November 1981 

Commission Decisions 

11-03-81 Kaiser Steel Corp, DENV 75-163-P Pg. 2463 

11-04-31 Missouri Gravel Co. LAKE 80-83-M Pg. 2470 

11-05-81 Crescent Coal Co. PIKE 77-71 Pg. 2475 

11-06·-81 Knox County Stone Co., Inc. DENV 79-359-PM Pg. 2478 

11-06-81 Jim Walter Resources, Inc./Cowan & Co. BARB 77-266-P Pg. 2488 

11-06-81 Cowan & Company, Inc. HOPE 76-210-P Pg. 2493 

11-06-81 Kerr-McGee Corp. CENT 79-156-M Pg. 2496 

11-12-81 Mid-Continent Coal and Coke Co. DENV 76-83-P Pg. 2502 

11-13-81 MSHA ex rel Johnny N. Chacon WEST 79-349-DM Pg. 2508 

11-24·-81 Lone Star Industries, Inc. VA 80-67-M Pg. 2526 

_Administrative La~ Judge Decisions 

11-02-81 

11-03-81 

11-03-81 

11-04-81 

11-04-81 

11-04-81 

11-09-81 

11-10-81 

11-12-81 

11-13-81 

11-13-81 

11-16-81 

11-17-81 

11-17-81 

ll·-17-81 

11-17-81 

11-20-81 

11-24-81 

11-24-81 

11-24-81 

11-27-,81 

11-2 7-81 

11-27-81 

11-27-81 

11--30-81 

11-30-81 

11-30-81 

San Miguel County DENV 79-569-PM Pg. 2537 

United States Stee1 Corp. PENN 81-111 Pg. 2540 

Harman Mining Co. VA 81-83 Pg. 2553 

Basic Refractories LAKE 79-32-M Pg. 2554 

Inverness Mining Co. LAKE 81-45-M Pg. 2576 

Sewell Coal Co. WEVA 79-31 Pg. 2578 

Beckley Coal Mining Co. WEVA 81-436-R Pg. 2593 

Kennedy Brothers Action Sand & Gravel YORK 81-46-M Pg. 2597 

Beraldo Grijalva v. Oracle Ridge Mining WEST 81-255-DM Pg. 2600 

William C. McClain v. Westmont Coal Co. Inc.PENN 81-162-D Pg. 2603 

Richard A. Douglas & Sons YORK 81-23-M Pg. 2608 

Mathies Coal Co. PENN 81-213-R Pg. 2614 

Frank Ornelas v. Phelps Dodge Corp. CENT 80-249-DM Pg. 2620 

Southwestern Illinois Coal Corp. LAKE 81-68 Pg. 2625 

Rosalie Edwards v. AAron Mining, Inc. WEST 80-441-DM Pg. 2630 

Consolidation Coal Co. WEVA 81-341-R Pg. 2637 

A. Ferrante & Sons, Inc. YORK 81-27-DM Pg. 2639 

Charles Harvey v. Howard Quarries CENT 81-9-DM Pg. 2643 

SOL et al v. Emery Mining Corp. WEST 80-489-D(A)&(B) Pg. 2648 

Bull Run Mining Co., Inc. WEVA 81-550 Pg. 2663 

Western Steel Corp. (ref. FMC Corp.) WEST 81-132~RM Pg. 2666 

Peabody Coal Co. v. MSHA & UMWA KENT 81-92-R Pg. 2670 

Carroll D. Tenney v, Eastern Associated Coal WEVA 80-279-D Pg. 2681 

Fancy Mining Co. WEVA 80-730 Pg. 2709 

Mulzer Crushed Stone Co, LAKE 80-375-M Pg. 2710 

Old Dominion Power Co. VA 81-40-R Pg. 2721 

UMWA ex rel Gary L. Shreve v. Consolidation WEVA 81-378-D Pg. 2746 

Commission Decisions 

NOVEMBER 

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

Secretary of Labor on behalf of S. Smith, T. Smith and P.Anderson v. Stafford 

Construction Company, WEST 80-155-DM, etc. (Judge Morris, September 24, 1981). 

Howard Mullins and UMWA v. Pocahontas Fuel Company, HOPE 75-680, IBMA 75-39, 

IBMA 75-40 (Judge Moore, October 5, 1981). 

Secretary of Labor on behalf of Milton Bailey v. Arkansas-Carbona Company, and 

Michael W. Walker, CENT 81-13-D (Judge Laurenson, October 7, 1981). 

Secretary of Labor v. Cleveland Cliffs Iron Company, LAKE 80-129-M (Judge Cook, 

October 8, 1981). 

Secretary of Labor v. Eastover Mining Company, KENT 80-141 (Judge Fauver, 

Petition for Interlocutory Review of November 3, 1981 Order). 

Secretary of Labor on behalf of Clarence Ball v. B & B Mining Company, Inc., 

Laurel Mountain Mining Company, Robert Esseks, Jada Blankenship, VA 80-128-D 

(Judge Laurenson, October 19, 1981) 

Maben Energy Corporation v. Secretary of Labor, MSHA,WEVA 79-447-R, etc. (Judge 

Melick, October 21, 1981). 

Secretary of Labor, MSHA on behalf of Bruce Edward Pratt v. River Hurricane 

Coal Company, Inc., KENT 81-88-D (Judge Kennedy, October 19, 1981). 

~~iew _was Denied in the following cases during the month of November: 

Secretary of Labor, MSHA v. Brown Brothers Sand Company, SE 81-24-·M (Judge 

Koutras, September 28, 1981). 

Secretary of Labor, MSHA v. Beckley Coal Mining Company, WEVA 79-465-R, etc. 

(Judge Fauver, September 30, 1981). 

Secretary of Labor, MSHA v. Southern Ohio Coal Company, LAKE 80-142 (Judge 

Lasher, October 13, 1981). 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20000 

MINING ENFORCEMENT AND 

SAFETY ADMINISTRATION 

(MESA), 

Petitioner 

v. 

KAISER STEEL CORPORATION, 

Respondent 

November 3, 1981 

Docket No. DENV 75-163·-P 

DECISION 

This appeal was pending before the Interior Department Board of 

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

the Commission for disposition. Section 301, Federal Mine Safety and 

Health Amendments Act of 1977, 30 U.S. C. § 961. 

Kaiser Steel Corporation (Kaiser) has appealed from a decision 

assessing a civil penalty of $6,000.00 against it for a violation of 

30 CFR § 75.509.1/ We have reviewed the record, briefs, and the proceedings below, and affirm the judge's decision. The contentions advanced 

on this appeal were presented below, and in our view properly disposed 

of by the judge. 

This case was initiated under the Coal Mine Health and Safety Act 

of 1969 (30 U.S.C. 801 et seq. (1976)(amended 1977)[the 1969 Act]) 

following the death of miner Gary J. Nichols, fatally injured on 

February 27, 1973 while changing shearing wheel bits on the shearing 

machine in Kaiser's Sunnyside No. 1 Mine. When the shearing machine 

unexpectedly started up, the victim was crushed under the shearing wheel 

before the power could be shut off and the wheel stopped. 

On appeal Kaiser directs us to three main issues, the first of 

which is whether this regulation can be properly applied to a bit changing operation. 

_!/Section 75.509 provides: All power circuits and electric equipment 

shall be deenergized before work is done on such circuits and equipment 

except when necessary for trouble shooting or testing. 

2463 81-11-3 
Kaiser maintains that 75.509, a statutory standard, !:_/ is solely 

designed to prevent electrical hazards to miners working on electrically 

powered equipment, but was not intended to regulate mechanical maintenance 

such as bit changing. It notes that 30 CFR 75.510 and 75.511 are also 

taken verbatim from section 305(f) of the 1969 Act,l_/ and that this series 

of statutorily derived regulations are directed toward the performance of 

electrical work, not the mechanical procedure of bit changing. We agree 

with the analysis of the judge below, however, and find that these regulations are not so restricted. 

2/Section 305(f) provides: All power circuits and electric equipment shall 

be deenergized before work is done on such circuits and equipment, except 

when necessary for trouble shooting or testing. In addition, energized 

trolley wires may be repaired only by a person trained to perform electrical 

work and to maintain electrical equipment and the operator of such 

mine shall require that such person wear approved and tested insulated 

shoes and wireman's gloves. No electrical work shall be performed on 

low-, medium-, or high-voltage distribution circuits or equipment, 

except by a qualified person. Disconnecting devices shall be locked out 

and suitably tagged by the persons who performed such work, except that, 

in cases where locking out is not possible, such devices shall be opened 

and suitably tagged by such persons. Locks or tags shall be removed only 

by the persons who installed them or, if such persons are unavailable, 

by persons authorized by the operator or his agent. 

]_/30 CFR 75.510 and 30 CFR 75.511 provide: 

30 CFR 75.510 - Energized trolley wires may be repaired only by a 

person trained to perform electrical work and to maintain electrical 

equipment and the operator of a mine shall require that such person wear 

approved and tested insulated shoes and wireman's gloves. 

30 CFR 75.511 - No electrical work shall be performed on low-, medium-, 

or high-voltage distribution circuits or equipment, except by a qualified 

person or by a person trained to perform electrical work and to maintain 

electrical equipment under the direct supervision of a qualified person. 

Disconnecting devices shall be locked out and suitably tagged by the 

persons who perform such work, except that, in cases where locking out 

is not possible, such devices shall be opened and suitably tagged by such 

persons. Locks or tags shall be removed only by the persons who installed 

them, or, if such persons are unavailable, by persons authorized by the 

operator or his agent. 

2464 
Kaiser points to the adoption four days before this accident of a 

new regulation (30 CFR 75.1725) which better covers the function of bit 

changing.4/ In August 1973, six months after this fatal accident, 

Petitioner's Manual 5/ was changed to reflect adoption of this new 

regulation, and that-bit changing was now under 75.1725, not 75.509. 

Accordingly, Kaiser avers that the only connection between 75.509 and 

bit changing is a result of the strained interpretation in MESA's 

(September 1972) Safety Inspection Manual.&_/ 

However, the relevant Manual language under both 75.1725 and 75.509 

is identical. Further, Kaiser concedes that "this standard (75.1725) by 

itself, still does not expressly regulate this procedure." As Kaiser--

correctly--notes the Manual is in any event not to be given the force of 

law, since not promulgated as if it were a regulation under the Act. 

We have no quarrel with this contention, although the implication that 

MESA is bound by the Manual, even though the operator is not, is not 

persuasive, especially since no reliance on the Manual is claimed by the 

operator. See Kaiser Steel, 3 IBMA 489 (498) (1974). However, neither 

30 CFR 75.509 nor 30 CFR 75.1725 make reference to bit changing, and no 

reason appears from the language of either why one is to be pref erred to 

the other in the regulating of this mining function. See also Bell Coal 

Coal Company, Inc., 5 IBMA 155 (1975), and the judge's discussion 

thereof below at pages 7 and 8. 

Parsing the language of Section 305 of the Act lends further support 

to this statutory regulation's applicability in this case. Indeed, 

Section 305 (which is headed "Electrical - General") regulates (e.g.) 

"handheld electric drills, blower and exhaust fans, electric pumps, and 

other low horsepower electric face equipment." This would appear intended 

to enumerate more inclusively the electric equipment to be regulated by 

this section of the Act, rather than to restrict its application to only 

more conventionally 'electrical' equipment, as urged by Kaiser. 

!!_/30 CFR 75.1725(c) and 75.1725(d) provide: 

75.1725(c) - Repairs or maintenance shall not be performed on machinery 

until the power is off and the machinery is blocked against motion, except 

where machinery motion is necessary to make adjustments. 

75.1725(d) - Machinery shall not be lubricated manually while in 

motion unless equipped with extended fittings or cups. 

5/United States Department of the Interior, Bureau of Mines, Coal Mine 

Safety Inspection Manual for Underground Mines. 

6/The Manual provided: Opening a circuit breaker which is installed on 

the machine and which opens all power conductors entering the machine 

shall be accepted as compliance with this section for lubrication or 

changing bits. {Exhibit P-7]. 

2465 
To hold that this machine, powered by both a 950 volt operating 

circuit and a 120 volt control circuit, is not electric equipment, would 

permit maintenance to be performed on this shearing machine--and undoubtedly 

a great many other electrically powered mining machines--without requiring 

that these be deenergized, despite all parties' agreement that maintaining 

power to the machine here involved during bit changing would be unsafe.z/ 

For, as was noted below: 

"As pointed out by MESA, section 75.509 by its 

terms refers to "electric equipment" as well as 

"power circuits". It does not unduly strain the 

regulatory language to classify a shearing machine 

powered by a 950-volt trailing cable as a piece of 

electrical equipment." 

As the judge, and for similar reasons, we have little, if any, 

difficulty applying 30 CFR 75.509 to this bit changing operation. 

It is also asserted that "shall be deenergized" in 30 C.F.R. 75.509 

is ambiguous since the standard fails to define deenergize, and the 

circumstances under which equipment is to be deenergized. We reject 

this argument; on this record it is clear that deenergize was understood 

by the miners, including two of Kaiser's own employee-witnesses. And see 

the judge's decision, pages 9-12. 

Kaiser next contends that even if 30 CFR 75.509 is found to be 

applicable, a question exists as whether there was sufficient evidence 

presented to establish a violation of the standard. 

The analysis of the judge below in our view simply and correctly 

summarizes the record. The evidence adduced at the hearing showed that 

turning off the power disconnect switch on the machine was (at that 

time) considered sufficient compliance with the standard. However, 

Kaiser suggests that the accident could have resulted from the operator 

"jogging" or "goosing" the wheel by turning on the power disconnect 

switch, rather than the power disconnect switch being on during the (entire) 

course of the bit changing operation. 

7/As to the disagreement as to how deenergization is to be accomplished, 

more specifically the point at which the power is to be disconnected, 

see infra, page 5. 

2466 
The parties agree that there was power going to the shearing machine 

wheel at the time of the accident, the machine was in gear, and that rotation of that wheel killed miner Nichols while he was engaged in changing 

bits on the machine. Whether or not one agrees with Kaiser's view of 

the manner in which or place where this machine is to be deenergized,_§_/ 

it is indisputable that power was coming to the machine, more precisely 

to the shearing wheel, at the time the miner was killed. We therefore 

hold that the judge below correctly found that there was sufficient 

evidence that the machine was not deenergized within the meaning of the 

regulation, and that the standard was accordingly violated. 

As the judge found: 

"The evidence demonstrat(ls (1) that there was an 

established procedure known to the operator for 

ensuring that the shearing machine not start up 

during the bit changing procedure, and (2) that 

the accident under consideration here would not 

have occurred unless the procedure was violated," 

There is substantial record evidence in support of that finding. 

Nor was any testimony adduced which indicated that the machine itself 

was in any way defective; indeed, the post-accident investigation found 

no defects, either electrical or mechanical. 

Finally~ we find that the judge's decision was based on reliable, 

probative and substantial evidence, contrary to the contention of Appellant. 

Kaiser has asserted that two out-of-court statements, admitted into 

evidence at the hearing but thereafter rejected by the judge as a basis 

for any findings, actually played a key role in leading the judge below 

to his decision. Scrutiny of that decision reveals no support for 

this contention. 

Appellant also raises objection to the Petitioner's accident 

investigation report prepared by the inspectors who largely conducted 

the post-accident investigation. It is sufficient to note that this 

report (Exhibit P-3) was received into evidence without objection by 

Kaiser, and provides ample support for the decision rendered. 

8/If the power had been disconnected externally, by disconnecting the cable 

at the headgate outside the machine, obviously there would have been no 

power to either the 120 volt control or 950 volt circuits. However, the 

nature of the occurrence in this instance make it clear that there was 

power coming both through the control circuit on the machine--even if 

arguably in conformity with procedure approved by both MESA and Kaiser--

and to the 950 volt circuit (which is activated only by and after the control 

circuit is energized). Whether this was inadvertent or not, without this 

power the wheel would not have rotated, and the miner would not have died. 

Nor, we note parenthetically, was any testimony presented as to why the 

shearing machine was not moved clear of the mine face, roof or walls 

before bit changing was begun. 

2467 
In summary, we find that 30 CFR 75.509 is applicable to these facts, 

that there was an established procedure, known to the operator, for insuring that the shearing machine not start-up during the bit changing 

procedure, and that the accident under consideration here could not have 

occurred unless that procedure was violated. Kaiser's own witnesses 

testified to the effect that the power was on and the clutch engaged at 

the time of the accident and death of miner Nichols. 

We further find that the judge, having determined that a violation 

of this mandatory statutory standard occurred, complied with section 

109(a) of the Act in analyzing the factors required to be considered in 

determining the amount which he assessed as a penalty. 

The decision of the administrative law judge is affirmed. 

2468 
Distribution 

Michael T, Heenan, Esq. 

Smith, Heenan, Althen & Zanoli 

1800 M Street, N.W. 

Washington, D.C. 20036 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

David B. Reeves, Esq. 

Kaiser Steel Corporation 

P.O. Box 217 

Fontana, California 92335 

2469 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MISSOURI GRAVEL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 4, 1981 

Docket No. LAKE 80-83-M 

DECISION 

This civil penalty proceeding arises under section 110 of the 

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

(Supp. III 1979). The administrative law judge, in a summary decision, 

concluded that the "undisputed" facts of record did not establish 

violations of 30 CFR §56.14-1 as alleged by the Secretary of Labor. 1./ 

For the reasons set forth below, we find the judge erred. 

Five citations, each of which alleged a failure to guard a tail or 

drive pulley, were issued to Missouri Gravel. After the Secretary filed 

a penalty proposal for the violations, Missouri Gravel answered, denying 

that the conditions for which the citations were issued violated the 

standard. The administrative law judge issued a pretrial order, that 

among other things, required Missouri Gravel to submit a specific 

statement as to why it contested each alleged violation. Missouri 

Gravel responded asserting that the pulleys were in compliance with the 

standard in that two were guarded by reason of their location, three 

were guarded by various barriers (e.g., chain, pipe or angle iron), and 

that access to the pulleys was restricted in varying degrees. Moreover, 

it argued that no employee would normally be exposed to the pulleys 

except, in some instances, for maintenance work at which time the 

pulleys would not be operating. 

The judge issued an order reciting Missouri Gravel's defenses and 

ordering the Secretary to provide a detailed factual statement as to his 

agreement or disagreement. The Secretary responded with respect to each 

citation. In general he asserted that the pulleys were not guarded by 

their location or by the barriers because, in each instance, employees 

traveled or worked in the vicinity of the pulleys and could be caught 

and injured in them, although the allegations concerning the details of 

employee exposure and the likelihood of injury varied with respect to 

each citation. 

1./ 30 C.F.R. §56.14-l·provides: 

Mandatory. Gears; sprockets; chains; drive, head, tail,and 

takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; 

and similar exposed moving machine parts which may be contacted by 

persons, and which may cause injury to persons, shall be guarded. 

2470 81-11-4 
A document styled "Tentative Decision" was then issued by the judge 

in which he·stated that, based upon "an independent evaluation and de 

novo review of the parties' prehearing submissions", he found "no genuine 

dispute as to any of the material facts." He further found that none of 

the charged violations presented "any reasonably recognizable hazard of 

injury to any normally prudent employee exercising reasonable care in 

the performance of assigned duties." He ordered the parties to show 

cause why the "tentative decision" should not be adopted as a final 

decision. In response, the Secretary asserted that the cited conditions 

constituted violations of section 56.14-1 because the equipment was 

unguarded and miners were exposed to unguarded moving parts. The 

Secretary further stated that the frequency of the exposure relates 

to the gravity of the violation for penalty purposes, rather than to the 

question of whether a violation exists. 

On July 8, 1980, the judge issued a final decision "adopting and 

confirming" his "tentative decision". The judge stated that the Secretary had "failed to contest my tentative finding that there was no 

genuine dispute as to any of the facts material to the five failure to 

guard violations.ii Therefore, he concluded, an evidentiary hearing was 

not necessary and summary decision should be entered. The judge stated 

"the undisputed facts show each of the locations cited is so inaccessible, 

it is highly improbable that in the course of his work duties any 

normally prudent employee is likely to come into contact with these 

moving machine parts." He then dismissed the Secretary's proposal for a 

penalty. 

Summary decision is an extraordinary procedure. If used improperly 

it denies litigants their right to be heard. Under our rules, a party 

must move for summary decision ];_/ and it may be entered only when there 

is no genuine issue as to any material fact and when the party in whose 

favor it is entered is entitled to it as a matter of law. 29 C. F. R. 

§2700.64(a), (b). The judge found no genuine dispute as to any material 

fact. We disagree. The standard requires guarding of moving machine 

parts "which may be contacted by persons, and which may cause injury to 

persons." As the following recitation of the parties' pretrial submissions makes clear, a genuine dispute as to the potential for contact 

and injury exists, 

Citation No. 362881 alleged the oversized belt conveyor tail pulley 

was not guarded on its west side. Missouri Gravel asserted the pulley 

was guarded by its very location in that the pinch point was located at 

the bottom of the pulley and was accessible only by crawling on hands 

and knees. It stated that this had to be done only for maintenance 

purposes at which time the conveyor would not be operating. It asserted 

no worker was generally stationed in the area and that the pulley was 

not in a regularly traveled way. The Secretary disagreed with Missouri 

Gravel's assertion that the pulley was not in a regularly traveled way. 

Moreover, the Secretary asserted the pulley was not guarded by reason of 

its location because it had "points with exposed ends which could be 

reached by persons close to the tail pulley by only moving their feet 

and touching the points." The Secretary also stated the pulley could 

"catch the clothes of persons standing close to it." He alleged that 

the operator of the equipment, with the help of labor personnel, cleaned 

2:_! Here neither party moved for summary decision. The judge invoked 

the procedure on his own. While there is some authority in the federal 

courts that the analogous federal rule of civil procedure permits summary decision without a specific motion, we believe that in our proceedings, 

except in the most exceptional circumstances, it should not occur. See 6 

Moore's Federal Practice §56.12 (2d ed. 1976)(Supp. 1980-81): As this 

case illustrates, it can all too easily lead to an ar~itrary and erroneous 

decision. 

2471 
the equipment and "regularly walked and stood sufficiently close to the 

pinch point to be subject to injuries." The Secretary listed several 

other functions which caused the operator of the equipment and other 

labor personnel to stand "regularly close to the pinch point," and he 

asserted the functions are "usually performed while the equipment is in 

operation." 

Citation No. 362882 alleged that a self cleaning tail pulley on a 

log washer belt conveyor was not guarded. Missouri Gravel stated the 

pulley was guarded by its very location in that it was not located on a 

regular travelway. It asserted the pulley was not in an area where 

workmen would be stationed during normal operations and that the pulley 

was several feet above the ground. The Secretary did not agree that the 

pulley was properly guarded by reason of its very location. He also 

disagreed it was not on or near a normal travelway. He asserted that 

the operator of the equipment and labor personnel were required to 

regularly move under and regularly stand under the pulley to oil it, to 

put antifreeze on it, to check its alignment and to work under it with 

shovels. These persons, he asserted, "could be injured by moving their 

hands or heads close to the pulley." 

Citation No. 362887 alleged the ballast conveyor drive pulley was 

not guarded. Missouri Gravel asserted that a chain barrier, which was 

located approximately 2 feet from the pulley, and a warning sign properly 

guarded the pulley. It stated that the only time a person would be in 

the area would be far maintenance purposes and that the conveyor would 

not then be operating. The Secretary responded that a person could be 

caught in the pulley by reaching a hand over the chain barrier or by 

walking under or over the chain. He stated that "[t]he operator of the 

equipment, labor personnel working with him and maintenance personnel 

regularly moved or stood close to the pinch point.'' He asserted these 

personnel could go sufficiently close to the pulley to be injured for 

several reasons and that when they did go that close "the conveyor 

usually was in operation." 

Citation No. 362889 alleged that a dewatering screen drive pulley 

was not guarded. Missouri Gravel asserted the pulley was "adequately 

guarded" by a pipe barrier which had to be turned or lifted to reach the 

pulley area. It also asserted that only maintenance personnel would go 

into that area for maintenance purposes or to check the oil gauge and at 

those times the conveyor drive would not be operating. The Secretary 

asserted the pipe was not a guard because "it could be removed by anybody walking in the area." He also asserted that the operator of the 

equipment, labor personnel working with the operator and maintenance 

personnel "were in the area and walked close to the pinch point for 

several reasons." 

Citation No. 367379 alleged the drive pulley for the main incline 

belt was not guarded and that a start switch for the belt was 1-1/2 feet 

from the bottom of the pulley. Missouri Gravel asserted the pulley was 

guarded by an angle iron barrier and that the pinch point of the pulley 

was 3 feet 9 inches from the barrier. It also asserted the pulley was 

2472 
"not located in a normal travel way area and that the only reason for 

access to the area would be for maintenance of the pulley, at which time 

the conveyor would not be operating." The Secretary asserted the opera~ 

tor of the equipment, labor personnel working with the operator or 

maintenance personnel "walked or stood close to the pinch point." He 

also stated that "a person could [be] caught in the pinch point by 

leaning over the barrier to shut off the power." 

In light of the above, we conclude that the record establishes 

unresolved disputes concerning whether persons may contact these moving 

machine parts and be injured thereby. We find these disputes to be 

material. In entering summary decision for Missouri Gravel, the judge 

was trying issues of fact through the summary decision procedure. This 

he cannot do. Accordingly, summary decision was improperly entered. ]_/ 

We reverse and remand for further proceedings consistent with this 

opinion. 

Nease, Commissioner 

]_/ In view of our determination that the judge erred in finding there 

were no material facts in dispute, at this time we do not reach the 

issue of whether, as a matter of law, the judge properly interpreted 

and applied the standard. 

2473 
Distribution 

Michael McCord, Esq. 

Debra Feuer, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

James A. Burstein, Esq. 

Chadwell. Kayser, Ruggles, McGee & Hastings, Ltd. 

8500 Sears Tower 

233 South Wacker Drive 

Chicago, Illinois 60606 

Administrative Law Judge Joseph Kennedy 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2474 
VICTOR McCOY, 

v. 

AND EAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 5, 1981 

Comp lain ant 

Docket No. PIKE 77·-71 

CRESCENT COAL COMPANY, 

Respondent 

ORDER 

On May 10, 1977, Victor McCoy filed a complaint of discrimination 

against Crescent Coal Company under section llO(b) of the Federal Coal 

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

Supp. I 1977) alleging he was discharged by Crescent on April 22, 1977 

for refusing to ride an unsafe belt line into Crescent's mine. On 

September 28, 1981, the judge issued his decision finding that McCoy was 

discharged on April 22, 1977 in violation of section llO(b) of the Coal 

Mine Health and Safety Act of 1969; ordered respondent to pay back pay 

and attorney fees; ordered the parties to advise him in writing by 

October 15, 1981, whether they had agreed on the amounts of back pay 

and attorney fees; suggested that further proceedings may be necessary 

if the parties could not reach an agreement and retained jurisdiction 

for the purpose of determining the proper award. 

Crescent filed its petition for discretionary review on October 28 1 

1981 raising questions of law and fact relating to the judge's decision. 

On November 3, 1981 complainant filed a motion to dismiss Crescent's 

petition as being premature. 

In Gerald D. Boone v. Rebel Coal Company, 3 FMSHRC 1900 (Aug. 6, 1981) 

and !~ouncil of Southern Mountains, Inc:,. v. Jiartj,n County Coal ~orporation, 

2 FMSHRC 3216 (Nov. 12, 1980) the Commission considered situations 

analogous to the instant and concluded that failure to resolve monetary 

awards did not constitute a final disposition by the judge to initiate 

the running of the statutory review periods under section 113 of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et. se_.9... 

(Supp. II 1978). In those cases the petitions for review weredismissed 

as premature. The reasoning and decisions in those cases are applicable 

to this proceeding. 

2475 

81-11-5 
Accordingly, complainant's motion to dismiss is granted and the 

petition for discretionary review filed by Crescent Coal Company is 

dismissed as premature. The parties may file petitions for discretionary 

review in accordance with section 113 of the Federal Mine Safety and 

Health Act of 1977 and Commission Rule 70 (29 C.F.R.2700.70) once the 

judge has made his final disposition of this proceeding. 

2476 
Distribution 

David C. Stratton, Esq. 

Stratton, May & Hays, PSC 

P.O. Drawer 851 

Pikeville, Kentucky 41501 

Stephen Sanders, Esq. 

Appalachian Research & Defense Fund of KY 

P.O. Box 152 

Prestonsburg, Kentucky 41653 

Chief Administrative Law Judge 

James A. Broderick 

FMSHRC 

1730 K Street, N.W. 

Washington, D.C. 20006 

247? 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 6, 1981 

Docket No. DENV 79-359-PM 

KNOX COUNTY STONE COMPANY, INC. 

DECISION 

This penalty case arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. §801 ~~· (Supp. III 1979). The question 

before us is whether the judge abused his discretion by disapproving the 

parties' proposed penalty settlement and summarily assessing a $500 

penalty. For the reasons that follow, we vacate the judge's decision 

and approve the parties' settlement. Due to information disclosed 

during this review, we also find it necessary to address the subject of 

ex parte communications between judges and parties. 

On October 12, 1978, an MSHA inspector issued Knox County Stone 

Company a citation for an alleged violation of 30 CFR §56.11-2, l/ 

when he observed a catwalk railing torn loose from its foundations. 

On February 22, 1979, the Secretary petitioned for assessment of a 

$40 civil penalty for the alleged catwalk violation. On March 23, 1979, Knox 

County answered the petition, admitting the violation, contesting the 

amount of penalty assessed, and requesting a hearing. 

On April 24, 1979, the judge issued to the parties a notice of 

hearing and pretrial order requiring in two phased responses extensive 

information relevant to the six penalty criteria specified in section 

110(1) of the Mine Act. By June 11, when the last response was filed, 

the parties had significantly narrowed the issues. The only major 

point in dispute between the parties was the appropriate penalty weight 

to be assigned for operator size. On June 13, 1979, the judge noticed 

the hearing for June 29, 1979, in Arlington, Virginia. 

On June 26, 1979, Knox County filed a Motion to Dismiss Proceeding 

and to Approve Settlement. The motion stated that $36, rather than the 

originally proposed $40, would be the appropriate penalty amount, based 

on an agreed reduction of penalty points for operator size. Also on 

June 26th, the parties jointly moved for a continuance pending disposition of the dismissal motion and, in the event a hearing was required, 

for transfer of the hearing site to Kansas City, Missouri. On June 27, 

1./ Section 56.11-2 provides: 

Mandatory. Crossovers, elevated walkways, elevated ramps, 

and stairways shall be of substantial construction provided with 

handrails, and maintained in good condition. Where necessary,toeboards shall be provided. 

2478 81-11-7 
1979, the judge denied the transfer request and continued the hearing. 

The Secretary subsequently filed a response concurring in Knox County's 

dismissal motion, including reduction of penalty points for operator 

size. On July 23, 1979, without having held a hearing, the judge issued 

his Decision and Order on Motions to Approve Settlement, 

The judge disapproved the settlement proposal "because on the basis 

of an independent evaluation and d~ novo review of the circumstances the 

presiding judge is not persuaded that the penalty proposed will deter 

future violations and insure voluntary compliance.'' Finding 

that there were no genuine issues of material fact, the judge concluded 

that "due process [did] not require an evidentiary hearing to resolve 

[the] dispute." In effect, the judge treated Knox County's settlement approval motion as a summary judgment motion. 

On the basis of the parties' pleadings, the pretrial submissions, 

and the inspector's violation "statement," the judge made the following 

findings relevant to the six penalty criteria: the violation was admitted; 

there was no past history of violations; regarding Knox County's size, 

its annual sales volume was approximately $1,000,000; the judge accepted 

Knox County's concession that a "low degree of negligence" was involved 

in the violation; "it [was] not claimed" that the assessment of any 

penalty found warranted would impair Knox County's ability to continue 

in business; regarding gravity, the violation was "serious" because 

according to the "undisputed findings" in the inspector's violation 

"statement," a fall from the catwalk, while "improbable, 11 would 

"probably result" in disabling injury if it did occur; and it was 

conceded by the Secretary that compliance was "rapid." Based on 

these findings, the judge concluded that $500 was the penalty "appropriate 

to the size of the respondent and,,, best calculated to deter future 

violations and insure voluntary compliance," 

Knox County's Petition for Discretionary Review ("PDR") raises two 

major issues: (1) whether the judge properly rejected the proposed 

penalty settlement, and (2) whether his sunnnary assessment of the $.500 

penalty was proper. The Secretary filed a brief in support of the PDR. 

Because the judge's summary assessment of the $.500 penalty was predicated 

on his rejection of the proposed $36 penalty, we first consider whether 

he properly rejected the settlement. 

We initially summarize the general principles relevant to this 

issue. Section llO(k) of the Mine Act ]j directs the Commission and 

its judges to protect the public interest by ensuring that all settlements of contested penalties are consistent with the Mine Act's 

objectives, Co-op Mining Co,, 2 FMSHRC 3475, 3475-76 (1980). The 

judges' front line oversight of the settlement process is an adjudicative 

function that necessarily involves wide discretion. While the scope of 

this discretion may elude detailed description, it is not unlimited and 

at least some of its outer boundaries are clear. 

J::j In relevant part, section llO(k) provides: 

No proposal penalty which has been contested before the 

Commission ... shall be compromised, mitigated, or settled 

except with the approval of the Commission. 

2479 
The text of section llO(k) requires us to reject the notion lurking 

in Knox County's brief that Commission judges are bound to endorse all 

proposed settlements of contested penalties. Co-op Mining Co., supra. 

However, settlements are not in disfavor under the Mine Act, and a judge 

is not free to reject them arbitrarily. Our standards for decision and 

review in settlement cases are consistent with these "outer boundaries." 

Commission Rule 30(c), 29 CFR §2700.30(c)(amended 1980), provides 

that the judge's order "approving a proposed settlement shall set forth 

the reasons for approval and shall be fully supported by the record.'' 11 

Similarly, in Davis Coal Co., 2 FMSHRC 619 (1980), the Commission affirmed 

several settlement approvals where the judges "considered the reasons 

for the proposed settlements and weighed the [statutory penalty] 

criteria .... " !:±._/ Although neither Rule 30(c) nor Davis Coal directly 

addresses the roles of the judge and the Commission where proposed 

settlements are rejected, the decisional and review standards relevant 

to settlement approval apply equally to these cases. Rejections, as 

well as approvals, should be based on principled reasons. Therefore, we 

held that if a judge's settlement approval or rejection is "fully 

supported" by the record before him, is consistent with the statutory 

penalty criteria, and is not otherwise improper, it will not be disturbed. In reviewing such cases, abuses of discretion or plain errors 

are not immune from reversal. Co-op Mining Co., 2 FMSHRC at 3475-76 

(rev'g a judge's approval of a penalty settlement where the record 

disclosed no underlying violation); Cf. Mettiki Coal Corp., (No. 

YORK 80-140, October 16, 1981) (rev'g-judge's rejection of Secretary's 

dismissal motion premised on full payment of proposed penalty). 

In light of the foregoing general principles, we turn to the propriety of the judge's rejection of the proposed pen~lty settlement. The 

judge's rejection of the settlement turned on his determination that the 

proposed penalty would not "deter future violations and insure voluntary 

compliance." The judge did not explain the reasons for this conclusion 

in any detail. He indicated, however, that a fall from the catwalk, 

"while improbable," would probably result in a disabling injury, and 

commented that his substituted $500 penalty.was "appropriate to the 

size" of Knox County--thereby implying that a $36 penalty was not. 

]j Rule 30(c) was revised in 1980 to delete the requirement, which was 

in effect when this.case was decided, that the judge "consider" and 

"discuss" the six statutory penalty criteria in orders approving settlements. As the Federal Register commentary accompanying the amendment 

makes clear, the only purpose of the revision was "enhance[ment]" of the 

"flexibility of the judges to approve the settlements ...• " 45 Fed. Reg. 

!1L1, 301-302 (1980). The amended rule permits judges to issue simpler and 

briefer settlement decisions, free from the burden of separately discussing each of th.e penalty criteria. The amendment does not sanction 

settlement decisions inconsistent with the statutory penalty criteria. 

!:±._/ In the analogous context of reviewing a judge's penalty assessments 

in a contested case, we refused to disturb penalty assessments "based on 

the evidence in the record and [on] correct consideration of the statutory 

criteria .... " Shamrock Coal Co., 1 FMSHRC 469 (1979). 

2480 
We conclude that the judge's rejection of the settlement is not 

"fully supported" by the record and is inconsistent with the penalty 

criteria. As a threshold matter, the proposed $36 penalty is not 

offensive in principle. When the Mine Act was enacted, there was a 

justified congressional concern over the general pattern of low penalties 

under the 1969 Coal Act. S. Rep. No. 95-181, 95th Cong., 1st Sess. <U-5 

(1977), reprinted in Subcommittee on Labor, Comm. on Human Resources, 

Legislative History of the Federal Mine Safety and Health Act of 1977, 

at 629-33 (1978). However, this concern was not a prospective condemnation of low penalties or minor compromises in every case that might 

arise under the new statute. Relatively minor or technical violations 

of the Mine Act can, and with some frequency, do occur. As the Commission recently stated: "If it is found in a given case that a low penalty 

is warranted, a low penalty may, of course, be assessed." Tazco, Inc., 

3 FMSHRC 1985, 1989 (1981). The record and penalty criteria support the 

penalty agreed to by the parties. 

As the judge recognized, the pleadings and pretrial submissions 

show that Knox County had no history of violations and engaged in rapid 

compliance once cited. The inspector's violation "statement," on which 

the judge based his gravity findings, indicated that the risk of fall 

from the catwalk was "improbable." While we do not dispute the judge's 

findings concerning the other criteria, we think that a $36 penalty is 

reasonable and appropriate for a rapidly corrected first violation 

posing only improbable risk of harm. Similarly, we do not view the $4 

difference between the originally proposed penalty and the one agreed to 

in settlement as the kind of excessive compromise criticized by Congress. 

The judge's conclusion that $36 was insufficient for deterrence purposes 

is not, as noted, above, explained in detail. In short, we think that 

rejection of this proposed settlement unnecessarily impugns the settle-· 

ment process and represents zealous, ra~her than wise, enforcement of 

the Mine Act. 

Accordingly, we reverse the judge's rejection of the proposed 

penalty in the settlement motion. Ordinarily, we would remand a case in 

this posture for further proceedings. However, because this case involves 

a small penalty sum and has been on the Commission's docket for some 

time, and because we believe that the $36 penalty proposed penalty is 

appropriate, we hereby approve the parties' settlement motion. Cf. 

Consolo v. FMC, 383 U.S. 607, 621 (1965) (approving disposition at the 

appellate level, rather than the ordinary course at remand, where a case 

has been pending for sometime and the relevant legal principles are "not 

hard to apply"). 

While the preceding disposition dictates reversal of the judge's 

summarily assessed $500 penalty, we also note that the judge's treatment 

of Knox County's settlement motion was a form of sua sponte summary j udg·-

ment, an extraordinary procedure not authorized by our rules. In ~issoulJ:_ 

Gravel Coal Co. (No. LAKE 80-83-M, November 4, 1981) we disapproved of 

sua sponte summary judgment in general, and we reject the judge's use of 

it here as well. As we recently observed, "if a judge disagrees with a 

stipulated penalty amount in a settlement, he is free to reject the 

settlement and direct the matter for hearing." Tazco Inc., 3 FMSHRC at 

2481 
1898. Accordingly, we also vacate the judge's summary assessment of the 

$500 penalty. 5/ 

In sum, for the foregoing reasons, we vacate the judge's rejection 

of the parties' settlement motion and his summary assessment of a $500 

penalty, and approve the parties' motion for a $36 penalty in settlement 

of the case. §_/ As we noted at the outset, this case also requires us 

to discuss ex parte communications. Although the following discussion 

is necessitated by information disclosed during review, we emphasize 

that it is extrinsic to the matters on review. 

In support of contentions that the judge was biased and had prejudged the case (issues not necessary to resolve at this point (see n. 

6)), Knox County alleged in its PDR that on June 20 and July 3, 1979, 

its principal counsel had telephone conversations with the judge regarding the case. That counsel's affidavit concerning the conversations was 

attached to the petition. The alleged conversations occurred prior to 

the judge's decision--the first after the judge's notice of hearing and 

last pre-trial submission but prior to the motion to approve settlement, 

and the second after the settlement motion. Knox County stated that the 

conversations were "initiated" by the judge or "persons in his office." 

On September 6, shortly after the Commission directed this case for 

review, the judge filed his own affidavit with the Commission. The 

judge stated that he had read Knox County's counsel's affidavit, and 

acknowledged that he had spoken with him on June 20. The affidavits 

contained partly conflicting accounts of the substance of the conversations. 

2_/ Of course, where settlement is rejected and the case is directed 

for hearing, if the parties believe that the facts are not in dispute, 

they can move the judge for summary judgment (Commission Rule 64, 

29 CFR §2700.64) and present argument on the appropriate penalty 

size. 

§_/ Our disposition of the case remedies Knox County's other 

complaints regarding the judge's decision and renders discussion of 

them unnecessary. 

2482 
Apart from the two affidavits, no record of these conversations was 

placed on the public record of the proceedings. 

These affidavits concur on one point: the attorney and the judge 

appear to have discussed the case off the public record and without the 

presence of the Secretary, the other party to the proceeding. We will not 

direct a separate disciplinary proceeding to determine whether these 

apparent facts make out a prohibited ex parte communication. The 

parties have at least brought the matter to our attention, the conversations occurred over two years ago, and we have not previously addressed 

the subject of ex parte communications. However, because the subject of 

ex parte communications has arisen and because we believe that the 

prohibitions against ex parte communications are vital to the integrity 

of the Commission's processes, we take this occasion to provide future 

guidance for Commission judges and those who practice before the 

Commission. 

Our procedural rules have always prohibited ex parte communications, 

although there have been permutations in language and organization as 

rule revisions have occurred. Rule 82, the present rule on ex parte 

communications, provides: 

(a) Generally. There shall be no ex parte 

communication with respect to the merits of any 

case not concluded, between the Commission, 

including any member, Judge, officer, or agent 

of the Commission who is employed in the 

decisional process, and any of the parties or 

intervenors, representatives, or other interested 

persons. 

(b) Procedure in case of violation. 

(1) In the event an ex parte communication 

in violation of this section occurs, the 

Commission or the Judge may make such orders 

or take such action as fairness requires. 

Upon notice and hearing, the Commission may 

take disciplinary action against any person 

who knowingly and willfully makes or causes 

to be made a prohibited ex parte communication. 

(2) All ex parte communications in violation of 

this section shall be placed on the public record 

of the proceeding. 

(c) Inquiries. Any inquiries concerning filing 

requirements, the status of cases before the Commissioners, 

or docket information shall be directed to the Office of 

the Executive Director of the Commission .... 

2483 
Moreover, apart from our own rules, section 557(d) of the APA also 

prohibits ex parte communications. As part of the Government in the 

Sunshine Act, Congress amended section 557 in 1976 to add a new subsection (d) set forth in the accompanying note. ]_/ Section 557(d) 

7/ §557(d) provides in relevant part: 

(1) In any agency proceeding which is subject to subsection (a) of this 

section, except to the extent required for the disposition of ex parte matters 

as authorized by law -

(A) no interested person outside the agency shall make or 

knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other 

employee who is or may reasonably be expected to be 

involved in the decisional process of the proceeding, an 

ex parte communication relevant to the merits of the proceeding; 

(B) no member of the body composing the agency, administrative 

law judge, or other employee who is or may reasonably be 

expected to be involved in the decisional process of the 

proceeding, shall make or knowingly cause to be made to an 

interested person outside the agency an ex parte communication 

relevant to the merits of the proceeding; 

(C) a member of the body comprising the agency, administrative 

law judge, or other employee who is or may reasonably be 

expected to be involved in the decisional process of such 

proceeding who receives, or who makes or knowingly causes 

to be made, a communication prohibited by this subsection 

shall place on the public record of the proceeding: 

and 

(i) all such written communications; 

(ii) memoranda statin~ the substance of all such oral 

communications; 

(iii) all written responses, and memoranda stating the 

substance of all oral responses, to the materials 

described in clauses (i) and (ii) of this subparagraph; 

(D) upon receipt of a communication knowingly made or knowingly 

caused to be made by a party in violation of this subsection, 

the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the 

interests of justice and the policy of the underlying statutes, 

require the party to show cause why his claim or interest in 

the proceeding should not be dismissed, denied, disregarded, 

or otherwise adversely affected on account of such violation; 

and 

(E) the prohibitions of this subsection shall apply beginning 

at such time as the agency may designate, but in no case shall 

they begin to apply later than the time at which a proceeding 

is noticed for hearing unless the person responsible for the 

communication has knowledge that it will be noticed, in which 

case the prohibitions shall apply beginning at the time of his 

acquisition of such knowledge. 

2484 
applies to the Commission's adjudicative proceedings; including penalty 

proceedings conducted pursuant to section lOS.(d) of the Mine Act. 

As a comparison of Rule 82 and section 557(d) shows, both rules prohibit 

ex parte communication between a judge and a party regarding the merits of a 

pending case and also require that ex parte communications be placed on the 

public record. Our rules do not expressly define "ex parte communication." 

However, section 551(14), APA, defines the term as follows: 

"[E]x parte communication" means an oral or written communication 

not on the public record with respect to which reasonable prior 

notice to all parties is not given, but it shall not include 

requests for status reports on any matter or proceeding . . • 

At the very least, we think "merits of a case" embraces discussion of a case's 

issues and how those issues should or will be resolved. !:}_/ 

The rules against ex parte communications serve important goals essential 

to the integrity and fairness of Commission proceedings. As Congress explained 

in enacting section 557(d): 

The purpose of the provisions in the bill 

prohibiting ex parte communications is to insure 

that agency decisions required to be made on a 

public record are not influenced by private, 

off-the-record communications from those 

personally interested in the outcome. 

* * * 

In order to ensure both fairness and soundness 

to adjudication ••.. , the ... [APA] require[s] 

a hearing and decision on the record. Such hearings 

give all parties an opportunity to participate and 

to rebut each other's presentations. Such proceedings 

cannot be fair or soundly decided, however, when 

persons outside the agency are allowed to communicate 

with the decision-maker in private and and others are 

denied the opportunity to respond. 

1976 U.S. Code Legis. Hist. 2184, 2227. See also Raz Inland Navigation Co., Inc. 

v. ICC, 625 F.2d 258, 260 (9th Cir. 1980). The implications of the purposes 

mentioned by Congress are obvious: improper ex parte contacts may deny a 

party "his due process right to a disinterested and impartial tribunal." 

Rinehart v. Brewer, 561 F.2d, 132 (8th Cir. 1977). Diminishing public 

confidence in the affected tribunal is the likely and unacceptable result. 

These considerations are mirrored by the canons of judicial and professional conduct. Canon 3A(4), Code of Judicial Conduct, provides in 

relevant part: 

'§j Congress intended the phrase "merits of the proceeding," in sections 

551(14) and 557(d) to be broadly construed. See H. Rep. No. 94-880, Parts 

I & II, 94th Cong., 2d. Sess. 20 (Part I), 20 (Part II) (1976), reprinted 

in 1976[3] U.S. Code Cong. & Ad. News 2202, 2229 ["1976 U.S. Code Legis. 

Hist."]. 

2485 
A judge should accord to every person who is legally 

interested in a proceeding, or his lawyer, full right 

to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte 

or other communications concerning a pending or 

impending proceeding. 

Violation of this canon may so taint a proceeding as to mandate reversal. 

See Price Bros. Co. v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th 

Cir. 1980); Kennedy v. Great Atlantic & Pacific Tea Co., 551 F.2d 593, 

596-99 (5th Cir. 1977). 11 Similarly, Disciplinary Rule 7-llO(b) under 

Canon 7, Code of Professional. Responsibility, prohibits a lawyer from 

engaging in ex parte communications with a judge during an adversary 

proceeding. The gravity of a violation by an attorney is underscored 

by sections 556(e) and 557(d)(l)(D), APA, which permit agencies to 

remedy a violation by means as extreme as dismissal. 

We recognize that innocent or de minimis ex parte communications can, 

and do, occur. When ex parte communications occur, however, they shall 

be placed on the public record in accordance with appropriate procedure. 

In short, although as discussed above, it is not necessary to direct 

a disciplinary hearing in this case, we expect that the rules on ex parte 

communications will be respected in both letter and spirit and that judges 

and lawyers will avoid even the appearance of impropriety in these matters. 

A. E. Lawso , ornrnissioner 

~.wW~\~M~~ Marian Pearlman Nease, Commissioner 

11 We note that a judge may not indirectly engage in such communications 

through .contacts by his clerks or other employees with outside 

parties. Price Brothers, supra, 629 F.2d at 447; Kennedy, supra, 551 

F.2d at 596. 

2486 
Distribution 

Stephen A. Gorman, Esq, 

Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd. 

8500 Sears Tower 

Chicago, Illinois 60606 

Michael McCord, Esq. 

Office of the Solicitor 

U.S, Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Joseph Kennedy 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2487 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 6, 1981 

Docket Nos. BARB 77-266-P 

BARB 76X465-P 

JIM WALTER RESOURCES, INC. 

and 

COWIN AND COMPANY, INC. 

DECISION 

The issue presented in these cases is whether 30 CFR §77.1903(b) is 

a mandatory safety standard. Section 77.1903(b) provides: 

The American National Standards Institute, "Specifications For 

The Use of Wire Ropes For Mines," M 11.1-1960, or the latest 

revision thereof, shall be used as a guide in the use, selection 

and maintenance of wire ropes used for hoisting. 

For the reasons that follow, we hold that this standard imposes no 

mandatory duty on an operator. 

The events leading to the issuance of notices of violation of 

§77.1903(b) occurred on June 9, 1975. Cowin and Company, an independent 

contractor, was sinking a production shaft at Jim Walter Resources' 

Brookwood No. 4 Mine. One of the tugger ropes that operated a "clamshell" used in excavation broke. More than 1026 feet of wire rope fell 

to the shaft bottom, striking and killing a Cowin employee. 

After a hearing an administrative law judge determined that the 

notices of violation lacked the required specificity and deprived the 

respondents of reasonable notice as to the violation charged. The judge 

vacated the notices of violation and dismissed the petitions for assessment of a penalty. We reversed his decision because the operators had 

not demonstrated prejudice from the lack of specificity. In remanding 

for further proceedings, we also instructed the judge to address the 

threshold question of whether §77.1903(b) is a mandatory standard for 

which a civil penalty must be assessed if it is violated. 1 FMSHRC 

1827, 1830 (1979). 

On remand the judge held that whether or not §77.1903(b) is mandatory depends upon which ANSI standards are alleged not to have been used 

as a guide. 2 FMSHRC 1890 (1980). In the judge's view, if the underlying ANSI standards are mandatory, then §77.1903(b) is mandatory and a 

2488 

81-11-8 
penalty must be assessed for a violation thereof. The judge also held 

that if the underlying standards are advisory, as he concluded those 

referred to by the Secretary in these cases were, then §77.1903(b) is 

advisory and no penalties could be assessed. Accordingly, he vacated 

the notices of violation and dismissed the petitions for assessment of 

a penalty. 

On review of this decision, the Secretary argues that §77.1903(b) 

is a mandatory standard that at a minimum requires consultation with the 

specified ANSI standards. The purpose of this requirement, he asserts, 

"is to ensure a process 11 by which an operator, having consulted a leading national authority on the subject, will make an informed choice 

regarding selection and use of wire ropes. The Secretary urges that in 

the present cases the Commission need not decide whether §77.1903(b) 

requires that individual ANSI sections be followed. Rather, he submits 

that the Commission should hold that the operators here did not comply 

with even the minimum requirements of §77.1903(b) by not consulting the 

ANSI standards. The Secretary admits that "reasonable persons may 

differ as to whether a given ANSI standard is mandatory or advisory". 1./ 

He believes, however, that this fact supports his position, rather than 

detracts from it. In sum, the Secretary claims that the judge's interpretation of §T7.1903(b) renders the words "shall be used as a guide" 

"utterly superfluous." 

Jim Walter and Cowin argue that §77.1903(b) is advisory because it 

incorporates advisory industry standards. The operators rely on an 

introductory paragraph of the ANSI standards at issue which states: 

"The existence of [an ANSI] standard does not in any respect preclude 

anyone, whether he has approved the standard or not, from manufacturing, 

marketing, purchasing, or using products, processes, or procedures not 

conforming to the standard." The operators also argue "the frequent 

1:./ We agr~e with the Secretary that reasonable people can differ on 

whether a particular ANSI section is mandatory or advisory. The following 1960 ANSI standards, which were in effect at the time these notices 

were issued, and to which the Secretary referred in these cases, illustrate 

this problem: 

ANSI Standard 6.3.1.l states: 

It is essential that the tread diameters of sheaves and drums be 

liberal. The recommended diameters should be at least as large as 

those listed in Table 36, Column 1. It is inadvisable to operate 

with minimum diameters below those in Column 2. On large mine 

hoist installations using 6 x 19 rope, the head sheaves are sometimes set as high as 90 times the rope diameter. 

ANSI standard 5.2.1 states in part: 

Wire rope should be handled so that it is neither twisted nor 

untwisted. Care must be exercised in handling to avoid "kinking" 

of the wire rope .•. 

The difficulty of determining whether an ANSI section is mandatory or 

advisory has been alleviated somewhat by the 1980 revision of ANSI 

Standards For Wire Rope for Mine_§_, ANSI M 11.1-1980. The new ANSI 

standards generally use either "should" or "shall" and section 1.5 

provides: 

Mandatory and Advisory Rules. In this standard, the word "shall" 

is to be understood as denoting a mandatory requirement; the word 

"should" is advisory in nature and is to be understood as denoting 

a recommendation. 

2489 
use of terms such as 'should be', 'recommended', and 'advisable' throughout these [ANSI] sections" show that they are not mandatory. They 

further assert that mere incorporation of the "advisory" standards into 

§77.1903(b) can not change them from advisory to mandatory and that if 

the ANSI standards were intended to be mandatory, a substantive modification has occurred without resort to proper rulemaking procedures. 

They note that §77.1903(b) is unusual in containing the phrase "use[] as 

a guide" and argue that this shows an intent to maintain the ANSI standards 

as advisory. ]:/ Finally, Jim Walter and Cowin reject the Secretary's 

argument that the standard at least imposes a mandatory duty to consult 

the ANSI standards. They assert this requirement would be meaningless 

and unenforceable. For example, they note that two operators who employ 

identical wire rope practices would be subject to different enforcement 

treatment depending on whether they had "consulted" ANSI before implementing their practices. 

We hold that §77.1903(b) imposes no mandatory duty and, therefore, 

cannot be the basis for assessment of a civil penalty. The standard 

provides that ANSI standards "shall be used as a guide in the use, 

selection and maintenance of wire ropes used for hoisting." The phrase 

"shall be used as a guide" is, at best, ambiguous. It contains mandatory language, i.e., "shall be used", but the requirement imposed is use 

of ANSI standar~"as a guide". We believe that in common usage a 

"guide" is something less than a mandatory requirement to be followed. ].../ 

Although safety and health standards are to be construed liberally, any 

resultant interpretation must be reasonable in order to be upheld. 

~anna Mining Co., 3 FMSHRC 2045, 2048 (1981). In light of the ambiguous 

language of §77.1903(b) and the ambiguous nature of many of the underlying ANSI standards, we find the Secretary's attempt to derive an 

enforceable mandatory duty from the standard to be unreasonable. !±_/ 

The fault with the standard lies in its wording. It does not 

adequately inform an operator of a duty that must be met. This fault 

can easily be remedied by the Secretary through rulemaking and we urge 

him to do so. !!_/ This case emphasizes the need for mandatory standards 

for wire ropes. 

2/ Other regulations incorporate industry developed standards and 

require compliance with those standards rather than their "use as a 

guide." See,~. 30 CFR §§75.518-1; 77.506; 77.516, (National 

Electric Code); 30 CFR §§75.1101-7(a), 75.1103-2(b), 75.1107-3(b) 

(National Fire Code). 

3/ Webster's Third New International Dictionary (1971), provides that 

~"guide" is: "c. something (as a guidebook, signpost, or instruction 

manual) that provides a person with guiding information." 

!±_/ We agree with the Secretary that an operator's consultation with 

recognized authorities on safe work practices is desirable. Without a 

corresponding duty to implement suggested work practices after consultation, however, any desired safety return seems extremely tenuous 

when measured against the practicalities of enforcement. 

2/ We note that the Secretary may have already begun this process. On 

April 28, 1981, he announced his intention to revise the current wire 

rope standards and to include specific requirements for the installation, 

use, inspection, maintenance, and removal of wire ropes. 46 Fed. Reg. 

2389 (1981). We also note that the Secretary has solved similar problems 

with other standards through rulemaking. For example, 30 CFR §§55.19-

20, 56.19-20, and 57.19-20 formerly provided that the ANSI specifications 

at issue in this case "should be used as a guide." In a general revision, 

these standards were revoked and many other provisions were expressly 

made mandatory. 44 Fed. Reg. 48490 (1979). 

2490 
Accordingly, we affirm the judge's decision dismissing the petitions 

for assessment of penalties insofar as it is consistent with this opinion. 

Marian Pearlman Nease, Conunissioner 

2491 
Distribution 

Michael McCord, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

William H. Howe, Esq. 

Loomis, Owen, Fellman & Coleman 

2020 K Street, N.W. 

Washington, D.C. 20006 

Robert W. Pollard, Esq. 

Office of the Corporate Counsel 

Jim Walter Resources, Inc. 

P.O~ Box C-79 

Birmingham, Alabama 35283 

Administrative Law Judge George Koutras 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2492 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

COWIN AND COMPANY, INC, 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 6, 1981 

DECISION 

Docket Nos. HOPE 76-210-P 

HOPE 76-211-P 

HOPE 76-212-P 

HOPE 76-213-P 

This case was initiated under the Federal Coal Mine Health and 

Safety Act of 1969, 30 U.S. C. §801 ~ ~· (1976) (amended 1977)("the 

Coal Act"), We directed for review the question: Whether 30 CFR 

§77.1903(b) is a mandatory s~fety standard. 1_/ For the reasons 

expressed in our decision in Jim Walter Resources and Cowin and Company, 

FMSHRC (BARB 77-266-P, etc., November 6, 1981), we hold that it 

is not. 

We also reject the Secretary of Labor's claim that this question 

is not properly before us in this case. The Secretary asserts that 

Cowin did not challenge the mandatory nature of §77.1903(b) in its 

petition for review of the administrative law judge's first decision 

in this matter. Therefore, the Secretary argues that the issue of the 

validity of §77.1903(b) became final forty days after the judge issued 

his first decision and can not now be addressed. 30 U.S.C. §823(d). 

The Secretary also asserts that, in examining the issue, the Commission 

would exceed the scope of the remand from the Fourth Circuit. Cowin 

and Co. v. FMSHRC, 612 F.2d 838 (4th Cir. 1979). 

We do not believe the Fourth Circuit foreclosed consideration of 

whether §77.1903(b) is mandatory. In its decision, the Court stated, 

"[W]e think the administrative record should be reopened, to avoid any 

possible prejudice, for the submission of additional relevant evidence 

and arguments before Cowin's civil liability is determined and penalties 

can be assessed .... " 612 F.2d at 841. Because the Court's direction 

to remand allowed the administrative law judge to hear additional arguments, we find that Cowin properly raised the issue of the mandatory 

nature of the standard before the judge. In view of this, and because 

Cowin's petition for discretionary review presented the question of 

whether the standard is mandatory, that issue is properly before us on review. 

1/ Section 77.1903(b) provides: 

The American. National Standards Institute, "Specifications For 

The Use of Wire Ropes For Mines," M 11.1-1960, or the latest revision thereof, shall be used as a guide in the use, selection and 

maintenance of wire ropes used for hoisting. 

2493 

81-11-9 
Furthermore, in light of our decision in Jim Walter Resources, it would 

be manifestly unjust to refuse to reach the issue. To do so would mean 

that Cowin would be assessed penalties totalling $16,000 for violating a 

standard that we have found imposes no mandatory duty. 

Accordingly, the decision of the administrative law judge is 

reversed and the petitions for assessment of penalties are dismissed. 

/ 

c: 

2494 
Distribution 

William H. Howe, Esq. 

Loomis, Owen, Fellman, & Coleman 

2020 K Street, N.W. 

Washington, D.C. 20006 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Joseph Kennedy 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2495 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

KERR-McGEE CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 6, 1981 

Docket No. CENT 79-156-M 

DECISION 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §801 ~· ~· (Supp. III 1979). The 

administrative law judge concluded that Kerr-McGee Corporation had 

violated 30 CFR §57.15-5, a mandatory safety standard, and assessed a 

penalty. l./ The major issue before us is whether the judge erred in his 

interpretation of section 57.15-5, which provides in relevant part: 

Safety belts and lines shall be worn when men work where there is 

danger of falling ...• 

For the reasons that follow, we affirm the judge's decision. 

The citation was issued following an investigation of a fatal fall 

accident at Kerr-McGee's uranium mine near Gallup, New Mexico. The 

accident occurred in a partially completed vertical shaft that was 1,471 

feet deep and 14 feet in diameter. Kerr-McGee intended to use the shaft 

for hoisting muck and supplies. In the floor of the shaft was a borehole approximately 3 feet in diameter and extending 54 feet below the 

shaft floor to a slusher passageway underneath. The borehole's opening 

in the floor was blocked by a plug. When miners working in the shaft 

needed to remove the muck that typically accumulated on the shaft floor, 

they raised the plug and swept the muck down the borehole. The plug was 

raised and lowered by attaching it to the sinking bucket used to transport 

the men and materials. 

On the day of the accident, two miners were installing wire mesh on 

the shaft ribs near the bottom of the shaft. At one point, they needed 

to sweep out some muck on the shaft floor. The lead miner climbed into 

the bucket in order to hoist the borehole plug. He tossed a 20-foot 

long cable to the other miner, the victim. The victim fastened one end 

of the cable to the mesh on the shaft ribs, and attached the other end 

of the cable to the D-ring of his safety belt. He intended to use the 

l/ The judge's decision is reported at 2 FMSHRC 3190 (1980). 

2496 

81-11-11 
cable as a safety line while he stood on the floor of the shaft and 

swept the muck down the borehole. J:/ 

While the victim was standing on the floor next to the rib, the 

plug was raised approximately two feet. Because the borehole was 

located off-center in the shaft floor, the plug swung when it was 

raised, causing the lead miner to lose sight of the victim. Subsequently, the lead miner peered over the side of the bucket and 

observed the victim's safety line hanging in the borehole. Neither the 

wire mesh nor the cable had broken, but the D-ring of the victim's 

safety belt had torn loose and remained attached to the end of the 

cable. The cable extended 9.5 feet into the borehole. The victim's 

body was recovered in the slusher passageway 54 feet beneath the shaft 

floor. 

The judge found that the operator had supplied the victim with a 

safety belt and line, but upheld the citation because the victim had not 

used the equipment in a manner that would have prevented the 9.5-foot 

fall down the b'orehole. 2 FMSHRC at 3191-92. The judge indicated that 

the proper way to use a long safety line is to tie it off to a shorter 

length. Id. at 3192. In essence, the judge concluded that section 

57.15-5 requires that safety belts and lines be used in a safe manner. 

Kerr-McGee argues on review that the standard literally requires operators only to supply miners with safety belts and lines. It apparently 

concedes, however, that the belts and lines supplied must be defectfree. Reply br. 5. Kerr-McGee contends that it complied with the 

standard's mandate by supplying the victim with a defect-free belt and 

line. We do not agree. 

We first construe the general meaning of section 57.15-5. As 

contrasted with more <let.ailed regulations, it is the kind made simple 

and brief in order to be broadly adaptable to myriad circumstances. From 

an operator's standpoint, one benefit of this flexible regulatory 

approach is that it affords considerable leeway in adapting safety 

requirements to the variable and unique conditions encountered in 

different mines. Although a literal reading of the standard might 

suggest that compliance is achieved whenever a miner wears any kind of 

line in any manner, such an interpretation is inconsistent with the 

purposes of the Part 57 regulations and this standard in particular. 

30 CFR §57.1 describes the purpose of the Part 57 regulations as 

"the protection of life, the promotion of health and safety, and the 

prevention of accidents •••• " Consistent with that general aim, the 

specific purpose of section 57.15-5 is the prevention of dangerous 

falls. Dangerous falls will not be prevented if defective belts and 

lines are worn or if even good equipment is used in an unsafe manner. 

For example, common sense suggests that a well constructed 15-foot 

J:/ Kerr-McGee constructed this cable as well as the other cables and 

safety lines used at its mine. The standard length for cables that 

Kerr-McGee identified as "safety lines" was 10 to 15 feet. The cable 

involved here, however, was 20 feet in length and had been used to tie 

down bundles of wire mesh and transport equipment up and down the 

shaft. Kerr-McGee's cables were all made of the same material, were the 

same color, and were not specifically labeled to distinguish the safety 

lines. 

2497 
safety line is not going to supply adequate protection for a miner 

working above a 10-foot dropoff, Therefore, we hold that the "shall be 

worn" language of the standard necessarily means worn safely and properly. 

There is no dispute that the victim was wearing an approved safety 

belt and a 20-foot cable he intended to use as a safety line. Therefore, 

the primary question is the manner in which he used the equipment. We 

begin our analysis by examining whether, given the language of the 

standard, there was a "danger of falling'·'. 

When the victim tied off the cable on the ribs of the shaft, he was 

working on the shaft floor which was covered with muck. He was preparing 

to sweep muck down the borehole in the shaft floor. Once the blocking 

plug was hoisted from the borehole, he would be working in proximity to 

the open borehole. Under these circumstances, we find that the "danger 

of falling" he faced was slipping or otherwise losing his balance in the 

muck and falling down the open 54-foot long borehole. This danger is 

underscored by the facts that the borehole was kept plugged, obviously 

in part to prevent falls down the hole, and that the victim tied himself 

off just prior to the raising of the plug. 

Since the miner's actual accident does not ipso facto prove a 

violation, our focus regarding safe use is on the adequacy of what the 

miner did when faced with this danger of falling. The victim tied himself off in a manner that permitted a possible 9.5 foot fall into the 

borehole. The uncontroverted evidence in this cas~ establishes that 

long falls subject the person involved, the safety line and belt, and 

all attachment or anchorage points to great stress, and that a 9.5-foot 

fall was too long to be considered safe. 2 FMSHRC at 3191-2; Tr. 26, 

31, 34-6, 61, 95-5, 103. For example, this evidence specifically showed 

that the victim's safety belt had been designed and laboratory tested to 

withstand three successive drops of a 250-pound rigid weight free falling 

a distance of 6 feet. 2 FMSHRC at 3192; Tr. 34-6. When the miner tied 

himself off in a manner that permitted a possible 9.5 foot fall into 

the borehole, he created a situation in which such a fall would produce 

a stress vi~tually meeting, if not exceeding, the performance standards 

of the safety belt. 11 We therefore agree with the judge that the 

equipment was not used safely because the line was not shortened 

sufficiently by tying off to prevent a hazardously long fall. !!_/ 

11 Kerr-McGee presented mathematical calculations that since the 

victim weighed 155 pounds, the belt should have been able to withstand 

a free fall of 9. 68 feet. 2 FMSHRC at 3192. As the judge pointed out, 

following this mathematical approach to its logical conclusion, the 

victim's tying off in such a manner that a 9.5 fall was possible would 

leave him a theoretical safety margin of .18 of a foot,_!_.~., 2.16 

inches, under laboratory conditions. Id. Assuming the accuracy of 

these calculations, we observe, however, that the calculations overlook 

the additional stress created by the weight of his clothing, equipment, 

and, indeed, the safety line itself. We further note that mines are 

not laboratories and miners are not experimental "rigid weights." A 

.18-foot theoretical "safety margin" is probably non-existent under conditions of actual use, where the hazards of mine work militate against 

subjecting such equipment to its absolute laboratory limits. 

!!_/ We note that Kerr-McGee's general mine foreman at the mine where 

the accident occurred testified that the failure to shorten the cable 

(Footnote continued) 

2498 
Kerr-McGee argues that even if the miner used the equipment unsafely, 

it was not responsible for his actions and therefore should not be held 

liable for any violation. However, the Mine Act, like the 1969 Coal 

Act, provides for the imposition of liability without regard to fault. 

El Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-9 (1981). Therefore, the 

judge correctly pointed out that fault is properly a matter for the 

penalty assessment stage of proceedings under the Mine Act. Cf. Nacco 

Mining Co., 3 FMSHRC 848, 849-51 (1981), and authorities cited(holding, 

in a 1969 Coal Act case, that a foreman's aberrant conduct, while imputable to operator for liability purposes, may be considered in weighing 

the operator's "negligence"). 

In any event, Kerr-McGee is not entirely blameless with regard to 

the miner's unsafe use of the equipment. The cables used by Kerr-McGee 

for hoisting materials or tying down bundles of mesh were identical in 

appearance to the cables used as safety lines, differing only in their 

length. Thus, it is not surprising that, as happened here, a hoisting 

cable exceeding the 10 to 15 foot designated length for safety lines 

was used as a safety line. 'i/ 

fn. !±._/ continue 

was unsafe use: 

Q. Mr. Eroh, is it your opinion that the fashion in which [the 

victim] used the 20-foot cable sling was improper? 

A. Yes. 

Q. So if he would have doubled it and made it 10 feet long that, 

in your opinion, would be proper? 

A. For that particular cable. 

Tr. 121 (recross-examination by the Secretary). 

:;Jj We further note that the judge's statement regarding the tying off 

of long lines is not necessarily a panacea. The standards of the 

American National Standards Institute indicate that a knot in a rope 

reduces the rope's strength by 50%. Tr. 34. Repeated tying off of long 

lines may also result in structural damage to the lines. 

2499 
For the foregoing reasons, we affirm the decision of the judge. !!__/ 

Marian Pearlman Nease, Connnissioner 

!!_/ Kerr-McGee raises substantial evidence objections on the liability 

issue that are beside the point given our analysis. Kerr-McGee argues 

that the Secretary failed to establish the causes of the miner's fall 

and of the failure of the belt. It contends that the central conclusions 

relating to the fall are mere speculations since no one actually witnessed 

the accident. Kerr-McGee hypothesizes that the broken attachment ring 

on the belt could have been caused by impact against sharp rocks in the 

borehole or shaft. The innnediate causes of the fall and belt failure do 

not go to the essence of the violation--that the line was not sufficiently 

and safely tied off to prevent a dangerous fall into the borehole. 

Thus, the judge's and our decisions mean that a violation occurred once 

the line was improperly tied off, regardless of whether the miner actually 

proceeded to fall into the borehole. 

2500 
Distribution 

Carolyn G. Hill, Esq. 

Kerr-McGee Center 

P.O. Box 25861 

Oklahoma City, Oklahoma 73125 

George W. Kozeliski 

Glascock, McKim and Head 

P.O. Box 1059 

Gallup, New Mexico 87301 

Michael McCord, Esq. 

Linda Leasure, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Jon Boltz 

FMSHRC 

333 West Colfax Ave. 

Denver, Colorado 80204 

2501 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 12, 1981 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MID-CONTINENT COAL AND COKE COMPANY, 

Respondent 

Docket Nos. 

DECISION 

DENV 76-83-P 

DENV 76-84-P 

DENV 76X99-P 

DENV 76Xl00-P 

IBMA 77-14 

This penalty proceeding arises under section 109 of the Federal Coal 

Mine Health and Safety Act of 1969, 30 U.S.C. § 801-960 (1976)(amended) 

1977) (the Act). After an evidentiary hearing and decision by an administrative law judge, Mid-Continent Coal and Coke Company appealed the 

judge's finding of a violation with respect to one order and five notices 

issued by the Mining Enforcement and Safety Administration (MESA).l/ 

For the reasons stated below, we vacate Notice No. 5-105 (2-RLM) and affirm 

the judge's decision as to the remaining order and notices._~/ 

l/Order No. 5-073-C (1-RLM) dated April 8, 1975 

- Notice No. 5-083 (1-RLM) dated April 24, 1975 

Notice No. 5-085 (3-RLM) dated April 24, 1975 

Notice No. 5-105 (2-RLM) dated June 5, 1975 

Notice No. 5-214 (7-LBL) dated October 2, 1975 

Notice No. 5-219 (4-LBL) dated October 3, 1975 

2/0n March 8, 1978, this case was pending on appeal before the Secretary 

of Interior's Board of Mine Operations Appeals under the 1969 Act. This 

appeal is before the Commission for disposition under section 301 of 

the Federal Mine Safety and Health Amendments Act of 1977, 30 U.S.C. § 961 

(Supp. III 1979). MESA's enforcement responsibilities were transferred to 

the Department of Labor's Mine Safety and Health Administration (MSHA), 

and MSHA is substituted as the petitioner in this appeal. 

81-11-14 

2502 
Order No. 5-073-C (1-RLM), April 8, 197~ 

This order alleged a violation of 30 CFR 75.308 in that the quantity 

of air reaching the working face of No. 1 entry was inadequate to maintain 

the methane below 1.0 percent.3/ Mid-Continent does not dispute the readings taken by MESA showing 1 or more percent of methane at the working face 

but state they check the face for methane after each cutting and, if 

methane in excess of one percent is found, they cut the power, wing the 

curtain to increase the air to clear the methane and recheck the face. 

While this is continued throughout the working day, Mid-Continent acknowledges 

this procedure to be only a temporary solution. 

The record clearly shows that the changes or adjustments made by 

Mid-Continent do not maintain the methane content at the level required 

by the regulation. According, we affirm the judge in finding a violation 

as alleged. 

Notice No. 5-083 (1-RLM), April 24, 1975 

This notice asserts a violation of 30 CFR 75.308 )j because a 

continuous miner was not deenergized immediately when the methane monitor 

on the continuous miner indicated more than 1 percent methane. 

]/30 CFR 75.308 provides: Methane accumulations in face areas. "If at 

any time the air at any working place, when tested at a point not less 

than 12 inches from the roof, face, or rib, contain 1.0 volume per 

centum or more of methane, changes or adjustments shall be made at once 

in the ventilation in such mine so that such air shall contain less 

than 1.0 volume per centum of methane. While such changes or adjustments 

are underway and until they have been achieved, power to electric face 

equipment located in such place shall be cut off, no other work shall be 

permitted in such place, and due precautions shall be carried out under 

the direction of the operator or his agent so as not to endanger other 

areas of the mine. If at any time such air contains 1.5 volume per 

centum or more of methane, all persons, except those referred to in 

section 104(d) of the Act, shall be withdrawn from the area of the mine 

endangered thereby to a safe area, and all electric power shall be cut 

off from the endangered area of the mine, until the air in such working 

place shall contain less than 1. 0 volume per centum of methane. [Emphasis 

supplied]. 

30 CFR 75.308-1 provides: "The "changes or adjustments" which shall be 

made in the ventilation means increasing the quantity or improving the 

distribution of air in the affected working place to the extent sufficient 

to reduce and maintain the methane content less than 1.0 volume per centum 

when operations are resumed." [Emphasis supplied]. 

250~3 
The facts are undisputed. Approaching the face of a crosscut, both 

the inspector and respondent's superintendent observed a continuous miner 

backing away from the face with the amber light on its methane monitor 

glowing. The glowing light indicated the presence of over 1 percent 

methane. The superintendent proceeded to the face and took two methane 

readings before ordering the continuous miner deenergized. 

We interpret 30 CFR 75.308 and its statutory authority, section 

303(h)(2) of the Act, to require electric face equipment in a working 

place be deenergized immediately when 1 percent or more of methane is 

detected in such working place. After such methane accumulation had 

been detected by the methane monitor here, to continue an ignition 

source while rechecking the monitor's reading was a violation of the 

regulation alleged. The judge is affirmed. 

Notice No. 5-085 (3 RLM), April 24, 1975 

This notice was issued alleging a violation of 30 CFR 75.316 !±_/ 

because of insufficient ventilation at a working face. The air movement 

was not sufficient to measure by using an anemometer. Respondent admitted 

that the quantity of air was not sufficient to permit mining operations, 

and that their ventilation plan required 15,000 cubic feet per minute, 

but only when coal was being cut, mined or loaded. Respondent argued 

that, at the time the notice was issued, a break-through had just been made, 

the continuous miner had been backed out preparatory to cleaning up the 

crosscut and reestablishing ventilation at which time there was no cutting, 

mining or loading coal to be in violation of their ventilation plan and 

30 CFR 75.316. 

The parties do not dispute that the requirements of a duly adopted 

ventilation plan are generally enforceable under the Act. Ziegler Coal 

Company, 4 IBMA 30, aff'd 536 F.2d 398, 409 (D.C. Cir.)(April 22, 1976). 

