.2d at 1146. The court summarized the purpose of s~ctions 

115 and 104(g) ZI as follows: 

Sections 115(a) and 104(g)(l) of the Act therefore 

confer upon a "miner" the right not to "work" or to 

be "employed" in the mines without having first 

received the requisite training. Put more simply, 

the Act accords a miner the right not to be placed 

in a dangerous environment without the benefit of 

proper safety training. In order to protect this 

central statutory right, Congress in 1977 amended 

section 105(c)( 1) and inserted section 104(g)(2), 

thereby conferring upon a miner the corollary right 

not to be discharged or otherwise discriminated 

against either when he or she exercises the right by 

ZI Section 104(g)(l) of the Act, 30 U.S.C. § 824(g)(l), requires the 

Secretary to withdraw from a mine any miner who has not received the 

requisite safety training required by section 115 of the Act. Section 

104(g)(2) provides that no miner withdrawn from a mine pursuant to 

section 104(g}(l) of the Act shall be discharged or discriminated 

against as a result of the withdrawal and further provides that such 

miner shall not suffer loss of compensation during the period necessary 

for such miner to receive the requisite safety training required by 

section 115 of the Act. 

868 
refusing to work without having received the 

required training or when the Secretary issues an 

order withdrawing that miner from the mine. 

822 F.2d at 1147 (footnotes omitted). The court stated that it could 

not "infer from the Act that Congress intended privately-bargained 

contracts to determine who is or is not a miner entitled to receive ·the 

section 115 safety training." 822 F.2d at 1148. The court concluded by 

holding that "[n]either the language Congress employed nor the 

legislative history supports the Secretary's contention that Congress 

intended to require 1 training neutral 1 hiring." 822 F. 2d at 1151. 

We recognize that the complainants in the instant case, unlike the 

complainants in Peabody, were "miners" at the time the alleged act of 

discrimination occurred. This distinction, however, does not require a 

different result because in the crucial and controlling respect,. this 

case and Peabody-are the same. In both cases, the operator chose for 

placement in underground mining positions persons who by training or 

experience fully met the training requirements of section 115 of the Act 

and the Secretary's implementing regulations. In placing trained miners 

underground the operator did not violate the language of the Mine Act or 

the safety and health objectives of the training requirements. To the 

contrary, the Act's purpose was fulfilled. In addition, no miner was 

discharged or otherwise discriminated against either because of a 

refusal to work without having the required training or because of a 

withdrawal from the mine pursuant to an order issued by the Secretary 

under section 104(g) of the Act due to a lack of training. See 822 F.2d 

at 1147. In sum, the Secretary's argument that section 115 of the Mine 

Act mandates that "training neutral" employment decisions be made by 

mine operators is just as wide of the mark in the present situation as 

it was in Peabody, and must be rejected here for the same reasons. 

In order to reach the result argued for by the Secretary and the 

UMWA, we would be required to go beyond the Act and examine the Wage 

Agreement. It is not the Connnission's province, however, to interpret 

the rights and obligations mandated by the Act through an interpretation 

of a private contractual agreement unless required to do so by the Act 

itself. Peabody, supra, 7 FMSHRC at 1364. In holding that the 

complainants as "miners" had the right to whatever training was required 

to continue their employment, the judge misperceived the proper focus of 

section 115. To require an operator to train miners for underground 

work so that they, rather than other miners, would have the opportunity 

for continued employment would transform section 115 from a health and 

safety provision to an employment provision. This type of employment 

issue is appropriately resolved through the collective bargaining and 

grievance and arbitration process. Indeed, the issue of the validity of 

Kitt's experienced miner policy was pursued through the contractual 

grievance process and Kitt's position was upheld. Stip. 9. ~/ 

~/ The Secretary argues that Kitt's use of the experienced miner 

policy to determine whom to retain as employees "will always bar miners 

from being awarded jobs if training is required" and will prevent 

training rights from ever "com[ing] into play." S. Br. 14. On the 

869 
Finally, we are left with the UMWA's argwnent that when enacting 

section 115 Congress could not have intended that miners who would not 

otherwise have been laid off would lose their employment as the result 

of the application of the Mine Act's training requirements, Whatever 

one might speculate as the intention of Congress in this respect, the 

fact is that neither the language of the Mine Act nor the legislative 

history support the assertion of the complainants. ~/ If there is a 

problem, it lies within the Act itself, and any remedy is through the 

collective bargaining process or, as Judge Ruth Bader Ginsburg stressed 

in her concurring opinion in Peabody, through legislative amendment by 

Congress. Peabody, 822 F.2d at 1152-53. 

contrary, training rights always "come into play11 when the experienced 

miner policy is invoked. All miners chosen by Kitt to work had the 

necessary health and safety training. 

We also reject the Secretary's argwnent purporting to be based on 

Wygant v. Jackson Board of Education, 476 U.S. 267 reh'g denied, 478 

U.S. 1014 (1986), that Kitt's experienced miner policy unlawfully 

interferes with the complainants' property interest in and expectation 

of continued employment. Supp. Br. Sec. 2-6. That argwnent does not 

consider the fact that the Mine Act is not an employment statute. 

Moreover, in Wygant the Court was careful to note the difference between 

unconstitutional and permissible infringements upon a worker's property 

interest in a job. 

~/ The conclusion that Kitt did not violate the Act makes it 

unnecessary for us to address two additional issues raised in Kitt's 

petition for discretionary review, i.e., that the judge erred in 

assessing a civil penalty for the violation of section lOS(c) and in 

awarding attorneys' fees to counsel for the UMWA. We note, however, 

that the Secretary failed to include in the discrimination complaint a 

proposal for a specific civil penalty for the alleged violation of 

section lOS(c). Commission Procedural Rule 42(b), 29 C.F.R. 

§ 2700.42(b), requires such a proposal. See also Secretary on behalf of 

Milton Bailey v. Arkansas Carbona Co. and Michael Walker, 5 FMSHRC 2042, 

2044 (December 1983). 

870 
Accordingly, we reverse the conclusion of the judge that Kitt 

discriminated against the complainants by violating their statutory 

rights with regard to training. The judge's assessment of a civil 

penalty and the judge's award of damages and attorneys' fees are 

vacated. 

Distribution 

David M. Smith, Esq. 

Maynard, Cooper, Frierson & Gale, P.C. 

Twelfth Floor, Watts Bldg. 

Birmingham, AL 35203 

Linda L. Leasure, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Bronius K. Taoras, Esq. 

Kitt Energy Corp. 

Standard Oil Bldg., 7-D 

200 Public Square 

Cleveland, Ohio 44114 

Mary Lu Jordan, Esq. 

UMWA 

900 15th Street N.W. 

Washington, D.C. 20005 

871 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET· NW, 6TH FLOOR 

WASHINGTON, D.C. 20006. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION 

v. 

WESTRICK COAL CO. 

July 20, 1988 

Docket No. PENN 88-21 

BEFORE: Doyle, Lastowka, and Nelson, Commissioners 

ORDER 

BY: Doyle, Lastowka, and Nelson, Commissioners 

In this civil penalty proceeding respondent Westrick Coal Company 

("Westrick") failed to timely respond to the administrative law judge 1 s 

pre-hearing order. Accordingly, on June 30, 1988, the judge issued an 

order requiring Westrick to respond by July 11, 1988 or to show cause 

why the matter should not be dismissed. On July 11, 1988, Westrick, who 

is acting without an attorney, wrote to the judge in response to the 

show cause order. The letter was mailed on July 13, 1988, but was not 

received by the judge until July 18, 1988. In the meantime, on July 15, 

1988, the judge found Westrick in default, dismissed the proceeding, and 

ordered Westrick to pay the assessed civil penalty. Because his 

jurisdiction over this matter had ended with issuance of the default 

order, the judge forwarded Westrick 1 s response to the Commission. 

872 
In order that the judge may consider Westrick's response to his 

previous orders., we vacate the judge 1 s default order and remand for 

further· proceedings. 

Distribution 

Raymond Westrick 

Westrick Coal Company 

R.D. 1, Box 457 

Patton, Pennsylvania 16668 

Judith Horowitz, Esq. 

Office of the Solicitor 

U. S. Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

For the Commission: 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

873 

ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 30, 1988 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

Docket No. WEVA 87-352 

A. C. No. 46-01436-03699 

MINE SAFETY AND HEALTH 

ADMINISTRATION. (MSHA), 

Petitioner 

v. Shoemaker Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

Appearances: 

DECISION 

Anita D. Eve, Esq., Office of the Solicitor, 

U. S. Department of Labor, Pittsburgh, 

Pennsylvania, for Petitioner. 

Paul T. Boos, Esq., Consolidation Coal 

Company, Wheeling, West Virginia, for 

Respondent. 

Before: Judge Merlin 

This case is a petition for the 

ties filed by the Secretary of Labor 

Company for six alleged violations. 

50. 

assessment of civil penalagainst Consolidation Coal 

All involve 30 C.F.R. Part 

Citation Nos. 2945442, 2945443, 2945446, 

2945455, 2945456 

These citations were originally assessed at $250 each. The 

parties have agreed to settle them for $170 apiece. 1/ The 

Solicitor advises that in these cases the miners faiTed to report 

the alleged injuries promptly and the operator had reason to 

believe the injury was nonoccupational and occurred off mine 

1_1 The Solicitor's settlement motion erroneously includes 

Citation No. 2945453. This item was deleted from the 

assessment sheet filed with the Solicitor's penalty peti- tion and was not in the petition itself. Obviously, it was 

settled, paid, or otherwise disposed of previously. The 

Solicitor has confirmed this by telephone. 

874 
property. The negligence factor is therefore, greatly reduced. 

After considering these matters in light of six statutory criteria set~forth in section llO(i) of the Federal Mine Safety 

and Health Act of 1977, I conclude the settlements may be 

approved. 

Citation No. 2899820 

This item involves an alleged violation of 30 C.F.R. 

§ 50.20(a). However, it was not settled and was heard on the 

merits on May 17, 1988. 

The subject citation reads as follows: 

"The mine operator did not fill out and 

mail to M.S.H.A. within 10 calander [sic] 

days, Form 7000-1, "Mine accident, Injury and 

Illness Report," for an occupational injury 

that occurred to Donald Chamber on 12.5.85, 

which resulted in lost work days." 

Section 50.20(a), 30 C.F.R. § 50.20(a), of the regulations 

provides: 

(a) Each operator shall maintain at the 

mine office a supply of MSHA Mine Acci~ent, 

Injury, and Illness Report Form 7000-1. 

These may be obtained from MSHA Metal and ~onmetallic Mine Health and Safety Subdistrict Offices and from MSHA Coal Mine 

Health and Safety Subdistrict Offices. Each 

operator shall report each accident, occupa- tional injury, or occupational illness at the 

mine. * * * The operator shall mail 

completed forms to MSHA within ten working 

days after an accident or occupational injury 

occurs or an occupational illness is 

diagnosed. 

* * * 

And section 50.2(e) 30 C.F.R. § 50.20(e) states: 

(e) "Occupational injury" means any 

injury to a miner which occurs at the mine 

for which medical treatment is administered, 

or which results in death or loss of consciousness, inability to perform all job duties on any day after an injury, temporary 

assignment to other duties, or transfer to 

another job. 

875 
On December 5, 1985, Donald Chambers, a mechanic at the 

operator's Shoemaker mine, left the mine because he was suffering chest pains.~ Later that day he was admitted to Reynolds Memorial 

Hospital where he subsequently was diagnosed as suffering a 

myocardial infarction. Five days later he had a stroke. He was 

then transferred to Western Pennsylvania Hospital where cardiac 

catheterization disclosed a blockage in the anterior descending branch of the left coronary artery which practically totally occluded the vessel (Exhibit D). He was discharged from Western 

Pennsylvania Hospital on January 4, 1986. The evidence also discloses that Mr. Chambers is a long-standing diabetic and a heavy 

smoker (Tr. 23, 50). Mr. Chambers admitted that until the time 

of the heart attack he smoked a pack a day or two packs every three days (Exhibit N, p. 13; Tr. 50). 

A dispute exists over the etiology of Mr. Chambers' c~est 

pains. Hospital records upon admission to Reynolds Memorial 

state that Mr. Chambers reported chest pains of three days duration (Exhibit B). In the discharge summary dated December 30, 

1985, Dr. Baysal, Mr. Chambers' personal physician, stated that 

upon admission the duration of symptoms were a little bit questionable, but nevertheless appeared to be of 24 hours duration 

(Exhibit C, p. 1). Dr. Baysal also reported in the discharge sum~ary that on December 16, Mr. Chambers and his family told him 

that Mr. Chambers had been struck with a live electrical wire at 

work on the day of admission and that the chest pains developed about 1/2 hour to one hour following this incident (Exhibit C~ p. 2). In his subsequent deposition dated May 13, 1987, during the 

workmen's compensation proceedings, Dr. Baysal changed his story 

and stated that Mr. Chambers had told him about the electrical 

shock one or two days after his hospital admission (Exhibit 0, p. 12). In his first workmen's compensation deposition dated 

August 20, 1986, Mr. Chambers asserted he had had no chest pains until after the electrical shock (Exhibit N, p. 6). But in his 

second deposition, a year later on September 11, 1987, he stated 

he had had indigestion for about three days before the heart 

attack (Exhibit M, p. 6). He repeated the indigestion allegation 

at the hearing in this proceeding, asserting that indigestion was 

the pain referred to in the hospital admission reports (Tr. 24, 

45). At the present hearing, Mr. Chambers admitted he had not 

reported the alleged electrical shock to anyone at the mine 

before he left (Tr. 16, 42). 

·There is also a dispute in the medical evidence over whether 

the electrical shock, assuming it did occur, caused Mr. Chambers• 

heart attack. Or. Baysal expressed the opinion that the electrical shock had caused the infarct, noting that Mr. Chambers 

previously had been asymptomatic from the standpoint of a preexisting heart condition (Exhibit 0, pp. 12 & 13). However, 

Or. 3aysal admitted that Mr. Chambers showed no evidence of a 

burn or coagulation necrosis from the alleged shock (txhibit 0, 

p. 40). Dr. 8aysal also referred to the fact that a single 

vessel disease is rare in a diabetic (Exhibit 0, p. 14). 

876 
Dr. Wurtzbacher, a consultant engaged by Consol to review the 

medical evidence, expressed medical opinions contrary to those of 

Dr. Baysal. Dr. Wurtzbacher stated that there was no medical 

evidence of a direct relationship between the electrical shock 

and subsequent myocardial infarction (Exhibit F). He further 

stated that although multiple vessel atherosclerosis is seen in 

most cases involving diabetics, a single vessel disease in 

diabetics can be seen infrequently (Exhibit G). Finally, he 

described the cardiac symptoms and failures as caused by diabetes 

(Exhibit G). 

The Secretary's allegation of a reporting violation is based 

upon the assertion that Mr. Chambers suffered an electrical shock 

which constituted a reportable injury under Part 50. The Solicitor also argues that even if there was no electrical shock, a 

report should have been made because Mr. Chambers had chest pains 

at the mine. 

After a review of all the evidence I find that Mr. Chambers 

was not shocked on December 5, 1985. I carefully observed 

and listened to the testimony of Mr. Chambers and his co-worker 

Mr. Mclaughlin regarding the alleged occurrence of an electrical 

shock. I did not find them credible. As already noted, 

Mr. Chambers changed his story several times and as the 

operator's brief points out, his account became more elaborate 

and detailed -- and more obviously self-serving, with each 

telling. If the alleged shock were as severe as he alleged, it 

is incredible he did not tell anyone about it at the time. The 

same is true of Mr. McLaughlin's testimony, because he also told 

no one about the alleged shock. I find persuasive the contemporaneous evidence which shows that when admitted to the 

hospital, Mr. Chambers did not relate anything about an electric 

shock, but rather described chest pain of three days duration. I 

also note the section foreman's testimony that on December 5 

Mr. Chambers complained of chest pain upon entering the mine 

before he began working (Tr. 96, 97). In addition, on the discharge summary dated December 30, 1985, Dr. Baysal, described 

chest pain on admission as having been present for 24 hours and 

said that Mr. Chambers did not allege an electrical shock until 

December 16, ten days after his hospital admission (Exhibit C). 

Dr. Baysal Ls subsequent turnabout with respect to when Mr. 

Chambers first told him about the alleged shock, is not 

convincing. Even apart from the fact that the Secretary failed 

to produce Dr. Baysal to testify in these proceedings thereby 

resulting in his unavailability for cross-examination by the 

operator, Dr. Baysal •s contradictory statements fall far short of 

providing a basis for the Secretary to sustain her burden of 

proving a shock occurred. In addition, Mr. Chambers had no 

evidence of burns and he never was unconscious (Tr. 36-38). 

Based upon the foregoing, I conclude Mr. Chambers did not suffer 

877 
an electrical shock and therefore, the operator committed no 

violation in failing to report it. 

I reject the Solicitor's argument (p. 11 of her brief) that 

even if an electrical shock did not occur, a violation occurred 

because the operator was obliged to report Mr. Chamber's chest 

pains. The MSHA publication "Information Report on 30 

C.F.R. Part 50" February 1980 attached to the Solicitor's brief 

as Government Exhibit 7, states in pertinent part at page 6: 

"* * * The MSHA management concept on a 

dividing line between injury and illness 

states that an injury results from a recognizable single incident, i.e., a worker 

harmed by a single incident would be injured. 

* * *" 

The Solicitor attempts to describe the heart attack as a 

single event which had to be reported. But she offers no 

evidence to show when the heart attack occurred and cannot equate 

the· particular chest pains Mr. Chambers experienced at the mine 

with the precise onset of the heart attack, since he had been 

having such pains long before he went to work on December 5. 

Therefore, these chest pains were not a recognizable single incident within the meaning of the regulations and MSHA 

publication. 

Finally, the Commission's decision in Freeman Mining 

Company, 6 FMSHRC 1577 (July 1984), is of no benefit to the 

Solicitor here. In that case the Commission referred to an 

injury as "an act" that damages, harms or hurts, 6 FMSHRC at 1578. 

Once again, there is no such single act present in this case. 

And the issue of causal nexus is not involved here as it was in 

Freeman. If an electrical shock had occurred here, there would 

be no question that it was work related, which was the question presented in Freeman. If there had been a shock, the only inquiry would be whether it had any of the prescribed consequences such as medical attention or lost work days. Even 

assuming an electrical shock had occurred, I still would not find 

a violation. Medical attention and lost work days resulted from 

a heart attack, which the great weight of the evidence demonstrates was in turn caused by long-standing diabetes and heavy 

smoking, not from the electric shock as the Secretary alleges. 

·Accordingly, I conclude there was no violation and that 

Citation No. 2899820 must be VACATED, and that the penalty 

petition be dismissed insofar as this citation is concerned. 

As indicated above, the briefs filed by counsel which were 

most helpful, have been carefully reviewed. To the extent they 

are inconsistent with anything herein, they are rejected. 

878 
ORDER APPROVING PARTIAL SETTLEMENT 

ORDER TO PAY 

ORDER OF PARTIAL DISMISSAL ANO VACATION 

As set forth herein, the proffered five settlements for 

Citation Nos. 2945442, 2945443, 2945446, 2945455 and 2945456 are 

Approved and in accordance therewith, the operator is ORDERED TO 

PAY $850 within 30 days from the date of this decision. 

