JANUARY 1987 

There were no Commission decisions for January 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-30-86 

01- 05-87 

01- 06-87 

01-06-87 

01-08-87 

01- 09- 87 

01-09-87 

01- 12-87 

01- 12-87 

01-12-87 

01-13-87 

01-13-87 

01-14- 87 

01- 15-87 

01- 21-87 

01-21-87 

01-21-87 

01-21-87 

01-28-87 

01-28-87 

01-29-87 

01-30-87 

01- 30-87 

(Order) Secretary of Labor for Yale E. 

Hennessee v . Alamo Cement Co . 

Colorado Materi als Co . , Inc. 

Sec . Labor/Robert Corbin & James Corbin v . 

Terco , Inc . , e t c . 

Consolidation Coal Company 

Sec . Labor for Bar ry Mylan , Lester Poorman v . 

Benjami n Coal Co ., and UMWA 

Jefferson County Road & Bridge Department 

Sec. Labor for Joseph Timko v. Dee Gold Mining Co . 

Nelson Trucking 

Charles F. Rose v . Consolidation Coal Co . 

Sec . Labor for Johnny Vance v. Eastern 

Associated Coal Corporation 

Amarillo Road Company 

Sec. Labor for Ronnie Beavers, et al . and 

UMWA v . Kitt Energy Corporation 

Dairl Eddington v . Falcon Coal Company 

Jim Walter Resources , Inc . 

Jim Walter Resources, Inc. 

Sec . Labor for Sam Ball v. Westmoreland Coal Co . 

West Elk Coal Company, Inc . 

Jay Tuft and Company , Inc . 

Jim Walter Resources, Inc . 

Drummond Company, Inc . 

Glen Irvan Corporation 

Webster County Coal Corporation 

U.S. Steel Mining Co . , Inc . 

CENT 86-151-DM 

CENT 86-37-M 

KENT 86-131-D 

KENT 86-132-D 

WEVA 86-385 

PENN 86-125-D 

WEST 85-125-M 

WEST 85- 132-DM 

LAKE 86-6-M 

WEVA 86-379-D 

WEVA 86-424-D 

CENT 86- 93-M 

WEVA 85-73-D 

KENT 86-164-D 

SE 87-29-R 

SE 86-83 

VA 86- 23-D 

WEST 86- 28-R 

WEST 86-60-M 

SE 86-85-R 

SE 86-135 

PENN 86-64 

KENT 87- 9-R 

WEVA 86- 436 

Pg . 1 

Pg . 18 

Pg . 24 

Pg . 26 

Pg . 27 

Pg . 56 

Pg . 66 

Pg . 70 

Pg. 75 

Pg . 83 

Pg . 84 

Pg. 93 

Pg. 99 

Pg . 102 

Pg. 109 

Pg . 116 

Pg . 118 

Pg . 176 

Pg . 181 

Pg. 184 

Pg. 186 

Pg . 188 

Pg. 191 

JANUARY 1987 

Review was granted in the following case during the month of January: 

Secretary of Labor, MSHA v. U.S. Steel Mining Company, Inc., Docket No. 

WEVA 86-371. (Judge Melick, December 17, 1986) 

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

Ivan Moore v. Martin County Coal Corporation, Docket No. KENT 85-183-D. 

(Judge Fauver, December 12, 1986) 

ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6232 

December 30, 1986 

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

. . 

·: Docket·No. CENT 86-151-DM 

: MSHA Case No. MD 86-35 

YALE E. HENNESSEE, 

Complainant : 1604 Quarry and Plant 

v. . 

. ALAMO CEMENT COMPANY, 

Respondent . . 

ORDER DENYING THE RESPONDENT'S MOTION FOR 

MODIFICATION OF ORDER OF TEMPORARY REINSTATEMENT 

Appearances: Frederick w. Moncrief, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for. Complainant: 

Before: 

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

Fulbright & Jaworski, Houston, Texas, for 

Respondent. 

Judge Koutras 

Statement of the Proceeding 

This proceeding concerns an Application for Temporary 

Reinstatement filed by MSHA pursuant to section 105(c)(2) of 

the Federal Mine Safety and Health Act of 1977, and Commission 

Rule 29, 29 C.F.R. § 2700.44(a), seeking the temporary reinstatement of the complainant Yale E. Hennessee to his job as 

an electrician at the respondent's 1604 Quarry and Plant. 

Mr. Hennessee was discharged by the respondent on April 22, 

1986, for insubordination because of his alleged refusal to 

perform a job assignment. Mr. Hennessee claims that his 

refusal to perform the work in question was based on his 

belief that the work task in question could not be done safely. 

MSHA has since filed a discrimination complaint on 

Mr. Hennessee's behalf claiming that his work refusal was 

protected activity and that his discharge constitutes a violation of the Act. 

1 
A Temporary Reinstatement hearing was held on October 23, 

1986, and on Novemer 6, 1986, I issued a decision finding that 

MSHA's complaint was not frivolous, and respondent was ordered 

to immediately reinstate Mr. Hennessee pending further adjudication of the merits of the discrimination complaint. 

The respondent appealed my reinstatement order to the 

Commission, and while that appeal was pending, filed a request 

for modification of my order, and MSHA filed an opposition to 

the request. Since the matter was on appeal, no dispositive 

ruling was made with respect to the request. 

On December 8, 1986, the Commission issued its decision 

affirming my reinstatement order, and remanded the matter for 

further adjudication. The respondent's pending request for 

modification of my order is now ripe for disposition. 

Discussion 

As part of its Application for Temporary Reinstatement, 

MSHA included an affidavit from Wilbert B. Forbes, Chief of 

Special Investigations, Metal and Non-metal Division, 

Arlington, Virginia, which states in pertinent part as 

follows: 

On December 4, 1984, Applicant was severly 

injured during the performance of his duties at 

Respondent's mine sustaining multiple broken 

bones in his right foot and severe damage to 

his left knee; 

As a result of the December 4, 1984, 

injuries Applicant was unable to work for 

49 days and assigned to light duty for an 

additional 30 or more days; 

Applicant is permanently disabled as a 

result of his 1984 injuries and requires 

further surgery on his knee. 

The question of Mr. Hennessee's prior injuries was first 

raised by Mr. Hennessee when he testified that "the company 

had always been good to me" and that when he was injured and 

in the hospital, company president Hopper visited him in the 

hospital {Tr. 53-54). When MSHA's counsel pursued the matter 

further,· respondent's counsel interposed an objection on the 

ground 9f relevance (Tr. 56). 

MSHA's counsel proffered that notwithstanding his prior 

injuries and disability, Mr. Hennessee is still capable of 

2 
performing full-time the duties of electrician, and has in 

fact so performed. Counsel also indicated that Mr. Hennessee's 

prior injury may have played some part in his refusal to remove 

the motor in question, and that this chore would have been more 

difficult for him than for someone who had not suffered an 

injury (Tr. 57-58). 

The respondent's objection was overr~led, and counsel 

interposed a continuing objection toany testimony concerning 

Mr. Hennessee's prior injuries (Tr. 58). 

The coloquy concerning Mr. Hennessee•s prior injuries is 

reflected as follows at (Tr. 56-58): 

Q. Did you ever refuse any overtime? 

A. No, sir. 

Q. Did you ever refuse to perform a job at 

Alamo Cement? 

A. No, sir. 

Q. . Had you ever refused to do anything at 

Alamo Cement? 

A. No, sir. 

Q. When you were injured -- when did that 

occur? 

MR. THOMAS: Objection; relevance. 

JUDGE KOUTRAS: I noticed that in the affidavit. What is the relevance of his prior 

injury and condition? As a matter of fact, I 

was intrigued by the statement in the aff idavit in support of the application for reinstatement which alluded to the fact that --

(Perusing document.) 

It says, "As a result of Mr. Hennessee's 

injuries, he is permanently disabled." 

MR. MONCRIEF: Partially disabled, I believe. 

JUDGE KOUTRAS: Well, this says permanently 

disabled. I was intrigued how a man who was 

permanently disabled in 1984 was working in an 

3 
area of the mine where he is required to take 

down motors and all that sort of thing. 

MR. MONCRIEF: I was going to follow that, 

Your Honor, for the fact that I think it does 

have some relevance. 

JUDGE KOUTRAS: Make a proffer •. What is the 

relevance? 

MR. MONCRIEF: The proffer is simply that in 

'84 -- I think it was December of ·'84, 

Mr. Hennessee was severely injured and, as a 

result, suffers a permanent partial disability, a disability well .know:1. to the company. 

Notwithstanding that disability, 

Mr. Hennessee still performs and is capable of 

performing full-time the duties of electrician, including, as we have just heard, lowering a motor down a steep incline covered with 

marble-like material to the dome area, but 

that, in addition to that, in his condition, 

certainly, there may have been some -- his 

injury may have played some part in his 

refusal to carry that -- or attempt to drag 

that motor back out. 

JUDGE KOUTRAS: But not down. 

MR. MONCRIEF: He described, I think, the 

manner in which they took the motor down, and 

the difficulties. And I simply wanted, as 

part of the record, to have it known --

JUDGE KOUTRJ\5: All right. So you have 

already done that now. You made a --

MR. MONCRIEF: That was my proffer. 

JUDGE KOUTRAS: You made an argument that he 

was injured in '84; he is partially disabled, 

and the company is aware of it and, notwithstanding those injuries, he still can perform 

his duties and is able to perform his duties, 

et cetera, et cetera. 

MR. MONCRIEF: Yes, sir. And I think, too, 

Your Honor, there is a point that, because of 

4 
his condition, this attempting to retrieve 

this motor to carry it up -- this heavy motor 

up the ramp -- would have been a bit more 

difficult for him than for someone who had not 

suffered an injury. 

JUDGE KOUTRAS: Did he tell that to --

MR. MONCRIEF: No, I don't believe he did~ 

however, it was a fact well known to the 

company -- his condition. 

JUDGE KOUTRAS: All right. 

MR. MONCRIEF: That would be my proffer, if 

you want to accept it. 

JUDGE KOUTRAS: That is all right. Go ahead. 

Continue. 

MR. MONCRIEF: Okay. 

JUDGE KOUTRAS: Overruled. 

You made an objection as to relevance? 

MR. THOMAS: Yes, sir. And we would continue 

that objection. 

JUDGE KOUTRAS: Fine. 

Mr. Hennessee testified as follows with respect to his 

injuries and the effect of those injuries on his ability to 

perform his duties (Tr. 59-61): 

BY MR. MONCRIEF: 

Q. Briefly describe the nature of your 

injuries. 

A. I had torn ligaments and cartilage in my 

left knee, and my right foot was crushed. I 

have a pin in my second toe on my right foot. 

Q. Are either of these conditions continuing 

or causing any difficulty at the present? 

A. Yes, they do. 

5 
JUDGE KOUTRAS: You said yes? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: What difficulties? 

THE WITNENSS: I have to wear a pad in my 

right shoe to k.eep my toes from ·curling up. 

After working a lot of long hour_s, my left· leg 

will swell up, and my knee is tender-at all 

times when it gets twi$ted or anything. 

JUDGE KOUTRAS: All right. 

BY MR. MONCRIEF: 

Q. Was your knee essentially in the same condition on the 17th of April? 

A. Basically, yes. 

Q. When the injury occurred or the injuries 

occurred, how long were you off work? 

A. Ten weeks. 

Q. When you returned to work, to what assignment did you return? 

A. I returned to light-duty shop work. 

Q. For how long? 

A. I am going to say about two months. 

Q. So sometime in '85 did you eventually 

return to your normal duties? 

A. Yes, I did. 

Q. On the day of the 17th of April did the 

condition of your knee in any way enter into 

your consideration or deliberations as to 

whether to take that motor back up the ramp? 

MR. THOMAS. Objection1 leading. 

JUDGE KOUTRAS: Yes. You are leading him a 

little bit. 

6 
MR. MONCRIEF: Yes, sir. 

BY MR. MONCRIEF: 

Q. What, if any part, did you knee play in 

your determination? 

MR. THOMAS: Objection; leading •. 

JUDGE KOUTRAS: Overruled. l will let you 

answer it. Go ahead. 

THE WITNESS: The condition of my knee and my 

foot ever since the accident is something I 

think about no matter what I am doing. 

JUDGE KOUTRAS: Well -- okay. 

THE WITNESS: Do you understand this, Judge? 

If I am walking down the street and I see a 

slippery spot on the sidewalk I ~aturally walk 

around it. 

JUDGE KOUTRAS: All right. 

THE WITNESS: The same thing at the plant; 

there are some areas where I am very careful 

when I walk there. 

And, at <Tr. 63-64): 

Q. Mr. Hennessee, at the time on the 17th, 

was the company aware of the extent or the 

degree of your injury to your knee and foot? 

A. I am sure they were. 

Q. Why? 

A. Most of the guys in the maintenance department used to call me Hopalong. 

Q. Why? 

A. I limp at times; sometimes worse than 

others. 

7 
Respondent's counsel pursued the matter further on 

cross-examination as follows at (Tr. 68-69): 

MR. THOMAS: 

Q. Mr. Hennessee, since you talked about it 

on direct examination, I want to explore a 

little bit with you this injury·matter. 

Now, in your statement that you wrote on 

April 20, 1986, you made no mention of your 

injury, did you? 

A. No. 

Q. Okay. And when you· spoke with Mr. Galindo 

and Mr. Pratt on the night of April 17, you 

made no mention of your injury, did you? 

A. No, I didn't. 

Q. In fact, the very first mention that you 

made of your injury, to the knowledge of anyone with the company, was today in this courtroom. Isn't that a fact? 

A. Well, I think they all knew about my 

injury. 

Q. I am going to ask you to answer my question, Mr. Hennessee. I will try to give 

you -- and be as precise as I can, and if you 

need to explain things, you can explain things 

later. 

What I want to know and what I want you 

to answer is, between the date of your altercation at the plant and today, did you mention 

to anyone in the company that your injury was 

a consideration in what happened? 

A. I don't believe so. 

Respondent's Request for Modification 

The respondent requests that my reinstatement order be 

modified to require Mr. Hennessee to undergo and pass a physical examination of his left knee and right foot as a condition 

precedent to his temporarily resuming employment. Respondent 

8 
requests that Mr. Hennessee be required to submit to such an 

examination by the respondent's physician, and that should he 

desire that his own physician also examine him, respondent 

states that it will pay the cost. 

In support of its request, the respondent states that it 

had no knowledge of the continuing extent· and severity of 

Mr. Hennessee's injuries until the re-instatement hearing. 

Respondent asserts that requiring Mr. Hennessee to undergo 

and pass a physical examination as a coridition to his temporary reinstatement is necessary in order to assure that he is 

physically qualified to perform the duties of his position, 

to protect his safety and the safety of individuals who might 

be assigned to work with him, and to protect the respondent 

from potential liability in future workers' compensation or 

other claims. 

In a letter dated November 14, 1986, to MSHA's Assistant 

Secretary, the respondent states that its request is in no 

way related to an effort to avoid compliance with the reinstatement order. Respondent states further that it only 

desires to insure that Mr. Hennessee is physically fit to 

perform the duties of his position, and believes that its 

request is reasonable and consistent with the requirements of 

safety which are present in all mining activities. 

MSHA's Opposition 

In response and opposition to the respondent's request 

for modification of the order of reinstatement, MSHA points 

out that when Mr. Hennessee's prior injuries were referred to 

during the reinstatement hearing, the respondent interposed 

an objection on the ground of relevance, and continued its 

objection to any further references to those injuries. 

MSHA states that following the issuance of the reinstatement order, the respondent reinstated Mr. Hennessee on the 

evening shift, and he worked on November 10, 11, and 12, 1986. 

MSHA asserts that the issue of his physical capacity was 

raised for the first time on the morning of November 10, 1986, 

when upon reporting for work the evening of November 10 or 11, 

Mr. Hennessee was presented a statement for his signature stating for the first time the respondent's insistence on an examination by the respondent's physician prior to the evening 

shift of November 14, 1986. In support of this assertion, 

MSHA has included a statement dated November 11, 1986, by 

Plant Manager Ed Pierce which states in pertinent part as 

follows: 

9 
Yale E. Hennessee was temporarily reinstated with Alamo Cement Company on 

November 10, 1986, by order of Mine Safety and 

Health (MSHA) of the United States Department 

of Labor. His first scheduled shift was the 

10:00 p.m. to 6:00 a.m. shift on this date. 

* * * * * * * 

Alamo Cement is a non-union plant. 

Employees are to do what any supervisor asks 

them and no employee would be asked to do anything unsafe. Even though Mr. Hennessee is an 

electrician, because of our non-union status, 

he was told at times he would be required to 

do other jobs (i.e., motor painting, electric 

room sweeping, shoveling, etc.). 

Before reporting to work Friday, 

November 14, 1986, Mr. Hennessee is to have a 

physical by his doctor and the Company's 

doctor and give the results of these physicals 

to Alamo Cement on or before November 14, 1986. 

Mr. Hennessee was told that the Company would 

make an appointment with their doctor for him 

and let him know the time of the appointment. 

MSHA states that thereafter, in the afternoon of 

November 13, respdndent told Mr. Hennessee not to report to 

work that evening unless he had an examination by its physician. Respondent was advised at that time that Mr. Hennessee 

would be examined by his own physician. MSHA has included a 

statement by Mr. Hennessee's physician, Orthopaedic Surgeon 

Richard F. Cape, dated November 17, 1986, stating that 

Mr. Hennessee may return to work as of that date with no physical activity restrictions. 

As a result of the respondent's unreasonable insistence 

that Mr. Hennessee submit to a physical examination by its 

physician as a condition to reinstatement, MSHA states that 

its special investigator issued two section 104(a) citations 

and a section 104(b) order on November 13, 1986. The following morning the respondent agreed to pay Mr. Hennessee from 

the previous evenings shift on November 13, through 

November 18, provided he was examined by his physician in the 

interim. On the basis of this "retroactive ersatz compliance" 

with the reinstatement order, the citations and order were 

vacated on November 14, 1986. 