Here, the area cited was a working face, the continuous miner had just 

backed away from the face to allow the crosscut to be cleaned up and 

ventilation reestablished for further cutting in the production of coal. 

A temporary halt in cutting, mining or loading to permit other mining 

activities in preparation for further mining and production does not 

interrupt the ventilation requirements of 30 CFR 75.316. To hold otherwise 

would allow unsafe conditions, as in this instance, to escape sanction 

unless the operator were caught in the act of cutting, mining or loading. 

The judge's finding of violation is affirmed. 

!±_/30 CFR 75.316 provides: "A ventilation system and methane and dust 

control plan and revisions thereof suitable to the conditions and the 

mining system of the coal mine and approved by the Secretary shall be 

adopted by the operator and set out in printed form on or before June 28, 

1970. The plan shall show the type and location of mechanical ventilation equipment installed and operated in the mine, such additional or 

improved equipment as the Secretary may require, the quantity and velocity 

of air reaching each working face, and such other information as the 

Secretary may require. Such plan shall be reviewed by the operator and 

the Secretary at least every 6 months." 

2504 
Notice No. 5-105 (2-RLM), June 5, 1975 

This notice alleged a violation of 30 CFR 70.201 !l) in that respondent 

did not collect an accurate respirable dust sample from one of its employees. 

The respirable dust pump was not operating properly as it had no flow rate. 

Mid-Continent argued that the pump was properly maintained, that it was 

operating properly when issued to the employee and that any mechanical 

malfunction, not attributed to its negligence, does not constitute a 

violation. 

We vacate this notice. See our decision in V and R Coal Company, 

3 FMSHRC ----• (Nov. 14, 1981). 

Notice No. 5-214 (7-LBL), October 2, 1975 

This notice was issued alleging a violation of 30 CFR 77.401(3)(c) &._/ 

when the inspector observed a worker in the shop operating a grinding 

wheel without wearing a face shield or goggles. The worker was wearing 

ordinary eye glasses with safety lenses which did not cover or protect 

the peripheral area of the eyes. Goggles were readily accessible to the 

worker and the foreman was present in the shop but made no attempt to 

warn or caution the worker concerning the use of goggles. Mid-Continent 

contended thatthere was no violation because the worker was wearing 

eye glasses with safety lenses and the worker's failure to wear the goggles 

provided was negligence of the worker and not a violation of the regulation 

by Mid-Continent. 

We agree with the judge that ordinary eye glasses with safety lenses 

do not provide as much protection for the peripheral area of the eyes as 

would face shields or goggles required by the regulation. Further, the 

foreman was present hut made no attempt to cause the worker to wear his 

goggles.l_/ The judge's finding of a violation under these facts is affirmed. 

5/30 CFR 70.201 provides: ''Each operator of a coal mine shall, as prescribed 

In this Part 70, take accurate samples of the amount of respirable dust in 

the mine atmosphere to which each miner in the active workings of such mine 

is exposed." 

6/30 CFR 77.401(3)(c) provides: "Face shields or goggles, in good condition 

shall be worn when operating a grinding wheel." 

l_/Mid-Continent's argument relying on North American Coal Corp., 3 IBMA 93 

(1974) is rejected. See United States Steel Corp., 1 FMSHRC 1306, 1307 at 

n3 (Sept. 17, 1979). 

250f) 
Notice No. 5-219 (4-LBL), October 3, 1975 

The inspector issued a notice of violation of 30 CFR 77.1710(a) !}_/ 

when he observed a worker in the shop using a cutting torch to cut holes 

in a 55 gallon drum without wearing protective goggles or a face shield. 

Protective goggles were hanging on one of the acetylene tanks connected 

to the torch. The worker's foreman was just a few feet away when the 

violation occurred but made no attempt to warn or cause the worker to 

use goggles. 

Mid-Continent contended that there was no violation because the worker 

was wearing eye glasses with safety lenses and failure to wear the readily 

available safety goggles was negligence of the worker and not a violation 

of the regulation by Mid-Continent. 

For the same reasons accepted and stated in the notice immediately 

above, we find that ordinary eye glasses with safety lenses do not meet 

the requirement of face-shields or goggles of 30 CFR 77.1710(a). Further, 

the defense relying on North American Coal Corp., supra, is rejected for 

the reason stated in United States Steel Corp., supra, 1 FMSHRC at 1307, 

n3. The judge is affirmed. 

Accordingly, Notice No. 5-105 (2-RLM) June 5, 1975 is vacated. The 

decision of the administrative law judge in each remaining order and 

notice on appeal in these proceedings is affirmed. 

\\Q'-w_u qQo\ru !\loJu2 

Marian Pearlman Nease, Commissioner 

!}_/30 CFR 77 .1710 (a) provides: "Protective clothing or equipment and 

face-shields or goggles shall be worn when welding, cutting, or working 

with molten metal or when other hazards to the eyes exists." 

2506 
Distribution 

Robert Delaney, Esq. 

Edward Mulhall, Jr., Esq. 

Delaney & Balcomb 

Drawer 790 

818 Colorado Avenue 

Glenwood Springs, Colorado 81601 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

2507 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 13, 1981 

on behalf of JOHNNY N. CHACON, 

v. Docket No. WEST 79-349-DM 

PHELPS DODGE CORPORATION 

DECISION 

This case involves section lOS(c)(l) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §801 ~ ~· (Supp. III 1979), and raises 

questions concerning the burdens.of proof in discrimination cases 

previously enunciated in Fasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(1980), rev'd on other grounds, No. 80-2600 (3d Cir. Oct. 30, 1981), and 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981). '};_/ For the 

reasons that follow, we hold that the judge erred in finding a violation 

and reverse his decision. 2/ 

I. 

The Secretary filed a discrimination complaint on behalf of Johnny 

Chacon on August 20, 1979, and a hearing was held on April 16, 1980. At 

the time of the hearing, Chacon had been employed as a locomotive operator at Phelps Dodge's Morenci Branch open pit copper mine for approximately 10 years. Chacon became a union safety committeeman in 1977, and 

vice-chairman of the union in January 1979. His duties as vice-chairman 

included handling grievances. Chacon customarily presented safety 

complaints of union members to management and apparently was the first 

union representative to take complaints to MSHA. Chacon testified that 

he drafted a letter complaining of a problem with signals that was 

signed by the local union chairman and sent to MSHA in December 1978. 

In addition, on January 31, 1979, Chacon delivered to Phelps Dodge's 

management a grievance signed by him and approximately 71 other union 

members complaining of unsafe and improper maintenance of cabooses. 

Chacon participated in safety grievance meetings concerning this complaint on February 7-8, 1979. Chacon sent a letter concerning the 

cabooses to MSHA on about February 21, 1979, after the allegedly 

retaliatory acts in this case. 

1_/ The Court of Appeals did not discuss the underlying discrimination 

analysis and burdens of proof that we formulated in our Fasula decision, 

but rather, on evidentiary grounds, held that the miner had been dis-· 

charged for engaging in unprotected activity. Because the Court neither 

approved nor disapproved our Fasula analytical tests, its decision does 

not affect our application of these tests in the present case. 

]:_/ The judge's decision is reported at 2 FMSHRC 1271 (1980). 

2508 81-11-15 
On February 5, 1979, Chacon derailed a train on a bench track l/ 

and the next day received a written warning over the incident for 

"excessive speed" under a "slow order." The normal maximum speed for 

trains on bench track at the mine is 15 m.p.h.; a "slow order" is a 

notice written on a chalk board indicating that conditions require 

slower speeds. No maximum speed was set in the slow orders involved in 

this case. The February 6th warning, which was placed in Chacon's 

employment file, stated that any repetition would subject Chacon to a 

"more severe penalty. 11 Six days later, on February 12th, Chacon again 

derailed a train and was suspended from work without pay for three days 

for "excessive speed on slow order track .... " Chacon filed grievances 

with respect to both the warning and the suspension; management rejected 

his complaints. 

The judge found that Phelps Dodge illegally retaliated against 

Chacon for protected activity by placing the written warning in his 

employment file and then suspending him for three days without pay. The 

judge ordered Phelps Dodge to expunge the warning and any references to 

the suspension from Chacon's file and to pay him three days' wages with 

interest. The judge also assessed a civil penalty of $2,500. 

II. 

We first analyze whether the judge properly found that the Secretary 

made out a prima facie case of a violation of section 105(c)(l). 4/ In 

Pasula, we held that a prima facie case is established: 

... if a preponderance of the evidence proves (1) that 

[the miner] engaged in a protected activity, and (2) that 

the adverse action was motivated in any part by the protected activity. 

2 FMSHRC at 2799. 

}j A bench is a ledge, or step, in the bank of an open pit mine. Along 

the Morenci pit benches, Phelps Dodge uses temporary, moveable track 

panel referred to as "bench track." 

!:±./ The judge issued his decision before we decided Pasula. Adapting a 

discrimination test for the 1977 Mine Act from the D.C. Circuit's 

description in Phillips v. IBMOA, 500 F.2d 772, 779 (1974), cert. 

Eenied, 420 U.S. 938, of a prima facie case under the 1969 Coal Act, the 

judge described the elements of proof that he believed the Secretary or 

miner must meet: The miner has engaged in protected activity; adverse 

action has occurred; and the adverse action "was motivated in at least 

significant part 11 by the protected activity. 2 FMSHRC at 1281. This 

formulation differs from our test in Pasula in that we determined that a 

prima facie case requires only a showing that the adverse action was 

motivated "in any part" by protected activity. Although this is an 

important distinction, the judge found that the Secretary had satisfied 

a stricter standard. Accordingly, the showing required by Pasula was, 

in effect, satisfied as well in the judge's mind. The judge also 

countenanced the presentation of an affirmative defense. He stated that 

the operator may present legitimate reasons, or "justification," for the 

punitive action alleged to be retali.atory. Id. at 1283-84. This comports 

generally with the defense available to operators pursuant to our decisions 

in Pasula and Robinette, 2 FMSHRC at 2799-2800; 3 FMSHRC at 818 n. 20. In 

sum, because the judge applied an analysis that is a functional analogue 

of our Pasula test, we believed that a remand for application of the 

latter test would be pointless. 

2509 
The first element of a prima facie case is a showing that protected 

activity occurred. The judge found that Chacon "as a representative of 

miners--not just [as] a miner-- ... filed and made complaints under the 

Act, including complaints notifying the operator of alleged dangers and 

safety and health problems and ... ,as a union representative on behalf 

of other miners, made such reports both to the mine operator and the 

government agency charged with enforcing the Act." 2 FMSHRC at 1280. 

That Chacon was a safety committeeman and presented safety complaints to 

management is not disputed. Substantial evidence also supports the 

finding that he played an important role in making safety complaints to 

MSHA. There is no question that the complaints to MSHA were protected 

activity. Furthermore, Chacon's safety complaints to management were 

also protected activity. In relevant part, section 105(c)(l) broadly 

protects the "fil[ing] or ma[king] [of] a complaint under or related 

to [the] Act, including a complaint notifying the operator •.. of an 

alleged danger or safety or health violation" (emphasis added). Thus, 

we conclude that the first element was established. 

The second element of a prima facie case is a showing that adverse 

action was motivated in any part by protected activity. Direct evidence 

of motivation is rarely encountered; more typically, the only available 

evidence is indirect. As the Eighth Circuit, for example, has analogously 

stated with regard to discrimination cases arising under the National 

Labor Relations Act: 

It would indeed be the unusual case in which the 

link between the discharge and the [protected] activity 

could be supplied exclusively by direct evidence. Intent 

is subjective and in many cases the discrimination can 

be proven only by the use of circumstantial evidence. 

Furthermore, in analyzing the evidence, circumstantial 

or direct, the [NLRB] is free to draw any reasonable inferences. 

NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 1965). 

In the present case, the judge found discrimination on the basis of 

the following circumstantial indicia of discriminatory intent: knowledge 

of protected activities; hostility towards protected activity; coincidence 

in time between the protected activity and the adverse actions; and 

disparate treatment of Chacon. We examine each of these indicia below. 

The operator's knowledge of the miner's protected activity is 

probably the single most important aspect of a circumstantial case. 

Because subjective factors are involved, the operator's knowledge--like 

the overall question of motivation itself--can be proved by circumstantial evidence and reasonable inferences. Cf. NLRB v. Long Island 

Airport Limousine Serv., 468 F.2d 292, 295 (2d-Cir-:-i9"72). We agree 

with the judge that there is substantial direct and indirect evidence of 

Phelps Dodge's knowledge of Chacon's protected activity. 

2510 
As the judge found (2 FMSHRC at 1279, 1280), Chacon customarily 

presented safety complaints to management as the union safety committeeman and, on January 31, 1979 (shortly before his warning and suspension), 

delivered to Phelps Dodge a safety grievance signed by him and 71 other 

miners. This protected activity obviously supplied knowledge of his 

leading role in this area and Phelps Dodge does not contend otherwise. 

We also agree with the judge that Phelps Dodge knew of Chacon's 

complaints to MSHA. As the judge found, superintendent Olson revealed 

his awareness of Chacon's activity at a grievance meeting in December 

1978, shortly after safety complaints were sent to MSHA. 2 FMSHRC at 

1279. At the beginning of that safety grievance meeting, which was 

attended by Chacon and another representative of the union, Olson 

angrily objected to the sending of safety complaints to MSHA. Tr. 58-

59, 173. Although Olson denied knowing who contacted MSHA, he expressed 

his disapproval to Chacon and it is reasonable to infer from Olson's 

testimony that his comments were directed toward Chacon. Tr. 168-169. 

Hostility towards protected activity--sometimes referred to as 

"animus"--is another circumstantial factor pointing to discriminatory 

motivation. Cf. NLR~ v. Superior Sales, Inc., 366 F.2d 229, 233 (8th 

Cir. 1966). The more such animus is specifically directed towards the 

alleged discriminate:e' s protected activity, the more probative weight it 

carries. We agree with the judge (2 FMSHRC at 1277, 1279, 1280) that 

Olson's angry remarks to Chacon about the MSHA complaints, discussed 

above, display a specific hostility towards Chacon' s protected activity. 

The judge also properly relied on coincidental timing as another 

indication of illegal motive. Cf. NLRB v. Long Island Airport Limousine 

Service, C22J?_., Lf68 F. 2d at 29 5-296. Chacon received the warning on 

February 6th, within one and one-half montl1s after MSHA was contacted. 

The suspension on February 12th occurred only four days after Chacon 

participated in safety grievance meetings resulting from a complaint 

signed by 72 employees. 

We hold that the substantial evidence of protected activity, 

knowledge, specific hostility, and coincidental timing present here make 

out a prima facie case that the adverse actions against Chacon were 

motivated, at least in part, by discriminatory reasons. The most persuasive 

aspect of this evidence is Chacon's leading role in the protected 

activity; as the judge found (2 FMSHRC at 1279), "Chacon had created a 

change in the force with which safety complaints were being handled by 

the local union." The warning and susp.ension occurred after the "change 

in force." Adverse action under circumstances of suspicious timing 

taken against the employee who is the leading figure in protected 

activity casts doubt on the legality of the employer's motive since such 

conduct is the classic method of undermining protected activity. Cf. 

NLRB v. _Fremont Mfg. Co., Inc., 558 F.2d 889, 891 (8th Cir. 1977). This 

is not to say that the preceding factors will always make out a prima 

facie case, but here we find them present in a combination adequate to 

support a reasonable inference of partially unlawful motivation. 

2511 
In addition to the evidence discussed above, in finding a prima 

facie case the judge relied heavily upon what he regarded as Phelps 

Dodge's "disparate treatment" of Chacon. 2 FMSHRC at 1273-76, 1282. 

While, in general, disparate or inconsistent treatment is an indirect 

factor often indicative of discrimination (Cf. NLRB v. Melrose 

Processing Co., 351 F.2d at 698), we find that there is not substantial 

evidence of disparate treatment on this record. 

The judge's disparate treatment finding rests on data concerning 

the frequency of derailments and of resulting discipline at Phelps 

Dodge. This data, provided in answers to interrogatories, shows that 

derailments were common occurrences: 1,082 derailments occurred in 

1977; 1,164 in 1978; and 77 in the month of September 1979. In 1977, no 

warnings were given to engineers for derailments as a result of excessive 

speeds. In 1978, four warnings were given to engineers for excessive 

speed; three of the warnings do not indicate either speed prior to, or 

the extent of damage from, the derailment. In the first 9 months of 

1979, Phelps Dodge's records show three warnings for excessive speed 

issued after Chacon's. Two warnings specified speeds of 15 and 20 

m.p.h., respectively, and indicated damage "to track and locomotive" and 

"tore up 7 or 8 panels"; the third warning did not show speed or damage. 

The judge also noted that during 1976, 1977, 1978, and 1979 only one 

employee other than Chacon was suspended for operating at excessive 

speeds, and the speed and damage were not recorded. In that 4-year 

period, 6 locomotive engineers, including Chacon (seen. 7 below), were 

suspended for reasons other than excessive speed, but relating to operation. On the basis of the foregoing evidence, the judge concluded that 

Chacon was subjected to "disparate treatment." 

Typical forms of disparate treatment are encountered where employees 

guilty of the same, or more serious, offenses than the alleged discriminatee 

escape the disciplinary fate which befalls the latter. The Secretary 

did not show either that other engineers similarly caused excessive 

speed derailments resulting in damage--Chacon's alleged misconduct--but 

escaped discipline, or that other engineers guilty of other equally or 

more grave offenses received less or no discipline. The fact that many 

derailments occurred does not by itself prove that they were caused by 

excessive speed or operational misconduct. We cannot accept the judge's 

implicit assumption (2 FMSHRC at 1282) based on the mere volume of 

derailments that significant numbers involving excessive speed or other 

operator error and serious damage occurred. On the contrary, the judge 

found elsewhere in his decision that: 

Derailments are common occurrences at the Morenci Mine ..•• 

Locomotive engineers experience a derailment at the rate of 

approximately one per month. Derailments can occur at slow 

speed as well as high speed because of defects in the rails, 

the track generally, or the equipment. (Emphasis added). 

2 FMSHRC at 1273-1274. 

We emphasize that Phelps Dodge admitted at trial (Tr. 102-103, 185-

187) that mere derailments with resultant damage, unless caused by 

operator error, would not ordinarily result in discipline. The raw data 

provided does not show how many derailments resulted from excessive 

speed or related factors; hence, from all that appears in the record, 

2512 
derailments caused by operator error may well have been relatively rare 

occurrences. On the other hand, the record does show that in 1978 and 

the first nine months of 1979, seven other engineers received excessive 

speed warnings; between 1976 and 1979, one other engineer was suspended 

for an excessive speed derailment, and five were suspended for operational infractions, such as running red lights. There is no evidence 

that engineers who had excessive speed derailments causing serious 

damage, or who were involved in similar incidents, escaped discipline. 

_5/ 

In the foregoing context, Chacon 1 s discipline is not facially 

anomalous. Hence, we cannot conclude that the data shows or supports 

the inference that Chacon's treatment was inconsistent with company 

practice. On the contrary, we think that the data does show that 

Chacon's discipline was facially consistent with company practice, a 

conclusion which pertains to the adequacy of Phelps Dodge's affirmative 

defense. Given the rawness of the data, we do not find this derailment 

evidence particularly persuasive for either party's case. §_/ As discussed above, however, we conclude that the Secretary demonstrated a 

prima facie case of a violation without the data and without a showing 

of disparate treatment. ]_/ 

2_/ After Phelps Dodge presented its defense, the Secretary offered the 

testimony of Michael Cranford in rebuttal. Cranford described two 

derailments, one before and one after the incidents in this case, that 

resulted in a great deal of damage, but no discipline to the engineers. 

No evidence was presented concerning either operational misconduct or 

the speed at which the locomotives were traveling. We do not think this 

evidence suffices to show disparate treatment. 

q/ The rawness of the data was underscored by the Phelps Dodge witness 

who gathered it. Richard Boland, the director of personnel services, 

testified, for example, that he obtained the information on the number 

of persons disciplined from grievance records. He stated that others 

may have been disciplined, but the data he supplied in answers to 

interrogatories would not show this if the engineers involved did not 

file grievances. Tr. 189-191. He cited "sheer volume" as the reason 

why additional records were not examined. Tr. 190. The Secretary did 

not seek additional information or records either prior to the hearing, 

or when Boland testified, or at the conclusion of the hearing. Thus, 

the available data on "comparative" discipline is at least incomplete, 

and probably somewhat "skewed" in the Secretary's favor. 

]__/ We also disagree with the judge's.,somewhat confusing discussion of 

burdens of proof regarding the numerical data presented. (2 FMSHRC at 

1282). The judge appears to suggest that the burden of proof was Phelps 

Dodge's. On the contrary, the Secretary raised the possibility of disparate treatment in his prima facie case and, accordingly, he had to 

shoulder the burden of showing it. 

We also do not agree with the judge regarding two other inferences 

that he drew. The judge found that a supervisor's reference to Chacon 

as "your boy" on February 12th indicated "displeasure on the part of 

management with Chacon" and was evidence of discriminatory motive. 2 

FMSHRC at 1281-1282. The description of the "your boy" incident came 

from superintendent Olson. He stated that shortly after the derailment, 

he encountered shift foreman Pounds who said, "Your boy done it again." 

(footnote continued) 

2513 
III. 

As we stated in Pasula, Phelps Dodge may defend against the Secretary's 

prima f acie case "by proving by a preponderance of all the evidence 

that, although part of [its] motive was unlawful, (1) [it] was also 

motivated by the miner's unprotected activities, and (2) that [it] would 

have taken adverse action against the miner in any event for the unprotected activities alone." 2 FMSHRC at 2799-2800; see Robinette, 3 FMSHRC 

at 818 n. 20. Phelps Dodge points to two factors in its defense. 

First, Phelps Dodge asserts that its discipline of Chacon is consistent with company policy. As already discussed with regard to 

disparate treatment, there is evidence that other engineers were warned 

over excessive speeding incidents and others were suspended for serious 

operational misconduct. We also note that Chacon's discipline was not 

inconsistent with his past employment record. As detailed in the 

accompanying note, Chacon had some history of discipline both before and 

after he became a union safety committeeman. ~/ Hence, we cannot conclude that it was an unprecedented disciplining of a miner with an 

otherwise unblemished employment record. 

Second, Phelps Dodge points to the seriousness of Chacon's two 

virtually consecutive derailments which it alleges were caused by 

excessive speed. A shift foreman indicated that damage and speed are 

considered when imposing discipline. Tr. 166. Track panels cost $1,500 

each. 2 FMSHRC at 1274; Tr. 104, 185. Chacon, himself, testified that 

three to four "rails" (which the witnesses apparently treated as synonymous with "panels" in their testimony) were torn up in the first 

derailment, and three or four more during re-railing. Tr. 66-67. 

Chacon testified that three or four rails were also "turned up" in the 

February 12th derailment. Tr. 75, 83. The shift foreman stated the 

fn. 7/ cont. 

Tr. 171, 177. Olson stated that he knew to whom Pounds referred because 

he had heard of the derailment on a mine radio in his office. Tr. 171. 

Pounds testified that he did not remember the conversation. Tr. 165. 

Both men indicated that anyone who did something wrong on the job might 

be referred to as "Olson's boy". Tr. 164, 177. In view of this testimony, we do not believe that the comment reasonably supports an inference of discriminatory hostility toward Chacon. 

The judge also inferred that a disciplinary warning for excessive 

speed delivered to another engineer shortly after the initial warning to 

Chacon was "actual evidence of bad faith" and "smacks of action taken to 

bolster the disciplinary action taken against Chacon." 2 FMSHRC at 

1282-1283. As Phelps Dodge points out;- there was no evidence presented 

regarding that incident. Accordingly, this finding is speculative and 

we reject it. 

a/ Chacon received a warning in December 1971, involving operation of 

his train; a warning on June 18, 1972, involving a failure to control 

his train and the derailing of a caboose; a disciplinary 3-day lay-off 

on September 26, 1973, for running a light; a 7-day disciplinary lay-off 

on December 22, 1973, involving an operating violation; a warning on 

October 14, 1975, for failing to control his train which resulted in a 

collision; a warning on March 14, 1977, for being AWOL; a warning on 

August 28, 1977, for not wearing a safety hat; a 3-day suspension on 

December 27, 1977, for AWOL; a warning on July 30, 1978, for an operating violation; a warning on January 8, 1979, for reading on the job; and 

another warning on January 8, 1979, for not wearing a safety hat and 

glasses. 

2514 
damage in the second incident was "terrible" and approximately twelve 

panels were "completely demolished." Tr. 155. Another company wjtness 

described the track as "demolished", but did not indicate a number of 

rails or panels damaged. Tr. 108. In our opinion, the preponderance of 

the evidence shows severe damage. In short, there is no real dispute 

that Chacon's derailments caused several thousand dollars worth of 

damage, although no evidence was introduced concerning the total cost of 

his accidents or how it compared to damage caused in other accidents. 

The more crucial question, however, is whether Chacon was traveling 

at. "excessive" speeds under the slow orders and, therefore, was at fault 

when the incidents occurred. As we noted above, derailments with 

resultant damage are frequent occurrences and, unless operator misconduct. were involved in some way, discipline would not ordinarily be 

imposed. Phelps Dodge bases its allegations of misconduct, i.e., 

"excessive" speed, on both the damage at the time of derailment and 

speed tapes taken from Chacon's locomotives just after derailment. 

Several company witnesses testified that they could determine from 

damage alone whether an engineer's speed was excessive. Tr. 103, 138, 

155. Assistant shift foreman Lines testified that on February 5, the 

track was "pretty well tore up" (Tr. 135) and that he believed Chacon 

had been travelling too fast. Tr. 136, 138. General mine foreman 

Brooks stated that he believed Chacon's speed on February 12 was greater 

than 11 or 12 m.p.h. "because the track was completely demolished." Tr. 

108. Two witnesses testified that speeds above 10 m.p.h. are excessive 

under a slow order. Tr. 122-23, 162. A third stated that 5-10 m.p.h. 

is the proper speed under a slow order. Tr. 144. Phelps Dodge also 

uses a device to record on tape the locomotives' speedometer readings. 

The "speed tapes" are customarily checked after derailments and the 

supervisor initials the tape at the point where derailment occurred. 2 

FMSHRC 1274; Tr. 135, 155. Copies of Chacon's speed tapes were introduced at the hearing and a company witness testified that they showed 

speeds of 16 m.p.h. on February 5, and 15 m.p.h. on February 12 just 

before the respective derailments. Tr. 121; Exh. R-4. Phelps Dodge's 

supervisory personnel consistently indicated at the hearing that they 

rely on these speed tape records and damage-based estimates of speed. 

Although Chacon testified that no one had ever specifically told 

him what a slow order meant, Phelps Dodge's supervisors also consistently testified that the meaning of slow order is well known by their 

engineers. Tr. 127, 138, 153-54. In partial agreement with the judge, 

we conclude that the speed tapes and da~age-based estimates are probably 

only roughly accurate. Nonetheless, as we explain below, we do not 

agree with the judge's rejection of this evidence. In our opinion, the 

judge improperly substituted his business judgment for that of Phelps 

Dodge by his virtual exoneration of Chacon's conduct in the two derailment incidents and by his consequent rejection of Phelps Dodge's entire 

defense as pretextual. 

The judge rejected Phelps Dodge's claim that Chacon's speed was 

excessive. He found that because the locomotive speedometers regularly 

"bounce" or fluctuate between 5-15 m.p.h., the speedometers and speed 

tapes were "unreliable as ... precise indicator[s] of speed," and that 

the operating engineer is generally the best judge of a locomotive's 

speed and of what a "safe and proper speed is." 2 FMSHRC at 1273. He 

2515 
treated Chacon's speed tapes as unreliable and credited Chacon's own 

subjective estimates that he was travelling between 5-10 m.p.h. just 

before the first derailment, and about 10 m.p.h. before the second. Id. 

at 1277-78. The judge found that derailment damage is "not particularly 

probative of ••• speed [because] other factors could [contribute to the 

damage done]--including the weather, the conditions, the wetness, the 

rain, and the like." Id. Finally, the judge criticized Phelps Dodge 

for what he regarded as its faulty system of posting slow orders, 

investigating derailments, and imposing discipline over any derailments: 

••• If the Respondent wishes a forum or tribunal or 

a court to recognize that there is some maximum speed 

involved in the "slow order," then it should print or 

publish such a maximum speed. It should teach its engineers what it is. It should spell it out on the call 

board. It would then have the proof that it can come in 

and say, "Look this is what it is," but to come into a 

hearing and express an opinion, and there were different 

opinions even among Respondent's witnesses apparently 

as to what it meant, would seem to give it complete 

latitute to say anything it would want in a tribunal. 

If it wants to set a maximum, it should do it either 

by printing it or at least when a "slow order" is 

put up to specify what the maximum speed is. The 

reliability of the speed recorder would still be a 

problem from the standpoint of proof. So the affirmative defense that Respondent raised, in my opinion, was 

not established by probative evidence that I can recognize. 

Id. at 1283. 

We hold that the judge exceeded appropriate limits in examining 

Phelps Dodge's business practices. Of course, Commission judges must 

often analyze the merits of an operator's alleged business justification 

for the challenged adverse action. In appropriate cases, they may 

conclude that the justification is so weak, so implausible, or so out of 

line with normal practice that it was a mere pretext seized upon to 

cloak discriminatory motive. But such inquiries must be restrained. 

The Commission and its judges have neither the statutory charter 

nor the specialized expertise to sit as a super grievance or arbitration 

board meting out industrial equity. ff· Youngstown Mines Corp., 1 

FMSHRC 990, 994 (1979). Once it appears that a proffered business 

justification is not plainly incredible or implausible, a finding of 

pretext is inappropriate. We and our judges should not substitute for 

the operator's business judgment our views on "good" business practice 

or on whether a particular adverse action was "just" or "wise." Cf. 

NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666, 671 (1st Cir. 

1979. The proper focus, pursuant to Fasula, is on whether a credible 

justification figured into motivation and, if it did, whether it would 

have led to the adverse action apart from the miner's protected activities. 

If a proffered justification survives pretext analysis and meets the 

first part of the Fasula affirmative defense test, then a limited 

examination of its substantiality becomes appropriate. The question, 

however, is not whether such a justification comports with a judge's 

2516 
or our sense of fairness or enlightened business practice. Rather, the 

narrow statutory question is whether the reason was enough to have 

legitimately moved that operator to have disciplined the miner. Cf. 

R-W Service System Inc., 243 NLRB 1202, 1203-04 (1979)(articulating an 

analogous standard). 

Contrary to the judge, we conclude that Phelps Dodge successfully 

defended by showing that it did have legitimate reason to regard Chacon's 

first derailment as a misstep warranting a warning, regardless of the 

ultimate truth of Chacon's and management's conflicting views on whether 

he was speeding. Such warnings had been issued before; there was 

credible reason, pursuant to Phelps Dodge's normal business practice, to 

infer excessive speed; and the damage caused was apparently serious. 

Once Chacon was warned over this first incident, the second derailment, 

within one week and causing apparently severe damage, represented the 

very occurrence warned against. With the second incident, there again 

was evidence of possible speeding, and, again, suspension was facially 

consistent with other discipline for operator misconduct. The fact that 

the first warning notified Chacon of the possibility of more severe 

discipline goes far, in our judgment, to show that Chacon would have 

been suspended if he had a second speeding derailment--much less one 

virtually on the heels of the first and causing severe damage. Most 

importantly, we believe that Phelps Dodge demonstrated that, in the 

exercise of its business and personnel judgment, it relies on speed 

tapes and supervisory opinions on damage and speed in determining 

whether to assess discipline. Even if this is "unjust" because the 

speed tapes and supervisor's evaluations are not always completely 

reliable, we cannot conclude that such reliance is, in effect, 

"impermissible" under the Mine Act. Thus, we conclude that Phelps Dodge 

established a legitimate statutory defense that it would have disciplined 

Chacon in any event for the unprotected activities alone. Treating the 

Secretary's allegations of disparate treatment as an attempt to refute 

this defense, we conclude, for the reasons already discussed, that the 

refutation fails. In short, we conclude that substantial evidence does 

not support the judge's rejection of Phelps Dodge's defense. 

IV. 

In sum, we agree with the judge that the Secretary proved a prima 

facie case of a violation by showing protected activity and circumstantial evidence from which a reasona~le inference of at least 

partially illegal motive could properly be drawn. We also hold, in 

contrast with the judge, that Phelps Dodge successfully defended against 

the prima facie case. 

2517 
Accordingly, the decision is reversed, the complaint dismissed, and 

the penalty assessed against Phelps Dodge vacated. 

2518 
Commissioner Lawson dissenting; 

The judge below found and the majority herein have affirmed that a 

prima facie case has been established of a violation of section 105(c)(l) 

by Phelps Dodge. I concur, and the evidence in support of that determina-· 

tion is indeed substantial, well-documented, and undisputed. This case 

therefore stands in fortunate contrast to other discrimination claims, 

which have required for determination the weighing of the credibility of 

frequently sharply diverging testimony by parties with totally contradictory versions of the facts. As the majority states: 

We hold that the substantial evidence of protected activity, 

knowledge, specific hostility, and coincidental timing present here make out a prima facie case that the adverse actions 

were motivated at least in part, by discriminatory reasons. 

Slip op. 4. 

Inexplicably, the majority then holds that Respondent ••• "prov[ed] 

by a preponderance of all the evidence that, although part of [its] 

motive was unlawful, (1) [it] was also motivated by the miner's unprotected activities and, (2) that [it] would have taken adverse action 

against the miner in any event for the unprotected activities alone.", 

in claimed reliance on Pasula and Robinette, supra. Slip op. 2. 

As to motive,l/ the unchallenged finding of the judge below is that 

"the primary management figure engaged in the decision to issue the written 

warning on February 6 and the three-day suspension on February 12, 1979, 

was Mr. Joseph Roche, General Mine Foreman." ..• "it is clear that the 

decision to suspend Chacon was made by Mr. Roche." 2 FMSHRC at 1279-80. 

Roche was not called as a witness in these proceedings, and his mental 

state or motivation, which is critical under the majority's rationale, is 

therefore not of record. Nor does any reason appear why this clearly vital 

witness, at the time of the hearing still an employee of Phelps Dodge, was 

not produced by the operator at the trial, whose burden it was to establish 

a permissible motive for the suspension meted out. The majority has therefore 

gone outside the record to speculate as to Roche's motive or motives, despite 

the lack of any evidence thereof. 

As to whether Appellant would have taken adverse action against the 

miner for the unprotected activities 'alone, a review of the factual 

findings of the judge appears to be appropriate: 

During the years 1976, 1977, 1978, and 1979, only one 

of Respondent's employees, aside from Johnny Chacon, was 

suspended from employment without pay for operating a 

locomotive at an excessive speed causing a derailment. 

Respondent's records indicate that one M. F. Naccarati 

was suspended for 3 days for violating the Code and 

that there was no record of the speed or damage. 

2 FMSHRC at 1276 

l/Motive is defined as "something within a person (as need, idea, organic 

state, or emotion) that incites him to action ••. Webster's Third New Int'l 

Dictionary (Unabridged). 

2519 
It appears that Chacon was the first, or from Respondent's 

standpoint, the second employee ever suspended for an excessive speed derailment. I find that the statistical evidence 

which I previously specified indicates that Chacon was treated 

in a disparate manner. The general burden of establishing by 

a preponderance of the evidence a case of discrimination is on 

the Applicant. However, the burden of proof is on Respondent 

as proponent of the rule that it urges in this case, that is 

that Chacon was warned and suspended for operating a locomotive 

at excessive speeds causing derailment. Thus, Respondent's argument that the Government has failed to show that there were other 

derailments where excessive damage was done and where the locomotive engineer was not punished in retaliation for safety reporting activities in my judgment has no merit if the Government has 

established otherwise a prima facie case. I would conclude that 

the burden would shift to Respondent to show that there were 

excessive speed derailments andthat the locomotive engineer did 

receive a suspension. The Government has shown that such was 

not the case clearly. The records furnished by Respondent in 

answering the interrogatories show no such suspension other than 

the Naccarati incident which is not sufficiently documented, in 

my judgment, to count. So, I conclude on the basis of the 

statistical information that the Government has established that 

Chacon was treated disparately. 

2 FMSHRC at 1282 (Emphasis added) 

The majority avers that the Secretary raised the possibility of 

disparate treatment in his prima facie case and accordingly, he had to 

shoulder the burden of proving it. Slip op. 6. Pasula, however, upon 

which the majority claims to rely, establishes no such test. Nor is 

disparity the central issue, despite the majority's focus. The determination to be made is whether this miner was discriminated against. 

All agree that he was. A showing that the discipline imposed was not 

disparate is perhaps some indication that the operator was merciful, 

not just, but does not without more negate a finding of discrimination. 

Since Respondent (Appellant) has contended that there were other excessive 

speed derailments, and the engineer[s] there involved were disciplined, 

the burden of going forward with or presenting facts showing this to be 

the case is properly--as the judge below held--that of Appellant. 

The majority would require the Secretary to shoulder the burden of 

proving a negative, that is, that other derailments claimed to be due 

to excessive speed resulted in less or no discipline. Although the best, 

indeed the only quantifiable, evidence presented does just that, the 

information the majority demands is here, and will always be, in the 

control of the operator, not the Secretary, and any explanation, exculpatory evidence or justification for the clearly facially disparate discipline 

imposed on Chacon should have been offered by the operator. It was not, 

and what the majority terms the operator's "affirmative defense" consequently fails. Slip op. 6. 

2520 
That evidence, and the record herein, reflects a railroad compared 

to which the fabled Penn Central appears to be a model of operational 

efficiency. In 1977, 1,082 derailments took place; in 1978, 1,164; and 

in 1979 (up until September), 786 (for an annual rate of 1,148). Of 

these extra-rail excursions, no warnings were given to Phelps-Dodge's 

engineers for any which took place in 1977, four warnings were given to 

engineers for "excessive" speed in 1978, 2/ in 1979 no warning for 

excessive speed was given for any derailment prior to the one here 

involved.1/ 

In summary, of 3,032 derailments recorded prior to Mr. Chacon's, in 

only seven instances were engineers warned for "excessive" speed, and 

only Chacon was penalized by imposition of a suspension for the claimed 

violation of this operator's so-called slow order. And, as is undisputed, 

mere derailments, even with resulting damage, would not ordinarily 

result in discipline, unless caused by the engineer's error. Nevertheless, 

it is asserted that "There is no evidence that engineers who had excessive 

speed derailments causing serious damage, or who were involved in similar 

incidents, escaped discipline." Slip op. 6. This begs the question of 

the nature of the discipline imposed, which is so clearly disparate as 

to need no embellishment. 

In summary, the evidence established over 3,000 derailments with 

only one suspension for excessive speed, that of Chacon in this case. It 

is difficult to envision a stronger case of disparate or discriminatory 

treatment. In short, the discipline here imposed was clearly not facially 

consistent, it was rather facially inconsistent. 

Moreover, no documentary evidence was presented, nor, it is undisputed, 

does such exist, defining either a "slc;iw order", nor what is "excessive 

speed". There has never been any posting or written expression or 

publication by this operator defining these terms. The sole operator 

attempt to inform its engineers concerning regulating locomotive speed 

reflected in this record was the chalking of "slow order in effect" on 

the mine blackboard in this case, despite the--again unchallenged--f act 

that, as the judge below found, "slow orders" do sometimes specify 

maximum speeds. 2 FMSHRC at 1274. 

Indeed, this so-called "slow order" hardly rises to the dignity of 

an admonition, much less an "order". An employer of this size and 

sophistication would not appear to lack the capacity to credibly define 

a slow order, and what constitutes a 'violation thereof. Nowhere in this 

record is there any evidence that Chacon had been advised on the day in 

question as to what, indeed, was a slow order, or what was a permissible 

speed for the train he was operating. 

±_/Three of these indicate neither the speed prior to, nor the extent of 

the damage caused, by the derailment. 

1/0£ these 1979 warnings issued after the instant derailment, two specified 

speeds of 15-20 m.p.h., respectively, and indicated damage "to tracks and 

locomotives" and "tore up seven or eight panels": the third showed neither 

speed nor damage. 

2521 
Nevertheless, despite the absence of any written or published 

definition of "slow order", if there existed even an unwritten understanding thereof, the majority's rationale for finding a violation of 

that order would be supportable. But, as the judge below also found: 

Under the Code of Safe Practice for Railroad Train 

Operations applicable to the Morenci Mine, Exhibit 

R-2, unless a so-called "slow order" is posted on 

a call board, located for purposes of this proceeding 

in a lineup shack, the maximum permissible speed on 

good track which is to be observed by locomotive 

engineers is 15 miles per hour for "bench tracks." 

I note that the Code also provides that "track conditions may dictate speeds slower than those listed 

above," which also is evidence that in the final 

analysis the subjective judgment of the locomotive 

engineer must determine what a safe and proper 

speed is •••. 

There is no written instruction or provision in operators' 

manuals or in courses taught by either the Government or 

the operator or elsewhere or otherwise which express what a 

maximum speed is under a "slow order" ...• 

Turning now to the incidents which resulted in the issuance 

of the warning and the suspension I find that on February 5, 

1979, Chacon was operating his locomotive on the bench proceeding towards the dump when his train was derailed. Chacon 

was in the caboose which contained no speedometer. Chacon had 

not been told by management either in writing or orally what 

the maximum permissible speed was that he should do. There 

was, however, a "slow order" in effect and (I find) that 

Chacon was going no more than 10 miles per hour. I make 

this finding on the basis of the following reasons: Various 

witnesses for the Respondent have indicated that they can 

tell or should be able to tell how fast a locomotive is going 

within 2 or 3 miles per hour; that is, a locomotive engineer 

should be able to make such a judgment. On the other hand, 

Mr. Starr testified that he could estimate his speed above 

5 to 7 miles per hour and that it is difficult at speeds above 

5 miles per hour to determine exact speed. Mr. Chacon testified 

that he was going between 5 ,_and 10 miles per hour and that he 

could tell he was not going 15 miles an hour based upon his 

experience. I conclude that Mr. Chacon, being the operator 

of the locomotive at the time, is in the best position to 

determine his speed .•.. 

2 FMSHRC at 1273, 1274, 1277 

The majority's sua sponte adoption of the operator's defense that the 

extent of the damage incurred, despite the establishment of a prima facie 

case of discrimination, somehow rebuts the finding of a violation despite 

the operator's own disclaimer that it would not impose discipline on that 

basis, is also unsupported by the record. As-the judge found: 

2522 
I further find for similar reasons that gauging damage·-~ 

and surveying damage done·--is not particularly probative of the 

speed that a train is traveling in a given instance. There 

is testimony in this record with respect to factors which 

could change that-·-including the weather, the conditions, 

the wetness, the rain, and the like. The opinions given, 

likewise, are suspect for the reason that gauging speed on 

the basis of damage is not particularly susceptible to persua~ 

sive proof by the rendering of a mere general opinion. There 

was really little corroboration beyond the expression of such 

general opinions in this case. Certainly, these were not 

sufficient evidence to overwhelm the testimony of the person 

in the best position to gauge the speed, which in this case 

is the operator himself. I also find no reason to discredit 

the testimony of Mr. Chacon on this subject and on other sub·· 

jects contained in his testimony. The occurrence of derailments 

is very frequent and can occur from many, many causes. To 

attribute the derailments to excessive speed in this instance 

would require a higher quality of proof than that presented by 

Respondent. 2 FMSHRC at 1277~78. 

The majority's opinion, ~hich concedes the fallibility of speed tapes 

(Slip op. 10) fails to define what constitutes a proper speed under a "slow 

order." Since the necessary predicate for the violation of a rule is 

obviously the existence thereof, and the undisputed record is as set forth 

I fail to perceive how Chacon can be legitimately disciplined for violating 

such. The operator's rule claimed to have been violated lacks both specificity 

and definition, so as to qualify as a restraint of whose existence an 

employee could have fair notice. 

Again, the judge 1 s opinion details the infirmity of the actual measure·-

ment of the speed: 

I find that the needle of the speedometer fluctuates or "bounces" 

regularly between 5 and 15 miles per hour based upon the testimony 

of the locomotive operators who operate the same who testified in 

this hearing. I find that the speedometer and the speed recorder 

which records the speeds shown on the speedometer are unreliable 

as a precise indicator of the speed of the locomotive based upon 

the credible evidence in this proceeding. All witnesses who 

testified on the subject conceded that to some extent there was 

or there could be a variance between the speed shown on the speedometer and the actual speed being traveled.if 

2 FMSHRC at 1273 

The tape mechanism, in my judgment, is not sufficiently credible 

based upon the testimony in this hearing for me to rely on it. 

Were the speed-recording tape reliable, I would consider it to 

be the best evidence and to have overwhelmed the opinions and 

subjective judgment of the individuals. The testimony in this 

case with respect to speed has been all over the lot. I do not 

find it sufficiently accurate from the standpoint of Respondent 

to credit it. 

2 FMSHRC at 1277 

4/In addition, following the February 12th derailment, repairs were made 

to the speedometer of that locomotive. 2 FMSHRC at 1279. 

2523 
The majority, however, would hold that the judge has somehow exceeded 

"appropriate limits in examining Phelps Dodge's business practices." 

That excursion to me bears no relationship to the issues before us on 

this appeal. Much more to the point is the existence of employer hostility 

or animus toward an employee, necessarily strong evidence in determining 

discriminatory motivation. Here the majority agrees with the judge that 

the operator displayed a "specific hostility toward Chacon's protected 

activity." Slip op. 4. 

This affirmation of the judge's findings of "obvious animosity" (2 

FMSHRC 1284) was not disturbed by the majority. The logic of the majority's 

opinion would compel a holding that the "substantial evidence of protected 

activity, knowledge, specific hostility, and coincidental timing present 

here •••• ", found to make out "a prima facie case that the adverse actions 

against Chacon were motivated, at least in part, by discriminatory 

reasons,", (Slip op. 4) are to be readily discarded if the discipline 

imposed can be in some way found not to be disparate. 

Henceforth, it would appear that the Secretary must examine all 

disciplinary actions taken by the operator and submit these to the 

judge who must then evaluate such for disparity of discipline. It would 

be impossible for a single miner to prove disparate treatment, if no basis 

for comparison is available. For the majority to have concluded that the 

suspension here was proper, it must have determined that only Chacon's 

derailment, of over 3,000 enumerated, resulted from improper train operation. That is manifestly impossible on this record. Animus is to me still 

the touchstone in determining motivation, and its existence here is unchallenged. The majority's approach would appear, however, to border on indeed 

requiring impermissible examination of an operator's '~usiness practices." 

In short, an operator is now apparently granted broad license to 

discipline an employee, motive notwithstanding. The moral of the story 

would appear to be that penalizing more than one miner is permissible 

under the Act, even discriminatorily, but a similar exercise of discipline against only one miner would apparently be impermissible. This 

makes no sense as a matter of law or logic. 

I therefore dissent. 

A. E. Lawson, Commissioner 

2524 
Distribution 

Ann S, Rosenthal, Esq, 

Michael McCord, Esq, 

Office of the Solicitor 

U,S. Department of Labor 

4015 Wilson Blvd, 

Arlington, Virginia 22203 

Stephen W. Pogson, Esq. 

Evans, Kitchel & Jenckes, P.C. 

363 North First Avenue 

Phoenix, Arizona 85003 

Administrative Law Judge Michael Lasher 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

2525 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LONE STAR INDUSTRIES, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

November 24, 1981 

Docket No. VA 80~67-M 

DECISION 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §801 ~~· (Supp. III 1979). The 

administrative law judge concluded that Lone Star Industries, Inc., 

violated 30 CFR §56.9-41, a mandatory safety standard, and assessed a 

$6,000 penalty. ];/ The major issue before us is whether the judge erred 

in his interpretation and application of section 56.9-41, which provides: 

Only authorized persons shall be permitted to ride on trains 

or locomotives and they shall ride in a safe position. 

On the narrow grounds indicated below, we affirm the judge's decision. ];_/ 

I. 

The essential facts are undisputed. The citation was issued following the investigation of a fatal train accident on August 10, 1979, at 

Lone Star's Jack Plant, a stone milling facility located near Petersburg, 

Virginia. The injury was suffered by a brakeman engaged in "dropping" 

railroad cars. 

1/ The judge's decision is reported at 2 FMSHRC 3440 (1980). 

ii Chairman Collyer assumed office after this case had been considered 

at a Commission decisional meeting and took no part in the decision 

of the case. A new Commissioner possesses legal authority to participate in pending cases, but such participation is discretionary and is 

not required for the Commission to take official action. The other 

Commissioners reached agreement on the disposition of the case prior to 

Chairman Collyer's assumption of office, and participation by Chairman 

Collyer would therefore not affect the outcome and would delay issuance 

of the decision. Accordingly, in the interest of efficient decisionmaking, Cha.irman Collyer elects not to participate in this case. 

Former Commissioner Nease participated in considering this case and 

voted to affirm the judge's decision, but resigned from the Commission 

before the decision was ready for signature. 

2526 

81-11-22 
"Car dropping" is the movement of railroad cars down grades for 

various loading and haulage tasks. At the Jack Plant, railroad hopper 

cars are loaded by Lone Star employees from bins and then moved down a 

.6% railroad grade to a storage yard. At the yard, the loaded cars are 

either parked or coupled with other parked cars prior to being pulled 

away by a locomotive. To start the cars down the grade, a dump truck or. 

a bulldozer with rubber tires gives the cars a push. A brakeman, or 

near dropper," rides on the cars and, by operating a manual brake, is 

responsible for controlling car speed, stopping the cars, and coupling 

safely. 

The brake and brake platfonn are located on one end of a car. The 

brakeman applies or releases the brake by turning a wheel while standing 

on the brake platform. No facility exists at the Jack Plant to position 

the cars so that the brake platform end of each car uniformly faces in 

one direction. As a result, the brake platform may be on the front of 

one car and on the rear of the adjacent car. Prior to the accident, 

Jack Plant brakemen frequently rode in the front of the lead car. 

Before the C'ars to be dropped are pushed, the brakeman is supposed to 

make sure that the coupling device (called the "drawhead") on the lead 

car is open so that the dropped cars can couple properly with parked 

cars in the storage yard. 

Once the pushing vehicle starts the cars moving, the driver of that 

vehicle drives along a road that parallels the track and affords an 

unobstructed view of one side of the tracks. The brakeman observes the 

tracks in order to adjust the speed of the cars if he notices an 

obstruction or is notified of one by the driver of the pushing vehicle. 

When the moving cars reach the storage area, the lead car couples with 

any parked cars. 

On the day of the accident, a broken water pump prevented the 

loading of cars at the normal bin loading area. Four coupled hopper 

cars, only two of which had been loaded, were parked in the bin area 

when the pump broke. All four were pushed back up the track by a bull--

dozer to a stockpile loading ramp, an alternate loading site. The car 

against which the bulldozer was pushing was the one that would be the 

lead car when the cars were dropped to the storage yard. James Mays, 

the bulldozer operator, testified that the lead car's drawhead wi::ls in 

the open position when he began pushing the four cars to the alternate 

loading site. 2 FMSHRC at 3!+L1l; Tr. 160. Mays also testified that the 

bulldozer's blade was pushing directly against this drawhead, and his 

testimony reflects that the initial impact of that operation may well 

have closed the drawhead, an occurrence that had happened before "over 

the years of pushing rail cars." Tr. 161·-163. 

Once the two emply cars in the group of four had been loaded, 

brakeman James Brown stationed himself on the front brake platform of 

the lead car in the group to begin the drop. Brown signaled Mays to 

start pushing the four cars back down the grade. Apparently, neither 

Brown nor Mays checked to detennine whether the front drawhead was open. 

The four loaded cars weighed about 338 tons, After the initial push, 

Mays drove the bulldozer alongside and past the four dropping cars to 

the site where the cars were to couple with thirteen parked cars. He 

observed the fatal accident that followed. 

2527 
Just prior to coupling between the dropped and parked cars, Mays 

noticed that the drawhead on Brown's car, which was to couple wit.h the 

open drawhead on the rear of the thirteenth parked car, was closed. The 

closed drawhead bypassed the open drawhead, causing the front car of the 

moving four cars to collide with the rear of the parked car. The force 

of the impact was of such magnitude that the thirteen parked cars were 

driven forward some 13 feet, the four dropped cars rebounded approximately 

eight feet, the wheels of the lead dropped car derailed, and the brake 

wheel on the lead car made an imprint on the rear of the parked car. 

When the front of the lead car hit the parked car, Brown was crushed 

between the two cars. 

Prior to the accident, the Jack Plant had a policy requiring car 

droppers to wear safety belts while riding cars, but did not have any 

other written safety rules pertaining to car dropping. The record does 

not show that the plant had ever established a policy regarding a safe 

speed for car dropping. '}_/ After Brown's death and the resultant citation, the Jack Plant adopted written car dropping safety rules prohibiting 

front end riding, riding whiie only one car is being dropped, and the 

dropping of more than three loaded cars at any time. 2 FMSHRC at 3445, 

3446; Res. Exh. I. 

The judge concluded that the front brake platform of the lead 

dropped car was an unsafe position for the brakeman to have occupied 

under the circumstances and, therefore, his riding in that position 

violated section 56.9-41. 2 FMSHRC at 3447-52. The judge found that if 

a possibility of front end collision exists during car dropping, riding 

the front brake platform may present the potentially fatal hazard of 

being crushed between the colliding cars. Id. at 3445, 3450. In determining that Brown rode in an unsafe position while car dropping, the 

judge focused on three factors. 

First, the judge found that there was a history at the Jack Plant 

of miscoupling collisions caused by closed drawheads. 2 FMSHRC at 3443, 

3449-50. He observed that cars being dropped at the plant "don't always 

couple" with parked cars and "car droppers had been careless about 

making certain that the drawheads were open at the time the cars were 

started on their journey to the loaded car storage area." Id. at 3450. 

Second, the judge noted that, although dropping cars had the right of 

way, Lone Star itself "emphasized the fact that trucks make 1,200 trips 

per day across the railroad tracks used for dropping cars." Id. The 

judge reasoned: 

]_/ The Jack Plant's sole rule regarding car dropping--requiring the 

wearing of safety belts--was one of 42 basic safety rules in effect in 

Lone Star's Chesapeake Division. In contrast, at the time of Brown's 

death, Lone Star's separate South Atlantic Division, which did not 

include the Jack Plant, had several written rules addressing safe 

position and manner of operation during car dropping. One such rule 

provided, "[u]nless absolutely necessary, never ride leading car down 

grade end [;] [ r] ide between the cars or the trailing end." Another 

provided that "[a]ny time three or more cars are dropped down the track 

there should be two people braking the cars." 2 FMSHRC at 3444; Sec'y 

Exh. 4. 

2528 
If [a vehicle] does get on the tracks and the car dropper 

should be unsuccessful in stopping the cars being dropped at a time 

when [he] is riding on the front car, [he] runs the risk of being 

crushed against [the] vehicle which may stop on the tracks. 

Id. Third, the judge found that groups of loaded cars being dropped are 

extremely heavy and difficult to stop, thus increasing the risk of 

collision: 

The empty weight of each [hopper] car is 70 tons and its 

loaded weight is about 84-1/2 tons ..•. After [groups of loaded] 

cars ... start their journey, they can be stopped or slowed down 

only by application of a single manual brake on one of the •.. 

cars .... The operator of the Jack Plant has been dropping cars 

for 20 years and knows how much they weigh and how hard they are to 

slow down or stop even when they are moving at a low rate of speed. 

Id. at 3449. 

The judge concluded that the uncontroverted facts of the accident 

illustrated the dangerous interplay of these risks. He found that 

because Brown was dropping four loaded cars "with 338 tons of weight 

riding behind him," he would clearly find it difficult to stop or slow 

down the cars and risked a heavy impact crash if a collision danger 

arose from any source. 2 FMSHRC at 3449. In the judge's view, a forseeable collision risk was present: not untypically, the lead drawhead 

was closed; the dropped cars attained significant momentum; upon contact 

with the parked cars, the closed drawhead caused miscoupling; and the 

combined weights of the thirteen parked cars and 4 moving cars generated 

a huge force of impact which exposed the front-riding Brown to the 

hazard of crushing. Id. at 3441-43, 3449-50. 

II. 

This case presents two major liability issues: first, what is the 

proper interpretation of section 56.9-41, and second, applying this 

construction to the facts, did a violation occur? At the outset, we 

emphasize the following bounds to our decision. 

We reject the broad language--essentially in the form of dicta--in 

the judge's decision suggesting that front end riding while car dropping 

is per se unsafe. Such a sweeping proscription is not supported by the 

limited record in this case and necessarily involves safety and industrial 

ramifications best addressed in the formal rulemaking context. 

Further, we agree with Lone Star that the test of whether this 

standard was violated cannot be made to turn on whether a fatal car 

dropping accident occurred. While an accident may sometimes shed light 

on an unsafe practice, it does not, by its mere occurrence alone, prove 

a violation of any given standard. Plainly, the reasons for an accident 

may have nothing to do with the substance of the standard allegedly 

violated. Therefore, our analysis largely ignores Brown's death; our 

2529 
inquiry is only whether he was riding in an unsafe position when he 

started his August 10 car dropping journey. We turn to the meaning of 

section 56.9-41. 

The cited standard, section 56.9-41--like the identical regulations 

applicable to metal and non-metallic mines, 30 CFR §§55.9-41 and 57.9-

41--applies to train riding in general, a subject which includes car 

dropping in particular. Unlike the surface coal regulation that addresses 

car dropping specifically, !!._/ section 56.9-41 focuses on only one aspect 

of safe train riding: safe position. Section 56.9-41 is the kind of 

standard made simple and brief in order to be broadly adaptable to 

myriad circumstances. The relevant variables affecting safe position 

are numerous, may differ from plant to plant, and may change from day to 

day in any particular operation. Accordingly, a broad and flexible 

standard is not misplaced in theory. 

We therefore agree with the Secretary and Lone Star that section 

56.9-41, as written, requires a "situational" approach to determining 

safe position. To quote Lone Star: 

The mandatory standard, 30 CFR 56.9-41, does not, by its 

terms, prohibit or mandate riding a given rail car in a particular 

position, or on any particular rail car of a group of rail cars. 

Rather, in order to comply with the standard, an operator must 

determine what position is "safe". We submit, therefore, that the 

standard contemplates that what may be a safe position will vary 

depending on the context in which it is applied. 

Br. 6. See also Secretary's Br. at 6. This interpretation renders the 

standard similar to the familiar and well established driving rule that 

a vehicle must always be operated at a speed safe for the conditions of 

the road at any given time. Speed and position are different concerns, 

but in both instances safety is measured in terms of the variable surrounding circumstances. 

Although we conclude that section 56.9-41, as written, lends itself 

to reasonable construction and application under the circumstances of 

th:U> case, we also conclude that the Secretary can and should provide 

more specific guidance than he has on the subject of safe car dropping. 

We urge the Secretary at least to publish in the Federal Register interpretive guidelines identifying and discussing variables relevant to safe 

position during car dropping and the common dangers to be avoided during 

dropping. Moreover, as section 77.1607(v) shows (n. 4 below), safe 

!±_/ 30 CFR §§77.1607(v)-(aa) apply to car dropping. Section 77.1607(v) 

is most relevant to the present case and provides: 

Railroad cars shall be kept under control at all times by the 

car dropper. Cars shall be dropped at a safe rate and in a manner 

that will insure that the car dropper maintains a safe position 

while working and traveling around the cars. 

This regulation identifies four aspects of safe car dropping: keeping 

the cars under control; dropping at a safe rate of speed; dropping in a 

safe manner; and maintaining safe position. 

2530 
position is not the only safety concern during car dropping. Keeping 

the cars under control and dropping at a safe rate of speed, to name two 

obvious factors, are equally important. We therefore also urge the 

Secretary either to rewrite the "9-41 series" or adopt supplemental 

regulations in order to identify the other major aspects of safe car 

dropping in addition to safe position. 

Turning to the specific issues in this case, our interpretation 

distills the liability problem into a question of whether, under the 

circumstances present at the Jack Plant on August 10, was the lead front 

brake platform an unsafe position for Brown to have occupied? 5/ 

III. 

We first consider whether it can ever be said that the front end 

brake platform is an unsafe position for car droppers. As we have 

already suggested, car dropping does not lend itself to per se safety 

rules: what is safe at one time or place may be unsafe at another. 

However, we affirm the judge insofar as he held that front end riding 

m~ be unsafe. The common sense of this view is obvious: given the 

enormous weights of loaded railroad cars, a serious collision is likely 

to be fatal to a dropper riding in the exposed front position. Moreover, Lone Star has presented no argument inconsistent with this approach, 

This principle, however, has reasonable limits. For example, where the 

collision danger is remote, such riding may be safe. In short, under 

this approach, the safety of front end riding appropriately depends on 

the relevant variables. 

The essence of the judge's decision is a determination that on 

August 10 the front brake platform was an unsafe position for Brown 

because of the unique configuration of human and technological variables 

affecting safe riding position at the Jack Plant. The judge expressly 

focused on three conditions affecting safe position, and his decision 

implies a fourth. 

First, he found that at the ,Tack Plant there was a history of carelessness in keeping drawheads open during dropping, and that as a result 

miscouplings and "bouncing-back" collisions were fairly common occurrences. 

The facts of this case appear to illustrate this carelessness. As noted 

above, the lead drawhead may well have been closed by the pushing vehicle 

during the initial push back up the track to the alternate loading site, 

a not unconunon occurrence when a drawhead was directly pushed. Despite 

that possibility, it appears that prior to the drop, no one checked 

to see whether, in fact, the drawhead had been closed during the initial 

push. Lone Star does not deny this history of carelessness and, indeed, 

concedes that the "vagaries of employee conduct" may be taken into 

account in determining whether riding in a given position is safe. 

Br. lL We agree with Lone Star that human performance factors are as 

relevant to safety analysis as technological ones. On this point, we 

believe the judge was correct insofar as he found that this "human 

factor" created at least some risk of front end collision through miscoupling. 

---- - '2/ There is no dispute in this case that Brown was an "authorized 

person" within the meaning of section 56. 9-41 (2 FMSHRC at 344 7) and 

that normal brake platforms are safe positions in general. 

2531 
Second, the judge found that there were many vehicular crossings 

of the dropping tracks--as many as 1,200 per day. Lone Star did not 

deny this fact, but rather emphasized it before the judge (2 FMSHRC 

at 3450) in support of its argument, analyzed below, that front end 

riding is safer because it affords the best view of the tracks ahead 

of the cars. We also agree with the judge that this heavy traffic 

created another risk of front end collision. The presence of this 

risk is borne out by the uncontradicted testimony of Mays (who frequently was a dropper) that cars being dropped had "occasionally 

come in contact with vehicles crossing the tracks.'' Tr. 168. 

Third, the judge found that the railroad cars were heavy and difficult 

to stop, and that Brown was riding with a huge load behind him--676,000 

pounds of moving weight. We do not interpret this finding as meaning 

that Lone Star's cars were extraordinarily difficult to stop, and, 

indeed, there is no evidence to that effect in the record. We think the 

judge's decision merely means that given the factor of reaction time and 

the physical laws of momentum and inertia, some time and distance must 

be expended before these massive weights can be brought to a halt. We 

do not believe that this factor alone can support the judge's conclusion. 

Rather, we view it as a subsidiary consideration adding to the risk 

largely created by the other factors. 

Fourth, implied in the judge's findings is the additional consideration that, so far as the record discloses, Lone Star had no formal 

or written policy regarding safe speed for dropping. 

Considering all of the above factors together, we think that the 

judge's conclusion that section 56.9-41 was violated is reasonable and 

consistent with the evidence. While dropping a heavy group of cars, 

Brown faced a risk of high impact collision either from a miscoupling 

accident or an unsafe vehicular crossing. In this view of the case, 

Lone Star's 20-year history of apparently fatality-free front end riding 

was fortunate. The risks had been there for some time, and on August 

10, luck ran out because a number of the worst hazards coincided. 

Further, we agree with the judge (2 FMSHRC at 3450, 3452) that these 

risks were not obscure or unique to Brown's drop. As we have already 

noted, there had already been miscoupling and vehicular crossing collisions. 

Hence, this is not a case where, from all that appeared, front end 

riding was relatively safe and was judged unsafe after the fact merely 

because something unexpectedly went wrong on one drop. In short, we 

conclude that safe position depends on the circumstances and that the 

circumstances present in this case at the Jack Plant rendered front end 

riding unsafe. 

Lone Star's several objections to the judge's finding of liability 

lack sufficient weight to require reversal. Lone Star argues that the 

judge improperly ignored uncontroverted evidence of the following variables 

affecting safe riding position at the Jack Plant: the grade of the 

tracks was virtually level; the tracks were straight and in good condition; 

the brakemen were experienced; the brakes were of good quality; the 

twenty-year history of car-dropping at the Jack Plant did not indicate a 

risk of the accident of the type involved in this case; training programs 

at the Jack Plant were more stringent than federal requirements; and the 

2532 
droppers wore safety belts. Lone Star concludes that "these factors 

supported the practice of car droppers riding the front of the lead rail 

car." Br. 8. We agree with Lone Star that these are relevant variables 

generally affecting safe position and we think that the judge's decision, 

both expressly and implicitly, recognized their presence at the Jack 

Plant. However, the crux of the case is the additional presence of the 

factors discussed above, l·~·· coupling problems, extensive vehicular 

crossings, the time and distance required to stop heavy moving cars, and 

the absence of a formal policy regarding safe dropping speed. 

Before the judge, Lone Star also contended that front end riding 

affords droppers probably the best view of the tracks ahead of the cars 

and that, therefore, even if some collision risks are present, they are 

best avoided by positioning the dropper where he can see them best and 

take preventive action. 2 FMSHRC at 3450. The judge rejected this 

argument by pointing to the difficulty of stopping the cars. Id. We 

do not entirely agree either with the judge or with Lone Star. 

We agree with Lone Star insofar as it suggests that front end 

riding may sometimes be safe'because of the enhanced view it affords, 

and our decision so recognizes. Nevertheless, if due to other variables, there is an unusual risk of front end collision and some compensating means of providing safe viewing, it is only prudent to avoid 

the risk by stationing the dropper elsewhere. The fatal flaw in Lone 

Star's argument is its failure to argue away the risk of front end 

collision generated by the miscoupling problems and heavy crossing 

traffic at the Jack Plant. As the judge found (2 FMSHRC at 3446, 3450), 

a dropper riding in the rear can view one side of the tracks while the 

pusher vehicle driver views the other. While this procedure is somewhat 

cumbersome, the judge found that Lone Star's adoption of it after the 

accident had proved feasible and safe. Id. at 3446. Lone Star does 

not argue otherwise. 

Lone Star also argues that the "real" cause of Brown's accident was 

his negligence in failing to ensure that the coupling was open and in 

dropping the cars at an excessive speed. We do not doubt that Brown's 

actions contributed to the risks present on August 10. However, there 

was a history of miscoupling problems and resultant collisions at the 

Jack Plant, and the record does not show that Lone Star had established 

any formal policies regarding safe dropping speed. These latter factors 

were general risks present when Brown started his drop. In our view, 

his handling of the cars did not suddenly or anomalously create new 

risks or disclose unsuspected safety variables. Rather, his handling of 

the cars merely illustrated the existence and consequences of the risks 

already present. ~/ 

~/ At the hearing, Lone Star partially relied on an internal legal 

memorandum prepared by the Secretary's Solicitor's Office for MSHA 

(2 FMSHRC at 3445, 3451; Res. Exh. A), and attached a copy of the memo 

to its petition for review. The memo discusses the surface coal regulation on car dropping (30 CFR §77.1607(v)(see n. 4 above)), and includes 

the opinion that the "flexibility of the standard allows MSHA to exercise 

judgment in determining what is a 'safe' position for car droppers." 

Res. Exh. A, p. 1. The memo expresses the view that, depending on 

particular circumstances, front end riding may be unsafe (id.), and 

footnote 6 cont'd 

2533 
In sum, we think Lone Star fails to rebut the judge's finding that 

Brown was riding in an unsafe position given the circumstances at the 

Jack Plant. Therefore, the judge's liability finding, narrowly construed, is affirmed. 

Finally, the judge assessed a $6,000 penalty largely on the basis 

of the degree of Lone Star's negligence and the gravity of the violation. 

2 FMSHRC at 3453-54. The judge focused on what he regarded as Lone 

Star's negligent failure to promulgate written safety rules pertaining 

to safe car dropping. Id. The judge also noted Lone Star's good faith 

compliance and its "safety-minded" record in other respects. Id. at 

3453. On review, Lone Star raises only a narrow penalty issue: the 

propriety of the judge's finding that it was negligent in not having 

written rules on car dropping. 

We agree with the judge that Lone Star's failure to control more 

effectively such underlying variables as safe drawhead opening, coupling 

procedure, and vehicular crossing of the tracks, is evidence of negligence, although we do not believe such control necessarily had to be 

effected through written rules. The judge's penalty assessment is based 

on the evidence and reflects correct consideration of the penalty 

criteria set forth in section 110 of the Mine Act. The penalty is 

appropriate under the circumstances of the case and will not be disturbed. See Shamrock Coal Co., 1 FMSHRC 469 (1979). 

For the foregoing reasons, we affirm the judge's decision. 

fn. 6 cont'd 

recommends that if MSHA determines that front end riding is per se 

unsafe, or wishes to find it unsafe "on the basis of individual circumstances," 

it should first apprise industry of this viewpoint to "allow an opportunity 

for compliance." Id. at 2. The judge concluded that his decision was 

entirely consistent with the memo's opinion that front end riding may be 

unsafe, "depending on the circumstances involved in a given situation." 

2 FMSHRC at 3451. We do not think that the memo injects any major 

liability issue into this case on review. Lone Star now chiefly cites 

it for the proposition that section 56.9-41 requires a situational 

analysis to determine whether any particular riding position in unsafe--

an interpretation with which we agree, as discussed above. We also think 

that although the Secretary should provide further guidance on safe car 

dropping in the future, the situational risks at the Jack Plant were 

highly forseeable and Lone Star should have prohibited front end riding 

until they were removed. 

2534 
Distribution 

William I. Althen, Esq. 

Michael T. Heenan, Esq. 

Smith, Heenan, Althen & Zanoli 

1110 Vermont Ave., N.W. 

Suite 420 

Washington, D.C. 20005 

Ann Rosenthal, Esq. 

Michael McCord, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge Richard Steffey 

FMSHRC 

5203 Leesburg Pike. 10th Floor 

Falls Church, Virginia 22041 

2535 
Administrative Law Judge Decisions 

2536 
FEDER.Al MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 MOV 2 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

SAN MIGUEL COUNTY, 

Respondent. 

Appearances: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

For the Petitioner 

John Horn, Esq. 

County Attorney 

San Miguel County 

P.O. Box 482 

Telluride, Colorado 81435 

For the Respondent. 

Before: Judge Virgil E. Vail 

DECISION 

STATEMENT OF THE CASE 

CIVIL PENALTY PROCEEDING 

DOCKET NO. DENV 79-569-PM 

A/C No. 05-03169-05002 V 

MINE: San Miguel County 

Screening Plant 

The above captioned civil penalty proceeding was brought pursuant to 

section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 820(a) [hereinafter referred to as "the Act"]. 

Pursuant to notice, a hearing was held on March 10, 1981 at Grand 

Junction, Colorado. 

STIPULATIONS 

At the commencement of the hearing, the parties offered the fol lowing 

stipulations: 

2537 
1. Respondent admits the viol1tion as alleged in Citation no. 

325901. 1 I 

2. Respondent admits that it is the operator of the mine located at 

Sliprock, Colorado, the location where Citation no. 325901 was issued. 

3. The Administrative Law Judge has jurisdiction of this case. 

ISSUE 

The only issue left to be determined was what penalty should be 

assessed for the violation of mandatory safety standard § 56.14-1. 

PENALTY ASSESSMENT 

The parties presented testimony relating to the six criteria as set 

forth in 30 U.S.C. § 815 for determining the appropriate amount of the 

penalty. 

The evidence showed that Rosendo Trujillo, a federal mine inspector, 

issued Citation no. 325901.on June 29, 1978. He cited the respondent for 

failing to have the pinch point on a drive chain guarded. (Tr. 6). The 

drive chain was approximately three feet long and a half to two feet from 

the ground. (Tr. 6 and 9). Mr. Trujillo issued the citation based on his 

belief that an employee could get caught and pulled into the chain, thereby 

losing an arm or leg. 

I 

Respondent presented the testimony of their road foreman, Clifford 

Geisinger, who had accompanied Mr. Trujillo during the inspection. Mr. 

Geisinger testified that it r,.rould be difficult for anyone to get caught in 

the pinch point. He based his belief on the fact that the bin protrudes 

out at an angle above the chain. Because of this, a person would have to 

crouch or bend over to get close to the chain. (Tr. 10). He stated that in 

the eighteen years that he had worked with the machine there had never been 

an injury and the pinch point had never been guarded. (Tr. 10). 

The respondent has no prior history of any violations. Also, I find 

that respondent's negligence was only slight. However, the fact that there 

had been no prior injuries and that the guard would be inconvenient, since 

it has to be removed periodically for cleaning purposes, are not mitigating 

circumstances. 

Respondent did not demonstrate good faith in abating the citation. 

Mr. Geisinger told the inspector he would not put a screen on until he had 

orders to do so. The same day the citation was issued, Mr. Geisinger spoke 

with the Commissioners and was told to keep running the machine without the 

guard. (Tr. 11). 

1/ Citation 325901 provided, in part that, "The chain drive powering the 

pan feeder by the tail pulley was not guarded ... " 

2538 
The penalty proposed by MSHA was $1,000.00. At the hearing, counsel 

for the petitioner stated that he thought this was in error. Counsel 

stated that he felt that the $1,000.00 penalty was meant to apply to 

Citation no. 325052, which was issued for failure to abate. Citation no, 

325052 was not the subject of the hearing. 

Based on the testimony of the witnesses and counsels' comments I 

approved a penalty in the amount of $100.00. 

If the respondent has not already done so, the $100.00 should be paid 

within forty days from the date of this decision. 

Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

John Horn, Esq. 

County Attorney 

San Miguel County 

P.O. Box 482 

Telluride, Colorado 81435 

Virgi~~ 

01~~~~- Vail 

Administrative Law Judge 

253B 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

IOV 3 \00\ 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. PENN 81-111 

Petitioner A.O. No. 36-03425-03069 

v. 

Maple Creek No. 2 

UNITED STATES STEEL CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

David T. Bush, Attorney, Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for the petitioner; 

Louise Q. Symons, Esquire, Pittsburgh, Pennsylvania, 

for the respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalties 

filed by the petitioner against the respondent pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), charging 

the respondent with two alleged violations issued pursuant to the Act and the 

implementing mandatory safety and health standards. Respondent filed a timely 

answer in the proceeding and a hearing was held on September 24, 1981, in 

Pittsburgh, Pennsylvania, and the parties appeared and participated therein. 

The parties waived the filing of posthearing proposed findings and conclusions, but were afforded the opportunity to make arguments on the record and 

those have been considered by me in the course of this decision. 

Issues 

The principal issues presented in this proceeding are (1) whether respondent has violated the provisions of the Act and implementing regulations as 

alleged in the proposal for assessment of civil penalties filed in this proceeding, and, if so, (2) the appropriate civil penalties that should be 

assessed against th~ respondent for the alleged violations based upon the 

criteria set forth in section llO(i) of the Act. Additional issues raised by 

the parties are identified and disposed of in the course of this decision. 

2540 
In determining the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty 

to the size of the business of the operator, (3) whether the operator was 

negligent, (4) the effect on the operator's ability to continue in business, 

(5) the gravity of the violation, and (6) the demonstrated good faith of the 

operator in attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

4. 30 C.F.R. § 75.1403 provides as follows: 

Other safeguards adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards 

with respect to transportation of men and materials shall 

be provided. 

Section 75.1403-1 provides: 

(a) Sections 75.1403-2 through 75.1403-11 set out the 

criteria by which an authorized representative of the Secretary will be guided in requiring other safeguards on a mineby-mine basis under § 75.1403. Other safeguards may be 

required. 

(b) The authorized representative of the Secretary 

shall in writing advise the operator of a specific safeguard which is required pursuant to § 75.1403 and shall 

fix a time in which the operator shall provide and thereafter maintain such safeguard. If the safeguard is not 

provided within the time fixed and if it is not maintained 

thereafter, a notice shall be issued to the operator pursuant to section 104 of the Act. 