As further set forth herein, the Secretary's penalty 

petition is DISMISSED insofar as Citation No. 2899820 is 

concerned and that citation is VACATED. 

-- Pa u .l Mer l i n 

Chief Administrative Law Judge 

Distribution: 

An i t a D • Eve , Es q • , Off i c e of the So l i c i t or , U • S • De part men t of 

Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Paul T. Boos, Esq., Phillips, Gardill, Kaiser, Boos & Hartley, 61 

Fourteenth Street, Wheeling, WV 26003 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

I gl 

879 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DWIGHT BAUM, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUL 1 1988. 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. PENN 88-203-D 

ROCHESTER AND PITTSBURGH 

COAL CO.,. 

PITT CD 87-16 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

On June 23, 1988, Complainant filed a Motion to 

Withdraw in which he moved to withdraw his request for 

hearing in the above captioned matter. Accordingly, this 

Motion is granted. 

It is ordered that the above case be DISMISSED. 

In consequence of this order, Respondents Motion for 

Summary Decision is declared MOOT. 

Avram 

~~ Weisberger 

Administrative Law Judg,e 

Distribution: 

Mr. Dwight Baum, P.O. Box 64, Emeigh, PA 15738 (Certified 

Mail) 

Joseph A. Yuhas, Esq., Greenwich Collieries, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

slk 

880 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JUL 1 1988 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCES, INC., 

Respondent 

and 

UNITED MINE WORKERS OF AMERICA, 

Intervenor 

AMERICAN MINING CONGRESS, 

Amicus Curiae 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-88 

A.C. No. 05-00301-03609 

Dutch Creek No. 1 Mine 

ORDER OF DISMISSAL 

Before: Judge Morris 

The issues involved here arise from the federal Mine Safety 

and Health Act, 30 u.s.c. § 801 et~, ("Mine Act" or "Act"). 

At issue is whether the judge should grant the Secretary's 

pending motion to withdraw her complaint proposing a civil 

penalty or, in the alternative, deny the Secretary's motion and 

grant respondent's motion for declaratory relief. 

A resolution of the issues requires a review of the 

development and present status of this case. 

PROCEDURAL HISTORY 

1. On March 16, 1987, the Secretary filed a civil penalty 

against respondent Mid-Continent Resources, Incorporated. The 

complaint proposing the penalty arose from Citation No. 2213910, 

issued to Mid-Continent pursuant to§ 104(a) of the Act. 

The citation charges Mid-Continent with violating § 103Cf) of 

the Act. The citation describes the following violative 

practice: 

On 5/13/86, Donald Ford, Safety Department refused to Robert 

Butera, a designated representative of the miners, the right 

to accompany Mike Horbatko, an authorized representative of 

881 
the Secretary. During an inspection of the Dutch Creek No. 

1 Mine. The inspection was being conducted pursuant to 103 

(a) of the Federal Mine Safety and Health Act of 1977. 

2. Section 103Cf) of the Act, allegedly violated here, 

provides as follows: 

"(f) Subject to regulations issued by the Secretary, a representative of the.operator and a representative authorized 

by his miners shall be given an opportunity to accompany the 

Secretary or his authorized representative during the 

physical inspection of any coal or other mine made pursuant 

to the provisions of subsection (a), for the purpose of aiding such inspection and to participate in pre- or postinspection conferences held at the mine. Where there is no 

authorized miner representative, the Secretary or his 

authorized representative shall consult with a reasonable 

number of miners concerning matters of health and safety in 

such mine. Such representative of miners who is also an 

employee of the operator shall suffer no loss of pay during 

the period of his participation in the inspection made under 

this subsection. To the extent that the Secretary or 

authorized representative of the Secretary determines that 

more than one representative from each party would further 

aid the inspection, he can permit each party to have an 

equal number of such additional representatives. However, 

only one such representative of miners who is an employee 

of the operator shall be entitled to suffer no loss of pay 

during the period of such participation under the provisions 

of this subsection. Compliance with this subsection shall 

not be a jurisdictional prerequisite to the enforcement of 

any provision of this Act. 

3. On August 21, 1987 the judge stayed the proceedings 

because he believed certain controlling cases were pending before 

the Corrunission. 

4. On October 16, 1987 the stay was dissolved and the case 

subsequently set for a hearing. 

5. In due course the United Mine Workers of America C"UMWA") 

was granted party status and the American Mining Congress, 

C"AMC"), was granted leave to appear as Amicus Curaie. 

6. Mid-Continent's amended answer to the Secretary's 

complaint alleged, in effect, that the designation of the miners 

representative was invalid (Paragraph 20, Amended Answer). 

7. On November 23, 1987, the Secretary moved to withdraw his 

petition for assessment of a civil penalty. His motion admitted 

882 
that after a review and investigation the representative of 

miners' form was: 

signed by two employees (one of wnom was then off-work, 

permanently injured, had no intention of returning, and was 

unable to return to active employment at Mid-Continent ••• 

In addition, his motion states that: 

"[c]onsequently, the individual was not an active miner at 

the time the representative of miners' form was filed with 

the Mine Safety and Health Administration. In light of 

the truth of this allegation and the fact that only two 

people signed the designation (see Respondent's Answer, 

Exhibit No. 5), the citation and order have been vacated by 

the Secretary." 

8. Mid-Continent opposed the Secretary's motion to withdraw 

his proposal for penalty and further moved for declaratory 

relief. 

9. Mid-Continent's opposition to the Secretary's motion 

states, in part, as follows: 

A) That a major issue raised by the proceeding is whether a 

nominal number of workers can properly designate a union such as 

the UMWA as their walk-around representative under 30 C.F.R. Part 

40 when the designated union is not a union which represents 

employees at the mine under the Labor Management Relations Act, 

as amended, 29 u.s.c. §§ 141 et seg. Mid-Continent further 

asserts the issue was exacerbated in this instance by virtue of 

the fact that the UMWA was at the very time of the disputed 

designation in the process of an unsuccessful effort to obtain 

designation as the collective bargaining representative of 

Mid-Continent employees by the National Labor Relations Board. 

B) Further, Mid-Continent contends the Secretary's position 

is that any two or more employees may execute a designation under 

30 C.F.R. Part 40. As a result a non-employee union representative may gain access to Mid-Continent's mine, or any other mine, 

regardless of whether that union has been designated a collective 

bargaining representative of employees by the National Labor 

Relations Board or whether the designated union is, in fact, or 

in law, truly "representative'. 

C) Mid-Continent further states that since AMc·is appearing 

as Amicus Curiae the problems arising here are demonstrative of 

similar situations throughout the industry. 

D) Further, to allow the Secretary to withdraw his civil 

penalty without allowing this matter to move forward would 

deprive Mid-Continent of its efforts to date. 

883 
E) Mid-Continent also anticipates being confronted with the 

identical issue in the near future. The 12-month organizational/ 

election immunity created under Section 9(e)(2) of the National 

Labor Relations Act, 29 u.s.c. § 159(c)(2) between Mid-Continent 

and the UMWA expired in December 1987. 

F) Further, Mid-Continent faces civil penalties under Section 

llO(a) and (b) of the 1977 Mine Act and face a choice of either 

complying with the Mine Act (which is in clear conflict with the 

Labor Management Relations Act) or risk greater penalties under 

Section 110 of the Mine Act, including the possibility of 

criminal sanctions~ Accordingly, Mid-Continent should be 

permitted the opportunity to litigate these matters rather than 

risk penalty alternatives. 

G) No claim has been made that the Secretary anticipates 

reformulating her position on the propriety of a non-employee 

union representative (who was not selected as a representative of 

employees under the Labor Management Relations Act). Specifically, Mid-Continent contends this circumvents the National 

Labor Relations Board and obtains ostensible authority under the 

Mine Act when said representative is not, in law or fact "representative". Thus, both the factual and legal issues involved 

are significantly narrower than those involved in Climax 

Molybdenum Co. v. Secretary of Labor, 703 F.2d 447, 453 (10th 

Cir. 1983). 

H) According to Mid-Continent a further issue is whether the 

issuance of the citation contravened the prohibition of advance 

notice under Section llO(e) of the Mine Act. This issue arises 

from certain facts urged by Mid-Continent. Thus, if the case is 

not allowed to proceed to declaratory relief then Mid-Continent 

requests the matter be referred to the Department of Labor and 

the Department of Justice for review of potential prosecution for 

a violation of Section llO(e). 

10. On December 23, 1987 the judge cancelled the scheduled 

hearing in Glenwood Springs, Colorado and gave the parties 15 

days to state their views as to whether Mid-Continent should be 

permitted to proceed with its request for declaratory relief. 

11. On March 29, 1988, the Commission issued its decision in 

Emery Min~ng Corporation, 10 FMSHRC 276. 

12. The parties were given an opportunity to comment on the 

effect of Emery as it related to the facts involved in the 

instant case. The Secretary and UMWA oppose Mid-Continent's 

motion. Amicus Curiae, AMC, supports Mid-Continent's position. 

884 
Discussion 

As a threshold matter it appears that the Commission has 

jurisdiction in this case. Section llOCk) of the Act prohibits 

compromise, reduction or settlement of proposed penalties, once 

contested, without Commission approval. Commission Rule 30(a), 

29 C.F.R. § 2700.30(a); Kocher Coal Co., 4 FMSHRC 2123 {1982). 

It further appears the Commission, in its discretion, may 

grant declaratory relief under section S{d) of the Administrative 

Procedure Act, 5 u.s.c. § 554(e); Climax Molybdenum Co. v. 

Secretary of Labor, 703 F.2d 447 (10th Cir. 1983). 

The pivitol issue is whether the Commission should exercise 

its discretion and grant declaratory relief. 

Mid-Continent's prinicipal contention focuses on the point 

that in Emery the miners' were represented by the UMWA. On the 

other hand, Mid-Continent was union free at the time of the 

citation contested herein. It has, in fact, been union free 

since November, 1981. 

Emery clearly stands for the proposition that the rights of 

miners' representatives broadly extends to non-employees. The 

undersigned judge is obliged to follow the Commission rulings. 

New Jersey Pulversing Company, 2 FMSHRC 1686 (1980). Accordingly, on this point Mid-Continent could not prevail. 

Mid-Continent further contends that permitting access to its 

mine by a UMWA representative would clearly conflict with the 

National Labor Relations Act. 

However, in Emery Mining Corporation, the trial judge 

addressed an issue of whether Emery's waiver of liability policy 

might violate the laws of the State of Utah. 8 FMSHRC at 1206. 

On appeal the Commission observed that the proper concern was 

whether Emery had violated the Mine Act. Specifically, the 

Commission expressed no opinion on any question concerning state 

law, 10 FMSHRC 289, fn. 11. It would accordingly appear that any 

relief on this point would lie with the NLRB and not the 

Commission. 

Mid-Continent also argues that the Commission decision deals 

with a union representative recognized under the NLRB law. However the decision does not address the inherent conflict between 

the criminal provisions relating to prohibitions on prior notification of inspections in Section llO(e) of the Mine Act and the 

necessity for prior notification to be given to a non-employee 

walk-around representative, if the walk-around designation is to 

be anything other than illusory. It is claimed that the fortuity 

of a union organizer and inspector both showing up at 6:30 a.m. 

885 
is the one fact in this matter which will rarely occur absent 

prior notification. This problem, according to Mid-Continent, 

can be ameliorated somewhat in a. situation where a union has 

already been selected by employees. However, there is no way to 

ameliorate it where, as here, the walk-around designation is 

being used as a subterfuge to gain access to company property 

contrary to the Labor-Management Relations Act. 

I disagree. The date and time of regularly scheduled mine 

inspections, as mandated by the Act, would probably be common 

knowledge to any interested miner at the site. In addition, in 

any event it is the function of this judge to adjudicate issues 

under the Mine Act, not the Labor Management Act. 

For the foregoing reasons the motion of Mid-Continent for 

declaratory relief is denied and I enter the following: 

ORDER 

1. The motion of respondent for declaratory relief is 

denied. 

2. The motion of the Secretary to withdraw his petition for 

assessment of a civil penalty is granted. 

3. The proposed penalty is vacated. 

4. The case is dismissed. 

dmini~~i~e n :~s ~ Law Judge 

Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.O. Drawer 790, 

818 Colorado Avenue, Glenwood Springs. CO 81602 

Mary Lu Jordan, Esq., Michael H. Holland, Esq., United Mine 

Workers of America, 900 Fifteenth Street, N.W., Washington, D.C. 

20005 

Charles W. Newcom, Esq., Sherman & Howard, 633 Seventeenth 

Street, Suite 3000, Denver, co 80202 

Edward M. Green, Esq., and Mark G. Ellis, Esq., American Mining 

Congress, 1920 N. Street, N.W., Suite 300, Washington, D.C. 

20036 

/bls 886 

"' ' 
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. 

JUL 5 

F & E ERECTION COMPANY, INC., 

-Respondent . . 

1988 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 87-53-M 

A. C. No. 41-00022-05501 B96 

Dallas Quarry & Plant 

DECISION 

Appearances: Rebecca A. Siegel, Esq., Office of the Solicitor, 

Department of Labor, Dallas, Texas, for the 

Secretary; 

Michael Black, Esq., Burns and O'Gorman, San Antonio, 

Texas, for Respondent 

Before: Judge Weisberger 

Statement of the Case 

In a telephone conference call initiated by the undersigned 

with Counsel for both Parties on November 27, 1987, to determine 

the status of the case, it was indicated that Counsel were 

discussing a possible settlement of the case. On March 1, 1988, 

the Parties submitted a joint Motion to Approve a Settlement 

Agreement proposing a reduction in penalties from $8,000 to 

$3,000. It was determined that the Motion, and accompanying 

documents, did not contain sufficient information to allow 

approval of the settlement. A hearing was scheduled for 

April 12, 1988, in San Antonio, Texas, to allow the Parties to 

present evidence in support of the Motion to Approve Settlement. 

On April 12, 1988, the case was adjourned due to the sudden death 

that morning of Respondent's Superintendent Steven Harless. 

Subsequent to notice a hearing was held on May 19, 1988, on 

the Motion to Approve Settlement. I have considered the 

representations, documentation, and testimony submitted in this 

case, and I conclude that the proffered settlement is appropriate 

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

887 
WHEREFORE, the motion for approval of settlement is GRA.NTED, 

and it is ORDERED that Respondent pay a penalty of $3,000 within 

30 days of this order. 

Distribution: 

£~ Avram Weisberger 

Administrative Law Judge 

Rebecca A. Siegel, Esq., Office of the Solicitor, U. s. Department of Labor, 525 South Griffin Street, Suite 201, Dallas, TX 

75202 (Certified Mail) 

Michael Black, Esq., Burns and O'Gorman, 750 Rittiman Road, 

San Antonio, TX 78209 (Certified Mail) 

dcp 

888 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 121988 

RIVCO DREDGING CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Respondent 

CONTEST PROCEEDINGS 

Docket No. KENT 88-23-R 

Citation No. 2985271; 9/17/87 

Docket No. KENT 88-24-R 

Citation No. 2985272; 9/17/87 

River Dredge Mine 

Mine ID 15-12672 

ORDER OF: DISMISSAL 

Before: Judge Maurer 

It is undisputed that the two citations at bar (Nos. 2985271 

and 2985272) were issued on September 17, 1987, and that Contestant did not notify Respondent or the Commission of its intent 

to contest the citations until the MSHA office in Pikeville, 

Kentucky received a notice of contest on October 21, 1987. The 

Commission was not forwarded notification until November 16, 1987, 

when it received the correspondence via the Department of Labor. 

Under section 105(d) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 et seq., the operator must notify 

the Secretary of its intent tO--contest a citation within 

30 days of its receipt. Here, the Secretary was notified only 

after the 30 days had elapsed. The contests were accordingly 

filed untimely and are therefore DISMISSED. Alexander Bros., 

Inc., 1 MSHC 1760 (1979); Island Creek Coal Co., 1 MSHC 2143 

(1979) • 

Because this dismissal is on jurisdictional grounds, and 

this Commission is without subject-matter jurisdiction over the 

citations at bar in these contest proceedings, I find Rivco's 

failure to contest the associated proposed civil penalty assessments because Mr. Wilson did not recognize or understand the 

need to also file such a contest to be a moot point herein, 

having no bearing on these two contest proceedings. 

889 
Regardless of Rivco's reasons for failing to contest the 

associated civil penalty proposals, the fact is that a long 

·line of precedent going back to the Interior Department's 

former Board of Mine Operations Appeals holds that the 30-day 

time limit prescribed in the statute for the filing of an 

application for review is a statutory limitation on the 

Commission's authority to review such an application and is 

jurisdictional. Freeman co:al Mining Corp. I 1 MSHC 1001 (1970). 

Therefore, even if I should find that Rivco's failure to 

contest the associated civil penalty proposals was due to the 

excusable neglect, mistake or inadvertence of the operator, it 

would not serve to create subject-matter jurisdiction where 

none heretofore existed, i.e., in these two contest proceedings. 

Apropos that point, I also note for the record that unlike 

the M. M. Sundt Construction Co., 1/ and Kelley Trucking Co., 2/ 

cases referred to by the Commission in its Order of May 26, 1988, 

there are no civil penalty cases before me which could serve as 

the potential vehicle to give equitable relief to the operator 

herein should that be appropriate because the Secretary has 

never filed and presumably does not intend to file a Complaint 

Proposing Penalty concerning these two citations. Under those 

circumstances, there is not now nor will there ever be created 

a civil penalty case in which to litigate Rivco's objections to 

these citations. 

Distribution: 

Gene A. Wilson, President, Rivco Dredging Corporation, P.O. 

Box 702, Louisa, KY 41230 (Certified Mail) 

G. Elaine Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

1/ 8 FMSHRC 1269 (1986). 

2/ 8 FMSHRC 1867 (1986). 

/fb 

890 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 12, 1988 

NICKIE D. ORTEGA, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No. CENT 88-52-D 

DENV CD 87-6 

ROBERT TRUJILLO, 

(KAISER COAL COMPANY), 

Respondent 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On June 23, 1988, the Commission received a letter from the 

complainant stating that he no longer wishes to proceed with the 

above-captioned case. 

Accordingly, this case is hereby DISMISSED. 

~μgvck~ 

mes A. Broderick 

Acting Chief Administrative Law Judge 

Distribution: 

Mr • N i c k i e D • Ortega , 1401 Ar no 1 d , Raton , NM 8 7 7 4 0 

Mai 1 ) 

(Certified 

Mr. Robert Trujillo, Prep Plant Foreman/Dayshift, Kaiser Coal 

Corp • of York Canyon , P. 0. Box 110 7 , Raton , NM 8 7 7 4 0 

(Certified Mail) 

I g l 

891 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

J.S. REDPATH CORPORATION, 

Respondent 

DENVER. CO 80204 

JUL 131988 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-6-M 

A.C. No. 05-00571-05501 R83 

London Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Patrick J. Dougherty, Senior Mining Engineer, 

J.S. Redpath Corporation, Mesa, Arizona, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and Heal~h 

Administration CMSHA), charges respondent, J.S. Redpath Corporation, 

with ·violating a safety regulation promulgated under the Federal Mine 

Safety and Health Act, 30 u.s.c. § 801 ~t seg., (the Act). 