10 
MSHA states that on the afternoon of November 17, the 

respondent informed Mr. Hennessee that he was to report for 

an examination by its physician at 2:30 p.m. the following 

day and not to report for work otherwise. Upon reporting for 

work at 2:00 p.m. o'n November 19, accompanied by MSHA's 

special investigator, Mr. Hennessee was again terminated from 

his employment. As a result of this termination, MSHA's 

special investigator issued two section 104(a) citations and 

a section 104 { b) order on November 19_, 19 86. 

MSHA argues that no legitimate reason exists for requiring an examination of Mr. Hennessee by .the respondent's physician, and that if the respondent had any basis for concern as 

to the safety or well being of Mr. Hennessee prior to 

November 10, it should have investigated the matter and presented it for consideration during the reinstatement hearing. 

Were there any basis for concern after November 10, MSHA 

asserts that it must have been eliminated on November 18, 

when the respondent received the certification of 

Mr. Hennessee's physician, the same physician upon whose certification the respondent relied in February 1985 when he 

returned to work after his injury. MSHA points out that the 

respondent does not suggest that its physician is capable or 

appropriate to the task of meaningfully examining 

Mr. Hennessee's knee or foot. 

MSHA states that the respondent has long known of 

Mr. Hennessee's injury because he received it on the job and 

it is the subject of continuing litigation between them. 

MSHA points out that despite his injury, Mr. Hennessee has 

fully and capably performed his work duties until his discharge in April, 1986. Moreover, during the 3 days in which 

Mr. Hennessee worked after his reinstatement, he fully performed his duties, and prior to returning to work in 1985, he 

received his orthopedic surgeon's clearance, and was again 

examined and cleared for work by his doctor on November 17, 

19 86. 

MSHA concludes that there is no basis to require 

Mr. Hennessee to undergo a physical examination by the respondent's physician as a condition to his reinstatement. MSHA 

maintains that Mr. Hennessee's knee remains in as good or 

better condition that it did on the day of his discharge in 

April, 1986, and that the respondent previously accepted him 

back to work after the 1984 injury. 

MSHA concludes further that having lost at the temporary 

reinstatement hearing, the respondent now seeks to find refuge 

from that order by interposing, solely on Mr. Hennessee, 

11 
special demands which create hardships for him. MSHA maintains that it would not knowingly seeking reinstatement of a 

individual incapable of performing the functions for which his 

reinstatement is sought, and that this has not occurred in 

this case. MSHA contends that both Mr. Hennessee and MSHA 

have been reasonable and accomodating and have addressed the 

concerns expressed by the respondent. 

Findings and Conclusions 

The respondent does not contend that it had no prior 

knowledge of Mr. Hennessee's prior injury. I believe it has 

raised the issue, albeit belatedly, because of Mr. Hennessee's 

admission that his prior injury continues to cause him difficulty, and his admission that he wears a shoe pad to keep his 

toes from curling up, that his leg swells up when he works 

long hours, and that his knee is tender at all times, particularly when twisted. 

The fact that the respondent was aware of Mr. Hennessee's 

prior injury, and that some of his fellow workers refer to him 

as "Hopalong" because he limps at times, does not establish 

that the respondent was aware of Mr. Hennessee's asserted 

present difficulties with his leg and knee. Given the fact 

that there is no evidence that the respondent knew that 

Mr. Hennessee wears a shoe pad, or that his leg is subject to 

swelling and his knee is always tender when twisted, and his 

admission that he did not mention his prior injury to company 

management when he discussed the incident of April 17 with 

them, and did not contend at that time that his injury played 

a role in his work refusal, I cannot conclude that the respondent's belated raising of this issue is other than bona fide. 

As correctly argued by MSHA, the respondent did not make 

an issue of Mr. Hennessee's prior knee and leg condition during the hearing, and in fact interposed a continuing objection 

to any testimony in this regard and took the position that it 

was irrelevant. 

Mr. Hennessee testified that the condition of his knee 

at the time of the April 17, 19 86 r .i nc:Ldent which gave use to 

his discharge was basically the same as it was when he 

returned to work after his injury in 1984. Although he was 

off the job for 10 weeks because of his injury, and was 

assigned to light duty shop work for 2 months after his 

return, he stated that sometime in 1985, he returned to his 

normal duties as an electrician, and there is no evidence 

that hfs physical condition has interferred with his work. 

12 
Although Mr. Hennesse admitted that he wears a pad in 

his right shoe to keep his toes from curling up, that his leg 

swells when he works long hours, and that his knee becomes 

tender when it is twisted, there is no evidence or testimony 

to establish that his prior injury has in any way interferred 

with the performance of his electrician's duties, or that he 

is unable to perform those duties safely.- Further, there is 

no evidence that Mr. Hennessee has ever c9rnplained about his 

knee or foot condition, that he has ever refused any job 

assignment because of his condition, or that the respondent 

was required to make any special accomodation to him because 

of his condition, other than to assign him light duties until 

he could fully perform his normal electrician's duties. 

Indeed, once he was returned to his normal duties, there is 

no evidence that his prior injuries interferred with his ability to do his job. Further, there is no indication that he 

was unable to perform his duties during the 3 days that he 

was reinstated in compliance with my temporary reinstatement 

order. 

With regard to Mr. Hennessee's general competency to do 

his job, MSHA Special Investigator Paul Belanger testified 

that his investigation of Mr. Hennessee's discrimination complaint disclosed no adverse information concerning his work 

performance. Mr. Belanger testified that there was no evidence of any prior adverse personnel ac±ions against 

Mr. Hennessee, or any unfavorable comments concerning his 

workmanship, conduct, or his ability to get along with others. 

Mr. Belanger concluded that Mr. Hennessee was a good employee 

(Tr. 137-138). Plant manager Ed Pierce confirmed that 

Mr. Hennessee was a good employee {Tr. 204). 

Mr. Hennessee testified that the respondent went to some 

expense to send him to a GE factory training school in 

January, 1986, to learn about an automated computer system 

for a new section of the plant. He also confirmed that he 

of ten responded to calls by the respondent for his services 

in the evenings when the job required it, and that he never 

refused to work overtime or to do his work CTr. 54-56). 

In a prior temporary reinstatement case which I decided 

on March 18, 1986, I denied MSHA's request for temporary reinstatement of a miner pending a hearing of the merits of his 

complaint, Secretary of Labor, MSHA ex rel Johnnie Lee Jackson 

v. Turner Brothers, Inc., Docket No. CENT 86-36-D, 8 FMSHRC 

368 (March 1986). 

In the Jackson case, the facts disclosed that he was 

discharged from his job as a bulldozer operator after he 

13 
suffered injuries when a high wall fell on his machine while 

he was operating it. He was discharged for allegedly causing 

the accident, which not only resulted in injuries to his back 

and neck, but also damaged the machine. Although the doctor 

who treated Mr. Jackson for his injuries submitted a statement that he was able to return to work after the accident 

with no restrictions, he also noted that as a result of his 

injuries, Mr. Jackson was temporarily and totally disabled 

and that his injuries predisposed him to reoccurring exacerbation of symptoms and reinjury related to the accident. In a 

second statement, the same doctor was of the opinion that 

Mr. Jackson would require periodic care· for the rest of his 

life and would probably experience chronic reoccurring symptoms as a result of his injuries. 

In addition to the medical information concerning 

Mr. Jackson's injuries, the evidence adduced during the reinstatment hearing reflected that he suffered from 11 tennitis or 

ringing of the ears, 11 and possible hearing loss as a result 

of loud equipment noise, and that this information was not 

made available to the doctors who cleared him for return to 

work. Further, the evidence established that Mr. Jackson had 

in the past voluntarily exposed himself to unsafe work conditions and had been admonished by the mine operator for failure 

to us~ his seat belt or to wear a hard hat while operating his 

equipment. 

My decision denying temporary reinstatement in the 

Jackson case was based on the totality of all of the evidence 

adduced during the reinstatement hearing which reflected his 

then present physical condition, including his doctor's contradictory medical statements, the fact that he was suffering 

possible hearing loss, a condition not known prior to the 

hearing, and the fact that his prior work record reflected 

his own lack of care and disregard for the requirement that 

he wear a harj hat and use his seat belt while operating his 

equipment. I also considered the fact that to reinstate 

Mr. Jackson to his prior job operating a piece of equipment 

which had to be maneuvered back and forth while not always on 

level ground presented 11 a clear and present dAnger" or potential for further injuries. 

In my view, the facts presented in the instant case are 

distinguishable from those presented in the Jackson case. 

There is no evidence that Mr. Hennessee has had any past difficulty in doing any job assigned to him. The evid~nce establishes that he has been a good employee and has never been 

disciplined or charged with any safety violations. Further, 

his prior injuries were not recent, and he was welcomed back 

14 
after a period of recuperation and assigned light duties 

before being permitted to perform his normal job as an electrician. In all candor, I believe that the question of 

Mr. Hennessee's prior injuries were brought out by MSHA in an 

attempt to support a possible later claim that they somehow 

impacted on his refusal to perform the job task for which he 

was fired. However, this is an issue which is yet to be 

determined on the merits of the discrimination complaint. 

On the facts of Mr. Hennessee's case in its present 

posture, and after careful review and consideration of all of 

the testimony and evidence of record, including an unrebutted 

statement from his orthopedic surgeon that he is able to perform his normal electrician's duties without physical restrictions, I cannot conclude that his temporary reinstatement 

pending the adjudication of the merits of his complaint will 

adversely affect his safety or the safety of his fellow 

workers, or that his temporary reinstatmeent should be conditioned on his passing a physical by a company doctor. 

As indicated earlier, Mr. Hennessee's physical condition 

was raised by MSHA as part of its complaint, and by its 

counsel during the course of the hearing. In my view, aside 

from the .respondent's liability concern, the only possible 

concern with Mr. Hennessee's physical ability to his job as 

an electrician may be presented in connection with any 

"non-electrician" duties which may be assigned to him. During 

the reinstatement hearing, Plant Manager Ed Pierce confirmed 

that the plant is non-union and that everyone, including electricians, are expected to do cleanup work (Tr. 216). Although 

Mr. Hennessee stated that he was never expected to do any work 

other than "technical work" during the period of his employment with the respondent, he conceded that management had 

never specifically told him that, and he further conceded that 

he never refused to do any job· assignment, and that company 

rules required that anyone working on equipment clean up and 

remove any debris CTr. 74-75). Further, although Mr. Hennessee 

confirmed that his prior accident is something that he thinks 

about when he is at work or away from work, and that he is careful when he walks around, he candidly admitted that he would 

"take a risk" in order to get the job done" (Tr. 60-61). 

Mr. Pierce's statement of November 1, 1986, reflects that 

as a non-union employee, Mr. Hennessee would at times be 

expected and required to perform non-electrical work such as 

painting, sweeping, shoveling, etc. Under these circumstances, 

I believe it is reasonable to conclude that these additional 

duties ~re likely to include physical labor which may or may 

not further aggravate Mr. Hennessee's existing knee and foot 

15 
condition. However, I am not convinced that the respondent's 

policy of assigning other work to its employees is something 

new. The record here supports a conclusion that Mr. Hennessee 

has always been expected to perform duties not specifically 

related to those of an electrician and that he has done so 

willingly and without incident or complaint. Under the circumstances, I am not convinced that the performance of these 

additional duties will expose Mr. Herihessee to further injury, 

nor am I convinced that the respondent has established by any 

credible evidence that as a condition of reinstatement, 

Mr. Hennessee should be forced to undergo a physical by a company doctor. I express no view as to whether or not the 

respondent's existing personnel policies or rules require its 

employees to be examined by a company doctor in the event the 

respondent, as an employer, has reasonable or legitimate 

grounds. to believe that an employee cannot physically perform 

his job. My jurisdiction is limited to the facts presented 

in the context of a temporary reinstatement proceeding under 

the Act. 

ORDER 

In view of the foregoing findings and conclusions, the 

respondent's request for modification of my temporary 

reinstatement order to require Mr. Hennessee to undergo a 

physical by a company doctor as a condition precedent to his 

temporary reinstatement pending an adjudication of his discrimination complaint on the merits IS DENIED. My previous 

Decision and Order of November 6, 1986, is therefore 

REAFFIRMED, and the respondent IS ORDERED to immediately reinstate Mr. Hennessee temJ?Orarily to his electrician's position 

in compliance with that Order. 

/. 

/·/,,//./,;1~7 ,. ,C-'t,,. 7L· t',1' ,// 

I /3-1-1 -~~,,. t c.'?./f.A::j,, 

· ,ce·orge • Koutras 

Administrative Law Judge 

16 
Distribution: 

Robbie J. Gannaway, Esq., Office of the Solicitor, U.S. 

Department of Labor, 525 Griffin Street, Suite 501, Dallas, 

TX 75202 (Certified Mail) 

Robert S. Bambace, David M. Thomas, Esqs., Fulbright & 

Jaworski, 1301 McKinney Street, Houston, TX·77010 

(Certified Mail) · 

Frederick Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

/f b 

17 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 5 1987 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COLORADO MATERIALS CO., INC., 

Respondent 

. 

. Docket No. CENT 86-37-M 

A.C. No: 41-03036-05504 

Olmos.Portable Crusher 

No. l M 

DECISION 

Appearances: Eva Chesbro, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, TX, for 

Petitioner~ 

William M. Knolle, Esq., Hearne, Knolle 

Lewallen, Livingston & Holcomb, Austin, TX, for 

Respondent. 

Before: Judge Fauver 

This proceeding was brought by the Secretary of Labor 

for a civil penalty for an alleged violation of a safety 

standard under the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801, et~ 

Based on the hearing evidence and the record as a whole, 

I find that a preponderance of the reliable, probative, and 

substantial evidence establishes the following: 

FINDINGS OF FACT 

1. Respondent, Colorado Materials co., Inc., at all 

pertinent times operated the Olmos Portable Crusher No. 2, 

which is a limestone (crushed and broken) plant, in Austin, 

Texas, engaged in interstate commerce. 

2. On August 6, 1985, between 7:00 and 7:30 a.m., 

Respondent's crusher operator, Galdino Robledo (Decedent), 

was fatally injured while attempting to remove a rock or 

rocks from a portable rock crusher. 

18 
3. When Decedent was killed, the engine of the rock 

crusher was running and the machinery was not blocked against 

motion. Decedent apparently put the engine in neutral, 

climbed down to the drum and mouth of the crusher in order to 

dislodge a rock or rocks from the crusher drum and attempted 

to dislodge the obstruction by pushing the drum with his foot. 

In this movement, he apparently slipped and fell into the 

mouth of the rock crusher. His hard hat and a boot came out 

of the crusher and traveled on a conveyor belt a distance of 

about 25 feet. This distance reasonably shows that 

Decedent's initial contact with the drum caused the clutch to 

engage accidentally and thus to add engine power to drive the 

drum that crushed him to death. 

4. On August 7, 1985, after a careful investigation of 

the accident, MSHA's inspector issued a citation charging 

Resondent with a violation of 30 C.F.R. § 56.14029, which 

provides: 

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. 

5. Decedent began working for Respondent in 1984 as a 

laborer, and worked his way up to the job of crusher operator 

by January, 1985. He was known to be a productive, careful 

and dependable worker. 

6. Respondent produces about 600,000 tons of crushed 

rock a year. It is as a small to medium sized operator. 

7. In the 24 months before the accident, Respondent 

paid penalties for five violations, which were found during 

six inspection days. 

8. It was stipulated that payment of the proposed civil 

penalty of $6,000 would not impair Respondent's ability to 

continue in business. 

9. Respondent abated the cited condition in a timely 

manner, by conducting a safety meeting at which all employees 

were instructed to shut off the power on the crusher engine 

and to install a blocking pin. in the crusher axle before any 

employee entered the crusher area for removal of 

obstructions. 

10. Many of Respondent's employees, including Decedent, 

were Spanish speaking rather than English speaking. 

19 
Respondent did not post safety signs or write safety notices 

in Spanish for the benefit of such employees. Decedent's 

immediate supervisor did not speak Spanish and only assumed 

that Decedent, although Spanish speaking, could understand 

enough English to follow his instructions to Decedent, but no 

proof was offered to show that Decedent actually had a 

reasonable grasp or understanding of English. His supervisor 

testified that Decedent could understand vocal instructions 

in English because Decedent would do what he was instructed. 

However, the supervisor did not know how much of Decedent's 

understanding was due to gestures and other nonverbal 

communications, and there was no evidence that he could read 

English or follow it without gestures. 

DISCUSSION WITH FURTHER FINDINGS 

Respondent contends that it had a policy requiring the 

crusher operator to shut off the power of the diesel engine 

driving the crusher before attempting to remove obstructions 

from the crusher. Additionally, Respondent asserts that 

the removal of obstructions fits within the exception of 

§ 56.14092, in that the materials could not be removed unless 

there was machinery motion. It therefore contends that it 

did not need to block the machinery against motion. 

It is at best arguable whether Respondent had a policy 

requiring that the engine be shut off. Al though Respondent's 

managerial staff testified to such a policy, they have failed 

to provide the records which they contend they have kept as 

documention of safety meetings and instructions. Moreover, 

testimony indicates that even if such a policy existed in 

theory, it was not enforced in practice, e.g. during winter 

months due to the difficulty of restarting machine 

operations. 

The failure to enforce such a policy, if Respondent had 

one, through fective communication, training, or 

supervision, is tantamount to an absence of such policy. 

The standard cited also requires the blocking of 

machinery against motion, "except where machinery motion is 

necessary to make adjustments." At times, obstructing rocks 

were removed by turning the drum shaft from the outside of 

the machine. At those times, the blocking safety standard 

would not apply. However, there were times when obstructing 

rocks were too big to be dislodged this way, and at those 

times i~ was necessary to pull or pick the rock or rocks away 

from the drum while standing inside the crusher area and over 

the drum and mouth of the crusher itself. At those times, 

Respondent has acknowledged that the machinery had to be 

20 
blocked for safety of the employee, but it contends that it 

had a policy in such cases: Cl) that the employee had to get 

permission from his supervisor to enter the crusher area, (2) 

the power would be shut off, and (3) the drum would be 

blocked by employees out side holding a Stilson wrench on the 

shaft. Also, Respondent states that when the welder worked 

on the drum he would first block it with wooden wedges on 

both sides or weld the drum to the frame. 