(c) Nothing in the sections in the § 75.1403 series 

in this Subpart 0 precludes the issuance of a withdrawal 

order because of imminent danger. 

Stipulations 

The parties stipulated to the following: 

1. The respondent owns and operates the subject coal mine. 

2541 
2. The inspector who issued the citations in this case was acting in his 

official capacity as a designated authorized representative of the Secretary 

of Labor. 

3. Respondent is subject to the Act, and I have jurisdiction to hear 

and decide the case. 

4. The citations which were issued in this case were properly served on 

an agent of the respondent, and copies of the citations issued may be admitted 

in evidence. 

S. The penalty assessments in this case will not adversely affect the 

respondent's ability to remain in business. 

6. Annual mine production at the subject mine for the year in question 

was 965,508 tons, and respondent's overall mine production for the same period 

of time was 15,849,000 tons. 

7. The conditions cited in the citations were timely abated by the 

respondent in good faith. 

8. A computer printout showing the previous history of violations for 

the subject mine was admitted without objection (Exh. G-3). 

DISCUSSION 

In this case, Safeguard Notice No. 1 CBC was issued on July 26, 1973, 

pursuant to section 75.1403, and it provides in pertinent part as follows 

(Exh. G-2): 

The No. 18 haulage locomotive was being operated in the 

5 Flat haulage track in 5 Flat 50 room section and was not 

equipped with a lifting jack and bar. All track locomotives 

operated in this mine shall be equipped with a suitable 

lifting jack and bar. 

Section 104(a) Citation No. 845403, December 9, 1980, cites a violation 

of 30 C.F.R. § 75.1403, and the condition or practice cited is described as 

follows: 

The No. 8 locomotive being operated by Tim Jansante in 

the 8 flat room section I-D 011 was not provided with a suitable lifting jack. The No. 8, 13-ton locomotive is used to 

pull coal from this section. Foreman in charge Ron Franczky. 

Notice to provide safeguard 1 CBC 7/26/73. 

Safeguard Notice No. 1 RCM was issued on April 26, 1974, pursuant to section 75.1403, and it provides in pertinent part as follows (Exh. G-5): 

The sanding devices installed on no. 7 self-propelled 

mantrip car were in-operative and three (3) sanding devices 

2542 
were (empty) not provided with sand. All haulage equipment 

equipped with sanding devices shall be maintained operative, 

and provided with sand. 

Section 104(a) Citation No. 845404, December 9, 1980, cites a violation 

of of 30 C.F.R. § 75.1403, and the condition or practice cited is described 

as follows: 

Two of the four sanding devices provided on the No. 8 

18 ton locomotive being operated in the 8 Flat 5 rm. 011 

were inoperative. This locomotive was being operated by 

Tim Jansante and is used to pull coal from this section. 

Foreman in charge Ron Franczky. Notice to provide safeguard 1 R.C.M. 4/26/74. 

Petitioner's Testimony and Evidence , 

MSHA inspector Francis E. Wehr testified as to his background and experience and he confirmed that he inspected the mine in question on December 9, 

1980. He also confirmed the fact that he issued a citation pursuant to section 75.1403, after finding that the No. 8 locomotive was not equipped with 

a suitable lifting jack, and that it was required to have such a jack in 

light of a previous safeguard notice issued at the mine. The previous safeguard was issued on July 23, 1973, and it required that all mine locomotives 

be provided with such jacks. The locomotive which he cited did not have such 

a jack when he observed it (Tr. 10-16). 

Mr. Wehr testified that the purpose of the safety jack was to assist in 

placing a locomotive back on the track in the event of a derailment. When he 

inquired of the locomotive operator as to why the jack was missing, the 

operator replied that he did not know and he commenced looking for one. The 

operator eventually found a jack lying against the coal rib some 50 feet from 

where the locomotive was parked (Tr. 16-19). 

Hr. Wehr confirmed that he also issued a second citation after finding 

that two of the four locomotive sanding devices were inoperative, and that 

this condition also constituted a violation of section 75.1403 because a 

previous safeguard notice had been issued requiring such devices to be maintained in proper working order. He determined that the sanding devices in 

question were inoperative by asking the locomotive operator to activate them, 

and when he did, two of the four would not disperse sand on the track. 

Mr. \-Jehr also indicated that he also activated the sanding device levers, but 

that no sand would disperse on the tracks. Abatement was achieved by making 

an adjustment to the levers, and upon testing the levers after the adjustment 

was made, sand was dispersed on the tracks and he terminated the citation 

(Tr. 19-26). 

Mr. Wehr testified that when he spoke with Locomotive Operator Jansante 

and asked him whether he had a jack, Mr. Jansante indicated that he had no 

knowledge as to whether he did or not. Since Mr. Jansante had no knowledge 

254:1 
as to whether he had a jack on the locomotive, Mr. Wehr believed it was 

reasonable to infer that he probably would have operated the locomotive without the jack (Tr. 48-49). A jack was subsequently found within 5 minutes or 

so, and it was located some 50 feet from the locomotive (Tr. 49). As for the 

sanding citation, he conceded that the sanders in question were filled with 

sand, and that he issued the citation because no sand was dispersed when the 

levers were initially activated (Tr. 50). 

On cross-examination, Inspector Wehr testified that he first came upon 

the locomotive underground at approximately 10 a.m., and that he had first 

proceeded to the face area before returning to the area where the locomotive 

was parked. He could not recall passing the locomotive on his initial way to 

the face. The locomotive operator was in the area, but he could not recall 

going to the dinner hole to summon him, and he could not recall whether 

road work was going on or whether the track rails in front of the locomotive 

were jacked up. He also stated that he made no particular effort to determine 

whether the locomotive had been used the day of the inspection, but believed 

that it had been moved to facilitate coal loading. He did not ask the operator whether it had been moved, and he could recall no road work going on 

between the location of the locomotive and the coal-loading point. Although 

Mr. Wehr stated that he was aware that company policy required a locomotive 

operator to check the sanders and the presence of a jack before moving a 

locomotive, he did not ask the operator whether this had been done. He 

conceded that company policy dictated that this be done before a locomotive 

is moved (Tr. 26-29). 

Mr. Wehr stated that at the time he viewed the locomotive, coal production had started at the face area, and he did not believe it unusual to find 

one or two people still in the dinner hole. In his view, if a jack is taken 

off a locomotive for the purpose of lifting track directly in front of the 

locomotive, or in close proximity thereto, then a violation would not occur. 

However, he indicated that he would have to investigate all of the circumstances to ascertain whether the jack was in fact removed from the locomotive 

for that purpose, or whether the locomotive had no jack in the first instance 

(Tr. 29-31). He confirmed that he made no investigation to determine whether 

the locomotive had been moved without a jack being on it, nor could he determine whether the locomotive would have been moved without a jack being placed 

on it. The jack which was ultimately placed on the locomotive to abate the 

citation was located inby the area where the locomotive was parked and he 

did not believe that the person who found it knew precisely where to look 

for it (Tr. 30-33). 

With regard to the inoperative sanders, Mr. Wehr stated that he initially 

activated the sanding levers in question, and while the levers traveled to 

their full position, no sand was deposited on the tracks below. He left the 

area after informing the locomotive operator that he was under a citation, 

and he was later called back and informed that an adjustment had been made 

to the levers and they were in fact operable (Tr.36-39). 

Mr. Wehr stated that normal coal production begins at approximately 8 a.m. 

when the shift begins, but he made no notes as to when coal was actually loaded. 

2544 
He observed the locomotive at 10 a.m., and if in fact production and loading 

began at 8 a.m., that would have been sufficient time for the locomotive operator to have made his preshift locomotive inspection (Tr. 51). Mr. Wehr also 

indicated that there was nothing to indicate that Mr. Jansante was aware 

that the sanders in question were inoperative and he said nothing to indicate 

that this was the case (Tr. 51-52). Mr. Wehr stated that once the operator 

was told that a citation was being issued, no one knew where to look for the 

jack, and he had to point out the location where he observed the jack against 

the rib (Tr. 64). 

Inspector Wehr referred to notes which he had made at the time the citations were issued, and he stated that his notes reflect that at 9:10 a.m., he 

was at the face area where he issued another citation for a roof-bolting violation. That citation was abated at 9:40 am., and at 10:20 a.m., he observed 

the locomotive and detected the defective sanders (Tr. 105-106). He stated 

that he issued the citations because coal production had started, people were 

on the section, cars were being loaded, and he assumed that the pre-operational 

equipment checks had been made. He believed that there were three or four 

mine cars present for loading coal, and that possibly two or three were loaded, 

but he was not sure (Tr. 110). 

Although Mr. Wehr indicated that he made no notes as to whether coal 

production had started and that he personally observed no coal being loaded, 

he did recall one mine car being loaded (Tr. 53). He conceded that the locomotive which he cited was located outby the loading point, and that he saw 

no locomotive being moved (Tr. 53-54). 

In response to bench questions, Mr. Wehr indicated that the locomotive 

in question did have a jack bar, and that the jack which was missing was 

retrieved within 5 minutes and placed back on the locomotive (Tr. 55). He 

also confirmed that each mine section has two lifting jacks present for use 

in jacking up shuttle cawrs, changing flat tires, etc. (Tr. 56). He believed 

that the jack which was found was not the same one which may have been on the 

locomotive because the one which was eventually placed on the locomotive was 

first observed by him lying against the rib. Since it had rock dust on it, 

he believed that it had been there for a while. He also indicated that he had 

seen the jack propped against the coal rib before he issued the citation and 

that is why he stopped to check the locomotive in the first place (Tr. 57-

58). 

Respondent's Testimony and Evidence 

Timothy G. Jansante, currently employed by the Post Office Department, 

testified that he previously worked for the respondent as a locomotive 

motorman. He testified that on December 9, 1980, he was in the "dinner hole" 

having a snack before the start of his work shift when the inspector appeared 

at approximately 9 a.m., and inquired as to who would be operating the No. 8 

locomotive. He acknowledged to the inspector that he was the operator and 

when the inspector asked ~hether he had a jack, he replied that he did not 

know and he did so because he had not started his shift, nor had he hauled 

254~5 
any coal with the locomotive. Mr. Jansante indicated that as far as he knew, 

the shift in.nediately prior to his was a down shift, and that the locomotive 

was used prior to the down shift to haul coal. He also indicated that prior 

to operating the locomotive his normal routine is to check for the jack, and 

inspect the sanders, brakes, and lights: If any defects are detected, he 

would take care of minor problems, and major problems are reported to the 

dispatcher (Tr. 77-81). 

Mr. Jansante stated that since he had not checked the locomotive, he had 

no idea where the jack was located. As for the sanders, he indicated that 

although the lever worked most of the time, "once in a while" it would stick. 

On the day in question, after the inspector observed that it would not work, 

he (Jansante) climed up into the locomotive and started kicking the lever, and 

he indicated that "that's how I got it free and the sanders started to work" 

(Tr. 81). He obtained a jack about a block or so from where the locomotive 

was parked and he did so after the section foreman advised him where it was 

located. The foreman also advised him that road work was going on during the 

previous shift and he (Jansante) believed the jack was used to facilitate the 

blocking of track. When asked whether any road work was going on during the 

shift, he replied "there was no road work going on," and that "they don't 

do any road work when they are loading coal" (Tr. 82-83). 

Mr. Jansante stated that from his experience with previous locomotive 

derails, placing it back on the track with a jack was difficult, and he 

denied that he would have moved the locomotive had he discovered that the 

jack was missing or that the sanders were inoperative. He did not believe 

that the inspector was present when he finally got the sanders to operate, 

and he did not discuss the inoperative sanders with the inspector and "just 

did what he asked me to do" (Tr. 84). He also testified that coal was being 

loaded at the time, but that he had not hauled any with the locomotive (Tr. 

85). . 

On cross-examination, Mr. Jansante confirmed that until the inspector 

pointed out to him that the jack was missing from its usual place on the 

locomotive, he was unaware that it was missing. He also confirmed that 

the locomotive could have been operated along the track from where it was 

parked, but that he was the only authorized operator assigned to operate it 

on the shift in question. He believed that the inspector advised the section foreman as to where the jack which was retrieved was located and that 

the section foreman in turn advised him where it could be found. As for 

the defective sander lever, he acknowledged that the same condition may have 

existed "a couple of times" during the previous 2 years. He also confirmed 

that once the lever was "forced" by kicking it, it operated properly. He 

stated that given the opportunity, he would have checked his locomotive 

before operating it, but that he had no opportunity to check it before the 

inspector got to it and issued the citations (Tr. 83-88). He also indicated 

that if the locomotive had been inspected on the prior shift and found to be 

defective, the condition would have been noted, but that was not the case as 

far as he knew since no one informed him that the sanders were inoperative 

or that the jack was missing. He acknowledged that someone had to drive the 

2546 
locomotive to the ramp where it ws parked when the inspector observed it (Tr. 

89 ). 

Fact of Violations ---·-----

The citations issued in this case concern alleged violations of the 

safety standards dealing with transportation of men and materials promulgated 

pursuant to sections 101 and 314(b) of the Act. Section 314(b), which is 

codified at 30 C.F.R. § 75.1403, authorizes an inspector to issue safeguard 

notices, which in his judgment will adequately minimize hazards connected with 

the transportation of men and materials in a particular mine. The regulatory 

criteria under which a mine inspector is required to be guided in issuing safeguard notices for a particular mine are those set forth at sections 75.1403-2 

through 75.1403-11. 

It seems clear that the purpose of issuing safeguard notices is to initially bring to the attention of a mine operator conditions or practices in 

the mine which require attention in order to minimize or eliminate hazards 

with respect to the transportation of men and mateials in the mine. Safeguards are issued on a mine-by-mine basis, and once issued, they become 

mandatory for the particular mine in which they are issued. Pursuant to 

section 75.1403-l(b), once a safeguard notice is issued, the mine operator 

is required to provide the safeguard within the time fixed by the inspector. 

The operator is also required to thereafter maintain the safeguard, and if 

he does not, a citation may issue pursuant to section 104 of the Act. 

In my view, the use of safeguard notices is a rather unusual practice. 

Absent any specific mandatory safety standard to guide a mine operator, the 

inspector has discretion under section 75.1403 to require a mine operator to 

comply with a safeguard which the .inspector believes will minimize a perceived 

hazard connected with transportation of men and materials. In short, the 

inspector is authorized to issue safeguards which in effect become mandatory 

standards for the particular mine, and the operator has no opportunity to 

challenge the inspector's initial judgment or to provide any comments or 

suggestions regarding a particular safeguard. The only opportunity for an 

operator to challenge the inspector's judgment is during a hearing after a 

noncompliance citation is issued. In these circumstances, I believe that 

safeguard notices should be strictly construed, and the inspector must follow 

the criteria stated in section 75.1403-1. In this regard, I take note of 

prior decisions by Judge Michels in MSHA v. Jim Walter Resources, Inc., 

BARB 78-652-P, 1 FMSHKC 1317 (September 4, 1979). vacating a citation after 

finding that an operator was not in violation of the specific terms of a 

previously issued safeguard notice, and Judge Broderick in MESA v. Jones 

& L~ughJin Steel Corporation, PITT 77-31-P (March 24, 1979)~ where he 

vacated a citation issued for a violation of section 75.1403, after finding 

that the operator had not failed to comply with a previously issued safeguard notice requiring the operator to provide safe riding facilities for 

persons riding on a locomotive. Additional reported cases dealing with 

2547 
violations of the safeguard notice provisions of section 75.1403 are as 

follows: 

In MSHA v. Sewell Coal Company, WEVA 79-293, 1 FMSHRC 96 (January 24, 

1980), Judge Bernstein affirmed a citation for a violation of section 

75.1403-6(b)(3), after finding that a track-mounted, self-propelled personnel 

carrier had only two of its four sanding devices in operational working order. 

The facts reflected that at the time of the citation, the vehicle was about 

tQ carry seven men into the mine over some narrow and steep terrain. 

In MSHA v. Clinchfield Coal Company, NORT 78-325-P, 1 FMSHRC 25 

(January--r4; 1980), Judge Steffey affirmed a citation for a violation of 

section 75.1403-10, after finding that the last mine car out of a trip of 

17 cars being pulled out of the mine by a locomotive failed to have a light 

or reflector installed on it as required by section 75.1403-lO(a). 

In MSHA v. Eastern Associated Coal Corporation, MORG 75-393, IB11A 76-55, 

1 FMSHRC 1473 (October 23, 1979), the Conunission affirmed a violation of section 75.1403, concerning an inoperable parking brake on a track-mounted, 

self-propelled personnel carrier (a jitney). 

In Consolidation Coal Company v. MSHA, WEVA 79-171-R, 1 FMSHRC 1638 

(October 19, 1979), Judge Broderick vacated a withdrawal order after finding 

that the period of time fixed for abatement of a violation of section 75.1403 

was unreasonable. However, he found that a safeguard notice issued pursuant 

to section 75.1403, requiring the operator to maintain haulage tracks in a 

safe workmanlike manner, taken in conjunction with the citation which was 

issued by the inspector, constituted a violation of the cited standard. 

Petitioner's Arguments 

MSHA's arguments in support of the citations issued in this case include 

an admission by counsel that the safety standard is ambiguous. Even so, 

counsel argues that it is deliberately ambiguous so as to enable an inspector 

to exercise some discretion requiring safeguards on a mine-by-mine basis. 

Further, counsel argues that the mine in question has a history of haulage 

accidents and haulage violations and that is the reason why the safeguards 

for the mine were issued in 1973 and 1974 (Tr. 114). 

Turning to the facts of the case, MSHA argues that the safeguard notices 

require the respondent to at all times maintain a jack on the locomotive and 

to insure that the sanding devices are operational. Since the inspector noted 

the violations approximately 2-1/2 hours into the shift, counsel asserts that 

it is not unreasonable to require the locomotive operator to make his preoperational check prior to the beginning of production, particularly where it is 

possible for anyone to climb aboard and drive the locomotive away. Failure to 

conduct a preshift inspection of the locomotive would expose that person and 

possibly others in the event sand was needed for traction, or the locomotive 

derailed and the operator attempted to right it by lifting it manually (Tr. 

115-118). Since the locomotive was not provided with a jack, and two of its 

2548 
sanders were inoperative at the time the inspector observed the locomotive, 

MSHA maintains that it has established the violations in question. And, 

since the respondent was on previous notice as to the requirements provided 

by the safeguards, MSHA believes that the respondent was negligent. 

Respondent's Arguments 

Respondent's defense is based on an assertion that at the time the 

inspector examined the locomotive it was not in operation but simply parked 

on the track. In these circumstances, respondent asserts that the locomotive 

operator had not had an opportunity to examine his locomotive prior to putting 

it in operation and that had he been given that opportunity, he would have 

discovered that the jack was missing and provided one. Respondent maintains 

further that company policy requires the locomotive operator to inspect it 

before placing it in operation and that by issuing the citation before giving 

the operator an opportunity to complete his inspection, the inspector acted 

arbitrarily (Tr. 122-125). 

In the instant case, it is clear from the evidence presented that the 

parked locomotive in question was provided with a jack-lifting bar, but that 

the jack was missing at the time the inspector observed it. As for the cited 

sanding devices, it is also clear that the sanders were filled with sand, but 

that the lever stuck at the precise moment the inspector asked the operator to 

activate it and found that no sand was dispersed. A jack which the inspector 

had observed against the rib while on his way to the locomotive was retrieved 

within minutes and placed on the locomotive to abate the citation, and after 

giving the sanding lever a kick with his foot, sand was dispersed and the 

inspector abated the second citation. 

As I observed during the course of the hearing in this case, counsel for 

both sides indulged in a great deal of speculation in presenting their respective cases. Respondent argued that the missing jack probably was taken off 

the locomotive to perform some maintenance work on the roadway during the 

prior shift. However, no credible testimony was forthcoming to support this 

conclusion. As a matter of fact, respondent's sole witness testified that he 

saw no road work being performed while he was present. The inspector did not 

believe that the jack which was provided to abate the citation was the same 

one taken from the locomotive because it had rock dust on it. I simply do not 

believe he knew whether it was the same one or not. 

MSHA's conclusions that the safeguards were initially issued in 1973 and 

1974 because of mine-haulage accidents and noncompliance with other haulage 

safety standards is unsupported by any credible evidence. While there are a 

number of citations for section 75.1403 listed in the computer printout 

detailing the prior history for the mine in question (Exh. G-3), absent any 

details as to the specific circumstances connected with those citations, I 

simply cannot accept an unsupported argument that they all involve haulage 

locomotives. 

Since no one bothered to look at the preshift books for December 9, 1980, 

the parties conceded that there is no information available as to whether any 

2549 
entries may have been made for the locomotive in question (Tr. 119). Although 

the inspector made notes of the times when he made his observations concerning 

the missing jack and inoperative sander, he did not check the preshift records, 

nor did he make any notes as to whether coal was actually being loaded, whether 

the locomotive was energized, whether cars were coupled to it, etc. It seems 

to me that these factors are critical to any determination as to whether there 

is a reasonable inference that the locomotive operator was about to move the 

locomotive without conducting his usual operational inspection at the time 

the inspector appeared on the scene. Since the citation issued nearly a year 

ago, the inspector could not specifically recall any of the critical details 

connected with the issuance of the citations. 

According to the inspector's interpretation of section 75.1725, all of 

the required equipment checks should be made during the normal work shift, but 

he conceded that the locomotive operator could wait until coal loading was 

completed before checking and moving the locomotive (Tr. 111). In addition, 

he agreed that the safeguard notices speak in terms of operating equipment, 

and that his citations also use the word "operating." He further explained 

the rationale for issuing the citations as follows (Tr. 111-113): 

JUDGE KOUTRAS: * * * Let me ask you this. Assuming 

that the locomotive operator told you, look, I don't have a 

jack and the sander levers aren't working but, let me see 

what the problem is and if I can get the jack on there and 

get the sanding levers operating before they finish loading 

those mine cars, what would be your reaction to that? 

THE WITNESS: I'd have a good reaction. Because to me, 

the individual is aware that there is said violations of law, 

and he's trying to take the corrective measures to fix them 

before he even makes an attempt to move it. And, he's notified me through communication that that's what he's going to 

do. 

JUDGE KOUTRAS: But, the story I'm getting now, from the 

operator in this case, is that you didn't give the locomotive 

operator an opportunity to pre-check his thing, before you 

dropped the citations on him? 

THE WITNESS: The man ought to--like you said to ask 

exactly--but, the--if the individual, at that time, had said, 

hey, look, I haven't even made my pre-op check yet and I 

don't know what's there or what's not there--i t would have 

made a difference, yes. 

JUDGE KOUTRAS: But, that wasn't communicated? 

THE WITNESS: It wasn't communicated, no sir. 

After careful consideration of all of the testimony and evidence adduced 

in this case, including the arguments advanced by the parties in support of 

2550 
their respective positions, I conclude that the respondent has the better part 

of the argument. While it is true that the petitioner has established that the 

jack was missing from the locomotive and that the sanding lever was inoperative when the inspector first viewed the parked locomotive, I cannot conclude 

from the facts presented in this case that the petitioner has established that 

the locomotive in question was being operated or was about to be operated 

before the inspector arrived on the scene. As a matter of fact, the inspector 

himself conceded that the locomotive operator could wait until the mine cars 

were loaded before conducting his inspection and moving the locomotive. In 

this case, I simply cannot conclude that petitioner has established through 

any credible testimony or evidence that the mine cars were loaded and waiting 

to be pulled away by the locomotive at the time the inspector walked past the 

parked locomotive. 

I believe that the locomotive operator in this case should have been 

given a reasonable opportunity to inspect his locomotive, and absent any evidence that he is required to conduct such an inspection at the start of the 

shift, the fact that the inspector observed the conditions 2 hours into a production shift is not critical in my view. I reject the notion that a locomotive operator has to inspect a parked locomotive as soon as he arrives on 

the shift to insure that some unauthorized person driving it away has access 

to a jack and a workable sanding device. If MSHA believes that this is a 

problem, then I suggest it consider amending the safeguard notices issued at 

this mine to make it absolutely clear that locomotive operators are required 

to inspect their equipment at the start of any shift, rather than waiting 

until such time as all of the mine cars are loaded and ready for haulage out 

of the mine. 

I note that the criteria for self-propelled personnel carriers found in 

section 75.1403-6(b)(l) and (3), specifically require a suitable lifting jack 

and bar as well as well-maintained sanding devices. Although the April 26, 

1974, safeguard notice was specifically directed to self-propelled mantrip 

cars, it also included all haulage equipment equipped with sanding devices, 

and I assume that this also covers locomotives, but the record is not clear 

on this point. It would seem to me that MSHA should promulgate similar 

criteria for locomotives used underground. Since operational sanding devices 

and lifting jacks appear to be desirable items common to all locomotives, it 

seems more logical to me to promulgate specific criteria covering this situation rather than to rely on safeguard notices which quite frankly leave much 

to the imagination and intermingle mantrip vehicles with locomotives used to 

pull loaded mine cars. 

ORDER 

In view of the foregoing findings and conclusions, IT IS ORDERED that the 

two citations issued in this case be VACATED. 

Judge 

2551. 
Distribution: 

David T. Bush, Esq., Office of the Solicitor, U.S. Department of Labor, 

14480-Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Louise Q. Symons, Esq., United States Steel Corporation, 600 Grant Street, 

Pittsburgh, PA 15230 (Certified Mail) 

2552 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HARMAN MINING COMPANY, 

Respondent 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

Docket No. VA 81-83 

A.O. No. 44-03614-03026V 

Harman 5-B Mine 

DECISION AND ORDER 

For the reasons set forth in the motion to approve settlement, 

the parties request approval of vacation and withdrawal of the four 

canopy violations and payment in full of the penalties assessed for the 

alleged deficiency in rock dust and excessive accumulation of combustibles. 

Based on an independent evaluation and de novo review of the 

circumstances and justifications offered, I find the disposition proposed 

is in accord with the purposes and policy of the Act. 

Accordingly, it is ORDERED that the motion to approve vacation 

and settlement be, and hereby is, GRANTED. It is FURTHER ORDERED that 

the operator pay the penalty agreed upon, $1500, on or before Friday, 

November 20, 1981 and that subject to payme the captioned matter be 

DISMISSED. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

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

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

Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli, 1110 Vermont 

Ave., NW, Washington, DC 20005 (Certified Mail) 

2553 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. LAKE 79-32-M 

Petitioner A/O No. 33-00013-05004 

v. 

BASIC REFRACTORIES, 

Basic Refractories Quarry 

and Plant 

Appearances: 

Before: 

Respondent 

DECISION 

Linda Leasure, Esq., Office of the Solicitor, 

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

for the Petitioner, 

Jack A. Klein, Esq., Doehrel & Klein, Columbus, 

Ohio, for the Respondent. 

Judge Cook 

I. Procedural Background 

On June 26, 1979, the Secretary of Labor (Petitioner) filed a petition 

for assessment of civil penalty in the above-captioned case pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (Supp. III 1979) (1977 Mine Act). The petition charged Basic 

Refractories (Respondent) with 13 violations of various provisions of the 

Code of Federal Regulations, as set forth in citations issued pursuant to 

section 104(a) of the 1977 Mine Act. The Respondent, acting through its 

safety director, filed an answer on July 12, 1979. 

On November 5, 1979, the Respondent, through counsel, moved to amend 

its answer. The motion was granted on November 27, 1979, and the amended 

answer was filed on December 14, 1979. 

Also, on November 5, 1979, the Respondent moved to extend the time 

period for discovery by interrogatory. The motion was granted on November 27, 

1979. 

On or about January 14, 1980, the Petitioner requested advice from its 

Arlington, Virginia, office as to whether the Interagency Agreement between 

2554 
the Mine Safety and Health Administration (MSHA) and the Occupational Safety 

and Health Administration (OSHA), se~ 44 Fed. _!leg. 22827 (April 17, 1979), 

and an August 3, 1979, interpretive memorandum issued by the Administrator 

for Metal and Nonmetal Mine Safety and Health, transferred jurisdiction over 

all aspects of the Respondent's operation, other than the quarry, to OSHA. 

As a result of this inquiry, the Petitioner filed a motion and supporting 

memorandum on March 20, 1980, requesting the vacation and dismissal of 

Citation Nos. 368863, 368877, 368885, 368886, 368888, and 368889. A determination granting the motion is contained herein. 

On May 19, 1980, the Petitioner filed a motion and supporting memorandum 

requesting approval of settlement which encompasses Citation Nos. 368848, 

368851, and 368854. A determination approving the settlement is contained 

herein. 

On May 21, 1980, a notice of hearing was issued scheduling the remaining 

matters for hearing on the merits on August 7, 1980, in Bowling Green, Ohio. 

Subsequent thereto, counsel for the Respondent contacted the undersigned 

Administrative Law Judge to request a telephone conference for the purpose 

of requesting a continuance. The requested conference was held on July 29, 

1980, with the undersigned Administrative Law Judge and representatives of 

both parties participating. Counsel for the Petitioner raised no objection 

to the continuance. Accordingly, an oral determination was made granting the 

requested continuance subject to the condition that the Respondent file a 

written motion formally setting forth the reasons for the request. The 

motion was filed on August 11, 1980, and an order was issued on August 20, 

1980, continuing the hearing to November 14, 1980, in Bowling Green, Ohio. 

The hearing was held as scheduled with representatives of both parties 

present and participating. The Respondent filed a trial brief, and made a 

motion to dismiss the proceeding at the close of the Petitioner's case-inchief. A ruling on the motion is set forth herein. 

Following the presentation of the evidence, a schedule was set for the 

filing of posthearing briefs and proposed findings of fact and conclusions 

of law. However, the schedule was later revised due to difficulties experienced by counsel. The Respondent filed a posthearing brief and proposed 

findings of fact and conclusions of law on April 27, 1981. The Petitioner 

filed a posthearing memorandum on May 4, 1981. Neither party filed a reply 

brief. 

II. Violations Charge~ 

Citation No. 

368841 

368846 

368847 

368848 

368849 

Date 

11/28/78 

11/29/79 

11/2 9/78 

11/29/78 

11/2 9/78 

2555 

30 C.F.R. Standard 

56 .14-1 

56.11-1 

56.14-1 

56.14-1 

56 .14 ·-1 
368851 11/29/78 56.14-1 

368854 11/2 9/78 56.14-1 

368863 11/30/78 56.14-1 

368877 11/30/78 56.11-2 

368885 12/06/78 56.14-1 

368886 12/06/78 56.14-1 

368888 12/06/78 56.14-1 

368889 12/06/78 56 .14-1 

III. Witnesses and Exhibits 

A. Witnesses 

The Petitioner called Federal mine inspector Michael Pappas as a witness. 

The Respondent called Mr. Antony Dantuono, the mill foreman; and 

Mr. Raymond Ouellette, a mechanical engineer employed by the Respondent, 

as witnesses. 

Both the Petitioner and the Respondent called Mr. Arthur Jibilian, the 

Respondent's safety director, as a witness. 

B. Exhibits 

1. The Petitioner introduced the following exhibits in evidence: 

M-1 is a three-page document containing copies of Citation No. 

368841, November 28, 1978, 30 C.F.R. § 56114-1, the termination thereof, 

and the inspector's statement pertaining thereto. 

M-2 is a three-page document containing copies of Citation No. 

368846, November 29, 1978, 30 C.F.R. § 56.11-1; the termination thereof; 

and the inspector's statement pertaining thereto. 

M-3 is a three-page document containing copies of Citation No. 

368847, November 29, 1978, 30 C.F.R. § 56.14-1, the termination thereof; 

and the inspector's statement pertaining thereto. 

M-4 is a three-page document containing copies of Citation No. 

368849, November 29, 1978, 30 C.F.R. § 56.14-1; the termination thereof; 

and the inspector's statement pertaining thereto. 

2. The Respondent introduced the following exhibits in evidence: 

0-1, 0-2, and 0-3 are photographs pertaining to Citation No. 

368841, November 28, 1978, 30 C.F.R. § 56.14-1. 

0-4, 0-5, and 0-6 are photographs pertaining to Citation No. 

368847, November 29, 1978, 30 C.F.R. § 56.14-1. 

2556 
0-7, 0-8, and 0-9 are photographs pertaining to Citation No. 

368849, November 29, 1978, 30 C.F.R. § 56.14-1. 

0-10 contains three schematic drawings pertaining to Citation 

No. 368841, November 28, 1978, 30 C.F.R. § 56.14-1. 

0-11 contains three schematic drawings pertaining to Citation 

No. 368847, November 29, 1978, 30 C.F.R. § 56.14-1. 

0-12 contains three schematic drawings pertaining to Citation 

No. 368849, November 29, 1978, 30 C.F.R. § 56.14-1. 

IV. Issues 

Two basic issues are involved in this civil penalty proceeding: (1) did 

a violation of the subject mandatory safety standards occur, and (2) what 

amount should be assessed as a penalty if a violation is found to have 

occurred? In determining the amount of civil penalty that should be assessed 

for a violation, the law requires that six factors be considered: (1) history 

of previous violations; (2) appropriateness of the penalty to the size of the 

operator's business; (3) whether the operator was negligent; (4) effect of the 

penalty on the operator's ability to continue in business; (5) gravity of the 

violation; and (6) the operator's good faith in attempting rapid abatement of 

the violation. 

v. Opinion and Findings of Fact 

A. Stipulations 

1. The Basic Refractories Quarry is a "mine" within the meaning of the 

1977 Mine Act (Tr. 4-5). 

2. Jurisdiction rests in the Federal Mine Safety and Health Review 

Commission with respect to Citation Nos. 368841, 368846, 368847, and 368849 

(Tr. 4-5). 

3. Jurisdiction rests in the Federal Mine Safety and Health Review 

Commission with respect to the citations encompassed by the May 19, 1980, 

settlement motion (Tr. 4-5). 

4. The citations encompassed by the March 20, 1980, motion to 

dismiss are within the jurisdiction of the Occupational Safety and Health 

Administration (Tr. 4-5). 

5. The size of the Basic Refractories Quarry was rated at approximately 

358,329 production man-hours in 1978 (Tr. 4-5). 

6. As of November 28 and 29, 1978, the Basic Refractories Quarry had 

no history of previous violations under the 1977 Mine Act. This was the 

first inspection of the facility conducted pursuant to the 1977 Mine Act 

(Tr. 5). 

255'( 
B. Respondent's Motion to Dismiss 

The Respondent moved to dismiss the proceeding 1/ as relates to Citation 

Nos. 368841, 368846, 368847, and 368849 at the close-of the Petitioner's casein-chief on the grounds that the Petitioner had failed to establish a prima 

facie case as relates to the four violations charged. The motion was taken 

under advisement to be ruled upon at the time of the writing of the decision 

based solely upon the evidence contained in the record when the motion was 

made (Tr. 87-90). 

Neither the Rules of Procedure of the Federal Mine Safety and Health 

Review Commission, nor the Administrative Procedure Act, nor the 1977 Mine 

Act set forth express standards governing the disposition of motions to 

dismiss at the close of an opposing party's case-in-chief. It is therefore 

appropriate to consult the Federal Rules of Civil Procedure for guidance. 

29 C.F.R. § 2700.l(b) (1980). 

Rule 4l(b) of the Federal "Rules of Civil Procedure provides, in part, 

as follows: 

After the plaintiff, in an action tried by the court without 

a jury, has completed the presentation of his evidence, the 

defendant, without waiving his right to offer evidence in the 

event the motion is not granted, may move for a dismissal on 

the ground that upon the facts and the law the plaintiff has 

shown no right to relief. The court as trier of the facts 

may then determine them and render judgment against the 

plaintiff or may decline to render any judgment until the 

close of all the evidence. 

In ruling upon a Rule 4l(b) motion to dismiss, the trial court is empowered 

to weigh the evidence, consider the law, and find for the defendant at the close 

of the plaintiff's case-in-chief. 5 J. MOORE, FEDEHAL PRACTICE, ~ 41.13[4] at 

pp. 41-189 - 41-192 (1980). The trial court may grant the defendant's motion 

when the plaintiff fails to present sufficient evidence during its case-inchief to satisfy its burden of proof. See Brennan v. Sine, 495 F.2d 875 

(10th Cir. 1974), Woods v. North Americ~Rockwell Cor~tion, 480 F.2d 644 

(10th Cir. 1973); Pittston-Luzerne Corporation v. United States, 176 F. Supp. 

641 (M.D. Pa. 1959). 

1/ The Respondent used inaccurate terminology when it moved for what it 

termed a "directed verdict" at the close of the Petitioner's case-in-chief. 

Proceedings before Administrative Law Judges of the Federal Mine Safety and 

Health Review Commission are tried without juries. The Administrative Law 

Judge is the trier of fact. Therefore, the Respondent's motion has been 

treated as a motion to dismiss at the close of the Petitioner's case-inchief for failure to sustain its burden of proof. See James v. Du Breuil, 

500 F.2d 155, 156 n. 2 (5th Cir. 1974), Martin v. E. I. du Pont De Nemours 

& Company, Inc., 281 F.2d 801, 802 n. 1 (3rd Cir. 1960); 5 J. MOORE, FEDERAL 

PRACTICE, ~ 41.13[1] at P• 41-177 (1980). 

2558 
Citation No. 368846 charges the Respondent with a violation of mandatory 

safety standard 30 C.F.R. § 56.11-1 in that H failed to provide and maintain 

a safe means of access to a designated working place at the Basic Refractorj_es 

Quarry and Plant. The evidence contained in the record when the motion to 

dismiss was made, insofar as material to the determination as to whether a 

violation occurred, consisted of a copy of the citation, testimony provided 

by Federal mine inspector Michael Pappas, and testimony provided by Mr. Arthur 

Jibilian, the Respondent's safety director. Such evidence, particularly 

Mr. Jibilian 1 s testimony, is considered sufficient to support the conclusion 

that the Petitioner satisified its burden of proof during its case-in-chief. 

Accordingly, the motion to dismiss will be denied as relates to Citation No. 

368846. 

Citation Nos. 368841, 36884 7, and 3688!+9 charge the Respondent with 

three violations of mandatory safety standard 30 C.F .R. § 56 .14-1 in that 

three specified tail pulleys were unguarded. The cited mandatory safety 

standard provides, in part, that tail pulleys which may be contacted by 

persons, and which may cause injury to persons, shall be guarded. 11 

The evidence contained in the _record when the motion to dismiss was 

made, insofar as material to the determination as to whether the violations 

occurred, consisted of copies of the three citations, testimony provided by 

Inspector Pappas, and testimony provided by Mr. Jibilian. In each instance, 

both the inspector 1 s testimony and the statements appearing on the face of 

the citation maintained that no guards whatsoever were provided on the 

three tail pulleys (Exhs. M-1, M-2, M-3; Tr. 11, 14-16, 49, 52, 55). The 

inspector's testimony indicates that the three citations were issued because 

of the exposure to pinch points presented by the unguarded tail pulleys (Tr. 

12 ' 15 ' 16 ' 5 2). 

As relates to Citation No. 368841, 3/ Mr. Jibilian testified that the 

cited tail pulley was located in the No.-37 plant. He further testified 

that the tail pulley was guarded and that, as a result of the guard, no 

one could be harmed (Tr. 64-65, 73-7 !+). 

2/ Mandatory safety standard 30-- C. F. R. § 56 .14-1 provides as follows: 

''Gears; sprockets, chains, drive, head, tail and takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and similar exposed moving 

machine parts which may be contacted by persons, and which may cause injury 

to persons, shall be guarded." 

3/ Federal mine inspector Michael Pappas issued Citation No. 368841 during 

the course of his November 28, 1978, inspection of the Respondent's Basic 

Refractories Quarry and Plant (Tr. 11). The citation alleges a violation of 

mandatory safety standard 30 C.F .R. § 56 .14-1 in that "[a] guard was not provided on the tail pulley of the stock out belt under the filter" (Exh. M-1, 

p. 1). 

255~) 
As relates to Citation No. 368847, !±_/Mr. Jibilian testified that the 

cited tail pulley was located in a tunnel in Building 36. Walls abutted both 

the end and the west side of the tail pulley preventing access from those 

directions (Tr. 70). A walkway along the east side of the conveyor belt 

was the sole means of access to the tail pulley (Tr. 70). According to 

Mr. Jibilian, a guard measuring approximately 3 feet in length and 1 foot 

in width was present on the east side of the tail pulley. The pinch point 

was located at the bottom of the belt and was "fairly" inaccessible (Tr. 75). 

As relates to Citation No. 368849, 5/ Mr. Jibilian testified that the 

cited tail pulley was located in the mill (Tr. 71-72). A walkway was located 

along the north side of the conveyor (Tr. 72). According to Mr. Jibilian, 

the tail pulley was guarded. One side of the tail pulley was against the 

wall and a guard was present on the other side. The pinch point was located 

at the bottom of the tail pulley and was covered by the guard (Tr. 76) • 

. In view of the foregoing, it must be concluded that the evidence adduced 

during the Petitioner's case-in-chief contains patent contradictions as to 

whether guards were present on the three cited tail pulleys. It must be 

further concluded that such contradictions preclude a finding that the 

Petitioner sustained its burden of proof during its case-in-chief. The 

inspector's testimony throughout the Petitioner's case-in-chief clearly 

indicated that his present recollection on this point had dimmed with the 

passage of time, whereas Mr. Jibilian's recollection was intact. 

Mr. Jibilian is considered the more credible witness on the issue as to 

whether guards were present. 

It should be noted, however, that at one point the inspector gave testi.,.. 

mony to the effect that in November of 1978 it was his practice to cite all 

guarding violations, including those for inadequate guarding as opposed to a 

total absence of guards, by using the descriptive term "no guards" (Tr. 79-

80). This testimony, in view of the other evidence adduced during the 

Petitioner's case-in-chief, is considered insufficient to support a determination that any guards present may have been inadequate. The comment was 

not made until after Mr. Jibilian testified that guards were present. Additionally, Inspector Pappas was initially quite evasive when cross-examined 

as to the implications of this statement as relates to the three subject 

guarding citations. But he ultimately reasserted his position that no 

guards were present (Tr. 80-81). 

4/ Federal Mine inspector Michael Pappas issued Citation No. 368847 during 

the course of his November 29, 1978, inspection of the Respondent's Basic 

Refractories Quarry and Plant (Tr. 14-15). The citation alleges a violation 

of mandatory safety standard 30 C.F.R. § 56.14-1 in that "[a] guard was not 

provided on the tail pulley of No. 7 conveyor belt" (Exh. M-3, p. 1). 

5/ Federal mine inspector Michael Pappas issued Citation No. 368849 during 

the course of his November 29, 1978, inspection of the Respondent's Basic 

Refractories Quarry and Plant (Tr. 16). The citation alleges a violation 

of mandatory safety standard 30 C .F .R. § 56 .14-1 in that "[a] guard was not 

provided on the tail pulley of the No. 5 recrush belt" (Exh. M-4, p. 1). 

2560 
In view of the foregoing, the Respondent's motion to dismiss at the 

close of the Petitioner's case-in-chief will be granted as relates to 

Citation Nos. 368841, 368847, and 368849. 

Even assuming for purposes of argument that the Petitioner successfully 

established inadequate guarding during its case-in-chief, the evidence adduced 

by the Respondent during its case-in-chief was more than adequate to successfully rebut it. The evidence on the record taken as a whole will not support 

findings that the guards present on the three cited tail pulleys were insufficient to prevent contact with the pinch points. 

The pinch point was located at the bottom of the tail pulley in each of 

the three instances cited by Inspector Pappas (Tr. 143-144). None of the 

three conveyors can operate in such a fashion that the pinch points would be 

located at the top of the pulley (Tr. 143-144, 147). All modifications made 

to abate the citations were requested by Inspector Pappas (Tr • 144-145). 

As relates to Citation No. 368841, adjusting the belt was the only work 

that could be performed at the tail pulley with the belt in operation. No 

maintenance would have been performed near the pinch point unless the machine 

was turned off and the guards were removed (Tr. 158-159, 165). In order to 

achieve contact with the pinch point with the existing guards in place, an 

individual would have been required to lie on the floor and reach up under 

the guard through a point where the height between the floor and the bottom 

of the guard ranged from 4-7/8 inches to 7-1/4 inches (Exh. 0-2, Tr. 113, 179; 

Exh. 0-10). He would have been required to reach beyond his elbow in order 

to achieve contact with the pinch point (Tr. 113; Exh. 0-2). An individual 

in the normal course of his work would never asswne such a position and reach 

up into the pinch point (Tr. 158-159). 

The tail pulley was guarded on November 29, 1978, by the conveyor frame, 

expanded metal mesh guards, and sheet metal (Exh. 0-1, Tr. 93-94, 112; Nos. 1 

2, and 3 on Exh. 0-10, Tr. 202-205; see also Tr. 207-209). In order to abate 

the citation, the Respondent supplemented the existing guards by installing a 

guard across the end of the tail pulley, by installing a guard across the top 

of the tail pulley, and by installing guarding which covered only rollers 

along the conveyor belt (compare Exh. 0-1 with Exhs. 0-2 and 0-3, Tr. 103, 

106-107, 119, 147-148; Nos. 4, 5, and 6 on Exh. 0-10, Tr.~2-205). However, 

none of the actions taken to abate the citation diminished any hazard of contact with the tail pulley pinch point (Tr. 118-119). 

As relates to Citation No. 368847, the cited tail pulley was in a relatively isolated area where people did not travel during the course of a day's 

work (Tr. 145). In fact, employees would not pass the tail pulley because 

the end practically abutted the wall (Tr. 71). It appears that employees 

visited the area once a week to perform cleanup activities, and that such 

activities were usually performed with a hose. An oiler was scheduled to 

visit the area once every 1 or 2 weeks to administer lubrication. He used 

an extension fitting to perform this task. It appears that the lubrication 

2561. 
point was approximately 2 feet from the tail pulley (Tr. 70-71). Additionally, it appears that belt tension adjustments were made at the tail pulley 

(Tr. 181). 

The best available evidence in the record indicates that an individual 

would have been required to either lie prone on the floor or assume 

an extremely low kneeling position with his trunk virtually parallel to the 

floor in order to reach up underneath the guard and above the belt in an 

attempt to achieve contact with the pinch point. It should be noted that 

such action would have been necessary to obtain exposure to the pinch point 

even after the citation was abated (see Exhs. 0-4, 0-5, Tr. 121-122, 124, 

131, 229). There would have been no reason for a person to attempt such a 

feat during the normal course of his work. A man working around the tail 

pulley would not fall or kneel and subsequently stretch his arm up underneath the frame and into the pinch point. 

The pinch point was guarded on November 29, 1978, by a guard installed 

on the east side of the tail pulley. Elements of the conveyor framework 

provided additional guarding (Tr. 122, 126, 131-132, 183-184, 187, 209-210, 

217-219, Exhs. 0-4, (}-5, 0-11). To abate the citation, the Respondent 

installed guards across the top and the end of the tail pulley. The 

existing guard along the east side of the tail pulley was replaced with a 

somewhat larger one (Exhs. 0-4, 0-5, 0-6, 0-11; Tr. 209-210). The new 

guard installed on the east side of the tail pulley extended approximately 

as far downward as the old one. The best available evidence in the record 

indicates that the guarding installed to abate the citation allowed the same 

access to the pinch point as existed prior to November 29, 1978 (Tr. 124, 

126, 131, 209-210). 

As relates to Citation No. 368849, the crusher operator would, on occasion, use the walkway on the north side to merely walk past the tail pulley 

(Tr. 72-73, 146). No maintenance would have been performed near the pinch 

point while the belt was in operation (Tr. 165). A large nut passed through 

the frame at the end of the tail pulley and was used to adjust belt tension 

(Tr. 165-166, 192, 195, 196, 199). It was not possible for a maintenance 

man adjusting the belt tension to achieve contact with the pinch point (Tr. 

165-166). In order to achieve contact with the pinch point, an employee 

would have been required to lie on the floor and place his hand through an 

extremely small opening at the bottom of the frame and reach upward (compare 

Exh. 0-7 with Exh. 0-9). An employee, in the normal course of his duties 

around the tail pulley, would never have performed such a feat (Tr. 157). 

Nor does it appear that an individual would have fallen down, placed his 

arm under the frame and reached upward (Tr. 157). 

In order to abate the citation, the Respondent installed a guard across 

the top of the tail pulley and across the end of the tail pulley. The latter 

guard did not cover all of the tail pulley. Rather, it extended only approximately one-fifth of the distance from the top of the conveyor frame to the 

floor (Exh. 0-12, Tr. 222-224; compare Exh. 0-7 with Exh. 0-8). The guard 

along the north side of the tail pulley was replaced with a smaller guard. 
It should be noted that the replacement did not extend as far downward as 

did the previous guard (compare Exh. 0-7 with Exh. 0--8). The guarding 

installed to abate the cTtation did not afford better protection as relates 

to the pinch point than the guard present when the citation was issued. 

The foregoing evidence rebuts any suggestion that the guarding present 

when the citations were issued was inadequate to afford protection from 

the pinch points. It must be presumed that the Hine Safety and Health 

Administration, acting through Inspector Pappas, considered the guards 

present when the citations were terminated adequate to afford the requisite 

protection from the tail pulley pinch points (Exhs. M-1, p. 2, M-3, p. 2; 

M~4, p. 2; Tr. 52). However, it is clear that the guards installed to 

abate the citations afforded no better protection as relates to the pinch 

points than did those present when the citations were issued. 

It appears that Inspector PapJ?as, in issuing the citations, was motivated in part by his apparent: belief that pinch points were present at the 

top of the tail pulleys (see Tr. 50). Such belief would account for his 

recommendation that guardSJ)e installed across the tops and ends of the 

tail pulleys. This belief was clearly erroneous because none of the three 

conveyors can operate in such a fashion that pinch points would be formed 

at the top of the pulleys (Tr. 143-144, 147). 

The inspector also gave testimony which indicated that guards were 

required across the ends and tops of the tail pulleys because it was "possible" 

that an individual could fall onto the top of the moving belt at a tail pulley 

and be transported to either a discharge chute or a crusher (Tr. 53). The 

inspector further indicated that the height of the tail pulleys prompted this 

concern (Tr. 78). It is significant to note, however, that the Petitioner has 

not argued this theory in its posthearing memorandum. Rather, the Petitioner 

styles the inspector's testimony as standing for the proposition that an 

employee falling on the moving belt could sustain bruises and lacerations. 

The Petit~oner's characterization is erroneous because the inspector never 

testified to that effect. In fact, a person falling on a stationary object 

could sustain bruises or lacerations. .There is no indication that falling 

atop the moving belt could have produced such injuries as a result of cont.acting moving machine parts. The inspector's testimony, when viewed as a 

whole, indicates that the three citations were issued solely because of the 

perceived exposure to pinch points. 

Additionally, as noted above, one of the guards installed to abate 

Citation No. 368841, i.e., one of the guards recommended by Inspector Pappas, 

covered only some rollers along the conveyor belt. It is clear, however, that 

the Respondent was not charged with a violation of mandatory safety standard 

30 C.F.R. § 56.11-1 insofar as belt rollers were concerned. The citation does 

not mention belt rollers, and the inspector never mentioned exposed rollers 

during his testimony. Furthermore, the testimony of Mr. Jibilian reinforces 

the conclusion that the Respondent was not cited for exposed rollers (Tr. 151-

152). It is also significant to note that the Petitioner does not argue in 

256~1 
its posthearing memorandum that the exposed belt rollers form a basis for the 

charge of violation. In fact, exposed belt rollers are never mentioned in the 

posthearing memorandum. 

In view of the foregoing, it would have to be concluded that the evidence 

on the record as a whole is insufficient to prove the occurrence of the violations charged in Citation Nos. 368841, 368847, and 368849. 

C. Citation No. 368846, November 29, 1978, 30 C.F.R. § 57.11-1 

1. Occurrence of Violation 

Citation No. 368846 was issued by Federal mine inspector Michael Pappas 

during the course of his November 29, 1978, inspection at the Respondent's 

Basic Refractories Quarry and Plant (Tr. 10, 13). The citation alleges a 

violation of mandatory safety standard 30 C.F.R. § 56.11-1 in that "[a] 

safe means of access was not provided to the east walkway at the Symons 

screens" (Exh. M-2). The cited mandatory safety standard requires that 

"[s]afe means of access shall be provided and maintained to all working 

places." The term "working place," as used in Part 56 of Title 30 of the 

Code of Federal Regulations, means "any place in or about a mine where work 

is being performed." 30 C.F.R. § 56.2. 

The cited area was apparently located at the east end of the fourth floor 

in Building 36, also known as the mill or stone plant (Tr. 57). The building 

was undergoing renovation by an independent contractor when the citation 

was issued (Tr. 67). In fact, the independent contractor's employees were 

performing renovation work in the cited area when the citation was issued (Tr. 

13, 67). 

The nature of the construction being performed on the east walkway was 

the replacement of the beams and the floor plates (Tr. 155). It appears 

that a substantial amount of material was located on the east walkway when 

the citation was issued. This material consisted of old pieces of beams, 

oxygen-acetylene tanks, hoses, and other tools needed by the independent 

contractor's employees in the course of removing the old, deteriorated beams 

and in the course of installing the new beams (Tr. 67). 

The citation alleges that safe means of access was not provided and maintained for the Respondent's employees who would perform work on the Symons 

screens. For the reasons set forth below, I find that the violation has been 

established by a preponderance of the evidence. 

Mr. Arthur Jibilian, the Respondent's safety director, maintained at 

one point in his testimony that no employee requiring access to the screens 

would use the east walkway because any adjustments or other work would 

have been performed from the floor below (Tr. 69). However, he maintained 

at a later point in his testimony that employees occasionally work on the 

east end of the Symons screen, and that the east walkway is the sole means 

of access to the east end of the Symons screen (Tr. 74). 

2564 
Mr. Antony Dantuono, the Respondent's mill foreman, testified that he 

considered the east walkway unnecessary for access to any work area because 

the adjustments to the Symons screen can be made from the floor below (Tr. 

156, 160-161). In this regard, he testified, in effect, that he and the 

group leader were the only ones who performed the adjustments, that the 

two men usually performed the task together as a team, and that he always 

made the adjustments from the floor below (Tr. 160-161). However, he 

could not affirmatively testify that the group leader does not make the 

adjustments from the east walkway (Tr. 161). 

Mr. Dantuono's testimony is not considered persuasive insofar as it 

maintains that no violation of mandatory safety standard 30 C.F.R. § 56.11-1 

occurred. Mr. Dantuono affirmatively testified that the east walkway is used 

to adjust the different machines in the Symons screen (Tr. 156), and that "we 

go back on this walkway*** to adjust a 54 sand cone" (Tr. 160). 

In view of the foregoing, I find that the east walkway, at the time 

of the inspection, was maintained and used as a means of access for the 

Respondent's employees who periodically performed work on the Symons 

screens, or made periodic adjustments to the Symons screens. The fact 

that no work was being performed at the time of the inspection (Tr. 74-75), 

or that the east walkway was not a general traffic area (Tr. 68), do not 

constitute affirmative defenses. 

The fact that all work or adjustments could have been performed from 

the floor below is not an affirmative defense to the charge of violation on 

the facts presented herein. The Commission has expressly rejected the view 

that the standard's mandate is met when one safe means of access to a working 

place exists. The standard imposes an affirmative obligation on the operator 

to make each means of access to a working place safe unless, for example, 

there is no reasonable possibility that a miner would use the route as a 

means of reaching or leaving a workplace. The Hanna Mining Company, 3 FMSHRC 

2045, 2 BNA MSHC 1433, 1981 CCH OSHD par. 25,672 (1981). 

As noted previously, the cited east walkway was part of an active construction site on November 29, 1978, and a substantial amount of material 

was present in the form of debris and tools. In fact, Mr. Dantuono testified that it was customary for the independent contractor's employees to 

allow the debris to remain until the job was completed (Tr. 155-156). It 

can therefore be inferred that the Respondent's employees who used the east 

walkway for access to the Symons screens were exposed to a tripping or 

stumbling hazard. Accordingly, it is found that the Respondent failed to 

provide and maintain safe means of access to the Symons screens for its 

employees. 

The fact that the violative condition may have been caused by the 

activities of an independent contractor is not an affirmative defense. The 

Commission has held that a mine operator can be held responsible without 

fault for violations of the 1977 Mine Act or the mandatory health and safety 
standards committed by independent contractors performing work on mine property. When the subject citation was issued, the Petitioner was pursuing a 

valid interim policy of citing mine operators for violations committed by 

independent contractors. Old Ben Coal Company, 1 FMSHRC 140, 1 BNA MSHC 

2177, 1979 CCH OSHD par. 23,969 (1979), aff'd., No. 79-2367 (D.C. Cir., 

filed December 9, 1980). 

In view of the foregoing, I conclude that a violation of mandatory safety 

standard 30 C.F.R. § 56.11-1 has been established by a preponderance of the 

evidence. 

2. Gravity of the Violation 

The record does not establish that individuals exposed to the tripping 

or sttllllbling hazard faced potentially serious injuries. 

The record contains no reliable, probative, and substantial evidence as 

to the probability of the occurrence of the event against which the cited 

standard is directed, nor as to how severe the injury resulting from or contemplated by the occurrence of the event could reasonably be expected to be. 

In this regard, it is significant to note that the statements recorded under 

the "gravity" heading on the inspector's statement (Exh. M-2, p. 3), are 

those of Mr. William Acuna, a Federal mine inspector-trainee who accompanied 

Inspector Pappas during the inspection (Tr. 18, 41), and are not the recorded 

observations of Inspector Pappas. Additionally, Mr. Acuna's observations were 

not recorded contemporaneously with the transaction or occurrence observed by 

him. Rather, he recorded his observations on the inspector's statement in 

December of 1978 or January of 1979 (Tr. 60). 

Either Mr. Dantuono or the group leader would have been affected if the 

event against which the cited standard is directed had occurred. 

In view of the foregoing, I find that the violation was nonserious. 

3. Negligence of the Operator 

The evidence presented clearly shows that the Respondent demonstrated 

negligence in connection with its failure to provide and maintain a safe 

means of access to the Symons screens. 

As noted previously, Building 36 was undergoing renovation by an independent contractor when the citation was issued. In fact, the independent 

contractor's employees were performing renovation work in the cited area when 

the citation was issued. A substantial amount of material was present on the 

walkway, consisting of old pieces of beams, oxygen-acetylene tanks, hoses, 

and other tools needed by the independent contractor's employees in the 

course of their work. It can be inf erred from the testimony of Mr. Dantuono, 

the mill foreman, that the condition had existed for a substantial period of 

time (see Tr. 155-156). The condition was sufficiently extensive and had 

existe"Cifor such a substantial period of time that the Respondent knew or 

2566 
should have known that the east walkway was not a safe means of access to 

the Symons screens. 

Yet the Respondent maintained and used the east walkway as a means of 

access to the Symons screens, in spite of its actual or constructive knowledge 

as to the unsafe condition. The mere fact that adjustments or other work 

could be performed on the s~reens from the floor below does not absolve the 

Respondent from negligence. It should be noted that Mr. Jibilian maintained 

at one point in his testimony that employees occasionally work on the east 

end of the Symons screens and that the east walkway is the sole means of 

access to such area (Tr. 74). !:_/ 

Under the circumstances, the Respondent was under an affirmative obligation to undertake effective measures designed to prevent its employees from 

using the east walkway as a means of access to the Symons screens while the 

unsafe condition existed. Clearly, this obligation was not met. 

In view of the foregoing, it is found that the Respondent demonstrated 

a high degree of ordinary negligence in connection with the violation. 

4. Good Faith in Attempting to Achieve Rapid Compliance 

The violation was abated within the time specified for abatement (Exh. 

M-2, p. 3; Tr. 41). Accordingly, it is found that the Respondent demonstrated good faith in attempting to achieve rapid compliance. 

D. Size of the Operator's Business 

The parties stipulated that the size of the Basic Refractories Quarry 

was rated at 358,329 production man-hours in 1978 (Tr. 4-5). 

E. Hist of Previous Violations 

The parties stipulated that as of November 28 and 29, 1978, the Basic 

Refractories Quarry had no history of previous violations under the 1977 Mine 

Act (Tr. 5). 

F. Effect of a Civil Penalty on the Operator's Ability to Continue 

in Business 

No evidence was presented establishing that the assessment of a civil 

penalty in this case will adversely affect the Respondent's ability to remain 

6/ Whether or not the east walkway is the sole means of access to the east 

end of the Symons screens is not the controlling consideration. The controlling consideration is that the Respondent maintained and used the east 

walkway as a means of access to the Symons screens with actual or constructive knowledge that such means of access was unsafe. 

2567 
in business. In Hall Coal Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 CCH 

OSHD par. 15,380 (1972), the Commission's predecessor, the Interior Board of 

Mine Operations Appeals, held that evidence relating to whether a penalty will 

affect the ability Qf the operator to remain in business is within the operator's control, and therefore there is a presumption that the operator will 

not be so affected. I find, therefore, that a civil penalty otherwise properly assessed in this proceeding will not impair the Respondent's ability to 

continue in business. 

VI. Petitioner's March 20, 1980, Motion to Dismiss 

On or around January 14, 1980, the Petitioner requested advice from its 

Arlington, Virginia, office as to whether the MSHA/OSHA Interagency Agreement, 

see 44 Fed. Reg. 22827 (April 17, 1979), and an August 3, 1979, interpretive 

memorandum issued by the Administrator for Metal and Nonmetal Mine Safety and 

Health, transferred all aspects of the Respondent's operation, other than the 

quarry, to OSHA. As a result bf this inquiry, the Petitioner filed a motion 

and supporting memorandum on March 20, 1980, praying for the vacation and 

dismissal of the following citations: 

Citation No. Date 30 C.F.R. Standard 

368863 11/30/78 56.14-1 

368877 11/30/ 78 56.11-2 

368885 12/06/78 56.14-1 

368886 12/06/78 56.14-1 

368888 12/06/78 56.14-1 

368889 12/06/78 56.14-1 

The memorandum in support of the motion to dismiss states, in part, as 

follows: 

Petitioner has filed proposals for assessment of penalty 

alleging violation of regulations promulgated pursuant to the 

Federal Mine Safety and Health Act of 1977. In the course 

of its enforcement activities, the Mine Safety and Health 

Administration entered into an interagency jurisdictional 

agreement with the Occupational Safety and Health 

Administration. Interpretation and application of this 

agreement has proved difficult especially with respect to 

refractories located on mine property. A reinterpretation 

of the application of the agreement to the Respondent's 

Quarry and Plant necessitates dismissal and vacation of the 

following citations: 368863, 368877, 368885, 368886, 368888, 

368889. Dismissal is consistent with the attached memorandum. 

Attached thereto is a copy of a February 28, 1980, memorandum from 

Donald R. Tindal, Counsel for General Legal Advice, Mine Safety and Health, 

to Associate Regional Solicitor William S. Kloepfer, concerning the proceedings in Secretary of Labor v. Basic Refractories, Docket Nos. VINC 79-199-PM, 

2568 
LAKE 79-32-M, LAKE 79-40--M, LAKE 79-140·-M, and LAKE 79-203-M. This memorandum 

states, in part, as follows: 

Your memorandum of January 14, 1980, addressed to Roy Bernard, 

Deputy Administrator, Metal and Nonmetal Mine Safety and 

Health, concerning the above-captioned matter was referred to 

this office for reply. You request advice as to whether the 

MSHA/OSHA Interagency Agreement (33 FR 22827, April 17, 1979) 

and an interpretative memorandum of August 3, 1979, issued 

by the Administrator, Metal and Nonmetal Mine Safety and 

Health, [l_/] transfer jurisdiction over all aspects of Basic 

Refractories, other than the quarry, to OSHA. 

The MSHA/OSHA agreement provides that OSHA will have jurisdiction over "refractory plants. 11 Agreement, ~[ B. 6. b. In 

the appendix to the agreement, it is accordingly stated that 

MSHA authority ends and OSHA authority begins with respect to 

refractory plants "after arrival of raw materials at the plant 

stockpile." The August 3, 1979, memorandum to the District 

Managers from Thomas J. Shepich, Administrator for Metal and 

Nonmetal Mine Safety and Health, elaborating on the agreement, states that an operation which is a free-standing mill 

engaging in milling and milling-related operations only, and 

which in the past has been inspected solely by MESA or MSHA 

remains subject to MSHA jurisdiction. On the other hand, 

refractory plants, i.e., operations involving milling and the 

manufacturing of bricks, clay pipe or other forms of finished 

refractories where there is a joint MSHA/OSHA presence, are 

now subject to OSHA jurisdiction. 

7/ The August 3, 1979, memorandum from Thomas J. Shepich, Administrator 

for Metal and Nonmetal Mine Safety and Health, for MSHA district managers 

concerning MSHA jurisdiction over refractory mills states, in part, as 

follows: 

"As you know, the MSHA/OSHA Interagency Agreement provides that OSHA 

shall have jurisdiction over 'brick, clay pipe and refractory plants' (Section B.6.b.). The effect of this clause is to grant to OSHA jurisdiction 

over plants which include a manufacturing process resulting in a product 

such as bricks, clay pipe, insulators or other finished forms of refractories. In these operations, both milling and manufacturing occur and 

there has been a joint MSHA/OSHA presence at one physical establishment. 

"Section 3(h)(l) of the Mine Act states that 1 [i]n making a determination of what constitutes mineral milling for purposes of this Act, the 

Secretary shall give due consideration to the convenience of administration 

resulting from the delegation to one Assistant Secretary of all authority 

with respect to the health and safety of miners employed at one physical 

establishment.' It was this type of dual jurisdiction that the provision 

was designed to correct. Therefore, in operations involving milling and 

the manufacturing of bricks, clay pipe or finished refractories, where there 

2569 
As is reflected in the MSHA/OSHA agreement and Mr. Shepich's 

memorandum, the purpose of making the jurisdictional determination concerning refractory plants (and other types of 

operations covered by the agreement) is to eliminate dual 

jurisdiction "at one physical establishment," by making a 

"convenience of administration" determination as provided 

at section 3(h)(l) of the Mine Act (30 u.s.c. 802(h)(l)). 

Hence, where both milling and manufacturing take place at 

one identifiable establishment, OSHA is to assume jurisdiction. However, where a reasonable physical or practical 

separation can be made between associated establishments, 

for example, between a mine and a mill which has traditionally been inspected by MSHA, and an associated facility 

such as a refractory manufacturing plant, which has been 

inspected, or subject to inspection, by MSHA and OSHA, no 

"convenience of administration" determination need be made 

under section 3(h)(l) for the former facility, since at that 

establishment, there is no dual jurisdiction. 

As we understand it, the Basic Refractories operation involved 

here includes a refractory manufacturing operation, which in 

turn includes both milling and manufacturing, and a quarry 

which is clearly a "mine" under MSHA jurisdiction. According 

to the flow chart provided as an attachment to your January 14 

memorandum, the stone from the quarry is transported first to 

a crushing plant (plant 35) and then to a sizing plant (plant 

36) and an AG stone plant (plant 37), prior to entering the 

storage silos. Some of the stone from plant 36 goes to the 

AG stone plant or directly to railroad cars and does not enter 

the storage silos. The use to which this stone is put is not 

indicated, but it apparently does not enter the refractory 

manufacturing operation. Stone is then transported as needed 

from the storage silos to various kilns and other plants 

(plants 51, 53, 54), where it is prepared for use as the raw 

material in the refractory plants (plants 60, 61, 72). The 

products of the refractory plants are then shipped by truck 

and rail to the users of the products. 

fn. 6 (continued) 

is a joint MSHA/OSHA presence, jurisdiction has been delegated to OSHA under 

the Interagency Agreement. 

"The provision quoted above should not be applied to milling operations 

where there is no manufacturing process and OSHA presence. Therefore, a 

'refractory plant,' which is a free-standing mill engaged in milling and 

milling-related operations only and which has been inspected in the past 

solely by MESA or MSHA, remains subject to MSHA jurisdiction and has not 

been transferred to OSHA's jurisdiction." 

A copy of the August 3, 1979, memorandum was attached to a request for 

admissions filed by the Respondent on January 2, 1980. 

2570 
Under the terms of the Mine Act and the MSHA/OSHA agreement, 

it is clear that the quarry should remain under MSHA juris-· 

diction. It is also clear that the shaped refractory and 

special refractory plants are engaged in manufacturing of 

"finished refractories" and are, therefore, under OSHA 

jurisdiction. The question to be determined under the 

"convenience of administration" provision of section 

3(h)(l) and the MSHA/OSHA agreement is whether all or part 

of the remainder of the Basic Refractories facility can 

reasonably be regarded as an integral part of the refractories manufacturing plants and therefore, as part of a 

single "physical establishment" under OSHA jurisdiction; 

or whether some reasonable physical separation can be made 

in order to preserve MSHA jurisdiction over all or part of 

the remainder of the facilities. 

Based on an examination of the flow chart attached to your 

memorandum and disctis':'ions with MSHA personnel, it is our 

view that the point in the procP.ss at Basic Refractories 

where the stone enters the storage silos is the point at 

which MSHA and OSHA jurisdiction separates, It is at this 

point where the raw material (stone) can be said to "arrive 

at the plant stockpile, 11 per the MSHA/OSHA agreement. Agreement Appendix A. The operations taking place before the 

arrival of the stone at the storage silo, i.e., quarrying, 

crushing (plant 35), sizing (plant 36) and the AG stone plant 

operation (plant 37) are classical mining and milling operations, and could very well take place even if the facility 

were solely a quarry and not associated with a refractory 

plant. Thus, drawing the line for purposes of jurisdiction 

at the storage silos is consistent with the MSHA/OSHA agreement and is reasonable from the standpoint of a traditional 

view of mining and milling operations. 

Accordingly, any MSHA citations or orders against Basic 

Refractories for violations relating to the quarry, the 

crushing plant (plant 35), the sizing plant (plant 36), 

or the AG stone plant (plant 37) should remain under MSHA 

jurisdiction. 

The other outstanding citations should be vacated. Although 

these citations were validly issued, since they arose prior 

to the execution of the MSHA/OSHA agreement, and could legally 

support the imposition of a penalty if they are established, 

our position is that because jurisdiction has been transferred to OSHA, no useful purpose would be served by continuing to process the case to its conclusion. 

In view of the foregoing, the Petitioner's March 20, 1980, motion to 

dismiss will be granted. 

7J 
VII. Petitioner's May 19, 1980, Motion Requesting Approval of Settlement 

On May 19, 1980, the Petitioner filed a motion requesting approval of 

settlement and dismissal of the proceeding, and also filed a memorandum in 

support thereof, encompassing three of the citations at issue in this case. 

Information as to the six statutory criteria contained in section 110 of 

the Act has been submitted. This information has provided a full disclosure 

of the nature of the settlement and the basis for the original determination. 

Thus, the parties have complied with the intent of the law that settlement be 

a matter of public record. 

The proposed settlement is identified as follows: 

30 C.F.R. 

Citation No. Date Standard Assessment 

368848 ~ 11/2 9/78 56.14-1 $ 84 

368851 11/29/78 56.14-1 66 

368854 11/2 9/78 56 .14-1 66 

Totals: $216 

Settlement 

$ 84 

66 

66 

$216 

The Petitioner advances the following reasons in support of the proposed 

settlement: 

The Respondent has agreed to pay the full amounts of 

the penalties proposed by the Office of Assessments for the 

[three] citations listed above. In support of the settlement, the Petitioner attaches the results of initial review, 

the proposed assessment, copies of the citations, terminations, and inspectors' statements compiled in documentation 

of the citations at issue. 

The size of Respondent's Quarry and Plant is 358,329 man 

hours per year. The size of the operator is 911588 man hours 

per year. The operator employs 230 surface miners and no 

underground miners. The mine accrued a total of 48 assessed 

violations and 21 paid violations during the period 

November 31, 1976, through November 30, 1978. [_§_/] 

The reasons given above by counsel for the Petitioner for the proposed 

settlement have been reviewed in conjunction with the information submitted 

8/ The violations charged in these three citations allegedly occurred on 

November 29, 1978. As noted in Part V (E), supra, the parties stipulated 

at the hearing that as of November 28 and 29, 1978, the Basic Refractories 

Quarry had no history of previous violations under the 1977 Mine Act (Tr. 5). 

In view of the stipulation, it must be concluded that the Respondent has 

no history of previous violations cognizable in connection with these 

three citations. 

2572 
as to the six statutory criteria contained in section 110 of the Act. After 

according this information due consideratj_on, it has been found to support the 

proposed settlement. It therefore appears that a disposition approving the 

settlement w:lll adequately protect the public interest. 

VIII. Conclusions of Law 

1. The Administrative Law Judge has jurisdiction over the subject matter 

of, and the parties to, this proceeding. 

2. Basic Refractories and .its Basic Refractories Quarry and Plant were 

subject to the provisions of the 1977 Mine Act at all times relevant to the 

issuance of the citations involved in this proceeding • 

.3. Federal mine inspector Michael Pappas was a duly authorized representative of the Secretary of Labor at all times relevant to this proceeding. 

4. The Respondent's motion to dismiss at the close of the Petitioner's 

case-in~chief will be granted in part and denied in part for the reasons set 

forth previously in this decision. 

5. The Petitioner failed to prove the violations charged in Citation 

Nos • .368841, .368847, and .368849. 

6. The violation charged in Citation No • .368846 is found to have 

occurred as alleged. 

7. All of the conclusions of law set forth in Part V, ~~pr~, are 

reaffirmed and incorporated herein. 

IX. .J:>r2_p2se~. Findings of Fae t and Conclusions of Law 

The Respondent filed a trial brief during the hearing on November 14, 

1980. The Respondent filed a posthearing brief and proposed findings of 

fact and conclusions of law on April 27 • 1981. The Petitioner filed a posthearing memorandum on May L}, 1981. Such submissions, insofar as they can be 

considered to have contained proposed findings of fact and conclusions of law 

have been considered fully, and except to the extent that such findings and 

conclusions have been expressly or impliedly affirmed in this decision, they 

are rejected on the grounds that they are, in whole or in part, contrary to 

the facts and law or because they are immaterial to the decision in this case. 

X. Penalties Assessed 

Upon consideration of the entire record in this case and the foregoing 

findings of fact and conclusions of law, I find that the assessment of penalties is warranted as follows: 
Citation No. 

368846 

368848 

368851 

368854 

Date 

11/2 9/78 

11/29/78 

11/2 9/78 

11/29/78 

30 C.F.R. Standard 

ORDER 

56 .11-1 

56.14-1 

56.14-1 

56.14-1 

Penalty 

$125 

84 (settlement) 

66 (settlement) 

66 (settlement) 

Total: $341 

Accordingly, IT IS ORDERED that the Respondent's motion to dismiss at the 

close of the Petitioner's case-in-chief be, and hereby is, DENIED as relates 

to Citation No. 368846. 

IT IS FURTHER ORDERED that the Respondent's motion to dismiss at the 

close of the Petitioner's case-in-chief be, and hereby is, GRANTED as 

relates to Citation Nos. 368841, 368847, and 368849; that such citations 

be, and hereby are, VACATED; and that the petition for assessment of civil 

penalty be, and hereby is, DISMISSED as relates to such citations. In the 

alternative, vacation and dismissal IS ORDERED as relates to such citations 

because the Petitioner failed to prove the violations charged by a preponderance of the evidence on the record as a whole. 

IT IS FURTHER ORDERED that the settlement outlined in the Petitioner's 

May 19, 1980, motion requesting approval of settlement be, and hereby is, 

APPROVED. 

IT IS FURTHER ORDERED that the Petitioner's March 20, 1980, motion to 

dismiss be, and hereby is, GRANTED; that Citation Nos. 368863, 368877, 

368885, 368886, 368888, and 368889 be, and hereby are, VACATED; and that 

the petition for assessment of civil penalty be, and hereby is, DISMISSED 

as relates to such citations. 

IT IS FURTHER ORDERED that the Respondent pay civil penalties totaling 

$341, as set forth in Part X, supra, within 30 days of the date of this 

decision. 

/John 

~, Administrative Law Judge 

2574 
Distribution: 

Linda Leasure, Esq•, Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Jack A. Klein, Esq., Doehrel & Klein, 1662 Doone Road, Columbus, OH 

43221 (Certified Mail) 

Arthur Jibilian, Safety Director, Basic Refractories, Fostoria, OH 

44830 (Certified Mail) 

United Auto Workers' Local 1680, 2300 Ashland Avenue, Toledo, OH 43620 

(Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, 

U.S. Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

2575 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 IOV 4 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

INVERNESS MINING COMPANY, 

Respondent 

Docket No. LAKE 81-45-M 

A.O. No. ll-00791-05009I 

Minerva Mine No. 1 

DECISION AND ORDER 

The parties move for approval of a settlement of a non-fatal 

roof fall accident case alleging a violation of 30 C.F.R. 57.3-22. 