After notice to the parties a hearing on the merits was held in 

Phoenix, Arizona on May 17, 1988. 

The parties waived their right to file post-trial briefs and 

submitted the case on oral argument. 

Jurisdiction 

J.S. Redpath Corporation is a subcontractor providing a service 

for a mine owner. In turn, the mine owner produces a mineral product 

(Tr 24-26). 

The foregoing facts establish jurisdiction. 

Summary of the Case 

Citation 2639288 charges respondent with violating 30 C.F.R. 

§ 57.15004, which provides as follows: 

892 
§ 57.15004 Eye Protection 

All persons shall wear safety glasses, 

goggles, or face shields or other suitable 

protective devices when in or around an 

area of a mine or plant where a hazard 

exists which could cause injury to unprotected eyes. 

~he alleged violative condition, as modified, was described as 

follows: 

(2) Employees was not wearing safety 

glasses prior to commencing rock bolting 

underground. A eye injury could exist 

without protecting the employee's eyes 

with suitable protective devices. 

(Exhibit P3) 

Summary of the Evidence 

On June 23, 1987 federal mine inspector Ronald Simpson inspected 

a mine facility operated by Cobb Resources Corporation (Tr. 6-8>. 

Employees of J.S. Redpath were doing development work in driving 

drifts and raises (Tr. 8). When the inspector came on the working 

area the man had just stopped drilling. The inspector was the last 

one to reach the end of the drift. Upon checking, he asked if they 

were using eye protection. They replied it was foggy and hard to see. 

At least one of the miners had safety glasses but he wasn't wearing 

them (Tr. 10, 11, 18 and 21). The driller didn't have any glasses 

on his person. The inspector left the area when the helper gave him 

his glasses (Tr. 11). 

Failure to provide eye protection can cause permanent eye damage 

including loss of sight (Tr. 12, 14). The inspector presented 

evidence for eye injuries incurred on a nationwide basis since 1981 

(Tr. 15-17, Ex. Pl). 

The workers did not acknowledge that they had drilled without 

glasses. The miner actually doing the drilling stated he had taken 

the glasses off because of the foggy conditions (Tr. 22, 23). The 

foggy conditions could have been definitely helped with use of the 

ventilation bag (Tr. 23). 

893 
When he talked to the driller, the driller's helper pulled a 

pair of glasses out of his pocket and gave them to the driller. 

Harold Roy Walker, a retired superintendent, testified for 

Redpath. He indicated that as the inspection party approached miners 

Sullivan and Herrera, the men took their glasses off. Sullivan put 

his glasses inside his hard hat. Herrera put his in his pocket 

(Tr. 27, 28). The inspector came in, quizzed the men .about the 

glasses, and the two miners exchanged their glasses (Tr. 28). The 

inspector did not observe the two miners in the act of drilling 

(Tr. 29-30). 

Mr •. Walker, who has a hearing impairment, observed Herrera and 

Sullivan switch glasses (Tr. 36-39). 

Patrick John Dougherty, a senior mining engineer for Redpath, 

testified that the company stresses a nonadversarial relationship 

with regulatory agencies. Arguments with inspectors are avoided 

(Tr. 45). 

Witness Dougherty was not present on the day of the inspectLJ:ti 

(Tr. 47). 

Discussion and Evaluation 

A credibility issue is presented here as to whether the miners 

were wearing safety glasses. On this issue I credit the testimony of 

Redpath's witness Walker. He was the first to arrive at the point 

where the drilling was taking place. The inspector agrees he arrived 

after the drilling had stopped. The foggy conditions in the draft 

merely confirmed why the miners removed their glasses when they 

finished drilling. 

In addition, the violative practice described by the inspector 

in his citation does not constitute a violation of§ 57.15004. The 

violative condition is that the employees were not wearing safety 

glasses prior to commencing rock bolting. The regulation requires 

eye protection where a hazard exists, not prior thereto. 

ORDER 

Based on the foregoing findings of fact and conclusions of law 

I hereby enter the following order: 

Citation No. 2639288 and all penalties therefor are vacated. 

Law Judge 

894 
Distribution: 

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

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

(Certified Mail) 

Patrick J. Dougherty, Senior Mining Engineer, 1745 South Alma School 

Road, Suite 275, Mesa, AZ 85210 (Certified Mail) 

/ot 

895 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL131988 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

MICHAEL L. PRICE AND JOE 

JOHN VACHA, 

. . 

. 

c 

. . 

. . 

Docket No. SE 87-128-D 

No. 4 Mine 

Complainants : 

v. . . JIM WALTER RESOURCES, INC., 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Intervenor . . 

DECISION 

Appearances: Frederick w. Moncrief, Esq., and Thomas A. 

Mascolino, Esq., Office of the Solicitor, 

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

the Secretary of Labor and Complainants; 

Robert K. Spotswood, Esq., and John W. Hargrove, 

Esq., Bradley, Arant, Rose & White, Birmingham, 

Alabama, for Respondent; Robert H. Stropp, Esq., 

and Patrick Nakamura, Esq., Stropp & Nakamura, 

Birmingham, Alabama, for Intervenor, and 

Complainants. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

On May 14, 1987, the Secretary of Labor (Secretary> filed an 

application for an order requiring Respondent Jim Walter 

Resources, Inc. (JWR) to temporarily reinstate applicants 

Michael L. Price and Joe John Vacha to the positions from which 

they were discharged on March 2, 1987. At the request of JWR, I 

held a hearing on the application on June 29, 1987, following 

which I ordered JWR to reinstate Price and Vacha to the positions 

from which they were discharged and to pay back wages and other 

benefits retroactive to June 8, 1987. The order was based on my 

determination that the complaints of Price and Vacha to the 

Secretary were not frivolously brought. My order was affirmed by 

896 
the Commission, Secretary/Price and Vacha v. Jim Walter 

Resources, Inc., 9 FMSHRC 1305 (1987), and is presently on appeal 

to the United States Court of Appeals for the Eleventh Circuit. 

The Secretary filed a Complaint of discrimination on behalf 

of Price and Vacha with the Commission on September 2, 1987. JWR 

filed its Answer on September 25, 1987. There has been 

substantial pretrial discovery, including depositions and 

interrogatories by all parties. The United Mine Workers of 

America (UMWA} intervened in the proceeding and took part in the 

discovery and the hearing, as it did in the hearing on the 

application for temporary reinstatement. Pursuant to notice, the 

case was heard on the merits on March 21 through March 24, 1988, 

in Birmingham, Alabama. The Secretary called Richard Brooks as 

an adverse witness and William Leow, Donald Pennington, 

Dan Green, William Glover, Kenneth Smith, Robert Galasso, 

Jerry Whitley, Earl Odum, Danny Joe Nelson, Barry wood, 

Dwight Cagle, Herbert Jefferson, John Parrot, Jerry Grogan, 

Jeff Wilkes, John McVernon, Allen Robbins, Steve Anderson, and 

Pearlie sue Gray as its witnesses. JWR called Christopher 

Frings, Michael Hall, Robert Hendricks, William Beemer, 

Dr. G.M.' Shehi, Richard Brooks and Michael Johnson. Brooks Rouse 

was called as a witness by UMWA. The transcript of the Temporary 

Reinstatement hearing and the exhibits introduced at that hearing 

were admitted in this proceeding as Joint Exhibits. The 

transcript includes the testimony of Joe John Vacha, 

Michael L. Price, Thomas F. Wilson, Richard Brooks, Rayford 

Kelly, William Carr, Richard Donnelly and Wyatt Andrews. The 

exhibits include the opinion of arbitrator Samuel J. Nicholas 

dated January 29, 1987, on the class action grievance filed by 

UMWA concerning the drug testing program. They also include the 

transcript of the hearing before arbitrator Nicholas, March 18, 

1987, on the grievance of Price and Vacha, as well as arbitrator 

Nicholas' opinion of April 13, 1987. All parties have filed post 

hearing briefs. The parties have agreed that should I find a 

violation of section 105(c} of the Federal Mine Safety and Health 

Act (the Act), they will att~npt to agree on the appropriate 

monetary remedies. I have considered the entire record and the 

contentions of the parties, on the bases of which I make the 

following decision. 

FINDINGS OF FACT 

JWR MINING DIVISION 

JWR operates five underground coal mines, a training 

facility and a central shop, all located in the State of Alaba.ma. 

It employs over 2800 people, including 2200 hourly rated workers. 

The hourly employees are members of the UMWA; each mine has a 

local union, and all are affiliated with Distrct 20 UMWA. ·rhe 

897 
UMWA and JWR are signatories to a collective bargaining 

agreement (in effect through January 31, 1988), which governs 

labor relations in the JWR mines. It covers, among other things, 

the establishment and the rights and duties of a Mine Health and 

Safety Committee at aach mine. It provides for dis~ipline and 

discharge of employees for just cause. ·~ 

JWR'S SUBSTANCE ABUSE AND REHABILITATION & CONTROL PROGRAM 

JWR perceived that it had a substance and alcohol abuse 

problem among its employees because a number of hourly and 

salaried employees had been discharged or had resigned in lieu of 

discharge because of alcohol or drug abuse. In addition JWR had 

what it considered a relatively high accident rate and a high 

rate of absenteeism, both of which it attributed in part to a 

drug and alcohol problem among its employees. It further 

believed that it had high and escalating health care and workers' 

compensation costs, which it believed were related in part to 

substance and alcohol abuse. 

In April 1986, Mike Gossett, President, District 20, UMWA, 

contacted Richard Brooks, Vice President of Industrial Relationfr 

JWR, request.ing a meeting to discuss the problem of employee drug 

use in the JWR mines. A meeting was held in which Brooks and 

Eddie Roberson, JWR Labor Relations Manager, represented JWR, and 

Gossett and Gene Hyche, UMWA District Representative, 

represented UMWA. All the participants agreed that a problem of 

drug and alcohol abuse existed at JWR mines. They also agreed 

that a joint union-management program would be preferable to a 

company imposed work rule. Brooks proposed that the program 

include employee testing, education and rehabilitation and that 

it include families of e!nployees. He also emphasized the 

importance of it being confidential. Brooks prepared a draft of 

a proposed prograill and gave a copy to the union representatives 

in late July 1986. Some time later Brooks talked to Tommy 

Buchanan, International Executive Board Member for District 20 of 

the UMWA. Buchanan told him he had sent his copy of the program 

"to Washington." Later Buchanan told Brooks that the UMWA and 

MSHA were working on a joint program in Washington. Brooks 

concluded that the UMWA was not interested in agreeing on a 

substance abuse program at JWR. He thereupon modified the draft 

of the program and prepared it as a company work rule. 

A.t a companywide communications meeting on September 24, 

1986, attended by m1wA District representatives and all the local 

union presidents, copies of the .JwR substance abuse program were 

distributed. None of the union representatives indicated any 

problem with the progra1n. On October 16 and 17, 19 86, JWR called 

a series of communications meetings at each mining location 

during which the program was explained, and the union 

898 
representatives were advised that it would take effect January 1, 

1987. In late October or early November 1986, a notice with a 

copy of the plan was posted at each mine location, and each 

employee received a copy of the plan with his or her paycheck. 

In early January 1987, a special issue of the JWR magazine, 

"Workings" was entirely devoted to the drug abuse program. 

The Program is entitled Substance Abuse Rehabilitation and 

Control Program. It covers five typewritten pages and is divided 

into four main topics: Employee Testing, Disciplinary Action, 

Rehabilitation, and Education. It applies to all hourly and 

salaried employees of JWR's mining division. The testing 

provision is directed first to employees demonstrating a 

reasonable cause for testing, including {a) anyone involved in 

two or more mine accidents within a 12 month period, or involved 

in one accident which injures another employee or causes property 

damage; (b) an "irregular worker"; (c) an employee who comes 

under an attendance control policy; (d) an employee on company 

property who appears to be under the influence of drugs or 

alcohol; (e) an employee who is indicted, arrested or convicted 

under state or federal drug laws. Any employee who enters 

rehabilitation and fails to cooperate, or tests positive during 

the rehabilitation program shall be removed from rehabilitation, 

and will be subject to random testing for one year. An employee 

may voluntarily come under the program. Laid off employees shall 

be tested as a part of the recall physical examination. 

Section II.E. of the program provides as follows: 

Any employee whose duties, whether by job title or by 

reason of elected off ice, involve safetyi shall be 

subject to random testing for substance abuse up to 

four times per calendar year. Physicals for hoistmen 

shall also include testing for substance abuse. All 

provisions of the program shall apply to employees in 

this category. 

Brooks intended that the phrase "employee[s] whose duties • 

by job title .•. involve safety" encompassed safety 

inspectors, dust and noise control supervisors, and section 

foremen. These are all salaried positions. The only hourly 

employees covered are union safety committeemen who come under 

the phrase "ernployee[s] whose duties •.• by reason of elected 

office •.• involve safety." 

Tbe UMWA protested the unilateral implementation of the drug 

abuse program. It filed a class action grievance under the 

contract, and an unfair labor practice charge with the National 

Labor ~elations Board (NLRB). Initially, the NLRB deferred to 

the arbitrator appointed under the collective bargaining contract. 

The arbitrator issued a decision on January 29, 1987, based on a 

899 
settlement reached by the parties: the program was recognized by 

the Union, but the Union disagreed with itf the Union reserved 

the right to.file grievances on behalf of employees made subject 

to the program. Thereafter, however, the UMWA filed suit to set 

aside the January 29 award and subsequent individual awards 

(including an award denying the grievances of Price and Vacha) 

involving the program. The District Court granted summary 

judgment in favor of JWR, and the case is presently pending 

before the court of Appeals. Apparently, the General Counsel of 

the NLRB has reconsidered her deferral to the arbitrator, and has 

instituted or contemplates instituting an unfair labor practice 

proceeding involving the substance abuse program. 

IMPLEMENTATION OF THE PROGRAM 

In late February 1987, Richard Brooks decided to randomly 

test the safety-related employees in all the JWR Mines under 

paragraph II.E. of the Program on March 2, 1987. He notified the 

industrial relations supervisors of the decision and "[swore] 

them to secrecy." The industrial relations supervisors were 

directed to test all employees covered by paragraph II.E. on that 

date. For various reasons, however, the urine samples were take~~ 

from the affected employees on March 2, 3, 6 and 9, and on 

April 8. Prior to March 2, there was considerable discussion and 

joking about the program among union employees and management 

officials. In the subject mine, much of the joking was directed 

at Price. In November 1986, Price told Wyatt Andrews, the mine 

safety inspector and Bob Hendricks, associate safety inspector 

that he had difficulty urinating in front of others. Hendricks 

laughed and made a vulgar remark to Price. In late November or 

early December a urine specimen bottle W;:).S exhibited on Wyatt 

Andrews' desk with a label on it reading "Mike Price UMWA." 

Andrews laughed when Price saw the bottle. It remained in the 

safety off ice for at least two days before Rayford Kelly directed 

that it be removed. Andrews and another safety inspector had on 

two other occasions jokingly thrust an empty CSE cannister and an 

empty coca cola can toward Price and Vacha telling them that they 

were practice piss cups. Later a styrofoam cup with Price's name 

and the notation "practice cup" written on it was displayed in 

the safety off ice. All these incidents took place prior to March 

March 2, 1987. 

Price and Vacha worked on the day shift--7:00 a.m. to 3:00 

p.m. At about 8:00 a.m. on March 2, Price was told that he would 

have to submit a urine sample. Vacha was informed at about 11:30 

a.m. At the end of their shift, they went to the office of the 

Industrial Relations Supervisor of the No. 4 Mine, Rayford Kelly. 

Urine samples were taken at the No. 4 Mine from four management 

saf2ty personnel and the owl shift safety committeeman. The 

900 
samples were taken under the supervision of Andrews and 

Hendricks, rather than Kelly. In the other mines, the samples 

were taken under the direct supervision of the industrial 

relations supervisors. 

Price and Vacha signed the release form and submitted union 

prepared protest forms in Kelly's office. They asked whether 

they would be paid for the time spent in the off ice and were 

informed that they would not. Along with the other safety 

committeemen, they filed grievances for this, and were ultimately 

paid for one hour. Vacha then went to the bathroo1n with Andrews. 

He told Andrews that he was unable to urinate. He was taking a 

physician prescrl.bed medication, lomotil, for a nervous stomach 

related to personal problems. One possible adverse reaction to 

this medication is urinary retention. Vacha tried on a nwnber of 

subsequent occasions but was unable to provide a urinary specimen. 

He was clearly nervous and upset. Price also was unable to 

urinate. He offered to go into the bathroom naked if he could go 

alone, but this off er was refused. He tried a number of times to 

provide the sample but was unable to do so. Water, coffee and 

soft drinks were made available, but the requested urine samples 

were not forthcoming. At about 7:00 p.m. (4 hours after 

completion of their shift), Kelly told Price and Vacha that they. 

would be given 30 minutes to provide a sample or be disciplined. 

Vacha replied that "you [or they] can't make me piss." Price 

asked whether they could return the next morning to give the 

samples, but this was refused. At approximately 7:20 p.m., they 

were given 5 minutes to produce a specimen or be discharged. At 

7:30 p.m., they were each given formal five day suspensions with 

intent to discharge because of insubordinate conduct, The 

following morning, March 3, 1987, Price and Vacha had drug screen 

tests at the Emergicare Center (J'iVR's contract physicians) and at 

the Longview Hospital, respectively. The results, which were 

negative, were submitted to JWR. 

Many union members were upset over the drug testing program, 

and a meeting took place prior to March 2, involving local union 

presidents, District 20 officials and safety committeemen from 

the No. 5 Mine. At this rneeting it was decided that if urine 

specimens were requested, the committeemen should ask why, notify 

management that the specimens were given under protest, and 

provide the specimens if they could. There is no evidence that 

Price and Vacha were at this meeting. However, it is clear that 

they and lTiost of the other safety committeemen objected to the 

implementation of the program, and believed that it was 

discriminatory. They were also aware that if they failed to 

furnish a specimen, they could be discharged. 

Price and Vacha filed grievances over their discharge, and 

the grievances were taken to arbitration under the collective 

901 
bargaining contract. The arbitrator, Samuel J. Nicholas held a 

hearing on March 18, 1987. JW'R called Rayford Kelly and Richard 

Brooks as witnesses. The Union called William Brooks, Dwight 

Cagle, Joseph O'Quinn, Dennis Gilbert, Edward Smith, Joseph 

Vacha, Michael Price and Dr. Daniel Doleys. On Mar£h 19, 1987, 

the arbitrator annouhced his decision denying the grievances on 

the ground that the company had justifiable cause under the 

contract for the discharges. He issued a written opinion on 

April 13, 1987. In his opinion he concluded that Price and Vacha 

could have given urine samples but "chose not to comply with 

manage..'Tient's request." He further concluded that there was r.o 

evidence of disparate treatment or discrimination against Price 

and Vacha. He relied on the fact that 43 other similarly 

situated employees "openly complied with management's request." 