The requirement for blocking the machinery is 

specifically directed at the prevention of a safety hazard 

that is obvious and severe. The simple step of shutting off 

the engine power of a crusher mitigates the chance of motion 

which could otherwise occur, due to either the slippage of 

the clutch because of vibration of the machine, or due to an 

employee's accidental or intentional exertion of force on 

part of the machinery. Notwithstanding the required step of 

shutting off power, the rotating drum, conveyor, and other 

parts of the crusher are still capable of motion, and thus, 

hazardous to employees exposed to the crusher. The crusher 

drum weighs about 13 tons and is "freewheeling." 

This residual motion and hazard is addressed by the 

blocking requirement of the standard. Blocking ensures that 

these potentially hazardous parts cannot be put into motion 

by either a slippage of a clutch or an employee's pressure, 

be it the force of a kick to start the drum rotating or the 

body weight of an employee who slips or falls. The evidence 

shows that the § 56.14029 exception does not apply to the 

task of removing rocks by approaching the drum from above 

while standing in the crusher area. 

Respondent's asserted blocking policy was not shown to 

be in writing or otherwise effectively communicated to the 

Decedent. Despite repeated requests by MSHA for such 

records, Respondent was unable to produce the records it 

contended it kept as documentation of safety meetings and 

instructions to employees. Respondent has failed to show 

effective communication and enforcement of its asserted 

blocking policy. 

As in the case of Respondent's asserted policy of 

shutting off the engine for dislodging procedures, 

Respondent's failure to communicate and enforce its asserted 

policy of blocking the crusher--through effective 

communication, training and supervision of Decendent and 

other Spanish-speaking employees--is tantamount to an absence 

of such a policy. 

21 
The duty of enforcement of an employer's safety rules 

rests on the employer. Since the safety standards under the 

Act are mandatory and are not "fault" standards, a penalty 

proceeding is barred by a defense of employee misconduct. As 

the United States Court of Appeals for the Fifth Circuit 

noted, since the employer is in a better position to make and 

enforce rules than are his workers, the Act "impose[s] a kind 

of strict liability on the employer as· an incentive for him 

to take all practicable measures to ensure the workers' 

safety" Allied Products Co. v. FMSHRC, 666'F.2d 890, 893-894 

(1982). See also Atlantic Cement Co., Inc., 2 FMSHRC 1499 

{1981) (employee's failure to wear safety belt and line in 

direct contravention of the company's regularly enforced 

safety rules does not relieve employer from liability for 

violation of standard of no-fault statute). 

I find that Respondent was negligent in failing to 

establish and enforce through effective communication, 

training, or supervision a clear safety rule implementing the 

standard in 30 C.F.R. § 56.14029. Decedent's negligence 

(entering the crusher area without shutting off the engine 

and having the machinery blocked against motion) is imputed 

to Respondent. This was a most serious violation, because 

the risk of death or serious injury was very high. 

Considering all of the criteria for assessing a civil 

penalty under section llOCi) of the Act, I find that a civil 

penalty of $6,000 is appropriate. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

2. Respondent violated 30 C.F.R. § 56.14029 as charged 

in Citation No. 2241745. 

3. Respondent is ASSESSED a civil penalty of $6,000 for 

the above violation. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay the 

above civil penalty of $6,000 within 30 days of this 

Decision. 

t_J~ :+-IVeA VeA...._ 

William Fauver 

Administrative Law Judge 

22 
Distribution: 

Eve Chesbro, Esq., U.S. Department of Labor, Office of the 

Solicitor, 555 Griffin Square #501, Dallas, TX 75202 

(Certified Mail) 

William M. Knolle, Esq., Hearne, Knolle, Lewalley, Livingston 

& Holcomb, P.O. Drawer 1687, Austin, TX 78767 (Certified 

Mail) 

kg/slk 

23 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

January 6, 1987 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF 

ROBERT B. CORBIN and 

JAMES CORBIN, 

Complainants 

v. 

TERCO, INC. , 

RANDAL LAWSON, 

TERRY MCCREARY, and 

MATTHEW LOGAN, 

Respondents 

! 

. . 

. . 

. 

•. 

. . 

. . 

Docket No. KENT 86-131-D 

BARB 86-27 

Docket No. KENT 86-132-D 

BARB 86-42 

ORDER OP DISMISSAL 

Appearances: W.F. Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee 

for Complainants; 

Carlos Morris, Esq., Barbourville, Kentucky, 

for Respondents. 

Before: Judge Melick 

The Complainant, Secretary of Labor, with the consent of 

the individual Complainants, James Corbin and Robert Corbin, 

requests approval to withdraw his complaints in the captioned 

cases on the grounds that the parties ha~~ reached a mutually 

agreeable settlement. Under the circums ances herein, 

permission to withdraw is granted. 29 C •• R. § 2700.11. The 

cases are therefore dismissed. 

~/:~l I~ Gary M lick 

I 

l ~/ Judge 

24 
Distribution: 

Frederick Moncrief, Esq., U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

W.F. Taylor, Esq., U.S. Department of Labor, Office of the 

Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashvil , TN 

37203 (Certified Mail) 

Carlos Morris, Esq., Morris & Morris, P.Oo Box 1008? 

Barbourville, KY 40906 (Certified Mail) 

Mr. Terry McCreary, HC 73, Box 1730, Bryants StoreP. KY 40921 

CCertif ied Mail) 

Terco, Inc., c/o Mr. Randal Lawson, Route 4, Barbourville, KY 

40906 (Certified Mail) 

Mr. Randal Lawson, Route 4, Barbourville, KY 40906 (Certified 

Mail) 

Mr. Matthew Logan, HC 66, Box 386, Barbourvil , KY 40906 

(Certified Mail) 

rbg 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JAN 6 1987 

SECRE'1;,.RY OF LABOR, CIVIL PENALTY PROCEEeING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 86-385 

A.C. No. 46-01455-03628 

Osage No. 3 

DECISION APPROVING SETTLEMENT 

Appearances: Terry Salus, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Respondent; 

Michael R. Peelish, Esq. , Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Contestant. 

ore: Judge Melick 

This case is before me upon a petition for assessment of 

vil penalty under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act). Petitioner has filed a 

motion to approve a settlement agreement and to dismiss the 

c~se. A reduction in penalty from $1,055 to $355 is proposed. 

I have considered the representations and documentation 

submitted in this case, and I conclude that the proffered 

2ettlement is appropriate under the criteria set forth in 

Section llO(i) of the Act. 

WHEREFORE, the motion for approval of (settlement is 

GRANTED, and it is ORDERED thatjRespondent 1._pay a penalty of 

$355 within 30 days of this ord~r. 

u\ ' /\ 

I 

I \ t 

Gary Melick 

Admini~\'. trative 

Distribution: ~ 

Judge 

Terry Salus, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

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

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

rbg 

26 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 8 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

ON BEHALF OF 

BARRY MYLAN, 

LESTER POORMAN, 

Complainants 

v. 

BENJAMIN COAL COMPANY, 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA, (UMWA), 

Intervenor 

DISCRIMINATION PROCEEDING 

: Docket No. PENN 86-125-D 

MSHA case No. PITT CD-8 

. . 

: 

Benjamin Strip No. 1 

SUMMARY DECISION 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of discrimination 

filed by MSHA on behalf of the complainants pursuant to section 105Cc)(l) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815(c)(l). The complainants state that 

they are employed by the United Mine Workers of America as 

Health and Safety Representatives, and they allege that on or 

about October 31, 1985, when acting as miners' representatives, the respondent denied them the right to travel with an 

MSHA inspector during a spot inspection of the mine. The 

complaint seeks the following reli 

1. A finding that the complainants were 

unlawfully discriminated against by the respondent for engaging in actions protected under 

section 105{c)(l) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 815. 

27 
2. A cease and desist order and an order 

directing the respondent to post a notice that 

it will not violate section 105(c) of the Act. 

3. An order assessing a civil penalty 

against the respondent for its violation of 

section 105(c) of the Act. Pursuant to 

29 C.F.R. § 2700.42, MSHA has submitted a 

statement proposing a civil penalty assessment 

in the range of $500 to $600 based upon the 

criteria for penalty assessments set forth in 

section llO(i) of the Act. 

The parties agreed to submit this matter to me for summary decision pursuant to Commission Rule 64, 29 C.F.R. 

§ 2700.64, and they have filed a joint stipulation of facts, 

and briefs in support of their respective positions. The 

UMWA has been permitted to intervene pursuant to Commission 

Rule 4(b), 29 C.F.R. § 2700.4(b)(l) and (2), and it has filed 

briefs in support of its position. 

Issues 

The principal issue presented in this case is whether or 

not the respondent discriminated against the complainants by 

its refusal to permit them to accompany an MSHA inspector in 

their alleged capacity as miner's representatives. Additional 

issues raised by the parties are identified and disposed of in 

the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Sections 103(f}, 105(c), and llO{i) of the Act, 

30 u.s.c. § 813(f), 815(c), and 820(i). 

3. 30 C.F.R. § 40.l and 40.2. 

4. Commission Rules, 20 C.F.R. § 2700.l et~­

Stipulations 

MSHA and the respondent have stipulated to the following: 

1. On November 4, 1985, Barry Mylan and 

Lester Poorman filed a section 105(c) complaint 

28 
with the Mine Safety and Health Administration, 

Johnson Field Office, against the Benjamin Coal 

Company. 

2. Both Messrs. Mylan and Poorman are 

employed by the United Mine Workers of America 

as Health and Safety Representatives. Neither 

is employed at the Benjamin Coal Company in 

any capacity. 

3. The Benjamin No. 1 Strip Mine, I.D. 

No. 36-02667, is one of eight surface mining 

operations which are owned and operated by 

Benjamin Coal Company and is located in the 

vicinity of waukeska, near Westover, Clearfield 

County, Pennsylvania. 

4. The No. 6 Preparation Plant, associated with the Benjamin No. 1 Strip Mine, 

processes coal from various strip mines operated by Benjamin Coal Company. The plant 

employs approximately 35 non-union miners on 

two production shifts and one maintenance 

shift to process a daily average of 2,200 tons 

of coal. 

5. Employment at the Benjamin Coal 

Company is currently 335 employees and the 

No. 1 Strip Mine including the No. 6 Preparation Plant employs approximately 262 miners. 

6. The president of the Benjamin Coal 

Company is David J. Benjamin. 

7. On March 14, 1984, a secret ballot 

election was held at the Benjamin Coal Company 

by the National Labor Relations Board. 

8. The employees (miners) of the 

Benjamin Coal Company by a vote of 261 to 209 

voted against having the United Mine Workers 

of America become their representatives. (See 

Exhibit A). 

9. On October 21, 1985, four miners who 

worked at the No. 6 Preparation Plant designated the United Mine Workers of America to 

act as the miners' representatives at the 

No. 6 Preparation Plant. (See Exhibit B). 

29 
10. The United Mine Workers of America 

designated Barry Mylan as its representative 

and Lester Poorman as its alternate 

representative. (See Exhibit B). 

11. On October 21, 1985, the aforemen~ 

tioned designation was placed upon an authorization form in accordance with 30 C.F.R. § 40.3 

and forwarded to Donald Huntley, Dist~ict 

Manager of the Mine Safety and Health Administration's District 2. A copy was also sent to 

the Benjamin Coal Company. (See Exhibit B}. 

12. On October 24, 1985, Barry Mylan 

forwarded to John DeMichiei, Subdistrict 

Manager-MSHA, a written section 103Cg)(l) 

request for an inspection of the No. 6 Preparation Plant. (See Exhibit C). 

13. On October 31, 1985, as a result of 

the October 24, 1985 request, MSHA Inspector 

Nicholas J. Kohart visited the No. 6 Preparation Plant for the purpose of conducting a 

section 103(g)(l) spot inspection. 

14. Upon Inspector Kohart's arrival he 

was met by Messrs. Mylan and Poorman who 

informed him that they were the authorized 

mine representatives. 

15. Inspector Kohart and Messrs. Mylan 

and Poorman appeared at the mine office that 

morning for the purpose of conducting the section 103(g}(l) spot inspection. 

16. Said inspection was commenced, however, during the course of the inspection, 

Messrs. Mylan and Poorman were ordered off of 

the mine property by David J. Benjamin, 

President of Benjamin Coal Company. 

17. Mr. Benjamin refused to recognize 

the UMWA as a miners' representative because a 

majority of the employees of Benjamin Coal 

Company had voted against the UMWA as their 

representative in the election of March 14, 

19 84. 

30 
18. Employees, i·~·' miners, had in the 

past been allowed by Benjamin Coal Company to 

accompany federal inspectors on inspections at 

the No. 6 Preparation Plant. 

19. On April 15, 1986, the Secretary of 

Labor filed the complaint before the Federal 

Mine Safety and Health Review Commission, 

which is the subject of this action. 

20. The No. 1 Strip Mine's annual production tonnage is approximately 438, 496 •· The 

Benjamin Coal Company's annual production tonnage is between 1,100,000 tons and 1,500,000 

tons. 

21. The history of previous violations 

during the 24-month period preceding the f iling of this complaint was 103 over 68 inspection days. The respondent has no previous 

history of a section 105(c) violation. 

An unopposed motion by the UMWA to amend the stipulations 

was granted, and paragraph 8 above was amended as follows: 

8(a). In a decision issued on July 31, 

1985, an administrative law judge of the 

National Labor Relations Board determined that 

unfair labor practices committed by Benjamin 

Coal Company had precluded the conducting of a 

fair ection and he therefore ordered the 

election of March 14, 1984, set aside (decision 

attached as Exhibit 0). The judge concluded 

further that said unfair labor practices were 

so egregious as to preclude the holding of a 

fair election ia the future and that a previous 

election, conducted on November 17, 1983, in 

which the UMWA obtained a majority vote, constituted a more reliable indicia of employee 

desires. The judge therefore concluded, as a 

matter of law, that the UMWA was, and had been 

since November 1983, the designated representave of a majority of employees at the Benjamin 

mine. 

8{b). The Administrative Law Judge 

Decision, attached as Exhibit "D," has been 

appealed to the National Labor Relations 

Board, where said appeal is still pending. 

31 
Discussion 

The facts in this case are not in dispute. The respondent's No. 1 Strip Mine employs approximately 262 miners. 

The No. 6 Preparation Plant is part of the mine, and approximately 35 miners are employed at the plant. 

On October 21, 1985, four miners who worked at the preparation plant designated the UMWA as their representative. 

This written designation was filed with MSHA's District 2 

Manager and a copy was sent to the respondent in accordance 

with 30 C.F.R. §§ 40.2Ca> and 40.3(b). The designation listed 

Barry Mylan and Lester Poorman as the UMWA officials serving 

as representatives. Mr. Mylan and Mr. Poorman both are 

employed by the UMWA as Health and Safety Representatives, and 

neither is employed by Benjamin Coal Company. 

On October 24, 1985, Mr. Mylan filed a request with MSHA 

for a section .103Cg)(l) spot inspection of the preparation 

plant. In response to that request, MSHA Inspector Nicholas J. 

Kohart visited the preparation plant on October 31, 1985, for 

the purpose of conducting the spot inspection. Upon his 

arrival, Inspector Kohart was met by Mr. Mylan and Mr. Poorman 

who informed him that they were the authorized representatives 

of the miners at the plant. Mr. Mylan and Mr. Poorman intended 

to accompany Inspector Kohart on his inspection as the miners' 

representative pursuant to section 103Cf) of the Act. 

Inspector Kohart commenced his inspection, accompanied 

by Mr. Mylan and Mr. Poorman. Upon learning of the presence 

of Mr. Mylan and Mr. Poorman, respondent's President, David 

Benjamin, went to the plant and ordered them off the mine 

property. Mr. Benjamin's a~tion was prompted by his refusal 

to recognize the UMWA as the miners' representative because a 

majority of his employees had voted against the UMWA as the 

collective bargaining representative of miners in an NLRB 

directed election held on March 14, 1984. Respondent's miners 

had in the past been permitted to accompany MSHA inspectors on 

inspections at the plant. 

Thereafter, on November 4, 1985, Mr. Mylan and 

Mr. Poorman filed a complaint with MSHA alleging that the 

respondent's refusal to allow them to accompany Inspector 

Kohart as the miners' representatives pursuant to section 

103(f) of the Act violated their rights under section 105(c} 

of the Act. MSHA conducted an investigation of the complaint, 

and upon its completion filed the instant complaint on behalf 

of Mr. Mylan and Mr. Poorman on April 15, 1986. 

32 
Respondent's Arguments 

The respondent contends that the designation of the UMWA 

as the representative of the miners by only four (4) miners 

is not effective to confer representative status on the UMWA 

over many times that number of miners. Consequently, respondent contends that the allegation that it violated section 

105(c) of the Act by its actions cannot be sustained. Respondent asserts that its actions were not motivated because of 

the exercise of any rights under the Act by Mr. Mylan and 

Mr. Poorman, and that it is clear that it has always permitted 

miners' representatives to take part in MSHA inspections. In 

this instance, however, the respondent maintains that it 

refused to recognize the UMWA as the representative of its 

miners because a majority of its miners had declined to have 

the UMWA act as their representative. 

The respondent also contends that the complaint should 

be dismissed because it was not filed until well after the 

statutory and regulatory time limits set forth for the filing 

of a complaint of discrimination, discharge or interference 

with the Commission. 