This requires that miners examine and test the back, face, and rib 

of their working places at the beginning of each shift and frequently 

thereafter and that loose shale be taken down or adequately supported 

before any other work is done. 

The accident investigation established that at the beginning 

and throughout the shift the miners and their supervisor were at all 

times aware of the fact that there was questionable shale at the 

back of the drift, but that due to the pressure to catch up with 

production the miners and their supervisor decided to take a chance 

that it could be worked without testing. That this was in accord with 

the policy of top management was established by the angry reaction 

of the plant manager, John Kerns, and the superintendent, Bill Hobbs, 

to the inspector's decision to issue the citation. It is just this 

"take a chance" attitude toward safety that leads to so many fatal and 

disabling accidents. Every neophyte in the mines knows the rule that 

every time a miner enters a new work area he should make a visual and 

vibration test before starting work. Here experienced miners were 

encouraged to ignore sound safety practices because the top management of a 

new operation was pushing for production. 

Top management's attitude alone justified the penalty of $2500 

originally proposed. Because of the effort made to muddy the waters, 

MSHA proposed a settlement of $1,000 or 40% of the amount initially 

proposed. The trial judge rejected this and suggested $1500. This 

proposal was accepted by counsel for the operator on October 31, 1981. 

2576 
Based on an independent evaluation and de nova review of the 

circumstances, I reluctantly conclude that payment of the reduced 

penalty can be justified only on the ground that this is a new operation 

and this was the first violation of the standard cited. Nevertheless, 

it is my opinion that this operation bears close scrutiny and that unless 

top management's attitude changes serious violations will continue to 

occur. I will expect that the next time around the Solicitor will 

recognize that miners who are induced to contradict their contemporaneous 

statements are still reliable witnesses of what actually transpired and 

that little weight is to be accorded self~serving afterthought statements 

elicited under pressure from the operator. 

Accordingly, it is ORDERED that the motion to approve settlement, 

as amended, be, and hereby is, GRANTED. It is FURTHER ORDERED that 

the operator pay the penalty agreed upon, $1500, on or before Friday, 

November 27, 1981, and that subject to payment the captioned matter be 

DISMISSED. 

Distribution: 

Kennedy 

Administrative Law Judge 

Gordon E. Maag, Esq., Walker and Williams, 4343 W. Main St., Belleville, 

IL 62223 (Certified Mail) 

Steven E. Walanka, Esq., U.S. Department of Labor, Office of the Solicitor, 

230 S. Dearborn St., 8th Floor, Chicago, IL 60604 (Certiifed Mail) 

2577 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SEWELL COAL COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

Docket No. WEVA 79-31 

A.O. No. 46-01478-03014 

Sewell U.G. No. 1 Mine 

DECISION AND ORDER 

Pursuant to the order of remand, the trial judge issued an order 

to show cause which afforded the parties an opportunity to be heard on 

the issue of the availability of the defense of "diminution of safety" 

or "greater hazard" in an enforcement proceeding. As the Commission's 

decision pointed out, in this case, unlike Penn Allegh Coal Company, 

3 FMSHRC 1392 (1981), the operator (1) filed a petition for waiver 

of the canopy requirement prior to issuance of the notice of violation, 

(2) the petition was granted before the enforcement proceeding was 

adjudicated, and (3) at the time the first motion to approve settlement 

was submitted notice of the finality of the waiver of the canopy requirement 

for the equipment in question had been published in the Federal Register. 

It had, therefore, the force and effect of law. 

Despite this, counsel for the Secretary contends that because 

the operator has waived its rights by twice agreeing to pay a token 

penalty, the trial judge and the Commission must ignore the importance 

of the issue raised by the remand. Counsel also asks that the Commission 

ignore the fact that the operator, in response to the show cause order, 

has withdrawn its settlement proposal and now prays the matter be dismissed. 

The citation to P & P Coal Co., 6 IBMA 86 (1976), is inapposite. 

This is not, as counsel suggests, a default proceeding in which the 

trial judge has, on his own motion, raised an affirmative defense never 

established in the record. It is rather a case for application of the 

Commission's rule that the trial judge has "inherent authority to question 

whether, as a matter of law, a case before him presents a cause of action." 

Olga Coal Co., 2 FMSHRC 2769 (1980). This, in turn, depends on whether, 

as a matter of law, the defense of "diminution of safety" is available 

to the operator in this case. Indeed, the case was remanded for the 

express purpose of permitting the trial judge to make this determination. 

2578 
My conclusion is that the defense is available and has been established. 

Therefore, MSHA's motion to approve settlement must be denied and the 

matter dismissed. 

MSHA's arguments against such a disposition are without merit. 

Contrary to the Secretary's contention, I have not attempted to overrule 

the Administrator's decision with respect to the Galis 300 roof bolter. 

I have merely concluded that evidence in this record, which was not before 

the Administrator, .!/ established that, independent of the Administrator's 

decision, sufficient practical technology did not exist on the date of 

the alleged violation to warrant imposition of an obligat:ion to install 

canopies in either a 48 inch or 50 inch mining height. 

In regard to the Joy l6SC shuttle car, the claim by MSHA that the 

Administrator's decision was not predicated on a finding that use of 

canopies on the shuttle cars diminished the safety of the miners is 

clearly erroneous. As the operator's response points out, at no time 

did the operator propose an alternate method of compliance, Instead 

what was sought was a total waiver of the requirement on the ground that 

compliance was technologically impossible without diminishing the safety 

of the miners. 30 U.S.C. § 86l(c) (1970); § 8ll(c) (1977). MSHA's 

afterthought argument is a thinly disguised effort to evade the estoppel 

imposed by the Administrator's decision on maintenance of the enforcement 

proceeding. 

Nor does the fact that the operator installed a canopy in a 43 inch 

clearance establish that its use did not diminish the safety of the miners. 

One of the great failings of the canopy program is MSHA's callous indifference 

to whether or not the requirement for installation of canopies is compatible 

with the safety of the miners who must use them. The canopy standard has 

been repeatedly criticized by both miners and operators for creating in 

medium and low coal more hazardous conditions than it cures, It is 

this type of irresponsible enforcement that leads both miners and coal 

operators to contend that MSHA's canopy standard is an arbitrary and 

dangerous exercise of regulatory power. 

Finally, I find counsel's attempt to redact or to expunge unilaterally 

and ex parte the record of the representations made by the parties in support 

of their original motion as feckless and irresponsible at best and 

reprehensible at worst. Those representations and stipulations were 

highly material to the initial disposition made of this matter. Furthermore, 

they were relied upon and quoted from at length by the Commission. As 

the attached affidavit by my clerk shows, at no.time did she tell Mr. Kramer 

to file a new motion for settlement that would "supersede and replace Mr. Street's 

previously filed motion. 11 

Such as, the parties representation as to the experimental nature of 

canopy technology in January 1976; the injuries to miners performing tramming 

operations with canopies; and the fact that the notice was modified a 

month after its issuance to show the minimum mining height on the section at 

the time of. the alleged violation was 5 inches less than stated. 

2579 
Consequently, for the reasons set forth in this decision and in my 

show cause order of September 30, 1981, as appended hereto and incorporated 

herein, I conclude the defense of diminution of safety or greater hazard 

is a bar to this enforcement proceeding. Accordingly, it is ORDERED 

that the pending motion to approve settlement be, and hereby is DENIED 

and the captioned matter DISMISSED with prejudice. 

Administrative Law Judge 

Distribution: 

Stephen P. Kramer, Esq., U.S. Department of Labor, Office of the Solicitor, 

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

Fletcher A. Cooke, Esq., Sewell Coal Company, Lebanon, VA 24266 (Certified 

Mail) 

2580 
ATTACHMENT TO DECISION AND ORDER DATED November 4, 1981 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SEWELL COAL COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 3 0 1981 

Civil Penalty Proceeding 

Docket No. WEVA 79-31 

A.O. No. 46-01478-03014 

Sewell U.G. No. 1 Mine 

ORDER TO SHOW CAUSE 

Upon remand from the Commission, 3 FMSHRC 1402 (1981), of my 

decision of September 20, 1979, 1 FMSHRC 1379 (1979), the parties once 

again move for approval of a settlement based upon the assessment of 

a token penalty of $50.00 for the two violations of the canopy standard 

alleged. I share the parties obvious desire to see an end to this 

administrative whirlwind. Nevertheless, because the Commission saw fit 

to remand the matter and because of the importance of finding a proper 

balance between an enforcement and a modification proceeding, I undertake 

with the greatest reluctance to once again set forth the reasons for my 

disagreement with the Secretary's and the Commission's assertion that 

becquse compliance is claimed to be technologically possible diminution 

of the safety of the miners is irrelevant to enforcement of the canopy 

requirement or, if it is not, the affirmative defense of diminution of 

safety was not, in fact, made out. 

My earlier decision found that with respect to (1) the two pieces 

of face equipment in question, a Galis 300 roof bolter and a Joy 16 SC 

shuttle car, and (2) the coalbed or mining heights involved (50 inches 

and 43 inches respectively), compliance with the canopy requirement set 

forth in the "improved" mandatory safety standard, 30 C.F.R. 75.1710-

l(a), was "impossible without diminishing the safety of the miners". 1 

FMSHRC 1380. In addition, I held that the Secretary's failure to comply 

with the mandatory safety standard set forth in section 318(i) of the 

Mine Safety Law, 30 U.S.C. § 878(i), };./ rendered. the improved standard 

1/ This provision requires that the mechanical and electrical 

components of face equipment be. "designed and constructed in accordance 

with the specifications" of the Secretary. The Commission held this 

requirement is met by a performance specification that relates only to 

the tensile strength of the canopy and not to its suitability for safe use 

under widely varying mining conditions. Despite the plain language of 

the Congressional directive, the Commission held the Secretary could 

short circuit his responsibility for designing and constructing safe 

canopies by delegating it to the coal operators and enforcing a requirement 

for canopies without regard for whether or not "technological compliance" 

diminishes the safety of the miners. 

2581 
"null, void and unenforceable". My decision further held the improved 

standard was unenforceable as applied to the specific undisputed facts 

of this case because it violated section 10l(a)(9)'s, formerly section 

lOl(b)'s, (30 U.S.C. § 8ll(a)(9)) prohibition against issuance or 

enforcement of any improved standard that "reduces the protection" 

afforded the miners by a Congressionally enacted standard, namely 

section 318(i). It is part of the conventional wisdom that the best test 

of whether a mining practice or device is safe is to observe the conditions 

under which it must operate. By that test the requirement for canopies 

in mining heights in medium and low coal (less than 60 inches) has 

been shown to be technologically infeasible which, whether the Commission 

believes it or not, translates into the creation of serious new hazards 

and the aggravation of old hazards. ];../ 

In regard to the technological infeasibility of canopies, I take 

official notice of the following from a Report to the Congress of the 

United States by the Comptroller General entitled "Low Productivity In 

American Coal Mining: Causes and Cures", Rpt. No. EMD 81-17, issued 

March 3, 1981: 

Technically infeasible requirements 

Coal operators complain that some MSHA regulations require 

technology which is exotic or unavailable. Since MSHA 

enforces these regulations, the resulting inspections, 

violations, withdrawal orders, machine modifications, and 

paperwork reduce productivity. The two regulations that mine 

managers cite most frequently are requirements for cabs and 

canopies and mine illumination. 

Cabs and canopies are steel roof and sides which protect 

mining machine operators from collapse of roof, face, or rib. 

On January 1, 1973, protective cabs and canopies became mandatory 

on all mobile face equipment used in mines 72 inches and 

above in height. By 1978, coal mines of all seam heights had 

to comply with this regulation. Mines with 60 inch or higher 

seams have generally not had problems in fitting cabs and canopies 

to their machines. However, 45 percent of production and 41 

percent of mines have seams under 60 inches. Low coal and narrow 

2/ I held the Secretary's failure to comply with section 318(i) in 

promulgating the improved standard violated section 10l(a)(9) because it 

compels mine operators to experiment with the lives and safety of miners 

required to operate oversized face equipment under canopies in coalbed 

heights that create an imminent danger of death or disabling injury from 

roof falls for all miners and of decapitation and dismemberment of 

equipment operators. The Commtssion held the bitter experience developed 

in the records of the modification cases was no basis for concluding 

that application of the improved standard "at all times and under all 

circumstances" diminishes the safety of the miners and therefore it must 

be conclusively presumed that the improved standard both as applied and 

generally is valid and does not "reduce the protection" of the miners. 

2582 
There is also available for consideration a carefully crafted 

decision by Judge Steffey in which he found, after a full evidentiary 

hearing, that (1) canopies are not required where the coal height is 

less than 42 inches and (2) that the undisputed facts of record in his 

proceeding showed that as recently as March 10, 1980 practical technology 

did not exist to permit the installation of canopies in mining heights 

of 43 to 50 inches. Wrigh.t Coal Company, Inc., 3 FMSHRC 496 (1981). 

Because Judge Steffey's finding of technological impossibility was never 

challenged by either MSHA or the Commission it became by operation of 

law a final decision of the Commission. 

A careful reading of the Comptroller General's report, supra, also 

leads me to conclude that up to 80 percent of the research, development 

and experimentation with canopy designs has been accomplished without 

any input on the part of the Secretary. The report further supports the 

view that this shifting of the burden has been counterproductive 

not only in terms of productivity but also of safety. As the report 

notes, "injury prevention benefits of cabs and canopies require further 

study." Attempts on the part of this judge to obtain such data has been 

very frustrating. In response to a subpoena for such data, counsel for 

the Secretary advised on April 7, 1981, that "there are no formal reports 

or studies reflecting the number of lives saved or injuries avoided by 

the use of cabs or canopies." Ltr. to Trial Judge from Stephen P. 

Kramer, Esq., Attorney for the Secretary. This admission leads me 

to regard MSHA's claims as to the efficacy of the canopy requirement 

with great skepticism. 

The Commission in reversing my decision concluded inter alia, that 

in the absence of an evidentiary hearing or stipulation of facts the 

trial judge's finding that application of the canopy requirement would 

compromise the safety of the miners was impermissible. This is incorrect. 

What the Commission seems to have overlooked was that my decision was 

based solely on (1) the undisputed facts set forth in a final decision 

by the Secretary on a petition for modification or waiver of the canopy 

requirement with respect to the mine and equipment in question, Sewell 

Coal Co., No. M. 76-131,(April 27, 1971); 44 F.R. 4L1838 (August 17, 

1979), and (2) the facts agreed upon, stipulated to and submitted by the 

parties in support of their joint motion for settlement. 11 

3/ In Co-op Mining, 2 FMSHRC 3475 (1980), the Commission held that 

where-stipulated facts establish that no violation occurred, a motion 

for settlement should be denied. And in Olga Coal Co., 2 FMSHRC 2769 

(1980), the Commission held that the trial judge has "the inherent 

authority to question whether, as a matter of law, a case before him 

presents a cause of action." 

2583 
work spaces leave little room to attach these devices. One 

coal mine official told us that in the last 4 years, his mine 

experimented with 88 different canopy designs. He also said 

that the work required to install and test these canopies had 

substantially reduced productivity. 

Other problems with using cabs and canopies in low coal are that 

they impair the machine operator's vision, restrict movement, and 

cramp and tire the operator. Thus, some mine managers have had 

to deal with worker resistance to the cabs and canopies, further 

hindering productivity. 

Recognizing problems with installing cabs and canopies in low 

coal, MSHA suspended requirements for coal mines with 42-inch 

seams or less. Further, coal operators have received substantial 

Federal assistance in complying with cab and canopy regulation. 

MSHA has provided some technical assistance to mines to help them 

retrofit machines. For example, during 1973, the first year cabs 

and canopies were required, the Roof Control Group of MSHA's 

Pittsburgh Technical Support Center analyzed about 60 cab or canopy 

designs and 120 redesigns for coal mine operators and equipment 

manufacturers. The Bureau of Mines has also assisted operators and 

manufacturers to comply with cab and canopy regulations. The 

Bureau estimates that 20 percent of the total canopy designs now 

being used have come from this research. 

While requiring cabs and canopies in low coal may have disrupted 

mining operations, it may also have reduced fatalities and 

disabilities due to roof collapse. However, an examination of 

available data suggests that the injury prevention benefits of 

cabs and canopies require further study. Id. at 61. 

This report, from what appears to be a reliably objective source 

to the Congress of the United States, casts serious doubt on the Commission's 

finding that "sufficient practical technology" exists to support the 

conclusion that operators encounter no difficulty in retrofitting face 

equipment "in mining heights above 30 inches". 3 FMSHRC 1410. The 

record clearly shows that the requirement has been suspended at least in 

regard to mining heights below 42 inches for lack of practical technology. 

See also, the Secretary's Annual Report to Congress for FY 1978, at 11-

12. 

Serious conflict also exists within MSHA over the existence of 

practical technology for medium and low coal mines. A January 1981 

Report of the United States Regulatory Council states that "while local 

MSHA officials have agreed that canopied equipment in coal seams under 

50 inches is 'impractical' MSH.;\. officials in Washington require continued 

experimentation" in seam heights below 50 inches. Cooperation and 

Conflict: Regulating Coal Production, Report of the U.S. Regulatory 

Council, January 1981, at 47. 

25811 
The Commission found that the parties' stipulation was that (1) the 

use of a canopy on the roof bolter "had caused injuries to miners" and 

(2) "that technology to abate the violation (in the 50 inch coalbed or 

mining height) was in an e-xperimental stage" at the time the citation 

was written on January 15, 1976. 3 FMSHRC 1413-14. The Commission 

found this fell short of an express judicial admission that compliance 

would diminish the safety of the miners and that an implied admission 

was negated by a finding by the Secretary (never cited or relied upon by 

the parties in their motion to approve settlement) that on and after 

October 1972 "sufficient _Eractical technology" existed to warrant imposition 

of a general duty on coal operators to utilize such "practical technology" 

to design, fabricate and retrofit canopies on all face equipment used in 

coalbed or mining heights in excess of 30 inches. 3 FMSHRC 1410-13; 

Compare, Eastover Mini~ Co~, 3 FMSHRC 1155 (1981), ~· granted, June 1981. 

The Commission's reliance on the Secretary's finding that "an 

appropriate level of practical cab and canopy technology existed" on the 

date of the violation was, I respectfully submit, irrelevant to the 

question of whether a violation, in fact, occurred with respect to the 

specific roof bolter at issue. As the Commission concedes, the "improved" 

standard imposes only a duty to apply "existing practical technology". 

This obviously does not embrace "experimental" technology for, as the 

Commission held, "There is ••• no affirmative duty for research and 

development placed upon an operator in the cab and canopy standard."!::_/ 

Id. at 1412. For these reasons, I believed the admission that the use of 

"e°xperimental" technology had "caused injuries to mi_ners" warranted the 

finding that compliance on the date of the alleged violation was technologically 

impossible under the existing state of the art of canopy design without 

diminishing the safety of the mi_ners. This conclusion was furthered 

by "the fact that, because the Secretary recognized the "difficulties" 

occasioned by the "experimental stage" of the canopy design art, the 

time for compliance was repeatedly extended to permit a decision on 

the operator's petition for modification or waiver which was filed 

before the citation issued. 

Despite my reservations pertaining to the broad issues decided by 

the Couunission, the case is now before me to decide another separate 

issue of major significance, the effect of a successful petition for 

modification on a pending enforcement proceeding. Because the Commission 

could find no ''clear discussion of the interrelationship between the 

4/ This, I understand, means an operator cannot be requi_red to 

experiment with his own designs. Experimental technology is speculative, 

emerging or unproved technology. Practical technology is that which the empirical 

evidence shows to be proven safe for use in the mine environment. 

2585 
factual issues in the enforcement proceeding (this proceeding) and those 

at issue in the modification case", Sewell Coal Company, No. M. 76-131, 

decided April 27, 1979, supra, it remanded the matter to afford the 

parties, and presumably the trial judge, an opportunity to address the 

issue of this interrelationship ''in the context of the facts of this 

case", 3 FMSHRC 1413-15, and "for further proceedings consistent with 

this opinion", and with the Commission's recent decision in a companion 

canopy case, Penn Allegh Coal Co., 3 FMSHRC 1392 (1981). 

In Penn Allegh, the Commission found that "the defense of diminution 

of safety" could not regardless of its merit, be raised in an enforcement 

proceeding unless the operator could show that the "enforcement proceeding 

was brought by the Secretary after the operator had filed a modification 

petition and before that petition had been finally resolved." 3 FMSHRC 

1399, footnote 10. z_/ 

A comparison of the factual matters in the enforcement and modification 

proceedings establishes a firm basis for application of the principles 

of res judicata and collateral estoppel against the Secretary in the 

instant enforcement proceeding. Thus, the record that is before me and 

that was before the Commission shows: 

I 

Effective January 1, 1975, canopies were required whenever 

the coalbed height, height of the coal seam or mining height 

exceeded 48 inches. 30 C.F.R. 75.1710l(a)(4). The first 

notice or citation issued under the Coal Act on January 15, 

1976. It charged that the failure to install a canopy on a 

Galis 300 roof bolter in the 012 section, which at the time 

had a minimum mining height of 50 inches, constituted a 

violation of the improved standard. One day prior to issuance 

of the notice, i.e., on January 14, 1976; the operator filed 

a petition seeking modification or waiver of the requirement. 

Sewell Coal Co., supra, at 1. Thereafter, MSHA conducted an 

investigation of the operator's petition in April and October 

1976 and in December 1978 filed and served a report of its 

findings and recommendations. Id. 

5/ This exclusionary rule was first fashioned by OSHRC in October 

1976 almost a year after the violations in question in this case allegedly 

occurred. A review of the record shows the Commission raised the issue 

sua sponte and that it was never raised or briefed by the parties. 

While two courts of appeals have endorsed the rule, three courts of 

appeals have appended qualifications to its application. Thus, in 

General Electric Co. v. Secretary, 576 F.2d 558 (3d. Cir. 1978), which 

the Commission cites, the Court held that the rule does not empower the 

Secretary to promulgate a standard that "increases the danger to employees", 

and that upon a showing in an enforcement proceeding that compliance 

(footnote 5 continued on next page) 

2586 
When the parties failed to respond to the investigatory report, 

the Administrator for Coal Mine Health and Safety, MSHA, issued 

a proposed decision and order on April 27, 1979. Thirty days 

thereafter, no appeal having been noted, the proposed decision 

became final. 30 C.F.R. 44.16. 

With respect to the 012 Section, the Administrator's decision 

found that "the mined height was 38 to 48 inches", the "roof 

was laminated shale supported by roof bolts", the "floor was 

uneven, steep, sideling and wet", and that the Galis roof 

bolting machine, with a frame height of 34 inches, was equipped 

with a canopy. Id. at 5. The Administrator further found that 

"for the Galis 300 roof bolting machine, there would be inadequate 

clearance to require the installation of a canopy except where 

the minimum mining height exceeds 48 inches." Id. at 9. 

Based on these findings, which were undisputed, the Administrator 

concluded that the installation of a canopy on the Galis roof 

bolter would diminish the safety of the miners wherever the minimum 

mining height did not exceed 48 inches. 

The Administrator's decision was published in the Federal Register 

on August 17, 1979. 30 C.F.R. 44.5. · The parties' motion to 

approve settlement was filed on August 24, 1979, 

Taking official notice of the Administrator's decision and more 

particularly his findings with respect to the undulations in seam height 

on the section in question, coupling this with the parties' representation 

as to the experimental nature of the technology, the hazards actually 

experienced, and MSHA's vascillation over whether the seam height was 55 

inches, 50 inches, or 30 to 48 inches, and applying the accumulated 

expertise gained in hearing and deciding the difficult questions that 

(footnote 5 continued) 

will in all likelihood diminish rather than enhance the safety of workers 

enforcement must be stayed pending a determination of a petition for 

modification or waiver, 576 F.2d 561-562; Holtze Construction v, 

Marshall, 627 F.2d 149, 152 (8th Cir. 1980). In Holtze the court 

refused to pass on the propriety of the exclusionary rule because it was 

"not entrenched at the time" the matter was before the trial judge. To 

hold otherwise the court noted would require that the operator be 

afforded an opportunity to show that "the rules were changed to its 

prejudice in mid-course." 627 F.2d at 152, n. 2; Irwin Steel Erectors, 

Inc. v. OSHRC, 574 F.2d 222, 223-224 (5th Cir. 1978). In light of 

section 10l(a)(9) of the Mine Safety Law the application of the exclusionary 

rule, developed under OSHA, to. the Mine Act is questionable. However, 

if the exclusionary rule is to be applied to the defense of greater 

hazard under the Mine Act, the Secretary should also recognize that the 

granting of the modification mooted the charges and requires vacation of 

the citations. OSHRC did this in a case where the petition was filed 

after issuance of the citation. See, Star Textile and Research, Inc., 

1974-75 OSHD, CCH ~[ 19,442. 

2587 
attend the application of the science of anthropometrics to safe canopy 

design, I concluded that it was more probable than not that on January 15, 

1976 it was technologically impossible to install a canopy that would 

not diminish the safety of the miners whether or not it was physically 

possible to fit a canopy on the roof bolter. 

This, as I have indicated, was wholly without regard to whether the 

improved standard was valid or invalid. In fact, it was premised on the 

assumption that the improved standard was valid but that the diminution 

in safety made out on the record of the modification proceeding and in 

the parties' stipulations established a defense of "greater hazard". It 

is my tentative conclusion, therefore, that the defense of diminution of 

sa·fety or greater hazard is available to the operator with respect to 

this enforcement proceeding and this violation. 

II 

The second citation involved in this enforcement case issued 

on April 26, 1978 under the ttine Act. It charged that the 

failure to install a canopy on a Joy 16SC shuttle car on 

the 014 section of the Sewell No. 1 Mine in a mining height 

of 43 inches constituted a violation of the improved standard. 

Effective January 1, 1977, canopies were required wherever 

the coalbed height, coal seam height ·or mining height exceeded 

36 inches. 30 C.F.R. 75.1710-l(a)(5)(i). As noted, this section 

of the mine and piece of equipment was covered by the 

petition for modification or waiver filed some two and onehalf years earlier, i.e., on January 14, 1976. Sewell 

Coal Co., supra, at 6. Thereafter, MSHA conducted an investigation 

and in April and October 1976 and in December 1978 filed and 

served a report of its findings and recommendations. Id. 

When the parties failed to respond to the investigatory report, 

the Administrator for Coal Mine Health and Safety, MSHA, issued 

a proposed decision and order on April 27, 1979, thirty days 

thereafter, no appeal having been noted, the proposed decision 

became final. 30 C.F.R. 44.16. 

With respect to the 014 Section, the Administrator's decision 

found that "the roof was shale supported with roof bolts and 

posts", the "floor was uneven, wet and steep with sideling 

places", the "mined height was 53 to 108 inches". The frame 

height of the shuttle car was 32 inches. It was not equipped 

with a canopy. The Administrator further found that "there is a 

minimum vertical clearance, between the frame of the equipment and 

the bottom of the roof supports, in excess of 18 inches for 

each piece of equipment on the section. I find this to be 

sufficient clearance for properly installed canopies without causing 

a diminution of safety to the operators of this equipment or to 

other miners." Id. at 10. 

2588 
Based on these findings, which were undisputed, the Administrator 

concluded that the installation of a canopy on the shuttle car 

would not diminish the safety of the miners except where the 

minimum mining height does not exceed 48 inches. Id. at 13-14, 

Conclusions 3, 5. Accordingly, the Administrator ordered that 

the petition be denied, except where the mining height did not 

exceed 48 inches. Id. at 14, Order, Para. 3. 

The Administrator's decision was published in the Federal 

Register on August 17, 1979. 30 C.F.R. 44.5. The parties motion 

to approve settlement was filed August 24, 1979. 

The motion to approve settlement did not advise that the 

Administrator had granted a petition for modification on the 

piece of equipment involved but did stipulate that "no cab 

or canopy was commercially available for Respondent's use on a 

shuttle car working in Lf3°-inch high coal". 

Based on the Administrator's uncontested findings and the stipulation 

of the parties, I concluded it was more probable than not that installation 

of a canopy on the shuttle car in question would have diminished the 

safety of the miners whether or not it was physically impossible to fit 

a canopy on the equipment. 

This, as I have indicated, was wholly without regard to whether the 

improved standard was valid or invalid. In fact, it was premised on the 

assumption that the improved standard was valid but that the diminution 

in safety made out on the record of the modification proceeding and in 

the parties' stipulations established a defense of "greater hazard". It 

is ·my tentative conclusion, therefore, that the defense of diminution of 

safety or greater hazard is available to the operator with respect to 

this enforcement proceeding and this violation. §j 

6 In a statement of enforcement policy dated June 29, 1981 (copy 

attached), MSHA has said that if a citation issues after a petition 

is filed the operator may petition for a stay under 30 C.F.R. 44.16. This 

permits an operator to file for a stay at any time prior to issuance 

of a final departmental decision on the petition. Where the citation 

issues before a petition is filed, the period of time for abatement 

may be extended until a decision has been rendered (1) where it is 

alleged in good faith that application of such standard will result in 

a diminution of safety to the miners, and (2)' where, due to a particular 

circumstance, to force compliance with the standard would be unreasonable 

or impose an undue hardship upon the operator and adequate temporary 

measures have been taken to eliminate any hazards to miners. 

2589 
The parties are entitled under the order of remand to an opportunity 

prior to any further order of dismissal "to present arguments addressing" 

the issue of the availability of the defense of diminution of safety in 

this case. 

Accordingly, it is ORDERED that on or before Friday, October 16, 

1981, the parties show cause why their pend· g motion to approve settlement 

should not be denied and the captioned ma dismissed. 

Distribution: 

Stephen P. Kramer, Esq., U.S. Department of Labor, Office of the Solicitor, 

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

Fletcher A. Cooke, Esq., Sewell Coal Comp~ny, Lebanon, VA 24266 (Certified 

Mail) 

2590 
U.S. Department of labor 

JUN 2 9 U~81 

MSPA Policy Mennrandum No. 81-22 C l;EALTH REVIEW GDMM!SSJON 

SUBJECT: Enforcement Policy When Coal Mine Operators Petition for 

M::dification Under Section lOl(c) of the Act 

Questions have been raised recently by district m:.magers and enforcement personnel 

concerning MSHA's enforcement :policy regarding mandatory safety standards 'When 

coal mine operators are in the process of petitioning for m:xlification of a safety 

standard under Section lOl(c) of the Act. 

Operators will be required to cc:mply with all mandatory safety standards even 

though the operator filed a request for m::xlification under 30 CFR 44.10. Accord~ 

ingly, a citation should be issued to the mine operator 'Whe..ri not in ccmpliance 

with any safety standard even though a decision on the petition is pending before 

the Mninistrator. 

There are, hovJever, two circumstances under 'Which the period of t.irre for abatement 

may be extemed until a decision has been rendered. 'Those conditions are: (1) 

where it is alleged in good faith that application of such standard will result 

in a d.i:cinution of safety to the miners. For example, the safety standard for 

whic.11 m::x:lification is sought was filed tmder 30 CFR 75.305 alleging that certain 

return air ccurses in the mine are unsafe for travel due to adverse roof cond.i~ 

tions ; .and, ( 2) where, due to a particular circumstance 1 to force ccmpliance with 

the standard would be unreasonable or .inp)se an undue hardship on the operator, 

and adeg:uate terrq;:orary measures have been taken to eliminate any hazards to miners. 

For exaITrple, where an operator cannot ccmply with the provisions of 30 CJ:""'R 75,1105 

' since no return air course ( s) is located within the .irrrrediate area of permanent 

pUITrps, and the operator prq;oses as an alternative method to install such p.mrps 

in a fireprCDf structure wi t."1 ad.di tional safeguards. In those instances where a 

citation has been issued and the abatanent time extended, the citation should be 

terr..inated if a favorable decision is rendered by the.Administrator. 

It should be noted that nothing precludes an operator fran seeking interim relief 

frcrr. enforcement of any mandatory safety standard according to 30 CFR 44.16, prior ·~g 'ssued a citation. 

eph A. Larronica 

Acting Administrator 

for O::Bl Mine Safety and Heal th 

Inquiries: Joseph A. Wocxls, (703) 235-9745 

Distribution: Principal Officials, Headquarters 

District Managers, Coal 

All Cbal Mine Cperators 

2591 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

State of Virginia, County of Fairfax, to wit: 

I, Judith K. O'Rear, being first duly sworn, depose and say as 

follows: 

Based on my independent memory and the contemporaneous notes I 

keep on all telephone conversations these are the true facts surrounding 

the Motion to Approve Settlement in the Sewell Co. case, WEVA 79-31. 

On August 12, 1981, I received a phone call from Mr. Fletcher Cooke, 

counsel for Sewell Coal Co. I had previously left a message for him to 

call me. I asked him whether the Sewell Coal case remanded by the 

Commission was going to be appealed by the company. He replied in the 

negative and informed me that he and the counsel for the Government 

were engaging in settlement discussions. He promised to inform me of 

the results of these discussions by August 14. On August 14, Mr. Cooke 

and Mr. Gresham told me that they had not yet spoken to company officials 

regarding a possible settlement, but that a tentative settlement had 

been reached with the Government, and they would advise the company to 

consider it. They were to advise me Monday, August 17 of the Company's 

position. On August 17, Mr. Gresham called to inform me that the parties 

were attempting to settle the case at $25.00 per violation. He told me 

that Mr. Kramer was handling the case for the Government and that Mr. Kramer 

was preparing a motion to approve settlement. 

On August 17, 1981, after talking to Mr. Gresham, I called Mr. Kramer 

for the first time. I asked Mr. Kramer if there were any developments 

in the Sewell case. He replied that he was going to resubmit a motion 

to approve settlement. He also mentioned an amount which agreed with that 

which counsel for the operator had previously supplied. I asked him when 

demotion would be submitted and he replied that the motion would be "out 

in the next couple of days." I specifically deny that I asked Hr. Kramer 

to file a motion superceding and replacing Mr. Street's motion, or suggested 

that he negotiate and prepare a motion for settlement of any kind. Insofar 

as Mr. Kramer's statement in paragraph 4 of the Government's response to the 

Order to Show Cause implies that I made such statements, he is either 

mistaken or misrepresenting the facts. 

!Judith K. O'Rear 

Subscribed and sworn befor~ me.this date 30, Ocotber, 1981 

State of Virginia 

Fairfax County 

'). 

McGeachy, Notary 

Commission Expires 2, 6, 1981 

2592 
FEDER.AL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

BECKLEY COAL MINING COMPANY, 

Contestant/Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Contest of Citation 

Docket No. WEVA 81-436-R 

Citation No. 876304 

Application for Review 

Docket No. WEVA 81-500-R 

Order No. 887689 

Beckley Mine 

DECISION 

Appearances: Harold S. Albertson, Jr., Esq., Hall, Albertson & Jones, 

Charleston, West Virginia, for Contestant-Applicant, 

Catherine M. Oliver, Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for Respondent. 

Before: Judge Melick 

These consolidated cases are before me upon the notice of contest and 

application for review filed by the Beckley Coal Mining Company (Beckley) 

under sections 105(d) and 107(e), respectively, of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 ~seq., the "Act," challenging 

the validity of citations and an order of withdrawal issued pursuant to 

sections 104(a) and 107(a), respectively, of the Act. Hearings were held 

in Charleston, West Virginia, commencing August 18, 1981. 

Docket No. WEVA 81-500-R 

In this case, the Secretary moved at hearing to amend Order of Withdrawal No. 887689 to additionally incorporate therein a citation under 

section 104(a) of the Act. After hearings were held in the companion case 

(WEVA 81-436-R), Beckley moved to withdraw its application for review and 

contest of the combined withdrawal order and citation and provided adequate 

reasons therefore. That request was granted and accordingly the case captioned Docket No. WEVA 81-500-R was dismissed. 

259:1 
Docket No. WEVA 81-436-R 

The issue in this case is whether a violation of the mandatory standard at 30 C.F.R. § 75.329 existed as alleged in Citation No. 876304. The 

citation reads as follows: 

The bleeder system for the 1 panel off Chestnut Mains 

Section (029) was not adequate to reduce the methane concentration to below 2 per centum. Methane in excess of 2 per 

centtml was present in the No. 37 crosscut as detected with 

a permissible G-70 methane detector located at a point not 

less than 12 inches from the roof, face or ribs. 

In relevant part, the cited standard provides as follows: 

* * * [a]ll areas from which pillars have been wholly or 

partially extracted and abandoned areas * * * shall be 

ventil?ted by bleeder entries or by bleeder systems or 

equivalent means * * *· When ventilation of such areas 

is required, such ventilation shall be maintained so as 

continuously to dilute, render harmless, and carry away 

methane and other explosive gases within such areas and 

to protect the active workings of the mine from the 

hazards of such methane and other explosive gases. 

30 C.F.R. § 75.329. 

There is no dispute that the subject panel was an area from which 

pillars had been wholly or partially extracted and had been abandoned as 

a gob area. In determining whether a violation has occurred, the specific 

issue then is whether ventilation of the cited area was being maintained 

so as "continuously to dilute, render harmless, and carry away methane and 

other explosive gases" in that area and "to protect the active workings of 

the mine from the hazards of such methane and other explosive gases." 

The results of the methane readings taken in the bleeder system for the 

subject panel by MSHA ventilation specialist Kenneth Ayers on June 25, 1981, 

are not contested. In four bottle samples taken by Ayers in the No. 37 crosscut 52 feet inby the left rib, the methane content was 2.71, 2.67, 2.74, and 

2.73 percent. Readings showing more than 3 percent methane were also obtained 

by Ayers with his handheld methane detector in the same locations. All other 

areas of the bleeder system tested by Ayers, including the No. 38 and No. 39 

crosscuts, showed methane concentrations of less than 2 percent. Ayers conceded that none of the methane levels actually found in the bleeder system 

were dangerous per se and that a concentration of 5 percent would be. necessary before an explosive condition existed. He also recognized that concentrations of methane higher than found in the crosscuts would be expected to 

exist in the gob area. 

2594 
Ayers testified at one point that he was unable to detect any perceptible 

movement of air in the No. 37 crosscut where he found the highest concentrations of methane. He later testified, however, that the air movement was 

"minimal" and opined that "an anemometer would not have turned" in that 

crosscut. Regardless of his reasons, it is clear that he did not in fact 

conduct any smoke tube or anemometer tests to confirm air movement or the 

absence thereof. Within this framework, Inspector Ayers concluded that if 

the condition was left unabated, an accumulation of methane was "very possible" 

in the cited area and that it was not likely that the condition would have 

corrected itself. 

Eugene Brown, Beckley's safety inspector, accompanied Ayers on his inspection. He disagreed with Ayers' evaluation of the air movement in the No. 37 

crosscut. Brown testified that he actually felt the movement of air in the 

crosscut but was unable at that time to perform any smoke tube or anemometer 

tests because the equipment was not readily available. The next day, however, 

after removing a line curtain to reconstruct the scene in the No. 37 crosscut 

as it had existed when the citation was issued, Ronald Scaggs, Beckley's 

director of safety and training, and Brown conducted a smoke tube test. The 

released smoke moved out of the crosscut and into the bleeder. They also 

extended a probe with a methane detector into the same general area close to 

the gob in which Ayers had the day before found 3 percent methane. They 

obtained similar readings and some even in excess of 3 percent. Near the 

mouth of the No. 37 crosscut on the other hand, they found only low-level 

readings of around 1 percent methane. They concluded based on all the evidence that the relatively high methane concentrations in excess of 3 percent 

near the gob area were in fact being diluted into the bleeder system on 

June 26 in the same manner in which they were being diluted on June 25 when 

the citation was issued. 

Whether there was a violation of the cited standard here depends on the 

adequacy of the ventilation system, not, as charged in the citation, solely 

upon the levels of methane found in any particular crosscut. The level of 

methane in the cited crosscut is only one of many factors to consider in 

determining whether a violation existed. The test set forth in the standard 

is whether the ventilation system is being "maintained so as continuously to 

dilute, render harmless, and carry away" the methane that both parties recognize is going to emanate from the gob area. It is therefore essential to know 

in this case whether such ventilation was being maintained in that part of 

Beckley's bleeder system here cited,!·~·· the No. 37 crosscut. In this 

regard, the clear preponderance of the evidence does not support the alleged 

violation. Essentially the only evidence produced to suggest the inadequacy 

of the ventilation system here in effect was the one-time series of methane 

readings showing a non-explosive 2- to 3-percent concentration and the opinion of Inspector Ayers that there was "no perceptible" movement of air out 

of the cited crosscut, However, since Ayers himself later conceded that 

there was some air movement (though minimal) out of the crosscut, since he 

failed to support his earlier conclusion of "no perceptible" air movement 

with a smoke tube test o·r anemometer reading, and since Safety Inspector 

Brown testified that there was indeed movement of air out of the crosscut 
at that time, I find it more credible that there was indeed movement of air 

(and methane) out of the No. 37 crosscut when the citation was issued. I 

also find credible the tests performed by Brown and Scaggs on the following 

day under conditions substantially similar to those when the citation was 

issued from which it may be inferred that methane from the gob area was 

indeed being diluted, rendered harmless, and carried away at that time as 

well as when the citation was issued. Accordingly, I find that there has 

been no violation of the standard as cited. 

ORDER 

Docket No. WEVA 81-436-R 

Citation No. 876304 is VACATED and the contest is GRANTED. 

Docket No. WEVA 81-500-R 

The application for review and contest are DISMISSED. 

Distribution: 

Harold S. Albertson, Jr., Esq., Hall, 1 

Charleston, WV 25327 (Certified Mail) 

Catherine M. Oliver, Esq., Office of the Solicitor, U.S. Department of 

Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900 15th Street, 

NW., Washington, DC 20005 (Certified Mail) 

2596 
FEDERAL MINE SAFETY AND HIEAL TH 11u:v1EW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. YORK 81-46-M 

A/O No. 19-00724-05005 

v. 

Acton Plant 

KENNEDY BROTHERS ACTON 

SAND & GRAVEL, 

Respondent 

DECISION 

Appearances: David A. Snyder, Esq., Office of the Solicitor, 

Before: 

U.S. Department of Labor, Boston, MA for Petitioner, 

MSHA; 

John O. Mirick, Esq., Mirick, O'Connell, DeMallie 

& Lougee, Worcester, MA for Respondent, Kennedy 

Brothers Acton Sand & Gravel. 

Judge Merlin 

This case is a petition for the assessment of civil penalties filed 

by the government against Kennedy Brothers Acton Sand & Gravel. A 

hearing was held on October 13, 1981. 

At the hearing, the parties agreed to the following stipulations: 

(1) The operator is small in size (Tr. 6). 

(2) The operator's history of previous violations is small 

(Tr. 6). 

(3) The imposition of penalties will not affect the operator's 

ability to continue in business (Tr. 6-7). 

(4) The alleged violations were abated in good faith (Tr. 9-10). 

(5) The conditions or practices specified in the citations 

issued by the inspector existed as described by the inspector (Tr. 

14-15). 

Because the parties have entered into stipulations concerning the 

existence of the violations, the operator's size, the operator's history 

of previous violations, the operator's ability to continue in business 

2597 
despite the imposition of penalties, and the operator's good faith 

abatement of the violations, I only need to consider the degree of the 

operator's negligence and the level of gravity of the violation in order 

to determine an appropriate penalty for each citation. 

Citation No. 216841 

This citation was issued when the inspector observed an inadequate 

guard on a tail pulley, a violation of 30 C.F.R. 56.14-3. I found that 

gravity was moderate; and that negligence was ordinary. Accordingly, I 

assessed a penalty of $50, which I felt was consistent with other 

penalties I have assessed in this situation (Tr. 16). 

Citatio'h No. 216842 

This citation was issued when the inspector observed an inadequate 

guard at the tail pulley for the number belt conveyor, a violation of 

30 C.F.R. 56.14-3. I found that gravity was moderate; and that negligence 

was ordinary. Accordingly, I assessed a penalty of $50, which I felt 

was consistent with other penalties I have assessed in this situation 

(Tr. 18). 

Citation No. 216843 

This citation was issued when the inspector observed that there was 

no stop device or guard rail along the lower section of the No. 1 belt 

idlers, a violation of 30 C.F.R. 56.9-7. I found that gravity was 

moderate; and that negligence was ordinary. Accordingly, I assessed a 

penalty of $90 (Tr. 20). 

Citation No. 216844 

This citation was issued when the inspector observed an inadequate 

guard on a V-belt for the primary crusher. At the hearing, both parties 

agreed to amend the citation from section 56.14-3 to section 56.14-1 

(Tr. 20). I found that gravity was moderate; and that negligence was 

ordinary. Accordingly, I assessed a penalty of $50, which I felt was 

consistent with other penalties I have assessed in this situation 

(Tr. 20) • 

Citation No. 216845 

This citation was issued when the inspector observed that no guard 

was provided over the head pulley for the return conveyor, a violation 

of 30 C.F.R. 56.14-1. I found that gravity was moderate; and that 

negligence was ordinary. Accordingly, I assessed a penalty of $114, 

which was the amount recommended by the parties (Tr. 22). 

2598 
Citation No. 216846 

This citation was issued when the inspector observed that no guard 

was provided over the takeup rolls on the No. 3 sand c~nveyor, a violation of 30 C.F.R. 56.14-1. I found that gravity was moderate; and that 

negligence was ordinary. Accordingly, I assessed a penalty of $114, 

which was the amount recommended by the parties (Tr. 23). 

Citation No. 216847 

This citation was issued when the inspector observed an inadequate 

guard on the balance wheel on the left shaker screen. At the hearing, 

both parties agreed to amend the citation from section 56.14-3 to 

section 56.14-1 (Tr. 23). I found the level of gravity was low because 

in the opinion of the inspector an injury due to this violation would 

result in lost work days or restricted duty rather than the permanent 

disabling injury that would result from any of these other violations. 

I further found negligence was ordinary. Accordingly, I assessed a 

penalty of $45 (Tr. 25). 

Citation No. 216848 

This citation was issued when the inspector observed that safe 

access was not provided to the head pulley bearings on the outer side of 

the No. 4 stacker conveyor belt, a violation of 30 C.F.R. 56.11-1. I 

found that gravity was moderate; and that negligence was ordinary. 

Accordingly, I assessed a penalty of $120 (Tr. 27-28). 

Citation No. 216849 

This citation was issued when the inspector observed that no guard 

was provided over the return idlers on the No. 3 conveyor belt, a violation of 30 C.F.R. 56.14-1. I found that gravity was moderate; and that 

negligence was ordinary. Accordingly, I assessed a penalty of $114, 

which was the amount recommended by the parties (Tr. 28). 

ORDER 

The operator is ORDERED to pay $747 within 30 days from the date of 

this decision. 

Assistant Chief 

Distribution: 

David A. Snyder, Esq., Office of the Solicitor, U.S. Department of 

Labor, John F. Kennedy Federal Bldg., Government Center, Boston, 

MA 02203 (Certified Mail) 

John 0. Mirick, Esq., Mirick, O'Connell, DeMallie & Lougee, 

1700 Mechanics Bank Tower, Worcester Center, Worcester, MA 

01608 (Certified Mail) 

2599 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 NOV 12 1981 

) 

BERALDO GRIJALVA, ) COMPLAINT OF DISCHARGE, 

) DISCRIMINATION OR INTERFERENCE 

Complainant, ) 

) DOCKET NO. WEST 81-255-DM 

v. ) 

) MSHA CASE NO. MD 78-58 

ORACLE RIDGE MINING PARTNERS, ) 

) 

Respondent. ) 

) 

DECISION AND ORDER 

Appearances: 

Beraldo Grijalva 

P.O. Box 374 

Marana, Arizona 85238 

Pro Se 

Stephen Pogson, Esq. 

363 North First Avenue 

Phoenix, Arizona 85003 

For the Respondent 

Before: Judge Virgil E. Vail 

STATEMENT OF THE CASE 

Pursuant to a notice of hearing dated August 31, 1981, a hearing in 

the above-entitled proceeding was held in Tucson, Arizona, on October 6, 

1981. 

At the hearing, the complainant, appearing with his son, stated that 

he had contacted an attorney several weeks prior to the hearing and had 

expected the attorney would represent him, however the attorney was not 

present. 

Further inquiry revealed that the complainant had contacted an 

attorney and given him the various documents related to this matter to 

review. These documents included the Notice of Hearing which set forth 

the date and time of the hearing. The attorney was to contact the 

complainant but failed to do so. During a recess of the hearing, 

complainant learned that the attorney was attending another hearing and 

would not be available for this matter. The complainant was advised that 

he could proceed on his own, but he stated that he did not wish to proceed 

and wished to drop the case. (Tr. 11) . 

2600 
The respondent's attorney arg11ed that the complainant had been given 

adequate notice of the date, time and place of the hearing and that the 

attorney was also aware of the hearing. Counsel for respondent stated that 

he was prepared to proceed at that time. 

FINDINGS OF FACT 

Having considered all of the circumstances involved, I make the 

following findings: 

1. That the complainant had sufficient notice of the date, time and 

place of this hearing, 

2. That the complainant contacted an attorney on one occasion but 

failed to re-contact him prior to the hearing and therefore made 

insufficient effort to determine if the attorney would represent him or 

attend the hearing. 

3. That no not ice of appearance was made by an attorney in this 

matter on behalf of the complainant. 

4. That the complainant was afforded an opportunity to proceed on his 

own in this matter, but stated he wanted to drop the case. 

5. That the respondent's attorney was in attendance and was prepared 

to call witnessess and present evidence. 

6. That considerable time and expense was incurred in setting and 

attending this hearing and it would be a hardship on the respondent to 

continue the matter to a later date. 

ORDER 

I hereby accept the complainant's statement that he wished to drop the 

matter and not proceed further as a motion to dismiss. 

Accordingly, it is ORDERED that complainant's motion be GRANTED and 

the case DISMISSED WITH PREJUDICE. 

/,, 

'-;:?'// ( ~ / . / 

_V,_..-:::' ,f 7.,C'jA.,,, _ .r: · { d L ( 

Virgil E.JVail 

Administrative Law Judge 

2601 
Distribution: 

Beraldo Grijalva 

P.O. Box 374 

Marana, Arizona 85238 

Stephen Pogson, Esq. 

363 North First Avenue 

Phoenix, Arizona 85003 

2602 
FEDERAL INE SAFETY AND H 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MISSION 

WILLIAM C. McCLAIN, 

Complainant 

Complaint of Discharge, 

Discrimination or Interference 

v. 

WESTMONT COAL COMPANY, INC., 

Respondent 

Docket No. PENN 81-162·-D 

PITT CD 81-9 

DECISION 

Appearances: James T. Davis, Esq., Davis & Davis, Uniontown, 

Pennsylvania, for Complainant; 

Robert A. Kelly, Esq., Cauley, Birsic & Conflenti, 

Pittsburgh, Pennsylvania, for Respondent. 

Before: Judge Melick 

This case is before me upon a complaint filed under section 105(c)(3) 

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

the "Act" alleging that William C. McClain was suspended by WestmontCoal 

Company, Inc. (Westmont) in violation of section lOS(c)(l) of the Act. 1/ 

An evidentiary hearing was held on McClain's complaint in Pittsburgh, -

Pennsylvania, commencing September 8, 1981. 

1/ Section lOS(c) (1)- of the Act provides as follows: 

"No person shall discharge or in any manner discriminate against or 

caused 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 any 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 

evaluation and potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of miners or applicant for 

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

related to this Act or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners 

or applicant for employment on behalf of himself or others of any statutory 

right afforded by this Act." 

2soa 
Mr. McClain can establish a prima facie violation of this section of the 

Act if he proves by a preponderance of the evidence that he has engaged in an 

activity protected by that section and that the disciplinary action against 

him was motivated in any part by that protected activity. Secretary of Labor 

ex rel. David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (1980), 

rev'd. on other grounds, Consolidation Coal Company v. Secretary of Labor, 

No. 80-2600 (3d Cir., October 30, 1981). He alleges as protected activity 

his participation in the union safety committee and, in particular, his filing in this capacity of six safety complaints against Westmont. Westmont 

does not dispute that these activities are protected within the scope of 

section lOS(c)(l), but contends that the disciplinary action taken against 

McClain was not motivated in any part by those activities. ll Westmont 

maintains that this disciplinary action was solely the result of McClain's 

misconduct on January 6, 1981, in shooting a deer on neighboring property, 

out of season, during the period of his work shift, and while using a 

company pickup truck. For the reasons that follow, I find that McClain 

has failed to sustain his burden of proving that the disciplinary action 

taken by Westmont was motivated in any part by his protected activities. 

Since there is no dispute that McClain engaged in protected activities, 

the essential question to be decided is whether McClain has sustained his 

burden of proving that the disciplinary action taken against him was motivated in any part by those activities. Pasula, supra. As evidence of 

vindictiveness (and presumably motivation to unlawfully discipline him), 

McClain first points out that he issued three safety complaints on unionfurnished forms to Westmont on September 9 and 10, 1980. McClain alleges 

that Andrew Hynick, then mine superintendent, declined to sign for the complaints and refused to accept a copy. There is no allegation that Hynick 

was obliged in any way to perform these acts and Hynick testified that he 

was fully aware of the substance of the complaints and had the cited problems corrected. According to Hynick, he declined to sign the written 

complaints because McClain had failed to follow customary procedures to 

approach him first with an oral complaint. 

As further purported evidence of unlawful motivation, McClain contends 

that beginning in October 1980, and continuing the next 2 months, on "numerous" occasions he requested that Mr. Hynick arrange to have a "40-hour 

safety course" presented. McClain alleges that his persistence in seeking 

to have that course presented irritated Hynick to such an extent that it 

resulted in his discharge on February 24, 1981. Hynick testified, on the 

other hand, that he recalled being approached about the course only once 

and presumably, therefore, did not find it particularly irksome. The safety 

training was in fact presented in due course during the week of January 19, 

1981. 

-z;--MZClain was discharged by Westmont by letter dated February 1981. That 

action was modified, however, at arbitration proceedings and McClain was 

ordered reinstated but suspended without pay from February 27, 1981, to 

March 2 7, 1981, for his unlawful deer hunting activities described, infra. 

It is that suspension that is at issue herein. 

2604 
McClain next contends that following an inspection by mine safety committee members on February 2, 1981, he, as a member of that committee, 

reported a nlUTlber of safety violations to the company, including what the 

committee deemed to be an imminent danger regarding abandoned auger holes. 

McClain testified t:ha t: the company was accordingly required to take immediate corrective action requiring the temporary transfer of equipment: and men 

from production work He also mentions a complaint that the mine safety 

committee filed with the company as a result of a purported explosion near 

working employees on February 7, 1981. McClain presumes that these too were 

sources of ill will toward him. 

While each of these four incidents cited by the Complainant as protected 

activities could theoretically provide a basis for an unlawful motive, there 

is insufficient evidence to show any causal connection between the incidents 

and the disciplinary action. I find the first two incidents cited to be 

particularly trivial and hardly of a nature likely to give rise to the serious discriminatory response alleged. The possibility of a causal relation is 

made even more remote by the lapse of time--nearly 6 months between the first 

incident and McClain's initial discharge. Although the latter two incidents 

cited are of a more serious nature, no explanation is given as to why other 

members of the mine safety committee and the chainnan of that committee did 

not suffer discrimination. It appears that they were equally responsible 

(the chairman even more so) for the safety complaints but there is no evidence that any one of these miners was singled out for any discriminatory 

treatment. Indeed, the only factor distinguishing McClain from these other 

committeemen is his admitted unlawful deer hunting. In short, I find that 

the Complainant has simply failed in his burden of proving that the operator 

was motivated in its discipline of him by any of the protected activities. 

As other evidence of vindictiveness, McClain cites the testimony of 

former co~worker Roland Sterbetzel. Sterbetzel testified that in September 

1980, he overheard a conversation between Superintendent Hynick and an 

employee named Roll. From what he was able to overhear, he concluded that 

Hynick wanted to have Roll engage McClain in a fight in order to "get rid 

of him because of his union activities." According to Sterbetzel, Roll disliked McClain and had apparently complained about him in the past in efforts 

to get McClain fired. Roll did not appear at the hearing. Hynick testified 

that what actually happened was that Roll approached him and offered to get 

into a fight with McClain so that McClain could be fired. Hynick testified 

that he paid no attention to Roll' s offer and walked away without responding. 

There is no evidence that Roll ever did engage McClain in a fight and no 

evidence that McClain's "union activities" related to any activity protected 

by the Act. I find in any event that Hynick's version of the conversation 

to be the more credible and reliable. On the one hand, Sterbetzel had merely 

"overheard" the conversation or part thereof and accordingly it is not 

unlikely that he obtained an inaccurate understanding of it. On the other 

hand, the reliability of Hynick' s testimony is assured by the fact that he 

was a direct participant i.n the conversation. The failure of the Complainant to support his v~rsion of the conversation by calling the other direct 

participant as his witness must also be considered. 

2605 
Even if it could be argued that Westmont was motivated in part by 

Complainant's protected activities, there is ample evidence from which it 

may be concluded that it would have disciplined him in any event for his 

unprotected activities alone. Fasula, supra. Westmont asserts herein that 

its action was solely the result of McClain's willful misconduct in violating 

Pennsylvania law and company policy in shooting a deer out-of-season on neighboring property and while using a company vehicle to aid in the accomplishment 

of this act during the period of his regular working shift. As a result of 

such misconduct, McClain subjected Westmont to potential civil and criminal 

liability and created a potentially damaging source of ill will with adjacent 

property owners and State officials. Moreover, if Westmont permitted such 

employee misconduct without appropriate sanctions, it could seriously erode 

its ability to meet legitimate management responsibilities. 

At the time of the incident, McClain had been employed by Westmont at 

its coal strip mining operation for almost 3 years. He had been working as 

a bulldozer operator but on January 6, 1981, he was working the 5 a.m. to 

12 noon shift as an oiler for the dragline. Shortly before 9 that morning, 

he drove a company truck to the fuel depot about one-half mile from the dragline. At the depot, he unloaded several barrels, picked up some rags and 

parts as well as his lunch bucket and a loaded rifle from his car. He claims 

that he intended to show the rifle to another employee who was interested in 

purchasing a gun. While returning to the drag line, he spotted a deer crossing 

the road. He claims that he was on the haulage road about 20 yards from the 

public township road when he actually shot the deer. He dragged the deer 

to the truck and transported it to the dragline where he removed it, gutted 

it and returned to work. He claims that only 20 to 25 minutes had elapsed 

from the time he shot the deer until he completed gutting it. He further 

alleges that he did not eat his lunch during that shift and considered that 

period as his lunch tline. 

After his shift, at around 12:25 p.m., a Pennsylvania State game warden 

questioned him. McClain admitted shooting the deer and turned the still 

loaded gun over to the warden. He had hidden it on the dragline during the 

remainder of his shift, McClain subsequently paid $200 in fines for violations of State game laws and lost his hunting license for 3 years. 

Only one deer was shot that day in the vicinity of the haulage/township 

road and the credible evidence presented at the hearing shows that that deer 

had been shot on the private property of Joan Waldron, who lived adjacent 

to the Westmont Mine. Another neighbor, Allen Wiltrout, described the spot 

where the deer had been shot, dragged out, and loaded onto a truck. Since 

the deer had apparently been shot out-of-season he had his daughter call the 

game warden. Wiltrout later accompanied two of the wardens as they pursued 

their investigation. They discovered the company pickup truck at the dragline and found blood and hair from the deer still in the truck. According 

to Wiltrout, the Westmont property line was clearly marked in that area by 

a fence line that separated the township road from the company haulage road. 

On January 7, 1981, the day after the deer was shot, John Aloe, Westmont's 

president, received a phone call from Joan Waldron. According to Aloe, she 

260f; 
was frantic, speaking in a high-pitch crackling voice. She was obviously 

upset. Ms. Waldron reported that a Westmont employee had been poaching on 

her property and wanted to have that employee transferred. Aloe thereupon 

began an investigation to find the responsible employee. After much effort, 

Superintendent Hynick finally succeeded in obtaining McClain's name from state 

officials. As a result, on February 19, 1981, McClain was issued a notice of 

disciplinary action. 

Within this framework of evidence, I conclude that Westmont was indeed 

justified in taking disciplinary action against McClain and that it acted on 

the basis of his unprotected activities alone. McClain himself has conceded 

that he showed bad judgment. While he also produced evidence that previous 

mine management had permitted the carrying of guns onto Westmont property for 

the purpose of deer hunting on the property during hunting season, he produced 

no evidence to suggest that Westmont had ever permitted the use of company 

vehicles to further any deer hunting, the secreting of loaded weapons on 

company equipment, shooting deer during the employee's shift, hunting on 

neighboring property, or hunting out of season. 

Under all the circumstances, I find that McClain has failed to sustain 

his burden of proof under section 105(c)(l) of the Act. Fasula, supra. The 

complaint herein is therefore DENIED and the case ISMISSE--

Distribution: 

James T. Davis, Esq., Davis & Davis, 99 East Main Street, Uniontown, 

PA 15401 (Certified Mail) 

Robert A. Kelly, Esq., Cauley, Birsic & Conflenti, 1212 Manor Building, 

564 Forbes Avenue, Pittsburgh, PA 15219 (Certified Mail) 

260'7 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ttO\f i '3 \~\ 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 0

ADMINISTRATION (MSHA), 

v. 

Petitioner 

RICHARD A. DOUGLASS & SONS, 

Respondent 

Docket No. YORK 81-23-M 

A/O No. 17-00493-05001 EJ6 

Beckler Pit & Mill 

DECISION 

Appearances: David L. Baskin, Esq., Office of the Solicitor, U.S. Department 

of Labor, Boston, Massachusetts, for the Petitioner; 

David W. Austin, Esq., Rumford, Maine, for the Respondent. 

Before: Judge Cook 

I. Procedural Background 

On January 16, 1981, the Mine Safety and Health Administration 

(Petitioner) filed a proposal for assessment of civil penalties in the abovecaptioned proceeding pursuant to section llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979) (1977 Mine 

Act). The proposal alleges 11 violationS-o"f"Provisions of the Code of Federal 

Regulations. On February 4, 1981, an answer was filed by Richard A. Douglass 

& Sons (Respondent). A hearing was held on September 24, 1981, in Augusta, 

Maine, with representatives of both parties present and participating. 

II. Proposed Settlement 

During the course of the hearing, both parties proposed a settlement. 

The amount of the original proposed assessment is identified as follows: 

30 C.F.R. 

Citation No. Date Standard Assessment 

00200203 07/01/80 56.14-1 $ 52 

00200204 07/01/80 56.14-1 52 

00200205 07/01/80 56.14-3 44 

00200206 07/01/80 56.14-1 44 

2608 
00200207 07/01/80 56.14-1 52 

00200208 07/01/80 56.9-7 34 

00200209 07/01/80 56.9-7 34 

00200210 07/01/80 56.14-1 52 

00200211 07/01/80 56.14-1 34 

00200212 07/01/80 56.14-1 34 

00200213 07/01/80 56.14-1 34 

Total proposed assessment: $466 

The proposed settlement is identified as follows: 

Vacate Order Nos. 00200204 - $52 

00200207 52 

00200210 52 

Amount proposed to be paid in settlement $300. 

In support of the proposed settlement, the parties stated as follows at 

the hearing: 

JUDGE COOK: What is the status now? There have been 

many stages, apparently, that this settlement discussion has 

been going through, but what is your present status? 

MR. BASKIN: Well, counsel for the Respondent contacted 

me--I believe it was the day before yesterday--your Honor, 

and said that his client was willing to settle the case for 

a lower amount of money, and we reached an agreement between 

ourselves of $300, and the original penalty assessment is 

$466. We would like to submit our $300 settlement for the 

Court's consideration. It is certainly the Secretary's 

belief that settlement at this lower amount is consistent 

with the purposes of the Act and there is every reason why 

it ought to be approved. I can get more specific, if the 

Court desires, your Honor. 

JUDGE COOK: Well, now, could you specify particularly 

as to each of these charges what particular amount you had 

agreed upon. 

MR. BASKIN: We haven't agreed on specific amounts, 

your Honor. What I would like to do, your Honor, is point 

out something to you, if I could. I think this is one of 

the justifications for settlement, although Mr. Douglass--

the fact that Mr. Douglass is a small operator and doesn't 

have a great deal of cash flow is also a definite factor in 

this case. 

2609 
I would like to point out to the Court that we have 

Citations in this case whose numbers are all 2000, 002, 

0020, and then they go three, four, five, six, seven, eight, 

nine, ten, eleven, twelve, and thirteen, so I am going to 

just refer to the last two digit numbers for convenience, 

your Honor. 

JUDGE COOK: Yes. 

MR. BASKIN: We have Citations No. 4 and 11, your Honor, 

that both pertain to an area on the one and a half inch film 

conveyor. Now, 4 and 11, 4 pertains to the unguarded tail 

pulley, and 11 pertains to unguarded return idlers, and in 

the way the small crushing unit works, these areas are very 

close together, from 2 to 4 feet. It is what you would say, 

it is in the same place. There was lack of guarding in the 

same place, but two unguarded pinchpoints. 

The point is that we have an area that is pretty much 

the same. The same thing is true with Citations 7 and 12, 

your Honor; they have one unguarded tail pulley on a conveyor 

under a screen, a crushing screen, and you have the same 

unguarded idlers in that area. Again, it is very close 

together. 

With Citations 10 and 13, your Honor, you have an 

unguarded tail pulley on a return conveyor. You have an 

unguarded return idler on the same return conveyor. 

I would like to make the Court aware of an MSHA memorandum that was dated October 3, 1979, and it is from Thomas 

Shepard [sic], who [was) then the Administrator for metal and 

nonmetal mine safety and health; the subject was Citations 

and orders citing multiple violations. 

The third paragraph of that he says that where there is 

multiple violations, the same standard we are talking about, 

here 29 CFR [56.14-1), standards which were observed in violation involving the same piece of equipment or the same area 

of the mine should, and I emphasize the should and it is a 

discretionary thing, but we are willing to put it into effect 

in this case, should be treated as one violation and one citation should be issued. 

What I am saying here is that we got six citations that 

could easily be treated as three citations. We would be very 

happy to amend the Complaint that way. 

Now, I want to point out to the Court, for instance, 

that for Citation 4, we have a $52 assessment. Citation 11 

2610 
we have $34. For Citation 7, we have $52. assessment, and 

for Citation 12, $34. For Citation 10, $52. For Citation 2, 

$52. For Citation 13, $34. In each case we would combine 

the Cit at ions, we would modify :i.t, and wipe out the $52 

citation. So we wipe out the 3 $52 citations with a reduc~ 

tion in the penalty of $156 do"t-m to $310. Then quite 

frankly, to round it off, take into consideration 

Mr. Douglass not to great financial strength, we simply want 

to cut down the other $10 to the $300, which his counsel has 

agreed to pay. We think that the reasons for modifying the 

citations are, one, that we have the discretion to do it; 

secondly, the man is just not super wealthy, like Peabody 

Coal Co. So, I would appreciate it if the Court would consider the agreement in that context. I would like to state 

that we have agreed, counsel and I have agreed, that he pay 

in installments. There is a $300 penalty to be paid in $100 

every month for three months. This company shouldn't have to 

pay $300 in one month. I don't know, but it would put a dent 

in his personal finances. There is no reason to make it all 

at once. 

JUDGE COOK: Now, Mr. Austin, what is your position on 

this? 

MR. AUSTIN: Thank you. My position is the same as my 

colleagues. It is something that we have agreed to after 

discussing it, and we were in hopes of reaching an agreement 

and presentation to the Court, and I would concur with what 

he recommends. 

JUDGE COOK: Very well. Now, before we conclude it 

then, Mr. Baskin, how did you want to handle the matter 

that you suggested of making some motion concerning three 

of the charges? How did you want to handle that? 

MR. BASKIN: Well, to put it in perspective, I would 

move, your Honor, that Citation No. 4 be vacated and that 

Citation No. 11 be modified to refer to lack of guarding 

not only at the return idler, but at the tail pulley on the 

one and a half in conveyor belt. With respect to Citation 

Nos. 7 and 12, I would move for vacating on Citation No. 7 

and modification of Citation No. 12 to state there was lack 

of guarding not only at the return idler but also at the 

tail pulley on the conveyor belt under the washing screen. 

With respect to Citations No. 10 and 13, we would move that 

Citation No. 10 be vacated and that Citation No. 13 be 

modified to ref er to lack of guarding not only at the 

return idler but at the tail pulley on the return conveyor. 

2611 
In each case, the penalties attached to the vacated 

citation would be wiped out, cancelled, if you will, and 

the $34 penalty for the remaining citations be retained. 

JUDGE COOK: Very well, now, what is you position as to 

that motion, Mr. Austin? 

MR. AUSTIN: I would also concur in that, your Honor. 

JUDGE COOK: Very well. Then I will grant that motion. 

MR. BASKIN: Thank you, your Honor, I appreciate that. 

JUDGE COOK: And I will approve the settlement then at 

the $300 figure as agreed to by both parties. 

MR. BASKIN: Do you want anything in writing, your Honor, 

or just on the record? 

JUDGE COOK: This is adequate. If you did want to do 

anything else in writing, that is your privilege but is is on 

the record here, and the transcript, of course, will be the 

basis upon which I will later issue a decision approving the 

settlement, and, of course, the motion to vacate those 

citations. 

MR. BASKIN: Thank you. Will your order include, 

please, and order the Respondent to pay the penalty in $100 

installments over three months for a total of $300. Send it 

to the Mine Safety & Health Administration, Attn. [Madison 

McCulloch] Director of the Office of Assessments, MSHA, 

4015 [Wilson) Blvd., Arlington, VA [22203.) That should be 

paid on November, December and January first, if your Honor, 

please. 

JUDGE COOK: Very well. I will also include that order 

in mine. 

(Tr. 3-8). 

The reasons given above by counsel for the Petitioner for the proposed 

settlement have been reviewed in conjunction with the information submitted 

as to the statutory criteria contained in section 110 of the Act. After 

according this information due consideration, it has been found to support 

the proposed settlement. It therefore appears that a disposition approving 

the settlement will adequately protect the public interest. 

ORDER 

Accordingly, IT IS ORDERED that the proposed settlement, as outlined 

above, be, and hereby is, APPROVED. 

2612 
IT IS FURTHER ORDERED that Respondent, within 30 days of the date of 

this decision, pay one-third of the agreed-upon penalty of $300 assessed in 

this proceeding, and that it thereafter pay one-third of such penalty within 

60 days of the date of this decision and the remaining one-third of such 

penalty within 90 days of the date of this decision. Such payment is to be 

forwarded to Madison McCulloch, Director of the Office of Assessments, Mine 

Safety and Health Administration, 4015 Wilson Boulevard, Arlington, Virginia 

22203. 

Distribution: 

/ .,John F. 

~~Administrative Law Judge 

David L. Baskin, Esq., Office of the Solicitor, U.S. Department of Labor, 

John F. Kennedy Federal Building, Boston, MA 02203 (Certified Mail) 

David W. Austin, Esq., 104 Congress Street, Rumford, ME 04276 (Certified 

Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, 

U.S. Department of Labor 

Administrator for Coal Mine Safety and Health, UoS. Department of Labor, 

Standard Distribution 

2613 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MATHIES COAL COMPANY, Contest of Citation 

Contestant 

v. Docket No. PENN 81-213-R 

Citation No. 1050312; 7/10/81 

SECRETARY OF LABOR, 

Appearances: 

Before: 

Respondent Mathies Mine 

DECISION 

Jerry F. Palmer, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Contestant; 

James P. Kilcoyne, Jr., Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for 

Respondent. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This proceeding was commenced by Mathies Coal Company (hereinafter 

Mathies) on July 21, 1981, by the filing of a notice of contest of Citation 

No. 1050312 issued by the Secretary of Labor, Mine Safety and Health 

Administration (hereinafter MSHA) pursuant to section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815 (hereinafter "the Act"). 

Also on July 21, 1981, Mathies filed an application for temporary relief 

from the above citation and a motion for expedited hearing on the notice of 

contest. On August 4, 1981, I issued an order granting the motion for 

expedited hearing and denying the application for temporary relief. 

A hearing was held on the above matter in Pittsburgh, Pennsylvania on 

August 27, 1981. Francis E. Wehr, Sr., and Joseph Garcia testified on behalf 

of MSHA. William Porter and George Kostelnik testified on behalf of Mathies. 

At the hearing, Mathies renewed its motion for interim relief requesting that 

the Secretary of Labor be prevented from enforcing the escapeway regulations 

pending the outcome of this decision. Noting that to prevent enforcement of 

the safety regulation would possibly affect the health and safety of the 

miners, I found that Mathies had not satisfied its burden under Rule 46, 

29 C.F.R. § 2700.46. I further found that Mathies was using this application 

as a means to avoid the process of seeking and obtaining a bypass variance. 

I, therefore, denied Mathies' application for temporary relief. 

2614 
ISSUE 

Whether Mathies violated 30 C.F.R. § 75.1704-2(a). 

APPLICABLE LAW 

30 C.F.R. § 75.1704-2(a) provides as follows: 

In mines and working sections opened on and after 

January 1, 1974, all travelable passageways designated as 

escapeways in accordance with § 75.1704 shall be located to 

follow, as <letermined by an authorized representative of the 

Secretary, the safest direct practical route to the nearest 

mine opening suitable for the safe evacuation of miners. 

Escapeways from working sections may be located through 

existing entries, rooms, or crosscuts. 

STIPULATIONS 

The parties stipulated as follows: 

1. Mathies Coal Company is the owner and operator of the subject mine. 

2. The operator and the mine are subject to the 1977 Act. 

3. The Administrative Law Judge has jurisdiction over the parties and 

the subject matter of this controversy. 

4. The inspector who issued this citation was a duly authorized 

representative of the Secretary of Labor. 

5. A copy of the citation is authentic and was properly served upon 

the operator. 

FINDINGS OF FACT 

I find that the preponderance of the evidence of record establishes the 

following facts: 

1. On July 10, 1981, MSHA inspector Francis E. Wehr issued Citation 

No. 1050312 for a violation of 30 C.F.R. § 75.1704-2(a) in that the Linden 

intake escapeway was bypassed while the I.inden Portal elevator was inoperable 

due to electrical problems. The citation alleged that instead of withdrawing 

its miners from the affected area, the operator redesignated the intake 

escapeway to the Kerr intake shaft which was not the nearest mine opening 

suitable for the safe evacuation of miners. 

2. Linden Portal was opened in September 1980, after the effective date 

of section 75.1704-2(a)·. 

261[) 
3. Prior to the development of the Linden Portal, the approved escapeway plan for the working sections 21 Face, 25 Face, West Mains and 1 South 

off West Mains, provided that the intake escapeway go to Thomas Portal while 

the return escapeway be routed to Kerr Fan. 

4. After Linden Portal went into operation, the approved escapeway 

plan provided that the intake escapeway go to Linden Portal and the return 

escapeway go to Kerr Fan. 

5. The safest direct practical route from the above working sections 

is to Linden Portal which is the nearest mine opening suitable for the safe 

evacuation of miners. 

6. On July 9, 1981, the Linden Portal was shut down due to electrical 

problems with its elevator. 

7. On July 9, 1981, while the Linden Portal was closed, the miners 

were not withdrawn from the affected area. The workers were directed to 

alternative escapeways which were not approved as being the nearest mine 

opening suitable for the safe evacuation of miners. 

8. Mathies did not receive permission from the MSHA District Manager 

to bypass the Linden Portal when it became inoperable. 

DISCUSSION 

Mathies' primary contention in challenging the validity of this citation 

centers upon its assertion that section 75.1704-2(a) does not apply to Linden 

Portal. Linden Portal, one of seven escapeways at Mathies Mine, was opened 

in September, 1980. The safety and health standard at issue was promulgated 

October 31, 1973. See 38 Fed. Reg. 30000. Mathies determined that the safety 

standard does not apply to Linden Portal because of the policy statements 

contained in the MSHA underground manual. The manual states in pertinent 

part: 

The term "mine opening suitable for the safe evacuation 

of miners" as used here indicated that some mine openings 

developed prior to the effective date of this regulation may 

or may not be suitable for safe evacuation of miners. For 

example, an old mine shaft may not be safe for travel because 

of badly deteriorated shaft lining, timbers, etc., even 

though it is still suitable for mine ventilation purposes, or 

a mine shaft developed and equipped with a ventilating fan 

prior to the effective date of this regulation may or may not 

be suitable for the safe evacuation of miners, if necessary 

alterations would adversely affect the mine ventilation in 

the event of an emergency. Ex. G-2. 