At the other JWR mines, some of the safety committeemen 

tested were allowed to produce urine specimens without an 

observer being present: in other cases, the observer was 

immediately outside the bathroom: some produced the specimen 

inside a closed toilet stall. In one mine, a committeeman who 

was unable to produce a specimen when requested was permitted to 

return at the end of his shift to do so. In another instance a 

miner being tested for cause Che had an accident), was permitted 

to return thefollowing day to give a urine sample. However, 

although the company had already notified the miner that it 

intended to tiischarge him, he was reinstated the next day and 

apparently was never actually tested. 

SAFETY COMMITTEES 

Article II, Section (d) of the Contract provides that each 

mine shall have a Mine Health and Safety Committee made up of 

miners "who are qualified by mining experience and training and 

selected by the local union." The committee is given the right 

to inspect any portion of the mine and report any dangerous 

conditions to manage1nent. If the coffil.nittee believes that an 

imminent danger exists and recommends that the employer remove 

all employees from the involved area, the employer must comply 

with the recommendation. 

Under the Act, the safety committeemen are considered 

representatives of the miners. They may request MSHA inspections 

under section 103(g), and normally accompany the MSHA inspector 

during his physical inspections of the mine. 

At the JWR mines, the safety committeemen are elected. 

Committeemen choose their chairman, and select alternate safety 

committee members. 

902 
Price and Vacha and their safety committee had the 

reputation of being safety activists. In six years on the 

committee, Vacha has filed from 75 to 100 Section 103(g) 

complaints, and has participated in 50 to 75 safety grievances. 

Price has annually filed approximately 25 Section l.03(g) 

complaints and handled approximately 70 safety_grievances. 

Vacha estimated that he spent approximately 50 percent of his 

working time on safety committee duties; he was classified as a 

miner operator, but actually worked on self-contained rescuers, 

under Wyatt Andrews of the safety department. Price also devoted 

about 50 percent of his time to safety committee work. He was 

classified as a long wall helper. On one occasion while working 

on the mining section, Vacha was removed from his continuous 

miner operator job because he was thought to be shutting down his 

machine because of face methane. On another occasion in June 

1986, Price was told by JWR's vice-president of operations, Buck 

Piper, that if he wanted to keep his job he "had better back off 

on safety." Price was discharged in June or July 1986 "for 

performing [his] job as a safety committeeman," but was 

reinstated after arbitration. He was reprimanded in 1983 and in 

1986, also while performing his duties as a safety committeeman. 

JWR has blamed the safety committee for causing the mine to be 

closed on different occasions, and for filing a large number of 

103(g) complaints and safety grievances. After the discharge of 

Price and Vacha on March 2, and a layoff affecting owl shift 

committeeman Ed Smith, there were as of June 29, 1987, no elected 

safety committeemen at the JWR No. 4 Mine. 

INDUSTRY DRUG ABUSE PROGRAMS 

On September 15, 1986, the President of the United States 

issued an Executive Order, entitled Drug-Free Federal Workplace, 

in which he stated that "[DJrug use is having serious adverse 

effects upon a significant proportion of the national work force 

and results in billions of dollars of lost productivity each 

year." The Senate commerce Committee in Senate Report 100-43, 

lOOth Cong. 1st Sess., to accompany s. 1041 filed April 10, 1987, 

found that "Drug and alcohol abuse has become an increasing 

problem in the workplace. Substance abuse leads to impaired 

memory, lethargy, reduced coor..iination, and a whole series of 

changes in heart, brain, and lung functions. These symptoms in 

workers have resulted in lost productivity for American 

businesses of as much as $100 billion a year, with significant 

increases in employee acci-:1.ent rates, health care costs 1 and 

absenteeism." A recent issue of the Duquesne Law Review has an 

exhaustive commeat on compulsory drug screening in employment. 

25 Duquesne Law Rev. 597 {1987). Tne problem is apparent; a 

solution which recognizes the union's interest and the rights to 

privacy and personal dignity of the employees is more difficult. 

903 
JWR and the UMWA officials involved with the JWR mines 

agreed that a significant problem of substance abuse existed 

among the employees in the JWR mines. They agreed that the 

problem should be addressed by a joint Company-Union program. 

They agreed that the program should include educati-0n, testing 

and rehabilitation. The UMWA believed that the program should be 

subject to collective bargaining. JWR, however, after some 

cursory discussions with different union officials, concluded 

that the UMWA was not interested in a joint program, and it 

unilaterally promulgated the plan involved in this proceeding. 

Prior to that time, the UMWA had not objected to, nor had it 

agreed to the provision which became Section II.E. in the program. 

Section II.E. (and much of the rest of the program} was drafted 

by Richard Brooks. Brooks' experience with safety committeemen 

was essentially limited to arbitration proceedings. He had 

little direct contact with the safety committees in the 

performance of their regular duties. There is no evidence that 

Section II.E. or any other part of the plan was motivated in any 

part by hostility to safety committee members. I accept Mr. 

Brook's testimony that he included safety committee members in 

Section II.E. because he believed that they had such a high 

degree of responsibility for safety in the mines. 

Compulsory collection of urine for drug testing is "a highly 

invasive experience" CR571}. This fact was recognized by the 5th 

Circuit Court of Appeals in the case of National Treasury 

Employees Union v. VonRaab, 816 F.2d 170, 175 (5th Cir. 1987): 

·rhere are few activities in our society more personal 

or private than the passing of urine. Most people 

describe it by euphemisms if they talk about it at all. 

It is a function traditionally performed without public 

observation; indeed its performance in public is 

generally prohibited by law as well as social custom. 

Collection of urine under the observation of co-workers or 

supervisors is especially uncomfortable for most people. 'l'he 

employees at JWR believed that compulsory drug testing was in 

some way accusatory, that being singled out for testing without 

cause was an invasion of privacy and degrading. One employee who 

was tested because she reported two back injuries within a year 

"felt humiliated and embarrassed about" being required to gi•1e a 

urine specimen. (R627) Recent news media stories have also 

created the fear in the minds of many JWR employees that the 

results of testing are not completely accurate, thus raising the 

specter that they might be falsely and unfairly branded as drug 

users. The evidence shows however that the drug screen testing 

used by JWR--an initial screen and a confirmatory screen--is 

better than 99 percent accurate. This, of course, presumes that 

904 
the collection procedures including chain of custody are strictly 

followed. 

A substantial number of JWR employees, including most 

members of the safety committees, believe that singling out 

safety committee members for random testing is_ unfair. Some 

safety committee members have resigned because of the program. A 

number of others have considered resigning. Miners have refused 

to run for safety committee positions because they would be 

singled out for random testing four times per year. Steve 

Anderson who resigned from the safety committee testified: 

[The drug abuse program] is just too much room for 

harassment. You try to do your job and if you write a 

103g or you file a complaint or the Federal, something 

like that if they don't like it, they got too much room 

for harassment just of the safety committee, that four 

times a year. (R.618) 

The bashful bladder syndrome is a psychiatric illness--a 

social phobia--in which a person has a fear of urinating in 

public restrooms or in any place where the person is, or fears 

he/she is, in public view. Approximately one person in three 

hundred of the general population has this condition. However, 

stress, fear or anger can affect a person's ability to provide a 

urine specimen, even though he/she is not suffering from a 

clinical case of bashful bladder syndrome. From one to three 

percent of the population may experience individual episodes in 

which he or she has great difficulty in urinating because of- some 

anxiety or pressure type situation. 

I have considered the testimony before me of Dr. George 

Michael Shehi, and the record of the testimony of Dr~ Daniel M. 

Doleys before the arbitrator. I have also considered the 

testimony -of Price and Vacha. I find as facts that neither Price 

nor Vacha had a clinical case of bashful bladder syndrome. I 

further find that both Price and Vacha were anxious, fearful and 

angry over the requirament that they submit urine samples on 

March 2, 1987. I have very carefully and respectfully considered 

the opinion of arbitrator Nicholas that Price and Vacha "chose 

not to comply with Management's request" and that they "refused" 

to deliver urine samples. However, I have an independent 

responsibility under the Mine Safety ~ct, and have heard the 

testimony of Price and Vacha among other witnesses. I have 

observed their demeanor on the witness stand, and have weighed 

theic obvious interest in the outcome of this proceeding. I am 

persuaded that they fully understood the nature of the oath they 

took to tell the truth. I disagree with the implied conclusion 

of the arbitrator that they perjured themselves. I find, as I 

previously found in my Temporary Reinstatement Order, that Price 

905 
and Vacha had physical or psychological difficulties in providing . 

the required samples on March 2, 1987. I find that they did not 

refuse to submit the urine samples, but were unable to do so 

under the circumstances present on the evening of March 2 a.t the 

subject mine. 

ISSUES 

1. Is the JWR Substance Abuse Program on its face violative 

of section 105(c) of the Mine Act, irrespective of the motivation 

of JWR? 

2. Was the JWR Substance Abuse Program as applied to 

claimants Price and Vacha in violation of their rights under 

section 105(c)? 

3. What deference is owed to the findings and conclusions 

of the Arbitrator who upheld the discharges of Price and Vacha? 

CONCLUSIONS OF LAW 

JURISDICTION 

JWR is subject to the provisions of the Mine Act in the 

operation of the subject underground coal mine. Michael Price 

and Joe John Vacha were, as of March 2, 1987, miners and 

representatives of miners as those terms are used in the Act. 

FACIAL VALIDITY OF THE JWR SUBSTANCE ABUSE PROGRAM 

The typical case of discrimination under section lOSCc) of 

the Act involves adverse action taken against a miner for 

activity related to safety and therefore protected under the Act. 

In such a case, the motivation of the employer or other person 

respondent is important. In this case, the Secretary contends 

that the drug testing program Cor section II.E. thereof) is per 

se discriminatory and therefore violative of the Act. The 

employer's motivation is, if not irrelevant, at least not so 

important. It: is clear that a policy or program of a mine 

operator can itself be held to violate the Act. Local Union 

1110, UMWA/Robert Carney v. Consolidation Coal Company, 1 FMSHRC 

338 Cl979). Enforcement of such a program by adverse action 

against a miner or 1niner's representative, it seems clear to me, 

can be prohibited regarulass of the mine operator's motive. 

Insofar as it requires randoJn unannounced urine testing, 

JWR's substance abuse program applies only to elected safety 

committee members, among all hourly employees. The evidence 

establishes thr.it. ti1e acti\ri ties of many other hourly employees, 

including those who work at the coal face, and on-shift and 

906 
pre-shift examiners C"firebosses") are intimately related to 

safety, but they were not included in the random testing 

requirement.· JWR's explanation for the distinction is that 

safety committee members have the greatest responsibility for 

safety of anyone in the mine. Brooks sta.ted that it was for that 

reason that these employees were to be tested first. Brooks and 

William Carr, President of JWR's Mining Division, implied that 

they intended to test other hourly workers in the future. 

However that may be, it is clear that the current program is 

restricted to, and immediately impinges oa one small group of 

hourly employees: the elected members of the mine safety 

committees. 

The evidence establishes that the miners at JWR view 

mandatory drug testing with varying degrees of hostility: many 

consider it to be accusatory and believe that it casts suspicion 

of drug use on persons being tested. They look upon the testing 

procedures followed by JWR as an invasion of privacy and an 

affront to their dignity. Further, some of the miners have been 

exposed to news media reports which cast doubt on the accuracy of 

the testing procedures. Thus, they expressed fear that they 

might be erroneously branded as drug users. These suspicions and 

doubts seem to me to have resulted in part at least from an 

inadequate education effort on the part of JWR, and from the fact 

that the program was instituted unilaterally, without the 

participation of the unions. 

The members and potential members of the mine safety 

committee reacted negatively and hostilely to the provisions of 

II.E. which they viewed as unfairly singling them out for random 

testing four times annually. As a result of this reaction, some 

committee members have resigned; others have considered resigning 

<only one test has been conducted to date because of the pending 

litigation), and further testing may cause further resignations. 

Still others have ref11sed to accept safety committee positions or 

to run for election to them. 

Based ori this review of the evidence, I conclude that one 

effect of the drug abuse program has been to severely limit the 

independence and therefore the effectiveness of the committees. 

This is true without regard to the motivation of JWR in 

instituting the plan. The importance of preserving the 

independence of safety coffi!nittee personnel was underscored in the 

case of Local Union 1110, UMWA/Robert Carney v. f2P~~lid~~~9...~­

Coal Company, supra, a case unaer the 1969 Coal Act. The safety 

committeeman is the representative of the miners under the Act. 

He or she is the usual conduit for miners' safety complaints to 

management or to MSHA. Although miners and mine manage.'llent are 

both clearly intecested in safety, a safety committeeman brings .a 

different perspective, a different attitude to safety matters, 

907 
the perspective and attitude of the miner. He may be less 

concerned about production and more concerned about the lives and 

limbs of the·workers. In some instances at least, his concerns 

and opinions may clash with those of management. It is therefore 

important that his independence be maintained. Congress 

strengthened the antiretaliatory provisions in_the Coal Act when 

·it enacted the 1977 Mine Act. The legislative history of the 

Mine Act makes this clear: 

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 Act. The 

Committee is cognizant that if minars are to be 

encouraged to be active in matters of safety and 

health, they must be protected against any possible 

discrimination which they might suffer as a result of 

their participation. • •• 

* * * * * 

The wording of section [105 Cc)] is broader than the 

counterpart language of section 110 of the Coal Act 

and the Committee intends section [105{c)] to be 

construed expansively to assure that miners will not 

be inhibited in any way in exercising any rights 

afforded by the legislation. 

s. Rep. 95-181, 95th Cong., 1st Sass. 35-36 (1977), contained in 

Legislative History of the Federal Mine Safety and Health Act of 

1977; 95th Cong., 2d Sess. (1978) 623-624. 

I have previously found that the program was not intended 

to diminish the rights and responsibilities of the miners' 

repre8entatives, but its effect has clearly been to do so. I 

conclude that a retaliatory motive need not·be shown to make out 

a claim of discrimination under the Mine Act in the circumstances 

of this case. Cf. Simpson v. FMSHRC, 842 F.2d 453 CD.C. Cir. 

1988). Therefore, I conclude that section II.E. of the JWR Drug 

Abuse and Rehabilitation and Control Program is facially in 

violation of section 105Cc) of the Act. The discharge of Price 

and Vacha on the ground that they refused to participate in the 

program was therefore also in violation of section 105(c). 

IMPLEMENTATION OF THE PLAN-DISCHARGE OF PRICE AND VACHA 

The Secretary and the Intervenor both contend that even if 

the drug testing plan is not discriminatory on its face, it was 

discriminatorily applied to Price and Vacha because of their 

safety committee activities. Specifically, they argue that Price 

and Vacha were harassed and were subjected to disparate treatment 

908 
because they were safety activists. Finally, they contend that 

they were discharged because of their activity as safety 

committeemen.. To establish a prima facie case of discrimination 

under this theory of the case, complainants have the burden of 

establishing that they engaged in protected activity and that the 

adverse action complained of was motivated in any part by that 

activity. Secretary/Fasula v. Consolidation Coal Co., 2 FMSHRC 

2786 (1980), rev'd on other grounds sub nom. Consolidation Coal 

co. v. Marshall, 633 F.2d 1211 (3rd Cir. 1981); 

secretary/Robinette v. United Castle Coal Co., 3 FMSHRC 817 

(1981). The operator may rebut the prima facie case by showing 

either that no protected activity occurred or that the adverse 

action was not motivated in any part by protected activity. The 

operator may also defend affirmatively by proving that it was 

also motivated by unprotected activity and would have taken the 

adverse action in any event for the unprotected activity alone. 

Fasula, supra; Robinette, supra. 

The safety committee activities of Price and Vacha were 

clearly protected by the Act. Safety inspections, safety 

complaints to mine management and MSHA, relaying miner complaints 

to mine management and MSHA: these are prototypically activities 

protected under the Mine Act. Refusal (as JWR claims) or failure 

because of inability (as Price and Vacha claim) to produce urine 

specimens for drug tests would not on the surf ace seem to be 

protected. But the specimens were sought only because Price and 

Vacha were safety committeemen and therefore representatives of 

the miners. Complainants contend that the pre-testing harassment 

and the refusal to accommodate the difficulties complainants 

experienced in providing the specimens are evidence of a 

discriminatory motive. · 

Rayford Kelly, the Industrial Relations supervisor at the 

No. 4 Mine, who discharged Price and Vacha, was not directly 

involved with the safety committee activities of Price and Vacha 

but was clearly aware of them. He knew they were safety 

activists, that they were "notorious" for filing safety 

complaints. The supervision of the urine collection at the No. 4 

Mine was delegated to Andrews and Hendricks, company safety 

inspectors, rather than remaining in the Industrial Relations 

Department, as in the other mines. In some of the mines, those 

supervising the collection did not go into the bathroom with 

those giving the sal!lples. No acco1amoda ti on was offered Pr ice and 

Vacha when they claimed inability to produce urine specimens, 

though some accommodation was given others involved in the drug 

screening program. I have found as a fact that Price and Vacha 

did not refuse to give specimens, but were in fact physically or 

psychologically unable to produce the specimens prior to being 

aischarged on March 2, 1987. On the basis of this evidence, and 

reasonable inferences from the evidence, I conclude that the 

909 
discharge of Price and Vacha was motivated in part because of 

protected activity, i.e., because of their activities as safety 

committeemen: The evidence also establishes that JWR made known 

that refusal or failure to submit urine samples when required 

under the program would be ground for discharge. This was based 

on its conclusion that such refusal would be violative of a work 

order and thus insubordination. It is not my function to 

determine whether such a policy was a good one or was in 

compliance with the contract. (It involved a "work order" which 

involved activity "off the clock"). Price and Vacha were 

discharged for insubordination--violating a work order. Would 

they have been discharged "in any event" for such 

insubordination--that is, if they were not notorious for filing 

safety complaints? Since none of the other employees tested in 

March and April 1987 failed to produce urine specimens, answering 

this question is not easy. JWR told those being tested that 

failure to give a urine specimen would result in discharge. I 

believe that any safety committeeman who failed to produce a 

specimen when asked would have been discharged. Therefore, I 

believe that Price and Vacha would have been discharged for 

failure to produce the specimens if they were not safety 

watchdogs but harmless safety pussycats. I conclude therefore 

that JWR would have discharged Price and Vacha for violating a 

work order (not protected activity) in any event, and that the 

drug testing program was not discriminatorily applied to Price 

and Vacha. This conclusion does not affect my previous 

conclusion that the program was discriminatory on its face. 