In support of its principal argument, the respondent 

points out that the Act contains no definition of a representative of miners. It recognizes that 30 C.F.R. § 40.l defines 

a representative of miners as "any person or organization 

which represents two or more miners at a coal or other mine 

for the purpose of the Act .•• ," and states that the 

Secretary of Labor, in support of this definition has stated 

that: 

The purposes of the Mine Act are better 

served by allowing multiple representatives to 

be designated. This insures that all miners 

have the opportunity to exercise their right 

to select the representative of their 

choice • • • • 43 Fed. Reg. 29508 (July 7, 

1978). 

Respondent argues that if all miners have the "right to 

select the representative of their choice" the claimed violation of section 105(c) cannot, in this case, be sustained. 

If miners have the right to select a representative of their 

own choice, respondent asserts that the designation of the 

UMWA as representative for all of its miners or for all 

miners at the preparation plant by only four miners must be 

ineffective since neither the 31 other miners employed at the 

33 
plant nor the 258 other miners employed at the mine can be 

forced to accept the UMWA as their representative under the 

Act by the action of four individuals. Because this is not a 

proper designation from the persons the UMWA purports to 

represent, respondent concludes that it cannot be penalized 

for refusing to recognize the UMWA as the representative of 

its miners during the inspection of October 31, 1985. 

Respondent maintains that MSHA and the UMWA do not claim 

that the UMWA is the representative of the four miners that 

designated the UMWA as their representative, but interpret 

the designation of four miners as being the effective designation of all miners at the mine. In support of this conclusion, the respondent states that MSHA's consideration of the 

designation by the four miners to be of wide application is 

evidenced by the fact that the respondent was cited on 

June 25, 1986, for refusing to allow the UMWA to take part in 

an inspection on June 19, 1986, at the site of an accident 

many miles away from the plant and where none of the miners 

that signed the designation work. 

Respondent argues that if the designation by four miners 

is effective for other miners at the mine, then this is contrary to MSHA's expressed interpretation of the Act's intent 

"that all miners have the opportunity to exercise their right 

to select the representative of their choice •••• " Therefore, the UMWA cannot, as it purported to be, be the representative of all miners at the Company or of all miners at the 

plant since the miners presumably have the right to remain 

unrepresented or choose their own representative. 

Respondent cites section 103(f) of the Act which states: 11 Where there is no authorized miner representative, the 

Secretary or his authorized representative shall consult with 

a reasonable number of miners concerning matters of health 

and safety· in such mine." (Emphasis added.) 

Citing the legislative history of this provision, the 

respondent points out that the Joint House and Senate 

Conference Committee stated: "The Senate required the 

Secretary to consult with a reasonable number of miners if 

there was no authorized representative of miners. The House 

amendment did not contain this protection for unorganized 

miners." 

Respondent maintains that MSHA is required to consult 

with a "reasonable number of miners" when there is no authorized representative, and that the designation of a representative by four of several hundred miners cannot relieve it of 

34 
this responsibility and deprive other miners of the right to 

be consulted. Respondent concludes that if a reasonable 

number of miners must be consulted when there is no authorized 

representative, the authorized representative of a group of 

miners must be sel~cted by a reasonable number of miners, and 

that four miners is hardly a reasonable number in determining 

the representative for over 250 miners. 

Respondent asserts that it is clear that Congress had in 

mind that the term "authorized representative of the miners" 

applied to organized mines where MSHA would consult with the 

representative that had been selected by a majority of the 

employees, and the reason that MSHA is required to consult 

with a "reasonable number of miners" where there is no authorized representative, is because in an organized mine by 

definition, the authorized representative would have been 

selected by a majority, i.~., reasonable number of miners. 

Respondent maintains that if four miners may effectively 

designate a representative for all other miners, then the 

remaining fliners would also lose valuable rights and protections under section 103(g) of the Act which states: 

Cl) Whenever a representative of the 

miners or a miner in the case of a coal or 

other mine where there is no such representative, has reasonable grounds to believe that a 

violation of this Act or a mandatory health or 

safety standard exists, or an imminent danger 

exists, such miner or representative shall 

have a right to obtain an immediate inspection 

by giving notice to the Secretary or his authorized representative of such violation or 

danger 11 

Citing the legislative history of this provision, respondent points out that the Joint House and Senate Conference 

Committee stated: "The conference substitute conforms to the 

Senate Bill, except that such inspections can be requested 

only by a representative of miners, or by a miner where there 

is no representative of miners at the time." 

Respondent argues that if the UMWA is the representative 

of the miners at the mine and plant by virtue of the designation of four miners, then by statutory mandate all other 

miners lose their rights under section 103{9) of the Act. 

The statute and the legislative history make it entirely 

clear that if there is a representative of miners at a mine, 

then the miners are to be represented by that representative 

35 
for purposes of the Act, and they lose the right to act individually because of the presence of a representative of 

miners. Similarly, if there is a representative of the miners 

at the mine, miners apparently lose the right under the Act to 

be consulted at the time of an inspection pursuant to section 

103(f). 

Respondent concludes that if miners are going to lose 

valuable rights under the Act to act individually because 

they must deal through a representative, then they must be 

involved in the selection of that representative. Respondent 

suggests that to allow four miners to designate the representative for all other miners deprives them of their freedom of 

choice and requires them to be represented by an entity they 

have in this instance previously rejected, and is contrary to 

the purpose of the Act as se.t forth by MSHA which is allegedly 

best served by allowing all miners "the opportunity to exercise their right to select the representative of their choice." 

[43 Fed. Reg. 29508 (July 7, 1978)]. 

Respondent maintains that by refusing to recognize the 

UMWA as the representative for all of its miners, or as the 

representative of the miners at the preparation plant, it did 

not violate section 105Cc) of the Act. It concludes that the 

UMWA cannot, consistent with the regulations nor the spirit 

of the Act, be the representative for miners that have not 

authorized it to represent them. 

Respondent argues further that allowing four miners to 

designate a representative for other miners also conflicts 

with the miners' rights under the National Labor Relations 

Act (NLRA). In support of this argument, respondent asserts 

that section 7 of this statute permits employees (miners are 

included in the definition of employees) to engage in concerted activity for purposes of collective bargaining or 

other mutual aid or protection. Section 7 also states that 

employees may refrain from engaging in such concerted activities. Concerted activities for purposes of other mutual aid 

or protection includes matters of safety and health in the 

workplace. NLRB v. Washington Aluminum Co., 370 U.S. 9, 

8 L.Ed.2d 298 (1962); l.Vheeling-Pittsburgh Steel Corp. v. NLRB, 

618 F.2d 1009 (3d Cir. 1980); Wray Electric Contracting, Inc., 

210 NLRB 757, 86 LRRM 1589 (1974). 

Respondent points out that under the NLRA a representative of the employees selected by a majority of the employees 

becomes the exclusive representative of the employees. [NLRA 

§ 9(a), 29 U.S.C. § 159(a)]. In 1984 an election was held in 

which the UMWA sought to become the exclusive representative 

36 
of the respondent's employees (miners), and that the employees 

(miners), by a vote of 261 to 209, voted against having the 

UMWA as their representative. Since that time, the employees 

(miners) have not indicated any desire to have the UMWA represent them for any purposes other than the purported designation by four individuals of the UMWA as the representative of 

miners under the Act. 

The respondent suggests that because employees (miners) 

have the right to refrain from being represented under the 

NLRA, a determination allowing four individuals to select the 

representative for many other miners would abrogate their 

right to refrain from engaging in collective activity, and 

that any recognition by an employer of a union as a representative of employees that have not selected the union as their 

representative can be an unfair labor practice under section 

8Ca)(2) of the NLRA, 29 u.s.c. § 158(a){2). Pick-Mt. Laurel 

Corp. v. NLRB, 625 F.2d 476 C3d. Cir~ 1980). Moreover, if 

the UMWA is their representative, the miners lose their rights 

to act individually pursuant to sections 103(f) and Cg) of the 

Mine Act. 

The respondent points to the fact that MSHA has stated 

that the purpose of the Mine Act are better served by having 

all miners "exercise their rights to select the representative 

of their choice •••• " If this is the case, respondent 

further suggests that miners also have the right to refrain 

from selecting a representative and are free to pursue their 

rights under the Act individually. Further, if miners are 

free under the Act to refrain from having the UMWA represent 

them, respondent concludes that the designation of the UMWA as 

their representative by others must be invalid. Respondent 

further concludes that allowing the UMWA to gain representative status over other miners based on the actions of four 

miners would directly conflict with the comprehensive scheme 

for the selection of a union established under the NLRA as 

well as the apparent intent of the Mine Act. 

The respondent maintains that if the UMWA had won the 

election and had been certified as the exclusive representative of the employees at the company, it would, as contemplated by Congress, be the authorized representative of the 

miners under the Mine Act. Since the UMWA, a labor organization, did not win the election and has not been certified as 

the representative of respondent's employees, it cannot now 

achieve the status of a representative for hundreds of miners 

based on the actions of four miners, and that as a labor 

organization, it must follow the procedures of the NLRA to 

gain the status of representative for hundreds of miners. 

37 
Respondent concludes that to interpret the Mine A~t to 

allow a union to gain a status as representative for employees 

without their consent, would fly in the face of the long established scheme of the NLRA, and that Congress could not have 

intended a result whereby an employer could refuse to recognize a union that has been rejected by a majority of his 

employees but the same employer would have to recognize the 

same union as the representative of the same employees because 

a few of those employees had designated the union as represen-

. tative for the employees. 

Summarizing its position on the merits, the respondent 

concludes that the designation of the UMWA as the representative of miners at its mine by four miners is inconsistent 

with both the Mine Act and the National Labor Relations Act, 

because there is no authority allowing two or more miners to 

select a representative for many times that number of miners. 

This is particularly true if the Acts' purposes are better 

served by allowing miners to select representatives of their 

choice. 

Respondent concludes that the designation that purported 

to designate the UMWA as the representative of miners that 

did not indicate a willingness to waive their individual 

rights under the Act in favor of having the UMWA act as their 

representative is clearly defective, and consequently, its 

refusal to recognize the UMWA under these circumstances is 

not violative of section 105(c)(l} of the Mine Act. Moreover, 

the respondent maintains that its actions were clearly not 

motivated because of the exercise of rights protected under 

the Act by the UMWA, but instead, were based on the act of its 

employees that had previously rejected the UMWA as their 

representative. 

In addition to its arguments on the merits of its 

asserted defense in this case, the respondent asserts that 

MSHA's complaint should be dismissed as untimely. Citing the 

time requirements of section 105Cc)(3) of the Act, and 

Commission Rules 40 and 41, 29 C.F.R. § 2700.40 and 2700.41, 

respondent states that MSHA is required to make a written 

determination of a violation within 90 days of receipt of a 

complaint and to immediately file its complaint with the 

Commission if it believes that a violation of section 

105(c)(l) has occurred. Respondent points out that 29 C.F.R. 

§ 2700.4l(a) further delineates that MSHA shall file its complaint with the Commission within 30 days of any determination that a violation has occurred. 

38 
Since the complaint by Mr. Mylan and Mr. Poorman was 

filed with MSHA on November 4, 1985, the respondent maintains 

that MSHA should have filed its complaint by March 5, 1986. 

Respondent calculates that 90 days from November 4, 1985 is 

February 3, 1986; and 30 days from February 3, 1986, falls on 

March 5, 1986. Instead, respondent points out that MSHA 

failed to file its complaint with the Commission until 

April 15, 1986. 

The respondent asserts that MSHA had ample opportunity 

to file a complaint within the mandated time limits. Moreover, respondent asserts that the instant case is not one 

where an unsophisticated party not knowing their rights under 

the Act failed out of ignorance to take advantage of his 

right to file a complaint, and that the alleged discriminatees 

are representatives of the UMWA, a large, sophisticated labor 

organization that is fully capable of filing a complaint 

within the required time limits and has historically been 

involved in such litigation under the Act. 

MSHA's Arguments 

In support of its position in this case, MSHA initially 

points out that under the analytical guidelines established 

by the Commission in Secretary on behalf of Pasula v. 

Consolidation Coal Corp., 2 FMSHRC 2786 {October 1980), rev'd 

on other grounds sub nom. Consolidation Coal Corp. v. Marshall, 

663 F.2d 1211 C3d. Cir. 1981), and Secretary on behalf of 

Robinette v. United Castle Coal Company, 3 FMSHRC 803 (April 

1981), a prima facie case of discrimination is established if a 

miner proves by a preponderance of the evidence that (1) he 

engaged in protected activity, and (2) the adverse action taken 

against him was motivated in any part by that protected activity. Pasula, 2 FMSHRC at 2799-2800; Robinette, 3 FMSHRC at 

817-818. In order to rebut a prima facie case, an operator 

must show either that no protected activity occurred or that 

the adverse action was in no part motivated by protected 

activity. 

MSHA submits that a prima facie case of a violation of 

section 105(c) of the ~ct has been proven in this case, and 

that section 103(f) of the Act provides the statutory right 

which gives rise to the protected activity at issue. MSHA 

points out that section 103(f) provides rights to miners and 

their representatives in connection with their participation 

in MSHA inspections, and that in fulfilling his statutory 

rulemaking mandate, the Secretary of Labor issued an Interpretative Bulletin at 43 Fed. Reg. 17546 (April 25, 1978) setting 

forth the scope of section 103Cf). MSHA maintains that this 

39 
interpretative bulletin is entitled to deference unless it can 

be said not to be a reasoned and supportable interpretation of 

the Act, and that the courts have often held that considerable 

respect is due the interpretation given a statute by the 

officers or agency charged with its administration. Whirlpool 

Corporation v. Marshall, 445 U.S. 1 (1980); Ford Motor Credit 

Company v. Milhollin, 444 U.S. 555 (1980); Mourning v. Family 

Publication Service, Inc., 411 U.S. 356 (1973); Skidmore v. 

Swift & Company, 323 U.S. 134 (1944). 

MSHA asserts that as set forth within the preamble of 

the interpretative bulletin, the Department of Labor is 

responsible for interpreting and applying the statutes which 

it administers, and that publication of all interpretative 

positions by the Department. is useful in informing the general 

public and interested segments of the public of positions on 

particular provisions of certain statutes. The deference to 

be afforded interpretative bulletins has been specifically 

addressed in matters arising under the Fair Labor Standards 

Act of 1938 (29 U.S.C. § 201 et seq.). The regulatory provisions of the Fair Labor Standards Act specifically sets forth 

that "such interpretations of the Act provide a practical 

guide to employers and employees as to how the off ice representing the public interest in its enforcement will seek to 

apply it" and "constitute a body of experience and informed 

judgment to which courts and litigants may properly resort for 

guidance." 29 C.F.R. § 779.9. 

MSHA cites the introductory statement contained in the 

interpretative bulletin, at 43 Fed. Reg. 17546, and maintains 

that the bulletin explicity provides that a representative 

authorized by the miners shall be given an opportunity to 

accompany the inspector, ,and that an operator's refusal to 

allow participation by a representative of miners is a violation of the Act which subjects the operator to a citation and 

penalty under sections 104 and 105. MSHA points out that the 

bulletin also cites the Congressional mandate that the scope 

of the protected activities be broadly interpreted by the 

Secretary to include participation in mine inspections, and 

specifically states that "[a] refusal by an operator to comply with the requirements of section 103{f} is an act which 

'interferes' with the exercise of statutory rights." Accordingly, MSHA concludes that the provisions of section 105{c} 

apply to discrimination or interference with the inspection 

participation right. 43 Fed. Reg. 17547. 

MSHA argues that on the facts of this case, the respondent interferred with Mr. Mylan's and Mr. Poorman's statutory 

rights to act as representatives of the miners at its No. 6 

40 
Preparation Plant, and that this interference constitutes an 

adverse action against them because of their attempt to participate in protected activity. 

MSHA maintains that the respondent's contention that 

Mr. Mylan and Mr. Poorman engaged in no protected activity 

because they were UMWA representatives and the UMWA had lost 

a representation election is without merit. MSHA states that 

the fact that the UMWA did or did not represent the respondent's miners pursuant to NLRB law does not foreclose representation pursuant to the Mine Act. In support of its 

argument, MSHA maintains that in 1978 the Secretary promulgated regulations at Part 40 which inter alia defined a representative of miners, and that the language of Part 40.l(b) 

clearly sets forth that "any person or organization representing two or more miners at a coal mine is a representative of 

miners for purposes of the Federal Mine Safety and Health Act 

of 197'7." Moreover, MSHA points out that the preamble to 

Part 40 specifically addresses the term "representative" as 

it is applicable to NLRB law and the Mine Act, and states 

that the Secretary, in addressing the comments filed during 

MSHA's rulemaking, stated that a broad definition would be 

preferable to a narrow one and that "any attempt to limit the 

manner in which representatives are selected would be intrusive into labor-management relations at the mine and not in 

keeping with the spirit if miner participation," 43 Fed. 

Reg. 29508. 

MSHA maintains that the selection of the UMWA as representative of miners in the instant proceeding meets the 

Secretarial guarantees outlined above, and that the selection 

of the UMWA as "miner representatives" on October 21, 1984, 

by four miners who worked at the respondent's No. 6 Preparation Plant was in accordance with the Act and its implementing 

regulations at Part 40. 

MSHA also maintains that the argument that the UMWA representatives were not employees of the respondent, and thus not 

able to represent the miners at the preparation plant is without merit. In support of this conclusion, MSHA cites Judge 

Broderick's decision in Consolidation Coal Company v. United 

Mine Workers of America, 2 FMSHRC 1403 (June 12, 1980), 

affirmed by the Commission at 3 FMSHRC 617 (March 21, 1981), 

holding that non-employees may be representatives of miners 

within the meaning of the Act even though they failed to formally file as representatives pursuant to the Part 40 

regulations. 