2616 
Since the manual shows a concern for "some mine openings developed prior to 

the effective date of this regulation,'' Mathies concludes that Linden Portal, 

which was developed after the effective date of the regulation, is not 

subject to the provisions of the regulation. 

The plain language of section 75.1704-2(a) refutes this interpretation 

of the regulation. The regulation directs that the authorized representative 

of the Secretary determine the safest, most direct, and most practical route 

to the nearest mine opening suitable for the safe evacuation of miners. As 

Linden Portal is the newest and closest escapeway to the working sections in 

issue, it had been properly designated as the intake escapeway. The fact 

that the policy manual explains the use of the words "mine openings suitable 

for the safe evacuation of miners" as resulting from the fact that some old 

mine openings were not safe for travel because of deteriorated shaft linings 

and inadequate ventilation, is not a reason to exclude new and safe escapeways from the coverage of the regulation. The regulation is concerned with 

providing safe escapeways and the obvious intent is to insure that the safest 

and most direct routes are taken. 

Furthermore, it is well established that the MSHA Inspection Manual is 

not binding on our interpretation of the Act or its regulations. In 

Secretary of Labor v. King Knob Coal Company, 3 FMSHRC 1417, 1420 (1981), 

the Commission discussed the legal status of the Manual and stated "that the 

Manual's 'instructions are not officially promulgated and do not prescribe 

rules of law binding upon [this Commission].' Old Ren Coal Company, 2 FMSHRC 

2806, 2809 (1980)." The Commission noted that "cases may arise where the 

Manual or a similar MSHA document reflects a genuine interpretation or 

general statement of policy whose soundness commends deference and therefore 

results in our according it legal effect." Ibid. However, the case at hand 

does not require reference to the policy statements of the MSHA Manual. It 

has already been determined that the stated policy does not exclude Linden 

Portal from the regulation's coverage and, therefore, the express language 

of the regulation is not in conflict with either the Manual or its policy. 

Accordingly, section 75.1704-2(a) is applicable to the Linden Portal. 

The evidence indicates that the elevator at Linden Portal became 

inoperable on July 9, 1981, and that management redesignated the escapeway 

routes rather than withdraw the miners from the affected working sections. 

While the testimony conflicts as to whether both the intake and return 

escapeways were to Kerr shaft or whether the intake escapeway was redesignat ed to Thomas while the return escapeway remained at Kerr, this is not 

relevant to a finding of a violation of section 75.1704-2(a). No allegation 

of a violation of 75.1704 has been made; and therefore, whether the redesignated escapeway plan involved either two mine openings or only one need not 

be resolved. 

Mathies argues that once Linden Portal became unuseable due to the 

elevator malfunction, it was unsuitable for the safe evacuation of miners. 

Therefore, by not using Linden Portal, Mathies contends that it complied with 

section 75.1704-2(a) by redesignating the escapeways to those mine openings 

2617 
which did provide for a safe evacuation of miners. Mathies' position would 

allow the operator to bypass its approved escapeway plan whenever it became 

impossible to comply. This interpretation of the regulation calls for one to 

ignore the words "as determined by an authorized representative of the 

Secretary." The regulation requires that escapeways be approved and does not 

provide an exception granting the operator discretionary authority to modify 

that plan whenever it becomes inconvenient to follow it. 

Mathies contends that the suitability of an escapeway plan requires 

£lexibility allowing it to be determined based upon the existing facts at the 

time the escapeway designation or redesignation is made. It argues that a 

"suitable" mine opening is bypassed as part of every operator's escapeway 

plan because MSHA requires there to be both an intake and return air escapeway. Therefore, even though the intake escapeway is closer, it is not 

suitable for the return escapeway. This argument relies on a distorted construction of the regulation and the word "suitability." Section 75.1704-2(a) 

is, after all, a subpart of secfion 75.1704. "Suitability," therefore, takes 

into consideration the fact that section 75.1704 requires two escapeways and 

incorporates that requirement into the standard which the authorized representative of the Secretary must apply. The word "suitability" implies no 

right to bypass the approved escapeway without authorization. 

The fundamental question becomes whether Mathies received permission 

to bypass the Linden Portal on July 9, 1981. The evidence supports a finding 

that MSHA policy required that any bypass be granted in writing by the 

District Manager (Ex. G-3). At no time, has Mathies contended that it 

received a written bypass from the District Manager. On these facts alone, 

MSHA could sustain a violation of 75.1704-2(a). 

Mathies maintains that it received permission to bypass the Linden 

Portal from Coal Mine Inspection Supervisor Earl Rudolph and Coal Mine 

Electrical Inspector Stanley Karpetta. This is premised upon the apparent 

authority of Mr. Rudolph and Mr. Karpetta to bind MSHA on this matter. 

Testimony and evidence refutes this claim of any reliance upon the above 

inspectors' authority to grant a bypass. 

William Porter's letter of February 11, 1981, to Supervisor Rudolph, 

asking him to confirm their conversation about escape procedures does not 

indicate that any alternative escape plan was approved. (Ex. 0-1). The last 

sentence states, "I would like to ask for your opinion of this procedure and 

if there are any differences, additions or deletions please advise." This is 

a request for comment and shows that there had been no resolution of the 

escapeway redesignation plan. Indeed, Mr. Porter admitted that he received 

no written response to this letter (Tr. p. 115). Mr. Porter's testimony 

indicates that Mathies knew it had no authority to bypass Linden Portal. 

Mr. Porter stated: 

On March 11th, Al Shade, whose name has been mentioned 

previously in the hearing here, was -- who is a coal mine 

Inspector, he wasn't on temporary assignment at that time, 

2618 
he was a coal mine Inspector; and he came to the Linden Portal 

and, yes, in a conversation prior to the commencement of his 

inspection that day, he informed us that if we had an elevator 

which was dovm, that a Citation would- be. i:vritten and a time 

would be given us to withdraw the-people, or in h:i.s wo~ds, -

other things would happen, and that was all that was said. 

And, of course, that obv:i.ously telegraphed to m~~!~ 

what I proposed was unacceptable somewhere along the line, 

and I involved Mr. Par:i.s:i. and other gentlemen again in the 

problem as to what to do when the elevat:i.on [sic] at Linden 

was down. (Tr. p. 115). [Emphas:i.s added.] --

The only conclusion that can be made from these statements is that Math:i.es 

knew that it had received ne:i.ther written nor oral permission to bypass 

Linden Portal in the event the elevator broke down. It is not contested that 

Mathies did in fact bypass Linden Portal on July 9, 1981. Accordingly, its 

failure to exhaust its administrative remedy in obtaining a written bypass 

from the District Manager justifies a finding that the citation was properly 

issued. 

CONCLUSIONS OF LAW 

1. The Administrative Law Judge has jurisdiction over the parties and 

subject matter of this proceeding. 

2. Mathies and its Mathies Mine are subject to the Act. 

3. Citation No. 1050312 issued on July 10, 1981, charging a violation 

of mandatory safety standard 30 C.F.R. ~ 75.1701+"-2(a) is affirmed. 

ORDER 

WHEREFORE IT IS ORDERED that Mathies contest of Citation No. 1050312 is 

DENIED and Citation No. 1050312 is approved. 

Distribution Certified Mail: 

Jerry F. Palmer, Consolidation Coal Company, 1800 Washington Road, 

Pittsburgh, PA 15241 

James Kilcoyne, Esq., Office of the Solicitor, U.S. Department of Labor, 

3535 Market Street, Room 14480 Gateway Building, Philadelphia, PA 19104 

2619 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 IOV 17 

FRANK ORNELAS, 

Complainant, 

v. 

PHELPS DODGE CORPORATION, 

Respondent. 

) 

) COMPLAINT OF DISCHARGE, 

) DISCRIMINATION OR INTERFERENCE 

) 

) DOCKET NO. CENT 80-249-DM 

) 

) MSHA CASE NO. MD 80-14 

) 

) MINE: Tyrone Mine & Mill 

) 

) ~~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Mr. Frank Ornelas 

P.O. Box 7958 

Bayard, New Mexico 88073 

Pro Se 

Stephen W. Pogson, Esq. 

James Speer, Esq. 

Evans, Kitchel & Jenckes, P.C. 

363 North First Avenue 

Phoenix, Arizona 85003 

DECISION 

For the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

On March 10, 1980, the Complainant filed a complaint of discrimination, pro se, pursuant to section lOS(c) of the Federal Mine Safety and 

Health Act of 1977 (hereinafter "the Act") . 1 / Complainant alleged that 

his employment with Respondent was terminated following an investigation of 

an accident involving two trucks of the Respondent, one of which Complainant was driving. The accident occurred September 6, 1979. Complainant alleges that Respondent had been previously warned by its truck drivers 

that the procedure under which haul trucks dump ore into the ore crusher 

1/ Section 105(c) reads in pertinent part as follows: 

"No person shall discharge ... any miner ... because such miner ... has 

made a complaint under or relating to this Act, including a complaint 

notifying the operator ... of an alleged danger or safety or health 

violation in a ... mine .... " 

2620 
was dangerous. The haul truck acci,1ent occurred while Complainant was 

attempting to back his truck into one of the two crusher dump pockets, in 

order to dump the ore. 

Respondent's answer denies that Complainant was discharged because he 

engaged in any protected activity and affirmatively alleges that 

Complainant was discharged because of an unsafe driving record and careless operation of the truck on September 6, 1979, resulting in damage to 

the truck and danger to other persons. 

FINDINGS OF FACT 

1. Prior to his discharge on September 8, 1979, Complain,qnt had been 

a truck driver for Respondent for approximately nine and one-half years. 

2. Complainant's duties as a truck driver on September 6, 1979, were 

to drive Respondent's 170-ton haul truck to a power shovel in Respondent's 

open pit copper mine and, after the truck was loaded with ore, to transport the ore to the primary crusher where it is dumped. 

3. Two 

the truck is 

in width and 

separated by 

bays or entrances are provided in 

dumped into the primary crusher. 

the width of the 170-ton truck is 

a pillar at the entrance. 

the building where ore from 

These two bays are 25 .4 feet 

22.3 feet. TI1e two bays are 

4. The truck drivers are instructed that when they drive to the 

primary crusher to unload ore they should turn the truck directly in front 

of the bay they intend to use and then back the truck straight into the 

bay. The bed of the truck is then elevated and the ore slides into the 

"dump pocket." 

5. On September 6, 1979, after Complainant's truck was loaded with 

ore, he drove it to the primary crusher. From the outside of the building 

and looking straight into two bays, the one on the left, or south bay, had 

a truck in it unloading its load of ore. Complainant began backing up his 

truck in order to enter the right, or north, bay. 

6. Complainant's truck was not directly aligned with the north bay, 

but was partially in line with the south bay. While the bed of 

Complainant's truck was backing toward the truck in the south bay, the 

driver of that truck quickly existed the right side of the driver's cab 

before the bed of Complainant's truck struck the left front of the truck in 

the south bay. 

7. Complainant then drove his truck forward and backed up again. On 

this occasion, the bed of Complainant's truck again struck the truck in the 

south bay and damaged the hand rail on the left hand side of that truck. 

Complainant's truck continued backing into the north bay until it was into 

position to dump ore. 

2621 
8. Complainant did not know that his truck had struck the truck in 

the south bay until after Complainant's truck was in final position to dump 

the ore. The driver of the damaged truck shouted at Complainant, informing 

him of the accident. 

9. The damage to the truck in the south bay was approximately $17,000 

and installation costs for a new cab were from $3,000 to $4,000. 

10. On March 13, 1979, approximately 5 months before the accident, a 

written safety suggestion by a truck driver for the Respondent was 

submitted to the supervisor. The suggestion was that the haul truck in the 

south bay should finish dumping its load of ore and drive out before the 

next truck enters the north bay, so that the truck in the south bay will 

not be "run over" by a truck backing into the north bay. This suggestion 

was supported by other truck drivers, but was rejected by management on May 

9, 1979. 

11. Immediately following the accident on September 6, 1979, the shift 

foreman gave Complainant a written notice of possible disciplinary action 

or suspension. 

12. On September 8, 1979, Complainant was given a written "not ice of 

discharge." The stated reason for the discharge was for careless operation 

of the truck Complainant was driving, resulting in extensive damage to the 

other truck, and for endangering the driver of the other truck. 

ISSUE 

The threshold questions to be answered are (1) whether or not 

Complainant engaged in any protected activity and, if so, (2) whether his 

discharge was motivated in any part by that protected activity. If these 

questions cannot be answered favorably for the Complainant, then Respondent 

did not violate section lOS(c) of the Act when it fired him. 

DISCUSSION 

The test to be used in deciding this case is set forth in Secretary of 

Labor on behalf of David Pasula v. Consolidation Coal Company 2 FMSHRC 2786 

(October 14, 1980). The guidelines are as follows: 

"We hold that the complainant has established a prima facie 

case of a violation of section lOS(c)(l) if a preponderance 

of the evidence proves (1) that he engaged in a protected activity, 

and (2) that the adverse action was motivated in any part 

by the protected activity. 

2622 
Employee activity which is prot,~cted by the Act 1s set forth in 

section 10.5(c)(l), and includes: 

",,. a comp la int notifying the operator or the operator 9 s 

agent .•. of an alleged danger or safety or health violation 

in a coal or. other. mine, ... or. because of the exercise by 

such miner ... on behalf of himself or others of any statutory 

right afforded by this Act.'' 

Complainant testified that he had made complaints at safety meetings 

at some time prior to the date of the accident in regard to the manner in 

which the trucks dumped ore at the primary crusher. His testimony was that 

he had told his foreman that it was dange~ous dumping "two t\ucks at a 

time.'' Another driver had made a written safety suggestion to Respondent 

on March 13, 1979, suggesting that the truck in the south bay finish 

dumping its load of ore before another truck pulled into the north bay. 

This suggestion had been rejected by Respondent on May 9, 1979, 

approximately four months before the accident occurred. Had the suggestion 

been followed there would have been no truck unloading or in the south bay 

when Complainant attempted to back his truck into the north bay. Thus, the 

accident could have been prevented had the suggestion been followed. 

When Complainant made his complaint, notifying his foreman at the 

safety meetings of the alleged danger in the ore dumping procedure at the 

primary crusher, he was engaged in protected activity. However, there is 

no evidence that the termination of Complainant's employment was motivated 

in any part by that protected activity. 

Respondent presented evidence that, in addition to the accident of 

September 6, 1979, Complainant had an accident on January 31, 1979, while 

operating a truck. He had failed to look into his rear view mirror and had 

backed into another truck near the primary crusher. On another occasion, 

while operating a truck loaded wi_th ore, Complainant accidently backed the 

truck through a berm. The berm was in place in order to protect personnel 

and equipment from falling approximately 100 to 1.50 feet do~1ward into a 

dump or canyon, After backing through the berm the truck came to rest with 

the rear wheels hanging over the edge of the dump and the front whee ls up 

off the ground. The bottom of the truck was resting on its fuel tanks. 

Respondent argued that Complainant's employment was terminated for these 

reasons. 

Complainant stated at the hearing that he felt he had been 

discriminated against in that he was fired for a truck accident even though 

other drivers had the same type of accidents and they were not fired. 

Assuming Complainant's contention is true, there was, however, no evidence 

produced at the hearing to show that Complainant's termination of 

employment by the Respondent was motivated in any part by Complainant's 

protected activity of making a safety complaint or suggestion in regard to 

the manner and order in which trucks dump their ore at the primary crusher. 

I conclude that Complainant's employment was terminated because Respondent 

had some doubts about Complainant's ability to safely operate a haul truck 

and that Complainant was not fired because he had made safety complaints or 

had engaged in protected activity. 
Thus, Complainant has failed in his hurden proof to show that his 

termination of employment was motivated in any part by his having engaged 

in protected activity. 

CONCLUSION OF LAW 

1. The undersigned Judge has jurisdiction over the persons and 

subject matter of these proceedings. 

2. Complainant has failed to prove by a preponderance of the evidence 

that Respondent violated section lOS(c) of the Act when it discharged 

Complainant on September 8, 1979. 

The complaint is dismissed. 

Distribution: 

Frank Ornelas 

P.O. Box 7958 

Bayard, New Mexico 88073 

Stephen W. Pogson, Esq. 

James Speer, Esq. 

Evans, Kitchel & Jenckes, P.C. 

363 North First Avenue 

Phoenix, Arizona 85003 

ORDER 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHWESTERN ILLINOIS COAL CORP., 

Respondent 

Docket No. LAKE 81-68 

A/O No. 11-00609-03024 

Captain Strip Mine 

DECISION 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Brent L. Motchan, Esq., Southwestern Illinois Coal Corp., 

St. Louis, Missouri, for Respondent. 

Before: Judge Charles C. Moore, Jr. 

This civil penalty suit against Respondent alleges that it committed 

two violations of the safety standards promulgated pursuant to the 

Federal Mine Safety and Health Act of 1977. 

Citation No. 1005247 was issued on September 16, 1980, and alleges 

that Respondent violated 30 C.F.R. § 77.1607 in that a stop cord was not 

operating properly along a portion of the unguarded conveyor belt. The 

evidence establishes that the emergency stop cord was inoperable. The 

issue is whether the conveyor belt was unguarded since only unguarded 

conveyor belts are required to have emergency stop cords. It was the 

inspector's opinion that the conveyor was unguarded because there were 

exposed pinch points along the conveyor belt. 

I do not agree with the inspector's opinion that an emergency stop 

cord is a substitute for a guard around pinch points. Pinch points must 

be guarded whether or not a stop cord is present. 30 C.F.R. § 77.400, 

like sections 75.1722(a), 55.14-1, 56.14-1 and 57.14-1, states: "Gears; 

sprockets; chains; drive, head, tail, and takeup pulleys; flywheels; 

couplings; shafts; sawblades; fan inlets; and similar exposed moving 

machine parts which may be contacted by persons, and which may cause 

injury to perso'ns shall be guarded." 

262[) 
I first had occasion to interpret the above guarding standard in 

Dravo Lime Company v. Mining Enforcement and Safety Administration, 2 

FMSHRC 771. 1/ In that case an operable stop cord extended the entire 

length of the conveyor belt except that the belt was "skirted" or 

shielded with plate metal and rubber belting at the point where it 

dumped limestone onto another belt. The following statement appears at 

pages 772 and 773 of that decision. 

For dust control purposes the entire dumping area is shielded 

with plate metal with rubber belting attached to the sides of 

the shielding. This rubber belting attached to the plate metal 

rubs against the belt itself forming a dust shield. MESA 

does not contend that all idler rollers should be shielded, 

because if a miner caught his hand between the roller and the 

belt in an unskirted area, the belt could give way and his 

hand could be withdrawn. In the skirted area however, 

there is only five-eighths of an inch between the side of 

the metal skirt and the belt so that if a miner's hand got 

caught between the roller and the belt, the belt could only 

raise up five-eighths of an inch before being stopped by 

the metal skirt. It is MESA's contention that this 

constitutes a "pinch point" which in turn gives rise to 

the requirement of guards to prevent any part of a miner's 

body from being caught in such a "pinch point." In this 

instance, a pinch point is something like a clothes wringer. 

* * * * * * * 

Drive pulleys, head pulleys, tail pulleys and takeup 

pulleys all contain "pinch points" (Tr. 55-56, MESA Exhibit 

R-6, pages 2 and 3). That was undoubtedly the reasons why 

these particular pulleys were specifically included in the 

standard. Idler pulleys however, do not contain "pinch 

points" as a rule, because the belt has leeway to move away 

from the idler pulley in the absence of a skirted area such 

as the one involved in the instant case. It is the "wringer 

effect" which can cause a serious injury. It is my opinion, 

that the combination of a skirted belt with the catwalk and 

ladder next to it causes the idler pulleys to become "similar 

exposed moving machine parts which may be contacted by 

persons, and which may cause injury >'< >'~ >'<." 

The existence of a stop cord beside the belt which will 

stop the drive and result in the belt stopping after a movement of approximately 22 feet may diminish the extent of a 

potential injury but would not prevent the injury unless 

pulled five seconds before contact with the "pinch point." 

l/ Dravo was brought under the old Federal Metal and Nonmetal Mine Safety 

Act and was decided October 28, 1977. It appears in the March 1980 volume 

of FMSHRC decisions as an attachment in Secretary of Labor, Mine Safety 

and Health Administration v. American Sand & Gravel Co., 2 FMSHRC 763 

(Mar. 31, 1980). 

2626 
In summary, all pinch points must be guarded, 2/ and the portions 

of a belt which do not contain pinch points must either be guarded or be 

equipped with an emergency stop cord. A stop cord might help the miner 

who fell on the belt but it certainly would not prevent him from getting 

caught in a pinch point. 

MSHA Exhibit No. 3 is a guide to mechanical equipment guarding. On 

page 14, there is a drawing (figure 11) and the following words: "In 

this drawing, a railing is installed along the conveyor in lieu of a 

stop cord. This may be considered as a guarded conveyor. The railing is 

placed away from and slightly above the belt to prevent contact with the 

moving belt." The guardrail in figure 11 appears to be parallel to, and 

a few inches away from,the edge of the belt. The drawing is not sufficiently clear to determine whether it is also slightly above the belt. 

The man in the drawing has his left hand on a handrail and his right 

hand on the so-called guardrail. Respondent's Exhibit No. 2 is a photograph of Respondent's conveyor belt showing a miner in a position similar 

to the miner in figure 11. The miner in the photograph is pointing his 

left hand at a lower handrail installed next to the belt and his right 

hand at a metal railing that had been installed above the belt to keep 

coal from falling off the belt. Respondent contends that this upper 

rail is also a guardrail eliminating the necessity of an emergency stop 

cord. 

The inspector stated on cross-examination that the guard in Exhibit 

No. 2 appeared to be slightly away from and slightly above the belt. 

While that description is similar to the language in the guide, the 

];j The inspector did not agree as shown by the following at Tr. 51: 

JUDGE MOORE: But before you do, I want to make 

some -- get something clear with the witness. Now you've 

said this before. I want you to think about it now. 

Section 77-400(a) •.. is the one that says gears, sprockets, 

chains, etc., shall be guarded. Now, is it your testimony 

that you're taught that they do not have to be guarded 

if there's a stop cord? 

THE WITNESS: That -- that is MSHA policy, sir. 

JUDGE MOORE: Well, now -- who told you it was MSHA 

policy? 

THE WITNESS: Well, again, that comes from my supervisor and -- and --

JUDGE MOORE: Did they tell you that at Beckley? 

THE WITNESS: -- what I've received in training. 

sir. Yes, sir. That conveyors, per se, the length of 

if they're provided with an emergency stop cord --

262'? 

Yes, 

them, 
conveyor belts are entirely different. In the photograph, Respondent's 

Exhibit No. 2, the railing that is supposed to be a guardrail is away 

from the belt only to the extent that it is above the belt. It is not 

installed in a position similar enough to the rail in figure 11 to 

prevent a miner from coming into contact with the belt or the rollers. 

In fact, the railing itself might create a pinch point which would 

require separate guarding if the distance between the upper edge of the 

roller and the lower edge of the railing is sufficiently small. This 

appears to be the case in Respondent's Exhibit No. 2, but there is 

insufficient evidence in the record for me to make a finding to that 

effect. 

The regulation requires in any case, that a belt either be guarded 

or equipped with an operable emergency stop cord. Respondent's belt had 

neither and a violation is accordingly established. If there were pinch 

points of the type discussed in Dravo, supra, the hazard would be high. 

Since I cannot find that type of pinch point based on the evidence in 

this case, I find a moder~tely low degree of gravity. It is unlikely 

that a miner would be seriously injured if his hand went between the 

roller and the belt. As to negligence, if Respondent relied solely on 

the guardrail depicted in Respondent's Exhibit No. 2 to guard this belt 

I would find negligence. In this case, however, Respondent only relied 

on the guard as a defense after it was established that the stop cord 

had malfunctioned. I find a low degree of negligence and assess a penalty 

of $100. 

Citation No. 1005253 alleges a violation of 30 C.F.R. § 77.409 in 

that a caterpillar dozer was operating "without being equipped with a 

warning device which could be sounded by the operator prior to starting 

operation." There was a warning horn on the vehicle but it did not 

work. There was also, however, a backup alarm which could be sounded 

prior to starting and it was operable. The regulations do not require 

separate backup alarms and prestarting alarms. 

MSHA Exhibit No. 6 is a memorandum dated June 24, 1977, from 

District Manager of District 8 to the Subdistrict Manager in St. Clairsville, 

Ohio, concerning § 77.409. Nothing in the memorandum prohibits the use 

of a backup alarm as a prestarting alarm. Furthermore, in a letter from 

the Subdistrict Manager to Respondent dated September 19, 1977, the 

Subdistrict Manager specifically states that "activating the backup 

alarm on tractors to warn persons that the machine is about to start 

operations could be accepted as compliance with Section 77.409(a), 

providing the intent as expressed in the District Manager's memorandum 

of June 24, 1977, is met." 

The Government argues that Respondent is attempting to estop MSHA 

from enforcing the regulation by relying on these exhibits. Government 

Exhibit 7 does not estop the Government from enforcing a regulation; it 

merely shows that the subdistrict manager had an opinion, consistent 

with the regulations, that a backup alarm which is sounded continuously 

when the machine is backing and a startup alarm which is only sounded 

2628 
once during a "cycle of events" (See Gov't. Ex. 6) can be the same horn 

and have the same sound. MSHA Exhibit 6, in discussing section 77.409(a) 

states that alarms should be sounded: 

"L Before the equipment is started. 

2. Before the equipment is operated in reverse." 

If the statements in MSHA Exhibits 6 and 7 were contrary to the 

regulations and Respondent relied on them, a question of estoppel might 

arise. But as these exhibits do not contradict the standard it makes no 

difference whether Respondent relied on them. It's the idea that backup 

alarms and prestarting alarms must have a different sound that seems to 

have come out of thin air. 

On this tractor the backup alarm horn was facing toward the rear, 

but the evidence established that it can be heard from both the front 

and the back of the machine. I find that no violation was approved and 

accordingly, vacate the citation. 

ORDER 

Respondent is therefore ordered to pay to MSHA, within 30 days, a 

civil penalty of $100. 

Distribution: 

e 

Charles C. Moore, Jr. 

Administrative Law Judge 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department 

of Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail) 

Brent L. Motchan, Esq., Southwestern Illinois Coal Corp., 500 North 

Broadway, Suite 1800, St. Louis, MO 63102 (Certified Mail) 

262B 
FEDERAL MINE SAFETY AND HEAL TH REVIF.W COMMISSION 

333 W. COLFAX AVEtlUE. SUITE 400 

DENVER, COL0f1ADO 80204 

ROSALIE EDWARDS, 

Complainant, 

v. 

AARON MINING, INC., 

Respondent. 

~~~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Rosalie Edwards, Pro Se 

Starr Route 

Boewawe, Nevada 89821 

Bruce T. Beesley, Esq. 

Woodburn, Wedge, Blakey and Jeppson 

One East First Street 

Reno, Nevada 89505 

For the Respondent 

Before: Judge John J. Morris 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION, OR INTERFERENCE 

DOCKET NO. WEST 80-441-DM 

MD 80-112 

DECISION 

STATEMENT OF THE CASE 

Complainant Rosalie Edwards brings this action on her own hehalf 

alleging she was discriminated against by her employer, Aaron Mining, Inc., 

(Aaron), in violation of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 !:.!:._seq. 

The statutory prov1s1on, Section lOS(c)(l) of the Act, now codified at 

§ 30 U.S.C. 815(c)(l), provides as follows: 

§ lOS(c)(l) No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination against or 

otherwise interfere with the exercise of the statutory rights of any 

miner, representative of miners or applicant for employment in any 

coal or other mine subject to this Act because such miner, representative of miners or applicant for employment has filed or made 

a complaint under or related to this Act including a complaint 

notifying the operator or the operator'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 

2630 
because such miner, representative of miners or applicant 

for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of 

miners or applicant for employment has instituted or caused 

to be instituted any proceeding under or related to this 

Act or has testified or is about to testify in any such 

proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded 

by this Act. 

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

Nevada, on April 28, 1981. Respondent filed a post trial brief. 

ISSUES 

The issues are whether respondent discriminated against complainant in 

failing to furnish toilet facilities. A further issue is whether complainant voluntarily quit her employment or was discharged. 

For the reasons hereafter stated I sustain the claim of discrimination 

and enter an award in favor of complainant. 

APPLICABLE CASE LAW 

The Commission has ruled that to establish a prima facie case for a 

violation of § lOS(c)(l) of the Act a complainant must show by a 

preponderance of the evidence that (1) he engaged in a protected activity 

and (2) that the adverse action was motivated in any part by the protected 

activity. The employer may affirmatively° defend, however, by proving by a 

preponderance of all the evidence that, although part of his motive was 

unlawful, (1) he was also motivated by the miner's unprotected activities, 

and (2) that he would have taken adverse action against the miner in any 

event for the unprotected activities alone, David Pasula v. Consolidation 

Coal Company 2 FMSHRC 2786 (1980). Reversed on other grounds, United -

States Court of Appeals, Third Circuit, Docket No. 80-260, (October 1981). 

Further, in order to support a valid refusal to work the miner's perception 

of the hazard must be reasonable, Robinette v. United Castle Coal Company 3 

FMSHRC 803, (1981). 

FINDINGS OF FACT 

The facts are essentially uncontroverted. 

1. Complainant Mrs. Rosalie Edwards was employed by Aaron from 

January 21, 1980 to March 15, 1980 (Tr. 7 - 10). 

2. Mrs. Edwards worked at the company mrne assaying gold samples (Tr. 

9, 10). 

2631 
3. There were no toilet facilities in the work area. The closest 

outhouse, where the sanitary conditions were "appalling", was 3/4 of a mile 

away. It could only be reached over a haul pack road with limited 

visibility (Tr . 1 7 , 41 ) . 

4. In addition to working as an AA Assayor (atomic absorption with 

cyanide) Mrs. Edwards' duties also included writing up daily safety reports to the company. Under "remarks" Mrs. Edwards indicated the need for 

a facility. There was no reply from the company except her supervisor said 

they would put in a restroom "soon" (Tr. 18, 19). 

S. After four weeks on the job Mrs. Edwards began having bladder 

problems for which she took off a week (Tr. 19). 

6. Mrs. Edwards terminated her job on March 15, 1980. At that time 

she was working 48 hours per week and earning $1,500.00 per month (Tr. 33, 

34). 

7. When she quit Mrs. Edwards told her supervisor she would return 

when they had restroom facilities (Tr. 34, 37, 46, SO). 

8. Mrs. Edwards could not find any employment until October, 1980 

(Tr. 34). 

9. On October 23, 1980, Mrs. Edwards learned that Aaron was no longer 

affiliated with the property and she was hired by its successor, the 

Miller-Kappas Company (Tr. 20). 

10. Mrs. Edwards expenses for the hearing include $21.36 for lodging, 

$15.00 for meals, and 600 miles (roundtrip) to drive to and return home 

from the hearing site (Tr. 35). 

DISCUSSION 

30 C.F.R. 56.20-8, a mandatory regulation promulgated by the 

Secretary, provides as follows: 

56.20-8 Mandatory. Toilet facilities shall be provided 

at locations that are compatible with the mine operations 

and that are readily accessible to mine personnel. The 

facilities shall be kept clean and sanitary. Separate 

toilet facilities shall be provided for each sex except 

where toilet rooms will be occupied by no more than one 

person at a time and can be locked from the inside. 

The credible facts establish that Aaron failed to comply with the 

regulation in several respects. First, the facilities were, even by 

Aaron's evidence, a half mile from Mrs, Edwards' laboratory. In addition 

the toilet could only be reache<l over a haul pack road which had restricted 

visibility. The facility accordingly was not "readily accessible" to Mrs. 

Edwards. In addition the toilet was neither clean nor sanitary. Mrs. 

Edwards undisputed testimony indicates the sanitary conditions in the outhouse were "appalling." 

2632 
Mrs. Edwards duties, 1n addition to assaying gold included the filing 

of daily written safety reports. On such reports under "remarks" Mrs. 

Edwards continually pointed out the need for toilet facilities. When she 

quit Mrs. Edwards also indicated she would return when the company h.1d 

such facilities. Aaron failed to provide the facilities. 

The law is clear that a miner may not be fired for refusing to work 

under conditions that she reasonably believes are unsafe or unhealthy. 

Phillips v. Interior Board 500 F 2d 772 (D.C. Cir., 1974), Pasula, supra. 

In this unusual factual situation Mrs. Edwards alternatives were severely 

limited. First, she could complain to the company but she had done that. 

Aaron already had received written and oral complaints for about 7 weeks. 

Second, she could use the toilet facilities at her home, a 20 mile round 

trip. In fact, with Aaron's knowledge she did this on a number of 

occasions (Tr. 19, 36). During her employment she developed a bladder 

infection. An infection of this nature would support her belief that an 

unhealthy condition existed. A ten mile journey is not "ready accessibility." A third alternative would be the use of the outhouse which I find 

from the facts was 3/4 of a mile from the laboratory. That was hardly 

"readily accessible." A fourth alternative was to quit. She did. The 

first three alternatives are unreasonable and in law they are no alterative 

at: all. Cf McCoy v. Crescell't: Coal Company PIKE 77-71. In any event even a 

pal at: ab le alternatives would not excuse c-ompl iance with a mandatory 

standard. 

I, accordingly, conclude that Mrs. Edwards was engaged in a protected 

activity in filing daily written safety reports complaining about the lack 

of toilet facilities. Further, Mrs. Edwards was constructively discharged 

while engaging in that activity. McCoy v. Crescent Coal Company, supra. 

Portions of the evidence in this case should be discussed. Mrs. 

Edwards testified she applied in October for employment with Miller Kappas 

Company, the successor to Aaron (Tr. 20) After being hired by Miller 

Kappas Mrs. Edwards was told to drop her discrimination case or be 

terminated. These directives came through Pat Daugherty, a Miller Kappas 

supervisor. This double heresay directive is attributed to Andrew 

Robertson, the President of Aaron. I do not find this evidence relevant 

nor credible. The record here fails to disclose any connection between 

Robertson and Miller Kappas Company. Further, any issues raised in 

connection with her discharge by Miller Kappas Company are the subject of 

another discrimination claim made by Mrs. Edwards. Apparently the 

Solicitor of Labor had taken no action on that matter at the time of the 

instant hearing. 

AARON'S CONTENTIONS 

Aaron contends that Mrs. Edwards case fails for a number of reasons. 

Aaron cites the case law that to sustain a violation a complainant must 

show notification, discriminatory action, and motivation of discriminatory 

action by the employer. Aaron relies on Munsey v. Morton 507 F. 2d 1202 

(D.C. Cir., 1974) and Baker v. U.S. Department of Interior Bd. 595 F. 2d 

746 (D.C. Cir., 1978). 

2633 
Specifically, /\:iron sCJys that 'lrc;. Edw.irrJs voluntarily left her 

employment and that Aaron did not discriminate ag:1inst her. 

For the reasons previo11sly stated I find that Mrs, Edwards was 

constructively discharged by Aaron. Further, she was discriminated ag:iinst 

in that Aaron failed to provide toilet facilities, a condition ~1ich Aaron 

choose to ignore for seven weeks. The fact that Mrs. Edwards was permitted 

and encouraged by Aaron to use the restroom facilities at her home, a 20 

mile round trip, does not eliminate the discrimination. In addition, 

Aaron's offer of a salary increase to Mrs. Edwards as an inducement to stay 

cannot avoid the discrimination, 

The cases relied on by Aaron are not inopposite the views expressed 

here. In Munsey, supra. the Court of Appeals for the District of Columbia 

construed the 1969 Coal Act. Neither the facts nor the law set forth in 

Munsey support Aaron. T11e same result pertains in Baker, supra. where the 

Court of Appeals for the District of Columbia construed the notice 

provisions of the 1969 Coal Act, 

Aaron's post trial brief dttacks the double hearsay evidence from Mrs. 

Edwards of statements by Pat Daugherty, a Miller Kappas supervisor, 

referring to statements he made ahout directives he received from Andrew 

Robertson, President of Aaron. For the reasons previously stated I do 

find that evidence credible. Likewise, l disregard the post trial 

affidavit filed by Andrew Robertson regarding that matter. The consideration of such an affidavit after the testimony was concluded would be to 

deny Mrs. Edwards her right of cross examination. 

BACK PAY, COSTS, AND EXPENSES 

Section lOS(c)(3) of the Act, now 30 U.S.C. 815(c), authorizes an 

award for back pay, interest, as well as all costs and expenses. 

Mrs. Edwards seeks to recover her back wages from the date of her 

discharge on March 15, 1980 (Letter dated September 11, 1980). At the 

time of her dischdrge she was earning $1 ,500.00 per month. She could not 

find employment until she was hired by Miller Kappas Company on October 23, 

1980. Accordingly, her back pay is for seven months and one week (March 

15, 1980 to October 23, lq80) at $1,500.00 per month. Back pay i~ 

therefore $10,875.00 ($1,500 x 7) + ($375 x 1). Respondent as the employer 

is responsible for withholding all statutory deductions, including federal 

and state taxes. Further, Aaron is to pay interest on said back pay at the 

rate of 12 1/2% per annum.

1/ 

1/ Interest rate used hy Tnternnl Rcven11e Service for underpayments and 

overpayments of tax, Rev Ruling 79-366. Cf Florida Steel Corporation, 231 

N.L.R.B. No. 117, 1977-78, CCH, N.L.R.B. Para 18,484; Bradley v. Belva Coal 

Company WEVA 80·"708-D (April 1981). 
Mrs. Edwards is further entitled to recover her incidental expenses 

for meals, lodging, and mileage. The meals and lodging cost were $36.36. 

I calculate her mileage expense at 18 1/2¢ per mile which was the amount 

authorized by the United States Government for the use of a privately owned 

vehicle on government business. Complainant's mileage expense is therefore 

$111.00 (600 x 18 1/2¢). 

CIVIL PENALTIES 

In this case the Secretary of Labor did not represent complainant. 

However, the Act provides that any violation of the discrimination section 

shall "be subject to the provisions of section 108 and llO(a).vv [30 U.S.C. 

§ 818, 820]. The statute authorizes the imposition of a penalty in an 

amount not to exceed $10,000.00. [30 U.S.C. § 820(a)]. 

Considering the pertinent statutes and in view of the facts as stated 

above, I deem a penalty of $1,000.00 to be an appropriate civil penalty in 

this case. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

1. Complainant's claim of discrimination is sustained, 

2. Respondent is ordered to pay the sum of $10,875.00 less deductions 

to complainant as back pay. Respondent is further ordered to pay interest 

on said back pay at the rate of 12 1/2% per annum. 

3. Respondent is ordered to pay the sum of $147.36 to complainant for 

incidental expenses as follows: 

Meals 

Lodging 

Mileage 

$ 15 '00 

21. 36 

111. 00 

$1L+7.36 

4. A civil penalty of $1,000.00 is assessed against respondent for 

violating Section 105(c) of the Act. Said amount is payable 40 days after 

the decision of the Commission becomes a final order. Said civil penalty 

shall be paid in accordance with Section llO(j) of the Act [30 U.S.C. 

820(j)], 

/John 

JJJL.L~ J. Morr/Erl <;/ ~~ LAdministrativ~ Law Judge 

263fi 
Distribution: 

Rosalie Edwards 

Starr Route 

Beowawe, Nevada 89821 

Bruce T. Beesley, Esq. 

Woodburn, Wedge, Blakey and Jeppson 

One East First Street 

Reno, Nevada 89505 

263fl 
MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

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 of Order 

Docket No: WEVA 81-341-R 

Order No: 854357; 3/16/81 

Pursglove No. 15 

Civil Penalty Proceeding 

Docket No: WEVA 81-441 

A.O. No: 46-01454-03090 V 

Pursglove No. 15 

DECISION AND ORDER 

The parties move for approval of a settlement of a violation that 

created a serious hazard of death or disabling injury in the event of 

a fire on the beltway in question. It was clearly an unwarrantable 

failure violation and in view of respondent's history of prior violations 

of the standard in question and its overall incidence of injury rate the 

violation merits a more severe penalty than the reduced($400 from $750) 

penalty proposed for settlement. 

On the other hand, the Commission has admonished its trial judges 

to adopt a "wise" rather than a "zealous" attitude toward enforcement 

of the Mine Safety Law. This translates as a "soft" rather than a 

"toughn policy of enforcement. 

Respondent, of course, is tough, very tough. Knowing respondent as 

well as I do and knowing what this record reflects as to its attitude 

toward compliance, I think the settlement proposed is too low. The 

assessment off ice also thought it too low and I have little doubt MSHA 

would think it too low. But the Solicitor who speaks for the Secretary, 

rather than MSHA, thinks the penalty proposed is appropriate because the 

violation was more or less a run-of-the-mine type of violation. Furthermore, knowing the Commission as I do, I think the Commission, after 

consulting with the Solicitor, would not think it too low, That is 

what is known in some circles as "wise" enforcement. Thus, whether the 

penalty will deter future violations and ensure voluntary compliance 

seems almost immaterial. 

2637 
For these reasons, I reluctantly conclude the motion to approve 

settlement should be approved. I hope I am wrong and that the 

Commission will review this decision on its own motion and delineate 

a more "zealous" enforcement policy. If it does not I will be sadder but 

indeed wiser. 

Accordingly, it is ORDERED that the motion to approve settlement be, 

and hereby is, APPROVED. It is FURTHER ORDERED that the operator pay 

the settlement agreed upon, $400, on or before, Tuesday, December 1, 1~81 

and that subject to payment the captioned matter be DISMISSED. 

Distribution: 

H. Juanita M. Littlejohn, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Catherine M. Oliver, Esq., U.S. Department of Labor, Office of 

the Solicitor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Harrison B. Combs, Jr., Esq., United Mine Workers of America, 

900 15th Street, N.W., Washington, D.C. 20005 (Certified Mail) 

2638 
!FEDER.Al MINE SAFETY A.ND HEAil TH !REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF JAMES W. FURMAN, 

Complainant 

v. 

A. FERRANTE & SONS, INC., 

Respondent 

NOV so 1981 

Complaint of Discrimination 

Docket No. YORK 81-27-DM 

DECISION AND ORDER 

As the result of the trial judge's review of the parties' prehearing 

submissions and what transpired at the prehearing/settlement conference of 

September 16, 1981, the trial judge exercised "his inherent authority to 

question whether as a matter of law" l/ this case presented a valid cause 

of action. The circumstance giving rise to this query was the fact that 

the prehearing submissions showed the alleged report of a health hazard 

did not occur until after complainant's alleged voluntary quit.2/ Since 

there was no genuine dispute about the excuse complainant gave for refusing 

to perform his assigned work tasks before he voluntarily quit his place 

of employment, the trial judge suggested the controlling question of law 

be det2rmined on a motion for summary judgment. To this end, the parties 

were directed to take depositions of complainant and other material witnesses 

and advise the Court as to whether a summary procedure or a trial-type hearing 

would be necessary to resolve the matter. While the Commission views such 

judicial activism with alarm l_/ the parties thought that in this case it made 

l;--Secretary v. Olga Coal Co., 2 FMSHRC 2769 (1980); 1 MSHC 2537. 

]:_/ There was no claim that respondent's refusal to reinstate or rehire 

complainant was retaliatory. See, Munsey v. Morton, 1 MSHC 1220 (D.C. 

Cir. 1974); Munsei v. Morton, 1 MSHC 1709 (D.C. Cir. 1978). 

1/ In Secretary v. Missouri Gravel Company_, 3 FMSHRC ~-' No. LAKE 80-83-M, 

decided November 4, 1981, the Commission held that "Summary decision is 

an extraordinary procedure" to be reserved for the "most exceptional of 

circumstances". And in Secreta_rr v. Knox County Stone G_ompany, 3 FMSHRC 

DENV 75-359-M, decided November 6, 1981, the Conunission deplored the trial 

(footnote 3 continued on page 2) 

2639 
a lot of sense. So much sense in fact that after they took complainant's 

deposition on October 8, 1981, they advised the trial judge of their desire 

to join in an appropriate motion to dismiss the complaint with prejudice. 

When the Secretary's client, the complainant, did not agree, he was 

advised of his right to file a complaint .E.EQ_ se or through his own counsel. !!_/ 

(footnote 3 continued) 

judge's use of a "form of sua sponte summary judgment" that avoided an 

evidentiary hearing in a case involving a violation which the Commission 

characterized as "relatively minor or technical" and for which it accepted 

a $36.00 penalty in lieu of my assessment of $500.00. More disturbing 

was the Commission's effort to inhibit suggestions by its trial judges 

for procedural shortcuts in de minimus cases. In a discussion which it 

characterized as wholly "extrinsic to the matter under review" it undertook 

a polemic on ex parte communications that seems designed to wallof f any 

meaningful procedural discussions between the trial judge and counsel. 

The tenuous nexus with the case under review was a record which clearly 

showed that after both parties had submitted motions to dismiss or to 

approve settlement the trial judge told them he could not approve the 

settlement proposed, $36.00, but would proceed to treat the motions to 

dismiss as cross motions for summary decision for the purpose of determining 

the amount of the penalty warranted. Such a proposal is one of the 

recognized exceptions authorized by law to the general prohibition against 

ex parte communications that relate to the merits of a case. This was because 

the communication in question did not relate to the merits of any issue 

pending but only to the procedure best adapted to an expeditious and 

inexpensive disposition of the pending motions. What the Commission 

seemed to overlook is that the United States Court of Appeals for the 

Second Circuit has held it is not inappropriate for a trial judge to treat 

sua sponte any motion to dismiss as a motion for summary judgment where 

it is clear that the case does not present an issue of material fact and 

the parties are afforded an opportunity to present materials in opposition 

to the motion. Corporacion de Mercadeo Agricola v. Mellon Bank International, 

608 F.2d 43, 48 (2d Cir. 1979); Flli Moretti Cerali v. Continental Grain Co., 

563 F.2d 563, 563 (2d Cir. 1977). 

Whether viewed as a profound misunderstanding of what occurred or 

more simply as a suggestio falsi, suppressio veri, it is to be hoped that 

Knox County does not presage a further mischievous intrusion into the authority 

of the trial judges to regulate the course of penalty proceedings and 

to provide an expeditious and inexpensive remedy. 

!:±_/ See, Secretary's L~tter of Determination, filed October 30, 1981. When 

the Secretary acting on behalf of an alleged discriminatee decides the 

evidence will not support a finding of violation and that the case should 

be dismissed, it is not clear whether the complainant has a cause of 

action under section 105(c)(3) of the Act that survives such a dismissal. 

2640 
The trial judge agreed to consider the proposed motion provided 

complainant's deposition was furnished for the record. This was done and 

I have now carefully reviewed Mr. Furman's deposition. It clearly 

establishes complainant's propensity for confusing fact with fantasy, 

a practice which is sometimes known as confabulation. This circumstance 

certainly warranted a reevaluation of the merits of the complaint, because 

it seriously impugns Mr. Furman's credibility. 

My independent evaluation of the matter leads me to conclude that 

the complaint was improvidently filed, as a matter of law, and that 

the Secretary's principal witness has, as a matter of fact, fatally flawed 

his ability to give a credible account of the circumstances of the alleged 

discrimination. 

Counsel for the Secretary in this matter is to be commended for the 

professionalism demonstrated in recognizing early on the lack of merit 

in his case. ~_/ 

Accordingly, it is ORDERED that 

is, GRANTED and the captioned matter 

motion to dismiss be, and hereby 

ISSED WITH PREJUDICE. 

Judge 

!j_/ All too often, I have had the sad experience of watching the Secretary's 

counsel forge ahead with a case obviously sinking under him because he 

fears the reaction from his own bureauracy of admitting an error in 

bringing the case. Unfortunately, disapproval of procedural devices designed 

to surface such fatal deficiencies may encourage an "after all its only 

taxpayer's money we are spending" attitude on the part of less courageous 

counsel. 

2641 
Distribution: 

Jithender Rao, Esq., U.S. Department of Labor, Office of the Solicitor, 

1515 Broadway, New York, NY 10036 (Certified Mail) 

John J. McAleese, Esq., Cunniff, Bray & McAleese, 1 Bala Cynwyd Plaza, 

Bala Cynwyd, PA 19004 (Certified Mail) 

James W. Furman, 8 Walker Ave., Morristown, NJ 07860 (Certified Mail) 

2642 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

CHARLES HARVEY, 

Complainant, 

v. 

HOWARD QUARRIES, 

Respondent. 

Appearances: 

Charles Harvey, Slater, Missouri 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

MDV 24 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

DOCKET NO. CENT 81-9-DM 

MSHA CASE NO. MD 80-151 

appearing pro se, on behalf of Complainant 

E. J. Holland, Jr., Esq. 

James T. Price, Esq, 

Kansas City, Missouri 

appearing on behalf of Respondent 

Before: Judge John J. Morris 

DEC I SI.ON 

STATEMENT OF THE CASE 

Complainant Charles Harvey brings this action on his own behalf 

alleging he was discriminated against by his employer, Howard Quarries, 

Inc,, in violation of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 ~seq. 

The statutory provision, Section 105(c)(l) of the Act, now codified at 

§ 30 U.S.C. 815(c)(l), provides as follows: 

§ 105(c)(l) No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights o~ 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 re-
presentative of miners or applicant for employment is the 

subject of medical evaluations and potential transfer under 

a standard published pursuant to section 101 or because such 

miner, representative of miners or applicant for employment 

has instituted or caused to be instituted any proceeding 

under or related to this Act or has testified or is about 

to testify in any such proceeding, or because of the exercise 

by such miner, representative of miners or applicant for 

employment on behalf of himself or others of any statutory 

right afforded by this Act. 

After notice to the parties a hearing on the merits commenced in 

Sedalia, Missouri on April 8, 1981. On that date the case was partially 

heard and complainant's mot ion for a continuance to produce additional 

evidence was granted. The hearing was concluded on June 23, 1981. The 

parties filed post trial briefs. 

ISSUES 

The issue js whether Charles Harvey was discharged because he 

complained about excessive dust and requested a dust respirator mask at the 

quarry or whether Harvey was discharged because his work was unsatisfactory. 

For the reasons hereafter state~ I find in favor of Howard Quarries, 

and I dismiss the discrimination complaint. 

APPLICABLE CASE LAW 

The Commission has ruled that to establish a prima facie case for a 

violation of § 105(c)(l) of the Act a complainant must show by a 

preponderance of the evidence that (1) he engaged in a protected activity 

and (2) that the adverse action was motivated in any part by the protected 

activity. The employer may affirmatively defend, however, by proving by a 

preponderance of all the evidence that, although part of his motive was 

unlawful, (1) he was also motivated by the miner's unprotected activities, 

and (2) that he would have taken adverse action against the miner in any 

event for the unprotected activities alone, David Pasula v. Consolidation 

Coal Company 2 FMSHRC 2786 (1980) 1 Rev'd on other grounds, No. 80-2600 

(3d Cir. October 30, 1981). 

FINDINGS OF FACT 

The references to the transcript of the April 8 hearing are prefixed 

as "Tr. l" and references to the transcript of the June 23 hearing are 

pre fixed as "Tr. 2." 

2644 
1. Charles Harvey was employed as a stockpiler by Howard Quarries, 

Inc., between December 26, 1979 through July 25, 1980 (Tr. 1: 10, 13, 29). 

2. A stockpiler's duties include driving a truck (50% of the time), 

removing rock and debris from under the conveyor belts (35% of the time), 

and doing maintenance work on the crusher (15% of the time) (Tr. l: 33). 

3. Charles Harvey was a good truck driver, but he didn't do his 

assigned work of shoveling from under the conveyor belts. His work 

performance was poorer than other employees (Tr. 1: 34-37). 

4. In May 1980 workers Winfrey, White, and Mennard complained to 

supervisor Rowden that they were tired of doing Harvey's share of the work 

(Tr. 1: 40). 

5. Rowden talked to Harvey and told him he'd be let go if he didn't 

improve. Harvey didn't improve (Tr, 1: 39), 

6. On July 24, 1980 Rowden assigned Harvey, with Burns, to shovel. 

Thirty or forty minutes later Harvey was laying under the conveyor (Tr. 1: 

42). 

7. Burns quit that day stating he couldn't work with Harvey (Tr. l: 

42). 

8. Harvey was fired the next day (July 25) at quitting time. He was 

fired because of his work performance and due to Burn's conversation with 

Rowden (Tr. 1: 43). 

9. During his employment Harvey never asked Rowden for a dust respirator, nor did he ever complain to Rowden or to his fellow workers about 

safety (Tr. 1: 43). 

10. Rowden, who has discharged five workers in the past two years, 

didn't treat Harvey any differently from any other worker (Tr. 1: 45-46). 

11. After an MSHA inspection Howard Quarries air conditioned the 

crusher shack and acquired a water tank which was used when needed (Tr. 1: 

47; 2: 41). 

12. Rowden has never disciplined any worker for complaining about 

dust nor has Rowden ever told an employee to buy a dust respirator (Tr. 1: 

49). 

13. The day before he was fired fellow worker Shively observed Harvey 

laying under the crusher for 15 or 20 minutes when he was supposed to be 

working (Tr. 2: 8-9, 18). 

264[) 
14. Shively indicated Rowden was concerned about safety (Tr. 2: 15). 

15. Worker Gray indicated he had seen Harvey loafing on the job (Tr. 

2: 29-30). 

16. After Harvey bought a respirator he used if for awhile and then 

gave it to Winfrey (Tr. 2: 37). 

17. Normally dust masks were available at the quarry (Tr. 2: 40). 

18. No worker was ever disciplined for making a safety complaint (Tr. 

1: 51). 

19. Rowden was concerned about dust and never hesitated to send 

Winfrey to water down the road (Tr. 2: 42). 

DISCUSSION 

Harvey would have the Corrnnission believe that he complained about 

excessive dust and requested a dust mask. The credible evidence leads to a 

contrary conclusion. Rowden's testimony is confirmed by workers Shively, 

Gray, and Winfrey. Harvey never asked for a mask nor did he ever complain 

about safety. Harvey's use of a mask he purchased was short-lived since he 

gave it to Winfrey. Further, Winfrey didn't see Harvey using a mask after 

that event. Further, Harvey's request for a mask would hardly have been a 

motivating factor for his discharge since masks were generally furnished by 

the quarry and available to the workers. 

Harvey would further have the Commission believe that the dust 

complaint and request for a mask motivated Howard Quarries to fire him. 

Again, the credible evidence leads to a different conclusion. The uncontroverted evidence also establishes that no employee was ever 

disciplined for a safety complaint. Further, Rowden was committed to 

safety and would respond quickly with the use of the water truck whenever 

the employees mentioned the dusty conditions. The quarry airconditioned 

the crusher shack and provided respiratory protection to its workers. In 

view of the foregoing evidence, which is uncontroverted, I conclude that 

Harvey's claims cannot be upheld. 

In short, the evidence does not establish that Harvey was engaged tn a 

protected activity for which he was discharged. The evidence does establish that Harvey was discharged for his poor work performance. 

Some evidence describes Harvey as a "fair" worker (Tr. 1: 10; 2: 34). 

However, Rowden, Shively and Gray all confirm the events of July 24, 1980. 

Harvey's actions on that date and his prior performance caused him to be 

discharged. On that day Harvey was assigned to clean out from under the 

conveyor. Harvey spent 15 to 25 minutes laying under the conveyor. He was 

laughing at his supervisor Rowden while Rowden was looking for him. Burns 

quit because of Harvey. The evidence also reflects that Harvey's job 

discipline in other respects was inadequate. There were occasions in 

talking to Rowden where he said he wouldn't do his assigned duties, On two 

2646 
or three occasions Harvey had tried to convince Winfrey that he (Winfrey) 

should stop shoveling when Rowden disappeared (Tr. 1: 41-43; 2: 10, 17, 18, 

45). Howard Quarries has carried its burden of proof as required in 

Pasula, supra. 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

The complaint of discrimination filed herein is dismissed with 

prejudice. 

Distribution: 

Charles A. Harvey 

139 North Euclid 

Slater, Missouri 65349 

E. J. Holland, Jr., Esq. 

James T. Price, Esq. 

Spencer, Fane, Britt & Browne 

1000 Power & Light Building 

Kansas City, Missouri 64105 

Judge 

2647 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), on behalf) 

IOV 24 )ll 

of GORDON S. BENNETT, JAMIE V. COX, ) COMPLAINT OF DISCRIMINATION 

STEVEN R. FRITSCH, JAMES E. JOHNSON, ) 

WILLIAM R. JOHNSON, ROBERT C. JOLLEY, ) 

JAMES OLSEN, PAUL REDHAIR, LANSING L. ) DOCKET NO. WEST 80-489-D(A) 

SMITH, MICHAEL C. TATUM, FRED L. TUBBS, ) 

and ROBERT R. WILSON, ) 

Complainants, ) MINE: Deseret Mine 

) 

v. ) 

) 

EMERY MINING CORPORATION, ) 

) 

Respondent. ) 

) 

Appearances: 

James H. Barkley, Esq., Office of Henry C. Mahlman, 

Associate Regional Solicitor, 

United States Department nf Labor 

Denver, Colorado 80294 

For the Complainants 

Todd D. Peterson, Esq. 

Crowell & Moring, 

Washington, D.C. 20036 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

STATEMENT OF THE CASE 

The Secretary of Labor of the United States, the individual charged 

with the statutory duty of enforcing the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq., (the Act) brings this action on 

behalf of complainants. He asserts Emery Mining Corporation, (Emery), 

violated Section 115(b) of the Act. Further, the Secretary claims that 

the aforesaid violation constitutes discriminatory conduct under Section 

105 (c)(l) of the Act. 

Section 115 of the Act, now codified at 30 U.S.C. § 825(a) provides, 

1n part, as follows: 

2648 
MANDATORY HEAL TH AND SAFETY TRAINING 

Sec. 115. (a) Each operator of a coal or other mine shall have a 

health and safety training program which shall be approved by the 

Secretary ••.. 

(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 instructions in the statutory rights of 

miners and their representatives under the Act, use of the selfrescue 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; 

(b) Any health and safety training provided under subsection 

(a) shall be provided during normal working hours. Miners shall be 

paid at their normal rate of compensation while ,they take such 

training, and new miners shall be paid at their starting wage rate 

when they take the new miner training. If such training shall be 

given at a location other than the normal place of work, miners shall 

also be compensated for the additional costs they may incur in 

attending such training sessions. 

(c) Upon completion of each training program, each operator 

shall certify, on a form approved by the Secretary, that the 

miner has received the specified training in each subject 

area of the approved health and safety training plan. A 

certificate for each miner shall be maintained by the operator, 

and shall be available for inspection at the mine site, and a 

copy thereof shall be given to each miner at the completion 

of such training. When a miner leaves the operator's employ, 

he shall be entitled to a copy of his health and safety training certificates. False certification by an operator that 

training was given shall be punishable under section llO(a) 

and (f); and each health and safety training certificate 

shall indicate on its face, in bold letters, printed in a 

conspicuous manner the fact that such false certification 1s 

so punishable. 

(d) The Secretary shall promulgate appropriate standards for 

safety and health training for coal or other mine construction 

workers. 

Section 105(c)(l) of the Act, the discrimination section, now 

codified at 30 U.S.C. § 815(c)(l) provides as follows: 

§ 105(c)(l) No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the exercise of 

the statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject 

2649 
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 proceeding 

under or related to this Act or has testified or is about to testify 

in any such proceeding, or because of the exercise by such miner, 

representative of miners or applicant for employment on behalf of 

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

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

Lake City, Utah on March 17, 1981. The parties filed post trial briefs. 

ISSUES 

The initial issue is whether Emery's requirement that a job applicant 

have 32 hours of miner training as a precondition of employment violates 

Section 115, the training section of the Act. If the first issue is 

answered in the affirmative, does such a violation trigger a violation of 

Section 105(c)(l), the discrimination section of the Act. If a violation 

of both sections occurred, what relief is appropriate particularily since 

the Secretary in his complaint did not seek a civil penalty. 

For the reasons herein stated I conclude that Emery's policy violates 

the Act, constitutes discriminatory practice, and I further assess a civil 

penalty. 

SYNOPOSIS OF THE CLAIMS 

Complainants, all inexperienced in mining, sought employment with 

Emery. Before considering any applications Emery's personnel policy 

requires that all job applicants complete 32 hours of training at an MSHA 

approved miner's training course. The applicants at their expense 

successfully completed the training courses. Their references were 

checked by Emery, and after physical examinations they were hired. 

The Secretary contends that Emery's policy violates Section 115(b) of 

the Act. On behalf of complainants he seeks to recoup all expenses 

attendant to their taking the training course as well as pay not received 

while they were attending the course. 

FINDINGS OF FACT 

The facts are uncontroverted. 

2650 
1. Jamie V. Cox initially contacted lmery for employment. Emery 

personnel told him to contact Job Service. / At that agency he was 

advised to take 32 hours of miner training-:- Cox took the training and 

applied at Emery. His references were good and he was hired by Emery on 

January 28, 1980, as a buggy driver (underground). Cox received an 

additional 8 hours of miner training from Emery. 

Cox's expenses consisted of the following: 

Tuition for 32 hour course 

Miles travelled to attend course 

(256 miles at 18 1/2¢) 2/ 

Pay not received ($65.78 ~ 4 days) 

$100.00 

L+ 7 , 36 

263.12 

Cox had no prior underground mining experience (Tr. 29-39, 78). 

2. James Olsen contacterl Emery personnel. 

Service and took the MSA 32 hour training course. 

miner was $65.78 per day. 

He was referred to Job 

His starting pay as a 

Olsen started with Emery on March 21, 1980, operating a shuttle car 

underground. After he was hired Olsen received 8 hours training from 

Emery. 

Olsen's expenses were as follows: 

Tuition at MSA 

(Mileage, 480 @ 18 1/2¢) 

Pay not received 

($65.78 x 4) 

$100.00 

88.80 

263.12 

Olsen had no prior mining experience (Tr. 40-44). 

3. When Paul Redhair contacted Emery's personnel secretary he was 

told he needed 32 hours of training to work underground. Redhair took the 

training course and after returning to Job Service he was interviewed by 

Emery. He was hired on Februnry 1, 1980, as an underground worker. 

Redhair's expenses were ;is follows: 

Tuition for training 

Pay not received ($65. 78 x 4) 

Redhair had no prior mining experience. 

$100. 00 

263.12 

1/ The parties stipulated that Job Service ts an agency of the State of 

Utah Department of Employment Security (Tr. 34). 

2/ The undersigned has calculated all mileage expense on the basis of 

mileage paid by the United States Government for government use of 

privately owned vehicles at the time of the use. 

2651 
4. James E. Johnson contacted Job Service who directed him to the 

safety training course. After completing the course he returned to Emery 

where he received an additional 8 hours of training. 

Johnson's expenses were as follows: 

Tuition for miner training at MSA 

Meals during training 

Motel cost per night ($36 x 4) 

Mileage (168 x 18 1/2¢) 

Pay not received ($65.78 x 4) 

Helmet 

Boots 

Belt 

$100.00 

36.00 

144.00 

31.08 

263.12 

11.00 

65.00 

13.00 

The record does not reflect that the helmet, boots, and belt were 

required by Emery as a precondition of employment. Accordingly, I 

conclude that he should not recover for the expense of such items. 

Johnson was employed as an underground miner on February 22, 1980. 

He had no prior mining experience (Tr. 51-53). 

5. William R. Johnson was told by Job Service that employment would 

be more easily obtained if he had miner's training. Johnson took the 32 

hour course and returned to Job Service. He was then referred to Emery, 

took a physical examination, and was hired on February 22, 1980. 

Johnson's first job was as an underground trainee laborer. 

William R. Johnson's expenses were as follows: 

Tuition for training 

Motel cost ($36 x 4) 

Mileage (160 @ 18 1/24) 

Pay not received ($65.78 x 4) 

Meals 

$100.00 

144.00 

29.60 

263.12 

36.00 

William R. Johnson had no prior mining experience (Tr. 54-56). 

6. Fred L. Tubbs went to Job Service where he was told he needed 

miner training. He took the course, went back to Job Service, then to 

Emery. At Emery he was interviewed and took a physical examination. 

Fred L. Tubbs' expenses were as follows: 

Tuition for training 

Mileage (124 x 4 x 18 1/2¢) 

Lunches during course 

Pay not received ($65.78 x 4) 

$100.00 

91.76 

8.50 

263.12 

Tubbs was employed by Emery on February 8, 1980 as an underground 

miner. He had no prior mining experience (Tr. 56-60). 

2652 
7. Lansing L. Smith was told by Emery that he would have to take the 

32 hour training course. Emery stated that after completing the course he 

would be hired. Smith took the training course at Snow College in Utah. 

Smith's expenses were as follows: 

Tuition for training classes 

Mileage (100 miles x 4 days x 18 1/2¢) 

Pay not received ($65.78 x 4) 

$ 65. 00 

74.00 

263.12 

Smith started with Emery on February 22, 1980 as an underground 

miner. He had no prior experience (Tr. 61-67), 

8. Robert T. Wilson went to Emery and saw the Emery sign referring 

applicants to Job Service. Wilson was told by Emery's assistant personnel 

director that it would speed the hiring process if he took the course. He 

took the 8 hour per day course for four days. 

Wilson's expenses were as follows: 

Tuition for training course 

Pay not received ($68 x 4) 

$ 5t1. 00 

272.00 

9. The parties stipulated that four complainants were out of town and 

unavailable for the hearing. It was further agreed that Emery did not 

compensate said complainants for the time they spent obtaining preemployment training. The complainants subject to this stipulation were 

Gordon S. Bennett, Steven R. Fritsch, Robert C. Jolley, and Michael C. 

Tatum (Tr. 5-6). (If the parties intended a stipulation greater in scope 

they did not express it on the record.) 

Based on the stipulation I enter the following findings of fact: 

Complainants Bennett, Fritsch, Jolley, and Tatum did not receive 

pay for the four.days they spent attending the miner training course. 

amount of the pay not received was as follows: 

Gordon S, Bennett 

Steven R. Fritsch 

Robert C. Jolley 

Michael C. Tatum 

$65.78 (starting pay) x 4 days 

$65.78 x 4 

$65.78 x 4 

$65.78 x 4 

$263.12 

26 3. 12 

263.12 

263.12 

their 

The 

10. Prior to the 1977 Act Emery hired new miners and sent them to the 

College of Eastern Utah. The new miners were given an additional two days 

training at Emery's facilities (Tr. 80). 

2ssa 
11. During 1979 Emery experienced a 48% turnover in inexperienced 

miners; 450 were hired and 190 terminated in the first 3 months (Tr. 

81-82). 

12. On January 1, 1980 Emery changed its policy. The new policy was 

that no person would be hired unless he had completed a new miner 

orientation program through an MSHA approved institution (Tr. 82). 

13. The reason for Emery's change in personnel policy was to screen 

out those persons who weren't interested in a mining career and thereby 

reduce the turnover rate (Tr. 89, 96). 

14. The turnover rate was reduced to 25% from 50% but Emery did not 

identify the cause of the reduction (Tr. 86, 89, 90). 

15. Before January 1, 1980 Emery paid the miners for their time in 

taking the training course (Tr. 88). 

16. The State of Utah was the prime mover for the training program. 

Its purpose was to reduce turnover (Tr. 92, 93). 

DISCUSSION 

Emery contends it may impose legimate pre-employment qualifications 

on those who wish to be employed at its mines. I agree. However, the 

legitimacy of Emery's policies depends on whether a pre-employment 

requirement of 32 hours of miner's training conflicts with a contrary 

Congressional directive. Accordingly, it is necessary to look to the terms 

of the Act and, if necessary, its legislative history. 

Various portions of the Act dealing with miner training are profuse 

in indicating a Congressional intent that miner training is the 

responsibility of the operator and not the job applicant. 

A review of Section 115(a) indicates such a Congressional intent. An 

overview of the sect ion shows: "Each operator shall have a health and 

safety training program .... " [300:-s.c. 825(a)J. New miners having no 

underground mining experience shall receive no less than 40 hours of 

training [30 U.S.C. 825(i)J which "shall be provided during normal working 

hours [30 U.S.C. 825(b)]. In the instant case the applicants who took the 

course did so on their •own time and not during any such normal working 

hours. Section 115(b) also directs that "miners shall be paid at their 

normal rate of compensation while they take such training and new miners 

shall be paid at their "starting wage" when they take the new miner 

training. If such training is given at a location other than the normal 

place of work miners shall also ''be compensated for the additional costs 

they may incur in attending such training sessions." [30 U.S.C. 115(b)J. 

2654 
None of the above conditions were w~t in the instant factual situation. 

The applicants did not receive any compensation, a starting wage or 

otherwise, for their 32 hours training course. In fact they paid their 

own tuition, and they incurred additional incidental costs for which they 

were not reimbursed. 

Section 115(c) directs that upon completion of each training course 

"the operator'' shall certify that the miner has received the training [ 30 

U.S.C. 115(c)]. The certifiuite shall he maintained "by the operator" .... 

False certification "by an operator" is punishable under boththe civil 

and criminal penalty provisions of the Act. [30 U.S.C. 825(c)]. (Emphasis 

added.) 

As indicated above the Act places the responsibility for the training 

of miners on the operator. On the other hand, no portion of the Act 

places the responsibility for training costs on new miners. Emery's preemployment condition clearly shifts the statutory burden from Em~ry, the 

operator, to the job applicants. Although operators may enter into 

cooperative training agreements (30 C.F.R. 48.4), they ultimately are 

responsible for the cost and content of s11ch training. 

In addition to the foregoing language in the statute, the legislative 

history supports this construction , The Conunit:tee on Human Resources in 

May, 1977 stated: 

It: is not the Commit tee's contemplation that the Secretary 

be in the business of training miners. This is clearly the 

responsibility of the opurator, as long as such training meets 

the Act's minimum requirements. Sen. Rep. No. 95-181, 95th 

Cong., 1st Sess., 50 (1977), reprinted in Legislative History 

of the Federal Mine Safety and Health Act ~f 1977, 95th 

Congress, 2nd Session, 638, (July, 1978). -~~~ 

Further, the general tenor of Senate Report No. 95-461, 95th Cong., 

1st Sess., 61 (1977), reprinted in Leg. History, supra at 1339, clearly 

illustrates the Congressional in ten-~ Aparticularily relevent portion 

of this legislative history reads as follows: 

MANDATORY HEALTH AND SAFETY 

TRAINING AND MINE RESCUE TEAMS 

The Senate bill contained a provision requiring the Secretary 

to, within 180 days of the effective date of this, promulgate 

regulations with respect to the safety and health training of 

miners. Each operator would have a safety and health training 

plan, approved by the Secretary, which would provide new underground miners with no less than 40 hours of training, new 

surface miners with no less than 24 hours of training, and all 

miners with at· least 8 hours of annual retraining. Any miner 

reassigned to a new task would be provided with training 1n 

safety and health aspects of his new assignment. Safety and 

health training would be provided at the expense of the 

265fi 
operator 3 / and during normal 1·.>orking hours. Miners would 

be paid their normal rate of compensation for such time spent 

in training, and new miners would be paid their starting wage 

rate. If such training was given away from the mine, miners 

would also be compensated for their expense. 

Other portions of the legislative history amply support the 

construction stated here. 

The next issue is whether the violation constitutes a discriminatory 

practice under Section lOS(c) of the Act. The discrimination section is 

broad in scope and it includes and prohibits discrimination against an 

"applicant for employment." In David Pasula v. Consolidation Coal Company 

2 FMSHRC 2786 (1980) (Reversed on other grounds, United States Court of 

Appeais, (3rd Cir), October 30, 1981, No. 80-2600), the Commission cited 

the report of the Senate Committee that largely drafted the 1977 Mine Act, 

The Connnission citing in part the legislative history at 624, stated as 

fol lows: 

The wording of section lO[S](c) is broader than the 

counterpart language in section 110 of the Coal Act 

and the Connnittee intends section lO[S](c) to be 

construed expansively to assure that miners will not 

be inhibited in any way in exercising any rights 

afforded by the legislation. 

The Committee also intends to cover within the ambit 

of this ~rotection any ciiscrimination against a miner 

which is the result of the safety training provisions 

... or the enforcement of those provisions ..•. 

(Emphasis added). 

Since § llS(b) imposes the statutory obligation on the operator to 

provide and pay for miner training it follows as a necessary corollary 

that the right to training as a miner is one of the statutory rights 

protected by the discrimination portion of the Act. Emery's pre-employment 

policy which denied this right to the complainants, therefore, discriminates against job applicants. 

The Committee was cognizant of the possibility of pre-employment 

training in areas other than as a pre-employment condition. The 

Legislative History, supra, page 639 recognizes West Virginia and Kentucky 

safety training courses and discusses their ramifications: 

Lhe CoffiTTlittee recognizes that some States, namely 

West Virginia and Kentucky, provide pre-employment 

3/ Portion cited 1n MSHA brief. 

265f) 
training to individuals who may apply for johs as 

miners. Such training may meet the requirements of 

the standards promulgated by the Secretary, and, 

assuming that such training is of sufficient quality, 

the operator should not be required to duplicate Stateprovided training. 

In the above circumstances there is a Congressional intent to relieve 

the operator from the liability of providing duplicate training for a job 

applicant. Emery has not cited any portion of the legislative history that 

would cause me to conclude that there are other circumstances where Congress intended to shift the burden from the mine operator. 

The doctrine expressed in Consolidated Coal Company, (David Pasula), 

supra does not purport to set the outside perimeters of protected activity. 

In this case complainants were "applicants for employment." Further, the 

protected activity here is a statutory right to training provided for in 

the Act. Emery accordingly discriminated against complainants by requiring 

them to secure on their time and at their expense such training, 

The Secretary's regulations, Title 30 Code of Federal Regulations, 

Part 48, relating to the training and retraining of miners, does not 

address the issues raised in this case. 

EMERY'S CONTENTIONS 

Emery argues that it may impose legitmate pre-employment 

qualifications, further that such a policy is consistent with the Act, and 

that there would be no practical benefit in requiring Emery to pay for all 

40 hours of training since it may well continue its present personnel 

policy that is the subject of this litigation. 

Emery's initial argument has already been discussed. 

restate the holding: Emery's pre-employment qualification 

is in conflict with the statutory provisions of the Act. 

To briefly 

fails since it 

Emery's second argument is that its policy is consistent with the Act 

because the complainants were not "miners." Emery relies on Section 115(b) 

of the Act. With particular emphasis Emery cites the pay requirement 

section as follows: 

Any health and safety training provided under subsection (a) 

shall be provided during normal working hours, Miners shall 

be paid at their normal rate of compensation while they take 

such training, and new miners shall be paid at their starting 

wage rate when they take-~new miner training. If such 

training shall be given at a location other than the normal 

place of work, miners shall also be compensated for the 

additional cost they may incur in attending such training 

sessions. (Emphasis added). 
Further, Emery cites Section 3(g) of the Act which states: 

(g) "miner" means an individual working in a coal or 

other mine. 

In short, Emery asserts that the job applicants here were not "miners" 

since they had not been hired and most of them had not even submitted 

formal applications for employment. I find from the uncontroverted 

evidence that the factual statements made my Emery are credible, but I 

disagree with Emery's restrictive construction of the term "miner". Such a 

view conflicts with the Act and its legislative history which places the 

burden for the training of all miners on the mine operator. Further, it is 

an accepted principal of law that remedial legislation is to be broadly 

construed. Consolidated Coal Company, 1 FMSHRC 1300, 1309 (1979). 

It is apparent from the legislative history Leg. History, supra at 

(pages 589-598) that Congress was exceedingly disturbed over mine disasters 

and resulting deaths. The history reviews the Sunshine Silver Mine 

Disaster (Idaho, 1972; 91 fatalities); Buffalo Creek (1972, 125 

fatalities); Blackville disa~ter (July 1972, 9 fatalities); Scotia, (March 

1976, 26 fatalities including 3 inspectors); near Tower City, Pennsylvania 

(February 1977, 9 fatalities). Further, the history states: 

It is unacceptable that years after enactment of these mine safety 

laws, miners can still go into the mines without even rudimentary 

training in safety. Leg. History, supra at 592. 

Emery's final argument is that if it is required to pay for all 40 

hours of training it is unlikely that the miners will ultimately benefit 

from this additional burden placed on Emery. Its argument is to the effect 

that it could hire only "experienced miners", further, it could train the 

applicants at its facilities, and it could still require its job applicants 

to have completed 32 hours of training before it gives its own 40 hours of 

training. 

I agree with Emery that it may restrict its hiring practices and hire 

only 11 f'Xperienced miners", as defined in 30 C.F.R. 48.2(b). In addition, 

Emery may use its present facilities to give the required 40 hours of 

training. In fact, prior to the adoption of the present Act Emery (then 

American Coal Company) had a full MSHA approved training course on its 

site. Further, it compensated new miners for their expenses and wages 

while they took the course (Tr. 6, 80, Exhibit C-1). 

As I interpret Emery's final argument it focuses on the proposition 

that it may require inexperienced miners to take 37. hours of preliminary 

training and then give its own 40 hours of training (a total of 72 hours). 

There should be many avenues Emery can explore in its efforts to reduce 

labor turnover but its hypothetical presents a factual situation very 

similar to the pre-employment condition that I have ruled invalid in the 

instant case. However, in view of the fact that Emery's argument is 

hypothetical no definitive ruling is required in this decision. 

2658 
Emery further claims that in Section lOS(c) Congress used the term 11 app1 icants for employment" but that term does not appear in Sect ion 

llS(b), Therefore, Emery concludes that Congress did not intend to require 

operators to compensate applicants for training they received prior to 

becoming hired by Emery. 

No one contends Emery should train each and every job applicant but it 

may not discriminate against job applic~nts. 

In Section llS(a) Congress is discussing "new miners" with no 

underground experience, § 115(a)(l); new miners with no surface experience 

§ 115(a)(2); refresher training for all miners, § 115(a)(3); any miner 

reassigned to a new task, § 115(a)(4). It would be incongruous for 

Congress to require training for a "applicant for employment." If Congress 

had perceived the thrust of Emery's argument and required training for 

"applicants for employment" (in addition to new miners) then Emery might 

find itself in the miner training business which could be quite apart from 

the coal mining business. 

Emery is correct in its contention that "applicants for employment" 

are not required to be trained at the expense of the mine operator. 

However, Congress mandated that mine operators bear the full expense of 

training new miners. Emery's pol.icy that applicants for employment obtain 

32 hours of training before they may be considered for employment 

circumvents this mandate. Emery constructed its employment policy in such 

a way that it remained responsible for only eight of the forty hours of 

training required for new underground miners. This policy clearly violates 

Section 115 of the Act. 

Having considered all of the arguments herein on the uncontroverted 

facts I conclude that an order should be entered in favor of complainants 

granting the relief they seek. 

PROCEDURAL MATTERS 

At the hearing of the above case counsel for the Secretary indicated 

that he had been informed that there were approximately 300 employees in 

addition to complainants that were hired by Emery after its policy went 

into effect on January 1, 1980 (Tr. 22-28). The parties discussed the 

possibility of joining other similarily situated employees once they were 

specificially identified. The undersigned indicated that an amended 

complaint would be favorably considered and jurisdiction would be retained 

over those complainants who were added in the amended complaint. 

Subsequently leave was granted to the Secretary to file an amended complaint which adds 127 complainants. They seek reimbursement for tu it ion, 

back wages, and incidental expenses. 

After the amended complaint was filed the undersigned, pursuant to 

Rule 21, FRCP, severed the amended complaint from the original complaint. 

It was further ordered that the instant case retain its present style and 

that the letter (A) be designated after the docket number. 

2659 
The caption of the case involving the allegations raised in the 

amended petition was designed as follows: 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), on ) 

behalf of MARK ADAMS, ET AL, ) 

) 

Complainant, ) 

v. ) 

) 

EMERY MINING CORPORATION, ) 

) 

Respondent. ) 

DOCKET NO. WEST 80-489-D(B) 

Further, a copy of the complete file in WEST 80-489-D(A) was transferred to 

WEST 80-489-D(B). The latter case remains pending before the undersigned. 

CIVIL PENALTY 

In this case the Secretary did not seek a civil penalty against Emery 

for the violation of Section lOS(c) of the Act. 

The credible evidence has been reviewed and the complaints of 

discrimination are affirmed, The Act provides that any violation of the 

discrimination section shall be subject to the provisions of Section 108 

and llO(a). 

The statute further authorizes the imposition of a penalty not to 

exceed $10,000. (30 U.S.C. 818, 820(g), (i)). The Secretary did not seek a 

civil penalty in this case but the statute mandates the imposition of a 

penalty. Accordingly, a penalty of $1,000 is assessed against respondent 

for violating the Act. (~ Tazco, Inc. Va. 80-121 (August 1981)). 

Based on the foregoing findings of fact and conclusions of law as 

stated above I enter the following: 

ORDER 

1. Complainants Gordon S. Bennett, Jamie V. Cox, Steven R. Fritsch, 

James E. Johnson, William R. Johnson, Robert C. Jolley, James Olsen, Paul 

Redhair, Lansing L. Smith, Michael C. Tatum, Robert R. Wilson and Fred L. 

Tubbs were unlawfully discriminated against in violation of Section lOS(c) 

of the Act, and their complaints of discrimination are sustained. 

2. Respondent is ordered to pay to each complainant the amount 

indicated after said complainant's name: 

Gordon S. Bennett 

Back pay 

2660 

$263.12 

TOTAL 

$263.12 
Jamie v. Cox 

Tuition $100.00 

Mileage 47.36 

Back pay 263.12 $410.48 

James Olsen 

Tuition $100.00 

Mileage 88.80 

Back pay 263.12 $451. 92 

Steven R. Fritsch 

Back pay $263.12 $263.12 

Paul Redhair 

Tuition $100.00 

Back pay 263.12 $363 .12 

Lansing L. Smith 

Tuition $ 65.00 

Mileage 74.00 

Back pay 263.12 $402.12 

Robert R. Wilson 

Tuition $ 54.00 

Back pay 272 .oo $326.00 

Fred L. Tubbs 

Tuition $100.00 

Mileage 91. 76 

Meals 8.50 

Back pay 263.12 $463.38 

Michael C. Tatum 

Back pay $263.12 

$263.12 

James E. Johnson 

Tuition $100.00 

Incidental costs (meals & motel) 180.00 

Mileage 31.08 

Back pay 263.12 

$574.20 

William R. Johnson 

Tuition $100.00 

Motel costs 144.00 

Mileage 29.60 

Back pay 263.12 

Meals 36.00 $572.72 

Robert c. Jolley 

Back pay $263.12 $263.12 

266J 
3. Respondent is to pay interest on all said back pay awards at the 

rate of 12 1/2% per annum.~/ 

4. A civil penalty of $1,000 is assessed against respondent for 

violating Section 105(c) of the Act. 

Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

(};;-,_~_ f(/?(/--1/l.~ /John J. Morr i's I / ; . 

(. Administrativ~ Law Judge 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Todd D. Peterson, Esq. 

Crowe 11 & Moring 

1100 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

4/ Interest rate used by Internal Revenue Service for underpayments and 

overpayments of tax, Rev Ruling 79-366 Cf. Florida Steel Corporation, 231 

N.L.R.B. No. 117, 1977-78, CCH, N.L.R.B. Para 18,484; Bradley v. Belva 

Coal Company, WEVA 80-708-D, April 1981. 

2662 
FEDERAL MINE 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. 

BULL RUN MINING COMPANY, INC., 

Respondent 

NOV 24 

Civil Penalty Proceeding 

Docket No. WEVA 81-550 

A.O. No. 46-04266-03019V 

Meredith Mine 

DECISION APPROVING SETTLEMENT 

This is a civil penalty proceeding initiated by the petitioner 

against the respondent pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 820(a), proposing a civil 

penalty assessment for one alleged violation of mandatory safety standard 

30 CFR 75.200. 

Respondent filed a timely answer and notice of contest and the case 

wan scheduled for hearing at Washington, Pennsylvania, January 14, 1982. 

However, by motion filed November 18, 1981, the petitioner seeks approval 

of a proposed settlement of $350 for the citation which was initially 

assessed at $750. 

Discussion 

In support of the proposed settlement disposition of this case, 

petitioner has submitted full arguments and information concerning the 

six statutory criteria found in section llO(i) of the Act, including 

a discussion of the facts and circumstances surrounding the citation. 

Petitioner states that Citation No, 856023 was issued on March 26, 1981, 

because the respondent failed to comply with the roof control requirement 

that roof bolts be installed within 5 feet of the rib. In the 1 right 

section, in the crosscut along the belt conveyor entry, the crew had 

cut an area along the left rib for a distance of 18 feet and no support 

had been installed. The distance from the rib to the installed bolts 

was 6 feet 10 inches, 6 feet 7 inches, 7 feet 4 inches, and 8 feet 2 jnches. 

Petitioner states further that a reduction in penalty would be appropriate 

in light of the following facts. 

The cited are.a had been originally cut and bolted according to 

the roof control plan; however, on March 25, 1981, it was discovered that 

the equipment was too wide to move into the area. Thus, a cut was made 

in the corner resulting in the cited wide areas from the last row of bolts. 
Except for this last row of bolts the entire crosscut had been properly 

bolted. The crew, after making the cut, cleaned the area. However, 

before the crew could bolt the shift ended. 

The next day the crew immediately started cutting in another area 

of the mine, and at the time this violation was observed no one had 

been under the inadequately supported roof. Additionally, the cited roof 

could not be pulled down, and in order to abate, the roof was pinned up 

with additional bolts, and it was not likely that the roof would have 

fallen in this area. Petitioner concludes that these factors reduce the 

gravity of the violation, and that the probability of a roof fall was 

certainly less than probable in light of the roof's condition. Petitioner 

also asserts that the cited condition presented no danger of an immediate 

roof fall, that no fatality could reasonably be expected to occur as a 

result of this condition since no miners were exposed to this unsupported 

area, because once the crew finished work at the cited area on March 25, 1981, 

they commenced work in another area of the mine the next day. 

Although petitioner concedes that the respondent was negligent 

in permitting the cited conditions to exist, it argues that any negligence 

is mitigated by the fact that the conditions cited had not existed for 

an entire shift as previously believed since the condition were cited 

approximately 2 hours and 50 minutes into the shift. 

With regard to the size and scope of the respondent's mining operation, 

petitioner states that the respondent operates a very small mine, employing 

approximately 16 miners on one daily production shift, and that its annual 

coal production is 77,830 tons. Respondent's history of prior violations 

for a two year period prior to the date the instant citation issued 

consists of 57 prior assessed violations, but the petitioner does not 

assert that any of these were for prior violations of section 75.200. 

Conclusion 

After careful review and consideration of the pleadings, arguments, 

and information of record in support of the motion to approve the proposed 

settlement. I co~clude and find that it is reasonable and in the public 

interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, the motion is 

GRANTED and the settlement is APPROVED. 

*/ Lest there by any misunderstanding as a result of recent conclusions 

made by one of my learned colleagues in a recent decision of November 17, 1981, 

(Docket Nos. WEVA 81-341-R; WEVA 81-441), stating that the Commission's 

"trial judges" have been admonished to adopt a "wise" rather than "zealous" 

attitude toward mine safety enforcement, my decision approving the settlement 

in this case is based on the record before me and I have not been the 

recipient of any such "admonishments". 

2664 
ORDER 

Respondent IS ORDERED to pay a civil penalty in the settlement 

amount of $350 in satisfaction of the citation in question within thirty 

(30) days of the date of this decision and order, and upon receipt of 

payment by MSHA, this proceeding is DISMISSED. The scheduled hearing is 

CANCELLED. 

Distribution: 

ras 

Administrative Law Judge 

Covette Rooney, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Woodrow A. Potesta, Esq., Suite 510, 1st National Bank Bldg., Fairmont, 

WV 26554 (Certified Mail) 

2665 
FEDER.Al MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

11.ltni 

l\~Ul!i I ') ,, 'f \~\ ·· ·. 

) 

) 

) CONTEST OF CITATION PROCEEDING 

WESTERN STEEL CORPORATION 

Substituted Contestant, 

(FMC CORPORATION, Original Contestant)) 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