DEFERENCE TO ARBITRATOR 

In a "Summary Opinion" dated April 13, 1987, Arbitrator 

Samuel J. Nicholas, Jr., restated his award of March 19, 1987, 

denying the grievances filed by the UMWA on behalf of Price and 

Vacha. The arbitrator determined that JWR had the right to 

direct Price and Vacha to deliver urine specimens and that Price 

and Vacha had the duty to provide them. He held that the 

discharge of Price and Vacha was not "colored by discrimination 

and/or disparate treatment," that the discipline meted out was 

appropriate "given the . • • circumstances surrounding 

the[employees] refusal to deliver the .•. urine samples." The 

transcript of the arbitration proceeding and the arbitrator's 

opinion were before me when I issued my Temporary Reinstatement 

order. I held that arbitrator's findings are not binding on the 

Commission, citing Pasula v. Consoli1ation Coal Co., supra. It 

is beyond argument that the Com11ission may not abdicate its 

responsibility to decide whether a miner ~as discriminated 

against under section 105(c) of the Act, because an arbitrator 

has decided that the miner was or was not discharged for just 

cause under the collective bargaining agreement. JWR argues, 

however, that I should defer to the arbitrator's conclusion that 

910 
Price and Vacha refused to provide the requested urine specimens. 

I have considered this conclusion and have reviewed the testimony 

on which it was based. I have also considered the testimony 

before me and have elsewhere in this opinion given my reasons for 

disagreeing with the arbitrator. I believe I have given his 

findings great weight. But they are not compelling: Further, my 

disagreement with the arbitrator's finding is of little 

importance since, despite my finding that Price and Vacha did not 

refuse to provide urine specimens, I concluded that they did not 

establish (assuming the facial validity of the program) that they 

were discharged in violation of section lOSCc). The arbitrator's 

findings and conclusions are not entitled to deference or to 

great weight in determining the legal issue whether Section II.E. 

of the drug testing program was on its face violative of Section 

105(c). 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

1. Respondent JWR shall permanently reinstate Michael L. 

Price and Joe John Vacha to the positions from which they were 

discharged on March 2, 1987. 

2. Respondent shall pay wages and other benefits to Price 

and Vacha from March 3, 1987, until the date of their 

reinstatement with interest thereon in accordance with the 

Commission decision in Secretary/Bailey v. Arkansas Carbona Co., 

5 FMSHRC 2024 (1984). 

3. The attorneys for the intervenor contributed 

substantially to the successful litigation of the claim. 

However, under the rule enunciated in Eastern Associated Coal 

Corp. v. FMSHRC, 813 F.2d 639 (4th Cir. 1987), and Maggard v. 

Chaney Creek Coal Co., 9 FMSHRC 1314 (1987), complainants are not 

entitled to reimbursement for private attorney's fees. 

4. Respondent shall expunge from its personnel records, 

all references to the discharges of Price and Vacha on March 2, 

1987. 

5. Respondent shall cease and desist from enforcing the 

provisions of paragraph IIE of its Substance Abuse Rehabilitation 

and Control Program against safety committee personnel in all its 

mines. 

6. Counsel for the parties shall confer and attempt to 

agree upon the amounts due Complainants under No. 2 above. They 

shall report to me the results of their attempt on or before 

911 
August 12, 1988. This decision shall not be final until a 

supplemental decision and order has been issued concerning the 

amounts due under No. 2 above. 

Distribution: 

j /l4/1'U!-5 /46,,; d.1-v;;i 

James A. Broderick 

Administrative Law Judge 

Frederick W. Moncrief, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

James P. Alexander, Esq., Robert K. Spotswood, Esq., John H. 

Hargrove, Esq., Bradley, Arant, Rose & White, 1400 Park Place 

Tower, Birmingham, AL 35203 (Certified Mail) 

Robert H. Stropp, Esq., Patrick K. Nakamura, Esq., Stropp & 

Nakamura, 2101 City Federal Bldg., Birmingham, AL 35203 

(Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

St., N.W., Washington, D.C. 20005 (Certified Mail) 

slk 

912 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

TERRY MILLER, 

v. 

BENJAMIN COAL 

Before: Judge 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, .10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 15 \988 

DISCRIMINATION 

Complainant 

Docket No. PENN 

PITT CD 88-06 

COMPANY, 

Respondent Benjamin No. 1 

ORDER OF DISMISSAL 

Melick 

PROCEEDING 

88-184-D 

Strip 

Complainant requests approval to withdraw his Complaint 

in the captioned case for the reason that the u derlying 

issue has been settled. Under the circumstance herein, 

permission to withdraw is granted. 29 C.F.R. § 2700.11. 

This case is therefore dismissed and the hearin s previ usly 

scheduled for August 10, 1988, ar cancelled. 

Distribution: 

Terry Miller, R.D. #1, Box 46, Fall 

(Certified Mail) 

Judge 

Timber, PA 16639 

Harry Benjamin, Vice President, Mr. John B. Martyzk, 

Manager-Personnel/Safety, Benjamin Coal Company, R.R. 1, Box 

409, LaJose, PA 15753 (Certified Mail) 

nt 

913 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JOSEPH M. 

BENJAMIN 

Before: 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 151988 -

MAZENKO, DISCRIMINATION 

Complainant 

v. Docket No. PENN 

COAL COMPANY, PI'rT CD 87-18 

Respondent 

ORDER OF DISMISSAL 

Judge Melick 

PROCEEDING 

88-192-D 

Complainant has filed notice that the parties have 

reached an agreed settlement of the underlying issue. I 

consider the notice as a request to withdraw the Complaint h. 

the captioned case. Under the circumstances herein, 

permission to withdraw is granted. 29 C.F.R. § 2700.11. 

This case is therefore dismissed and the hea jngs previously 

scheduled for July 26, 1988, are can elled. 

G 

Distribution: 

Mr. Joseph M. Mazenko, R.D. #1, Box 16 , Irvona, PA 16656 

(Certified Mail) 

Mr. John B. Martyzk, Manager-Personnel/Safety, Benjamin Coal 

Company, R.R. 1, Box 409, LaJose, PA 15753 (Certified Mail) 

nt 

914 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRE·rAR~ OF LABOR, 

MINE SAFE'fY AND HEALTH 

ADMINISTRATION I ( MSHA) I 

Petitioner 

v. 

WESTRICK COAL COMPANY, 

Respondent 

JUL 181988 

. . CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-21 

A. C. No. jG-07571-03515 

JPLMJ Strip Mine 

ORDER OF DEFAULT 

On June 30, 1988, in response to Petitioner's Motion to 

Dismiss Respondent's Notice of Contest, a Show Cause Order was 

issued which ordered Respondent as follows: "Failure of 

Respondent by July 11, 1988, to respond to the Prehearing Order 

or show cause why it has not responded to the Prehearing Order 

shall result in the Dismissal of Respondent's Notice of Contest, 

and a default judgment will be entered in favor of the Solicitor 

ordering the Respondent to pay the assessed penalties of $482.00. 

To date, Respondent has not responded to the Show Cause 

Order. Accordingly, it is found that the Respondent is in 

default, and it is ORDERED that a default judgment be entered in 

favor of Petitioner. It is further ORDERED that Respondent, 

within 30 days of this Order, pay the assessed penalty of $482. 

It is further ORDERED that the Hearing in this matter, set for 

July 26, 1988, be canceled. 

Avram ~~ Weisberger 

Administrative Law Judge 

Distribution: 

Judith L. Horowitz, Esq., Office of the Solicitor, u. 5. Department of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Mr. Ray Westrick, Owner, Westrick Coal Company, RD 1, Box 457, 

Patton, PA 16668 (Certified Mail) 

dcp 

915 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

JAMES BOWLING, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 181988 -

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. KENT 88-39-D 

WOODS CREEK COAL CORPORATION, 

Respondent 

BARB CD 88-01 

. . 

ORDER OF DISMISSAL 

On July 14, 1988, Respondent filed a Settlement in the above 

case executed by both Parties. In essence, in the Settlement, 

Complainant agreed, for considerations received, to "settle!" al I 

claims against Respondent. As such the above proceeding is 

moot, and it is thus ORDERED that this case be DISMISSED. It is 

further ORDERED that the Parties shall abide by the terms of the 

Settlement dated July 8, 1988. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Mr. James Bowling, P. o. Box 53, Essie, KY 40827 (Certified Mail) 

Mr. John Chaney, President, Woods Creek Coal Corporation, P. o. 

Box 149, East Bernstadt, K~ 40729 (Certified Mail) 

dcp 

916 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 221988 

CONSOLIDATION COAL COMPANY, 

·Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. WEVA 88-8-R 

Order No. 2947173; 9/9/87 

Shoemaker· Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 88-112 

A.C. No. 46-01436-03713 

Shoemaker Mine 

DECISION 

Appearances: B. Anne Gwynn, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, 

for the Secretary of Labor (Secretary); 

Michael R. Peelish, Esq., Pittsburgh, Pennsylvania, 

for Consolidation Coal Company (Consol). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

This proceeding involves the contest by Consol of a 

withdrawal order issued under section 104(d)(2) of the Federal 

Mine Safety and Health (Act), and a petition for a penalty by the 

Secretary for the safety violation alleged in the withdrawal 

ord~r. Pursuant to notice the consolidated cases were heard in 

Wheeling, West Virginia, on June 23 and 24, 1988. Federal Mine 

Inspector Lyle Tipton and Robert Polanski testified on behalf of 

the Secretary. Lloyd Behrens, Dave Hudson and Michael Blevins 

testified on behalf of Consol. Counsel for both parties waived 

their rights to file post hearing briefs. I have considered the 

entire record on the basis of which I make the following 

decision. 

917 
FINDINGS OF FACT 

1. Consol is the owner and operator of the subject mine 

located in Marshall County, West Virginia. 

2. In 1986, the subject mine produced 2,334,000 tons of 

coal. Consol is a large operator. 

3. There were 715 inspection days at the subject mine in 

the 24 month period prior to the issuance of the contested order. 

During that period 563 paid violations were assessed against the 

mine, of which 463 were termed significant and substantial. 

Eighty-six of these violations were of 30 C.F.R. § 75.200 and two 

were were of 30 C.F.R. § 75.202. I consider this a substantial 

history of prior violations. 

4. There was no intervening clean inspection between 

August 28, 1986, when withdrawal order 2828131 was issued under 

section 104Cd)(2) of the Act, and September 9, 1987, when order 

2947173 (the order contested herein) was issued. 

5. Sometime during the week of August 31, 1987, a miner, 

Dave Tkach told Consol Safety Inspector Lloyd Behrens that tha 

entrance into the Brit Run Pumper Shanty had some areas of unsafe 

roof and should be checked. This area is parallel to and close 

to a part of the 5 North intake escapeway. Behrens went to the 

area of the pumper and "couldn't find anything." He did not 

inform Tkach of this. 

6. The fresh air escapeway is required to be inspected by 

the operator at least once each week. On September 9, 1987, 

during the midnight shift, Consol safety inspector Tom Duffy 

walked the 5 North fresh air escapeway. He found 23 conditions 

needing corrective action, all having to do with the condition of 

the roof. He tagged the areas needing correction. He prepared a 

three page report of the conditions and noted that a total of 42 

posts and one crib were required to correct the conditions. 

Copies of his report were given to the Assistant Superintendent, 

Dave Hudson and to Safety Supervisor Michael Blevins, among 

others. The reports were made prior to the shift change at 

8:00 a.m. on September 9. 

7. Dave Hudson thereafter directed the Assistant shift 

foreman, Jack Marvin "to continue posting in the 5 North Air 

Courses." Two sections were then working inby this area and 

dependent on the escapeway. 

8. Federal Mine Inspector Tipton arrived at the mine to 

make a regular quarterly inspection between 8:00 and 9:00 a.m. on 

September 9, 1987. Robert Polanski, a member of the mine safety 

918 
committee, told Tipton that there were hazardous roof conditions 

in the intake air escapeway and that a pumper named Tkach had 

complained of them. For this reason Tipton proceeded to the 5 

North intake air escapeway. 

9. Inspector Tipton found 18 separate locations along 

approximately 2000 feet of the escapeway whece the roof was 

unsupported or inadequately supported. In three of the 

locations, the roof was totally unsupported, and the inspection 

team had to leave the escapeway to an adjoining airway and double 

back to the escapeway beyond the unsupported area. 

10. The unsupported roof resulted from the failure of the 

bolts to hold. Some of the bolts were dangling, others had 

fallen to the mine floor; some bearing plates were dislodged; 

some rock and cap coal had fallen to the mine floor. I find as 

facts that the conditions were essentially as found by Inspector 

Tipton and that there were 18 areas of unsupported or 

inadequately supported roof in the 5 North intake escapeway on 

September 9, 1987. 

11. The intake air escapeway was approximately 5000 feet 

long. It had been roof bolted many years previously using 

conventional metal bolts. The area has a high velocity of air 

and high humidity. Both of these conditions tend to cause rapid 

deterioration in the mine roof and ribs. However, the roof 

conditions found by Inspector Tipton on September 9, 1987, were 

such that they could not have occurred in less than one week. 

12. The conditions cited in the contested orde~ were 

promptly abated after the order was issued. The work of 

abatement had actually commenced before the order was issued. 

The order was terminated at 5:22 p.m. on September 9, 1987. 

ISSUES 

1. Did the condition found by Inspector Tipton on 

September 9, 1987, constitute a significant and substantial 

violation? 

2. Did the condition result from the unwarrantable failure 

of Consol to comply with the mandatory standard? 

3. What is the appropriate penalty for the violation cited 

in the order? 

919 
CONCLUSIONS OF LAW 

1. Consol is subject to the provisions of the Act in the 

operation of the subject mine, and I have jurisdiction over the 

parties and the subject matter of this proceeding. : 

2. The condition found to exist in the 5 North intake 

escapeway of the subject mine by finding of fact No. 10 

constitutes a violation of 30 C.F.R. § 75.200. The roof was not 

supported or otherwise controlled adequately to protect persons 

from falls of the roof. The escapeway is an active underground 

travelway. Consol did not seriously contest the fact of 

violation. 

3. For a violation to be of a significant and substantial 

nature, there must be a reasonable likelihood that the hazard 

contributed to will result in a serious injury. Cement Division, 

National Gypsum, 3 FMSHRC 822 (1981); U.S. Steel Mining Co~, 

Inc •• 6 FMSHRC 1573 (1984). The hazard in the case before me is 

two ·fold: Cl) a roof fall endangering miners travelling the 

escapeway; (2) the blockage or rendering impassable the 

designated escapeway. The condition of the roof here was such 

that a fall was reasonably likely to occur; in fact some falls 

had occurred. The escapeway was without any roof support in at 

least three areas. Any injury resulting from a roof fall would 

likely be serious. I conclude that the violation charged in the 

contested order was of a significant and substantial nature. 

4. unwarrantable failure was held by the Commission to mean 

"agg:i:-avated conduct, constituting more than ordinary negligence." 

Emery Mining Corp., 9 FMSHRC 1997 (1987); Youghiogheny & Ohio 

Coal Co., 9 FMSHRC 2007 {1987). I conclude that the viol~tion 

cited in the contested order was due to Consol's unwarrantable 

failure because Cl) the condition was such that it must have 

existed for more than seven days prior to the order; therefore it 

existed when the examination of the area was made (or should have 

been made) on or about September 2, 1987; {2) Consol was put on 

notice of the "ratty" and unsafe condition of the roof in the 

area when the pumper Dave Tkach complained of it during the week 

of August 31, 1987; (3) Consol safety inspector Duffy during the 

midnight shift on September 9, found 23 areas in the escapeway 

needing corrective action. Yet there was no corrective action 

taken until after Inspector Tipton began his inspection of the 

escapeway after the beginning of the day shift. These facts in 

my judgment establish aggravated conduct, constituting more than 

ordinary negligence. 

5. The condition cited was serious and was caused by 

Consol's aggravated conduct. Consol is a large operator with a 

significant history of prior violations at the subject mine. The 

920 
violation was promptly abated in good faith. There is no 

evidence that the imposition of a penalty will affect Consol's 

ability to continue in business. I conclude that an appropriate 

penalty for the violation is $1000. 

ORDER 

Based upon the above findings of fact and conclusions of 

law, IT IS ORDERED: 

1. Order 2947173 issued September 9, 1987, is AFFIRMED, 

including its special findings that the violation charged was 

significant and substantial and resulted from Consol's 

unwarra.ntable failure to comply. 

2. Consol's notice of contest of the order is DISMISSED. 

3. Consol shall within 30 days of the date of this order 

pay a civil penalty of $1000 for the violation found herein. 

Distribution: 

tug ffivt!Jdvz;~/ ames A. Broderick 

dministrative Law Judge 

B. Anne Gwynn, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market St., Philadelphia, PA 19104 <Certified 

Mail) 

Michael R. Peelish, E~q., Consolidation Coal Co., 1800 Washington 

Rd., Pittsburgh, PA 15241 (Certified Mail) 

slk 

921 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

IRVIN L. GAGON, 

Complainant 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 60204 

. . DISCRIMINATION . . Docket No. WEST . . DENV CD 88-4 . . 

JUL 2 51988 

PROCEEDING 

88-144-D 

CYPRUS-PLATEAU MINING 

CORPORATION, 

Respondent 

Starpoint No. 2 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Lasher 

The parties have reached a resolution of this matter without 

the necessity of litigation. Pursuant thereto, the parties 

through counsel have submitted a Stipulation and Settlement 

Agreement dated July 18, 1988, the terms of which are here 

approved. 

Pursuant to the agreement of the parties, this proceeding is 

dismissed with prejudice with each party to bear his Cits) own 

costs. 

~-~/' ~ .~4~ ~ -ii'~hael A. ~{6~-, Jr. 

Administrative Law Judge 

Distribution: 

Mr. Irvin L. Gagon, 131 South 5th East, East Price, UT 84501 

(Certified Mail) 

Edward B. Havas, Esq., Giauque, Williams, Wilcox & Bendinger, 500 

Kearns Building, 136 South Main, Salt Lake City, UT 84101 

(Certified Mail) 

Kent W. Winterholler, Esq., Parson, Behle & Latimer, 185 South 

State Street, Suite 700, P.O. Box 11898, Salt Lake City, UT 

84147 (Certified Mail) 

Stan Warnick, Personnel Director, Cyprus Mining, P.O. Drawer PMC, 

Price, UT 84501 

/bls 

922 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 81988 

SOUTHERN OHIO COAL COMPANY 

Contestant 

v. 

SECRE'rARY· OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

DECISION 

CONTES'r PROCEEDING 

Docket No. LAKE 87-95-R 

Citation No. 2945843: 7/22/87 

Meigs No. 2 Mine 

Mine ID 33~01173 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 88-26 

A. C. No. 33-01173-03743 

Meigs No. 2 Mine 

Appearances: David A. Laing, Esq., Porter, Wright, Morris & 

Arthur, Columbus, Ohio, for the Operator 

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

U. s. Department of Labor, Cleveland, Ohio, for 

the Secretary. 

Before: Judge Weisberger 

Statement of the Case 

In these consolidated cases, the Operator (Respondent) seeks 

to challenge a citation issued to it by the Secretary (Petitioner) 

for an alleged violation of 30 C.F.R § 70.100, and the Secretary 

seeks a civil penalty for the alleged violation by the operator of 

section 70.100, supra. Pursuant to notice, these cases were heard 

in Wheeling, West Virginia, on April 19 - 20, 1988. Patrick Lester 

McMahon, Marion D. Beck, and Judith Irene Johnson testified for 

Petitioner, and David George Zatezalo, Jon Merrifield, and Mark 

Randall Hatten testified for Respondent. 

At the hearing, at the conclusion of Petitioner's case, 

Respondent made a motion for summary decision, which was denied. 