4l 
MSHA also relies on Judge Morris' decision in Emery 

Mining Corporation v. MSHA and the UMWA, Intervenor, 8 FMSHRC 

1182 (August 7, 1986), upholding a citation for a violation 

of section 103Cf} of the Act because of Emery's refusal to 

permit an international representative of the UMWA to accompany an MSHA inspector on an inspection of its mine without 

first executing a waiver of liability. In that case, Judge 

Morris specifically held that Congress contemplated that 

non-employees may be representatives of miners, and that the 

UMWA representative was within the "person or organization" 

concept defined at Part 40.l(b). Further, Judge Morris 

rejected Emery's argument that a distinction existed betweeen 

employee and non-employee miners' representative, citing 

footnote 18 of Council of Southern Mountains, Inc. v. Federal 

Mine Safety and Health Review Commission, 751 F.2d 1418, 1419 

CD.C. Cir. 1985), where the Court stated that the Mine Act 

"merely refers to 'representatives' and does not articulate 

any distinction between the rights of employees and 

non-employee representatives." Judge Morris concluded that 

both the individual international representative and the UMWA 

met the definition of "miners' representative." 

MSHA concludes that it is without question that the UMWA 

and its representatives are proper representatives of miners 

at the respondent's No. 6 Preparation Plant within the meaning of the Mine Act, and that the respondent's failure to 

recognize this representative status because of an asserted 

lost NLRB representation election is violative of the UMWA's 

and its individual representatives' statutory rights under 

section 103(f) of the Act. MSHA maintains that the Congressional purposes in enacting the Mine Act and the NLRB Act are 

clearly distinct and separate. It points out that the former 

is a remedial statute designed to promote the safety and 

health of the miner, and that Congress promulgated specific 

individual statutory rights to miners as individual workers 

not as members of any union, while the latter was designed to 

minimize industrial strife and improve working conditions by 

encouraging employees to promote their interests collectively. 

Accordingly, MSHA further concludes that NLRB law and the 

results of any NLRB election are not controlling in this 

proceeding. 

MSHA's Proposed Civil Penalty Assessment 

In support of its proposal for a civil penalty assessment 

for the respondent's violation of section 105(c) of the Act, 

MSHA has submitted information with respect to the civil penalty criteria found in section llO(i) of the Act. MSHA 

42 
asserts that the respondent was negligent in refusing to recognize the statutorily guaranteed rights of miner representatives, and that its conduct in this regard displays a lack of 

due diligence for the rights of miners and presents a "chilling effect" on thos~ rights. MSHA considers the violation to 

be serious, and concludes that the respondent displayed no 

good faith in attempting to abate the violation in that it 

has remained adamant in its refusal to recognize the UMWA as 

the miners' representative in this case. 

MSHA's brief does not address the issue of the timeliness 

of its complaint, and the respondent's request for a dismissal 

on the ground that the complaint was not timely filed. 

The UMWA's Arguments 

The UMWA states that the respondent has admitted that it 

received the designation of the UMWA pursuant to 30 C.F.R. 

§ 40.3, as a representative of miners at the No. 6 Preparation Plant, which listed the complainants Mylan and Poorman 

as the UMWA officials serving as representatives, and that it 

also admits that it refused to permit Mr. Mylan and 

Mr. Poorman to accompany an MSHA inspector on a spot inspection on October 31, 1985. The UMWA rejects the respondent's 

argument that the UMWA cannot be a representative of miners 

at the plant because it did not receive a majority of the 

votes in a March 14, .1984, election conducted under the 

National Labor Relations Act (NLRA) for selection of an exclusive collective bargaining agent, and because non-employees 

may not serve as miners' representatives under the Mine Act 

as totally groundless. 

The UMWA asserts that its status as exclusive collective 

bargaining agent under the NLRA is completely irrelevant to 

its status as a representative of miners under the Mine Act. 

In support· of its position, the UMWA points out that the Act 

makes numerous references to miners' representatives for a 

variety of purposes, and that one of the major functions of a 

miners' representative is the walkaround right found in section 103(f). Although the Act does not define the term 

"representative of miners" and the similar terms used throughout the sections of the Act footnoted at page 5 of its initial 

brief, the UMWA points out that by rulemaking culminating on 

July 7, 1978, the Secretary of Labor issued regulations which 

at 30 C.F.R. § 40.l(b), defines the term as follows: 

43 
"Representative of miners" means: 

ClJ Any person or organization which 

represents two or more miners at a coal or 

other mine for purposes of the Act, and 

(2) ~Representatives authorized by the 

miners1" "miners or their representative," 

"authorized miner representative," and other 

similar terms as they appear in the Act. 

The UMWA maintains that since it has been designated by 

four miners as their representative at the preparation plant, 

it is clearly an "organization which represents two or more 

miners" at the plant and meets the facial definition of 

"representative of miners" under 30 C.F.R. Part 40, and 

nothing in that definition indicates that a "representative 

of miners" must either have been selected by a majority of 

all miners or have been certified as the exclusive collective 

bargaining agent under the NLRA. In addition to the clear 

language of section 40.l(b), the UMWA cites the preamble to 

Part 40, 43 Fed. Reg. 29508 (July 7, 1978), which states in 

pertinent part as follows: 

[Some] commenters suggested that the National 

Labor Relations Board CNLRB) definition of 

representatives be applied while others suggested that the representatives should be 

elected by a majority o • • • [T]he NLRB 

definition is inappropriate because the NLRB 

definition of "Representative" concerns itself 

with a representative in the context of collective bargaining. The meaning of the word 

representative under.this Act is completely 

different. Additionally the rights of 

nonunion miners would be severely limited by a 

definition of "Representative of Miners" based 

on the collective bargaining concept. Furthermore, the "majority rule" concept is a fundamental component of the NLRB definition of 

representative, which contemplates only one 

union miner representative at each mine. The 

purposes of the Mine. Act are better served by 

allowing multiple representatives to be designated. This insures that all miners have the 

opportunity to exercise their right to select 

the representative of their choice for the 

purpose of performing the various functions of 

44 
a representative of miners under the Act and 

within the framework of each provision. 

The UMWA argues that nothing in the Mine Act or its 

legislative history indicates_ any Congressional intent to 

limit a representative of miners under the Act to an organization or individual selected by a majority of the miners or to 

an organization certified as the exclusive bargaining agent 

under the NLRA. The UMWA points out that the Secretary of 

Labor, who is charged with enforcing the Mine Act and promulgating regulations thereunder, has determined precisely the 

opposite through careful rulemaking proceedings, in which the 

respondent's precise argument was rafsed, considered fully, 

and rejected. 

Citing United Mine workers v. FMSHRC, 671 F.2d 615, 626 

(D.C. Cir. 1982) and Magma Copper co. v. Secretary of Labor, 

645 F •. 2d 694, 696 (9th Cir. 1981), the UMWA further points 

out that the Courts have held that safety legislation is to 

be liberally construed to effectuate the congressional purpose and that deference is to be given to the Secretary's 

reasoned and reasonable statutory construction as enunciated 

in his promulgated regulations. The UMWA concludes that the 

Secretary's regulatory definition of ••representative of 

miners" is "a reasoned and supportable interpretation of the 

Act," and that the UMWA, designated by four miners at the 

No. 6 Preparation Plant, is not precluded from being a "representative of miners" within the meaning of 30 C.F.R. § 40.l(b) 

and the Mine Act merely because it lacks certification as the 

exclusive collective bargaining agent under the NLRA. 

The UMWA finds no merit in the respondent's contention 

that the UMWA and its safety and health representative cannot 

be representatives of miners under the Mine Act because they 

are not employed by the respondent. In support of its argument, the UMWA maintains that one of the most important functions of a miners' representative under the Act is the 

inspection walkaround right under section 103(£). Quoting 

the pertinent provision of that section which provides that 

"such representative if miners who is also an employee of the 

operator shall suffer no loss of pay during the period of his 

participation in the inspection made under this subsection," 

the UMWA suggests that if all miners' representatives were 

required to be employees of the operator, the emphasized 

language would be meaningless surplusage. The UMWA concludes 

that Congress obviously contemplated and intended that 

non-employees, as well as employees, could be designated as 

representatives of miners, and that Commission Judges 

Broderick and Morris reached precisely this conclusion in 

45 
Consolidation Coal Co. v. UMWA, 2 FMSHRC 1403, 1408 (1980), 

and Emery Mining Corp. v. secretary of Labor, 8 FMSHRC 1182, 

1202 (1986) (review pending). 

In addition, the UMWA pants out that its safety and 

health representatives receive much the same training as MSHA 

gives to its inspectors, and that permitting non-employees to 

serve as miners' representatives furthers the purposes of the 

Act by allowing participation by representatives specially 

trained in safety and health matters. 

In further response to the respondent's arguments, the 

UMWA asserts that the purpose of a walkaround representative 

under section 103(f) is not to represent all of the miners 

for purposes of collective bargaining, but rather, to assist 

MSHA and the miners who have selected him in enforcing the 

statutory and regulatory safety and health standards. The 

UMWA concludes that nothing in the Act or 30 C.F.R. Part 40 

requires that a miners' representative be the exclusive representative for purposes under the Act, or represent all miners, 

or be selected by a majority of miners. Quite the contrary, 

as stated by the Secretary in the preamble to Part 40, "the 

rights of nonunion miners would be severely limited by a 

definition of 'Representative of Miners' based on the collective bargaining concept. Furthermore, ••• [t]he purposes of 

the Mine Act are better served by allowing multiple representatives to be designated." 43 Fed. Reg. 29508 (July 7, 1978). 

The UMWA further concludes that its designation as a 

representative of miners under the Act does not mean that the 

other miners employed at the respondent's No:-I Strip Mine 

have been forced to accept the UMWA as their representative 

under the Act by the action of four individuals because no 

exclusive representative "for the purposes of collective~bargaining" under section 9Ca> of the NLRA has been selected by 

the Part 40 designation involved in this case, nor have the 

rights of any or all other respondent's miners to select one 

or more other representatives under the Act been interferred 

with in any manner. Those miners are free to designate any 

representative(s) they choose, or to continue not to designate other representatives under Part 40. 

Finally, the UMWA concludes that the respondent's refusal 

to permit the complainants to accompany an MSHA inspector during the inspection on October 31, 1985, interferred with the 

exercise of their statutory rights under section 103(f) of the 

Act, and therefore was a violation of section 105(c)(l) of the 

Act. Under the circumstances, the UMWA asserts that the 

46 
respondent was properly cited for a violation and that a civil 

penalty for that violation must be assessed. 

Findings and Conclusions 

In order to estaolish a prima facie case of discrimination under section 105(c) of the Mine Act, the complainants 

bear the burden of production and proof to establish (1) they 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Fasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub. nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); and Secretary on behalf of Robinette v. United Castle 

Coal Company, 3 FMSHRC 803 (1981). Secretary on behalf of 

Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984). 

The operator may rebut the prima facie case by showing either 

that no protected activity occurred or that the adverse action 

was in no way motivated by protected activity. If an operator 

cannot rebut the prima facie case in this manner it may nevertheless affirmatively defend by proving that Cl) it was also 

motivated by the complainants• unprotected activities alone. 

The operator bears the burden of proof with regard to the 

affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC 

1935 (1982)~ The ultimate burden of persuasion does not shift 

from the complainant. Robinette, supra. See also Boich v. 

FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford 

Construction Company, No. 83-1566, D.C. Cir. {April 20, 1984) 

(specifically approving the Commission's Pasula-Robinette 

test). See~ NLRB v. Transportation Management Corporation, 

U.S. , 76 L.Ed.2d 667 (1983). 

The respondent in this case is charged with a violation 

of section 105(c)(l) of the Act for allegedly interferring 

with the asserted statutory right of the complainants to 

accompany an MSHA inspector during his inspection rounds in 

their capacity as the designated miners' walkaround representatives pursuant to section 103(f) of the Act. The undisputed 

facts establish that on October 21, 1985, four miners working 

at the respondent's No 6 Preparation Plant designated the UMWA 

as their representative in the exercise of their rights under 

the Act, and that the UMWA in turn designated complainant 

Barry Mylan as its representative, and complainant Lester 

Poorman as its alternate representative. Mr. Mylan and 

Mr. Poorman are employed by the UMWA as health and safety 

representatives and are not employed by the respondent. The 

designation of Mr. Mylan and Mr. Poorman as the representative 

of the miners was filed with MSHA's District Office pursuant 

to 30 C.F.R. § 40.3, and a copy was served on the respondent. 

47 
It is also undisputed that on October 31, 1985, an MSHA 

inspector visited the mine for the purpose of conducting a 

section 103(g)(l) spot inspection, and when Mr. Mylan and 

Mr. Poorman attempted to accompany the inspector on his 

inspection rounds in their capacity as the miners' designated 

walkaround representative, the respondent ordered them off 

the property and would not permit them to accompany the 

inspector. 

Section 105(c)(l) of the Act provides in pertinent part 

as follows: 

No person shall discharge or in any manner 

discriminate against or otherwise interfere 

with the exercise of the· statutory rights of 

any miner, representative of miners * * * in 

any coal or other mine subject to this Act 

* * * because of the exercise by such miner, 

representative of miners * * * on behalf of 

himself or others of any statutory right 

afforded by this Act. (Emphasis added). 

Section 103(f) of the Act, commonly referred to as "the 

walkaround right," provides as follows: 

Subject to regulations issued by the 

Secretary, a representative of the operator 

and a representative authorized by his miners 

shall be given an opportunity to accompany the 

Secretary or his authorized representative 

during the physical inspection of any coal or 

other mine made pursuant to the provisions of 

subsection (a), for the purpose of aiding such 

inspection and to· participate in pre- or 

post-inspection conferences held at the mine. 

Where there is no authorized miner representative, the Secretary or his authorized representative shall consult with a reasonable number 

of miners concerning matters of health and 

safety in such mine. Such representative of 

miners who is also an employee of the operator 

shall suffer no loss of pay during the period 

of nis participation in the inspection made 

under this subsection. To the extent that the 

Secretary or authorized representative from 

each party would further aid the inspection, 

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

48 
who is an employee of the operator shall be 

entitled to suffer no loss of pay during the 

period of such participation under the provisions of this subsection. Compliance with this 

subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of 

this Act. (Emphasis added). 

The critical issue in this case is the interpretation to 

be placed on the term "miner representative" or "authorized 

representative" of miners. The respondent's principal contention is the assertion that the UMWA could not be the "miner 

representative" or "authorized representative" of miners at 

its preparation plant because the UMWA lost a representation 

election conducted by the NLRB, and that the designation by 

four miners of the UMWA as their representative is inconsistent with both the Mine Act and the National Labor Relations 

Act because there is no authority allowing two or more miners 

to select a representative for many times that number of 

miners at the mine. Respondent suggests that the purpose of 

the Mine Act is better served by allowing a majority of the 

miners to select their own representative, and that to permit 

four miners to designate the UMWA as their representative 

impedes the "freedom of choice" available to the other miners, 

and flies in the face of the statutory scheme of the National 

Labor Relations Act and the Mine Act. 

As correctly stated by the parties, the Mine Act does 

not specifically define the term "representative of miners, 11 

nor does it set out all of the parameters of the statutory 

right of a miner's representative to serve as a walkaround in 

a representative capacity. However, in the exercise of his 

rulemaking authority pursuant to the Act, the Secretary of 

Labor on April 25, 1978, issued an Interpretative Bulletin at 

43 Fed. Reg. 17546, setting forth the scope of the walkaround 

provisions· of section 103(f}. The bulletin in pertinent part 

provides as follows: 

The Federal Mine Safety and Health Act of 

1977 (Pub. L. 91-173, as amended by 

Pub. L. 95-164, November 9, 1977) (hereinafter 

referred to as the Act) is a Federal statute 

designed to achieve safer and more healthful 

conditions in the nation's mines. Effective 

implementation of the Act and achievement of 

its goals depend in large part upon the active 

but orderly participation of miners at every 

49 
level of safety and health activity. Therefore, under the Act, miners and representatives of miners are afforded a wide range of 

substantive and procedural rights. 

Section 103(f) provides an opportunity 

for the miners, through their representatives, 

to accompany inspectors during the physical 

inspection of a mine, for the purpose of aiding 

such inspection, and to participate in pre- or 

post-inspection conferences held at the mine. 

As the Senate Committee on Human Resources 

stated, 'If our national mine safety and health 

program is to be truly effective, miners will 

have to play an active part in the enforcement 

of the Act.' S.Rep. No. 95-181, 95th Cong., 

1st Sess., at 35 (1977). 

In recognition of the fact that the Act does not contain 

a definition of the term "representatives of miners," the 

Secretary of Labor, on July 7, 1978, acting under his authority found in section 101 of the Act to promulgate and revise 

mandatory standards, promulgated 30 C.F.R. Part 40, governing 

the identification of representatives of miners and setting 

forth the filing requirements for such representatives, 

43 Fed. Reg. 29508, July 7, 1978. 

30 C.F.R. § 40.l - Definitions, in pertinent part 

provides: 

Cb) "Representative of miners" means: 

Cl) Any person or organization which 

represents two or more miners at a coal or 

other mine for the purposes of the Act, and 

(2) "Representatives authorized by the 

miners," "miners or their representatives," 

"authorized miner representative," and other 

similar terms as they appear in the Act. 

30 C.F.R. § 40.2 - Requirements, in pertinent part 

provides: 

(a) A representative of miners shall 

file with the Mine Safety and Health Administration District Manager for the district in 

which the mine is located the information 

required by § 40.3 of this part. Concurrently, 

50 
a copy of this information shall be provided to 

the operator of the mine by the representative 

of miners. 

In my view, the term "representatives of miners" for purposes of the Mine Act was clearly defined by the Secretary 

when the aforementioned regulations were promulgated. During 

the rulemaking process, several commenters expressed concern 

that the regulatory definition found in section 40.1 was overly 

broad and would cause confusion among miners selecting a representative. Some commenters suggested that the NLRB definition 

of representative be applied while others suggested that miner 

representatives should be elected by a majority of the miners. 