~~~~~~~~~~~~~~~~~~~~~ 

Appearances: 

John A. Snow, Esq. 

Vancott, Bagley, Cornwall & McCarthy 

50 South Main Street, Suite 1600 

Salt Lake City, Utah 84144 

For the Contestant 

Robert J, Lesnick, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Respondent 

) 

) 

) 

) 

) 

) 

) 

DOCKET NO. WEST 81-132-RM 

Citation No. 577232 

MINE: FMC 

BENCH DECISION 

Contestant filed a contest of Citation No. 577232 issued by respondent 

on behalf of the Mine Safety and Health Administration (MSHA). A hearing 

was held in Green River, Wyoming on September 1, 1981. At the conclusion 

of the evidence the parties agreed to waive filing of post trial briefs and 

agreed that a bench decision could be rendered. 

Based on the evidence I entered the following bench decision: 

JURISDICTION 

The parties admit that the Federal Mine Safety and Health Review 

Commission has jurisdiction to hear and determine this case. 

PROCEDURAL MATTERS 

Western Steel Corporation has been substituted as a Contestant in this 

case without objection. Accordingly the case is dismissed as against FMC 

Corporation, and the caption is amended to reflect the substitution. 

2G6f-> 
STATEMENT OF THE CASE 

Contestant seeks an order vacating Citation 577232 issued by the Mine 

Safety and Health Administration for an alleged violation of Title 30 Code 

of .Federal Regulations, section 57 .L~-33. The standard provides as 

follows: 

Valves on oxygen and acetylene tanks shall be kept 

closed when contents are not being used. 

ISSUE 

The issue is whether Contestant violated the standard. That issue 

involves a construction of the regulation. 

FINDINGS OF FACT 

The facts are uncontroverted except as will be hereafter discussed. I 

find the credible facts to be as follows: 

1. On December 3, 1980, witness Warner, a Western Steel iron worker, 

was fabricating material at the FMC mine. 

2. Witness Warner was putting in a dust control system. A torch 

welder with acetylene and oxygen tanks was being used in connection with 

the process. 

3. Mr. Warner arrived to work on that date at about 8:00 a.m, He set 

up his cutting tools and turned on the valves and started up the welder. 

4. The torch had approximately a hundred feet of hose which led to 

the acetylene and oxygen tanks. 

5. During the process of the morning, witness Warner ran out of angle 

iron that he was using to make brackets. It was necessary to go elsewhere, 

approximately forty to fifty feet away, to cut additional pieces. 

6. At the place where witness Warner was cutting additional pieces he 

could not see the torch or the acetylene and oxygen tanks. 

7. Mr. Warner testified that he was away for approximately five to 

ten minutes from the torch cutting head before the inspection team arrived. 

However, I further find that this time could be as long as twenty minutes, 

and for the purpose of this discussion I accept the twenty--minute period. 

8. There were two sets of shut-off valves. One set was at the oxygen 

and acetylene tanks and one set was 100 feet away at the torch. 
9. When witness Warner left he turned off the set of shut-off valves 

that are located at the torch head itself. 

10. Mr. Warner intended to turn off the valves at the acetylene and 

oxygen tanks at the lunch break. 

Based on the foregoing facts, I conclude that there was no violation 

of the regulations, and the citation should be vacated. 

DISCUSSION OF THE EVIDENCE 

There's only one credibility determination in the case and that 

involves testimony of MSHA Inspector Potter to the effect that he learned 

while at the scene and before he issued the citation that the torch had not 

been in use. He bases this testimony on statements made by three miners at 

the time of the incident. I find a certain weakness in Mr. Potter's 

testimony in that I could not determine whether those three witnesses were 

stating that they themselves had not used the torch or whether they were 

stating that someone else had not used the torch. 

In addition, witness Potter confirms that the torch had been in use 

at some time, I further find that Warner started at 8:00 a.m. and set up 

his gear and began operating the torch. He had done so between the time 

that he started at 8:00 a.m. and the time of the inspection at about 10:35 

a.m. 

The Mine Safety and Health Administration asserts that there was a 

hazard because the lines were under pressure and there was a possibility 

then that an explosion could have occurred. There's no evidence that such 

an event could have occurred, and no evidence that the lines were in any 

way weak. In any event, I am not convinced that Warner's actions created 

any hazard because that condition will always exist whenever the lines are 

in use. I further find that MSHA Inspector Potter appears to agree that 

MSHA allows valves to be open for a lapse of time when a worker has to do 

such a thing elsewhere such as get a piece of steel. 

The defense here infers that 'in use' means being used at various 

times throughout the day. There are certain defects in that approach 

because then no one would be responsible for turning the valve off. The 

possibility would exist that the first person coming on the scene would use 

the torch for five minutes and then walk away. Then it wouldn't be turned 

off until lunch time or the end of the day. I am not willing to go so far 

as to rule that the valves could be left on for such a substantial period 

of time. 

Here I find that Mr. Warner left his work place near the torch, and he 

was doing an activity in connection with the further use of that torch. He 

was gone for a period not exceeding twenty minutes. Therefore, it is my 

view that the contents of the oxygen and acetylene torches were still 

"being used" during this twenty minute period. Therefore, there was no 

violation of the subsection 57.4-33. For that reason, I conclude that 

Citation 577232 should be vacated. 

2668 
I can see the Secretary of Labor's point, but l feel that if he 

a more specific requirement, then he should redraft Section 57.4-33. 

employer is entitled to be fairly appraised of prohibitive activity. 

may well be that Contestant in this case would be denied due process 

were to hold that these facts constitute a violation of the standard. 

wants 

An 

It 

if I 

In summary, I feel that there could be two extremes involved in a 

construction of the regulation, One extreme is that the tank contents are 

not "being used" whenever the oxygen and acetylene are flowing through the 

lines but the torch itself has been turned off. I'm unwilling to accept 

that extreme construction because that would mean everytime a welder turned 

off his torch, he would have to go elsewhere to shut off the oxygen and 

acetylene. On the other hand, the other extreme would be if a worker used 

it for five minutes at 8:00 a.m. in the morning and then did not thereafter 

go back to the welder for a substantial period of time, the contents of the 

tank would be considered to be "being used" during that time. I do not 

accept either of these interpretations. 

ORDER 

For the foregoing reasons and based on the findings of fact and 

conclusions of law, I enter the following order: 

Citation 577232 and the proposed penalty are vacated. 

POST TRIAL ORDER 

The foregoing bench decision is affirmed. 

Distribution: 

John A. Snow, Esq. 

Vancott, Bagley, Cornwall & McCarthy 

50 S. Main Street, Suite 1600 

Salt Lake City, Utah 84144 

Robert J. Lesnick, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

2669 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA. 22041 

PEABODY COAL COMPANY, Contest of Citation 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Contestant 

UNITED MINE WORKERS OF AMERICA, 

(UMWA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

PEABODY COAL COMPANY, 

Respondents 

Petitioner 

Respondent 

Docket No. KENT 81-92-R 

Citation No. 1032760 

February 2, 1981 

Star North Underground Mine 

Civil Penalty Proceeding 

Docket No. KENT 81-155 

A.O. No. 15-03161-03075V 

Star North Underground Mine 

DECISIONS 

Appearances: 

Before: 

Thomas A. Gallagher, Esq., St. Louis, Missouri, for 

contestant-respondent Peabody Coal Company; 

Thomas A. Grooms, Esq., U.S. Department of Labor, 

Nashville, Tennessee, for respondent-petitioner 

Secretary of Labor. 

Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern an unwarrantable failure citation served on Peabody Coal Company by an MSHA inspector pursuant to section 

104(d)(l) of the Federal Mine Safety and Health Act of 1977, and a subsequent 

2670 
civil penalty proposal filed by MSHA pursuant to section llO(a) of the Act, 

seeking a civil penalty assessment based on the alleged violation as described 

in the citation. 

Peabody filed a timely notice of contest challenging the inspector's 

unwarrantable failure findings, as well as his finding that the citation was 

significant and substantial. On motion by MSHA, the dockets were consolidated 

for hearing at Nashville, Tennessee, on September 2, 1981, and MSHA and Peabody 

appeared, but the UMWA did not. 

Applicable Statutory Provisions 

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

.::.!. seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i), which requires 

consideration of the following criteria before a civil penalty may be assessed 

for a proven violation: (1) the operator's history of previous violations, 

(2) the appropriateness of such penalty to the size of the business of the 

operator, (3) whether the operator was negligent, (4) the effect on the operator's ability to continue in business; (5) the gravity of the violation, and 

(6) the demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of the violation. 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 4): 

1. The Administrative Law Judge has jurisdiction over these matters. 

2. Peabody Coal Company engages in business which affects interstate 

commerce. 

3. Peabody Coal Company is a large coal operator. 

4. The amount of the penalty which may be imposed will not affect 

Peabody Coal Company's ability to remain in business. 

Issues 

The issues presented in these proceedings includes the following: (1) 

whether the conditions or practices cited by the inspector on the face of the 

citation constituted a violation of the cited mandatory safety standard, (2) 

whether the violation was of such a nature as could significantly and substantially contribute to the cause and effect of a coal or other safety or health 

hazard, and if such violation was caused by the unwarrantable failure of the 

operator to comply with the mandatory health or safety standard, (3) the 

appropriate civil penalty which should be assessed against the operator for 

2671 
the alleged violation based upon the criteria set forth in section 110 of the 

Act. Additional issues raised are identified and disposed of where appropriate in the course of these decisions. 

DISCUSSION 

Section 104(d)(l) Citation No. 1032760, issued by MSHA inspector Arthur J. 

Parks, on February 2, 1981, charges a violation of 30 C.F.R. § 75.1306, and 

the inspector concluded that the conditions cited constituted a "significant 

and substantial" violation. The citation was issued because the inspector 

believed that the explosive magazine on the No. 7 mining unit was not 

adequately protected from a potential roof fall. The condition or practice 

cited by the inspector on the face of the citation is as follows: 

The explosives magazine on the No. 7 unit (025) was not 

adequately protected from potential roof fall. The magazine 

was sitting in a room neck (approximately 10' deep) next to 

intersection (spad No. 246) approximately 25' outby a roof 

fall in the No. 6 entry. The roof was cracked from the fall 

along the rib into the room neck and a crack from the fall 

extened [sic] into the crosscut opposite the magazine (this 

crosscut was 24' wide at the mouth). Management knew of the 

abnormal condition (the roof fall) but there were only three 

timbers set around the magazine and one of the three crossbars between the magazine and fall was broken. 

The conditions cited were subsequently abated, and the citation was 

terminated the same day it was issued, and the action taken to abate the conditions is described by the inspector as follows: "The area was timbered 

and the magazine was moved to another area." 

MSHA's Testimony and Evidence 

MSHA inspector Arthur J. Parks testified that he issued the citation in 

question on February 2, 1981, after he observed a magazine containing explosives situated close to a massive roof fall which had occurred in the No. 7 

unit of the No. 6 entry. He stated that at least 8 feet of the roof had caved 

in and a mixture of both small and large rocks had broken off. The inspector 

pointed to a diagram showing the location of the violation which he had prepared from his notes after issuing the citation (Exh. G-2). He indicated that 

the section magazine was sitting in a room neck that was about 10 feet deep 

and 18 feet wide. There were three timbers positioned around the magazine. 

Mr. Parks stated that there were cracks which ran directly from the roof fall 

into the area where the magazine was located. One fracture ran almost 25 feet 

from the brow of the roof fall to near the magazine. He also pointed to a 

fracture on the right side of the diagram which was about 12 to 14 feet long. 

He testified that these fractures indicated that the roof was about to fall. 

In his opinion, the fractures were not caused by a cutting machine or other 

instrument. He stated that the cutting machine marks located on the rib 

opposite the magazine were distinguishable from the fractures (Tr. 7-17). 

2672 
Mr. Parks referred to a previously issued imminent-danger order issued 

on December 22, 1980, for a violation of the roof-control plan (Exh. G-7). 

In describing the conditions which led to him issuing that order, he stated 

that Jesse Campbell, the foreman, had acknowledged that the roof was in 

extremely bad condition but that they were proud of the fact that no one had 

been injured due to rock falls. The inspector stated that he was worried 

about the attitude of the mine's management because they would wait until the 

roof started to break up before bolting it or timbering it (Tr. 37-41). 

Mr. Parks explained the notations on Exhibit G-5 which showed the 

location of prior orders and citations issued in connection with rock falls 

and also showed the location of the rock falls that were reported. He indicated that these roof condition violations had all occurred in the same 

general area where the citation in question occurred (Tr. 43-44). 

On cross-examination, Mr. Parks admitted that his diagram of the violation (Exh. G-2) was not to ~cale and that he had not actually measured the 

cracks. He agreed that the diagram showed that there were two crossbars 

outby the brow of the fall and that this would be sufficient support under 

the roof-control plan. The inspector testified that the plan required a 

minimum of 36-inch roof bolts and that the operator was using 48-inch resin 

bolts in the room neck (Tr. 67-72). 

Mr. Parks stated that the three timbers around the magazine provided 

additional support but not adequate protection for the magazine. He felt 

that additional timbers in front of the crossbars were needed. He also 

thought that the intersection leading to the magazine should only be wide 

enough to let a scoop in to retrieve the magazine (Tr. 72). 

Mr. Parks confirmed that a preshift inspection had taken place on 

February 2, 1981. He also testified that management corrected the cited condition as expediently as possible. He admitted that he had not checked the 

timbers surrounding the powder magazine to see if they were snug. He agreed 

that if in fact the roof was coming down, the timbers would have been firmly 

in place. The inspector also stated that he had not asked Mr. Todd why he 

located the magazine in this particular position (Tr. 74-92). 

On redirect examination, Mr. Parks noted that the roof-control plan 

specifications were only a minimum and that additional precautions were 

necessary for abnormal conditions. He felt that the conditions of 

February 2, 1981, necessitated additional support. He stated that there was 

just 18 inches of clearance over the top of the powder magazine (Tr. 93-94, 

140). He agreed that the three posts in front of the magazine provided 

additional support. He also admitted that the ribs provided some support 

(Tr. 94, 143). 

In response to bench questioning, Mr. Parks stated that he did not know 

whether the roof had cracked before it had fallen. The roof fall had been 

2673 
reported on February 1, 1981. He stated that he would not have issued any 

citations if the fallen crossbars had been in place, the entryway had been 

20 feet instead of 24 feet wide, and the powder magazine had not been underneath the roof fall (Tr. ~04, 135-139). 

Jeffrey Bivens, representative of the union, testified that he accompanied Inspector Parks on his inspection of the mine on February 2, 1981. He 

testified that he observed the powder magazine which had two timbers on one 

si.de of it and one on the other. He noticed cracks running from the rock 

fall into the room neck where the magazine was situated, and thought that the 

fractures were caused by the weight of the roof breaking rather than by a 

cutting machine. He noted that machines make very distinct markings unlike 

fractures. In his opinion, the powder magazine was not adequately protected 

from a roof fall, and that there were considerable problems with the roof 

conditions in this area. At times, the roof would fall before it could be 

supported (Tr. 106-110). 

Mr. Bivens described the powder magazine as being a 5-foot by 8-foot 

wooden box. It had a partition on one end with one section used for storing 

electric detonators. The rest of the box was used for storing the actual 

powder. The magazine was moved around the mine by a scoop. He had never 

observed this particular magazine in this position prior to February 2, 1981, 

although he had seen similar magazines stored in other niches with posts 

around them. In these other areas, when there were adverse roof conditions, 

extra steps had been taken to protect the magazines. He did not know whether 

the three posts surrounding the magazine in question had been installed in 

connection with the roof fall or prior to it (Tr. 116-120). 

Charles Willis, a member of the safety committee, testified that he was 

shown all the conditions, including the cracks and the roof fall, which led 

to issuance of the citation in question. He stated that he has been around 

underground mining for about 22 years, although he does not work underground. 

Mr. Willis testified that the fractures were probably caused by the stress 

of the fall when it took weight in the entry. He stated that a cutting 

machine would make a wide, straight cut and that these cracks were circular 

and narrow. Mr. Willis testified that he was aware of problems with the roof 

and that No. 7 unit was having more problems than the other units at the time 

(Tr. 123-128). 

Operator's Testimony and Evidence 

Finis Todd, a section foreman for Peabody Coal Company, testified that 

he had arrived at the No. 7 unit around 4 o'clock on February 2. After 

making an onshift examination and noting that the powder magazine was in 

"good shape and adequately protected," he was told that Inspector Parks and 

Jim Young wanted to see the powder box. Upon finding Mr. Parks, he was told 

about some voltage cable violations. After correcting these, he returned to 

the No. 6 entry and saw Jim Young setting up a row of timbers across the 

intersection, as part of the additional support ordered by the inspector. 

Mr. Todd testified that he then found Mr. Parks in the crosscut between the 

2674 
No. 2 and No. 3 entries and was sho~m some cracks which needed bolting or 

timber:i.ng before he could run the entry. Since he did not have a trussbolt 

operator, Mr. Todd decided to move the unit to the rooms on the return side. 

He ordered the scoop operator to knock the timbers out and remove the powder 

magazine from the room neck in the No. 6 entry. Mr. Todd described the 

powder box as being 6 feet wide and 8 feet long and 36 inches in height, and 

it was located about 4 feet from the intersection. After informing Mr. Parks 

of his action, the inspector told him he was issuing a section 104(d)(l) 

order on the powder magazine even though he had moved it. Mr. Todd state-cl 

that he was baffled because it was the first time that he knew anything about 

the citation on the powder magazine (Tr. 145-157). 

Mr. Todd testified that the rock fall in the No. 6 entry posed no danger 

to the powder magazine. The roof had been crossbarred prior to the rockfall 

and the area outby the crossbars was hard and sounded good. He indicated 

that the cracks on the left side of the entry were small and did not run 

toward the powder box while the cracks on the right side were caused by the 

cutter bar butting the roof while cutting the corner of the inby rib. 

Mr. Todd testified that the area of the roof fall was in conformance with the 

roof control plan except for the wide crosscut. He stated that this wide 

area did not constitute any danger to the powder magazine sitting in the room 

neck. The powder magazine also had the face and left rib of the room neck 

for support (Tr. 158-169). 

Mr. Todd testified that the roof was draw rock and that it would crack 

up as soon as coal was extracted or even a week afterwards. He indicated 

that header boards on each pin were used to keep the draw rock from breakj_ng 

up, and that they had discovered a pattern of slips in the roof from the 

roof falls which had occurred earlier in the year. In the No. 6 entry they 

noticed water leakj_ng in the top and had set two rows of timbers down the 

middle of it (Tr. 167-179). 

On cross examination, Mr. Todd admitted that the face and rib support 

around the powder box would not help if the roof fell. He also stated that 

the magazine was not literally snug against the corner since a timber 

separated the magazine from the back wall. He testified that the pattern of 

slips was used to predict the next area of slips. Once they found the top 

breaking up they would trussbolt it. He stated that the February 2 fall was 

impossible to predict since the only indication of bad condition was the 

water coming out of the top (Tr. 190-196). 

Jim Allen, safety manager for Peabody Coal testified that he had prepared respondent's Exhibit 4 showing the area of the roof fall in the No. 6 

entry. He had investigated the circumstances surrounding the issuance of the 

104(d)(l) order and took down measurements and observed the roof conditions. 

Mr. Allen stated that the mouth of the crosscut measured 25 feet and that 

this was a violation of the roof control plan. He testified that the timbers 

around the powder box was a practice initiated under an old enforcement 

policy which was no longer in effect (Tr. 230·-334). 

267ti 
On recall, Mr. Parks testified that he did not dispute Mr. Todd's 

testimony that one rib was deliberately cut down with a cutting machine. He 

agreed that it was sheared by the machine to allow the shuttle car to come 

around it. He indicated that the stress cut ran through the crack made by 

the cutter, and was bad enough to indicate a potential roof fall 

(Tr. 260-261). 

Findings and Conclusions 

Contestant has challenged the section 104(d)(l) Citation No. 1032760 

issued to it for an alleged violation of 30 C.F.R. § 75.1306. Section 

104(d)(l) of the Act provides in part, that 

(d)(l) If, upon any inspection of a coal or other mine, 

an authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, such 

violation is of such nature as could significantly and 

substantially contribute to the cause and effect of a coal 

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

violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety 

standards, he shall include such finding in any citation 

given to the operator under this Act. 

Therefore, in order for the citation in question to be valid, MSHA bears the 

burden of showing that a violation of 30 C.F.R. § 75.1306 existed, that it 

was of such a nature as could significantly and substantially contribute to 

the cause and effect of a coal or other mine safety or health hazard, and it 

was caused by the unwarrantable failure of the operator. 

Fact of Violation 

Peabody Coal Company is charged with a violation of 30 C.F.R. § 75.1306, 

which provides as follows: 

When supplies of explosives and detonators for use in 

one or more working sections are stored underground, they 

shall be kept in section boxes or magazines of substantial 

construction with no metal exposed on the inside, located at 

least 25 feet from roadways and power wires, and in a dry, 

well rockdusted location protected from falls of roof, 

except in pitching beds, where it is not possible to comply 

with the location requirement, such boxes shall be placed in 

niches cut into the solid coal or rock. 

Under this standard, MSHA must show first that the powder magazine in question was located in an area where there was a possible danger of a roof fall. 

Once this fact is established, the Secretary must prove that the magazine was 

not adequately protected from a potential roof fall. 

267fi 
The evidence of record indicates that the No. 7 unit, in which the 

alleged violation occurred, was the site of five reported roof falls in the 

previous 4 months (Exhs. G-6 and G-7). The most recent roof fall of 

February 1, 1981, had taken place next to an intersection which bordered the 

roomneck in which the powder magazine was located. Cracks and deteriorated 

roof were visible and extended from the area of the roof fall into the 

roomneck containing explosives. While the operator contends that these roof 

fractures were caused by a cutting machine rather than by the stress of the 

roof fall, the testimony and evidence supports an opposite conclusion. 'l;'he 

inspector stated that the cracks originated at the brow of the fall and ran 

almost 25 feet to the magazine. Jeffrey Bevins substantiated this observation. Mr. Willis testified that they had been having problems with the :roof 

in No. 7 unit and that he had been shown the cracks by Mr. Parks on 

February 3, 1981. Additionally, he described the cracks as being narrow and 

noted that those made by cutting machines are usually 6 to 7 inches wide. 

Mr. Bevins also indicated that cutting machine fractures were very distinct 

from stress fractures. Therefore, even though Mr. Todd asserted that there 

was only a small stress crack which did not run toward the powder box and 

another crack which had been caused by a cutter bar, the preponderance of 

the evidence warrants the conclusion that the roof near the powder box contained deteriorated or fractured roof. The description of the cracks, their 

location, and the inspector's familiarity with roof conditions and potential 

problems indicates that there was a possible danger of a roof fall in the 

area where the powder magazine was located. 

The issue then becomes whether the magazine was adequately protected 

from a roof fall. While Mro Todd initially contended that the face and left 

rib of the room neck provided support for the powder magazine, he later 

admitted that these surfaces would give no protection in the event of a roof 

fall. Roof bolts but not crossbars had been placed in the roof over the 

powder magazine. The three timbers that surrounded the explosive's box provided the only protection for it. Considering the history of roof falls in 

this entry and the fact that the inspector cited the operator with a violation of the roof control plan on this same day near the same intersection 

shared by the roomneck in question, the operator should have provided the 

powder magazine with additional protection. The method of abatement which 

included timbering and correcting the wide entry in the intersection indicates that such additional protection was possible. Under the circumstances 

of this case, I find that MSHA has established by a preponderance of the 

evidence that there was a danger of a roof fall and that the powder magazine 

was not adequately protected. Accordingly, a violation of section 75.1306 

has been established and the citation is AFFIRMED. 

Significant and Substantial Contribution to the Cause and Effect of a Mine 

Safety Hazard 

In Secretary of Labor v. Cement Division, National Gypsum Company, 

3 FMSHRC 822, 825 (1981), the Commission defined the phrase significant and 

substantial violation as being one if, "based upon the particular facts 

surrounding [the] violation, there exists a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of a reasonably 

267'1 
serious nature." In making this determination, the Commission noted that 

"the inspector's independent judgment is an important element in making 

significant and substantial findings, which should not be circumvented." 

Here the facts show that there was a danger of a roof fall in the area 

where the powder magazine was located. As the inspector stated in his 

-report, "there is enough evidence to believe that the intersection might 

fall." (Exh. G-2). If a roof fall had occurred over the magazine, the 

explosives could detonate causing fatal injury. Since the inspector found 

that over 10 persons could have been affected by such an explosion, this violation presented a hazard that was of an extremely serious nature. Leaving 

aside the inspector's opinion on this violation, I find that the fact of 

violation, together with the fact that men worked in this entry satisfies 

the Commission's requirements for a significant and substantial violation. 

Any explosion in a mine could result in an injury of a reasonably serious 

nature. Therefore, MSHA has established that the violation of section 

75.1306 was of such a nature a~ could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health 

hazard. 

Unwarrantable Failure 

A violation of a mandatory standard is caused by an unwarrantable 

failure to comply with the standard where "the operator involved has failed 

to abate the conditions or practices constituting such violation, conditions 

or practices the operator knew or should have known existed or which it 

failed to abate because of lack of due diligence, or because of indifference 

or lack of reasonable care." Zeigler Coal Company, 7 IBMA 280, 295-296 

(1977). The evidence in this case, while not showing indifference on the 

part of the operator, does show knowledge of deteriorating roof conditions 

and a lack of reasonable care. 

The inspector listed several factors which led to his issuance of an 

unwarrantable failure citation. The roof was cracked and broken and should 

have been observed by the operator. Additionally, the powder magazine was 

located near a roof fall and near an obvious violation of the roof control 

plan in that a crosscut was too wide. The inspector testified as to prior 

roof falls and the general bad condition of the roof. He stated that he was 

worried about the attitude of the operator and its employees. They were 

proud of the fact that no person had been injured due to rock falls. If the 

roof started breaking, they would then bolt it or timber it, but they would 

not take any preventative measures (Tr. 37-41). Jeffrey Bevins verified 

this practice of "wait and see" by the operator. He noted that there had 

considerable problems with roof falls, bad tops and fractures, and that "it 

fell in before we could do anything." (Tr. p. 111). 

The operator's witness, Mr. Todd, testified that it was impossible to 

predict the fall of February 2, 1981, since the only indication of a Lad 

condition was the water coming out of the top (Tr. p. 176). He stated that 

they had been studying the pattern of slips and trussbolting the roof 

2678 
according to the pattern of roof falls. Since the area where the powder 

magazine was located was outside the predicted roof fall zones, they had not 

considered it to be dangerous (Tr. 209). 

Having considered the testimony and evidence presented, it is apparent 

to me that the operator was aware of the bad roof conditions in the No. 6 

entry. I have found that the powder magazine was not adequately protected 

and the resulting explosion could result in serious injury and I find that 

the violation of section 75.1306 was caused by the unwarrantable failure of 

the operator. Accordingly, the citation issued under section 104(d)(l) is 

valid. 

Civil Penalty 

Negligence 

Although I have found that the violation of section 75.1306 was caused 

by the unwarrantable failure of the operator, I do not conclude that the 

operator was grossly negligent. The facts show that the operator had provided some protection for the powder magazine in that three timbers 

surrounded it. The operator contends that the roof around the magazine was 

not deteriorated and it was not necessary to put up crossbars or additional 

timbers. While I do not agree with this latter contention by the operator, 

I find that the failure to exercise reasonable care with regard to the powder 

magazine constitutes ordinary negligence. 

Gravity 

The finding that this was a "significant and substantial violation" 

warrants the conclusion that this was a serious violation. As Mr. Parks 

noted in his report, even if the roof fall itself did not cause an explosion, 

the aftermath of the roof fall or subsequent recovery of the magazine might 

cause the powders to detonate. (Exh. G-2). Accordingly, this violation was 

serious. 

Good Faith Compliance 

The inspector stated in his report the violation was abated within the 

time specified and he considered this to be normal compliance. At the 

hearing, however, Mr. Parks testified that mine management corrected the 

condition as quickly as possible once the violation was brought to their 

attention. This indicates rapid-compliance and I have considered this in 

assessing the penalty for this violation. 

Size of Business and Effect of the_?enalty on ReDpondent's Ability ~o 

Continue in Business 

The parties have stipulated that Peabody Coal is a large operator and 

that the penalty which I impose will not affect its ability to remain in 

business. I have adopted this stipulation in making my assessment of a civil 

penalty. 

2679 
History of Prior Violations 

The assessed violation history report filed in this proceeding indicates 

a rather extensive history of violations in the 2 years preceding the issuance 

of the citation in question. Particularly, I have given considerable weight 

to the fact that the company was cited for five roof control violations in the 

No. 7 unit during a 4-m.onth period ending with the February 1, 1981, roof fall. 

This history of roof falls is reflected in the civil penalty assessment. 

Penalty Assessment and Order 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude that a 

civil penalty in the amount of $1,000 is reasonable and appropriate for 

Citation No. 1032760, and respondent is ORDERED to pay the penalty within 

thirty (30) days of the date of this decision • 

Dist ri bu ti on: 

. 

~~e ~~~~ C-Koutras 

Administrative Law Judge 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of 

Labor, U.S. Courthouse,.801 Broadway~ Room 280 9 Nashville, TN 37203 

(Certified Mail) 

Thomas R. Gallagher, Esq. 9 Peabody Coal Company, Box 235 9 St. Louis, 

MO 63166 (Certified Mail) 

2680 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CARROLL D. TENNEY, Complaint of Discrimination 

Complainant 

Vo Docket No. WEVA 80-279-D 

EASTERN ASSOCIATED COAL CORPORATION, 

Respondent 

Federal No. 2 Mine 

Appearances: 

DECISION 

J. Montgomery Brown, Esq., Attorney at Law, 

Fairmont, West Virginia for Complainant, 

R. Henry Moore, Esq., and Sally S. Rock, Esq., 

Pittsburgh, Pennsylvania, for Respondent. 

This proceeding arises under section 105(c) of the Federal Mine Safety 

and Health Act of 1977. A hearing on the merits was held in Morgantown, 

West Virginia, on August 25, 26, 27, 1981, and September 9, 10, 1981, at 

which both parties were represented by counsel. On September 10, after 

consideration of evidence submitted by both parties and proposed findings 

of fact and conclusions of law proferred by counsel during closing argument, 

a decision was entered on the record without benefit of transcript. This 

bench decision appears below as it appears in the transcript aside from 

minor corrections: 

PROCEDURAL BACKGROUND AND STATEMENT OF THE CASE 

This proceeding was initiated by the filing of a complaint in letter 

form by Mr. Carroll D. Tenney on April 9, 1980. Mr. Tenney had previously 

filed a complaint of discrimination with the Mine Safety and Health Administration. By letter dated February 5, 1980 (Exh. R-9), MSHA advised Mr. Tenney 

that after an investigation it had been determined that a violation of section 105(c) had not occurred. Under the Federal Mine Safety and Health Act 

of 1977, a complaining miner has an independent right to bring a complaint 

and this proceeding is based on that right. The Complainant contends that 

he was discharged because of his activities as a safety committeeman for 

approximately 3-1/2 years during the period 1974-1977 and for otherwise 

insisting on rigid safety practices during his tenure as an employee of the 

Respondent. The Complainant alleges that there were several instances where 

he had either been disciplined or harrassed for his safety activity and that 

he was discharged by Respondent in retaliation therefor. He also alleges 

that his discharge which resulted from his admitted refusal to obey an order 

on November 30, 197 9, to walk down a haulageway to his work place, was a 

setup, that is, it resulted from a plan or a conspiracy set up by Respondent's management to effect his removal. 

2681 
Respondent denies the various allegations made by Complainant, denies 

that Complainant's discharge was the result of a conspiracy, and contends 

that Complainant made no safety complaint on November 30, 1979. Respondent 

charges that Complainant did not refuse to walk down the haulageway for 

safety reasons, but that he based his refusal on his right under the Union 

contract to be given a ride to his work place. If this contention is valid, 

then Mr. Tenney's remedy would appear to be confined to the grievance and 

arbitration procedures provided in the labor agreement. 

Respondent also contended that Mr. Tenney's evidence should be limited 

to allegations of discrimination within the period of the statute of limitations and that the Complainant should not be permitted to attempt to prove 

a course of discriminatory conduct going back some 10 years. 'Ihe Respondent's motion in limine to so limit Complainant's evidence was denied by me 

by order dated~y 20, 1981, in which I held that such evidence of prior 

incidents might be relevant to establish discriminatory motivation. This 

ruling, I must note at the outset, may be contrary to the decision of the 

Mine Safety and Health Review Commission in Local Union 1957, UMWA v. 

Southern Ohio Coal Company, 2 FMSHRC 3472 (December 9, 1980), which held by 

clear implication, although not expressly stated, that discriminatory motivation is not an essential element of proof for a complainant in a discrimination proceeding, even under the 1969 Act. 

The primary and decisive issue is whether the Complainant on November 30, 

1979, at the time he refused to obey an order from his foreman, Augustine 

Nunez, to walk a haulageway to his work place, was engaged in a protected 

activity. A subsidiary question is whether Complainant raised the issue of 

safety at this time, or more generally, whether any safety complaint or 

description of unsafe conditions was raised by Complainant. Other questions 

which were litigated in this proceeding were whether or not the haulageway 

in question was safe, whether or not Mr. Tenney was a satisfactory employee, 

whether or not there was evidence of a pattern of harrassment on the part of 

the Respondent directed against Mr. Tenney because of his activities as a 

safety committeeman or otherwise because of his safety practices, and whether 

or not Respondent treated Mr. Tenney differently from other employees 

similarly situated in connection with his discharge as well as other incidents which Mr. Tenney has complained of during the period 1974 through 1979. 

To establish a prima facie case of discrimination under section 105(c) 

of the Act a complainant must establish by a preponderance of the evidence 

(1) that he engaged in a protective activity and (2) that the adverse action 

was motivated in part by the protected activity. Pasula v. Consolidation 

Coal Company, 2 FMSHRC 2786 (1980). Complainant must establish these elements by a preponderance of the evidence, Secretary of Labor v .• Richardson, 

3 FMSHRC 8 (January 19, 1981). 

At the outset of the hearing the parties stipulated that Complainant 

worked at Respondent's Federal No. 2 Mine until he was discharged on 

November 30, 1979. 'Ihe parties subsequently stipulated that his employment 

268:~ 
commenced in 1969, and I would footnote that it appears that Mr. Tenney 

actually was discharged on December 3, 1979, based on incidents which 

occurred on November 30, 1979. The parties also stipulated that this 

federal agency has jurisdiction over the parties to and the subject 

matter involved in this proceeding and, with respect to Complainant, that 

he had not been employed by Respondent since November 30, 1979, that on 

November 30, 1979, Complainant was working on the day shift, and that 

Complainant served on the mine safety committee from January 13, 1974, 

through April 13, 1977. In addition, the parties stipulated that Respondent has a payroll of 650 employees, that employees of Respondent other 

than Mr. Tenney have in the past received disciplinary slips for failure to 

clock in and for unsatisfactory performance of duties, and finally, that 

the distance that Mr. Tenney was ordered to walk on November 30, 1979, was 

2,500 feet and that the distance Mr. Tenney had been ordered to walk in 

another incident on February 17, 1977, was 6,700 feet. 

The general parameters of the factual material relevant in this proceeding were covered from Complainant's standpoint, by Mr. Tenney's initial 

pleading herein, and by his testimony. 

ANALYSIS OF THE EVIDENCE AND PRELIMINARY FINDINGS 

Mr. Tenney is presently 37 years of age and he has a high school education. He is married and has three children and he has worked only 2 weeks 

since November 30, 1979. He has been employed as a general inside laborer 

and (he thereafter) progressed to the top paying job at the mine, roof-bolt 

machine operator. His total mining experience has been over a period of 

approximately 12 years. Mr. Tenney was originally employed at the Federal 

No. 2 Mine of Respondent from August 1968, to March of 1969, at which time 

he was discharged for illegal picket line activity. Subsequently, he was 

rehired by Respondent at its Federal No. 1 Mine where he worked for approximately 8 months at which time he returned to the Federal No. 2 Mine where he 

worked as a general laborer for several months and then became a roof bolter. 

With respect to the incidents of November 30, 1979, Mr. Tenney testified that at this time he was a roof bolter on the day shift and he arrived 

at work at 7:30 a.m. At approximately 10 minutes to 8, the cage (elevator) 

took h.im to a waiting room in the A-section where his roof-bolter helper, 

Jimmy Moore, and his foreman, Augustine Nunez, were waiting. Approximately 

four blocks from the waiting room is an 80-foot block area with steel doors 

on one side called the "transportation foreman's shanty." This shanty is 

shown as "X" on Exhibit R-2, a map of the mine. Mr. Tenney had not previously 

worked with Nunez as his foreman, other than the day before, November 29, 

1979. An area called "old eleven switch," located about 2,500 feet down the 

haulageway in question from the "shanty", was the projected work place for 

Tenney and Moore, it being the same place they had worked the day before. 

On November 29, Tenney, Moore and Nunez had been transported from the shanty 

to the old eleven switch by a supply jeep driven by one John Long. According 

to Mr. Tenney, on November 30, the transportation foreman, Ed Jones, told 

Nunez that the jeep would be "down" an hour to an hour and a half. Nunez 

then told Moore and Tenney that no transportation was available and said 
"We' 11 have to walk." Tenney said, "I told Nunez we would not walk up 

there." Tenney said, "I told Nunez under the contract we were entitled to 

a safe ride up there." I footnote at this juncture that Respondent's witnesses deny that Mr. Tenney used the phrase "safe ride" and allege that he 

only used the word "ride." Based upon subsequent holdings herein, I find 

this to be a distinction without a difference insofar as the resolution of 

the ultimate issues are concerned. 

Mr. Tenney (testified) that the top in the area was low, that it had 

fallen in several times, that it had to be repaired constantly, and that the 

track had curves and bends in it. Mr. Tenney said he knew of the conditions 

along the haulageway as a result of his having been on the safety committee 

and that after his tenure as committeeman he had heard rumors that there had 

been falls. Mr. Tenney indicated that he kept close watch on the bulletin 

board after he was removed from the safety committee to see what kind of 

violations were being written and where. This accounts for his awareness of 

conditions in the mine and presumably along the haulageway. Mr. Tenney also 

testified that in May 1979, he injured his neck and had 3 days of therapy 

at a hospital in October 1979. Because of a low top along the haulageway, 

he did not want to bend over and reinjure his neck. Other complaints 

expressed by Mr. Tenney concerning the haulageway during this proceeding 

were that the crosscuts along the haulageway which were designated as "manholes" contained cribs and posts which would cause a "hassle" for a miner 

walking along the haulageway to get into and out of the way of any incoming 

or outgoing motor or other vehicle traveling along the haulageway. Mr. Tenney 

mentioned that there had been incidents where portal buses had run into each 

other in this area and that on one occasion after a portal bus had run into 

a wire Respondent had cut down the height of the portal buses. 

With respect to the conversation he had with Foreman Nunez, Mr. Tenney 

indicated that both Moore and he told Nunez that they would not walk the 

haulageway and that Nunez then called outside and other work was obtained 

in another area where cribs had fallen down creating an emergency. This 

development which is critical will be discussed at greater length 

subsequently. 

Mr. Tenney indicated that from 8:10 a.m. to 10:30 a.m. he and Moore 

performed the emergency work, sometimes referred to in the record as "crib 

work," and that approximately 15 minutes into this work he and Moore saw 

the supply jeep which was reported to be broken down. 

Thereafter, at approximately 10:30 a.m., Moore and Tenney returned to 

the shanty which was occupied by Nunez, Dale Gallagher, the general assistant 

mine foreman, foreman Gene Lamb, and foreman Frank A. "Rock" Hudson. According to Tenney, Nunez came out of the office and said, "You' re going to have 

to walk." Nunez said that the jeep was at One West. Tenney asked how long 

it would be before the jeep would return. At this point, Gallagher came outside and said, "It would make no difference, you' 11 have to walk." According 

to Tenney, he said to Gallagher "I want a safe ride to my working section," 

and Gallagher said, "If you're not going to walk get your bucket and let's 

2684 
go." Being told to "get your bucket" in terms of the parlance or jargon 

prevalent in the Federal No. 2 Mine means that a miner is being subjected 

to some form of disciplinary action. 

Significantly, Mr. Tenney admitted that on the way out of the mine 

Mr. Gallagher said to him, "Take my advice and walk," to which Mr. Tenney 

replied that he would not walk. 

When Gallagher and Tenney arrived at the office of the general mine 

foreman, Clifford Dennison, according to Tenney, while he was waiting for 

Dennison, he told Gallagher that he wanted a mine committeeman to go in with 

him. The events which occurred in Hr. Dennison's office are the subject of 

some dispute and findings will be made subsequently with respect thereto. 

Suffice it to say at this point that Mr. Tenney .indicated that he complained 

in terms of safety to Mr. Dennison, which is denied by Mr. Dennison and by 

the assistant mine foreman, Mr. Gallagher. At this time, Dennison filled out 

a disciplinary slip entitled "Notice of Improper Action" (Exh. C-10 a) which 

appears to originally have been completed showing, "disobeying order," and 

changed to "disobeying safe and reasonable order," with the word "order" as 

originally used, being stricken. Complainant contends that this shows that 

the subject of safety was brought up in Mr. Dennison's office which is why 

the change was made. 

Mr. Tenney went on to describe various incidents which occurred. during 

his employment, commencing with his discharge for illegal picketing on 

March 28, 1969, and his receiving a discipline slip for unsatisfactory work 

on November 28, 1969, which, because of its remoteness, I find is irrelevant 

to the issues involved in this proceeding either to show a pattern of 

harrassment, discriminatory motivation or the quality of employee 

Complainant was at anytime material herein. 

In one incident which occurred on May 8, 1974, Mr. Tenney was observed 

engaging in an unsafe practice when he walked under a boom and he was given 

a disciplinary slip. Mr. Tenney admitted. committing this infraction and filed 

no grievance or complaint as a result thereof. Mr. Tenney also admitted that 

it might be an unsafe act and, in vague terms, indicated that no grievance 

was taken in order not to influence others into engaging in the same practice, 

or words to this effect. In connection with this May 8, 1974, incident, 

Mr. Tenney was observed by Mr. George Tippner, an assistant mine foreman, who 

testified that at the time he mentioned to Tenney that it was a violation of 

company policy and federal law to walk under an unblocked piece of equipment. 

Mr. Tippner indicated that this was a flagrant violation and that since 

Tenney was on the safety committee at the time it set a bad example. 

Mr. Tenney also testified concerning his receiving a disciplinary slip 

on September 20, 1975, for failing to clock out. He admitted that he forgot 

to punch out and that he filed no grievance with respect to this incident. 
Mr. Tenney also described an incident which occurred on October 23, 

1975, when he was running a transfer feeder under the supervision of foreman 

Rock Hudson. According to Mr. Tenney, the belt would not run because coal and 

dust had pushed the belt off of the rollers. Mr. Tenney turned the power off 

after which Hudson came down to the belt and asked what was going on. According to Mr. Tenney, Hudson told him not to shut the belt down again and if he 

did it again he, Hudson, would "kick his ass." Mr. Tenney filed no grievance 

or complaint with respect to this incident, although he did apparently discuss 

the matter with his safety committee chairman. Mr. Tenney received no disciplinary slip as a result of this episode. Mr. Hudson, in his testimony, 

denied that he reprimanded Mr. Tenney on this occasion and I find, after considering the testimony of Mr. Tenney and Mr. Hudson, that no reprimand was in 

fact given, that any harsh language, if such was used by Mr. Hudson, was not 

disciplinary in nature, and that Mr. Hudson's concern about the belt being 

shut down was justified. 

I find that this incident, as well as all those previously discussed in 

1969, 1974, and 1975, involved no harrassment on the part of the Respondent 

directed toward Mr. Tenney. Nor is there, in any of the conversations which 

occurred during these episodes, evidence of discriminatory motivation or an 

anti-safety frame of mind on the part of the Respondent. Indeed, most if not 

all of these infractions were admitted by Mr. Tenney. 

Proceeding now to subsequent episodes related by Mr. Tenney, on 

January 28, 1977, while he was still on the safety committee, Mr. Tenney 

testified he received two slips, one for not punching in, one for not punching out. Mr. Tenney claims with respect to this incident that he did not 

know they were in his personnel folder until he was discharged and it came 

up at his· hearing. I find no evidence of harrassment, discriminatory motivation or animus towards Mr. Tenney generally contained in this episode based 

on the evidence presented, nor do I find that it played a part in Mr. Tenney's 

being discharged in view of the testimony of John Hetrick, the mine superintendent, who indicated that he gave no weight to it at the Step 2 stage of 

the grievance procedure. More specifically, I find that Hetrick' s decision 

to effectuate the discharge of Tenney at this stage of the grievance procedure was based on the fact that Mr. Tenney in a similar situation on 

February 18, 1977, had refused to obey an order to walk to his work place 

and was disciplined. This episode will likewise be discussed in more detail 

subsequently. 

Mr. Tenney contends that part of the Respondent's pattern of discrimination directed towards him for his engagement in safety activities was the 

fact that he was removed from the safety committee in February 1977. As a 

mine safety committeeman, Respondent's evidence shows, Mr. Tenney had more 

power than other miners in the mine including the power to close the mine in 

the event of an imminent danger. On December 29, 1976, Mr. Tenney exercised 

this power when he handed the general mine foreman a report stating that an 

imminent danger existed on Section Six Left. The details of this incident 

are best described in Exhibit R-10 which is the Arbitrator's Decision dated 

April 13, 1977, upholding Mr. Tenney's removal from the safety committee at 

268f; 
the request of Respondent for the reason that Mr. Tenney's action in closing 

down the section was arbitrary and capricious. The burden of proof on the 

Respondent in the Arbitration Proceeding to effectuate the removal of Tenney 

as safety committeeman was to show that his actions were arbitrary and 

capricious. At Page 15 of Exhibit R~lO, Arbitrator Jay Scott Thorpe stated 

that Tenney was confronted with three alternatives under the contract in 

seeking a cure to the problem involved: 

First, he could proceed as he did, by declaring an 

imminent danger, and facing the possible consequences of 

being removed from the safety commit tee. Secondly, he could 

file a safety grievance, and let an arbitrator decide the 

matter if the company failed to lay the necessary track. If 

such a grievance had been filed in the past, the matter 

might have been long since resolved. Thirdly, Tenney, or any 

of the other employees in the section (particularly those who 

testified that an imminent danger existed), if they had 

reasonable grounds to believe that they were required to work 

under conditions abnormally and immediately dangerous to 

himself beyond the normal hazards inherent in the operation 

which could reasonably be expected to cause death or serious 

physical harm before such condition or practice could be 

abated, had the right to notify their supervisor of such a 

belief under Article III, Section (i)(l), and if the situation was not corrected, could be relieved from duty. None of 

the persons on the sec ti.on, including Tenney, availed himself 

of this remedy. 

The Arbitrator went on to indicate that the declaration of an imminent 

danger must not be based on mere whim or will of a safety committeeman and 

found that, "Tenney's action was without fair, solid and substantial cause 

and was not based upon the rules fixed by the contract and therefore must be 

considered arbitrary and capricious." 

Mr. Tenney testified in the instant proceeding that he was thinking of 

taking action against the Respondent for having him removed from the safety 

committee but that he was fired before it went through. Mr. Tenney indi~ 

cated that after he was removed from the safety committee, shortly thereafter 

he was taken off of roof bolting by Respondent and thereafter he worked 

approximately 90 percent of the time shoveling. Other duties he performed 

were picking up papers on the section, driving a truck, and similiar chores. 

On February 18, 1977, Mr. Tenney was given a disciplinary slip for 

refusing to walk to his work place (see Exhs. R--6 a, b, and c). Th.is inci--

dent, together with the episode involving his removal from the safety com~ 

mittee, constitute the very critical incidents out of the numerous episodes 

which Mr. Tenney has listed--from the standpoint of the issues involved in 

this proceeding. The disciplinary slip indicated Mr. Tenney was to be 

suspended for 5 days with intent to discharge. Respondent has clearly 

established that insubordination or a miner's refusal to obey any direct 

268'1' 
order is a dischargeable offense and not subject to what is called the 

Respondent's "progressive disciplinary plan" which for minor infractions 

requires preliminary warnings and a progressive upgrading of discipline 

before a miner can be discharged. 

Mr. Tenney's punishment for refusal to walk on February 18, 1977, became 

the subject of a grievance filed by Mr. Tenney on March 7, 1977. The Arbitrator's Opinion and Award (Exh. R-13) sets forth the salient details of this 

episode and Pages 2 through 5 thereof are incorporated herein by reference. 

See At tac hmen t "A" • 

I find that in the respects material to this proceeding the incident of 

February 18, 1977, is similar to the circumstances involving Mr. Tenney's 

refusal to walk in this proceeding. The critical provisions of the National 

Bituminous Coal Wage Agreement of 1978 (Court Exh. 1) was involved in both 

episodes. Article III, section (0)8 of this contract provides: "The 

employer shall provide a safe man trip for every miner as transportation in 

and out of the mines, to and from the working section." Harold G. Wren, the 

Arbitrator, reached the following conclusions: 

For several reasons, the Union's argument that the 

Company is required at all times to provide transportation 

for miners to their work stations must be rejected. In the 

first place the clause in the contract is found in 

Article III, dealing with matters of "Health and Safety." 

Its purpose is to insure the safety of every employee; it 

does not purport to confer an additional benefit on the 

employee. To the extent that an employee can proceed to and 

from his work station safely during the course of his working 

hours, the company is not required to provide vehicular 

transportation. There may be situations where considerations 

of health and of safety would require that the company provide 

some form of motor transportation. But in the case before us, 

Grievant was capable of walking to his work station without 

jeopardizing the health or safety of himself or other 

employees." 

Secondly, the clause is concerned with transits "in and 

out of the mines" and "to and from the working section." 

These phrases refer to those activities occuring at the 

beginning and end of every shift. 

* * * * * * * 

Thirdly, to construe section (0)(8) in the manner that 

the Union suggests would place an unrealistic burden on the 

Company's facilities for its day-to-day operations. While 

management may be expected to utilize the various types of 

motor transport within the mine to aid employees as much as 

possible, normal considerations of efficient operation require 

2688 
that the transportation facilities be used primarily to meet 

the needs of production. Transportation of personnel within 

the mine during the course of a particular shift must 

necessarily take a second priority to the Company's operational requirements. It was not unreasonable for the company 

to ask Grievant to walk to his work station, a distance of 

6,700 feet, or approximately 1.27 miles. Grievant knew the 

area well. 

The Arbitrator went on to find Mr. Tenney "technically guilty of 

insubordination" and concluded that a punishment of 4 days (Respondent 

after investigation had reduced the initial 5-day suspension, Exh. R-6) 

was too severe for such an infraction. 

Finally, with respect to the listing of incidents relied on by Mr. Tenney 

to show either harrassment, discriminatory motivation, or disparate treatment, 

three final episodes of exceedingly minor importance will be mentioned. 

Mr. Tenney testified that sometime in the winter of 1978 Bill Lemley, 

who is believed to be either mine foreman or assistant mine foreman at the 

time, caused an unsatisfactory work slip to be given to Mr. Tenney. A 

grievance was filed, according to Mr. Tenney, but management removed the 

slip at the conference stage of the procedure. 

Again, in August 1979, Mr. Tenney recalls an incident where he observed 

an unsafe practice and caused it to cease. In his testimony and in his initial complaint herein, this incident is described. According to Mr. Tenney, 

he was working on One West Transfer. The transfer was about 10 blocks from 

the section. On this day, the supply crew was putting supplies on the sec·-

tion. At quitting time, Mr. Tenney went to the track where they had left 

him off that same morning. In his complaint, Mr. Tenney goes on: 

I waited for the bus to catch a ride back. The supply 

crew was coming out, and I saw cap lights all over the two 

motors. The men, including Jack Shear the foreman, were 

riding on the motors, on the bumpers and in the deck with 

the motormen. This is against state and federal law. When 

they got to me they said, 'get on, 1 I said no, I would not 

ride the motor out because it was dangerous to ride out like 

that. The boss said to bring the bus up, and we rode out on 

the bus. 

Again, in his testimony and in his initial complaint a final incident 

was described by Mr. Tenney as follows: 

On September 18th, 1979 they switched me from day shift 

to afternoons. I told them that, according to the contract, 

they should not put me on afternoons, because they had general 

laborers bolting on the day shift, and I was a classified 

bolter. I told the superintendent that they had made a mistake, and that they needed to switch me back to day shift. 

268~J 
After telling them that I was going to file a grievance, they 

told me that they would check with Joe Luke tic and find out if 

they had made a mistake. Evidently they checked, found they 

had made a mistake and placed me back on day shift. I feel 

this was another form of harrassment." 

I find these last two incidents more as evidence that the Respondent did 

not interfere with or attempt to stop Mr. Tenney's ultra-safe approach to 

safety, and the last event was one where the Respondent apparently acquiesced 

to another one of Mr. Tenney's demands without any evidence of rancor or 

other reaction indicating anger or a retaliatory frame of mine. 

Mr. Tenney in his testimony and in his initial pleading described a 

final episode which occurred on the same day as the last incident described, 

September 18, 1979. According to Mr. Tenney, 

There was another incident where I refused to work in an 

unsafe condition. A crew of men were sent to pick up all the 

trash in a given section. A foreman told me to pick up trash 

on the wire side. I said the wall was not guarded, and I 

wouldn't work under it. So, I worked on the clearance side 

while three or four men worked under the wire. 

This incident, as well as the preceding three incidents, show not the 

pattern of harrassment as contended by Mr. Tenney, or continuing animus on 

the part of Respondent, but rather they show a pattern of the Respondent's 

foremen acquiescing to Mr. Tenney's demands, one of which was a contract 

demand. This completes the listing of numerous episodes raised by Complainant some of which will be discussed subsequently herein insofar as they 

relate to other issues. It is found that these incidents, whether considered individually or cumulatively, do not establish a pattern of harrassrnent by Respondent. 

Returning now to the critical incident on November 30, 1979, which 

resulted in Mr. Tenney's discharge, his claim that a conspiracy existed 

primarily must rest on the testimony of then transportation foreman, Edward 

Jones. Mr. Jones testified that on November 30 he arrived at the mine at 

6 a.m., at the shanty at 6:45 a.m., and that he received a call from 

Clifford Dennison, the general mine foreman. In his testimony, Mr. Jones 

was inconsistent as to the exact time this phone call took place, but indicated that Dennison told him "not to give Tenney transportation back to the 

job," or words to that effect. According to Jones, Dennison gave no reason. 

Jones said, "I knew the reason, it was because Tenney was on the safety 

committee." Jones said that, "we've been holding it against Tenney since he 

was on the safety committee." Jones then told Tenney that no transportation 

was available. 

Mr. Jones then testified that Tenney and Moore went down to repair the 

cribs and that when th~y came back he told Jimmy Moore, "you'd better get 

away from here, because Tenney is going to get fired." I footnote that 

26BO 
Jimmy Moore did not confirm this latter testimony. Mr. Jones said that later 

in the day he heard Mr. Gallagher and Mr. Dennison talking in the shanty and 

they said something to the effect, "Well we finally got him." Mr. Jones 

said that they talked and joked about it. 

Jones indicated that he had filed a "law suit" with the Equal Employment 

Opportunity Commission against Respondent for race discrimination (he is a 

Negro), harrassment on the job, and age discrimination (he is 56 years old). 

This EEOC proceeding was filed sometime from July-September 197 8, or mor:e 

than a year before the Tenney discharge. The EEOC proceeding is still 

pending. Mr. Jones was transportation foreman from November 1979, until 

July 2 5, 1981. 

The roof-bolter helper for J:.tr. Tenney on November 30, James E. (Jimmy) 

Moore, likewise is an important Complain.ant's witness. On November 30, 

according to Mr. Moore, after Nunez ordered him and Tenney the first time 

(at approximately 8:15 a.m.) to walk up the haulageway to their work place, 

Tenney said he was not going to walk and that it was unsafe to walk up there. 

Moore said that Nunez got on the phone and talked to Gallagher at this point 

and that subsequently he and Tenney walked to the emergency crib job which 

was 500 to 600 feet away. Mr. Moore said that in terms of custom and practice in the mine it was customary for miners to go to the transportation 

shanty where they would get a ride to go to work, it was common to wait for 

a ride and, if it was going to take a while the miners would be assigned 

to pick up papers, etc. Mr. Moore said that he thought Tenney and he got 

these "work while waiting" assignments more than other miners. 

On cross-examination, Mr. Moore confirmed that he refused to walk the 

first time, meaning that on November 30, as the record shows, there were 

two occasions when he and Tenney were asked to walk down the haulageway to 

their work assignment--at 8:15 a.m., approximately and 10:30 a.m., approximately. Mr. Moore admitted that he might have said, "I won't walk up there 

because there won't be anything for me to do without Carroll." Mr. Moore 

also said that he saw the jeep go by shortly after they had gone to work on 

the emergency crib job and on cross-examination, when told that Mr. Tenney 

was uncertain whether he had explained to Foreman Nunez why he thought walking down the haulageway was unsafe, said: I think he did tell him." 

(Emphasis added.) Mr. Moore was unable to recall the specific names of 

other miners who did not pick up papers while waiting for transportation at 

the shanty. Mr. Moore said that he was not aware that the transporta ti.on 

foreman had standing orders to assign work to miners waiting for 

transportation. 

With respect to the 10:30 a.m. conversation with Nunez-·-after Tenney and 

he had returned to the shanty--Mr. Moore indicated that after Nunez said they 

would have to walk, Mr. Tenney said he would not walk because ( 1) what the 

contract provided, and (2) that it was unsafe. Mr. Moore said that he told 

Mr. Gallagher that he would walk at some point during this conversation, his 

reason being that he had "seen a man fired." Mr. Moore said that he shoveled 

that day. Finally, he characterized Mr. Tenney as a safe worker and not 

"necessarily" a slow worker. 

26~Ll 
The testimony of Mr. Tenney, Mr. Moore, and Mr. Jones having been 

analyzed with respect to the November 30th incident, it is appropriate to 

consider the Respondent's position with respect to this incident focusing 

now on the issues raised by Mr. Tenney of ultimate importance: Whether or 

not Mr. Tenney engaged in a protected activity by raising a safety matter at 

that time and whether or not Respondent or any of its management personnel 

conspired to discharge Mr. Tenney. 

Mr. Nunez testified that he was Mr. Tenney's supervisor on November 29 

and November 30-, 1979, and that these were the only 2 days he had ever been 

Mr. Tenney's superior. Mr. Nunez said that when they arrived at the shanty 

at approximately 8 a.m. Ed Jones, the transportation foreman, advised him 

that the supply jeep was broken down and it would take 1 to 1-1/2 hours to 

repair. Nunez said that he had no reason to question this. Nunez told Moore 

and Tenney that the jeep was down and they would have to walk and Mr. Tenney 

said that he did not "give a darn" if it was down 4 or 5 hours he was not 

walking. The precise quote of Mr. Tenney at this time appears in Exhibit 

R-7 at Page 2. Mr. Tenney denied making this statement and for reasons which 

subsequently will be given in resolving credibility in this case, I credit 

the version of Mr. Nunez and the version found by Arbitrator Martin Lubow 

in his Opinion and Award dated December 14, 1979, at Page 2 of said exhibit. 

Nunez then asked Jones to let him use the phone, which he did. Nunez called 

Dennison and told him he had a problem. Dennison said, "Here, talk to your 

shift foreman," and turned the phone over to Gallagher. Nunez told Gallagher 

what had happened and Gallagher told Nunez to go through the standard procedure which included emphasizing to Mr. Tenney that he, Nunez, was giving him 

a direct order. Gallagher at the time was on the surface and while they 

were speaking on the telephone between the mine and the surface, Gallagher 

was informed of a sagging support which had developed near the location of 

Nunez and his men. Gallagher instructed Nunez to proceed to work on the 

emergency crib job. Because this work arose, Nunez, at the 8 to 8:15 a.m. 

refusal episode, did not go through the procedure of telling Mr. Tenney that 

he was giving him a direct order at that time. Nunez testified that neither 

Moore nor Tenney complained to him while they were working on the cribs about 

the Jeep going by. 

Upon returning to the shanty after the crib work was completed Nunez 

asked Jones if the Jeep was available and Jones replied that it was not. 

Nunez told Tenney and Moore the Jeep was not available and that they would 

have to walk. Tenney told Nunez, "I understand your order; I'm not walking 

because the contract says I don't have to, the contract says I'd be supplied 

with a ride and I want a ride." (See Exh. R-7, Page 2.) At the hearing, 

Nunez said that Tenney said, "I understand what you're saying and I want you 

to understand what I'm saying." At this point, Gallagher came out and asked 

Mr. Tenney why he would not walk, to'which Tenney replied, the contract provides a ride to the work place. Gallagher told Tenney to take some good 

advise and walk. Gallagher told Tenney he would have to take him outside and 

give him disciplinary action. Tenney said, this has been tried before and 

they did not get away with it, and "You're not going to get away with it." 

Gallagher said, "Well, we'll see." 

2692 
Nunez indicated that at this point he was not aware that Tenney had been 

involved in the February 18, 1977, episode, where he had refused to walk. 

With respect to the amount of traffic going down the haulageway at the time 

of the two refusals, Mr. Nunez testified that at 8 a.m. the traffic would 

have been light and no trips would have been going through, and that at 10 

to 10:15 a.m. possibly one trip would have been going through. Nunez, who 

has an artificial foot, gave the opinion that there was no hazard in walking 

up the haulageway, that it was relatively clear, and that the shelter holes 

(crosscuts) were accessible. Nunez said that he had walked from the shanty 

to "old eleven" many times and that other people have walked up there. On 

cross-examination, Nunez indicated that the others who have walked up there 

were fire bosses and shift inspectors, and they were not Union contract 

personnel as far as he knew. Nunez did not recall ever ordering any contract employee to walk up the haulageway. 

According to Nunez, Mr. Tenney said he would not walk because the contract provided for a "ride" not a "safe ride." The duties Tenney and Moore 

were to perform on November 3Q were to install additional bolts in the 

haulageway. Nunez did not recall that there had been a fall in the area 

in February of 1977. 

With respect to whether or not Moore refused to walk, Nunez testified 

that at the 8 a.m. refusal episode Moore was asked if he would walk and 

Moore replied, "I can't operate the machine by myself." Nunez said that 

Moore at first said, "There's nothing for me to do", and that he replied, 

"I'll find something for you to do," and that Moore then said, "Well, I will 

walk because I get paid as much for walking as I do working." Then, Nunez 

said, he started talking to Mr. Tenney again and told him that they had to 

walk. Nunez testified that he did not tell Gallagher that both Tenney and 

Moore would not walk and that Gallagher asked Mr. Moore to walk prior to 

telling Mr. Tenney "to get his bucket." During his testimony, Nunez subsequently clarified the above testimony by indicating that it was at the 

10: 15 refusal that Mr. Moore said, "I 1 11 walk, I get paid as much for 

walking as for working." And again, it was at the 8 a.m. refusal that 

Moore said there was nothing he could do by himself, to which Mr. Nunez 

responded that he would find something for Moore to do. 

Mr. Gallagher testified that Nunez called him on November 30, 1979, 

and told him that Tenney and Moore did not want to walk up the haulageway 

to their work place. At this point, Ed Jones came on the phone and said that 

there was a bad crib that needed repairs immediately, and that he then told 

(Nunez) to take Tenney and Moore down to repair the crib. Gallagher said 

that Nunez did not advise (him) why Tenney would not walk up to the assigned 

work place. After Gallagher got off the phone with Nunez, he had a conversation with Cliff Dennison and all he said to Dennison was that Tenney would 

have to walk up the haulageway. 

Gallagher was in the shanty when he overheard Tenney say he would not 

walk and Gallagher went out to take care of the situation at the time of the 

second refusal. Gallagher said he thought that Tenney was refusing a direct 

order from Nunez. Gallagher told Tenney, "Do you understand what he's saying 

to you? 11 Tenney replied, "Do you know what I'm saying?" 

2s9a 
According to Gallagher, Tenney did not say it was unsafe to walk nor 

did he mention that he had a bad neck or mention low top or traffic along the 

haulageway. Gallagher said that he told Tenney two or three times, "If you 

don't walk up there I will have to suspend you," and that Tenney replied, "I 

have a contract right for a ride." Gallagher said he told Tenney, "Carroll 

take some good advice and walk up there and we' 11 forget the whole thing." 

Gallagher said, "I thought I could reason with him one more time and he might 

change his mind." Gallagher verified that at one point Tenney said that 

Anthony Harris had tried the same thing. Gallagher was not familiar with 

this episode. 

Gallagher was present at the meeting in Dennison's office between Tenney 

and Dennison. According to Gallagher, Mr. Tenney at this time kept saying 

that the contract afforded him a right to a ride to his working place. 