Petitioner filed its Post Trial Brief and Proposed Findings of 

Fact on June 13, 1988, and Respondent filed its Proposed Findings 

of Fact and Brief on June 10, 1988. Reply Briefs were filed by 

·both Parties on June 27, 1988. 
Issues 

The issues are whether Respondent violated 30 C.F.R. 

§ 75.100, and if so, whether the violation was of such a nature 

as could significantly and substantially contribute- to the cause 

and effect of a mine safety or health hazard. If section 75.100, 

supra, has been violated, it will be necessary to determine the ~-

appropriate civil penalty to be assessed in accordance with · 

section llO(i) of the Federal Mine Safety and Health Act of 1977. 

Stipulations 

The Parties have stipulated as follows: 

1. The Federal Mine Safety and Health Review 

Commission has jurisdiction over this proceeding. 

2. The Southern Ohio Coal Company is a large operator. 

3. The Meigs No. 2 Mine is owned and operated by the 

Southern Ohio Coal Company. 

4. The Southern Ohio Coal Company is an operator as 

defined by section 3Cd) of the Act. 

5. The Meigs No. 2 Mine is a mine as defined by section 3(h) of the Act. 

6. The Southern Ohio Coal Company and the Meigs No. 2. 

Mine are subject to the jurisdiction of this Court and 

the 1977 Mine Act. 

7. The size of the proposed penalty, if any assessed, 

will not affect the operator's ability to continue in 

business. 

Findings of Fact and Conclusions of Law 

I. 

The essential facts are not in dispute. Patrick Lester 

McMahon, a MSHA Inspector who is a health specialist, madH a 

technical inspection at Respondent's Meigs No. 2 Mine, at the 

southwest block third panel. On July 15, 1987, at that time, the 

longwall panel was only in its third shift. Inspector McMahon 

testified at length as to the procedures he used in setting up 

the test equipment and as to the equipment itself. No evidence 

was adduced to either contradict McMahon's testimony as to the 

procedures he used in setting up the equipment, nor was any 

924 
evidence adduced which would tend to impeach either the 

reliability of McMahon's methods, or the reliability of the 

equipment he used. McMahon furnished the test equipment to be 

worn, for 8 hours, by miners with the following occupations: 

headgate operator intake, 040; jack operator intake., 041; shear 

operator intake (head), 064; shear operator return (tail), 044; 

jack setter return, 041. The shear operator return was 

considered to be the "designated" occupation in this group as 

being exposed to the most dust on the longwall operation. At the 

end of the shift, McMahon collected the equipment containing the 

dust samples and returned to the MSHA Off ice. McMahon testified 

in detail concerning the nature of the equipment used to test the 

dust samples, the procedures that he used in setting up the 

equipment, and in testing the samples. No evidence was adduced 

which contradicted McMahon's testimony as to the procedures he 

performed. Nor was any evidence adduced which would tend to 

impeach the reliability of either the procedures or equipment 

used by McMahon in testing the samples. Accordingly, I find that 

the dust sample results obtained by McMahon on July 15 to be 

reliable. These indicate the following milligrams of dust per 

cubic meter for the following occupations in the section: 

shear operator intake 

headgate operator intake 

jack operator intake 

jack operator return 

2.2 

0.3 

1.5 

2.5. 

The sample for the designated occupation of shear operator return 

was voided as the sample contained oversize particles. The average for the section was 1.5 milligrams per cubic meter. McMahon 

decided, to return for additional testing, because the sampling 

for the high risk occupation was void, and because sampling for 

the shear operator intake and jack setter return yielded samples 

which exceeded the maximum set forth in section 70.100, supra, of 

2.0 milligram per cubic meter. 

On the following day, testing was performed by MSHA Inspector 

Marion D. Beck. In essence, the procedures and equipment used by 

Beck were the same as those used by McMahon. 1/ (Beck had inadvertently placed the wrong occupation number on the equipment. 

_!_/ Respondent, in essence, argues, in paragraph B of its Brief, 

that 30 C.F.R. §§ 70.20l(c), 205(b), and 207Cd), containing 

requirements foe dust sampling by Operators should be imposed on 

the Secretary, and that these Sections were violated by Beck. I 

find that I do not have any authority to essentially crate a 

regulatory obligation 011 the Secretary where none exists. 

925 
However, inasmuch as this error did not change the overall average 

for the section, and inasmuch as the error is corrected by 

reversing the dust concentrations for the shear operator return and 

shear operator intake, the error was found to be inconsequential.) 

Beck, at the conclusion of the 8 hour shift on July_ 16, 1987, 

obtained the dust samples from the miners tested, and took them to 

the MSHA Laboratory. Judith Irene Johnson, a MSHA Lab Technicia~~ 

testified, in essence, that she tested the samples on July 16~ ·. 

using the same equipment procedures and methods as testified to by 

McMahon. She also reweighed her results the following day with no 

change in the results. Also, McMahon testified that on July 20 he 

verified the results obtained by Johnson on July 16. Accordingly, 

I find, that on July 16, the following occupations were tested with 

the following concentration of du3t in milligrams per cubic 

centimeter: 

shear operator intake 

shear operator return 

headgate operator intake 

jack operator intake 

jack setter return 

void due to oversize 

particles 

7.1 

1.7 

. 0 .1 

7.1. 

The average for the section was 4 on July 16, and the cumulative 

2 day average was 2.7. 

McMahon testified that because two occupations sampled were 

above the limit of 2.0 milligram per cubic meter on July 16, he 

had to return for additional testing. McMahon further testified 

that pursuant to MSHA policy, which indicates that an occupation 

with an average dust concentration of 1.6 or less after the second 

day of testing may be dropped from further testing. McMahon 

decided not to test the headgate operator intake on the third day 

as the 2 day average for this occupation was only 0.9, and there 

was no reason to continue testing that occupation. However, 

according to McMahon, inasmuch as there were two occupations whose 

test results on July 16 exceeded the regulatory maximum of 2.0j he 

decided to return on July 21 for additonal testing. McMahon's 

testimony with regard to the procedures and equipment used in 

testing on July 21 was not contradicted. Accordingly, I find, that 

on July 21 when tested, the following occupations in the sections 

had the following concentratioa of dust per cubic meter: 

shear operator intake 1.7 

shear operator return 1.1 

jack operator intake 0.2 

jack setter return 0.2. 

926 
I further find that the average for the section based upon the 

cumulative results for the 3 days of testing, to be 2.1 

milligrams per cubic meter. 

Inspectoc McMahon, when presented with these results, issued 

a citation for a violation of section 70.100, supra, which provides, in essence, that the average concentration of respirable· 

dust during each shift, to which each miner in the active workings 

of the mine is exposed, shall be at or below 2.0 milligrams per 

cubic meter. Inasmuch as the third panel had been in existence 

for two shifts prior to the inspection on July 15, and was actively 

engaged in the mining of coal, I conclude that the panel in question was a "active workings," as referred to in section 70.100; 

supra, (see also 30 C.F.R. § 70.2). Further, inasmuch as the 

cumulative average for the occupations tested in the section in 

question on July 15, 16, and 21, 19 87, produced a cu1uulati ve 

average of dust concentration for the section of 2.1 milligrams 

per cubic feet, I conclude that section 70.100, supra, has been 

violated. 

II. 

It appears to be the position of Respondent that the 

Petitioner has the burden of establishing that the method used in 

sampling the dust herein was reasonable. In this connection, it 

is Respondent's further argument, that the omission by McMahon of 

the headgate operator intake from the testing on July 21, was 

arbitrary, and that accordingly the cumulative average of 2.1 was 

not arrived at reasonably. In this connection, Respondent makes 

reference to uncontradicted testimony that the headgate operator 

intake, being closest to the source of the intake air, normally 

has the lowest exposure to dust of the five occupations in the 

section which were subject to the testing. Thus, Respondent 

argues that it is likely that had the headgate operator intake 

been tested on July 21, the result would have been a dust 

concentration equal to or less than that of 0.2, which ~as the 

dust concentration yield for the two occupations whose result was 

the lowest in the section on July 21. Respondent argues that had 

the headgate operator intake not been dropped from the testing on 

July 21, 1987, it is very likely that he would have been subject 

to dust concentration of equal or less than 0.2, hence bringing 

the 3 day cumulative average to 2.0 or less and thus being within 

the regulatory standard. Respondent, in essence, also argues 

that omitting a previously sa1npled occupation when computing a 

section average, is not rational. Further, Respondent argues 

that when policy which provides for the omission 0£ those 

occupations with previous tested concentrations of less than or 

equal to 1.6 results in the section average based on greater 

samples from "dustier" occupations, the test result3 are 

irrationally detrimental to the operator. 

927 
I find however that there is no evidence that McMahon dropped 

the headgate operator intake from the testing on July 21, 1967,·in 

order not to have the average for the section .decreased. Indeed, 

it is to be noted that McMahon retained for testing on the July 21 

t~e jack operator intake whose test result of 0.1 on July 16 was. 

even less than the result of 1.7 yeilded for the headgate operator 

intake. Moreover, since it is manifest that the purpose of s~ction 

70.lOO(a), supra, is to protect miners from excessive exposure to 

the hazards o~ dust, it is not irrational, oer se, to discontinue 

testing an occupation (040) which had evidenced exposure to dustconcentration in 2 previous days of testing substantially below the 

regulatory ceiling. If the resulting section average will be then 

based on greater samples from dusty occupations, the section average will thus realistically reflect the hazards to the section. 

Accordingly, I find that Petitioner herein acted reasonably 

in its method of testing, and that there was insignificant 

evidence that it acted arbitrarily. 2/ 

III. 

McMahon testified that he considered the violation herein to 

be significant and substantial, inasmuch as exposure to dust 

concentrations of more than 2. 0 milligram per cubic 1neter 

contributes to the hazard of a pulmonary diseas~ which is a 

disease of reasonably serious nature. Respondent indicated at 

the hearing that it did not dispute the significant and 

substantial aspect of this case. Accordingly, I find that the 

violation herein was significant and substantial. 

IV. 

In assessing a penalty herein, I have the adopted the 

uncontradicted testimony of McMahon with regard to Respondent's 

negligence and find that Respondent acted with a low degree of 

negligence. I further find that the Respondent herein acted in 

good faith in abating the violation, and I find that, based 

upon the te.stiinony of McMahon, the violation herein was of a 

moderately serious nature as exposure to excessive respirable 

dust is likely to contribute to the hazard of pulmonary diseas~. 

~/ Resoonden~, in its Brief, nas argued that the manner in which 

ibateme~t was required was unlawful. I find this argument to be 

irrelevant in.evaluating the validity of the citation that is at 

issue herein. I also nota that Respondent does not seek any 

relief for the Petitioner's allegedly unlawful manner of abatement. 

928 
Further, I have adopted the stipulations of the Parties and the 

factual data on GX 14, with regard to the remaining factors in 

section llO(i) of the Act. Accordingly, I find that a penalty 

herein of $259 as proposed is appropriate. 

ORDER 

·It is ORDERED that Respondent shall pay, within 30 days of 

this decision, a civil penalty of $259 for the violation found 

herein. 

Distribution: 

Avram 

rt-~ Weisberger 

Administrative Law Judge 

David A. Laing, Esq., Porter, Wright, Morris & Arthur, 41 South 

High Street, Columbus, OH 43215 (Certified Mail) 

Patrick M. Zohn, Esq., Office of the Solicitor, u. s. Department 

of Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

dcp 

929 
STANLEY 

KEN'rUC.KY 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

BAKER. 

v. 

s·roNE 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 81988 

. 

. DISCRIMINATION 

Complainant . . Docket No. KENT . . COMPANY, . . Pulaski Plant 

Respondent 

DECISION 

PROCEEDING 

87-142-D 

Appearances: Philip P. Durand, Esq. and Wendy Tucker, Esq., 

Ambrose, Wilson, Grimm & Durand, Knoxville, 

Tennessee, for Complainanti 

John G. Prather, Jro, Esq., Law Offices of John G~ 

Prathe:c, Jr., Somerset, Kentucky, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

Complainant filed a complaint with the Commission under 

section 105Cc) of the Federal Mine Safety and Health Act of 1977, 

30 U.F.Co § 815(c) (the Act) alleging, in essence, that he was 

illegally fired in violation of the Act. 

Pursuant to notice of November 6, 1987, the case was set for 

hearing in Knoxville, Tennessee, on December 8 - 9, 1987. In a 

conference call initiated by the undersigned on November 30, 

1987, between the undersigned and the attorneys for both Parties, 

the Complainant's attorney made a request for the hearing to be 

adjourned. This request was not objected to by Respondent's 

attorney. Accordingly, pursuant to notice, the case was rescheduled and subsequently heard in Knoxville, Tennessee, on March 15 - 16, 1988. Stanley Baker, Charlotte Dykes, Roger Hasty, Sherman 

McClure, Melvin Thomas, Mark Lueking, Dale Tabor, Johnny Bruner, 

and Donny Tabor testified for the Complainant. Dennis Halcomb, 

Glennis Miller, Danny Roberts, Earl "Howard, and Herbert Robbins 

testified for the Respondent. 

At the hearing, at the conclusion of the Complainant's case, 

Respondent make a motion for a directed opinion in favor of the 

Respondent, and decision was reserved on this motion. 

930 
Complainant filed its Proposed Findings of Fact and 

Memorandum of Law on June 1, 1988, and Respondent filed its 

Proposed Findings of Fact and Memorandum on June 1, 1988. 

On June 10, 1988, Complainant filed a·Response to Respondent's 

Summary of Proceedings and Response.to Respondent'~ Memorandum of 

Law. 

Stipulations 

1. Except for occasional layoffs, Complainant worked at 

Kentucky Stone Corporation's Pulaski Plant from September 15, 

lg76 until he was fired on May 2, 1985. 

2. The Kentucky Stone Corporation <"Kentucky Stone") is a 

wholly owned subsidiary of the Kopper•s Corporation and is 

located in Pulaski County, Kentucky. 

3. The Kentucky Stone ·corporation is engaged in limestone 

mining operations and is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977, including§ 815Cc)Cll. Further, Kentucky Stone falls within the definition of an "operator" 

as provided for in the Act. 

4. Complainant was operating a Caterpillar'988A (Company No. 

444) front-end loader, which was owned and/or lea~ed by Kentucky 

Stone at the time of his discharge on May 2, 1985. At no time 

did Complainant refuse to operate the Caterpillar 988A (Company 

No. 444) front-end loader. 

5. Dennis Halcomb was acting as an agent for Kentucky Stone 

when he fired Complainant. 

Findings of Fact 

1. Stanley Ray Baker, Complainant herein, was first employed 

at Kentucky Stone Company on September 17, 1976. While employed 

with Kentucky Stone Company, he has also operated a bulldozer and 

a "front-end loader" which, for the purpose of this proceeding, · pertains primarily to the operation of a Caterpillar 988A loader. 

2. A Caterpillar 988A loader is a large rubber-tired piece 

of equipment used, by Kentucky Stone Company in its quarrying 

operations, to load stone into the trucks hauling stone for its 

customers, to clear and organize stockpile of stone, and to clear 

roadways and pathways from spillage within the plant area. 

3. Complainant has substantial experience operating frontend loaders, having previously operated a 980C Caterpillar, a 

988B, and an HlOO, as well as a 275 Michigan, a 125 Michigan, a 

175 Michigan, and other models of loaders. 

931 
4. Kentucky Stone Company, Respondent, at its quarry in 

Pulaski County, Kentucky, is engaged in the buainess of quarrying 

(mining) limestone rock from an open pit. When consumers purchase the rock, trucks are obtained to haul the rock from the 

"plant" at the quarry to the sita designated by the consumer. 

Complainant's job included loading those trucks from the stockpiles. Some of the locations where the trucks parked to be loaded 

included grades. Loading the trucks requires the loader, with the 

bucket in a lowered position, to be driven into the stockpile to 

obtain limestone rock and to then be backed out of the pile, 

raising the bucket as the piece of equipment moves backward, and 

then maneuvering the loader into a position sufficient to permit 

the limestone rock to be dumped from the bucket into the truck. 

Throughout the time that the loading of the truck occurs, the 

loader is kept in first gear. The distance of travel is some 10 

to 20 feet and the brakes of the loader are usually applied 8 to 

12 feet before reaching a truck bed • 

5. Occasionally, Complainant took the loader into the pit 

to clear off areas in the pit, or on shelves, to provide areas 

for the rock drills to drill, or he would haul fuel into the pit 

area. 

6. The loader is used, from time to time, to "push off the 

stockpiles." This means that the crushed material is dumped on 

the stockpiles and then has to be organized or pushed around on 

the stockpiles to permit the piles to be orderly and usable. 

Roadway grading with the loader involves filling small potholes 

that occurred in the roadways, and clearing haul roads • 

7. It was Baker's responsibility to watch the quarry site 

for trucks which were seeking to be loaded and to load them 

promptly in order to avoid delaying other trucks seeking to be 

loaded. 

8. Baker testified that he was required to complete a daily 

checklist on every piece of equipment that he operated, and that 

he always filled it out. 

9. Prior to operating the 988A loader, which is principally 

the subject matter of this action, Baker operated a 980C loader, 

which was a later model loader. On the April 24, 1985, Baker 

marked the brakes on the 980C loader "inoperable" and that loader 

was taken out of service and sent off to a shop for repairs. He 

was then assigned to the 988A loader and continued running it 

until the end of the shift. 

932 
10. The safety checklist, designed and supplied by Respondent, 

contains two columns for marking. One column is headed "OK" and 

the other column is headed "INOP." Mr. Baker believed that "INOP." 

meant "improper" (Tr. 120) or "inoperable" CTr. 121). Neither side 

of this form contains any space specifically desig~ate~.for comments. 

11. On the date that he first operated the loader, Baker 

claimed the brakes would not catch proparly when they were 

applied and that the loader would continue to roll 5 to 10 feet~ 

He testified, in essence, that the distance the loader rolled 

after the application of the brakes varied. Baker testified that 

because of the condition of the brakes, he was concerned for his 

safety because if the brakes did not catch, the loader would 

roll, possibly backwards into a stockpile or forwards into the 

side of a truck. Once the loader stopped it did so abruptly. 

This created a danger because the loader bucket of ten held 10 to 

12 tons of gravel in the air while loading a truck. The sudden 

stop would shift the weight of the bucket and thus force the back 

wheels of the loader to lift off the ground, causing the gravel 

to scatter into the objects below. Baker was concerned that the 

gravel would damage the trucks and injure the truck drivers who 

were on the ground below. Baker said he had trouble with the 

windshield wiper, that the windshield was cracked, and that he 

also marked problems with one mirror and an accessory ladder. .He 

also claimed he was having problems with the steering, but that 

he did not report the problems with the steering because there 

was no place on the safety checklist to report problems with 

steering. He alleged he did tell the Superintendent, Dennis 

Halcomb, he was having problems with the steering and that he 

also told the on-site mechanic, Glennis Miller, of such problems. 

12. The safety checklists are posted on clipboards and hung 

on a wall in the shop. 