In addressing these comments, the Secretary stated that a broad 

definition would be preferable to a narrow one and that "any 

attempt to limit the manner in which representatives are 

selected would be intrusive into labor-management relations at 

the mine and not in keeping with the spirit of miner participation," 43 Fed. Reg. 29508, July 7, 1978. Additionally, the 

Secretary stated that: 

[M]ore specifically, the NLRB definition is 

inappropriate because the NLRB definition of 

"Representative" concerns itself with a representation in the context of collective bargaining, the meaning of the word representative 

under this Act is completely different. Additionally, the rights of nonunion miners would 

be severly limited by a definition of "Representative of Miners" based on the collective 

bargaining concept. Furthermore, the "majority 

rule" concept is a fundamental component of the 

NLRB definition of representative, which contemplates only one union miner representative at 

each mine. The purposes of the Mine Act are 

better served by allowing multiple representatives to be designated. This insures that all 

miners have the opportunity to exercise their 

right to select the representative of their 

choice for the purpose of performing the various functions of a representative of miners 

under the Act and within the framework of each 

provision. (Emphasis added). 

In view of the foregoing, it seems clear to me that in 

addressing the very concerns raised by the respondent with 

respect to the application of the collective bargaining provisions of the National Labor Relations Act with respect to the 

definition of the term "representative," the Secretary, in 

51 
promulgating Part 40 clearly distinguished the NLRB law and 

the Mine Act purposes and rejected any notion that a representative of miners can only be based on any "majority rule." 

Under the circumstances, I conclude and find that the respondent's arguments with respect to the application of NLRB law 

in this case are without merit, and they are rejected. I 

agree with the arguments advanced by MSHA and the UMWA on 

this issue, and conclude that the fact that the UMWA may not 

represent the respondent's miners for purposes of NLRB or 

NLRA collective bargaining purposes does not foreclose its 

representation of the miners who designated it to act as their 

representative in the exercise of their rights under the Mine 

Act. 

The regulatory definition of the term "representative of 

miners" as found in 30 C.F.R. § 40.l includes any person or 

organization which represents two or more miners. Section 

40.2(b) provides that miners or their representatives ~ 

appoint or designate different persons to represent them under 

various sections of the Act relating to representatives of 

miners. On the facts of this case, there is no question that 

the four miners working at the preparation plant designated 

the UMWA as their representatives, and that the UMWA designated Mr. Mylan and Poorman to serve in their representative 

capacity on behalf of the four miners. 

The respondent's suggestion that the designation of the 

UMWA by the four miners in question is binding on all miners 

at the mine and has resulted in the loss of individual rights 

for all remaining miners is not well taken. The issue is not 

whether the UMWA represents all miners for all purposes under 

the Mine Act. The issue is whether or not the respondent 

interferred with Mr. Mylan's and Mr. Poorman•s right to accompany the inspector as the·walkaround representative of the 

four miners who designated the UMWA as their representative. 

As far as the other miners are concerned, under the regulations found in Part 40, they are free to designate any individual or organization to act as their representative for 

purposes of MSHA inspection walkarounds. If they choose not 

to select the UMWA, that is their business. 

The respondent's contention that Mr. Mylan and 

Mr. Poorman may not serve as miners' representatives because 

they are employed by the respondent is rejected. As pointed 

out by MSHA and the UMWA in their briefs, this issue has previously been raised in Commission cases decided by Judge 

Morris and Judge Broderick, in Consolidation Coal Company v. 

United Mine Workers of America, 2 FMSHRC 1403 <1980), and 

Emery Mining Corp. v. Secretary of Labor, 8 FMSHRC 1182 

52 
(1986). I agree with those decisions, and find nothing in 

the Act or MSHA's Part 40 regulations which makes distinctions between the rights of employees and non-employee miners' 

representatives. 

I conclude and find that the complainants in this case 

were the duly designated walkaround representatives of the four 

miners who so designated them, and they had a statutory right 

pursuant to section 103(f) accompany the inspector during his 

inspection on October 31, 1985. In a recently decided walkaround discrimination case, Secretary ex rel. Richard Truex v. 

Consolidation Coal Company, 8 FMSHRC 1293, September 25, 1986, 

the Commission stated that "[t]he language of section 103(f), 

providing that 'a representative authorized by his miners shall 

be given an opportunity to accompany the Secretary,' unambiguously provides that miners possess the right to choose their 

representative for section 103(f} inspections * * *," 

8 FMSHRC 1298. Further, the legislative history of section 

103(f} clearly shows that Congress recognized the important 

function served by such a right. The Senate Report stated, "It 

is the Committee's view that [participation in inspections and 

pre- and post-inspection conferences] will enable miners to 

understand the safety and health requirements of the Act and 

will enhance mine safety and health awareness." S. Rep. 

No. 181, 95th Cong., 1st Sess. 28-29 Cl977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 

95th Cong. 2nd Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 616-17 (1978) ("Legis. 

Hist ")o See also Magma Copper Co., 1 FMSHRC 1948, 1951-52 

December 1979), aff'd, Magma Copper Co. v. FMSHRC, 645 F2d 694 

(9th Cir. 1981), cert. denied, 454 U.S. 940 (1981). 

I further conclude and find that the respondent's refusal 

to allow Mr. Mylan and Mr. Poorman to accompany the inspector 

during his inspection on October 31, 1985, violated their protected statutory rights under section 103{f) to serve as the 

representative of the miners who so designated them, and constituted an unlawful interference with their protected rights 

under section 105(c)(l) of the Act. Accordingly, the complaint 

filed in this case IS AFFIRMED. 

Respondent's Request for Dismissal of the Complaint as 

Untimely 

After due consideration of the respondent's arguments 

concerning the late-filing of the complaint, they are 

rejected, and the respondent's request for a dismissal of the 

complaint on this ground IS DENIED. It has been held that 

the filing deadlines found in section 105(c) of the Act are 

53 
not jurisdictional in nature, Christian v. South Hopkins Coal 

Company, 1 FMSHRC 126, 134-136 (1979); Bennett v. Kaiser Aluminum & Chemical Corporation, 3 FMSHRC 1539 (1981). Further, 

as remedial legislation, the Act should be liberally construed 

so as not to unduly prejudice miners for MSHA's delay in filing its complaint. In this case, I find no protracted delay 

on MSHA's part, nor can I conclude that the delay has prejudiced the respondent in its ability to present its defense. 

Civil Penalty Assessment 

On the facts of this case, I do not consider the violation to be egregious. MSHA's suggestion that the respondent 

displayed a lack of good faith by adamantly refusing to recognize the UMWA as the miner representative in this case is not 

well taken. Given the protracted and somewhat nasty legal 

dispute surrounding the contested NLRB collective bargaining 

election, I find no basis for unduly penalizing the respondent 

for its legal position taken in this case. Under the circumstances, and after consideration of the civil penalty criteria 

found in section llO(i) of the Act, I conclude that a civil 

penalty assessment of $100 is reasonable and appropriate in 

this· case. 

ORDER 

In view of the foregoing findings and conclusions, IT IS 

ORDERED THAT: 

1. The respondent cease and desist from 

prohibiting the UMWA or its designated health 

and safety representatives who have been designated by the four miners at the respondent's 

No. 6 Preparation Plant as their representatives from accompanying MSHA inspectors as 

walkaround representatives during their mine 

inspections. 

2. The respondent post a copy of this 

decision on the mine and preparation plant 

bulletin boards or at other locations readily 

available or accessible to miners. 

3. The respondent remit to MSHA a civil 

penalty assessment in the amount of $100 for 

its violation of section 105(c)(l) of the Act. 

54 
Full compliance with this Order is to be made by the 

respondent within thirty (30) days of the date of this 

decision. 

/I &ff!d" (f /i:fz;t;M ' ~{!fg~ Koutras ~dministrative Law Judge 

Distribution: 

Covette Rooney, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 {Certified Mail) 

Vasilis c. Katsafanas, Esq., Berkman, Ruslander, Pohl, Lieber 

& Engel, 40th Floor, One Oxford Centre, Pittsburgh, PA 

15219-6498 (Certified Mail> 

Mary Lu Jordan, Esq., United Mine Workers of America, 

900 15th Street, N.W., Washington, DC 20005 (Certified Mail) 

Dennis D. Clarke, Esq., 1615 L Street, N.W., Suite 1360, 

Washington, DC 20036 (Certified Mail) 

/fb 

55 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JAN 9 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

JEFFERSON COUNTY ROAD & 

BRIDGE DEPARTMENT, 

Respondent 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 85-125-M 

A.C. No. 05-04014-05501 

Docket No. WEST 85-126-M 

A.C. No. 05-04014-05502 

Docket No. WEST 85-127-M 

A.C. No. 05-04014-05503 

Harris Pit 

DECISION 

Appearances: Robert Lesnick, Esq., Office of the Solicitor, 

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

for Petitioner; 

Cile Pace, Esq., Jefferson County Road & Bridge 

Department, Golden, Colorado, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, charges respondent with violating safety 

regulations promulgated under the Federal Mine Safety and Health 

Act, 30 u.s.c. § 801 et seg., {the Act). 

A hearing on this matter took place on December 11, 1985 in 

Denver, Colorado. 

The parties filed extensive briefs in support of their 

positions. 

Issues 

The issues are whether the Secretary has enforcement 

authority over respondent and, if so, may the Secretary assess 

civil penalties. 

Stipulation 

At the hearing the parties stipulated that if respondent is 

held to be subject to the Act and not entitled to a CAV inspection then respondent does not challenge the individual 

citations and penalties in the cases (Tr. 5, 6). 

56 
The parties further stipulated that the respondent, in its 

mining operations, uses equipment manufactured outside of the 

State of Colorado (Tr. 21). 

Summary of the Evidence 

The threshold issues require a review of the evidence. Bud 

Smead, Sam Nankervis and Louis Gabos testified for respondent. 

Jake DeHerrera and Arnold Kerber testified ·for the Secretary. 

Bud Smead has been the Director of Public Works for 

Jefferson County, Colorado since 1978. The county operates five 

gravel pits called Harris, Dog Pound, Green Valley, Golden Gate 

and Pine Junction (Tr. 8-10). Smead is in charge of the County's 

Road and Bridge Department which is within the Public Works 

Division (Tr. 9). 

Jefferson County does not sell any of its gravel. It is 

used exclusively for the surfacing of Jefferson County roads. 

Some of those roads connect to state and federal highways ·(Tr. 9, 

14}. 

The operation of a Jefferson County gravel mine is approved 

by the County Commissioners of Jefferson County and by the State 

of Colorado Board of Mine, Land and Reclamation (Tr. 9, 10). 

Mr. Smead indicated the county requested a CAV inspection. 

Mr. Gabos made an oral request for such an inspection (Tr. 13). 

Sam Nankervis, director of the Jefferson County Road and 

Bridge Department, is responsible for maintenance and crushing 

for Jefferson County. The county has sustained one loss time 

accident (Tr. 15, 16). 

The witness was first aware of the events after Lou Gabos 

called MSHA representative Carmoc Gardner for what the county 

thought would be a courtesy inspection (Tr. 18). The request for 

the CAV was after they had moved the crusher to a different pit. 

MSHA said they would inspect but it would not be a "courtesy" 

inspection (Tr. 19, 20). 

Louis Gabos, a professional engineer and assistant director 

of the Jefferson County Road and Bridge Department, handles reports for the federal government and for land reclamation (Tr. 

22, 26). Witness Gabos filled out the MSHA form and indicated 

the official business name as "Jefferson County Road and Bridge 

Department 11 (Tr. 26) • 

On March 18 Gabos called Gardner at MSHA. · He said they wer:e 

ready and running but he didn't mean they were crushing anythi 

CTr. 23). Gardner said there could be no courtesy inspection 

the pit was in operation (Tr. 23). 

57 
The current practice of the respondent is to call MSHA when 

they move from one mine to another. Every time they now move 

they receive a courtesy inspection (Tr. 24). 

Gabos filled out the MSHA legal identity form at the 

direction of his supervisor, Sam Nankervis (Tr. 26; Ex. 1). The 

form was dated July 12, 1985 <Tr. 27). All of the county gravel 

pits are titled in the same fashion (Tr. 28). 

Gabos indicated the county complies with safe m1n1ng 

practices but they are not required to do _so (Tr. 28, 29). 

Jake DeHerrera, an MSHA inspector experienced in mining, 

inspected the Jefferson County pits (Tr. 30, 31). 

At one point in time there was a lack of funds to inspect 

such pits. But he visited the site when he was advised they had 

been funded to inspect such property (Tr. 32, 33). 

A CAV inspection is to assist the operator in complying with 

the Act prior to a mine reopening after it has been shut down for 

a time. For such a CAV inspection MSHA requires two weeks notice 

in writing. Further, MSHA requires that pit not be in operation 

(Tr. 33). Penalties are not issued under a CAV inspection <Tr. 

34) • 

In January 1985 the Dog Pound pit was in operation and in 

the process of stock piling material. The inspector observed 

four to six workers in the area (Tr. 34). 

Arnold Kerber; an MSHA inspector since 1974, visited the Dog 

Pound pit in January 1985. He also visited the Harris Pit on 

March 21, 1985 and issued 20 or 21 citations (Tr. 38-41). 

The parties stipulated that the pit was in operation at the 

time of the inspection CTr. 42). 

Discussion 

The County argues that the Secretary lacks authority to 

enforce the federal Mine Act against respondent for a number of 

reasons. 

Initially, it is asserted that Congress in passing the Act 

did not intend to regulate states or political subdivisions 

thereof. This is so because neither the statutory definition of 

"operator" or "person" speak to the regulation of state or local 

governments. Cognizant of federalism concerns, Congress explicitly brings state and local governments within the purview 

of the statutory scheme if it intends to regulate their activity. 

For example, Congress so acted in amending the Fair Labor 

Standards Act, 29 u.s.c. § 203(d), (x), See also Garcia v. San 

Antonio Mass Transit Authority U.S. , 105 s. Ct. 1005 

(1985). 

58 
This issue is a matter of statutory construction and 

legislative intent. 

The federal Mine Act defines an operator as "any owner, 

lessee, or other person who operates, controls, or supervises a 

coal or other mine ••• 11 (emphasis added) 30 U.S.C. § 802. In the 

preamble of the Act Congress explicitly stated that it recognized 

"the existence of rinsafe and unhealthful conditions and practices 

in the Nation's ••. mines {emphasis added). Accordingly, the Act 

was promulgated to meet the "urgent need to provide more 

effective means and measures for improving the working conditions 

and practices in the Nation's mines in order to prevent death and 

serious bodily harm •.• " (emphasis added). It is apparent here 

that a mine operated by a county is one of the Nation's mines. 

The Act was designed and Congress declared that 11 the first 

priority of all in the coal or other mining industry must be the 

health and safety of its most precious resource - the miner", 30 

u.s.c. § 801. 

A casual reading of the legislative history establishes the 

clear intent of Congress. Senate Report No. 95-181 shows the 

congressional views: 

The Committee believes that it is essential that there be 

a common regulatory program for all operators and equal 

protection under the law for all miners. Thus, a 

principal feature of the bill is the establishment of a 

single mine safety and health law applicable to the entire 

mining industry. 

Further, 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 

possibly 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. (Emphasis added). 

Sen. Report, 95th Congress, 1st Session (1977> reprinted in 

the Legislative History of the Federal Mine Safety and Health Act 

of 1977, 95th Congress, 2nd Session, 601, 602. 

Sand, gravel and crushed stone operations, whether privately 

operated or operated by a local government unit have been covered 

by the federal mine safety law since 1966 when the Federal Metal 

and Nonmetallic Mine Safety Act (Metal Act) was enacted. 

Historically there has never been any serious question that sand 

and gravel are minerals and that their extraction is mining, 

Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (3rd 

Cir., 1979); Marshall v. Nolichucky Sand Co. Inc., 606 F.2d 693 

(6th Cir., 1979). Sand and gravel operations are classical 

59 
mining operations. The methods and equipment used in sand and 

gravel mining are similar, if not identical to, the methods and 

equipment used in the mining of many other minerals. The hazards 

faced by workers engaged in extracting sand, gravel, and crushed 

stone are similar and in many cases they are identical to the 

hazards faced in other mining operations. 

The Metal Act was repealed in 1977 and all mining operations 

were placed under the present statute. However, the safety and 

health standards applicable to sand, gravel, and crushed stone 

operations issued under the Metal Act continue in effect under 

the 1977 Act. 

Because sand, gravel, and crushed stone operations are 

"mines" as defined in section 3Ch)(l) of the Act, they are 

subject to the provisions of the Act and the regulations issued 

thereunder. The fact that a pit is operated by a governmental 

unit rather than a private party is immaterial. When a state or 

local government engages in an activity subject to Congressional 

regulation, such as in operating a railway or a mine, the state 

or local government is subject to regulation in the same manner 

as a private citizen or corporation. Parden v. Terminal Ry. of 

Ala. State Docks Dept, 377 U.S. 184, 84 s. Ct. 1207 (1964). 

Respondent further argues that Congress explicitly brings 

state and local governments within the purview of the statutory 

scheme if it intends to regulate their activity citing such 

legislative action in amending the Fair Labor Standards Act, 29 

u.s.c. § 203{d)(l) and relying on Garcia v. San Antonio Mass 

Transit Authority, supra. 

I agree that Congress certainly may legislate by 

particularly naming those entities that are subject to the 

legislation. In fact, Congress did so in extending minimum wage 

coverage over a period of time and gradually expanding the coverage. 

When FLSA was enacted in 1938, its wage and overtime 

provisions did not apply to local mass-transit employees, the 

subject of the Garcia case, §§ 3{d), 13(a)(9), 52 Stat, 1060, 

1067. In 1961 Congress extended minimum wage coverage to 

employees of any mass-transit carrier whose annual gross revenue 

was not less than one-million. Fair Labor Standards Amendments 

of 1961, §§ 2(c)9, 75 Stat. 65. 71. In 1966 Congress extended 

FLSA coverage to state and local government employees for the 

first time. Fair Labor Standards Amendments of 1966, §§ 102Ca) 

and (b), 80 Stat. 831. In 1974 Congress provided for the progressive repeal of the surviving overtime exemption for mass 

transit employees. Fair Labor Standards Amendments of 1974, 

§ 2l(b), 88 Stat. 68. At the same time Congress simultaneously 

brought the states and their subdivisions further within the 

ambit of the FLSA by extending FLSA coverage to virtually all 

state and local government employees, §§ 6(a)(l) and (6), 88 Stat 

58.60, 29 U.S.C. § 203(d) and (1). 