Gallagher did not hear Tenney say that it was unsafe to walk up there or say 

anything about his neck injury or bad top. Gallagher said that miners and 

foremen walk up the main haulageway if no ride is available. He did not 

consider it unsafe. Gallagher also described the Respondent's standard 

procedure for handling a miner's failure to punch in or out. 

Gallagher specifically testified that in the conversation in 

Mr. Dennison's office at the point when Dennison made the change on the 

disciplinary slip, he did not remember Mr. Tenney telling Dennison about 

safety. Gallagher vertified that Tenney did say he was available for other 

work. Gallagher, as in the case of all witnesses, testified at length concerning the haulageway and other practices and the foregoing is not intended 

to be an exhaustive summary of his testimony. 

With respect to whether or not Tenney made a safety complaint or raised 

a safety matter at an appropriate time on November 30, 1979, the Arbitrator 

found that, "Tenney never raised any basis for his refusal other than his 

contractual rights" (Page 3, Exh. R-7). 

DISCUSSION, CREDIBILITY RESOLUTIONS, AND ULTIMATE FINDINGS AND CONCLUSIONS 

There is no question but that Mr. Tenney was discharged for failing to 

obey a direct order to walk down the haulageway to his work site. The 

general question involved is whether Mr. Tenney engaged in a protected 

activity, that is, whether his refusal to walk to the work site was because 

the travelway was unsafe. 

Did Mr. Tenney make a safety complaint or raise a safety issue on 

November 30, 1979? Mr. Gallagher, Mr. Nunez and Mr. Dennison all deny it. 

Although by the time this matter got to Dennison, I conclude that it was 

too late for any safety complaint to be made in any event: Tenney had been 

taken out of the mine at this point and was in the process of being disciplined, having been given repeated chances over a period of time to change 

his mind. This time period included the time involved in the conversation 

with Gallagher and with Nunez below ground, as well as the time spent going 

up in the cage to the surface and the time spent waiting for Mr. Dennison at 

his office before the conversation in Mr. Dennison's office occurred. 
Highly persuasive evidence establishing that Mr. Tenney did not raise a 

safety matter on November 30, 1979, is reflected in the transcript of the 

Lubow Arbitration Proceeding (Exh. R-8). At the bottom of Page 27 of this 

transcript, Mr. Tenney gives this account of the 8 a.m. refusal after Nunez 

said they would have to work: 

I asked him how long it would take to get the pole fixed 

and he said, "An hour and a half." I saj_d, "Well, j_t's never 

taken an hour and a half before. It's an outrageous amount 

of time," and that I felt that I was afforded a ride under 

the contract, Article III, section (o), paragraph (8). He 

asked Jim Moore, at the same time, he said, "Are you walking 

Jim" and Jim told him, "No." [Emphasis added.] 

Subsequently, on page 28 after describing interim events, Mr. Tenney made 

this statement: 

After Mr. Shear went out of there, then Augie told me 

that we was going to have to walk, and I told him that we 

wasn't, and I never used no four-letter word, and I didn't 

tell him that I didn't care whether it took four to six hours. 

I just told him that I felt under the contract that I was 

afforded a ride into and out of the coal mine, to and from 

the working section. Before I could tell him anything else 

he got on the phone. So, there was other reasons why I 

wasn't walking, and they said that it's been brought out that 

it was unsafe or whatever. I thought it was unsafe, but they 

never even gave me a chance to tell them it was unsafe." 

[Emphasis added.] 

Subsequently, in his testimony, again at Page 28, Mr. Tenney said: 

In my mind, there was two reasons why I didn't do it, 

didn't walk. One was the contract, and that I felt it was 

unsafe because it was low top and that area back through there 

had been, I guess, I was under the assumption it was dangered 

off. I really didn't know. Plus the fact that it was low. 

[Emphasis added.] 

Again in this transcript (Page 29), Mr. Tenney said: 

We finished doing what we had to do there to tighten up 

those cribs. We tightened them up the best we could, and 

once we got that finished, we took the ladder back down to 

the steps where the jeep runner could come down and get it 

and take it to where it was going. It was going to some 

section. Then we·went over to the dispatcher's shanty. When 

I looked at my watch, when I got down off the beams and 

cribs, it was ten thirty-five, and by the time we got back 

over to the transportation foreman, it was more like twenty 

2695 
'till eleven. I went in and sat down there in the waiting 

room. Augie went in and talked to Mr. Jones, he's the 

transportation foreman. Mr. Gallagher, Mr. Hudson and I 

don't know who else was in there, I never heard all of the 

asking of where the jeep was at. I could hear a bunch of 

whispering going on, it wasn't normal talking, it was 

whispering. He turned around and came outside and said, he 

told me, "The jeep ain't available. We're going to have to 

walk." I told him, "Well, under the contract I still believe 

I am afforded the ride into and out of the coal mine, to and 

from the working section." I said, "I am still available to 

do other work. I am not wanting not to work. I will work." 

Then I was going to tell him about where I thought it was 

unsafe. In the next instant Mr. Gallagher came out behind 

him and said, I think his first words were, You are not 

walking?" or something to this effect. I really don't know 

because he said he didn't, he told me he didn't care where 

the jeep was at, he was giving me a direct order. I said, 

"Well, I still feel that I am afforded a ride into and out of 

the coal mine. I still feel that." He said, he asked me if 

I understood what I was doing and I guess I did, I thought I 

did, and I told him yes. He said, "I'm going to take you 

outside." He wasn't talking to Jim Moore. He never said one 

word to Jim Moore this second time, until after he said that 

he was going to take me out. Then he turned around and asked 

Jim, he said, "Are you walking." Jim told him, "Yes, I'll 

walk" after he told him that he was going to suspend me. 

Then he said, "Get your bucket" and I told him I didn't have 

no bucket, I don't carry one. Then he· told me, "Come on 

let's go." I went with him. Going up on the cage I told 

him, I said, "Anthony Harris tried to fire me before for the 

same thing" I made the statement, "You tried to fire me 

before" and he said "No, I ain't never tried to fire you 

before. It wasn't me. I have' t tried." I said, "Well, 

management tried it." We got outside, went to Mr. Dennison's 

office, and Mr. Dennison wasn't there at the time. We waited 

there a couple of minutes or whatever and Mr. Dennison was 

across the street to the superintendent's office or the main 

mine office and he came in a minute or two later. I don't 

know exactly how long it was. [Emphasis added.] 

On Page 31 of this same transcript, is a recognition that this proceeding 

was not a safety matter. Commissioner Luketic made the following statement, 

"Mr. Arbitrator I am going to have to object to the Commissioner for the Mine 

Workers getting into ~tr. Tenney's feelings about it being unsafe. This was 

never an issue at any of the prior steps, and to bring in safety at this point 

would be adding to the grievance." There were Union representatives in 

attendance at this meeting, as well as Mr. Tenney. No one made any exception 

to this recognition. 
Both the grievance involving the February 18, 1977, grievance for 

Mr. Tenney's refusal to walk and the entire proceeding for the November 30, 

1979, refusal to walk discharge, were treated by all involved parties as a 

"contract" matter and not a safety matter. In the Pasula decision, supra, 

the Commission in dicta expressed its approval of the use of arbitrators' 

findings: "We believe that according weight to the findings of Arbitrators 

may aid the Commission's Judges in finding facts. A Judge faced with a 

credibility problem may find the views of the Arbitrator on labor practices 

in the mine' s customs or on the common law of the shop helpful." The sections of the transcript above quoted are not arbitrators' findings which I 

am adopting. This is a transcript of testimony which Mr. Tenney rendered 

in these proceedings and thus takes on a much higher degree of weight than 

even an arbitrator's conclusions and findings. This transcript showing 

Mr. Tenney's statements was of a proceeding conducted on December 7, 1979--

wi thin a very short period after the incident with which we are concerned 

transpired. I believe it is entitled, in and of itself, to controlling weight 

on the issue of whether or not Mr. Tenney was engaged in a protected activity 

on November 30, 1979, when he refused to obey repeatedly an order to walk 

down the haulageway from the shanty to Old Eleven. There are other reasons 

for my finding in this connection which will subsequently appear herein. 

One of the principles of mine safety law is that "a miner who reasonably 

believes that conditions are unsafe is not required to accept a foreman's 

evaluation of danger." Phillips v. IBMA, 500 F.2d 772, 780 (D.C. Cir. 1974). 

A necessary corollary to. this concept would seem to be that a mine foreman 

would have the right to discuss the safety problem with the miner--and evaluate it. To do that, it would be necessary, of course, for him to know what 

the safety hazard or safety complaint is. On the facts established in this 

proceeding, neither Foreman, Nunez nor Gallagher, had any cause to evaluate 

any dangerous condition or to discuss it with Mr. Tenney or to reason with 

Mr. Tenney with respect to the same. Because of Mr. Tenney's handling of his 

refusal to walk, discussion of safety or the nature of hazardous conditions 

was shut off. If Mr. Tenney had the time to make the statement that the 

company "had tried it before," and the like, he certainly would have had the 

time to have emphasized any safety complaint or complaints that he might have 

had as a basis for his refusal. During the considerable length of time that 

was involved with Nunez and Gallagher prior to the meeting in Dennison's 

office, it seems inconceivable that if he was so concerned with safety that 

that would not have been the immediate matter raised by him and emphasized 

by him at every stage of this episode as it developed from conversation to 

conversation. The absence of such discussion at any time compels the conclusion that Mr. Tenney was not engaged in a protected activity. Other 

evidence of this is the fact that the grievance proceeding filed in this 

proceeding was not treated as a safety matter. At no time during the conversations with Nunez or Gallagher, did Mr. Tenney treat his complaint as 

a safety matter. 

I also find, because of the credibility resolution I make subsequently, 

that the accounts of Nunez and Gallagher with respect to the conversation in 

Dennison's office are to be credited and that Mr. Tenney did not raise a 

safety matter at that time either. 

269'1 
Mr. Tenney was well aware of his contract rights as a safety commiteeman. 

If this record establishes anything, it is that Mr. Tenney is not inclined to 

sit on such rights and in his own testimony Mr. Tenney has pointed out his 

awareness of the bulletin board, safety matters, and the like at all times, 

even after he was removed from the safety committee. This matter has not 

been treated as a safety matter by Mr. Tenney or any of the other parties, 

including the Union. 

To fully understand the November 30, 1979, refusal to obey an order, the 

February 18, 1977, episode must be examined as well as a third "refusal" 

incident testified about by Respondent's section foreman, John Wujcik. 

Complainant admits that the grievance proceeding filed by him on the 1977 

refusal to walk was not processed as a safety grievance under the contract. 

Mr. Wujcik testified that in 1979, when Mr. Tenney was a roof bolter on his 

section (No. 3 South) for 2 weeks, a portal bus broke down. Wujcik asked 

the crew to walk to the secti0n. Mr. Tenney said that they were supposed 

to have transportation and that he would walk under protest. The significance of this testimony is simply that the contract right asserted by 

Mr. Tenney in refusing to walk on two prior occasions did not involve a 

safety matter. It indicates that this right to transportation has been a 

major cause of Mr. Tenney in the past. 

I find that Mr. Tenney 1 s refusal on November 30 was not made in good 

faith for the following reasons. The result reached in the arbitration of 

the February 18, 1977, refusal to walk was that the contract right to transportation applies only to the beginning and ending of a shift. While this 

ironically might have justified Mr. Tenney's refusal at 8 aom• on 

November 30, 1979, it underscored that there was no such right to transportation otherwise. This was a proceeding which involved Mr. Tenney himself o 

Although Mr. Tenney denied that he had read the Arbitrator's Decision, he did 

admit that he had been told what it said. I therefore find that Mr. Tenney 

had knowledge of the content of that award, even assLUUing, arguendo, that his 

denial (that he did not read the award) is to be credited. I therefore find 

that Mr. Tenney's refusal on November 30 was made in full knowledge of the 

illegality of doing so and that, accordingly, it was not made in good faith 

within the meaning of the Commission's ruling in Secretary of Labor v. 

United Castle Coal Company, 3 MSHRC 803 (1981). I find that the Respondent 

has met the exceedingly difficult burden of proof placed on it by the 

United Castle decision in that it has established an absence of good faith 

in Mr. Tenney's work refusal--asslDTling the same should become relevant. The 

finding of an absence of good faith would be relevant only in the event tha.t 

my finding that Mr. Tenney was not engaged in a protected activity on 

November 30, 1979, is overturned. 

Taking up now Complainant's contention that he was a victim of a con·· 

spiracy by Respondent's management, it is well to recall initially that 

Edmund Jones, the transportation foreman on November 30, 1979, mentioned a 

telephone call that he received from Mr. Dennison telling him not to give 

Mr. Tenney transportation back to his job. Jones said that Dennison gave 

him no reason, but that he, Jones, knew the reason. Another witness for 

2698 
Complainant, Ira Varner, a motorman at the No. 2 Mine testified, inter alia, 

that he had heard Mr. Jones say something to the effect that Mr, 7I'enney had 

been set up. Respondent 1 s witnesses, Gallagher, Nunez and Dennison have 

denied this allegation. In final argument, Complainant's counsel has taken 

the position that Nunez and Gallagher were not involved and that the conspiracy would have been between Dennison and Jones. Thus, to find any basis 

for the conclusion that Mr. Tenney was set up would necessarily require the 

crediting of Mr. Jones' testimony. To find a conspiracy in this connection, 

so also would Mr. Tenney's testimony to some extent have to be credited. 

Mr. Jones' testimony is suspect for several reasons. The first is that: 

as a member of Respondent's management he, patently, is a renegade. In and 

of itself this means nothing, but the fact stands out that he is attempting 

to blow the whistle against others in management in this case. Secondly, his 

testimony with respect to the instruction he received from Dennison contains 

an uncertainty. Assrnuing, arguendo, that Dennison did tell Jones that he was 

not to give Tenney transpor-tat~on,-Jones acknowledges that Dennison gave him 

no reason for this order. Jones says, "I knew the reason," meaning that he 

was reading into what Mr. Dennison said Mr. Dennison's motivation. A third 

reason why I do not credit Mr. Jo2es 1 testimony in this respect, is the confusion that he had with respect to the time of this conversation. Furthermore, his testimony that he told James Moore that he had better get away 

because Tenney was going to be fired was not confirmed by Moore. 

In determining whether Mr. Jones' testimony should be credited or 

Mr. Dennison's denial should be credited, the demean.or of the wi tn.esses plays 

an important part of the resolution. in this case. Although in many cases a 

witness' demeanor and vA1at is physically displayed by a witness while testifying is not a bellwether of the trustworthiness of the witness, I find in 

this case that it is. Mr. Jon.es conveyed a sense of being in touch with a 

different reality than all other witnesses in this proceeding including 

Mr. Tenney. There are two sides in this proceeding and naturally there are 

wide divergences in testimony between the witnesses on one side and the other. 

Mr. Jones' testimony struck me as totally out of line with the testimony of 

the other wi tn.esses in the way that it was delivered, in its quality, and 

with the sense of sincerity in which it was presented. This was not entirely 

traceable to the fact that he smiled throughout his testimony which, I 

believe, is simply his personality. 

Finally, a powerful reason for the reduction of the weight in reliability to be accorded to his testimony is the fact that he is engaged in a dis·-

crimination suit which is still pending against the Respondent in this 

proceeding. The type and nature of this litigation like the present litigation is one which stirs high emotions. I therefore credit Mr. Dennison's 

denial of this alleged conversation and find that in all the circumstances 

and for the reasons stated, Mr. Jones' testimony is not trustworthy. 

With respect to the weight to be accorded to the testimony 

it is noted that Mr. Tenney's account of the conversations with 

and Gallagher were not sufficiently detailed to be persuasive. 

9 q 

'!.,• 

of Mr. Tenney, 

Foremen Nunez 

His test imon.y 
at times with respect to whether he raised a safety complaint or not seemed 

calculated to avoid a direct answer. His testimony in contexts other than 

the conspiracy contention are also found to not inspire a high degree of 

confidence. For example, on cross-examination, he did not satisfactorily 

explain his failure in the Lubow proceeding to mention that a complaint of 

unsafe conditions along the haulageway in the November 30 episode had been 

made. In at least one point in that part of the transcript, which I have 

included previously in this decision, I find that Mr. Tenney was evasive on 

this point. 

Again, Mr. Tenney claimed that he had no time to make a safety complaint 

on November 30, 1979, a crucial point in this proceeding. Yet, he talked 

for a considerable time to Foreman Nunez and Dale Gallagher according to 

his own testimony. This explanation, that he lacked the time to complain 

about safety conditions, does not ring true and is directly contrary to facts 

overwhelmingly established in this record. 

Again, in resolving credibility I must consider the February 18, 1977, 

incident. Although this matter was pursued to final arbitration and involved 

a matter obviously important to Mr. Tenney, Mr. Tenney testified that he had 

never read the Arbitrator's Decision. This conflicts with his emphasis that 

he has an intense interest in safety matters and his denial that he did not 

read this decision is shockingly at odds with every other sense of the man 

which is shown in this record. 

Again, Mr. Tenney's statement that he was thinking of taking action over 

his removal as a member of the safety committee but was discharged before he 

got around to doing so, is not the kind of explaination which lends itself 

to the trustworthiness of other testimony. 1/ It is similar in type to the 

other somewhat incredible explanations mentioned above, all of which are on 

critical points. Therefore, I am constrained to accept the accounts and 

versions of the conversations and incidents described by Dennison, Gallagher, 

Nunez and other of Respondent's witnesses over that of Mr. Tenney in the 

several places where there is disagreement between them previously set forth 

above. 

Mr. Moore's testimony is obviously calculated to help Mr. Tenney. This 

was carried to the extent that in at least one instance his testimony conflicted with Mr. Tenney's. Thus, Mr. Moore testified that at the 8 a.m. 

refusal on November 30, Mr. Tenney raised the subject of safety. Even 

Mr. Tenney does not claim that he did so at that time and Moore's testimony 

in this respect conflicts with all the other evidence in this record. 

Based upon the foregoing credibility findings and for the reasons previously detailed above, I conclude that the Respondent did not plan, plot, or 

conspire to set Mr. Tenney up for discharge on November 30, 1979. Other 

factors are also totally inconsistent with this contention of Complainant. 

1/ In view of the time interval between the two events. 

2700 
Thus, I note that on that morning Mr. Gallagher told Nunez to assign 

Mr. Tenney to an emergency situation which arose simultaneously with 

Mr. Nunez 1 s report to him that Mr. Tenney had refused to walk. Mr. Gallagher 

attempted to talk Mr. Tenney out of his refusal. Assmning Mr. Gallagher 

i.s not in on some attempt to get Mr. Tenney it would not be much of a con.--

spi.racy to go about setting up someone without the participati.on of the key 

actors. Evidence in this proceeding indicates that Mr. Gallagher and 

Mr. Nunez both had the authority to suspend Mr. Tenney for 5 days with intent 

to discharge without the participation of Mr. Dennison. 

I infer from the testimony of John Hetrick, who participated at Step 2 

of the grievance procedure and made the decision to discharge Mr. Tenney at 

that time, that Mr. Tenney was given another chance to i·eturn to work. This 

is an inference, and not a direct finding, based upon Mr. Hetrick's asking 

Mr. Tenney, "If I asked you to walk now, would you," and Mr. Tenney's reply, 

"probably not, 11 which was then followed by Mr. Tenney saying that he might, 

why didn't Mr. Hetrick ask him. I infer that at that point Mr. Tenney was 

given another chance to snatch victory out of the jaws of defeat and to change 

his mind. This finding is based upon various accounts of that conversation 

and the psychology which pervaded the conversation. 

In conclusion, on the conspiracy issues even if one were to assume, 

arguendo, that Dennison and Jones did conspire can it be said that Respondent 

was discriminating against Mr. Tenney because of safety reasons? The various 

and numerous prior incidents from 1974 through 1979 which Mr. Tenney has 

complained of in this proceeding fox .the most part represent situations where 

Mro Tenney was indeed guilty of the infractions which the Respondent charged 

him with, some of which were found in arbitration. Even ass unling, arguendo, 

that there was a conspiracy, 2/ there is no .proof that such a conspiracy was 

because of safety activities--=-other than the testimony of Mr. Jones which was 

general and which I have previously not credited. Had there been a conspiracy, 

whether on November 30th or at some other time, to bring about Mr. Tenney's 

discharge, on the basis of this proceeding, it is found that it is more likely 

that such would have been based upon Mr. Tenney's clearly established prior 

wrongful conduct or even possibly because of the approach which Mr. Tenney 

took in carrying out his duties, all of which have been previously described. 

Another issue which was litigated and deserves some discussion is 

whether or not the haulageway on November 30, 1979, was safe for a foot 

traveler proceeding from the transportation foreman's shanty to old eleven 

switch. The haulageway was said to be 14 feet wide (Testimony of William R. 

Toothman) and the complaints which Complainant has expressed in this proceeding concerning its condition are that the top was bad, the top was too 

low, there was danger of a walking miner being struck by motors traveling 

down the haulageway, and that the escape holes and crosscuts had poles ancl. 

cribs in them which might block a miner's entry into them when he was 

attempting to avoid a motor. 

2701. 
Again, the witnesses for Respondent and Complainant differed concerning 

the safety of this area. In view of my prior rulings, a lengthy analysis of 

this testimony is not in order. Nevertheless, I do find that the haulageway 

on November 30, 1979, was safe for a miner traveling it on foot. This finding 

is based upon the testimony of Respondent's witnesses, Nunez, Gallagher, Lamb, 

Glen Shamblen, John Hetrick, and Gary Cumberledge. Mr. Hetrick, presently a 

superintendent of another mine of Respondent, testified that state inspectors 

or federal inspectors inspect this mine (Federal No. 2) at least every 

24 hours. In addition, the Union safety committee helps to see that the mine 

is kept in compliance. 

Gary Cumberledge, an assistant mine inspector employed by Respondent, 

testified that at request of counsel he made a review of federal and state 

inspections of the haulageway in question for 6-month periods before and 

after November 30, 1979, that is, from June 1979, to June 1980, to determine 

how many accidents had occurred along the haulageway and how many violations 

had occurred. He testified that there was no record of any roof fall or 

accidents during this period and that while there were violations none pertained to roof control or shelter holes. 

Keeping the foregoing in mind, it is important to consider that the four 

or five conditions mentioned by the Complainant (in his testimony herein) as 

present in the mine on November 30, 1979, were all generally described. 

There was no specific place in the mine mentioned nor specific safety hazard 

which was raised by Mr. Tenney or has been raised in this proceeding. 

Witnesses have testified on the one hand that there were derailments and, on 

the other, that there were not derailments along the haulageway. Witnesses 

have testified that the top was low, while other witnesses have testified 

it is not low all the way along the area in question. Witnesses have testified that motormen traveling on their equipment through the haulageway have 

to bend over and cannot see over the top of the equipment, while another 

witness has testified that they can see over it. Witnesses have testified 

that it was safe to duck into a cross way or an escape hole, while other 

witnesses have said that there might be difficulty doing it because they were 

filled with timber. The quality of the testimony and the type of testimony 

with respect to these complaints is all relatively general because the complaints themselves are not specific. Complainant did mention one (specific) 

incident which occurred in the haulageway on February 20, 1979, when a roof 

fall occurred. This (incident) was also testified to by David Schauffner, a 

bolt-machine operator. Mr. Tenney testified that he had that in his mind on 

November 30, 1979. However, at no time was this expressed. In any event, 

does Complainant ask that because of that roof fall a finding be made that 

the haulageway on November 30 was unsafe for anyone to travel it? I find 

that this evidence does not establish (1) the condition of the haulageway 

on November 30, or (2) that it would be reasonable for a miner to believe 

that the haulageway was unsafe on November 30, because of a roof fall in 

February. Otherwise, if such were the case, one roof fall in an area would 

permanently close down the area. There was much testimony of similar quality 

in this record. I find that the fact of the matter is that the haulageway 

had been in the general condition described by Complainant's witnesses for 

2702 
a long time and that it was so operating on November 30, 1979, that it was 

being ins pee ted and repaired regularly, and that there was no showing having 

any probative value that the haulageway was unsafe at that time. 1bere was 

no (safety-related) occurrence in proximity to the date of Mr. Tenney's 

discharge. I find that Mr. Tenney was not reasonably entitled to raise a 

complaint with respect to the safety of the haulageway on November 30, 1979. 

I also find, based upon the testimony of Respondent's witnesses, that 

miners customarily traveled down the haulageway, and they were not just .fire 

bosses or supervisory personnel but contract employees. In any event, fire 

qosses and supervisory personnel are "miners" within the meaning of the Act. 

Complainant might well contend that under the contract what is in issue is 

the right to a man trip ride down the haulageway. But that is not what is 

involved in_!_J:);e context of this issue. The question is whether the haulage-· 

way was safe and whether whoever was traveling do\l.n it, if they are miners 

(and that includes supervisors, foremen and the like), would be exposed to 

a hazard. Thus I have found that the haulageway was being walked by miners 

in different job classifications~regularly at that time and that Mrc Tenney 

was not reasonably entitled to the belief that the haulageway was unsafe on 

November 30. I infer that this is why he made no such contention at the 

time. Finally, if the ha ulageway was as unsafe as claimed by Mr. Tenney 

and some of his witnesses one would suspect that the Union safety committee 

would have done something about it during the 2- or 3-day period preceding 

November 30. Mr. Tenney did not contend or establish that the haulageway 

was in any different condition or in any unusual condition on November 30, 

i·~·· different from other times prior to or after November 30. 

Taking up now another complaint raised by Mr. Tenney, that after he was 

removed as safety committeeman his roof bolting duties were taken away and 

that he tiJereafter spent 90 percent of his time shoveling, the record 

establishes that this change was necessitated by a change in the safety laws 

which made it impossible for the Respondent to continue using the type of 

roof-bolting machine Mr. Tenney was operating at the time. Respondent 

clearly established that the change in the interpretation of these safety 

requirements required withdrawal of this type of machine from service. No 

showing of different or unequal treatment toward Mr. Tenney relative to other 

employees in this connection was established. No showing or evidence what~ 

soever that this change in his duties was related to Mr. Tenney's safety 

complaints or his activities as a safety committee member was presented. 

Mr. Tenney was given other work at the same rate of pay and he filed no 

grievance under the Union contract or discrimination charges with the Mine 

Safety and Health Administration at the time. It is thus found that there is 

no evidence of disparate treatment, harrassment, or discriminatory motivation 

involved in this occurrence. 

At one stage in this proceeding, Mr. Tenney contended the disciplinary 

slips which he received for not punching in or out on the time clock on 

several occasions were part of Respondent's retaliation for his safety 

activities. Respondent, however, established beyond question that its system 

for gathering up these time cards at the change of each shift and comparing 
them with its personnel roster is automatic. Mr. Tenney's inclusion of these 

incidents as part of his evidence of alleged animus toward him further colors 

the credibility to be attached to his ability to objectively interpret the 

other events he has complained of in this proceeding. (See testimony of Dale 

Gallagher with respect to the Respondent's procedure.) 

Finally, a great deal of the record was devoted to establishing how 

satisfactory an employee Mr. Tenney was. For the most part, the evidence presented on this topic was in the form of opinion. Again, witnesses on either 

side of this litigation had different views of Mr. Tenney's worth as an 

employee. Some said he was lazy, some said he worked hard. Some of the testimony was too remote to be probative. For example, the testimony of Sherman 

Perkins related to a period in 1971. In any event, it is clear that 

Mr. Tenney was not discharged because his work performance or production was 

below par. Nor is there any evidence that his general work performance was 

unsatisfactory. Respondent's witnesses in one of the arbitration proceedings 

did indicate that they rated Mr. Tenney in the lower third of the mining 

force. No evidence was presented that Respondent's management personnel 

repeatedly or incessantly told Mr. Tenney that his work performance was 

unsatisfactory or that the amount of work he did was insufficient. Some 

foremen testified that they considered that it was, but no basis in evidence 

was established by Respondent to show that he was an unsatisfactory employee. 

Indeed, Respondent over the period of the years of Mr. Tenney's employment, 

and during the 2-1/2 years after he was removed from the safety committee, 

allowed Mr. Tenney to perform his job in the ultra-safe manner that he 

insisted upon. Considering the length of Mro Tenney's employment and the 

absence of comparative statistics comparing Mr. Tenney's experiences with 

other employees similarly situated, I find no pattern of reprisals, reprimands, harrassment, or even sarcastic remarks has been shown. On the other 

hand, I also find that Mr. Tenney was not an unsatisfactory worker in terms of 

production. He was an extremely fastidious person with regard to insisting 

on the safety aspects of his duties and I accept the characterization of one 

witness who said that he was "a fair bolter." Finally, however, I do find 

that the incidents complained of by Mr. Tenney himself in this case do establish somewhat of a record of improper behavior on his part. That has been 

previously described. 

I find that there has been no showing of disparate treatment toward 

Complainant traceable to his safety activities or otherwise. That is, it 

was not shown that other miners who refused to obey direct orders were not 

disciplined or disciplined with the same severity as Mr. Tenney. In this 

connection, however, Respondent's treatment of Mr. Tenney's helper, Jimmy 

Moore, should be discussed~ Moore did refuse to obey the same order at 

8 porn. as Mr. Tenney did initially, according to Respondent's witnesses. 

Assuming, arguendo, that this is the case, it is noted that both Mro Tenney 

and Mr. Moore were given the opportunity to change their minds. Tenney 

refused to do so. Moore did change his mind and was put to work. Tenney, 

even after this point in time, was given the opportunity but did not change 

his mind. I find no evidence of disparate treatment in these circumstances. 

2704 
For the reasons stated hereinabove, I find that Complainant failed 

to establish by a preponderance of the evidence a prima f acie case of 

discrimination. In particular, the Complainant did not establish that he 

was engaged in a protected activity when he refused to obey a lawful order 

to walk to his work place during the episode which started at approximately 10 a.m. on November 30, 1979. 

Accordingly, it is found that there is no merit in Complainant's 

complaint filed herein and the same should be dismissed. It is ORDERED 

that all proposed findings of fact and conclusions of law not expressly 

incorporated in this decision are REJECTED. For the various reasons 

stated, this proceeding is DISMISSED. 

.~}l.:~t-/ //, /{J~ /1 

PMichael A. Lasher, Jr., Judge 

Distribution: 

Mr. Carroll D. Tenney, Route 1, Box 172-A, Fairview, WV 26570 

(Certified Mail) 

Sally S. Rock, Esq., Eastern Associated Coal Corp., 1728 Koppers 

Bldg., Pittsburgh, PA 15219 (Certified Mail) 

R. Henry Moore, Esq., Rose, Schmidt, Hasley, Whyte & Hardesty, 

900 Oliver Bldg., Pittsburgh, PA 15222 (Certified Mail) 

J. Montgomery Brown, Esq., 515 Deveny Bldg., P. 0. Box 269, 

Fairmont, WV 26554 (Certified Mail) 

2705 
Joint Exhibit No. 1 

Joint Exhibit No. 2 

Union Exhibit No. 1 

Company Exhibit No. 1 

ATTACHMENT "A" 

Summary of the Documentary Evidence 

National Bi tt.nninous Coal Wage 

Agreement of 1974 (hereinafter, 

the "Contract") • 

Grievance of Carroll Tenney, 

dated March 7, 1977. 

Notice of Improper Action, 

dated February 18, 1977, for 

Grievant, Carroll Tenney. 

Notice of Suspension with Intent 

to Discharge, dated February 18, 

1977, with accompanying Notice 

to Return to Work, dated June 21, 

1977. 

Summary of the Transcript of Testimony 

Grievant, Carroll Tenney, roof bolter, works on the day shift at the 

company's Federal No. 2 Mine, at Miracle Run near Blacksville, West Virginia. 

On the morning of Friday, February 18, 1977, Grievant reported at 8 aom. 

to the office of Anthony Harris, general mine foreman, for a meeting to discuss progress on the "Two North Tunnel Stall", where Grievant was then 

working. 

Upon completion of the meeting, Grievant went to the dispatcher's shanty 

at the bottom of the mine. From this point, Grievant and six other employees 

were planning to commence a safety drill of walking the escapeways. The 

group proceeded to "One West, Right Side" by portal bus, where they got off 

and walked the returns to the Scott's Run air shaft. Grievant walked with 

his roof-bolter helper, Jim Merchant. 

The procedure of walking the escapeways was pursuant to the requirement 

of the Contract that the "Employer shall regularly instruct all Employees as 

to the location of all escapeways and the proper procedure to be followed in 

cases of emergency exit." Contract, Article III, Section (o)(l2), po 19. 

Upon completing the emergency procedure, Grievant and Merchant returned 

to the dispatcher's shanty at about 10:30 a.m. to await a mantrip to take them 

to their work station at "Two North Tunnel Stall". 

Glenn Shamblen, transportation foreman, sought to arrange a ride for 

Grievant and Merchant through Anthony Harris, general mine foreman. Harris 

determined that there was no transportation available, and then said to 

2706 
Shamblen: "Let them walk." Grievant, not realizing that Harris was in the 

area, commented: "That is a long Wa.y back." Harris then asked Sham bl en 

again if a ride was available, and upon receiving a negative reply, said to 

Grievant: "Then you walk." 

Grievant remonstrated, and Harris said: "Are you disobeying a direct 

order?" Grievant replied: "No, I am not disobeying a direct order. The 

Contract, under Article III, Section (0)(8), guarantees me a ride to and 

from the working section." 

Harris also questioned Merchant as to whether he was refusing to walk, 

but Merchant replied: "I haven't said anything." Whereupon, Harris put 

Merchant to work cleaning the transportation shanty. He instructed Robert 

Sowden, grade foreman, to take Grievant outside and suspend him with intent 

to discharge. */ Grievant accompanied Sowden to the outside and took a 

shower. Sowden prepared a "Notice of Improper Action" (Union Exhibit 

No. 1), and left it on Grievant's basket. 

Grievant missed 4 days of work as the result of his suspension, 

returning to work on February 24, 1977. 

Glenn Shamblen, transportation foreman, testified that it would have 

been as much as 1-1/2 hours before a mantrip would have become available to 

take Grievant and Merchant to their work stations. A nwuber of other 

employees obtained rides to their various stations, after walking the 

escapeways. Some "got on their motors and left"; wliile others "took the 

bus and went to the work area" (Tr. 20). 

Robert Sowden, general foreman, testified that the "wire men have 

their own work bus with all their tools" (Tr. 22). This bus might have 

accommodated Grievant and Merchant, but Sowden did not suggest that it 

be used to transport them. In his words, "This is not my job. I don't 

have anything to do with that" (Tr. 23). 

Sowden stated that his ovm jeep was in use on themorning of Friday, 

February 18, 1977. And the jeep of the general mine foreman, Anthony 

Harris, was not readily available. 

Rodney Jarrett, mine superintendent, testified that a majority of the 

employees are furnished transportation to and from their work areas, by the 

use of individual pieces of equipoment, portal buses, or jeeps. 

Anthony Harris, general mine foreman, testified further that the clause 

in the Contract dealing with mantrips to and from the working section was 

*/ Grievant was suspended for 5 days with intent to discharge. The company, 

however, ordered him back to work on the fifth day (February 24, 1977). As a 

result, his right to compensation, if any, cannot exceed~ days (Friday, 

February 18, and Monday, Tuesday, and Wednesday, February 21 through 23, 

1977). 

270'1 
applicable at the beginning and end of every shift, but "doesn't include the 

middle of the day" (Tr. 14). On a prior occasion, Harris had insisted that 

Grievant ride, rather than walk, to and from his work station at the 

beginning and end of his shift. 

2708 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

lt1V 27 

Petitioner 

Civil Penalty Proceeding 

Docket No. WEVA 80-730 

A.c. No. 46-02856-03004 R 

FANCY MINING COMPANY, INC., 

Respondent J & J No. 2 Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

This proceeding was commenced by the Secretary of Labor, Mine Safety 

and Health Administration (hereinafter "MSHA") on November 10, 1980, by the 

filing of a petition for assessment of civil penalty. On April 20, 1981, 

the parties filed a joint motion for an order approving settlement of this 

case, which I subsequently denied in an order dated July 6, 1981. A hearing 

was held on the matter on September 15, 1981, in Morgantown, West Virginia. 

Barry Lane Ryan testified on behalf of MSHA and John A. Laurita testified on 

behalf of both MSHA and Fancy Mining. At the close of the hearing, the 

parties indicated their desire to have their motion to approve settlement 

reconsidered. I stated at that time that I would rule upon the renewed 

motion after posthearing briefs were submitted and the record was closed. 

Having duly considered the testimony and other evidence, I conclude that 

the recommended settlement is consistent with the purposes and policy of the 

Act. The recommended settlement, reducing the penalty from $10,000.00 to 

$2,000.00, is therefore, approved. 

Accordingly, it is ORDERED that the motion to dismiss and approve 

settlement is GRANTED. It is FURTHER ORDERED that the operator pay $2,000 

and that subject to such payment the petition be DISHISSED. 

Distribution Certified Mail: 

~es A. Laurenson, Judge 

Page Jackson, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

James A. Kent, Esq., P.O. Box 1217, Morgantown, WV 26505 

270B 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 3 o 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

Docket No. LAKE 80-375-M 

A/O No. 12-00083-05004 I 

Eckerty Quarry 

MULZER CRUSHED STONE COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Steven E. Walanka, Esq., Office of the Solicitor, U.S. 

Department of Labor, Chicago, Illinois, for the Petitioner, 

Philip E. Balcomb, Manager, Mulzer Crushed Stone Company, 

Tell City, Indiana, for the Respondent. 

Judge Cook 

I. Procedural Background 

On August 27, 1980, the Secretary of Labor (Petitioner) filed a proposal for a penalty in the above-captioned case pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~· 

(Supp. III 1979) (1977 Mine Act), charging Mulzer Crushed Stone Company 

(Respondent) with a violation of mandatory safety standard 30 C.F.R. 

§ 56.9-55. The Respondent filed an answer on September 24, 1980. 

The hearing was held on January 29, 1981, in Louisville, Kentucky. 

Representatives of both parties were present and participated. Both parties made closing arguments following the presentation of the evidence. 

At the conclusion of the hearing, a schedule was set for the filing of 

posthearing briefs and proposed findings of fact and conclusions of law. 

However, difficulties experienced by counsel resulted in a revision thereof. 

Posthearing briefs were received from the Respondent and the Petitioner 

on March 23, 1981, and April 27, 1981, respectively. The Respondent's reply 

brief was received on May 1, 1981. The Petitioner did not file a reply brief. 

II. Violation Charged 

Citation No. Date 30 C.F.R. Standard 

365911 April 23, 1980 56.9-55 

2710 
III. Witnesses and Exhibits 

A. Witnesses 

The Petitioner called Federal mine inspector Gene Upton as a witness. 

The Respondent called as its witnesses Clifton Cook III, a stockpile 

truck driver, Gordon Ray Eckert, the supervisor in direct charge of operations at the Eckerty Quarry, and Robert Scheible, the assistant safety 

director. 

Both the Petitioner and the Respondent called as a witness John E. 

Knust, the stockpile truck driver involved in the April 10, 1980, accident. 

B. Exhibits 

1. The Petitioner introduced the following exhibits in evidence: 

G-1 is a copy of a mine accident, injury, and illness report submitted to the Mine Safety and Health Administration by the Respondent following the April 10, 1980, accident. 

G-2 is a copy of Citation No. 365911, April 23, 1980, 30 C.F.R. 

§ 56.9-55. 

G-3 is an April 22, 1980, photograph of the stockpile where the 

accident occurred. 

G-4 is an April 22, 1980, photograph taken from the top of the 

stockpile where the accident occurred. 

G-5 is an April 22, 1980, photograph of the ramp leading to the 

top of the stockpile where the accident occurred. 

G-6 is an April 22, 1980, photograph taken from the top of the 

stockpile where the accident occurred. 

G-7 is an April 22, 1980, photograph showing the stockpiling 

method in use on the day of the accident investigation conducted by the 

Mine Safety and Health Administration. 

G-8 is an April 22, 1980, photograph showing the stockpile after 

the departure of the truck shown in G-7. 

G-9 is an April 22, 1980, photograph of the truck involved in the 

accident. 

G-10 is an April 22, 1980, photograph of the truck involved in the 

accident. 

2711 
G-11 is an April 22, 1980, photograph of the truck involved in the 

accident. 

G-12 is a copy of the accident investigation report prepared by the 

Mine Safety and Health Administration following its investigation of the 

April 10, 1980, accident. 

G-13 is a copy of the inspector's statement pertaining to G-2~ 

G-14 is a copy of a "fatalgram" dated May 5, 1980. 

G-15 is a copy of a "fatalgram" dated June 19, 1980. 

G-16 is a copy of a "fatalgram" dated July 15, 1980. 

G-17 is a copy of a mine accident, injury, and illness report of 

an accident occurring at the Respondent's Eckerty Quarry on April 28, 1978. 

G-18 is a copy of the mine identification. 

2. The Respondent introduced the following exhibits in evidence: 

0-1 is a diagram depicting the general conditions existing at the 

stockpile at the time of the accident. 

0-2 is a copy of the "narrative findings for a special assessment" 

prepared by the Office of Assessments. 

IV. Issues 

Two basic issues are involved in this civil penalty proceeding: (1) did 

a violation of mandatory safety standard 30 C.F.R. § 56.9-55 occur, and (2) 

what amount should be assessed as a penalty if a violation is found to have 

occurred? In determining the amount of civil penalty that should be assessed 

for a violation, the law requires that six factors be considered: (1) history 

of previous violations; (2) appropriateness of the penalty to the size of the 

operator's business; (3) whether the operator was negligent; (4) effect of the 

penalty on the operator's ability to continue in business; (5) gravity of the 

violation; and (6) the operator's good faith in attempting rapid abatement of 

the violation. 

v. Opinion and Findings of Fact 

A. Stipulations 

1. The parties filed a partial stipulation on January 29, 1981, which 

states, in part, as follows: 

2712 
[a.] This shall be a partial stipulation of some of the 

facts and issues involved in the above-captioned case and 

shall not be construed as precluding either party from 

presenting additional evidence to the Court. 

[b.) That the Administrative Law Judge has jurisdiction 

in matters related to the Federal Mine Safety and Health Act 

of 1977. 

[c.] That the inspectors who issued the Citation and 

Order were duly authorized representatives of the Secretary 

of Labor. 

[d.] That the size of the company as to production tons 

or manhours per year is 469971, as shown in Exhibit A. 

[e.] That the size of the mine as to production tons or 

manhours per year is 10lgl2, as shown in Exhibit A. 

(f.] That the previous assessed penalty for Citation 

365911 was $2,000.00, as shown in Exhibit B. 

[g.J That the proposed assessment of penalty for Citation 365911 is $1,200.00, as shown in Exhibit C. 

[h.] That respondent issued a notice of contest to the 

Mine Safety and Health Administration on July 24, 1980. 

[i.] That the Proposal For Penalty was filed on 

August 25, 1980. 

[j.] That respondent received the Proposal For Penalty on 

August 28, 1980, as shown in Exhibit D. 

[k.] That respondent filed an answer to the Proposal For 

Penalty on September 22, 1980. 

[l.) That the proposed assessment will not harm 

respondent's ability to continue its operations. 

[m.] That Citation 356911 has been terminated as shown 

in Exhibit E. 

[n.] That respondent owned and operated a 1967 model 

Ford - L-800 SN F 80 FUA45485, single axle, 8-ton capacity 

dump truck. 

[o.J That respondent operates a limestone (crushed and 

broken) type facility. 

2713 
2. The parties also stipulated that the Respondent is engaged in interstate commerce and that the Respondent is subject to the provisions of the 

1977 Mine Act (Tr. 7). 

B. Occurrence of Violation 

Citation No. 365911 was issued to the Respondent on April 23, 1980, by 

Federal mine inspector Gene Upton. The citation charges the Respondent.with 

a violation of mandatory safety standard 30 C.F.R. § 56.9-55 in connection 

with a nonfatal accident which occurred at its Eckerty Quarry on April 10, 

1980, in that: 

The loose unconsolidated ground at the dumping point of 

the agricultural lime stockpile was not sufficient to support the weight of the Ford L 800 Serial No. F80FUA45485. 

The agricultural lime was approximately 45 feet in height 

and 90 feet in width at the dumping point. The Ford stockpile truck L 800 Serial No. F80FUA45485 overtraveled at this 

dumping point on [April 10, 1980] and approximately 7:30 a.m. 

was the time of the accident. 

(Exh. G-2). 

The agricultural lime stockpile was roughly 45 feet in height and was 

rougly 100 feet in width across the top. lf It had sloping sides and a berm 

around the edge at the top except in the area directly affected by the 

activities of the front-end loader in use at the base of the stockpile. The 

front-end loader was removing agricultural lime from the stockpile and loading 

it onto customers' trucks (Exh. 0-1). 2/ The activities of the front-end 

loader had caused in that area both the formation of a vertical face on the 

side of the stockpile and the destruction of the berm. Both conditions 

developed as a result of material caving off from the side of the stockpile. 

Mr. John E. Knust, one of the Respondent's stockpile truck drivers and 

the individual involved in the accident, reported for work at the Eckerty 

Quarry at approximately 7 a.m. on April 10, 1980. He acquired a load of 

agricultural lime from the bins and drove up the ramp leading to the top of 

the stockpile. l__/ Upon reaching the top, he backed his truck into position 

to dump his load. He stopped approximately 10 feet from the edge in an area 

directly above the vertical face of the stockpile created by the activities 

~-The-measurements were taken during the course of the April 22, 1980, 

accident investigation conducted by the Mine Safety and Health Administration. 

The Federal mine inspectors were informed by employees of the company that the 

conditions were approximately the same as those which had existed at the time 

of the accident. 

2/ The load-out operations began at approximately 5:30 a.m. on April 10, 1980. 

3/ Mr. Knust was using a Ford L-800, 8-ton capacity dlllUp truck on the day of 

the accident (see Tr. 16, 44, Stipulation ln.). 

2714 
of the front-end loader working below (Exh. 0-1). For the reasons noted 

previously, there was no berm behind the truck. 4/ As the truckbed began to 

rise, the ground beneath the truck gave way causing the truck to slide down 

the side of the stockpile and overturn as it neared the bottom demolishing 

the cab (Exhs. G-9, G-10). The accident occurred at approximately 7~30 a.m. 

after Mr. Knust transported what was to have been his first load of material 

to the stock pile that day. 

Mandatory safety standard 30 C.F.R. § 56.9-55 provides that 11 [w]here 

there is evidence that the ground at a dmnping place may fail to support the 

weight of a vehicle, loads shall be dumped back from the edge of the bank." 

The regulation thus requires that where there is evidence that the ground at 

a dumping place may fail to support the weight of a vehicle, loads shall be 

dumped at a sufficient distance from the edge of the bank to prevent a ground 

collapse. 

The fact that the accident occurred indicates that dumping was not 

being performed at a sufficient distance from the edge of the stockpile to 

prevent a ground collapse. The evidence presented, as set forth in the 

testimony of Inspector Upton and as confirmed by the testimony of other 

witnesses, demonstrates that ample evidence was present on April 10, 1980, 

to show that the ground beneath the truck may have been inadequate to support its weight. 

The ground was moist on April 10, 1980, as a result of recent rainfall. 

Inspector Upton testified as an expert in the field of mine safety and health 

that agricultural lime is partially dust and partially a granular material 

which is affected by rainfall. The inspector further testified that rainfall 

causes an erosion effect and washes away the finer dust leaving the granular 

material, which would be unconsolidating. According to the inspector, this 

would cause the agricultural lime pi.le to become "softer". Additionally, he 

test:i.fied that loading out material from the s:i.de of the stockpile would 

cause the ground a top the stockpile to be unstable, and that such instabHity 

could be detected by examining the edge of the pile in that the material 

would be caving off and caus:i.ng different types of faces at d:i.fferent times. 

In the inspector's opinion, the accident was caused because the loose, 

unconsolidated ground was insufficient to support the weight of the truck. 

The moisture, the type of ground and the vertical face were the physical 

factors upon wh:i.ch h:i.s opinion was based. 

Mr. Knust gave testimony at one point wh:i.ch supports the conclusion that 

the rainfall had adversely affected the agricultural lime stockpile. He 

test:i.fied that the ground was damp as a result of the recent rainfall and 

that the ground "was usually harder" than it was on April 10, 1980 (Tr. 16~ 

17). 21 

u-Mr. Krlust testified that he misjudged the locat:i.on of the berm while 

back:i.ng into position. He glanced out of his rearview mirror and thought 

that one side of the truck was going to be against a berm (Tr. 106, 110). 

This belief proved erroneous. 

21 Mr. Knust attempted to retract this statement several questions later by 

maintaining that the rainfall had made the ground harder, not softer, because 

271~) 
Messrs. Knust and Eckert gave testimony which supports the conclusion 

that the load-out activities uriderway at the base of the stockpile and the 

associated vertical face on the side of the stockpile were evidence that the 

ground at the dumping place could fail to support the weight of the truck. 

When asked whether he observed any ground condition which would have indicated that it was unsafe "to put your truck where it was," Mr. Knust testified that the "only thing is that I seen that they were loading out at that 

particular place on the pile". Mr. Eckert testified that the worst hazard 

in stockpiling is associated with the load-out operation because loading-out 

causes the remaining material on the side of the pile to slide downwards. 

The Respondent has placed great emphasis on its purported requirement 

that loads be dumped at least 10 feet from the edge of the stockpile where 

berms are absent in arguing that no violation occurred. The Respondent maintains that "[s]ince the cited standard does not specify a distance, but only 

requires that loads be dumped 'back from the edge,' the distance of ten feet 

established by the company and adhered to by Mr. Knust is reasonable and in 

compliance" (Respondent's Posthearing Brief, p. 3). The Respondent's argument is not well founded. Mr. Robert Scheible, the Respondent's assistant 

safety director, testified only that in his opinion dumping 10 feet from the 

edge would be sufficient in most cases. He conceded that under some circumstances dumping 50 feet from the edge would be insufficient and maintained 

that a driver must use his own judgment as to "whether 10 feet, 20 feet, 

30 feet or 40 feet, or maybe not at all is sufficient" (Tr. 174). He further 

testified that "[w]e dump every day on these piles and there is certainly 

a lot of them being dumped closer than 10 foot" (Tr. 174·-175). In summary, 

Mr. Scheible's testimony establishes that a fixed distance requirement is not 

adequate under all circumstances to assure the requisite protection against 

the hazards associated with ground failure, and that loads at the Eckerty 

Quarry are in fact dumped at distances less.than 10 feet from the edge of 

the stockpile. It is clear beyond any doubt that 10 feet was inadequate in 

view of the conditions existing on April 10, 1980. 

In view of the foregoing, I conclude that a violation of mandatory 

safety standard 30 C.F.R. § 56.9-55 has been established by a preponderance 

of the evidence. 

C. Negligence of the Operator 

Mr. Gordon Ray Eckert, the supervisor in direct charge of operations at 

the Eckerty Quarry, arrived at the facility at approximately 6:30 a.mo on 

fn. 5 (continued) 

agricultural lime gets harder when it gets wet (Tr. 18). Such attempted 

retraction is not considered credible. It should also be noted that both 

Mr. Clifton Cook III, another one of the Respondent's stockpile truck drivers, 

and Mr. Gordon Ray Eckert, a supervisor, testified that agricultural lime 

hardens when it gets wet (Tr. 81, 117). Their testimony on this point is 

considered insufficient to establish the actual condition of the ground at 

the time of the accident in view of the credible testimony of Mr. Knust that 

the ground was usually harder than it was on April 10, 1980. 

27lfj 
April 10, 1980 (Tr. 139-140). It was customary for Mr. Eckert to make a 

series of rounds upon reporting for work which entailed driving first through 

the quarry area and thereafter examining the stockpiles (Tr. 121, 140). His 

customary practice was to drive atop the stockpile and perform an examination 

so as to detect any hazards (Tr. 121). On the morning of April 10, 1980, he 

drove around the subject stockpile passing within 45 feet of it. However, 

for some unexplained reason, he did not drive atop it (Tr. 120-122, 140, 

145). 

In view of the activities of the loader operator and the readily visible 

condition arising as a consequence of his activities, Mr. Eckert was under an 

affirmative obligation to perform a more thorough examination of the stockpile, which would have included driving atop it, designed to detect the 

hazardous condition developing and to thereafter undertake effective steps 

designed to prevent the occurrence of the type of accident involved herein. 

It should be noted that the Respondent had given Mr. Knust some initial 

training in stockpiling which included instructions that he get out of the 

truck and examine the ground atop the stockpile prior to backing the truck 

into position to dump a load of agricultural lime. Mr. Knust was negligent 

in that he failed to perform such an examination on April 10, 1980. However, 

when viewed in context, it is clear that the Respondent was under an obligation to provide additional instructions to Mr. Knust on April 10, 1980, 

because he had been working as a full time stockpile truck driver for only 

approximately 1 week prior to the accident. As stated in the preceding 

paragraph, Mr. Eckert was under an affirmative obligation to perform a more 

thorough examination of the stockpile designed to detect the hazardous condition developing and to thereafter undertake effective steps designed to 

prevent the occurrence of the type of accident involved herein. In view of 

Mr. Knust's relative inexperience, such effective steps would have included 

either giving Mr. Knust additional instructions in stockpiling specifically 

tailored to the hazards then existing or instructing the loader operator to 

establish a berm atop the stockpile in the affected area. 

In view of the foregoing, it is found that the Respondent demonstrated 

a high degree of ordinary negli.gence in connection with the violation. 

D. Gravity of the Violation 

The ground beneath the truck gave way causing the truck to slide down 

the side of the agricultural lime stockpile, overturn and land upside down 

demolishing the cab (Exhs. G-9, G-10). The driver was knocked unconscious 

and received bruises to the chest, right shoulder and hip, and received lime 

dust in his eyes (Exh. G-12). The driver lost 6 to 8 workdays as a result 

of the accident. 

2717 
Although the injuries sustained were not more severe, it is clear that 

Mr. Knust was exposed to potentially fatal or potentially permanently disabling injuries. In view of all of the circumstances surrounding the accident, it is found that the violation was extremely serious. 

E. Good Faith in Attempting Rapid Abatement 

The citation was terminated within the time period specified for abatement (Exh. G-2). Accordingly, it is found that the Respondent demonstrated 

'good faith in attempting rapid abatement. 

F. Size of the Operator's Business 

The parties stipulated that the Respondent's size is rated at 469,971 

annual production tons or man-hours, and that the size of the Eckerty Quarry 

is rated at 101,812 annual production tons or man-hours. 

G. History of Previous Violations 

No evidence was presented to establish that the Respondent has a history 

of previous violations for which assessments have been paid. 6/ Accordingly, 

it is found that the Respondent has no history of previous violations 

cognizable in this proceeding. 

6/ Exhibit B attached to the partial stipulation filed on January 29, 1981, 

contains the statement that the Respondent had a total of seven assessed 

violations during the preceding 24 months. However, in view of the wording 

of the stipulation, it is clear that the parties did not stipulate this 

figure into the record. 

However, assuming for purposes of argument that this figure is properly 

part of the record in this case, it cannot be determined therefrom that the 

Respondent has a history of previous violations which is cognizable in this 

proceeding. First, it appears that the 24 months was measured with reference 

to April 23, 1980, and not with reference to the date of the violation. The 

appropriate point of reference for determining the Respondent's history of 

previous violations is the date of the violation, April 10, 1980, and not 

the date when the citation was issued, April 23, 1980. It cannot be deter~· 

mined how many, if any, of the seven assessed violations occurred prior to 

April 10, 1980. Second, there is no indication that the Respondent has 

actually paid civil penalties for any or all of the seven assessed violations. 

It is well settled that paid assessments are the only assessments properly 

included in a mine operator's history of previous violations. See Peggs Run 

Coal Company, Inc., 6 IBMA 212, 83 I.D. 245, 1976-1977 CCR OSHD par. 20,839 

(1976); Peggs Run Coal Company, Inc., 5 IBMA 144, 148-150, 82 I.D. 445, 1 BNA 

MSHC 1343, 1975~1976 CCH OSHD par. 20,001 (1975); Old Ben Coal Company, 4 IBMA 

198, 217-218, 82 I.D. 264, 1 BNA MSHC 1279, 1974-1975 CCH OSHD par. 19,723 

(1975); Corporation of the Presiding Bishop, Church of Jesus Christ of Latter 

Day Saints, 2 IBMA 285, 80 I.D. 633, 1973-1974 CCH OSHD par. 16,913 (1973); 

V tlley Camp Coal Company, 1 IBMA 196, 203-204, 79 I.D. 625, 1 BNA MSHC 1043, 

1971-1973 CCH OSHD par. 15,385 (1972). 

2718 
H. to Remain 

The parties stipulated that the payment of a $1,200 civ:il penalty will 

not hann the Respondent's ab:i.l:i.ty to continue its operations. Additionally, 

no evidence was presented by the Respondent to show that the assessment of 

a civil penalty greater than $1,200 will affect its ability to remain :i.n 

bus:i.ness. 

In Hall Coal Company, l IBMA 175, 79 I.D. 668, 1 BNA MSHC 1037, 1971·~ 

1973 ccrCosr-fDpar-:-1~380 (1972), the Federal M:i.ne Safety and Health Review 

Commission's predecessor, the Interior Board of Mine Operations Appeals, held 

that evidence relating to whether a civil penalty will affect the operator's 

ability to remain in business is within the operator's control, resulting in 

a rebuttable presumption that the operator's ability to continue in business 

will not be affected by the assessment of a civ:i.l penalty. 

In view of the foregoing, I conclude that a civil penalty otherw:i.se 

properly assessed in this proceeding will not impair the Respondent's ability 

to remain in business. 

VI. Conclusions of Law 

1. Mulzer Crushed Stone Company and its Eckerty Quarry have been subject to the provisions of the 1977 Mine Act at all times relevant to this 

proceeding. 

2. Under the 1977 Mine Act~ the Administrative Law Judge has jurisdic~ 

ti.on over the subject matter of, and the parties to, this proceeding. 

3. Federal mine inspector Gene Upton was a duly authorized representa~ 

tive of the Secretary of Labor at all times relevant to the issuance of 

Citation No. 365911, April 23, 1980, 30 C.F.R. § 56.9~55. 

4. The violation charged in Citation No. 365911, April 23, 1980, 

30 C.F.R. § 56.9-55, is found to have occurred. 

5. All of the conclus:i.ons of law set forth :i.n Part V, E.npra, are 

reaffirmed and incorporated herein. 

Both parties delivered closing arguments on January 29, 1981. The 

Respondent and the Petitioner filed posthearing briefs. The Respondent filed 

a reply brief. Such closing arguments and briefs, insofar as they can be 

considered to have contained proposed findings and conclusions, have been 

considered fully, and except to the extent that such find:i.ngs and conclusions 

have been expressly or impliedly affirmed in this decision, they are rejected 

on the grounds that they are, in whole or in part, contrary to the facts and 

law or because they are immaterial to the decision in this case. 
VIII. Penalty Assessed 

Upon consideration of the entire record in this case and the foregoing 

findings of fact and conclusions of law, I find that the assessment of a 

civil penalty is warranted as follows: 

Citation No. Date 30 C.F.R. Standard Penalty 

365911 April 23, 1980 56.9-55 $8QO 

ORDER 

The Respondent is ORDERED to pay a civil penalty in the amount of $800 

within 30 days of the date of this decision. 

Distribution: 

Steven E. Walanka, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail) 

Philip E. Balcomb, Manager, Mulzer Crushed Stone Company, P.O. Box 248, 

Tell City, IN 47588 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, 

U.S. Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

2720 
FEDitlRAL MINE SAFETY AND HEAL TH REVIEW COMMISSDON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OLD DOMINION POWER COHPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADHINISTRATION (MSHA), 

Petitioner 

v. 

OLD DOMINION POWER COMPAi~Y, 

Respondent 

i.,·~ fh; ,., t l 

ftlU 1r ") \J 

Contest of Citation 

Docket No. VA 81-40-R 

Citation No. 683762-1 

January 21, 1981 

Westmoreland Coal Company's 

Central Machine Shop 

Civil Penalty Proceeding 

Docket No. VA 81-65 1/ 

Assessment Control 

No. 44-03108-03001 F KG2 

Westmoreland Coal Company's 

Central Machine Shop 

DECISION 

Appearances: 

Before: 

IJilliam D. Lambert, Esq., Ogden, Robertson & 1-Iarshall, 

Louisville, Kentucky, for Old Dominion Power Company; 

Leo J. McGinn, Esq., Office pf the Solicitor, U.S. Department of Labor, for Secretary of Labor. 

Administrative Law Judge Steffey 

Pursuant to an order issued March 20, 1981, a hearing in the aboveentitled proceeding was held on April 22, 1981, in Wise, Virginia, under 

section 105(d) of the Federal Mine Safety and llealth Act of 1977, 30 U.S.C. 

§ 815(d). 

At the conclusion of the hearing, counsel for the parties indicated 

that they would like to file posthearing briefs. Counsel for Old Dominion 

Power Company (hereinafter referred to as OD) filed his brief on July 17, 

1981, and counsel for the Secretary of Labor and the Hine Safety and Health 

Administration (hereinafter referred to as HSHA) filed his brief on July 15, 

1981. 2/ 

1/ The actual Petition for Assessment of Civil Penalty had not been filed 

in Docket No. VA 81-65 at the time the hearing was held, but my order issued 

March 20, 1981, consolidated the civil penalty issues with the issues raised 

by the Notice of Contest. Therefore, the civil penalty issues are ripe for 

decision on the basis of the record made in this proceeding. 

]:j This decision has been delayed by the fact that I was out of the off ice 

for 4 weeks because of an eye operation. 

2721 
Issues 

Although the parties' briefs discuss identical issues, I have elected 

to use the phraseology employed in OD's brief to state the issues because 

all of the issues are hereinafter decided adversely to OD. If OD files a 

petition for discretionary review, the Commission's determinations will be 

facilitated by my having arranged my decision so as to track the issues 

raised in OD's brief. Those issues are listed below: 

(1) Is OD an "operator" or "independent contractor" within the scope of 

the Act? 

(2) Are MSHA's regulations defining "operators" arbitrary and capricious and unconstitutional delegations of legislative authority? 

(3) Is OSHA responsible for [investigating] the conduct cited by MSHA? 

(4) Is a 1-year delay in issuing a citation "reasonable promptness" as 

required by the Act? 

(5) Is any civil penalty justified? 

Findings of Fact 

My decision will be based on the findings of fact set forth below. Hy 

findings include all of the principal facts on which the parties rely in 

support of their arguments. 

1. Old Dominion Power Company is a subsidiary of Kentucky Utilities 

Company and purchases from its parent company all of the electricity it sells 

to its customers (Tr. 39). OD does not own or operate any generating facilities. OD's service area is located entirely in Southwestern Virginia and 

is cc·rnprised of the counties of Lee, Wise, Scott, Dickenson, and Russell. 

OD r:~mploys about 80 persons, including service men, meter readers, substation 

te~iltlicians, office clerks, engineers, customer service representatives, and 

janitors (Tr. 17). Its sales of electricity amount to $24,000,000 on an annual 

basis (Tr. 23). OD does not own mining properties and is not involved in 

operating coal mines or any other type of mine (Tr. 18). 

2. OD is regulated by the Virginia State Corporation Commission and the 

rate schedules and contracts under which it sells electric power are on file 

with that Commission (Tr. 17). OD owns poles, towers, fixtures, wire, conductors, and other facilities used in the transmission, distribution and sale 

of electrical energy and its facilities are subject to inspection by the 

Occupational Safety and Health Administration (Tr. 12; 18; 71-72). 

3. OD does not normally perform construction work for which it makes a 

special charge. During the last 10 years, for example, in only four instances 

did it perform work which it agrees would permit it to be given the label of 

a "contractor". Those instances involved the installation of some poles, wires, 

and metering equipment. In one instance, the charge for the work was between 

$2,500 and $3,000 and the total amount involved in the other three cases would 

2722 
not exceed $1,000. The largest charge related to some metering equipment 

installed for a coal company other than the coal companies specifically 

involved in this proceeding (Tr. 21-23). 

4. OD serves all customers of all types in its service area, including 

coal companies, manufacturing companies, clothing stores, fast-food restaurants, and residences. It has more residential customers than any other type 

of customers (Tr. 19). Westmoreland Coal Company is among the customers which 

OD serves. OD's contracts with Westmoreland and its predecessor, Stonega Coal 

and Coke Company, date back to 1917 (Tr. 23). The contract with Westmoreland 

was updated in December 1952, to be effective on January 1, 1953, and provides 

for specific delivery points and voltages, with the right of Westmoreland to 

seek additional points of service (Tr. 24). OD presently has about 20 places 

where service is rendered to Westmoreland, some for Westmoreland's own use 

and some for operations involving companies which have contracted to mine 

coal for Westmoreland (Tr. 28). 

5. The electrical substation involved in this proceeding was erected 

on land owned by Penn-Virginia Resources Corporation and leased by Westmoreland. Power from the substation is received for use in a mine which Westmoreland has leased to Elro Coal Corporation and all coal produced by Elro is sold 

to Westmoreland which, in turn, sells the coal for steam generating purposes 

(Tr. 13). Westmoreland hired Vanderpool Electric Corporation to construct a 

transmission line from one of its existing substations to the substation involved in this proceeding (Tr. 43). The substation was constructed by Westmoreland so that Elro could receive power to operate the equipment in its 

No. 3 i1ine and Westmoreland operates the substation and is billed by OD for 

power received at the substation (Tr. 27-28). 

6. The only factilities installed by OD 1 s employees at the substation 

consist of three current transformers, two potential transformers, and a meter 

(Tr. 34). Two of OD's employees had been to the substation to install those 

facilities prior to the time the substation was first energized (Tr. 35). OD 

did not charge Westmoreland any specific fee for installing the facilities 

other than the charge which OD makes for power delivered to the substation. 

OD does not consider the installation made at the substation to be any different 

from the type of work which is done at any other delivery point to any other 

type of customer (Tr. 29). Occasionally, OD installs check meters for some of 

its customers, but when it does so, it only charges its customers the price 

which it pays for such equipment, plus storage, freight, and handling expenses 

(Tr. 29). OD normally does not have to send its personnel to a substation more 

than once each month for the purpose of reading the meter, unless some special 

problem occurs (Tr. 35). If problems do occur at a substation, the customer 

calls OD and OD's employees determine what the cause of the problem is and 

make repairs, acting independently of its customer's employees if the problems 

are related to the facilities installed by OD (Tr. 81). 

7. Inasmuch as this proceeding involves a fatal accident which occurred 

at the substation discussed above, it is necessary that the substation be 

272a 
described in some detail. The substation is surrounded by a wire fence and 

has a gate on one side. The substation's purpose is to reduce the incoming 

voltage from 12,470 volts to the voltage which is used in Elro's No. 3 Mine 

(Tr. 26). Exhibit D is a picture of the substation. There are poles and 

crossbars on the left and right sides of the substation. High voltage comes 

into the substation from the left side and the voltage is reduced by the large 

transformers sitting on the ground at the left side of the substation (Tr. 50-

51). The facilities installed by OD are situated on the bottom crossbar of 

the two poles on the right side of the substation. The meter may be seen 

on the pole in the foreground of Exhibit D and the current and potential 

transformers are located on the bottom crossbar which is situated just above 

the meter (Tr. 48). 

8. Exhibit E is a picture of the fuse disconnects through which the 

high voltage passes before entering the transformers for voltage reduction. 

The fuse disconnects are shown in the middle of Exhibit E and may also be 

seen on the crossbar closest to the ground on the poles on the left side of 

Exhibit D (Tr. 52). A fuse link extends between the holders located on each 

end of the two-part insulators. The high voltage passes through the fuse link 

unless a short circuit or other problem causes an overload on the system to 

burn out the element in the fuse link so as to interrupt the flow of current 

(Tr. 59). Fuse links of several types were described at the hearing and samples of two types were introduced in evidence as Exhibits F and I. Exhibit F 

is a type which passes through a tube about 1 inch in diameter. The tube 

is attached to both ends of the fuse holders shown in Exhibits D and E. If 

the fuse link burns out or power to the substation is interrupted, the tube 

(or barrel) falls down from the top holder and hangs in a vertical position 

from the bottom holder, as shown in the diagram which is Exhibit G in this 

proceeding (Tr. 53-56). The other type of fuse link is similar to the wire 

described above, but it is not installed inside a tube and therefore may be 

in place and power may be flowing through it without its exhibiting any signs 

as to whether it is "alive" with power flowing through it or "dead" with no 

energy flowing through it (Tr. 58; 101). 

9. The substation was first energized about 5 or 6 p.m. on January 21, 

1980, by Westmoreland's electrical foreman, Terry Mullins. The next day, 

January 22, about 8:15 a.m., Hullins talked to OD's superintendent of meters, 

Jack Carr, on the telephone and expressed to Carr his doubts as to whether 

Old Dominion's meter at the substation was working properly because no light 

was visible in the meter and because the disk in the meter was turning counterclockwise. In Carr's opinion, the disk was supposed to turn counterclockwise, 

but, to make certain that there was nothing wrong with the meter, he sent two 

employees to the substation to check the meter (Tr. 99-100). The two employees 

were James Harlow, a substation technician, and Leonard Lambert, a meter man, 

first class (Tr. 44; 48; 88). Harlow had helped install the current and potential transformers and meter at the substation. Lambert would normally 

have participated in the installation, but he was on vacation when the equipment was originally installed sometime in December 1979 (Tr. 38). Lambert had, 

however, gone to the substation on January 21 and had installed a replacement 

meter (Tr. 89) • 

2724 
10. When Harlow and Lambert arrived at the substation, Harlow, who was 

on the side of the van nearest to the substation, jumped out and looked at 

the fuse disconnects described in Finding No. 8 above. He was used to seeing 

the type of fuse link which is installed inside a tube. It was foggy and he 

did not see any tube or wire between the fuse holders or hanging down from 

the bottom holder, so he concluded that the substation was deenergized. 

Lambert took Harlow's word for the fact that the substation was deenergized 

(Tr. 49; 90-91). They did not at first go inside the fence around the substation to look at the meter because they concluded that the meter could not 

be checked while no power was flowing through it (Tr. 91; 94; 121). Although 

the substation was energized and there was a hum coming from the transformers 

(Tr. 49; 105), they apparently did not hear the hum because of noise coming 

from a nearby generator (Tr. 119). 

11. Harlow and Lambert returned to their van, started the engine, and 

were ready to leave when it occurred to them that the GE transformers they 

had installed were of a new type and might have a rating of 5 KW instead of 

the 15 KW which they should have had. They decided to check the nameplate 

on the transformers to determine their classification. Harlow put on climbing 

equipment and went up the pole to examine the nameplate. He could not see 

the plate clearly because of water on it. Ile reached out with one hand to 

rub the water off the nameplate and was illlillediately electrocuted when his 

hand touched the energized transformer (Tr. 63; 91-96). 

12. OD has a safety program and has safety meetings of various kinds on 

a weekly and quarterly basis (Tr. 67-70). OD's Safety Manual provides in 

Part III, Section l, Paragraph 31-1, "Electrical equipment and lines shall 

always be considered to be energized unless they are positively proven to be 

deenergized and properly grounded. IF IT IS:N' T GROUNDED--IT ISN'T DEAD!" 

(Exh. H; Tr. 65). Part I, Section 1, of the rules provides in paragraph 

11-1 (b) that each employee ">'; 1; >'; shall carefully study (not merely read) 11 

the safety rules applying to his duties and specifies that "~'; ~·; >'; ignorance 

will not be accepted as an excuse for their violation." Additionally, the 

same paragraph provides that employees may be periodically examined on their 

knowledge of the rules (Tr. 65-66). 

13. The fatal accident was investigated by OD and by both OSHA and 

MSHA. OD's general manager, H. E. Armsey, stated that OSHA did not cite the 

company for any violation in connection with the accident because the deceased 

employee "~'; ~·; >'; had violated a long-standing rule of the electrical utility 

industry as well as Old Dominion Power Company's" (Tr. 71). Several of MSHA's 

employees, including an electrical engineer named Roy Davidson, participated 

in investigating the accident. After the investigation had been completed, 

Davidson concluded that OD's employees had violated 30 C.F.R. § 77.704 

which provides, in pertinent part, that "[h]igh-voltage lines shall be deenergized and grounded before work is performed on them". Davidson explained 

that in some circumstances, not applicable in this proceeding, work may be 

done on high-voltage lines while they are energized (Tr. 114-117). When work 

is done on energized high-voltage lines, special protective equipment must 

be utilized. Section 77-704-2(4) prohibits persons from working on energized 

high-voltage equipment if adverse weather conditions exist. Since it was 

rainy and foggy on the day of the accident, OD's employees would have acted 

2725 
in violation of section 77.704 even if they had utilized special protective 

equipment and clothing (Tr. 136). 

14. Although Davidson concluded very shortly after the investigation 

that a violation of section 77.704 had occurred, confusion arose as to which 

entity should be cited for the violation because Elro Coal Corporation was 

using the power received at the substation~Westmoreland owned and operated 

the substation, and OD's employees did the work which caused the fatal accident (Tr. 109). Davidson first issued a citation to Elro and thereafter was 

directed to reissue the citation in Westmoreland's name. He reissued it on 

April 3, 1980, citing Westmoreland for the violation (Exh. 2). After the 

citation in Westmoreland's name had been sent to the Assessment Of~ice for 

processing under the civil penalty provisions of the Act, Davidson was 

directed to vacate the citation issued to Westmoreland and reissue it in the 

name of OD because, by then, the rulemaking proceedings providing for citing 

independent contractors for violations occurring at coal mines had been completed (Tr. 111-113). Therefore, Davidson issued Citation No. 668762 on 

January 19, 1981, as modified on January 21, 1981, citing Old Dominion for 

a violation of section 77.704 in connection with the fatal accident (Exh.l; 

Tr. 113). 

15. Davidson 1 s statement evaluating the penalty-assessment criteria of 

negligence, gravity, and good-faith abatement was received in evidence as 

Exhibit 3. Davidson considered OD to have been nonnegligent because the 

person who was killed had been told before he left his duty station that the 

substation had been enersized (Tr. 123). Davidson considered the violation 

to have been very serious since a person was fatally injured (Tr. 128). He 

believed that OD had shown a good-faith effort to achieve compliance because 

its employees were reinstructed in safe procedures for making repairs on highvoltage systems within the time provided in the citation (Exh. 3; Tr. 139). 

Consideration of Parties' Arguments 

1. Is OD an "operator" or "independent contractor" within the scope 

of the Act? 

OD's brief (pp. 9-14) contends that it is not an "operator" or 

pendent contractor" within the meaning of section 3(d) of the Act. 

defines an "operator" as follows: 

an "indeSec tion 3(d) 

(d) "operator" means any owner, lessee, or other person who 

operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine; 

OD's brief (pp. 9-10) begins its argument tho.t it is not an "operator" within 

the meaning of section 3(d) by noting that the definition of "operator" in the 

1969 Act did not specifically refer to independent contractors at all. OD concedes that the definition of "operator" was broadened in the 1977 Act to cover 

independent contractors, but OD cites language from the legislative history 

which, it says, shows that Congress did not intend for an independent con~ 

tractor to be considered as an "operator 11 unless such independent contractor 

has a continuing presence at the mine and unless such independent contractor 

is "under contract or otherwise, engaged in the extraction process for the 

272fi 
benefit of the owner or lessee of the property and to make clear that the 

employees of such individuals or firms are miners within the definition of 

the "[1977 Act].)_/ 

OD's brief (p. 11) next relies upon a quotation from National Indus. Sand 

Ass'n v. Marshall, 601 F.2d 689 (3rd Cir. 1979), in which the court stated 

(at page 701): 

* * * The reference made in the statute only to independent contractors 

who "perform[] services or construction" may be understood as indicating, 

however, that not all independent contractors are to be considered operators. There may be a point, at least, at which an independent contractor's contact with a mine is so infrequent or de minimis that it would 

be difficult to conclude that services were being performed. * * * 

OD argues that it is required to serve all customers within its service area, 

including Westmoreland Coal Company, with electricity. OD claims that its 

meter is situated in a coal company's substation, but that the substation is 

a considerable distance from any actual mine site where coal is produced. 

OD states that the only reason its personnel visit a substation is to install, 

read, inspect, and repair meters and related equipment. OD claims that its 

services at a substation are for its own benefit so that it can send a bill to 

its customer for power it has used, In such circumstances, OD argues that its 

services are certainly de minimis and that it may not properly be found to be 

an "operator" within th-;;-meaning of section 3(d) of the Act. 