13. Baker testified that Glennis Miller indicated on one of 

the early days of his usage of the loader that there was a 

"problem" with the brakes (Tr. 129). Also, Baker said that 

Sherman McClure said the brakes were "no good" and they "wouldn't 

catch when you first hit them" CTr. 129). Baker also claimed 

that the brakes wouldn't hold, so he attempted to use the fuel 

control to hold the loader in place. For safety reasons, Baker 

did alter the way he loaded trucks. Baker no'rmally loaded trucks 

on an incline so that his loader would be above (on the upper 

side of) the truck. After Baker detected oroblems with the 

brakes, he reversed this process and began.loading from below the 

trucks. He also positioned his loader so that if the brakes did 

not catch he would roll backwards into a pile of gravel co cushion his .stop. 

14. Baker denied anyone inspecting the brakes on the first 

day that he marked the safety checklist. 

933 
15. Baker continued to operate the loader on Monday, 

April 30. Baker denied that anyone from Kentucky Stone Company 

talked to him about the brakes on the second day of operation. 

Two sets of checklists were marked on April 30. In,- filling out 

the checklists, throughout the entire time that he operated the 

988A, Baker continued to mark the brakes "INOP." 

16. Baker acknowledged that he discussed the brakes of the 

loader with Glennis Miller, on-site mechanic, on the first or 

second day· that he had operated it, and told him the loader would 

roll before the brakes caught. Baker denied that anyone got on 

the loader or stood by and watched him operate the loader on the 

first or second day. 

17. When Dennis Halcomb, Respondent's Superintendent, first 

received a form indicating the 988A brakes were marked "INOP.", 

he went to talk to Baker and was told that the brakes were inoperable. Halcomb told Baker that he would have the mechanic check 

the brakes. Halcomb said the mechanic, Glennis Miller, got on 

the loader, drove it into the pile, backed out, checked the 

brakes, oil, fluid, and other items to determine if there was a 

problem, taking approximately 10 to 15 minutes. Halcomb said 

Miller reported to him that there was nothing wrong with the 

brakes. 

18. On the next day, Halcomb again had Glennis Miller check 

the brakes. Miller said Baker was present, but did not tell birn 

there was anything wrong with the way he was testing the brakes. 

Halcomb .said Miller reported back that the brakes had nothing 

wrong with them and that he suspected that Baker had been used to 

the disc brakes on the 980 loader which catch more quickly than 

the ballon-type brakes on the 988A. Halcomb said he told Baker 

what Miller said about the brakes. 

However, based upon observations of his demeanor, I placed 

more weight on the testimony of Miller as to what he actually did. 

I find thus that all Miller did was to travel forward with the 

loader and hit the brakes two to three time. He noted after the 

brakes were applied, the loader would roll a few feet before stopping and he told this to Baker statiag there was a problem, 

although he did not say the brakes were unsafe. He also noted 

the loadeL stopped in the same distance at the same speed each 

time and that there was no inconsistency in stopping distance. 

19. On the third day, another complaint was made regarding 

the brakes and Halcomb felt that the machine could not continue 

to be operated with the brakes designated as inoperable as a 

934 
?iolation of MSHA policy. Miller checked the brakes again the 

same way he did the two previous days. Halcomb theri contacted 

Herbert Ray Robbins, Mechanic Superintendent over the Eastern 

Division of Kentucky Stone Company at the Mt. Vernon Shop. 

-

20. Robbins began to operate the loader, putting it in first 

gear, revving it up, then letting off the throttle and hitting 

the brake. He applied the brakes just one time. He found "that 

the brakes were still plenty safe to operate" (Tr. 566). He also 

tested the right brake by putting his left foot on the ~ight 

brake and revving the engine to about half throttle to determine 

whether the brakes would hold, find.ing the brake.s held it OK. He 

then told Baker "it was okay to go ahead and run it 11 ( 'l'r. 5 69 ) , 

and told Halcomb that he would giva the loader a thorough check 

when it was taken into the shop, but he did not see any re~son to 

. take it to the shop at that time, and said there was no reason to 

take it out of production. Halcomb was told that it was okay to 

run it and that it was safe to run, but Robbins said the brakes 

were not as fast catchiag as a 980 loader with disc brakes •.. 

21. On the last day that Baker worked, May 2,. 1985, he marked 

the brakes "INOP." but continued to use the loader. Miller got on 

the loader and there was no difference in the ooeration of the 

brakes from the previous examinations, indicati~g that the delay 

in stopping was 2 to 3 feet and never 10 or 12 feet. This distance was within the normal limits established in the testimony of 

Complainant's expert, Mark Lel;lking. At about 11:00 a.m., Halcomb 

told Baker he (Halcomb> was sure there was nothing wrong with the 

brakes and that Baker was marking the check.list "false" (Tr~ 438). 

According to. Baker, Halcomb informed hi1n that he will have to let 

him to go. According to Halcomb, he told Baker that. if he (Baker) 

did not want to talk about it and work something out "I would let· 

him go" (Tr. 438). Based on observations of Baker's demeanor, I 

adopt his version. Baker left and has not subsequently been 

employed by Kentucky Stone Company. 

22. The Caterpillar ~88A loader has two brakes. One brake, 

located on the right hand side of the steering column, applies 

i11mediate braking pressure and does not take che piece of equip~ 

ment out of gear. The other brake, known as the "D-clutch," 

first takes the piece of machinery out of gear, then permits the 

engine to be revved to permit raising of the bucket, and thert 

begina braking. It is customary in Caterpillar 988A loaders for 

the braking process on the application of a D-clutch to be 

slightly delayed. 

23. On cross-exarnination, the Complainant acknowledged that 

no one informed him that the brakes on the 988A were unsafe. 

24. Roger Hasty was working for Respondent at the time of 

the discharge of Baker. Hasty indicated that he operated the 

988A for several days, approximately 2 weeks, after Baker was 

9 35 
dismissed, and he had some problem with the loader stopping 

inconsistently. Because of this inconsistency he placed his 

loader on the lower side of the truck when loading on a hill side. 

Hasty did not fill out a safety checklist for the 988A loader • 

. · 

25. Sherman McClure, an employee of Respondent, was working 

at the Pulaski Plant in 1985. He operated the 988A loader 

approximately 2 or 3 weeks after the discharge of Baker, and felt 

something was wrong with the brakes because they would roll 1 to 

4 feet before coming to a complete stop, at which time they would 

hold firmly. Even though McClure did not usually fill cut checklists, he indicated that he would have "probably" marked the 

brakes inoperable had he been requested to fill out a safety 

checklist (Tr. 286). During the time that he operated it, he 

felt that he was familiar with the length of the roll upon 

application of brakes and that the rolling was something that he 

had been able to get used to. 

26. Melvin Thomas has worked for Kentucky Stone Company for 

22 years and works as a mechanic at the Mt. Vernon Shop. He 

recalls being on the loader at approximately the same time Baker 

was discharged and recalls that when the brakes were applied, th~ 

loader went approximately 3 feet and then stopped. 

27. Mark Leuking was presented as an expert for the 

Complainant. He has worked with two 988A loaders and operated 

one on a daily basis. He experienced situations in which the 

brakes on a 988A would permit rolling of varying distances before 

the brakes caught. 

28. Dale Tabor, Johnny Bruner, and Donnie Tabor all essentially noted that Baker, in loading their trucks with the 988A 

loader, placed his loader below their trucks while loading on an 

incline. 

29. When a piece of equipment is transferred in or out of a 

particular Kentucky Stone location, the Office Manager sending 

out the piece of equipment Eills out a transfer form, baaed upon 

instructions from the Superintendent, and then when the pi.ece of 

equipment is received, the receiving Superintendent also inspects 

the equipment. Each plant has its own costs charged to that 

particular plant. At the time the 988A loader was received in 

the Pulaski Plant, nothing was found wrong with it on inspection. 

At the time it was shipped out, ther3 was likewise nothing indicated to be wrong with the equipment. 

30. On the day that Stanley Ba~er was discharged, Danny 

Roberts, another loader operator, operated the loader for the 

rest of the day and for an additional period thereaftar. During 

the period of time that Roberts operated the loader, nothing was 
indicated on any checklist to indicate that the loader brakes 

were inoperable. In the testimony of Roberts, he indicated that 

the travel on the loader when the brakes were applied, was 

customary and usual for a 988A and that the travel did not create 

a danger. The length of travel was consistent. Roberts had no 

trouble with the brakes during the period of time that he operated 

the equipment until it was transferred to Tyrone. Checklists for · 

May 21, 22, 23, 24, 28, 30, and 31 and June 1, 3, 4, 5, 6, 7, and 

8, all signed by Russell Hines, indicate the brakes were marked 

"OK." 

31. The 988A loader was received on April 1, 1985, from 

Yellow Rock, near Beatyville, Kentucky, and was shipped to 

Tyrone, near Lawrenceburg, Kentucky, on May 7, 1985. It was 

shipped back to the Pulaski Plant on May 13, 1985, and remained 

in Pulaski County until June 20, 1985, when it was shipped to the 

Mto Vernon Shop. The starter and electrical system were repaired 

at that time, and the brakes were serviced. No problems were 

reported with the brakes from the time the loader was received on 

May 13 until it was shipped to Mt. Vernon on June 20. 

32. Halcomb also indicated that he had had certain previous 

problems with Baker, including cleaning up stone in the traveled 

areas to prevent customers' trucks from having to back their 

tires over them; problems with keeping Baker watching for trucks; 

problems with Baker being in the Control Room; problems with 

Baker leaving his loader; and problems with Baker not doing a 

good job servicing his loader. He also recalled a problem of 

excessive speed which resulted in damage to the pick-up truck 

belonging to Roberts. 

33. Halcomb indicated that he would not have "sent (Baker) 

home if it hadn't been for the false check sheets" (Tr. 460). 

34. Halcomb testified that Baker had at least two and maybe 

three warnings before the day that he filed the last checklist 

and was discharged. Halcomb said that throughout that time, 

Baker did not tell him that the loader brakes were inconsistent 

ana did not stop the same way every time, although he had several 

opportunities to do so. Halcomb said he first heard Baker claim 

a variation in the way the brakes stopped on the first day of the 

trial proceedings. According to Halcomb, Baker did not tell 

Miller or Robbins of variations in the brakes at the time of 

stopping. In contrast Baker testified, in essence, that he told 

Millec the loader rolled before the brakes caught. I adopt 

Baker's version due to my observations of his demeanor and also 

as it finds some corroboration in the testimony of Miller that he 

checked the stopping distance of the loader. 

937 
Issues 

1. Whether the Complainant has established that he was 

engaged in an activity protected by the Act. 

2. If so, whether the Complainant suffered adverse action 

as the result of the protected activity. 

3. If so, to what relief is he entitled. 

Discussion 

The Commission, in a recent decision, Goff v. Youghiogheny & 

Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the 

legal standards to be applied in a case where a miner has alleged 

acts of discrimination. The Commission, Goff, supra, at·l863, 

stated as follows: ~~ 

A complaining miner establishes a prima facie case of 

prohibited discrimination under the Mine Act by proving 

that he engaged in protected activity and that the 

adverse action complained of was motivated in any part 

by that activity. Pasula, 2 FMS.HRC at 2797-2800; 

Secretary on behalf of Robinette v. United Castle Coal 

co., 3 FMSHRC 803, 817-18 (April 1981). The operator 

may rebut the prima facie case by showing either that 

no protected activity occurred or that the adverse 

action was not motivated in any part by protected 

activity. Robinette, 3 FMSHRC at 818 n. 20. See also 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 

(D.C. Cir 1984)~ Boich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) (specifically approving the 

Commission's Fasula-Robinette test). 

Protected activit;x 

The key issue presented for resolution is whether Baker was 

engaged in a protected activity when he checked the brakes 

"INOP.", on the daily safety checklist. In essence, according to 

Baker, he initially marked the brakes on the 98BA front-end 

loader as being "INOP.", as it continued to roll between 5 and 12 

feet after application of the D-clutch brake petal, and that when 

the brakes did catch they would catch suddenly. Also, according 

to Baker, the distance that the brake on the front-end loader 

would roll upon application of the D-clutch was inconsistent. 

Baker continued to mark the daily safety form up to and 

including the date of his discharge as indicating the brakes 

being "INOP." as the brakes continued to perform in the fashion 

that they had on the first day. According to Baker, he was concerned with the hazard of being unable to stop upon approaching a 

938 
truck down the incline or upon working leveling at the top of the 

stockpile. Halcomb, in essence, testified that marking the 

brakes as being "INOP." was false, especially after he had Miller 

drive it on three occasions after Baker had marked them to be 

"INOP.", and Miller had said that he could not find any~hing 

wrong with the brakes. However, according to Baker, Miller had 

told him that the brakes are not catching like they ought to. 

This is corroborated by Miller who indicated, upon cross examinations, that he told Baker that there was something wrong with the 

brakes. Thus, I adopt Baker's version of what Miller told him, 

rather than the version of Halcomb that he told Baker that Miller 

told him that he could not find anything wrong with the brakes. 

Habcomb testified that upon driving the f rout-end loader 

Robbins had told him that the brakes were not as fast at catching 

as the 980 with the disc brakes and that he sure he told that to 

Baker. Robbins said he found that upon stopping, the brakes were 

plenty safe to operate and stop within a acceptable stoppage. 

Also, he said that any traveling of the loader upon the application of the brakes was consistent and could be adjusted to. He 

also opined that he could not find any danger with this traveling. 

Robbins had testified that he told Baker that the brakes were OK 

and to run the loader. 

Although Robbins indicated the brakes were OK, he did not 

contradict the testimony of Baker on direct that specifically he 

(Robbins) had told him that the brakes did not catch like they 

ought to and that he was going to have to put on a booster on 

them. .Also, although Robbins and Miller presented testimony at 

variance with Baker with regard to the di3tance that the 988A 

rolled upon application of the D-clutch and as to whether the 

distance of the roll was consistent or not, I note that Robbins 

tested it only once. Also, there is a no evidence that either 

Miller or Robbins drove the front-end loader under the conditions 

driven by Baker, i.e. loaded and down a incline. In this connection, I find that the testimony of Baker that Robbins tested the 

loader by driving it on the level around a pile to be uncontradicted, 

In addition, in evaluating whether Baker had good cause to 

believe the brakes were not "OK" and were "INOP.", I placed more 

weight upcn the testimony of Hasty and McClure, based on their 

demeanor, rather than on the testimony of Miller and Robbins. In 

this connection, I noted that Hasty corroborated Baker's testimony 

that the orakes were inconsistent and that once they caught they 

caught suddenly. Also, McClure, who similarly operated the 988A 

after Baker was fired, opined that something was wrong with the 

brakes and that he would have ~ar~ed the safety form as "!NOP.", 

as woulG have Hasty. Also, I find significant that Hasty, like 

Baker, placed the trucks that he loaded uphill from the loader as 

939 
did Baker upon transferring to che 988A. Indeed, Baker's action 

in this regard was corroborated by Dale Tabor, Donny Tabor, Jack 

Bruner. Also, Melvin Thomas, a mechanic at the Mount Vernon plant 

under Robbins, had indicated that when he drove the 988A about the 

time when Baker was fired it rolled and stopped suddenly. 

Although he indicated that the rolling of the loader approximately 

3 feet before it stopped was consistent, he opined that the loader 

in question takes longer than usual to stop than other 988As, and 

therefore that the brakes were not working properly and that there 

had to be something-wrong. 

Accordingly, I conclude that Baker operated in good faith in 

checking the brakes as being "INOP." (See, Secretary on Behalf 

of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 

1981))0 No bad faith can be found by Baker not following the 

opinions of Miller and Robbins. Neither of them actually operated 

the front-end loader while driving loaded down an incline, and 

neither of them physically performed any mechanical investigation 

or examination of the braking system. I find that the record does 

not present sufficient evidence to conclude that Baker's motivation 

in checking the brakes as being "INOP.", was as a result of other 

than safety concerns. Accordingly, I find that Baker engaged in 

protected activity in filling out the daily safety forms during the 

period that he was riding the 988A loader, and marking the brakes 

as "INOP." (Robinette, supra). 

Motivation 

I find that when Halcomb sent Baker home on May 2nd, 1985, 

that Baker was, in essence, fired and that this constitutes an 

adverse action. Halcomb testified, in essence, that when he sent 

Baker home on May 2, 1985, for,in his opinion, falsely filling 

out the daily checklist, it was the straw that broke the camels 

back@ When asked whether the sole reason for firing Baker was 

the false checklist, he indicated in the aff icmative and "the 

other stuff building up to it too." (Tr. 504 > In this fashion, -

he indicated various other complaints that he had with Baker 

including Baker not cleaning up stones on tha road, not servicing 

the loader properly, driving the loader at a unsafe speed, being 

in the control room Can unauthorized location), and not being 

available when needed to service truckers. However, there is no 

evidence chat respondent would have fired complainant for these 

activities alone. Indeed, when asked why Baker was fired Halcomb 

indicated that he was sent home "mostly" for filling out the 

false truck sheets and that there were no other reasons "at that 

time, 11 (Tr. 460). Also, I find it most significant that when 

asked whecher the other problems he had been having with Baker 

affected him in any way in determining to send Baker home on May 

2, he said as follows: "No, I don't think I would have sent him 

home if it hadn't been for the false check sheets," (Tr. 460). 

940 
Thusr based upon the testimony of Halcomb I conclude that the 

complainant here has established that the firing was motivated in 

any part by the protected activity. ~See, Robinette, supra.) 

Respondent has not rebutted the prima facie case. Indeed 

the evidence establishes that the sole motivation for the firing 

of complainant on May 2, was the protected activity. I also find 

that an affirmative defense of respondent cannot be sustained, as 

the evidence fails to establish that respondent would have fired 

complainant based on the nonprotected activities alone. 

(Robinette, supra.) · 

Therefore I conclude that complainant has established a 

cause of action under section 105(c) of the Act. In light of 

this conclusion, Respondent's Motion, made at the Hearing for a 

directed opinion, is DENIED. 

ORDER 

1. Complainant shall file a statement within 20 days of 

this decision indicating the specific relief requested. This 

statement shall show the amount he claims as back pay, if any, 

and interest to be calculated in accordance with the formula in 

Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 (1984). The 

statement shall also show the amount he requests for attorney's 

fees and necessary legal expenses if any. The statements shall 

be served on Respondent who shall have 20 days from the date 

service is attempted to reply thereto. 

2. This decision is not final until a further order is 

issued with respect to Complainant's relief and the amount of 

complainant's entitlement to b~nd~ees. 

Distribution: 

Avra1n Weisoerger 

Adminis~rative Law Judge 

Wendy .F. Tucker, Esq., Ambrose, Wilson, Grimm & Durand, Valley 

Fidelity Bank Building, P. o. Box 2466, Knoxville, TN 37901-2466 

(Certified Mail) 

John G. Prather, Jr., Esq., P. O. Box 105, 38 Public Square, 

Somerset, KY 42501 (Certified Mail) 

dcp 

941 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

JUL 2,81988 

THE HELEN MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THE HELEN MINING COMPANY, 

Respondent 

CON'rEST PROCEEDINGS 

Docket No. PENN 88-52-R 

Citation No. 2881573; 10/27/87 

Docket No. PENN 88-53-R 

Citation No. 2881574; 10/27/87 

Docket No. PENN 88-54-R 

Citation No. 2881575; 10/27/87 

Docket No. PENN 88-55-R 

Order No. 2881576; 10/27/87 

., 

Docket No. PENN 88-56-R 

: Citation No. 2881577; 10/27/87 

Docket No. PENN 88-57-R 

Citation No. 2881578; 10/27/87 

Homer City Mine 

Mine ID 36-00926 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 88-219 

A.C. No. 36-00926-03737 

Homer City Mine 

DECISIONS 

Appearances: Ronald B. Johnson, Esq., Volk, Frankovitch, 

Anetakis, Recht, Robertson & Hellerstedt, 

Wheeling, West Virginia, for the 

Contestant/Respondent; 

Howard K. Agran, Esq., Office 0£ the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Respondent/Petitioner. 