60 
As noted above Congress gradually expanded FLSA coverage and 

finally specifically included states and local governments. 

Congress could have specifically named the states and counties in 

the Mine Act but it is not obliged to legislate in that fashion. 

In addition, the gradual extension of the FLSA coverage indicates 

a piece-meal approach to coverage under that Act. A similar 

legislative approach did not occur in the enactment of the 

federal Mine Act. The broad statutory definition supported by 

the legislative history establish that Congress intended to include all mines and miners within the ambit of the federal Mine 

Act. 

Respondent further contends that its gravel pits are not 

subject to the Act's coverage because its products neither enter 

commerce nor affect it. 

The evidence is uncontroverted that the gravel from the respondent's mines is not sold. It is, in fact, used exclusively 

to surface the county roads. In addition, Jefferson County's 

roads do not extend beyond the boundaries of the State of 

Colorado. The Act encompasses within its coverage the following: 

Each coal or other mine, the products of which enter 

commerce, or the operations or products of which affect 

commerce, and each operator of such mine, and every miner 

shall be subject to the provisions of this chapter. 30 

u.s.c.A. § 803. 

Further, commerce is defined as follows: 

Cb) "commerce" means trade, traffic, commerce, transportation, or communication among the several States, or 

between a place in a State and any place outside thereof, 

or within the District of Columbia or a possession of the 

United States, or between points in the same State but 

through a point outside thereof. 30 U.S.C.A. § 802 (b}. 

The issue to be addressed is whether the county's gravel 

operations "affect commerce." As a threshold matter the term 

"affecting commerce" has been given a broad judicial interpretation. Garcia v. San Antonio Mass Transit Authority, supra; 

Marshall v. Kraynack, 604 F.2d 231 (3rd Cir. 1979); Godwin v. 

OSHRC, 540 F.2d 1013 (1976) (9th Cir): United States v. Dye 

Construction Co., 510 F.2d 78 (1978) (10th Cir.); Brennan v. 

OSHRC, 492 F.2d 1027 (2d Cir. 1974); Wickard v. Filburn, 317 U.S. 

111, 63 S. Ct. 82. 

In the instant cases the parties stipulated that the county 

uses equipment in its mines manufactured outside of the state. 

Such activity clearly "affects commerce" as stated in the above 

cited case law • 

. Morton v. Bloom, 373 F. Supp. 797 CD.C. Pa. 1973), relied on 

by respondent, presents a unique factual situation of a mine 

operated by one man. In that circumstance, the Court ruled that 

61 
the local nature of the mine did not affect commerce. The case 

has not been followed as precedent for later decisions. In 

short, it appears to have a very narrow application not 

applicable here. 

The Commission has yet to consider the jurisdictional issues 

raised here but decisions by judges of the Commission have held 

that a governmental gravel operation is subject to the federal 

Act. New York State Dept of Transportation, 2 FMSHRC 1749 

(1980), Laurenson, J.: Island County Highway Department, 2 FMSHRC 

3227 (1980), Morris, J; Salt Lake County Road Dept, 2 FMSHRC 3409 

(1980), Vail, J. 

Respondent further contends that the Jefferson County Road 

and Bridge Department is not a legal entity. It is, therefore, 

not subject to suit under Colorado law. Further, it is not 

subject to service within the federal system, citing Rule 

4(d)(6), F.R. Civ.P. 

The respondent here is "Jefferson County Road and Bridge 

Department". The evidence at the hearing shows that Louis Gabos, 

assistant director of the department, filled out the MSHA legal 

identity form at the direction of his supervisor. Only one legal 

identity form appears in the record but witness Gabos indicated 

they were all titled in the same fashion. The form contains the 

federal identification number as well as the mine name and its 

address. In Government Exhibit 1 the mine name is identified as 

"Public Works Quarry #5 (formerly called Harris Pit)" and under 

address there appears 11 Jef ferson County Road and Bridge Dept/-

Divis ion of Public Works." 

The Secretary's regulations as set for at 20 C.F.R. § 41.10 

et seq. require the operator of a mine to file with the Secretary 

of Labor the legal identity of the operator of a mine and the 

regulation further requires the reporting of all changes in the 

legal identity as they occur. The regulations further state that 

"[t]he submission of a properly completed Legal Identity Report 

Form No. 2000-7 ••• will constitute adequate notification of 

legal identity to the Mine Safety and Health Administration". 

Since respondent identified itself as the "Jefferson County 

Road and Bridge Department" it is hardly in a position to disavow 

its own representations. In any event this is not a proceeding 

under the Colorado statutes but it is an adjudicatory proceedings 

provided for in 30 U.S.C. § 113(a) and its Rules of Procedure, 29 

C.F.R. § 2700 et seg. 

Respondent's reliance on Rule 4{d){6), F.R Civ. P. meets the 

same infirmity. To like effect on the issue of incorrectly 

naming a respondent in notices of violation and petition for 

assessment see the case decided by the Interior Board of Mine 

Operations in Harlan No. 4 Coal Company, 4 IBMA 241 (1975). 

62 
The final issue concerns the assessment of civil penalties. 

Respondent argues that the Act is replete with provisions demonstrating congressional intent to cooperate with states. 

Secondly, the federal government is cognizant of the need for 

fiscal independence of states and their political subdivisions. 

Thirdly, the imposition of fines will not foster mine safety and 

respondent immediately abated the violative conditions. 

I agree with respondent that the federal Act is replete with 

legislative assertions of cooperation. Further, the federal 

government is cognizant of the financial status of the states. 

However, I believe the imposition of penalties will foster mine 

safety. Such penalties, as well as further sanctions carefully 

structured under the Act, as in Section 104(d), can provide a 

strong incentive for a gravel operator to comply with safety 

regulations. Further, the text and legislative history of 

Section 110 of the Act require the Secretary to propose a penalty 

assessment for each violation and the Commission and its judges 

to assess some penalty for each violation found. Tazco Inc., 3 

FMSHRC 1895 (1981). Nominal penalties have been assessed in 

extenuing circumstances as in Potochar and Potochar Coal Company, 

4 IBMA 252, 1 MSHC 1300 (1975}. However, the primary reasons for 

assessing civil penalties is to deter future violations. Eddie 

Higgs, d/b/a Higgs Trucking Co., 6 FMSHRC 1215 (1984). 

Respondent here continues to operate its quarries and civil 

penalties are therefore appropriate. 

Respondent further asserts that no penalties should be 

aesessed because respondent was entitled to a CAV inspection. If 

respondent was entitled to such an inspection then no penalties 

should have been proposed. 

The parties presented evidence concerning the nature of the 

alleged CAV inspection but neither parties offered any evidence 

concerning any regulation or other authority for such an 

inspection. Accordingly, the judge issued a post-trial order 

directing each party to submit any relevant regulation or other 

authority for such an inspection. 

Respondent did not reply. The Secretary, although denying 

its applicability, filed a copy of an internal MSHA memorandum 

from Robert B. LeGather, assistant Secretary for Mine Safety and 

Health. 

The broad thrust of the memorandum focuses on the 

proposition that under Section 502 of the Mine Act the MSHA 

inspectors are authorized to visit mine sites to point out 

potential violations where such calls involve (1) new mines not 

yet producing, (2) seasonal, closed or abandoned mines prior to 

opening and (3) new installations in mines prior to their 

becoming operational. Generally, the directive provides that if 

the inspector observes a violative condition he will issue a 

notice but no penalty will be assessed or proposed. 

63 
The evidence here shows that respondent was not entitled to 

a CAV inspection since its pits were in operation at the time of 

the inspection. The evidence shows that Lou Gabos, according to 

witnesses Smead and Nankervis, called MSHA's Gardner and requested a courtesy inspection (Tr. 18). 

The testimony of witnesses Smead and Nankervis is not 

persuasive particularly when it was contradicted by witness Gabos 

himself who stated that the mine was in operation when MSHA first 

appeared to inspect it (Tr. 22). 

I accordingly reject respondent's evidence and credit MSHA's 

evidence that in January 1985, at the Dog Pound pit the inspector 

observed four to six workers in the area. The pit was then in 

operation and they were stock piling material. 

Concerning the Harris pit, the parties stipulated that it 

was in operation when inspector Kerber conducted his inspection 

(Tr. 40-42). 

Respondent currently relies on the CAV inspection process 

when moving to new sites CTr. 23-24). However, respondent was 

not entitled to a CAV inspection on the date the citations were 

issued in the cases at bar. 

For the foregoing reasons the threshold contentions raised 

by respondent are rejected. 

Briefs 

The parties have filed detailed briefs which have been most 

helpful in analyzing the record and defining the issues. I have 

reviewed and considered these excellent briefs. However, to the 

extent they are inconsistent with this decision, they are rejected. 

Conclusions of Law 

Based on the stipulation of the parties, the entire record 

and the factual findings made in the narrative portion of this 

decision, the following conclusions of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. An order should be entered affirming the citations and 

the proposed penalties. 

ORDER 

Based on the foregoing findings of fact and conclusions of 

law I enter the following order: 

1. In WEST 85-125-M the following citations and proposed 

penalties are affirmed: 

64 
30 C.F.R. § 

Citation No. Violated Penalty 

2355924 56.14-1 $54.00 

2355925 56.14-1 54.00 

2355926 56.14-1 54.00 

2355928 56.14-1 36.00 

2355929 56.14-1 20.00 

2355930 56.14-1 54.00 

2355931 56 .14-3 36.00 

2355932 56.14-1 54.00 

2355933 56.11-2 54.00 

2355936 56.9-87 20.00 

2355937 56 .12-28 20.00 

2355938 56.12-25 20.00 

2355939 56.4-2 20.00 

2355940 56.12-25 20.00 

2357724 56.11-27 36.00 

2358543 56. 9-54 63.00 

2. In WEST 85-126-M the following citation and penalty 

the ref or are affirmed: 

30 C.F.R. § 

Citation No. Violated Penalty 

2355927 56 .14-1 $54.00 

3. In WEST 85-127-M the following citations and proposed 

penalties are affirmed: 

30 C.F.R. § 

Citation No. Violated Penalty 

2355922 56.14-1 $54.00 

2355923 56.14-1 54.00 

2355934 56.11-12 79.00 

2355935 56. 9-87 20.00 

2358542 56. 9-87 20.00 

Law Judge 

Distribution: 

Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department 

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

80294 (Certified Mail) 

George D. Theophilos, Esq., Assistant County Attorney, Jefferson 

County Attorney's Office, 1700 Arapahoe Street, Golden, CO 80419 

(Certified Mail) 

/bls 

65 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JAN 9 1987 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JOSEPH E. TIMKO, 

Complainant 

v. 

DEE GOLD MINING COMPANY, 

Respondent 

Docket No. WEST 85-132-DM 

MD 85-12 

Dee Gold Mine 

DECISION APPROVING SETTLEMENT 

AND DISMISSING PROCEEDING 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

for Complainant; 

Jay W. Luther, Esq., Chickering & Gregory, San 

Francisco, California, 

for Respondent. 

Before: Judge Lasher 

The parties reached an amicable resolution of this matter on 

the first day of a hearing in two matters involving the Dee Gold 

Mining Company. The terms of the agreement reached between the 

Secretary on behalf of Joseph P. Timko and the Respondent are 

that, in return for the payment of $925.00, less customary and 

appropriate withholding deductions to be determined by Respondent, Complainant agrees to accept such amount in full 

satisfaction of all claims made in connection with his proceeding 

and remedies claimed by him under the Federal Mine Safety and 

Health Act of 1977, including back pay, reinstatement, and all 

other remedies contemplated by the Act and legal precedent. The 

figure, $925.00, is an approximation of damages sustained by 

Complainant as a result of the alleged violation. 

Complainant has executed a written release of the Respondent 

Dee Gold Mining Company which is attached to this decision and 

order approving settlement and made a part hereof. 

Respondent's actions executing the settlement and its agreements in connection therewith shall not be construed as an 

admission of violation of the Federal Mine Safety and Health Act 

of 1977. 

66 
It was the intent and understanding of both parties hereto 

that Respondent would, within seven days or as soon thereafter as 

possible, tender payment of the $925.00 less appropriate 

deductions, to counsel for the Secretary, Mr. Marshall Salzman, 

at this office address. Counsel for the Secretary has now· 

notified me in writing of such payment and acknowledges that I 

may consider the complaint in this matter to be withdrawn with 

prejudice to the Complainant to thereafter file any action under 

Section 105(c), individually, or otherwise. 

It is understood that the attached release signed by Joseph 

P. Timko, relating more generally to the employment relationship 

between Mr. Timko and Respondent, is broader in scope than the 

specific jurisdiction afforded under the .A.ct and should not be 

construed to be limited by any of the specific terms of this 

order approving settlement. Such release speaks for itself. 

The parties are now in compliance with the settlement 

reached and approved at hearing. Accordingly, this proceeding is 

dismissed. 

Attachment: Release 

Distribution: 

1Jtu~~ t1f μ-<---Ji Michael A. Lasher, Jr. 

Administrative Law Judge 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department of Labor, 11071 Federal Bldg., Box 36017, 450 Golden Gate 

Avenue, San Francisco, CA 94102 

Jay W. Luther, Esq., Chickering & Gregory, Three Embarcadero 

Center, 23rd Floor, San Francisco, CA 94111 

/blc 

67 
l 

2 

3 

4 

5 

6 

7 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

8 

SECRETARY OF LABOR, MINE 

9 SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

10 ON BEHALF OF 

11 JOSEPH E. TIMKO, 

12 

13 vs. 

Complainant, 

14 DEE GOLD MINING COMPANY, 

Respondent. 

Docket No. WEST 85-132-DM, 

MD 85-12 

RELEASE OF 

DEE GOLD MINING COMPANY 

15 

16 

17 

18 Joseph E. Timko, complaining party in that certain matter 

19 known as Joseph E. Timko, Complainant, v. Dee Gold Mining Company, 

20 Respondent, Docket. No •. WEST 85-132-DM, MD 85-12, does hereby 

21 release, remise, and forever discharge Dee Gold Mining Company, a 

22 evada general partnership, from any and all claims, demands, 

23 liability, indebtedness, causes of action, and claims for relief 

24 arising from or in any way related to (a) any and all matters 

25 alleged in the above-entitled proceeding; (b) any and all matters 

26 involving or related to said Joseph E. Timko's employment by the 

27 said Dee Gold Mining Company or the termination of said employment. 

28 

68 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

This release is given fully and voluntarily, after 

consultation with counsel, and Joseph E. Timko warrants that he has 

full authority to execute this release and accomplish the objects 

intended thereby, to wit the complete extinguishment of any of the 

enumerated obligations of Dee Gold Mining Company to Joseph E. 

Timko. Neither this release, nor the settlement of which it is a 

part, shall be regarded as an admission of liability on the part of 

Dee Gold Mining Company, which expressly denies liability to Joseph 

E. Timko. 

Joseph E. Timko waives any and all statutes or case law 

designed to prevent the enforcement of this release in accordance 

with its expressed terms. 

J~TIMKO 

69 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JAN 121987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner . . Docket No. LAKE 86-6-M 

A.C. No. 47-02575-05502 

v. 

NELSON TRUCKING, 

Respondent 

Pit #6 

DECISION 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, 

for Petitioner; 

Mr. Kenneth M. Nelson, Nelson Trucking Company, 

Green Bay, Wisconsin, 

pro ~ 

Before: Judge Lasher 

The Petitioner initiated this proceeding on October 30, 

1985, by the filing of a Proposal for Penalty requesting that a 

penalty be assessed for Respondent's alleged violation of 30 

C.F.R. § 56.5-50 which provides: 

(a) No employee shall be permitted an exposure to noise in 

excess of that specified in the table below. Noise level 

measurements shall be made using a sound level meter meeting specifications for type 2 meters contained in American 

National Standards Institute (ANSI) Standard Sl.4-1971, 

"General Purpose Sound Level Meters," approved April 27, 

1971, which is hereby incorporated by reference and made a 

part hereof, or by a dosimeter with similar accuracy. This 

publication may be obtained from the American National 

Standards Institute, Inc., 1430 Broadway, New York, N.Y. 

10018, or may be examined in any Metal and Nonmetal Mine 

Safety and Health District or Subdistrict Off ice of the 

Mine Safety and Health Administration. 

8 

6 

PERMISSIBLE NOISE EXPOSURES 

Duration per day, hours of exposure 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • • • • • 0 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 

70 

Sound 

level dBA, 

slow response 

90 

92 
4 

3 

2 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ . . . . . . . . . . . . . . . . . . . . . . . 

1 1/ 2 ................................. ~- . l 

1/ 2 .................................... . 

1/4 or less ............................ . 

95 

97 

100 

102 

105 

110 

115 

No exposure shall exceed 115 dBA. Impact or impulsive noises 

shall not exceed 140 dB, peak sound pressure level. 

x x x x x x x x 

(b} When employees' exposure exceeds that listed in the above 

table, feasible administrative or engineering controls shall 

be utilized. If such controls fail to reduce exposure to 

within permissible levels, personal protection equipment shall 

be provided and used to reduce sound levels to within the 

levels of the table. 

Pursuant to notice, this matter came on for hearing in Green 

Bay, Wisconsin, on August 13, 1986, at which MSHA Inspector Arnie 

Mattson testified for Petitioner and Kenneth Nelson, a co-owner, 

testified for Respondent. 

In the citation involved, No. 2374054, Inspector Mattson 

described the violative condition as follows: 

"The eight hour exposure to mixed noise levels of the 120 

Hough International front-end loader operator in the pit 

exceeded unity (100%), by 2.68 times (268%) as measured 

with a dosimeter. This is equivalent to an 8-hour exposure 

to 97 dBA. Personel [sic] hearing protection was being 

worn." 