OD's next argument (Br., p. 12) is that interpretations of whether a company 

is an "operator" within the meaning of section 3(d) should be made under the 

rule of ejusdem generis so that an independent contractor should not be found 

to be an "operator" unless its activities would justify placing it in the category of an "owner" or "lessee" to which reference is first made in section 3(d), 

OD points to the National Indus. Sand case, supra, and notes that the court 

in !:l1ai:: case stated that the principle of ejusdem generis had been used by 

another court in Association of Bituminous Contractors v. Andrus, 581 F.Zd 853 

(D.C. Cir. 1978), to find that the words "other persons" in section 3(d) 

includes independent contractors who "control, operate or supervise a coal 

mine". OD contends, however, that a similar conclusion would be improper 

as to OD in this proceeding because OD does not have a "substantial participation in the running of" a coal mine as the court in National Indus. Sand 

case thought was necessary before an independent contractor can be found to 

be an "operator" within the meaning of section 3(d). 

OD's brief (p. 13) next cites a sentence from National Indus. Sand in 

which the court stated (601 F.2d at 702, fn 43): 

3/ The quotation above is taken from a paragraph appearing on page 14 of 

Senate Report No. 95-181, 95th Congress, 1st Session, or page 602 of the 

Legislative History of the Federal Hine Safety and Health Act of 1977 prepared 

for the Subcommittee on Labor of the Committee on Human Resources, United 

States Senate, July 1978. 

2727 
* * * Inclusion as operators of those coal mine construction companies 

which "do control and supervise the construction work they have contracted to perform" would in all likelihood as Bituminous Contractors 

presages, constitute a reasonable exercise of the Secretary's authority. 

OD argues, on the basis of the above quotation, that finding it to be an independent contractor and an "operator" within the meaning of section 3(d) would 

disregard the substance of its contacts with the mine operation and would 

exceed the congressional intent stated in the legislative history. 

Finally, OD's brief (p. 13) cites National Independent Coal Operators 

Ass'n. v. Brennan, 372 F.Supp. 16 (D.C.D.C. 1974), aff'd, 419 U.S. 955, and 

claims that the court in that case struck down the Secretary's liberal interpretation of the word "operator" so as to include as "operators" under the Act 

construction companies not involved in the mining process. OD's brief (p. 14) 

thereafter summarizes its arguments above to the effect that contractors made 

subject to the Act should be ~ngaged in construction at the mine, or involved 

in the extraction process, and have a continuing presence at the mine. OD 

contends that its activities fail to satisfy any of the criteria required for 

finding it to be an "operator" within the meaning of section J(d). 

When one reads the legislative history and court decisions on which OD 

relies in the preceding summary of its arguments, it is found that the decisions 

are all adverse to the arguments which OD makes. As for OD's claims that the 

legislative history shows that Congress did not intend for an electric power 

company to be found to be an "operator" under the Act, on the same page from 

Senate Report No. 95-181 from which OD lifted the quotation I have set forth 

above, the Committee also stated (Report No. 95-181, p. 14, or Legislative 

History, supra, p. 602): 

'f• ,., i• The Committee notes that there may be a need to resolve jurisdictional conflicts, but it is the Committee's intention that what is 

considered to be a mine and to be regulated under this Act be given 

the broadest possiblfe] interpretation, and it is the intent of this 

Committee that doubts be resolved in favor of inclusion of a facility 

within the coverage of the Act. 

* * * In enforcing this Act, the Secretary should be able to issue 

citations, notices, and orders, and the Commission should be able to 

assess civil penalties against such independent contractors as well 

as against the owner, operator, or lessee of the mine. The Committee 

notes that this concept has been approved by the federal court in 

Bituminous Coal Operators' Assn. v. Secretary of the Interior, 547 F2d 

240 (C.A.4, 1977). 

Thus, before the 1977 Act even became effective, the courts had already held 

that independent contractors could be found to be "operators" within the meaning of section 3(d) before that section was specifically amended to include 

independent contractors as "operators". Moreover, the Fourth Circuit in the 

Bituminous Coal case referred to inthe quotation above from Senate Report 

No. 95-181, the court stated that the Brennan case, supra, on which OD relies, 

2728 
''* * * does not furnish persuasive authority for decision of the issues in 

this case" because the holding in Brennan was made with respect to whether 

independent contractors had to comply wit-h the "black lung" provisions of 

Title IV of the Act rather than with the safety regulations which are involved 

in Titles II and III of the Act (547 F.2d at 245). Consequently, OD's reliance on the Brennan case is misplaced because that decision had nothing to 

do with whether the Secretary can cite an electrical company for violations 

of the mandatory safety standards when the electrical company is rendering 

services for a coal company on mine property. 

In the BCOA case cited in Senate Report No. 98-181, the court referred to 

power lines as one of the facilities which independent contractors might construct on mine property and be found to be operators within the meaning of the 

Act (547 F.2d at 243). The court held that when a contractor sinks a shaft 

or places other equipment on mine property, it is performing work on facilities which are "to be used in" the work of extracting or processing coal (SL17 

F. 2d at 245). Moreover, the court stated that the ">'< ;'< ;'; fatality rate for 

contractors' employees is greater than that for the rest of the coal mining 

industry". Inasmuch as the Senate Report which OD cites in support of its 

claim that Congress did not intend for electrical companies to be cited as 

"operators" shows that the Committee was aware of the holdings of the court 

in the BCOA case, there is little merit to OD's claim that Congress could not 

have intended that electrical companies be cited as "operators" when they 

amended the definition of "operators" to include independent contractors which 

are "performing services or construction at such mine". 

Also OD can take no comfort from the holding of the court in the Assn. of 

Bituminous Contractors case, supra, in which the court applied the principle 

of ejusdem generis and found that the term "operator", as used in section 3(d) 

would include independent contractors because they are similar in nature to 

"owners" and "lessees" because they supervise and control a "coal mine" as that 

term is defined in the Act (581 F.2d at 861). The part of the court's rationale which OD fails to consider is that the court did not hold that the independent contractor has to participate in the actual extraction of coal in order 

to be found to be an independent contractor and an "operator" within the meaning 

of the Act. The court interpreted the words "controls, or supervises a coal 

mine" in section 3(d) of the Act to include independent contractors who "control 

and supervise the construction work they have contracted to perform over the 

area where they are working" (581 F. 2d at 362-863). [Emphasis in original.] 

In this proceeding, OD's contract with Westmoreland required Westmoreland 

to provide OD with (Exh. B, page 2): 

"< ;~ ;~the right, privilege and easement to construct, operate, use and 

maintain electric power and transmission lines for the transmission of 

electrical energy, and a telephone line for communication, together 

with all necessary towers, foundations, poles, wires, cables, guy wires, 

stay wires, braces and all other fixtures and appliances necessary or 

convenient for said purposes on and over the surface of all those five 

certain strips or parcels of land situate(d] in Wise and Lee Counties, 

Virginia >~1dc 

Under OD's rules and regulations on file with the Virginia Corporation Commission, OD is given (Exh. A): 

2729 
>'< '" >'< the right of access to the Customer's premises at all reasonable 

times for the purpose of installing, reading, inspecting or repairing 

any meters, devices and other equipment used in connection with its 

supply of electric service, or for the purpose of removing its property 

and for all other proper purposes. 

In this proceeding, OD installed three current and two potential transformers 

and a meter at Westmoreland's substation. OD reserved its exclusive right to 

control, check, read, and repair those facilities at the substation. The substation was located on mine property leased by Westmoreland from Penn-Virginia 

Resources Corporation (Finding No. 5, supra). OD delivers power to Westmoreland 

at 20 different locations (Finding No. 4, supra). The evidence, therefore, 

clearly shows that OD has a contract to construct facilities on mine property 

and that those facilities are essential to the extraction of coal because cutting 

machines, continuous-mining machines, roof-bolting machines, conveyor belts, 

and other mining equipment will operate only when they are connected to a source 

of electrical power. 

In the circumstances described above, the court's opinion in Assn. of 

Bituminous Contractors, supra, is applicable to OD, including the conclusion 

reached by the court at 581 F.2d 863: 

"~ ,·~ '" If a coal mine owner or lessee contracts with an independent construction company for certain work within a certain area involved in the 

mining operation, the supervision that such a company exercises over 

that separate project clearly brings it within the statute. Otherwise, 

the owner would be constantly interfering in the work of the construction company in order to minimize his own liability for damages. The 

Act does not require such an inefficient method of insuring compliance 

with mandatory safety regulations. 

2. Are MSHA's Regulations defining "operators" arbitrary and capricious 

and an unconstitutional delegation of legislative authorit_y_? 

OD's brief (pp. 14-20) attacks MSHA's regulations on the ground that MSHA 

abused its discretion in finding (45 Fed. Reg. 44494): 

that it had broad discretion to define the respective compliance responsibilities of owners, lessees or other persons who operate, control or 

supervise mines [production-operators] and independent contractors working at mines. 

OD also objects to MSHA's issuance in this proceeding of a citation based on 

MSHA's definition of an independent contractor which provides (30 C.F.R. 

§ 45.2(c) and 45 Fed. Reg. 44496): 

(c) "Independent contractor" means any person, partnership, corporation, subsidiary of a corporation, firm, association or other organization that contract·s to perform services or construction at a mine; 

OD maintains that it has been improperly found to be an independent contractor 

in this proceeding because it does not come within HSHA's definition of an 

independent contracLcr. OD contends that it has no contract to perform 

2730 
services at Westmoreland's mine other than the contracts introduced in this 

proceeding which require OD ''* * * to furnish electrical power and to install 

meters to measure the quantity of electricity being used" (OD's Brief, p. 15). 

OD again states that its contract with Westmoreland required it to do nothing 

at the substation here involved that it would not do at any other substation 

for any other customer. OD argues that it does the same kind of work on farms 

and residential property that it did for Westmoreland and that it simply can't 

be found to be an "independent contractor" and an "operator" under the Act on 

the basis of the type of services and work done by it at Westmoreland's substation (OD's brief, p. 16). 

OD continues its attack on MSHA's regulations pertaining to independent 

contractors by contending that it is an abuse of discretion for MSHA to make 

a rule which can be interpreted in a fashion which makes OD an independent 

contractor subject to the provisions of the Act. OD argues that MSHA's claim 

that it has "broad discretion to define the respective compliance responsibilities of * * * independent contractors'' amounts to an unconstitutional delegation of legislative authority by Congress to an administrative agency (Brief, 

p. 18). OD contends that while "•'c ,·~ ;'< Congress has authority to grant power 

to an administrative agency to pn::scribe rules and regulations, that authority 

does not include the power to make law, because no such power can be delegated 

by Congress (Brief, p, 18). OD cites Reid v. Memphis Publishing Co., 521 F.2d 

512 (6th Cir. 1975) and Manhatten Gene~Equipment Co. v. Commissioner, 

297 U.S. 129 (1936), and other cases in support of the foregoing argument. 

While it is true that the cases cited by OD do hold that Congress cannot 

delegate the power to make law to an administrative agency, I do not find from 

my review of the regulations pertaining to independent contractors that the 

Secretary of Labor or MSHA promulgated any rules which amounted to "making 

law". As MSHA's counsel points out in his brfef (p. 8), section 508 of the 

Act authorizes the Secretary to ''* * * issue such regulations as each [Secretary] 

deems appropriate to carry out any provision of this Act." MSHA issued regulations pertaining to independent contractors in conformance with all due process requirements of the Administrative Procedure Act (5 U.S.C. § 553). MSHA's 

brief (p. 8) shows that the rules were properly promulgated in the well-stated 

explanation quoted below: 

Following the development of a draft proposed rule and the circulation of that draft for comment to interested parties, a notice announcing the availability of the draft proposal was published in the Federal 

Register on October 31, 1978 (L1J FR 50716). As a result of conunents 

concerning the draft proposal, changes in it were made prior to its 

publication in the Federal Register as a proposed rule on August 14, 

1979 (44 FR 4!+746). " ;eries of public hearings was announced on 

September 14, 1979 in the Federal Register (!14 FR 511540), and the hearings were conducted between October 11 and October 30, 1979. After full 

consideration of all comments and testimony concerning the proposed rule, 

the final rule was published in the Federal Register on July 1, 1980 

(45 FR !+4494). The final rule became effective July 31, 1980. 

2'7 
One of OD's witnesses stated that OD would have commented on the proposed 

rules pertaining to independent contractors if OD had been given proper notice 

of the fact that they had been proposed (Tr. 75-76). I am adopting a paragraph 

from MSHA's brief as an appropriate reply to that contention (MSHA's brief, 

p. 9): 

To this objection [lack of proper notice] MSHA responds that it is 

a well settled principle of law that the publication of regulations in 

the Federal Register gives legal notice of their contents to all who may 

be affected thereby. Federal Crop Insurance Corporation v. Merrill, 332 

U.S. 380, 384-385, 68 S.Ct. 1, 92 L.Ed. 10 1947); Wolfson v. United 

States, 492 F.2d 1386, 1392 (Ct.Cl. 1974); Federal Register Act of 1935, 

44 U.S.C. §1507 (1978). Therefore, MSHA concludes that Old Dominion 

had legal notice of the publication of the final rule on independent 

contractors and that due process was observed. 

MSHA certainly did not make law in promulgating the definition of an independent contractor which is set forth in the final rules. Comparison of MSHA's 

definition of an independent contractor with the definition of "operator" 

given in section 3(d) of the Act shows that MSHA merely paraphrased the definition of "operator". The legislative history which has been quoted in this 

decision and in OD's brief shows that Congress added independent contractors 

to the list of persons who could be cited by MSHA for violations of the mandatory health and safety standards. MSHA did nothing more than comply with the 

Act when it promulgated the independent-contractor regulations to which OD 

obj er.ts. 

Regardless of whether one relies on the definition of "operator" in 

section 3(d) of the Act, or the definition of an independent contractor given 

in section 45.2(c) of the regulations, OD's activities at Westmoreland's substation were clearly sufficient to bring OD within the categories of "operator" 

and "independent contractor". The record shows that OD had a contract with 

Westmoreland under which OD reserved the e~::clusive right to install all facilities required to determine the amount of electrical energy supplied to Westmoreland for Elro Coal Corporation's No. 3 Mine. OD's employees installed the 

necessary metering facilities and had exclusive control over those facilities. 

OD's exclusive control over those facilities required it to determine whether 

to send employees out to the substation to check the metering facilities in 

response to Westmoreland's notification that the metering facilities were not 

working properly. The checking of the metering facilities by OD's employees 

resulted in the death of one of OD's employees through failure of that employee 

to comply with a mandatory safety standard. 

Section 103(j) of the Act requires the operator of a coal mine to report 

all accidents to MSHA. Therefore, Westmoreland had to report to MSHA the fact 

that a fatal accident had occurred at its substation located on mine property. 

MSHA is required by section 103(j) of the Act and by section 50.11 of the regulations to investigate accidents occurring at coal mines. If a violation is 

found by MSHA's inspectors, they are required by the Act to issue citations or 

orders. In issuing those citations or orders, they must determine what entity 

is responsible for the occurrence of the violation. In this instance, the 

evidence clearly shows that the accident was caused by the failure of OD's 

employees to follow their own rules as well as the mandatory safey standards. 

2732 
Since the regulations to which OD is objecting in this proceeding had not been 

finalized at the time of the accident on January 22, 1980, the inspector first 

issued the citation here involved to Elro Coal Corporation, and then to Westmoreland, and, finally, to OD because the rules pertaining to citing independent contractors for violations had been finalized between the time the accident 

occurred in January 1980 and the time the citation was issued to OD on 

January 21, 1981. 

The final assault which OD's brief (p. 20) makes on MSHA's rules pertaining to independent contractors is that they do not take into consideration how 

remote from actual mining activities a company's work on mine property may be, 

or how short and infrequent a company's contacts with mine property may be. 

OD claims that the failure by MSHA to consider such elements is an arbitrary 

extension of the rules to all companies and is therefore an illegal and arbitrary extension of power. A reading of MSHA's explanatory discussions published in the Federal Register at the time the rules were finalized shows that 

MSHA had originally considered the very approach advocated by OD, but MSHA 

rejected that approach because the persons who commented on the proposed rules 

believed that such an approach would produce arbitrary results. MSHA's explanation, in pertinent part, was stated as follows (45 Fed. Reg. 44495): 

7, ~·, ~~ Commenters also objected to the consideration of "major work" and 

"continuing presence" as irrelevant and arbitrary. 

The cornmenters' analysis of the concept that independent contractors 

are generally in the best position to prevent safety and health violations 

in the course of their own work, and to abate those violations that may 

occur, has persuaded HSHA that holding all independent contractors responsible for their violations will in the majority of instances improve 

the overall safety and health of miners. MSHA has concluded that a 

regulation that would distinguish some contractors from others in fcrm~ 

lating a comprehensive enforcement scheme could, at this time, be overly 

complex, imprecise and lead to arbitrary decisions that would not promote 

the safety and health of miners. Therefore, HSHA believes that enforcement decisions should be made on the basis of the facts pertaining to 

each particular case, at least until MSHA gains more ~xperience with 

independent contractors under the Act. Independent contractors and 

production-operators will have notice of their compliance responsibilities through this final rule and through enforcement: guidelines which 

will be made available to all interested persons. * * * 

As has been indicated above, OD had exclusive control over its facilities 

and employees and was in the best position to have prevented the fatal accident 

involved in this proceeding. Therefore, OD was the proper party to be cited 

for the violation. In short, OD has shown nothing about the rules pertaining 

to independent contractors which shows that they were arbitrarily issued or 

involve an unconstitutional delegation of legislative power to the Secretary 

of Labor or MSHA. 

3. Is OSHA responsible for investigating ~he conduct cited by HSI-IA? 

OD's brief (pp. 20-21) opens its claim that it should be subject only to 

OSHA's regulations with an argument that OSHA's and MSHA's regulations are 

2733 
inconsistent and that OSHA's regulations are better designed to cover the 

facilities and services performed by electrical utilities than MSHA's regulations are. OD contends that HSHA's regulations would require its employees 

to be qualified mine electricians, or have at least 1 year of experience in 

performing electrical work in a mine and complete a coal-mine electrical training program approved by MSHA, or have 1 year of experience in mining activity 

and pass a series of 5 tests administered by the Secretary. OD cites section 

77. 103 of the regulations in support of the foregoing argument. The guidelines published in the Federal Register (45 Fed. Reg. 44498) at the time the 

final rules pertaining to independent contractors were issued suggests that 

MSHA's training program for independent contractors will be different from 

that required for employees of operators who are engaged in the actual extraction of coal from mining property. Therefore, I am not certain that OD's 

claims about the adversity of being subject to MSHA's regulations at mine sites 

is correct, 

Assuming, arguendo, that OD would have to provide its employees with additional training before they are qualified to work at substations on mine property, the facts in this proceeding show that OD could well spend some additional 

time training its employees. For example, the evidence shows that two men went 

to check metering facilities at Westmoreland's substation on January 21, 1980. 

The one who was electrocuted was called a substation technician and the other 

one was called a meter man, first class. They had been told to find out why 

a light did not work in the meter and to determine whether the disk in the 

meter was supposed to turn counterclockwise. The supervisor who sent them to 

check the meter believed that the meter was supposed to turn counterclockwise. 

As it turned out, the meter which was installed did not have a light in it 

(Tr. 50) and the disk was properly turning in a counterclockwise direction 

(Finding Nos. 8-10, supra). The meter man, first class, had installed the 

meter on the day preceding the accident and should have known it did not have 

a light in it (Tr. 89). Yet, when the two employees arrived at the substation, 

the substation technician incorrectly concluded that the substation was deenergized and stated that he could not check the light in the meter unless electrical energy was flowing through it. The meter man, first class, did not remind 

the substation technician that the meter did not have a light in it to check, 

regardless of whether power was flowing in it or not. 

Moreover, the substation technician first suggested that a ladder be 

placed across the fence of the substation against the pole on which the tranpformers had been installed. Even if the substation had not been energized, 

he would have violated OD's regulations as to the placement of ladders (Exh. H, 

Part I, Section 4), when he proposed that they check the nameplate on the 

transformers by placing a ladder across the fence around the substation in 

order to get close enough to the transformer to read the nameplate (Tr. 93). 

It was only because of a counterproposal by the meter man, first class, that 

the substation technician failed to carry out his proposed use of a ladder to 

check the nameplate. Although OD claims that the substation technician had 

missed only three of the quarterly training sessions given over a 10-year 

period, his hasty and ill-considered actions on January 22, 1980, show that 

OD's safety meetings were not making any impression on the work habits of the 

substation technician. Therefore, I find that OD's objections to having to 

comply with MSHA's regulations are not a valid reason for me to find that OD 

2734 
should be considered to be exempt from MSHA's jurisdiction over work done by 

OD on mine property. 

OD 1 s brief (p. 22) next refers to the OSIIA-MSHA Interagency Agreement 

which has been published in the Federal Register (44 Fed. Reg. 22327) and 

which was introduced in this proceeding as Exhibit J, That agreement provides 

some general principles which govern the classes of activity over which MSHA 

and OSHA will assert jurisdiction. 

Most of the discussions in the agreement deal with questions of which 

activity are mining as opposed to milling since MSHA has jurisdiction over 

mining operations and OSHA generally has jurisdiction over milling activities. 

OD cites one sentence in the agreement as a basis for arguing that its activities 

at Westmoreland's substation should be subject to OSHA's jurisdiction. That 

sentence reads as follows (Exh. J, p. 1): 

* * * Also, if an employer has control of the working conditions on the 

mine site or milling operation and such employer is neither a mine 

operator nor an independent contractor subject to the Hine Act, the 

OSH Act may be applied to such an employer where the application of the 

OSH Act would, in such a case, provide a more effective remedy than 

citing as a mine operator or an independent contractor subject to the 

Mine Act who does not, in such circumstances, have direct control over 

the working conditions. 

The sentence quoted above might be helpful to OD's position in this proceeding 

if I had not already shown in the preceding part of this decision that HSHA 

properly found OD to be an independent contractor which is subject to the 

Mine Act. OD did have direct control over the work it did at the substation 

and it was appropriate for MSHA to assert jurisdiction under the Mine Act. 

OD's brief (p. 22) additionally argues tat the Interagency Agreement makes 

clear that double regulation is not intended. Although employees of both OSHA 

and MSlIA investigated the fatal accident at Hestmoreland' s substation, OSlIA 

did not cite any violations and made no contention that it had exclusive 

jurisdiction to investigate the accident. The Interagency Agreement comes 

into play only if MSHA and OSHA cannot agree at the local level as to which 

agency has jurisdiction. OD is correct in pointing out that no formal assignment of jurisdiction as between OSHA and MSHA was agreed upon with respect to 

the accident which occurred at the substation (OD's brief, p. 23). The 

accident involved in this proceding seems to have been the first occasion 

which required the two agencies to determine which had jurisdiction over the 

activities of an electrical utility at substations on mine property. The 

Interagency Agreement shows that the primary basis for determining jurisdiction as between HSHA and OSHA depends upon which activities occur on mine 

property as opposed to milling or manufacturing operations which occur off of 

mine property. It is clear under the lnteragency Agreement that a given company may be subject to the jurisdiction of both OSHA and MSHA because the Interagency Agreement has a-discussion on page 3 pertaining to the determination 

of the place at which MSHA's jurisdiction ends and OSHA's jurisdiction begins. 

The outcome of this case will apply in future cases in determining where MSHA's 

jurisdiction over electric utilities ends and OSHA 1 s begins. It is obvious 

that any of OD's activities on mine property should henceforth be subject to 

273b 
MSHAvs jurisdiction while OD's activities off of mine property will be subject 

to OSHA's jurisdiction. 

MSHA's brief (pp. 13-17) contains an excellent discussion of why MSHA's 

jurisdiction was appropriately and properly exercised with respect to the 

accident which occurred at Hestmoreland's substation. One paragraph is 

especially pertinent and is quoted below GIBHA's briefs pp. 14-15): 

Iu ruling on the extent as well as the limitations of OSHA jurisdiction under paragraph 4(b)(l) [of the 1970 Occupational Safety and 

Health Act], the United States Court of Appeals for the Fourth Circuit 

held that exemption from the Occupational Safety and Health Act applies 

only when another Federal agency has actually exercised its statutory 

authority to regulate employee safety. The court stated that when the 

facts show that a Federal agency has not exercised its statutory authority to regulate employee safety, the OSHA Act applies, but where the 

Federal agency has exercised its statutory authority to prescribe 

standards affecting safety or health in the area in which the employee 

goes about his daily tasks, the authority of OSHA is foreclosed. 

Southern Railway Company v. Occupational Safety and Health Review Commission, 

539 F.2d 335 (1976). Since the issue in this case is an alleged violation 

on coal mine property of a mandatory safety standard of the Hine Safety 

and Health Act, the inescapable conclusion must be that OSHA jurisdiction 

i~, as the court has stated, foreclosed. 

On the basis of the foregoing discussion, I find that OSHA was not responsible for investigating the conduct of OD's employees at the substation 

on January /.2, 1980, and that the violation found by MSHA's inspector was properly cited under the Hine Act and the regulations promulgated thereunder. 

4. Is a 1-year delay in issuing a citation "reasonable promptness" as 

required by the Act? 

OD's brief (p. 23) contends that the citation in this case was not issued 

to OD with "reasonable promptness" as required by section 104(a) of the Act 

which provides, in pertinent part, as follows: 

(a) 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. * * * The requirement for the issuance of a citation with 

reasonable promptness shall not be a jurisdictional prerequisite to 

the enforcement of any provision of this Act. 

OD states that the OSH Act prohibits the issuance of a citation after the 

expiration of 6 months following the occurrence of any violation. OD's brief 

(p. 24) also correctly states that the inspector who wrote the citation here 

involved did not know of any other instance in which there was a delay of 

more than 6 months between the occurrence of a violation and the writing of 

a citation. OD's brief (p. 23) states that the legislative history does not 

show why Congress failed to set a specific time limitation on the issuance 

2736 
of citations under the Mine Act. MSHA's brief (p. 12), on the other hand, 

cites some legislative history from Senate Report No. 95·-181 which appears 

to show exactly why Congress failed to specify an exact period of time. 

That explanation is quoted below (Report No. 95-181, p. 30, or page 618 

of Legislative History)~ 

* * * There may be occasions where a citation will be delayed because 

of the complexity of issues raised by the violations, because of a protracted accident investigation, or for other legitimate reasons. For 

this reason, Section [104(a)] provides that the issuance of a citation 

with reasonable promptness is not a jurisdictional prerequisite to any 

enforcement action. l'~ l'~ i·~ 

As indicated in Finding No. 14, supra, MSHA's inspector determined very 

shortly after investigating the fatal accident that a violation of section 

77.704 had occurred. He first issued the violation in the name of Elro Coal 

Corporation, then in the name of Westmoreland, and finally in the name of OD. 

Therefore, no delay occurred in the determination that a violation had occurred. 

The delay arose because of the complexity of the law with respect to whether 

MSHA should cite only a production operator for the violations of independent contractors working on mine property. The inspector first cited the production operators because the law was in a state of confusion as to whether 

only the production operator (Westmoreland) or the independent contractor, 

or both, should be cited for violations caused by activities of independent 

contractors working on mine property. 

The Commission first considered the question of whether an operator can 

be cited for violations by independent contractors in Republic Steel Corp, 

1 FMSHRC 5 (1979). In that case, the Commission reversed an administrative 

law judge's decision in which the judge had held that the independent contractor was liable for the violation there involved. The Commission held that an 

operator can be cited for the independent contractor's violation even if only 

the independent contractor's employees are in the area where work is being 

performed. In footnote 13 at 1 FMSHRC 11, the Commission majority explained, 

however, that it was not holding that only the operator is liable because 

it believed that both the independent contractor and the operator could be 

held to be liable and that both could be cited in a separate or a consolidated proceeding. 

The Commission's Republic decision followed the Fourth Circuit's decision 

in Bituminous Coal Operators As~. v. Secretary of Interior, 547 F.2d 240 (4th 

Cir. 1979), already cited above, in which that court held that construction 

companies are subject to the Act because they work on a facility which is to 

be used in the work of extracting coal. The court said that construction 

companies are subject to the Act and must observe the health and safety 

standards promulgated under the Act. The court held, before the 1969 Act was 

specifically amended to include independent contractors as "operators," that 

construction companies can be "operators" because they control and supervise 

work at coal mines. The court said that when they sink a shaft or build a 

tipple, they are controlling a mine because the facility will be used to 

extract coal. The court also held that a construction company can be found 

to be an "operator" before any coal has begun to be extracted from the mine 
and can be found to be an "operator" if they are working on only a part of a 

mineo Finally, the court held that the Secretary of Interior could issue 

notices of violations and orders to construction companies and could assess 

and collect penalties from them. The court stated that it was up to the 

Secretary in each case to decide whether the production operator or the construction companys or both, were liable and which or both should be cited. 

In Association of Bituminous Contractors, Inc" v. Cecil D. Andrus, 581 

F.2d 853 (1978), also previously cited above, the D.C. Circuit made holdings 

similar to those stated by the Fourth Circuit in the BCOA case, supra. 

In Cowin and Company, Inc., 1 FMSHRC 20 (1979), the Commission affirmed 

a judge's decision finding that an independent contractor should be cited for 

a violation under the 1969 Act. The former Board of Mine Operations Appeals 

had reversed the judge on the basis of Order No. 2977 which had been issued 

by the Secretary of Interior requiring that only the production operator 

could be cited for violations by.the independent contractor. In Kaiser Steel 

Corp., 1 FMSHRC 343 (1979), the Commission majority held that the production 

operator could be cited for a violation committed by an independent contractor 

named Boyles Brothers. In Consolidation Coal Co., 1 FMSHRC 347 (1979), the 

Commission majority also upheld the citing of a production operator for an 

independent contractor's violations. The Commission made a similar holding 

in J-1onterey Coal Co., 1 FMSHRC 1781 (1979). 

In Old Ben Coal Co., 1 FMSHRC 1480 (1979), the Commission also upheld 

the citing of a prorluction operator for the independent contractor's violation, 

but the Commission noted that the citation in that case had been written in 

April 1973 shortly after the 1977 Act became effective. Since the 1977 Act 

specifically provided for independent contractors to be cited as "operators", 

the Commission said that if, in future cases, it should find that the Secretary 

of Labor was citing operators purely for administrative convenience, it would 

not approve such procedures. 

The most recent action taken by the Commission with respect to citing 

independent contractors, as opposed to production operators, or both, was in 

Pittsburgh & Midway Coal Mining Co., 2 FMSHRC 2042 (1980), in which the Commission remanded a case to an administrative law judge so that the Secretary 

of Labor could apply the procedures for citing independent contractors for violations as those procedures were set forth in Volume 45 of the Federal Register 

at pages 44,494 to 44,498. The Commission indicated in its decision that 

the Secretary was free to proceed against either the independent contractor 

or the production operator, or both. The Commission has issued similar orders 

in at least two other proceedings, remanding the cases for the purpose of 

allowing the Secretary to apply the rules pertaining to citing independent 

contractors for violations of the mandatory safety standards (C and K Coal Co., 

2 FMSHRC 2047 (1980), and Phillips Uranium Corp., 2 FMSHRC 2050 (1930)). 

My review of the cases involving the issue of whether the Secretary or 

HSHA should cite the production operator or the independent contractor, or 

both, for violations occurring at mine sites shows that HSHA was proceeding 

under a series of legal decisions and that a considerable time elapsed before 

a consistent policy finally was achieved. In such circumstances, I find 

that complexities existed in applying the Act which justified the fact that 

the violation in this instance occurred on January 22, 1980, and was not 

2738 
charged in a citation issued to OD until January 21, 1981, or 1 day less than 

a year after its occurrence. 

In Salt Lake County Road Department, 3 FMSHRC 1"114 (1981), the Commission 

affirmed a judge's decision which had denied a motion to dismiss a Proposal for 

Assessment of Civil Penalty which had not been filed within 45 days as provided 

for by section 2700.27 of the Commission's rules. The Commission stated that 

section 105(d) of the Act provides that the Secretary is to notify the Commission "immediately" after a notice of contest is filed. The Commission stated 

that it had implemented the word "immediately" in the Act by using a time period 

of 45 days in the rules. The Commission stated, however, that the legislative 

history showed that although Congress wanted prompt notification in order to 

promote fairness, Congress did not want a penalty case to be vitiated simply 

because the notification happened, in a rare instance, to be somewhat less 

than prompt. The Commission also stated that it was appropriate to determine 

whether the late filing of the Proposal for Assessment of Civil Penalty was 

prejudicial to the respondent in that case and the Commission held that no 

prejudice had resulted in that instance. 

The evidence in this proceeding shows that no prejudice to OD resulted 

because of the fact that OD was not specifically cited for a period of 1 year. 

OD had participated in the thorough investigation which MSHA made into the 

cause of the accident and MSHA personnel came to OD's office and discussed the 

fact that MSHA was considering the question of finding OD to be an operator 

under the 1977 Act pursuant to the new rules which MSHA had promulgated with 

respect to independent contractors (Tr. 75-78). OD filed a notice of contest 

of the citation after it was issued and OD has been provided with a hearing 

and with the opportunity to file a brief in support of its position. Therefore, the fact that the citation was not issued to OD for a year after the 

violation occurred has not been prejudicial to OD. 

(5) Is any civil penalty just~? 

OD 1 s brief (p. 24) contends that even if it should be determined that OD 

is subject to MSHA's jurisdiction, it would be totally inappropriate to assess 

any civil penalty whatsoever because the accident occurred through no fault of 

OD. OD notes that the inspector's statement evaluating negligence showed that 

the inspector did not believe that OD could have known or predicted that the 

accident would occur and that its occurrence was beyond OD's control. OD argues 

that the electric utility industry is very safety conscious and that OD has a 

thorough safety program. OD emphasizes that the employee who was electrocuted 

was told before he went to the substation that it was energized and that he 

violated a well-known company rule with which he was very familiar (Finding Nos. 

12 and 15, supra). In such circumstances, OD contends that assessment of a 

penalty would serve no useful purpose. 

Even OD's witnesses agreed that a violation of the company's safety rules 

had occurred (Tr. 64; 96). One of the rules violated was Paragraph 31-1 in 

Part III of OD's Safety Manual (Exh. H) and it requires that electrical lines 

be grounded before work on them is done. Citation No. 688762-1 issued by the 

inspector cited OD for a violation of section 77.704 which provides, in pertinent part, that "[h]igh-voltage lines shall be deenergized and grounded before 

2739 
work is performed on them, except that repairs may be permitted on energized 

high-voltage lines if ,., ,., ,.," certain safeguards are followed. The inspector 

testified that work can be done on energized lines only under certain conditions and that one of the conditions is that the weather be satisfactory. 

Inasmuch as it was rainy and foggy on the <lay of the accident, the inspector 

said that no work could have been done on the energized high-voltage lines 

under the weather conditions prevailing on the day of the accident without violating the provisions of section 77.704. Since section 77.704 essentially 

provides that energized lines be deenergized or grounded and since OD's witnesses agreed that no attempt had been made by either of OD's employees to 

ground the lines before they worked on them, all the evidence in the record 

supports a finding that a violation of section 77.704 occurred, and I so find. 

Having found that a violation occurred, it is mandatory under the Act that 

a civil penalty be assessed. The Commission has held in several cases that 

liability of an operator for violations of the mandatory safety standards is 

not conditioned upon fault (U. S. Steel Corp., 1 FMSIIRC 1306 (1979); Peabody 

Coal Co., 1 FMSHRC 1494 (1979); and Ace Drilling, Inc., 2 FMSHRC 790 (1930)). 

The Commission has also held that if a citation or order alleges a violation 

and one is found to have occurred, a judge may not dismiss the penalty proceeding without assessing a penalty even if a motion to dismiss is filed by 

counsel for MSHA (Island Creek Coal Co., 2 FMSHRC 279 (1980), and Van Mulvehill 

Coal Co., Inc., 2 FMSHRC 283 (1980)). Therefore, it is well settled that I may 

not dismiss the Petition for Assessment of Civil Penalty filed in Docket No. 

VA 81-65 seeking assessment of a civil penalty for the violation of section 

77.704 involved in this proceeding and that I must assess a civil penalty based 

on the six criteria set forth in section llO(i) of the Act (Tazco, Inc., 

3 FMSHRC 1895(1981)). 

In connection with the assessment of a civil penalty, it should be noted 

that a judge is not bound by the assessment procedures which are employed by 

the Assessment Office in proposing civil penalties (Rushton Mining Co.~ 

1 FMSHRC 794 (1979); Shamrock Coal Co., 1 FMSHRC 799 (1979); Kaiser Steel Corp., 

1 FMSHRC 984 (1979); U.S. Steel Corp., 1 FMSHRC 1306 (1979); Pittsburgh Coal 

C~., 1 FMSHRC 1468 (1979); and Co-Op Mining~ _ _go., 2 FMSHRC 784 (1980)). Therefore, my decision with respect to the civil penalty issues is being made on 

the basis of the evidence presented in this proceeding without regard to the 

size of any penalty which may have been proposed by the Assessment Office in 

Docket No. VA 81-65. 

Consideration of the Six Criteria 

1. Size of OD's Business 

As to the criterion of the size of OD's business, I have already indicated 

in Finding No. 1, supra, that OD is a subsidiary of Kentucky Utilities Company, 

that it employs 80 persons, and that its annual revenues from the sale of electricity amount to about $24,000,000 per year. On the basis of those facts, 

I find that OD is a large operator and, to the extent that the penalty is based 

on the criterion of the size of respondent's business, the penalty should be 

in an upper range of magnitude. 

2740 
2. Effect of Penalties on OD 1 s Ability To Continue in Business 

OD 1 s counsel did not introduce any evidence pertaining to OD's financial 

condition. The former Board of Mine Operations Appeals held in Buf_lalo Mining 

Co., 2 IBMA 226 (1973), and in Associated Drilling, Inc., 3 IBMA 164 (1974), 

that if an operator fails to present any evidence in a civil penalty case 

pertaining to the operator's financial condition, that a judge may assume that 

payment of penalties would not have an adverse effect on the operator's ability 

to continue in business. Therefore, in the absence of any evidence in this 

proceeding which would support a contrary conclusion, I find that payment of 

civil penalties will not cause OD to discontinue in business. 

3. History of previous violations 

As to the criterion of OD's history of previous violations, both the inspector who wrote the citation and MSHA's counsel stated that there is nothing 

in MSHA's files which show that OD has previously been cited for a violation of 

the mandatory health and safety standards (Tr. 140). Therefore, the penalty 

to be assessed in this proceeding will neither be increased nor reduced under 

OD's history of previous violations. 

4. OD's good-faith effort to achieve rap~d compliance 

The inspector testified that OD reinstructed its employees with respect 

to the procedures which should be used prior to working on electrical equipment 

(Finding No. 15, supra). Therefore, I find that OD made a good-faith effort to 

achieve rapid compliance after being cited for the violation of section 77.704 

and that mitigating factor will be taken into consideration in determining the 

size of the penalty. 

5. Degree of Neglig~nce 

As indicated in Finding No. 13, supra, the violation of section 77.704 

occurred because two of OD 1 s employee~ went to Westmoreland's high-voltage 

substation and attempted to check OD's metering equipment without making a 

careful examination to determine whether the substation was energized and 

without grounding the lines going into the metering facilities. Section 77.704 

requires that high-voltage lines be deenergized and grounded before work is 

done on them. Although work can be done on energized high-voltage equipment, 

it would have been a violation of section 77.704-2(4) for the employees to 

have worked on the energized equipment in this instance because the weather 

was rainy and foggy. 

Two of OD's witnesses, including the employee who survived the encounter 

with high-voltage equipment, testified that no attempt had been made to ground 

the equipment before an effort was made to read the nameplate on the transformer. Both of OD's witnesses agreed that they had violated OD's own safety 

regulations, particularly paragraph Jl-1, Part III, of OD's Safety Manual 

(Finding No. 12, supra). The inspector's statement also shows that he did 

not consider OD to have been negligent since he checked the portion of the 

form used by inspectors for evaluating negligence which states that the failure of the two employees to follow the provisions of section 77.704 "could not 

have been known or predicted, or occurred due to circumstances beyond the 

operator's control". Under the "Remarks" portion of the inspector's statement, 

274.1 
the inspector made the following entry: "The employees were told the substation was energized before they left their duty station" (Exh. 3). 

MSHA's brief (p. 20) states that "* 1< ~'< the failure to follow basic 

safety rules under the Act and under company regulations would indicate at 

least ordinary negligence on the part of the operator." MSHA's brief, however, does not cite any testimony to show why the company's management should 

be held to be negligent for failure of experienced employees to follow basic 

safety rules or the almost identical provisions of section 77.70~. In Nacco 

Mining Co., 3 FMSHRC 848 (1981), the Commission found that the operator was 

nonnegligent for a violation of section 75.200 in circumstances which showed 

that a foreman had gone out from under roof support for a distance of 10 to 

12 feet in violation of the operator's roof-control plan. The foreman was 

killed when the roof fell on him. The facts showed that the foreman had 

received proper training and that he had shown good judgment on prior occasions with respect to following safety regulations, but on the day of the 

accident, he acted aberrantly and engaged in conduct which was wholly unforeseen. The foreman's action did not expose anyone else to harm or risk. The 

Commission stated that finding an operator negligent in such circumstances 

would discourage pursuit of a high standard of care because regardless of 

what an operator did to insure safety, a finding of negligence would always 

result. 

The evidence in this proceeding shows that OD's management was not as 

free from fault as the evidence indicated in the Nacco case cited above. As 

I have already pointed out in this decision in my discussion of the issue 

of whether accidents on mine property are subject to MSHA's jurisdiction as 

opposed to OSHA's jurisdiction, OD's superintendent of meters sent two 

employees on January 22, 1980, to check a meter which he believed was working 

properly. One of the employees who was sent to the mine had originally installed the meter. The other employee had replaced the meter on January 21, 

the day before the two employees were sent back to the substation to check 

the meters. The employee who replaced the meter was a meter man, first class. 

Westmoreland had only suggested to OD's superintendent of meters that the 

meter at the substation might be defective because no light was burning in 

the meter and because its disk was turning counterclockwise (Tr. 99). OD's 

general manager testified that the type of meter which had been installed 

did not have a light in it. The superintendent of meters had already told 

Westmoreland's employee that he thought the meter's disk was supposed to turn 

counterclockwise. Therefore, the evidence shows that nothing was wrong with 

the meter which required any checking to be done. Since the meter had no 

light, no light could have been seen by Westmoreland's employee. The meter's 

disk was supposed to turn counterclockwise. The fact that the superintendent 

of meters did not have a discussion with his employees in sufficient detail 

for them to realize there was no need to check the meters is strong support 

for a finding that management failed to advise the two employees as to the 

duties they were expected to perform at the substation. 

Unless the employees' supervisor was remiss in his duties of providing 

the employees with specific information, there is no possible explanation for 

the meter man, first class, who had in~talled the meter on the previous day, 

to have testified that they could not check the light in the meter because 

the employee who was electrocuted had mistakenly concluded that no electricity 

2742 
was flowing through the substation. It appears to me that the employees were 

sent to the substation with indefinite instructions and that management was 

negligent in providing them with exact information and instructions concerning 

the work which was required to be done at the substation. 

There is also reason to believe that management knew, or should have 

known, that the employee who was electrocuted had a proclivity for cutting 

corners with respect to obeying safety precautions. For example, he proposed 

to·check the nameplate on a transformer by leaning a ladder across the fence 

around the substation against the crossbar on which the high-voltage transformer was located for the purpose of climbing the ladder in order to read the 

nameplate on the transformer. He proposed to check the nameplate in that 

fashion to avoid opening the gate to the substation by knocking from the gate 

a piece of 2 by 4 which had been nailed on the gate to keep it from coming 

open for easy access by an animal 9r person who might have gone inside the 

substation where the danger of electrocution existed. 

For the reasons given above, I do not believe that the circumstances 

showing no fault by management existed in this proceeding to the extent that 

it did in the Nacco case. I am required to consider the evidence as a whole 

in making my findings. Therefore, despite the fact that the witnesses professed to believe that OD's management was free of negligence and could not 

have foreseen the occurrence of the accident, I believe that OD's management 

failed to give the employees proper instructions before they were sent to the 

substation and I believe that the actions of the deceased employee at the 

substation show that he was in the habit of disobeying safety regulations. 

In the Nace~ case, the evidence showed that the foreman who was killed had a 

history of following safety procedures and that he acted aberrantly on the 

day he was killed. The evidence in this proceeding shows that the employee 

who was killed had a history of acting in violation of safety regulations 

because he violated at least three of the company's own regulations before 

he was electrocuted. Specifically, he first failed to make a careful visual 

examination of the disconnects which were clearly visible as shown in a photograph taken during a snow storm on the day following the accident. The wires 

are easily visible in the photograph even though the photograph was taken 

from the place where the deceased employee would probably have been standing 

when he carelessly decided that the substation was deenergized. It is unlikely that the rain or fog prevented him from being able to see the wires 

on the disconnects, but if he could not see the wires clearly, that was all 

the more reason for him to have gone inside the substation so as to assure 

himself that the wires were not there. The mere fact that he was used to 

seeing a type of disconnect having wires inside a 1-inch tube did not excuse 

him from making certain that no type of wire was actually running between the 

upper and lower holders on the disconnects (Finding Nos. 8-10, supra). 

The second violation of the safety precautions was that the deceased 

employee failed to ground the conductors before trying to read the inf ormat ion on the transformer's nameplate (Tr. 64-65; 96). 

The third violation was not carried out because the deceased employee 

only proposed to place a ladder in an unsafe position in violation of OD's 

safety regulations for use of ladders (Exh. H, Part I, Section 4). The violation was not carried out because the meter man, first class, who had 

274a 
accompanied the deceased employee, suggested that they go inside the substation and climb the pole on which the transformer had been installed in 

order to read the nameplate (Tr. 93). 

Based upon my review of the entire record, I find that the violation of 

section 77.704 was associated with a moderate degree of ordinary negligence, 

6" Degree of Gravity 

MSHA's brief (p. 20) states that the violation must necessarily be considered to have been serious because the violation resulted in the electrocution of one of OD's employees. The evidence shows that the substation's 

purpose was to reduce voltage from 12,470 to a volatage which was needed to 

operate mining equipment. It would be difficult to find a violation which has 

more obvious potential for causing electrocution than failure to ground wires 

which may be transmitting 12,470 volts. Therefore, I find that the violation 

was extremely serious. 

It should also be noted that the deceased employee's failure to make a 

proper visual examination as to the substation's energized status influenced 

the other employee who had accompanied him to the substation to assume also 

that the substation had been deenergized. Thus, the deceased employee's 

violation of section 77.704 exposed another employee to possible electrocution 

along with himself. Westmoreland could also have had employees working at 

the substation" Since one would ordinarily be inclined to rely on the supposed 

expertise of an employee of an electrical utility company, the violation would 

have been likely to have exposed any people in the vicinity of the substation 

to possible electrocution because they would have assumed that OD's employees 

would not have performed work at the substation without making certain that 

the substation had been deenergized. 

Based on the findings above to the effect that a large operator is involved, that there was a good-faith effort to achieve rapid compliance, that 

payment of penalties will not cause OD to discontinue in business, that there 

is no history of previous violations, that there was ordinary negligence, and 

that the violation was extremely serious, I find that a civil penalty of 

$3,000 should be assessed. 

WHEREFORE, it is ordered: 

(A) The Notice of Contest filed in Docket Ho. VA 31-40-R is denied because 

Old Dominion Power Company is an independent contractor and operator within 

the meaning of section 3(d) of the Federal Hine Safety and Health Act of 1977 

and was cited by MSHA for a violation under regulations properly promulgated 

for citing independent contractors for violations occurring on mine property. 

(B) Citation No. 668762-1 dated January 21, 1981, is affirmed. 

(C) The Petition for Assessment of Civil Penalty filed in Docket No. 

VA 81-65 is granted and Old Dominion Power Company, within 30 days from the 

date of this decision, shall pay a civil penalty of $3,000 for the violation 
of section 77.704 which was violated by Old Dominion as alleged in Citation 

No. 688762-1 issued January 19, 1981~ as modified January 21, 1981. 

~ e.~o/h- Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Distribution: 

William D. Lambert, Esq., Counsel for Old Dominion Power Company, 

Ogden, Robertson & Marshall, 1200 One Riverfront Plaza, Louisville, 

KY 40202 (Certified Mail) 

Leo J. McGinn, Trial Attorney, Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

274~) 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

UNITED MINE WORKERS OF AJ.~ERICA, 

On behalf of GARY L. SHREVE, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. WEVA 81-378-D 

Mc Elroy Mine 

DECISION 

Appearances: Mary Lu Jordan, Esq., Washington, D.C., for Complainant; 

Daniel L. Fassio, Esq., Pittsburgh, Pennsylvania, for 

Respondent. 

Before: Judge Melick 

This case is before me upon the complaint of the United Mine Workers of 

America (Union) on behalf of Gary L. Shreve under section 105(c)(3) of the 

Federal Mine Safety and Health Act of 1977, ·30 U.S.C. § 301 et seq., the 

"Act," alleging that the Consolidation Coal Company ( Consolidat-ion) discr iminated against and interfered with Mr. Shreve in violation of section lOS(c)(l) 

of the Act. ]:/ Seven specific protected activities and eight acts of discrimination and interference ranging in time from December 7, 1979, to March 7, 

1981, are alleged. Complainant seeks costs, expenses (including attorney's 

fees) and a general order requiring Consolidation to cease and desist from 

purportedly threatening to transfer or discharge employees who report unsafe 

or unhealthy conditions and who refuse to perform work in unsafe or unhealthy 

conditions. 

]:/ Section lOS(c)(l) of the Act provides in part as follows: 

"No person shall discharge or in any manner discriminate against or 

cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, [or] representative of miners * * * in any coal * * * mine subject to this Act 

because such miner, [or] representative of miners * * * 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 miners at 

the coal * * * mine * * * or because of the exercise by such miner, [or] 

representative of miners * * * on behalf of himself or others of any 

statutory right afforded by this Act." 

2746 
Consolidation argued in dismissal motions that the complaint should have 

been dismissed as to those alleged discriminatory acts that did not occur 

within 60 days before the Union complaint was filed with the Secretary, 

citing sections 105(c)(2) and 105(c)(3) of the Act as authority. ]) It is 

undisputed that the Union complaint in this case was initially filed with the 

Secretary on November 21, 1980, and that the Union was subsequently notified 

of the Secretary's determination that no violation of section lOS(c) had 

occurred. Six acts of discrimination and interference were cited in that 

complaint only tvm of which were alleged to have occurred within 60 days 

before that complaint was filed with the Secretary,..!·~·· the acts alleged 

to have occurred on November 10 and 12, 1980. The remaining acts were 

alleged to have occurred on December 7, 1979, February 23, 1980, March 4, 

1980, and "sometime in 1980." 

While the Union had initially claimed that the four earlier discriminatory acts should each have been considered on its own merits as an independent 

complaint under section 105(c)(3) of the Act, it has apparently withdrawn from 

that position. As clarified in its post hearing brief, the Union position now 

is that evidence of the earlier acts should be considered only as evidence of 

a pattern of conduct leading up to the alleged discriminatory acts on 

November 10 and 12, 1980. To the extent that evidence of prior acts of discrimination could be used to d~nonstrate that the conduct of the individual 

allegedly acting in a discriminatory manner on November 10 and 12, 1980, was 

in conformity with those previous acts as a habit or practice, I found such 

evidence to be relevant and admissible at hearing. Commission Rule 60(a), 

29 C.F.R. § 2700.60(a). See ~lso, Rule 406, Federal Rules of Evidence. I see 

no reason to reconsider that ruling at this time. In ight of the position of 

the Union in its brief, the question of whether those earlier acts could also 

support independent actions before the Commission under section 105 of the 

Act is no longer before me. 

2/ Section 105(c) (2) provides in part as follows: 

"Any miner * * * or representative of miners who believes that he has 

been discharged, interfered with, or otherwise discriminated against by any 

person in violation of this subsection may, within 60 days after such violation occurs, file a complaint with the Secretary alleging such discrimination." 

Section 105(c)(3) provides in part that: 

"Within 30 days of the receipt of a complaint filed under paragraph (2), 

the Secretary shall notify, in writing, the miner * * '~ or representative of 

miners of his determination whether a violation has occurred. If the Secretary, upon investigation, determines that the provisions of this subsection 

have not been violated, the complainant shall have the right, within 30 days 

of notice of the Secretary's determination, to file an action in his own 

behalf before the Commission, charging discrimination or interference in 

violation of paragraph (1) ." 

274 .. , 
Consolidation further argued in its motion for partial dismissal that the 

complaint herein should have been dismissed as to the discriminatory acts 

alleged to have occurred subsequent to the filing of its complaint with the 

Secretary. For the reasons that follow, I conclude that I cannot consider 

the merits of those alleged acts either as independent complaints under section 105 of the Act or as relevant evidence in support of the alleged incidents on November 10 and 12, 1980, which preceded those alleged acts. Under 

section 105(c)(3), the right of a miner or representative of miners to file 

an action before the Commission on his own behalf arises only after the 

Secretary determines that no violation of section 105(c) has occurred. See 

footnote 2, supra. I am bound to give operative effect to the plain meaning 

of that statutory requirement. United States v. Menasche, 348 U.S. 528, 

99 L.Ed 615, 75 S. Ct. 513 (1955). Accordingly, I do not have authority to 

consider in this proceeding as a substantive matter any discriminatory acts 

alleged to have occurred subsequent to the filing of the complaint with the 

Secretary and which therefore had not been considered by the Secretary. 

Respondent's motion for partial dismissal is therefore granted with respect 

to the discriminatory acts alleged to have occurred on February 17, 1981, 

and March 7, 1981. 

Consolidation further argued that any evidence relating to those alleged 

acts of discrimination on February 17, 1981, and March 7, 1981, was inadmissible for any purpose in this proceeding. While arguably such evidence of subsequent conduct might be admissible to show the habit or routine practice of 

an individual thereby being relevant to proving that the conduct of that individual on the particular occasion at issue was in conformity with that habit 

or routine practice, Commission Rule 60(a), supra; Rule 406, Federal Rules of 

Evidence; the proffered evidence in this case is clearly so collateral to the 

principal issues that I find it to be irrelevant. Since the alleged violators 

of Mr. Shreve's rights on February 17 and March 7, 1981, were persons not even 

alleged to have been involved in any of the preceding discriminatory acts, 

their behavior on these occasions could hardly be considered evidence of 

habits or routine practices of any of the other individuals cited for the 

previous discriminatory acts. 3/ The proffered evidence is not therefore 

admissible. Commission Rule 60(a), supra. 

I also observe that the Union failed to inform Consolidation of these 

alleged subsequent discriminatory acts until the day of hearing. This constituted a violation of the prehearing order issued by the undersigned on June 24, 

1981. In order to refute these new allegations of discrimination, it appears 

that Respondent ~uld have been required to call the five witnesses alleged to 

have participated in, or been present during, the alleged acts. Four of those 

witnesses were located too far from the hearing site to appear on the scheduled 

3/ While the evidence could have arguably supported a contention that the 

alleged discriminatory acts of Consolidation personnel other than Aloia 

showed a conspiracy or pattern of discrimination by the company, the 

Complainant failed to proffer evidence to demonstrate that these acts were 

other than the isolated independent acts of the named individuals. 

2748 
day of hearing. In addition, at least one of the witnesses was committed to 

testify on the following day as an essential witness in an out-of-state trial. 

Thus, on the one hand, it would have been unfairly prejudicial to the Respondent to have allowed the proferred evidence without providing it an opportunity to rebut that evidence and, on the other hand, it would have caused 

undue delay and expense to have continued the hearing for an additional 2 days 

to provide Respondent an opportunity to call the essential witnesses on its 

behalf. Moreover, even the Complainant conceded that it did not wish to have 

the proceedings continued. Under the circumstances, even assuming, arguendo, 

that the proffered evidence was relevant, it was an appropriate sanction for 

noncompliance with the prehearing order to have excluded that evidence. Evidence regarding alleged discriminatory acts on February 17, 1981, and March 7, 

1981, is therefore given no consideration in this case. 

Summary_-2l_!he Evidence 

The Principal Complaints - November 10 and 12, 1980: These complaints 

center. on two conversations, one on November 10, 1980, between union safety 

committeeman Richard Lipinski and Gary Shreve's foreman, Albert Aloia, and 

the other on November 12, 1980, between Gary Shreve and Albert Aloia. At the 

time of the conversations, Albert Aloia, a recent mine engineering graduate, 

had been working at the McElroy Mine for only 2 years and had been a section 

foreman for less than a year. According to Aloia, on Friday, November 7, a 

company official informed him that an alleged "hotline" safety complaint had 

been made to the Federal Mine Safety and Health Administration (MSHA) regarding 

the scoop car under Aloia's control. He was informed that the complaint concerned unsecured lids for the scoop car batteries. Aloia was "disgusted" 

about the complaint because he thought he had already corrected the problem. 

It appeared that in spite of his corrective actions and without reporting any 

problem to him someone on the safety committee had reported the complaint to 

MSHA. He suspected that his scoop car operator, Gary Shreve, had initiated 

the complaint. It had been Shreve's past practice to bypass him in complaining of equipment defects. 

On the following Monday (November 10), Aloia had occasion to talk with 

Union Safety Committeeman Lipinski. Aloia confided in Lipinski because he 

felt they "understood each other" and had a "fairly good relationship." 

Aloia 1 s testimony about the conversation is as follows: 

Q. [Attorney for Consolidation] And did you ask him 

what was wrong with the method that you had remedied [sic]? 

A. [Aloia] In a general sense I did. I stated that 

I didn't think there would be anything wrong with it. 

Q. What did he say? 

A. He didn't say much during the whole conversation. 

Q. Did he say that it was okay, as far as he was 

concerned? 

274B 
A. I don't think he stated that? 

Q. He didn't state that? 

A. No. 

Q. Do you recall him stating anything about the method 

about which the lids had been secured? 

A. I do not recollect him stating anything. 

Q. Did you discuss Mr. Gary Shreve at all during this 

time when you were inspecting the lids on the scoop car? 

A. Yes. 

Q. And how did his name come up in the conversation? 

A. It is what we were talking about before, he was the 

operator and if there was a problem I felt he should have 

came and tell me about [sic]. And that's basically what I was 

telling Lipinski. 

JUDGE MELICK: What was the full conversation that 

occurred regarding Mr. Shreve, on this day with 

Mr. Lipinski? 

THE WITNESS: I told Lipinski that if there was a problem here that the problem should come to me first. It seemed 

like lately all the problems that were going on the safety 

committee were going around me and I'd be getting it second 

hand, and that didn't seem right. That wasn't the way it 

was supposed to work. 

JUDGE MELICK: What did that have to do with Mr. Shreve? 

THE WITNESS: In what sense? 

JUDGE MELICK; Well, the question I asked, the information I want is the full extent of the conversation between 

you and Lipinski concerning Mr. Shreve. 

THE WITNESS: I also said in that conversation that it 

seemed like we've had a ntnnerous ntnnber of problems with 

that scoop and maybe Gary couldn't handle the job because 

of all the problems. 

JUDGE MELICK: Did you suggest anything else? 

THE WITNESS: No, sir. 

2750 
JUDGE MELICK: Did you suggest that perhaps he would be 

better at another job. 

THE WITNESS: No, sir. 

JUDGE MELICK: Is that the extent of your conversation 

concerning Mr. Shreve? 

THE WITNESS: Yes, sir. 

JUDGE MELICK: All right. 

Q. (By Mr. Fassio) Did you tell Mr. Lipinski that you 

were going to have Gary Shreve taken off the scoop car? 

A. No, sir. 

Q. Did you tell Rick Lipinski that there was always 

something wrong with the scoop car? 

A. I told Mr. Lipinski that there was a numerous amount 

of problems with the scoop car. 

Q. Did you tell him that it was always one thing after 

another and it always needs fixing? 

A. No, I don't believe, ~ said that. I said that 

there was a numerous amount of problems. 

o. Did you state to him you can see why other foremen 

do not want to work with Gary Shreve? 

A. No, I don't think I said that. 

JUDGE MF.LICK: You could have said it? 

THE WITNESS: No, I did not say that. 

JUDGE MELICK: Did you say anything that might be interpreted as coming out that way? 

THE WITNESS: I said that I thought that maybe Gary 

could not handle the job. 

(Tr. 306-309). 

Union safety committeeman Richard Lipinski also testified concerning that 

conversation. The relevant testimony appears as follows: 

275.l 
[Lipinski] 

* * * I could tell he was kind of-- he was kind of upset and 

he was kind of disgusted. He says, I'm going to have Gary 

Shreve taken off the scoop car, you know, he says, he keeps 

on-- everytime he runs it, there's something wrong with the 

scoop car. And he said, I'm just tired of it, and he said 

I've tried to work with Gary on getting things fixed on the 

scoop car, but it's always one thing after another and, you 

know, like it seems like all the time there's something that 

needs fixing on the scoop. And that he could see why none of 

the other foremen really liked working with Gary. 

I told Albert, I says, you know, you're really upset. 

The way I'm saying it now, I'm saying, you know, just in my 

own tone voice [sic], but you know, he was very upset and I 

told him there's no sense getting this upset Albert, you 

know. 

And he says, no, he says, the hotline was called on my 

scoop and I'm really pissed off about it. He said, that when 

Gary runs the scoop car, you know, there's always something 

that comes up, but with someone else on the scoop car when 

Gary's off or on vacation and they don't seem to have any 

problems. 

And I says, you know, that really doesn't really, you 

know, sound like him. And he said, well, come on up and 

I'll show you what, you know, what it is all about. 

I went on up and he showed me where they had welded 

some additional supports on, to hold the lids on better. I 

told Albert then, I said, that to me this isn't an upsetting manner-- matter, that, you know, what they done was a 

perfectly, you know, correct thing to do to support the lids 

on better and I can't see you being so upset over this. 

And that was-- right then, we kind of ended the 

conversation* * *· 

(Tr. 188-189). 

Lipinski reported the conversation he had with Aloia to Gary Shreve 

on Wednesday, November 12, 1980. Shreve's testimony in this regard is as 

follows: 

Q. [Counsel for Union] And can you tell us what 

Mr. Lipinski said? 

A. [Gary Shreve] Yes, he said that Albert had stated to 

him that he was going to remove me from my job. He'd had 

enough and it was-- there was some foul words said, and then 

2752 
he said that he was just tired of it. He'd had enough. I was 

coming off the scoop. 

Q. Did he explain any further, as to why Mr. Aloia 

had made this statement at this time? 

A. Yes, he said that-- he told me that I had called 

the hotline on his, his scoop car-- his scoop car. 

(Tr. 30). 

After Lipinski told Shreve about the conversation he had with Aloia, 

Shreve confronted Aloia. Shreve's testimony concerning that conversation is 

as follows: 

Q. * * * I asked was the statement that was alleged to 

have been made by Mr. Aloiai [sic] made directly to you? 

A. [Shreve] Later tnat day, yes. 

Q. Later what day? 

A. The 

Q. The 12th of November? 

A. Yes, 12th of November. 

Q. And what did Mr. Aloiai [sic] say to you? 

A. He said that he blew it. 

Q. He blew it? 

A. Yeah, he lost it. It was a -- he admitted to 

everything Ricky said. 

* * * * * * 

Q. All right, at that point what happened? 

A. I told him that I was going to file a safety 

grievance. 

* 

Q. You didn't say, what is going on, you said I'm going 

to file a safety grievance? 

A. He knowed what was going on. 

Q. How did he know what was going on? I thought you 

had said you had been in Mr. Donley's office, Mr. Donley 

2753 
said to go downstairs and go inside and talk to your section foreman? 

A. Because I had talked to John-- I had approached John 

Tothe and John Tothe wanted to meet with me and Albert, and 

that would have been with no one else there, basically, and 

that would have been if we would have went in the office, I 

would have asked for a committeeman and I wouldn't have 

cared, just so I had somebody to hear the conversation. Now, 

that's my opinion that he sent "Preacher" away. 

Q. All right, what I'm really interested in, Mr. Shreve, 

what was said between you and Mr. Aloia? 

A. That I was going to file a safety grievance. 

Q. Over? 

A. The way he had been treating me and harassing me. 

I considered it harassment and discrimination. 

Q. Did Albert ask you what sort of harassing treatment 

you had been subjected to by him? 

A. Yes. 

Q. What did you say? 

A. And I didn't quote the dates or anything, I quoted 

[sic] over in tailgate. I quoted [sic] up at the end of the 

section. 

Q. You gave him a litany of everything that happened 

over: the years. 

A. Yes. 

Q. Did you mention the statement by Richard Lipinski? 

A. Yes. 

Q. And what did Albert say? 

A. Albert said, yes he made it. He was just mad 

because he--

Q. What was the statement that was made by Lipinski 

quote it exactly, tell me what Albert admitted to, that 

you recall? 

A. I don't follow you, could you repeat the question? 

275,1 
Q. Yes, my question really is, you said that Albert 

admitted making the statement, I want to know what statement 

that Albert admitted to making? 

A. Albert said that he thought that I'd called the 

hotline. He-- his scoop, his scoop was turned into the 

hotline and that-·- his exact words were that pissed me 

off. That's what he said to me. 

Q. Albert admitted to you that he thought that you 

had made the hotline call? 

A. Yes. 

Q. And that he was upset over it? 

A. Yes. 

Q. Did he admit that he had threatened to fire you or 

take you off the scoop car? 

A. Yes. 

Q. What did he say? 

A. He said that he had made the statement, yes, I told 

Rick that I was going to take you off the scoop car. 

Q. Okay, he admitted that, is that your testimony? 

A. Yes. 

Q. Did he say why he had made that statement allegedly 

to Mr. Lipinski? 

A. I don't-- did he say-- repeat the question. 

Q. That question is if Hr. Aloia admitted, as you say 

that he did, that he'd threatened to take you off the scoop 

car, did he tell you why or did Hr. Lipinski tell you why 

Mr. Aloia supposedly made that statement? 

A. The first time I heard it was from Rick Lipinski. 

The second time was in D section with Albert Aloia. 

Q. And what was the reason given? 

A.. Because he was turned into the hotline. His scoop 

was turned into the hotline. 

(Tr. 91 and 100-103). 

2755 
The same conversation was described by Aloia in the following testimony: 

Q. You did talk with Mr. Shreve? 

A. Yes. 

Q. Did he approach you or did you approach him? 

A. He approached John Paul Tothe and said that he 

needed to talk to us. 

Q. That he needed to talk to you and Mr. Tothe? 

A. Yes, sir. 

Q. Did he say why he needed to talk to you and 

Mr. Tothe? 

A. I don't believe he did, because I really didn't talk 

to him. He talked to John and John just informed him [sic] 

that we needed to go over and talk to Mr. Shreve about 

something. 

q. Okay--

A. And I was supposed to meet John there at twelve 

o'clock that day or something like that and John filled me 

in then. 

Q. Okay, did you eventually have your discussion with 

Mr. Shreve and Mr. Tothe? 

A. We got there around twelve, and somehow he said 

he didn't want to talk to John, but John said you had 

better go over there and talk to him. 

Q. John said to you you had better go over there 

and talk to Gary Shreve? 

A. Yes. 

Q. Okay, did you go over and talk to him? 

A. Yes, I did. 

Q. What was the conversation about? 

A. We talked about, what Lipinski and I talked about, 

and we went over some things about how safety problems with 

the scoop, why they were not reporting and stuff like that, 

how they got around me, and how they went to the committee 

2756 
before they came to us, we talked about some other things 

that had happened on the scoop, with the pitch point signs 

[sic] and things like that, and I think he said something 

about I threatened his job, and I stated that I did not 

threaten his job. 

Q. Mr. Shreve asked you whether or not you threatened 

his job? 

A. Yes, he did. 

Q. And what did you tell Mr. Shreve? 

A. I told him that I did not threaten his job. 

Q. Did he ask you whether or not you had threatened to 

take him off the job of scoop car operator? 

A. Yes, I believe that's how it was worded. 

Q. Excuse me? 

A. I believe that's how it was worded. 

Q. What was your response? 

A. I said I did not threaten to take him off the job. 

Q. Did you ever intend at any time to threaten or 

take Gary Shreve off the job of scoop car operator? 

A. No, I didn't. 

Q. Do you feel that anything that you said to 

Mr. Shreve concerning his work as a scoop car operator, 

was in any way threatening or intimidating? 

A. No, I didn't, I tried to relate to him that when 

he had safety problems to come to me first, instead of --

Q. Why was that? 

A. Because I felt that we had a relationship that we 

could have solved problems, we didn't have to go outside our 

group of people. 

Q. When you say your group of people, you mean the 

people that work at the section? 

A. Yeah, the twenty-one people that we have. 

2757 
Q. But you didn't in any way tell Mr. Shreve not to 

go outside the group of people? 

A. No, I didn't, something was stated about, if he 

was to file a grievance, and I told him that was his right. 

Q. So you didn't say you shouldn't file a grievance 

over this? 

A. No, I didn't. 

(Tr. 310-313). 

Evaluation of the Evidence 

In order to prevail in this case, the Complainant must first establish 

by a preponderance of the evidence that (1) Gary Shreve engaged in a protected 

activity, (2) that adverse action was taken against him, and (3) that the 

adverse action was motivated in any part by the protected activity. Secretary of Lahor ex rel. David Pasula v. Consolidation Coal Company, 2 FMSHRC 

2786 (1980); rev'd on other grounds, No. 80-2600 (3d Cir. October 30, 1981), 

Robinnette v. United Castle Coal Co., 3 FMSHRC 803 (1981), and Chacon v. 

Phelps Dodge Corporation, 3 FMSHRC , November 13, 1981. The reporting 

of an alleged danger or safety violation to the representative of miners is 

a protected activity under section lOS(c)(l) of the Act. Footnote!/, supra. 

The miner is protected from retaliation even if he did not actually report 

a safety violation or hazard to the representative of miners if the adverse 

action against him was the result of a belief that he had made such a report. 

Elias Moses v. Whitely Development Corporation, 3 FMSHRC 746 (1981), petition 

for review granted, Hay 1981. Even assuming, however, that Shreve had engaged 

in such a protected activity, I do not find in this case sufficient evidence 

of resulting discriminatory action or interference to support a violation of 

section lOS(c)(l). 

November 10, 1980, Conversation: The complaint alleges that Shreve was 

unlawfully threatened in a conversation between Aloia and Lipinski on this 

date. Accord{ng to Aloia, he told Lipinski in the subject conversation only 

that "it seemed like we've had a numerous number of problems with that scoop 

and maybe Gary [Shreve] couldn't handle the job because of all the problems." 

According to Lipinski, Aloia said: 

I'm going to have Gary Shreve taken off the scoop car 

* * * everytime he runs it, there's something wrong with the 

scoop car. * * * I've tried to work with Gary on getting things 

fixed on the scoop car, but it's always one thing after another 

and * * * it seems like all the time there's something that 

needs fixed [sic] on the scoop. 

While Aloia's version of his own statement is too imprecise, ambiguous and 

conditional to constitute any impermissible threat, I do not find his version 

to be entirely credible. Because of Lipinski's position of neutrality and 

2758 
disinterest on the other hand, I find him to be a more reliable witness. It 

is apparent from Lipinski's version of the conversation that Aloia indeed 

wanted to have Shreve transferred from the scoop car. According to Lipinski, 

Aloia was "really upset" and "kind of disgusted" at the time of this conversation because the MSHA hotline had been called on the scoop. Aloia himself 

admitted that he was indeed "disgusted" to learn that the "hotline" had been 

called on the scoop because the battery lids on the scoop had already been 

repaired. While he knew that Shreve had not made the actual "hotline" call, 

he suspected that Shreve had originated the complaint to the union repres·entative who made that call. Accordingly, I am compelled to find that Aloia's 

statement to Lipinski was motivated at least in part by his belief that Shreve 

had originated that safety complaint. 

An essential question still remains, however, as to whether that statement of intent to have Shreve transferred even though motivated by a protected 

activity, resulted in any unlawful interference or discrimination against 

Shreve if it was expressed only in confidence to a third party with no intent 

that it be communicated to Shreve. Indeed on the facts of this case, I find 

that Aloia did not intend to have any part of the conversation disclosed to 

Shreve. In explaining this confidentiality and his reason for confiding in 

Lipinski, Aloia testified "(y]ou got to understand that [Lipinski] and I had 

a fairly good relationship, I felt, we understood each other." Since any 

reference to the possibility of Shreve being transferred was thus made to 

Lipinski in confidence with no intent or expectation that Lipinski would violate that confidence, I cannot conclude that any such statement constituted 

an improper threat to Shreve. The facts are not unlike those in NLRB v. 

Mccann Steel Company, Inc., 448 F.2d 277 (6th Cir. 1971). In that case, an 

apparent threat made in a private conversation between management personnel 

not intended to be overheard by any employees was held not to constitute an 

improper threat to the employees under the National Labor Relations Act. 

Here, the private conversation between Aloia and Lipinski was not only not 

intended to be revealed to Shreve, it was deemed by Aloia to be confidential. 

It is arguable that Aloia should nevertheless be responsible for threats 

made out of the presence of Shreve when the third party in whose presence the 

threats were made violates such a confidence. However, because of the 

inherent unreliability of such hearsay, Shreve would not be justified in 

relying on such evidence alone to establish an unlawful threat. Otherwise, 

an operator could be penalized under the Act for the rankest of irresponsible 

and false rumors. !:._/ Before any person under similar circumstances could be 

permitted to rely upon that type of information, it would be reasonable to 

expect that it be confirmed, preferably by confronting the source. As 

4/ This is not to say that where the comments of management personnel are 

introduced as evidence of motive for a subsequent discriminatory action, 

such a limitation would apply. In this case, as in McCann Steel, supra, it 

is the statement itself which is alleged to constitute improper or illegal 

conduct. 

2759 
discussed, infra, Shreve did in fact subsequently confront that source, i.e., 

Aloia, who thereupon apparently confirmed that the earlier conversation between 

he and Lipinski did in fact take place but indicated that what had been said 

had since been countermanded and retracted. See discussion of November 12 

conversation, infra. Any threat that had been made was accordingly then 

neutralized. See N.L.R.B. v. Staub Cleaners, Inc., 418 F.3d 1086 (2d Cir. 

1969), for application of the "neutralization theory" under the National Labor 

Relations Act. Under the circumstances, I do not find find that either version of the conversation between Aloia and Lipinski on November 10, 1980, 

would have resulted in any unlawful discrimination or interference. 

November 12, 1980, Conversation: It is undisputed that on November 12, 

1980, there was a direct conversation between Shreve and Aloia in which 

Shreve confronted Aloia with the hearsay reports from Lipinski. Even if 

Shreve's version of this confrontation is accepted as the more credible, it 

is clear that Aloia did not then threaten to remove Shreve from the scoop 

car. The most that can be gleaned from Shreve's version of this conversation 

is that Aloia admitted that in his previous conversation with Lipinski 2 days 

before, he had indeed threatened to remove Shreve but that he now recognized 

that such a threat was improper and retracted it. Indeed, by admitting to 

Shreve that he "blew it," Aloia was clearly expressing that recognition. Thus, 

when Shreve first confronted Aloia with the hearsay allegations of threats 

reported to him by Lipinski, the "threats" were neutralized. Staub Cleaners, 

supra. In other words, as a result of the confrontation on November 12, 1980, 

Shreve could not have been truly threatened. While he then learned that the 

previous hearsay rumor about a possible recommended job transfer was in fact 

accurate, he also learned at the same time that the earlier contemplated 

action had already been countermanded and was retracted. Under the circumstances, I find that Complainant has failed to meet its burden of proving 

any unlawful discrimination or interference. l./ The complaint is accordingly 

dismissed. ~ 

5/ Since the prior alleged acts of discr mi ation agai Shreve were 

admitted only as evidence to support the a eged unlawf nature of the acts 

of November 10 and 12, which I have found t to be in violation of the Act, 

a detailed analysis of these incidents is unnecessary. The overall credibility 

of the complaint herein may also be considered in light of Shreve's allegations that although he had been threatened with discharge or transfer on as 

many as eight different occasions between December 7, 1979, and March 7, 1981, 

no such action has ever been taken. Moreover, the Complainant has conceded 

that the alleged acts of discrimination or interference were each so incon~ 

sequential as not to have warranted any remedial action under the Act. 

2760 
Distribution; 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street, 

N.W., Washington, DC 20005 (Certified Mail) 

Daniel L. Fassio, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

*U.S. GOVERNMENT PRIIHlllG OFFICE: 1981--361-638/4364 

2761