942 
Before: Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern six Notices of 

Contests filed by the Helen Mining Company pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 815(d), challenging the validity of four section 

104(a) citations, with special "significant and substantial" 

(S&S) findings, one section 104(a) non-S&S citation, and one 

section 104(d)(2) order, issued at the mine on October 27, 

1987. All of the contested citations and order were issued 

following a fatal accident investigation conducted by MSHA. A 

hearing was convened in Indiana, Pennsylvania, on June 21, 

1988, and the parties appeared and participated fully therein. 

The parties waived the filing of any posthearing briefs, and 

relied on the record made in the course of the hearing. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 U.S.C. § 801 et seq. 

2. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Issues 

The issues presented in these proceedings are as follows: 

1. Whether or not the conditions and 

practices cited in the citations and order 

constituted violations of the cited mandatory 

safety standards and the Act, and if so, the 

appropriate civil penalty assessments that 

should be assessed against the Helen Mining 

Company, taking into account the civil penalty 

assessment criteria found in section llOCi) of 

the Act. 

2. Whether the inspector's special 

"significant and substantial" findings should 

be aff i.cmed, and whether his "unwarrantable 

failure" finding with respect to the contested 

order should likewise be affirmed. 

Discussion 

The essential facts surrounding the fatality which 

prompted an MSHA accident investigation and resulted in the 

943 
issuance of the contested citations and order are not in dispute. The record reflects that on October 25, 1987, a miner 

was fatally injured when a runaway locomotive and trip of cars 

crashed into a parked personnel carrier causing it to jump the 

track and strike the miner. At the time of the accident, the 

miner was performing work in connection with the repair of the 

track in the vicinity of the parked personnel carrier. 

Prior to the taking of any testimony in these proceedings, 

and in the course of a brief bench pre-trial conference with 

counsel for the parties, they advised me that after further 

discussions and negotiations, the parties proposed to settle 

all of the contested citations and order, and they were 

afforded an opportunity to present their oral arguments on the 

record in support of their joint proposals (Tr. 5). A discussion concerning the contested citations and order, including 

the arguments presented by the parties in support of their 

settlement proposals, follows below. 

Docket No. PENN 88-56-R 

In this case the inspector issued a section 104(a) "S&S" 

Citation No. 2881577, on October 27, 1987, charging an alleged 

violation of the safeguard requirements of 30 C.F.R. § 75.1403, 

and the condition or practice is described as follows: 

Material in the form of a 6' long track rail 

was being transported on the top of a Galis 

battery jeep TP7, serial no. 130-270115. This 

information was revealed during a fatal accident investigation. 

In issuing the citation, the inspector made reference to 

a previously issued safeguard Notice No. 0616506, issued on 

January 30, 1979, pursuant to 30 C.F.R. § 75.1403-7(0), which 

provides as follows: 

Extraneous materials or supplies should not be 

transported on top of equipment; however, 

materials and supplies that are necessary for 

or related to the operation of such equipment 

may be transported on top of such equipment if 

a hazard is not introduced. 

MSHA's counsel moved that the contested citation be 

vacated, and in support of this request, co~nsel asserted that 

based on interviews with the miners, as well as further discussions with the operator, the six-foot rail which was being 

transported on the jeep was securely placed and posed no 

944 
hazard to any of the miners who were also being transported by 

the jeep. Under the circumstances, counsel asserted that the 

facts and circumstances presented do not establish a violation 

of the safeguard provision relied on by the inspector in 

support of the citation (Tr. 7-8). 

After due consideration of the oral motion to vacate the 

citation, it was granted from the bench, and my ruling is 

herein reaffirmed (Tr. 9). Accordingly, Citation No. 2881577 

IS VACATED, and MSHA's proposal for assessment of a civil 

penalty IS DISMISSED. 

Docket No. PENN 88-57-R 

In this case the inspector issued a section 104(a) 

non-"S&S" Citation No. 2881578, on October 27, 1987, citing a 

violation of section 103Ck> of the Act, and the condition or 

practice cited is described as follows: 

103(k) order no. 2881572 issued 10-25-87 following a fatal accident was not complied with during the 8:01 AM to 4:00 PM shift on 10-26-87 in 

that a 15 ton Goodman locomotive serial no. 

437-366 was moved 500 feet to the motor barn. 

Galis battery jeep TPS serial no. 130-270116 

and w.va. Armature jeep TP 12 serial no. 2000766 

were removed from the accident scene approximately 1,000 feet. In the left bottom 5 supply 

cars were moved approximately 1,600 feet to the 

no. 6 side track, and a closed area between 

no. 3 belt station box and 3C switch along the · 

South main track was entered by unauthorized 

person and rehabilitation work done at the 

accident scene. 103 K order no. 2881572 was not 

modified or terminated to allow any of the above 

work to be performed. 

Section 103Ck) of the Act provides as follows: 

In the event of any accident occurring in 

a coal or other mine, an authorized representative of the Secretary, when present, may issue 

such orders as he deems appropriate to insure 

the safety of any person in the coal or other 

mine, and the operator of such mine shall 

obtain the approval of such representative, in 

consultation with appropriate State representatives, when faasible, of any plan to recover 

any person in such mine or to recover the coal 
or other mine or return affected areas of such 

mine to normal. 

MSHA's counsel asserted that no proposed civil penalty 

assessment was filed with respect to the conteste_d citation, 

and that the citation was subsequently vacated by the· inspector on March 22, 1988 (exhibit P-1). The justification by the 

inspector for vacating the citation states as follows: 

104(a) Citation No. 2881578 issued on 10-27-87, 

for a violation of 103Ck) of the Act is vacated. 

Upon review and discussion it was determi~ed 

that company personnel could have interpreted 

that MSHA was in agreement with the State mine 

inspector that the investigation of the equipment involved in the accident had been completed and the equipment could be moved. 

MSHA's oral motion to dismiss this case on the ground 

that the contested citation has been previously vacated was 

granted from the bench (Tr. 9-10), and my ruling in this 

regard is herein reaffirmed. This case IS DISMISSED. 

MSHA.'s counsel stated that the remaining contested citations and order were issued as a result of a fatal accident 

which occurred at the mine on October 25, 1987. He explained 

that three workers were repairing a track haulage rail when 

they suddenly discovered that some equipment was moving on the 

rail toward them. All of the workers, except for the accident 

victim, were able to get out of the way of the moving equipment. The victim was struck by a TP-8 jeep personnel carrier 

which had been parked on the rail approximately 15 feet from 

where the work to repair the broken rail was being performed. 

That particular jeep was struck by a second TP-7 jeep parked 

on the rail, and it was struck by the moving equipment consisting of a trip of five supply cars and a locomotive that were 

all moving together towards the accident scene. Each of the 

contested citations and order concern certain alleged violative conditions with respect to each of these vehicles CTr. 

12). 

Docket No. PENN 88-52-R 

In this case the inspector issued a section 104Ca) "S&S" 

Citation No. 2881573, on October 27, 1987, citing a violation 

of the safeguard requirements of 30 C.F.R. § 75.1403, and the 

condition or practice cited is described a3 follows: 

946 
The safety chain for the brake wheel of 

the 15 Ton Goodman battery locomotive, serial 

no. 437-366, was not attached to the brake 

wheel when the locomotive was parked on the 

track haulage at the motor barn area of the _ 

shaft bottom. This condition may have been.a 

contributing factor to the cause of a fatal 

accident that occurred on 10-25-87. This information was revealed during a fatal accident 

investigation. 

In support of the citation, the inspector made reference 

to a previously issued safeguard Notice No. 2 TJS, issued on 

February 5, 1974, (Exhibit G-3). That safeguard required that 

all track locomotives be maintained in a safe operating 

condition. 

MSHA's counsel moved to amend the proposed civil penalty 

assessment for this violation from $3,500 to $500. In support 

of the motion, counsel stated that the original assessment was 

based on the conclusions made in MSHA's accident report of 

investigation that the failure to connect the safety chain to 

the braking wheel used to prevent the wheel from moving once 

the brake is engaged caused the accident. 

Counsel pointed out that the citation states that the 

failure to connect the safety chain may have been a contributing factor to the accident, rather than the cause, and that· 

MSHA now concedes that the failure to connect the chain may or 

may not have been a contributing factor. 

Counsel explained further that the locomotive was 

equipp~d with thee braking systems consisting of an electrical 

braking system, a pneumatic air-powered system, and a mechanical s~stem similar to an emergency brake on a car. The 

pneumatic brake would be used to engage the brake shoes to 

make contact with the locomotive wheels. The mechanical wheel 

in question would be turned to prevent the brakes from moving • 

. Once this wheel was turned and set, the chain would then 

prevent it from moving. However, the use of the chain alone 

would not have prevented the locomotive from moving, and even 

if it were attached to the wheel, it would not have prevented 

"a runaway." MSHA now believes that the cause of the accident 

was the failure to place blocking material to prevent the 

locomotive and supply trip from moving (Tr. 13-17). 

Helen Mining's counsel stated that the wheel in question 

. is a self-locking mechanism, and if the wheel is turned tight, 

it would be impossible for it to turn on its own, and the 

947 
chain simply prevents the wheel from moving further. Since 

the wheel cannot move on its own, the chain would be meaningless in terms of its relationship to the accident (Tr. 48-49). 

MSHA's counsel confirmed that a safety chain_ was in fact 

provided for the cited locomotive, but was not used, and that 

in the case of the underlying safeguard notice issued in 1974, 

no chain was provided at all (Tr. 49). Counsel also confirmed 

that aside from the safety chain, the locomotive was inspected 

by MSHA and found to be in a safe operating condition, and the 

mechanical braking mechanism was operable. In.addition,, the 

brake pads and linkage were also inspected and found to be in 

proper operational condition (Tr. 51). 

Docket No. PENN 88-53-R 

In this case the inspector issued a section 104(a) "S&S" 

Citation No. 2881574, on October 27, 1987, citing a violation 

of the safeguard requirements of 30 C.F.R. § 75.1403, and the 

condition or practice is described as follows: 

There were 5 loaded supply cars consisting 

of 3.cars of concrete block and 2 cars of 

wooden crib blocks and a 15 ton. Goodman locomotive standing on the track in the chute between 

the 2 West track and the South main track, and 

the cars were not blocked. This condition may 

have been a contributing factor to the cause of 

a fatal accident that occurred on 10-25-87. 

This information was revealed during a fatal 

accident investigation. 

In support of the citation, the inspector relied on a 

.previously issued safeguard Notice 1 TJS, December 26, 1983, 

requiring that standing cars on any track be properly blocked 

or dragged. 

MSHA's counsel took the position that had the locomotive 

and the 5-car trip been properly blocked there would have been 

no movement of the equipment and no accident (Tr. 17). However, counsel moved to amend the proposed civil penalty assessment from $3,500 to $2,500, and in support of this motion, 

asserted that contrary to the special asseosmenc: narrative 

findings that the three miners working on the track rail were 

not normally assigned to those d~ties, and that the foreman 

should therefore have instructed them on safe work procedures, 

including the blocking of the trip of cars, the facts disclosed that two of the miners, including the accident victim 

R. D. Schaffer, were locomotive motormen with approximately 

948 
18 years of mining experience, and that the other miner was a 

trackman. 

Counsel stated that while it may be true that the three 

miner's were not normally assigned to do track re.pair work, 

their regular work assignments as motormen and trackmen 

required them to be familiar with the necessity for blocking 

haulage equipment against possible movement, particularly in 

the case of the two motormen who had over 18 years of experience. Based on interviews with witnesses, counsel stated that 

contrary to MSHA's special assessment narrative statement, the 

miners in question knew that the equipment needed to be 

blocked, and they failed to insure that this was done either 

through a mistake or inadvertence. Counsel proffered that -if 

called to testify, one of the witnesses, William Knesh, who 

was present in the courtroom, would so testify. Mr. Knesh was 

the locomotive operat0r when it was parked, and he would 

testify that he yelled to the accident victim to make sure to 

block the cars, saw him duck behind the cars while bending 

over, and he assumed that he had blocked the cars against 

movement (Tr. 18-22). 

MSHA's counsel also pointed out that although the investigating team could find no evidence of any blocking material at 

the time of the investigation, since the equipment had been 

moved during the rescue of the victim, any blocking materials 

which may have been present would also have been moved (Tr. 

22). 

Docket No. PENN 88-54-R 

In this case the inspector issued a section 104(a) "S&S" 

Citation No. 2881575, on October 27, 1987, citing a violation 

of the safeguarding requirements of 30 C.F.R. § 75.1403, and 

the condition or practice is described as follows: 

The Galis battery jeep TP8 serial 

no. 130-270116 was parked on the track haulage 

at 4 left crossing and was not block_ed when not 

in use. This information was revealed during a 

fatal accident investigation. 

In support of the citation, the inspector relied on a 

prior safeguard Citation No. 2254834, April 26, 1984, issued 

pursuant to 30 C.F.R. § 75.1403-lO(e), and which required 

positive acting stopblocks or derails for all mine haulage 

equipment. 

949 
MSHA's counsel proposed no changes for this citation and 

stated that Helen Mining Company has agreed to pay the full 

amount of the proposed civil penalty assessment of $136 (Tr. 

23). The parties offered supporting arguments for my approval 

of this settlement (Tr. 24-27). 

Docket No. PENN 88-55-R 

In this case the inspector issued a section 104(d)(2) 

Order No. 2881576, on October 27, 1987, citing the safeguard 

requirements of 30 C.F.R. S 75.1403, and the condition or 

practice is described as follows: 

The Galis battery jeep TP7 serial 

no. 130-270115 was parked on the track at the 

motor barn area by Sam Ferguson, Foreman, and 

was not adequately blocked in that a cap wedge 

was used f6r blocking. This condition may have 

been a contributing factor to the cause of a 

fatal accident that occurred 10-25-87. This 

information was revealed during a fatal 

accident investigation. 

In support of the order, the in~pector relied oh a previously issued safeguard Notice No. 2254834, April 26, 19a4, 

requiring the blocking of all haulage equipment when it is not 

in use. This safeguard was issued when an inspector found 

that a shuttle car was not provided with positive active 

stopblocks. 

MSHA's counsel pointed out that this violation concerns 

inadequate blocking for the TP-7 jeep, and that the jeep was 

in fact blocked with a cap wedge. Counsel conceded that the 

cited condition may or may not have contributed to the accident. Counsel also pointed out that the safeguard upon which 

the order was based applied to a shuttle car, and it did not.· 

specify the appropriate method for blocking a jeep. Under the 

circumstances, counsel moved to modify the order to a section 

104(a) citation, and to amend the proposed civil penalty 

assessment from $3,500 to $500. 

In suppoct of the motions, counsel asserted that the lack 

of any specific notice in the underlying safeguard as to the 

type of blocking which would be considered adequate for the 

jeep does not support the unwarrantable failure order.· F~r~ . 

ther, counsel asserted that the faces establish that a wooden 

wedge was used under the wheel of the jeep, and that coupled 

with the fact that the jeep was braked, it was highly unlik~l~. 

950 
that the jeep would have moved on its own had it not been 

struck by the runaway trip of cars (Tr. 28-38). 

MSHA's counsel confirmed that the inspectors who issued 

the citations and order and conducted the acciden.t investigation were presenc in the courtroom, and that they concurred 

with the settlement proposals advanced by the parties (Tr. 

41-42). The parties also confirmed that the arguments presented on the hearing record in support of their joint settlement proposals in these proceedings would be corroborated by 

their respective witnesses who were present in the courtroom 

in the event they were called to testify (Tr. 51). 

The parties submitted information concerning Helen 

Mining's history of prior violations, mine production information, and the size and scope of its mining operation (Tr. 57; 

Exhibits G-4, G-5, and G-6), and I have considered this information in approving the proposed settlements. I have also 

considered the inspectors' negligence and gravity findings as 

reflected by the contested citations and runended order, and 

take note of the fact that all of the contested violations 

were timely abated in good faith by the mine operator. 

After due consideration of the arguments presented by the 

parties, MSHA's oral motions for approval of the settlements 

and to amend its civil penalty proposals for Citation 

Nos. 2881573, 2881574, and 2881576, and to modify section 

104Cd)(2) Order No. 2881576 to a section 104(a) citation were 

granted from the bench (Tr. 43-44, 54). With regard to the 

settlement proposal for Citation No. 2881575, requiring Helen 

Mining Company to pay the full amount of the $136 civil 

penalty assessment for the violation in question, the settlement proposal was likewise approved from the bench (Tr. 43). 

Conclusion 

Pursuant to the requirements of Commission Rule 30, 

29 C.F.R. § 2700.30, and after careful consideration of the 

pleadings and arguments in support of the proposed settlement 

dispositions agreed to by the parties, I conclude and find 

that they are reasonable and in the public interest and they 

ace approved. Accordingly, my bench decisions in this regard 

ARE REAFFIRMED. · 

ORDER 

In view of the foregoing findings and conclusions, section 104Ca) Citation No. 2881577, October 27, 1987, 30 C.F.R. 

§ 75.1403, Docket No. PENN 88-56-R, IS VACA'rED, and MSHA's 

951 
proposed civil penalty assessment IS DISMISSED. Helen Mining 

Company's Notice of Contest IS DISMISSED. 

Section 104(a) Citation No. 2881578, October 27, 1987, 

Docket No. PENN 88-57-R, citing an alleged violation of section 103(k) of the Act has been previously vacated by-MSHA and 

no proposed civil penalty assessment was filed. Accordingly, 

Helen Mining Company's Notice of Contest IS DISMISSED. 

All of the remaining contested and settled citations not 

otherwise dismissed or vacated ARE AFFIRMED, and Helen Mining 

Company IS ORDERED to pay the following civil penalty assessments in satisfaction of the violations in question within 

thirty (30) days of the date of these decisions and order: 

30 C.F.R. 

Docket No. Citation No. Date Section Assessment. 

PENN 88-52-R 2881573 10/27/87 75.1403 $ 500 

PENN 88-53-R 2881574 10/27/87 75.1403 $2,500 

PENN 88-54-R 2881575 10/27/87 75.1403 $ 136 

PENN 88-55-R 2881576 10/27/87 75.1403 $ 500 

In view of the settlement disposition of the aforementioned dockets, Helen Mining Company's Notices of Contest ARE 

DISMISSED. 

~~u~s~ Administrative Law Judge 

Distribution: 

Ronald B. Johnson, Esq., Volk, Frankovitch, Anetakis, Recht, 

Robertson & Hellerstedt, 3000 Boury Center, Wheeling, WV 26003 

(Certified Mail) 

Howard K. Agranr Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

/f b 

952