Based on stipulations, documents, and testimony, I find or 

infer from the preponderant reliable and probative evidence as 

follows: 

The Respondent is a very small (four employees> sand and 

gravel operator doing business in the vicinity of Green Bay, 

Wisconsin; it has no history of violations prior to that involved 

in the subject citation which Respondent, in good faith, promptly 

abated after it received notification thereof. Payment of a 

penalty in this matter will not adversely affect Respondent's 

ability to continue in business. 

While on a regular inspection of Respondents No. 6 Pit on 

July 10, 1985, Inspector Mattson observed the crusher and 

determined that a noise survey should be conducted. On July 11, 

1985, Inspector Mattson performed such survey (Ex. S-3) for a 

period of eight hours, during which time a dosimeter was attached 

to the short collar of CHRIS NICKLAS, the operator of the 120 

Hough International front-end loader. 

71 
As a result of the sound level examination and testing of 

the environment of the crusher operator, it was determined that 

the operator of the front-end loader was exposed to Ca> 97 dBA 

for a period of eight hours (480 minutes}, and to (b) noise 2.68 

times the permissible level CT. 16-20). 1/ The loader operator 

had been wearing ear protection and the Respondent's management 

erroneously believed that this alone constituted compliance with 

the requirements of the standard, according to the Inspector (T. 

28, 29). 

To abate the violation, the Respondent was required to 

install engineering controls, i.e., a muffler, on the loader 

which reduced the sound level to approximately 93-94 dBA for the 

relevant period. Since the mine operator had only four . 

employees, administrative controls, in this case, reducing the 

number of hours the operator of the loader actually operated the 

machine each day, were not feasible CT. 25). Since the installation of the muffler did not bring the sound level down to 

permissible sound limits, the loader operator was also required 

to also wear personal ear protection to insure compliance with 

the standard. The Citation was terminated on August 29, 1985, 

upon Respondent's compliance with the above requirements. The 

Inspector indicated that the occurrence of the hazard posed by 

the infraction, injury to the loader operator's hearing, was "not 

likely" (Ex. S-1), but that had such occurred, such an injury 

would be "permanently disabling". 

Issues 

1. Whether the evidence established that Respondent failed 

to employ feasible engineering controls where its employee's 

exposure to noise exceeded permissible limits. 

2. If so, the amount of an appropriate penalty for the 

violation. 

Ultimate Findings, Conclusions and Discussion 

The Respondent made no substantial or persuasive challenge 

to the existence of the conditions which constitute the violation 

and raised no legal defense thereto. ~/ By stipulation at the 

1/ Exposure of the loader operator to a sound level in excess of 

90 dBA for an 8-hour workday constitut'es an infraction of the 

standard. 

ll Respondent's concerns about not being advised about this 

infraction during a prior MSHA courtesy assistance visit were, 

inasmuch as such might be construed as an equitable estoppel 

defense, addressed in my decision in a related matter, Docket No. 

LAKE 85-102-M, issued September 11, 1986. My decision on this 

question is incorporated herein by reference. 

72 
commencement of the hearing, Respondent conceded that the Commission and this administrative law judge has jurisdiction over 

it and the subject matter of this proceeding. 

In July 11, 1985, Respondent's loader operator was exposed 

to noise 2.68 times the permissible level; the exposure was 

equivalent to 97 dBA for eight hours per day. 

There were feasible engineering controls available to reduce 

the exposure, i.e., the installation of a muffler on the subject 

front-end loader. Respondent thus was in violation of 30 C.F.R. 

§ 56.5-50 because of its failure to utilize such engineering 

controls (administrative controls not being feasible) to reduce 

the exposure of its loader operator to excessive noise CT. 28). 

Because MSHA had examined the Respondent's operation 

previously during a courtesy inspection and had not required 

engineering controls to reduce the noise levels, Respondent's 

negligence is found to be minimal. Based on the Inspector's 

characterization of the probability of the hazard ever being 

realized as "not likely", the violation is not found to be 

serious. There is no contention-or evidence-that the imposition 

of a penalty will adversely affect this very small Respondent's 

ability to continue in business. Considering the above mandatory 

penalty assessment factors, and the fact that Respondent 

proceeded in good faith, upon notification of the violation, to 

promptly abate such, the penalty urged by the Secretary, $20.00 

is found appropriate. In view of the very modest amount ($20.00) 

of the penalty sought by the Secretary to begin with, I find no 

reason for a reduction thereof based on MSHA's failure to advise 

the Respondent about it during the prior "courtesy" visit. See 

Secretary of Labor v. King Knob Coal Company, Inc., 3 FMSHRC 1417 

(1981)0 

ORDER 

(1) Citation No. 2374054 is affirmed. 

(2) Respondent shall pay the Secretary of Labor within 30 

days from the date hereof the sum of $20.00 as and for a civil 

penalty. 

~;t.1,tt-/.: d< ffe*L /t.--

Mfchael A. Lasher, Jr. 

Administrative Law Judge 

73 
Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department 

of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 

60604 (Certified Mail) 

Nelson Trucking Company, Mr. Kenneth M. Nelson, 2898 Flintville, 

Green Bay, WI 54303 (Certified Mail) 

/bls 

74 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JAN 12 1987 

CHARLES F. ROSE, 

Complainant 

. . DISCRIMINATION PROCEEDING 

v. 

. . Docket No. WEVA 86-379-D 

CONSOLIDATION COAL COMPANY, 

Respondent 

MORG CD 86-11 

Pursglove No. 15 Mine 

DECISION 

Appearances: William R. Nalitz, Esq., Waynesburg, Pennsylvania, 

for Complainant; 

Michael R. Peelish, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me on the complaint of Charles F. Rose 

against Consolidation Coal Company filed on April 9, 1986 alleging 

discrimination under Section l05(c) of the Federal Mine Safety 

and Health Act of 1977 (30 u.s.c. § 801 et~., hereinafter 

referred to as "Act"). On June 13, 1986, the Secretary advised 

Complainant that it had determined that a violation of Section 

105(c) did not occur. Rose filed his complaint with the Commission on July 14, 1986. Pursuant to notice, the case was scheduled 

for October 23, 1986, in Washington, Pennsylvania. At the 

hearing, the Complainant, who was unrepresented, requested that 

the case to be adjourned so that he might obtain legal represenation. This motion was granted and pursuant to notice the case 

was heard on November 3, 1986, in Washington, Pennsylvania. 

Paskel Lee Eddy and Charles F. Rose testified on behalf of Complainant, and James A. Simpson testified on behalf of Respondent. 

Complainant and Respondent filed posthearing briefs on 

December 8 and December 5, respectively. Reply briefs were to 

have been exchanged ten days later but none were filed. 

Findings of Fact 

1. The Complainant, Charles F. Rose, is an employee of 

Respondent, Consolidation Coal Company, at the Respondent's 

Pursglove No. 15 Mine. 

75 
2. Complainant's regular job classification is general 

inside labor. 

3. Under the terms of the National Bituminous Coal Wage 

Agreement of 1984 Complainant is to work an 8 hour day including 

30 minutes for lunch. 

4. It has been the custom for many years at Respondent's 

mine that the lunch break has been taken between third and fifth 

hour of employment Cll a.m to 1 p.m). 

5. It has been customary practice for at least 2 years, 

prior to March 1986, that the union representative (hereinafter 

called "walk-around") accompanying a Federal Mine Inspector on a 

inspection of Respondent's subsurface mine, have his half hour 

lunch at the conclusion of the inspection after the inspector 

leaves (Tr. 33, 38, 45-46, 65-66). 

6. In March 1986, Respondent made a management decision, as 

a result of a reduction in work force, that the "walk-around" 

should eat his dinner between the 3rd and 5th hour, and that upon 

completion of the inspection the "walk-around" was to return to 

work. 

7. On March 19, 1986, Complainant served as a "walk-around" 

accompanying a Federal Mine Inspector on his regular inspection 

of Respondent's Pursglove No. 15 Mine. He received pay for 8 

hours. 

8. At approximately 3:15 p.m. on March 19, 1986, after the 

Complainant completed his "walk-around" duties and the inspector 

left, Clyde Owens, Respondent's Safety Director, informed the 

Complainant that James A. Simpson, Superintendent, told him to 

tell the Complainant to go right to work without a break for lunch. 

9. Simpson testified, in essence, that during an inspection 

underground there are delays waiting for certain activities to 

occur or waiting for transportation (Tr. 75, 79). This was confirmed by Complainant CTr. 87). Simpson also said in essence 

that company personnel accompaying a federal mine inspection eat 

during a break in the inspection when they can sit down, or they 

grab a sandwich "on the run". However, Simpson also said that 

the delays are not predictable, and do not occur at regular 

intervals. Both Complainant and Eddy testified as to the difficulties a "walk-around" would encounter if one would start to 

eat during a transportation delay (Tr. 47, 87). Also Eddy testified that normally during an inspection one would not have a half 

hour to eat (Tr. 47). Complainant testified that normally, in 

essence, a delay due to switching or "whatever" was 5 to 10 

minutes at the most and not a half hour (Tr. 87). Accordingly, 

inasmuch as Eddy and Complainant were actually involved as 

76 
"walk-arounds" and thus had personal knowledge of the conditions 

during such inspection, I credit more weight to their testimony. 

Therefore, I find that it is not possible for a "walk-around" to 

have a continuous half hour lunch while engaged as a "walk-around" 

underground. 

10. Simpson testified that after the inspector and the 

"walk-around" finish the inspection and return to the surface 

they may have a sandwich. However, he said that from the time 

they exit the mine until the time they start discussing the 

inspection from 15 minutes to a half hour elaspes. During this 

time they also have to remove the clothes and equipment they wore 

in the mine. Accordingly, I find that there is not a continuous 

half hour period after the inspection for a "walk-around" to eat 

lunch prior to discussing the inspection. 

Issues 

The general issue in this case is whether Consolidation Coal 

Company discriminated against Rose in violation of Section 105(c) 

of the Act and, if so, what is the appropriate relief to be 

awarded Rose and what are the appropriate civil penalties to be 

assessed against Consolidation for such discrimination. 

The specific issue is whether Respondent, by denying Complainant half hour for lunch upon completion of his "walk-around" 

activity beyond the usual time period for lunch, caused the Complainant to suffer a "loss of pay" during the period of his 

"walk-around". 

Laws 

Section 105(c)(l) of the Act provides, in essence, in part, 

that no person shall in any manner discriminate against, or cause 

discrimination against, or otherwise interfere with the exercise 

of the statuatory rights of any miner or representative of miners 

because of the exercise by such miner of any statutory right 

afforded by the Act. In essence, Section 103(f) of the Act, 

provides that an authorized representative of miners, such as 

Rose, is entitled to accompany a MSHA inspector in the course of 

his inspection and that "such representative of miners who is 

also an employee of the operator shall suffer no loss of pay 

during the period of his participation in the inspection made 

under this subsection." (Emphasis added.). 

Discussion 

Respondent in essence argues that the Complainant was not 

under the control of the mine management during the "walk-around", 

and thus the latter did not cause the Complainant to suffer a 

loss of lunch during the "walk-around". Respondent in this 

77 
connection presented testimony that it did not tell Complainant 

he could not eat lunch during a "walk-around". Also, Respondent 

argues that Complainant was paid his full wages for the day of 

the "walk-around", an~ thus suffered no "loss of pay11 • 

Complainant argues that in essence deprivation by Respondent 

of a "walk-around's" right to eat lunch for a continuous period 

of half hour after a "walk-around" is violative of Section 103(b) 

of the Act. For reasons that follow I agree. 

There is not any legislative history of the Act containing 

any discussion of the specific issue presented here. However, it 

appears that in general Congress intended a broad construction to 

be placed on the phrase "shall suffer no loss of pay" (Section 

103Cft supra.) In this connection, it is noted that the Senate 

Report accompanying S. 717, (S. Rept No. 181, supra, at 28-29, 

Leg. Hist. at 616-617), provides with regard to the intent behind 

Section 103 that "to encourge such miner participation it is the 

Committees intention that the miner who participates in such 

inspection and conferences be fully compensated by the operator 

for the time thus spent. To provide for other than full 

compensation would be inconsistent with purpose of the Act and 

would unfairly penalize the miner for assisting the inspector 

performing his duties". (Emphasis added). 

Furthermore, similarly, the courts, based upon the legislative history, have placed a broad interpretation on the rights 

granted by Section 103(f), supra. Thus, in United Mine Workers 

of America, etc. v. Federal Mine Safety and Health Commission, 

671 F.2d 615 CD.C. Cir. 1982), the Court was faced with the issue 

as to whether under Section 103(f), supra, a miner has the right 

to pay when accompanying an inspector on a "spot" inspection. 

The court held that, pursuant to Section 103(f), supra, a miner 

shall not suffer any loss of pay while accompanying an inspector 

on a "spot" inspection as well as a regular inspection. In its 

decision, the Court reviewed the legislative history of Section 

103(£), supra, and noted that it was the express intention of the 

Senate Committee on Human Resources, as contained in the Report 

on S.717 (8. Rept No. 181, 95th Cong. 1st Sess 28-29 (1977), as 

reprinted in Legislative History of the Federal Mine Safety and 

Health Act at 616-617) "that a Miner participating in a "walkaround" inspection receive "full compensation." (671 F.2d, supra 

at 625). The Court further opined that both miner participation 

and full compensation were considered by the committee to constitute important tools in the effort to increase miners' 

awareness of the hazards they face and the measures they can take 

to achieve a safe and healthy working environment. (671 F.2d, 

supra, at 625). 

Further, the court in United Mine workers, supra, at 625 

related that Senator Helms had introduced an amendment to S.717, 

78 
the Senate version of the Act, that would have stricken any 

reference to a miner being paid while accompanying an inspector 

on an inspection. (See Leg. Hist., supra). The Court, (671 F.2d, 

supra at 625), noted however that Sentor Javits successfully 

opposed the amendment, giving, among others, the following 

reasons: 

First, greater miner participation in health and safety 

matters, we believe is essential in order to increase miner 

awareness of the safety and health problems in the mine, and 

secondly, it is hardly to be expected that a miner who is 

not in business for himself, should do this if his activities 

remain uncompensated. 

* * * * * * * 

But we cannot expect miners to engage in the safetyrela ted activities if they are going to do without any 

compensation on their own time. If miners are going to 

accompany inspectors, they are going to learn a lot about 

mine safety, and that will be helpful to other employees and 

to the mine operator. 

In addition, if the worker is along he knows a lot 

about the premises upon which he works and, therefore, the 

inspection can be much more thorough. We want to encourage 

that because we want to avoid, not incur, accidents. So 

paying the wor.ker his compensation while he makes the rounds 

is entirely proper. 

Essentially, the same legislative history was cited 

with approval in Monterery Coal Company v. Federal Mine Safety 

and Health Review Commission 743 F.2d 589 (7th Cir. 1984), in 

which the court also held that Section 103(f) of the Act requires 

that a miner should be paid by an operator where the former 

participates· in a "spot" inspection. (See also Consolidated Coal 

Company v. Federal Mine Safety and Health Review Commission, 740 

F.2d 271 <3rd Cir 1984). 

Similarly, in Magma Copper Company v. Secretary of Labor 

(645 F.2d 694 (9th Cir 1981, cert. denied 454 U.S. 94), the Court 

held that where several inspectors are present, it is within 

purview of Section 103(f), supra that one respresentative of the 

miners may accompany each inspector without loss of pay. In 

reaching this conclusion, the Court, at 698, cited with approval 

the legislative history of the Act, as set forth, in the Senate · 

Report 95-81, (reprinted in Legislative History at 623,} to the 

effect that if the Mine Safety and Health Program is to be truely 

effective miners will have to play an active part in the enforcement of the Act. 

79 
Also, the Commission's Judges, have, on occassion, provided 

a broad interpretation to Section 103(f), supra, so as not to 

discourage participation in "walk-around" inspections which would 

be contrary to the clear intent of Congress. Thus, in Secretary 

of Labor, Mine Safety and Health Administration, on behalf of 

Timithy P. Scott v. Consolidation Coal Company, 2 FMSHRC 1056, 

the miner was paid on the basis of a grade three rate scraper 

operator for the time spent in "walk-around" activities. On the 

day of the inspection, the miner was told that he was to perform 

removal work, at higher level of pay, (grade five). However the 

miner began his "walk-around" prior to the actual commencement of 

such work. Judge Melick found that the miner must be compensated 

in a amount equivalent to grade five rate pay so as not to be 

unfairly penalized in performing his "walk-around" duties as a 

representative of miners. In Secretary of Labor, Mine Safety and 

Health Administration v. Virginia Pocahontas, 3 FMSHRC 1493 

(1981), .former Commission Judge Steffey, held, in essence that 

the language of Section 103(f) supra requires that a miner, who 

accompanies an inspector on a shift other than his own regular 

shift, must be provided with work on that shift after the inspection is completed. 

Thus from all the above it can be seen that Congress, in 

enacting Section 103(f), supra, clearly intended it to encourage 

"walk-arounds" and prohibit acts that would tend to discourage 

miners from participating in "walk-arounds". It is thus manifest 

that the broad intent behind Section 103(f), supra, would be 

thwarted by allowing any act which might have a tendency to 

discourage miners' participation in "walk-arounds". As such, it 

is concluded that Respondent's action herein violates Section 

103(f), supra. 

At the hearing and in a posthearing brief Complainant has 

requested that relief be extended to all occasions subject to 

March 19, 1986, when Complainant served as a "walk-around" and 

was denied by Respondent the opportunity to have lunch upon conclusion of the inspection. This relief has been opposed by 

Respondent. Inasmuch as Complainant has established that 

Respondent violated Section 103(f), supra on March 19, 1986, in 

the interest of justice, Complainant shall be allowed to establish if additional similar actions by Respondent have subsequently occurred. This ,.,ill achieve the purpose of granting 

Complainant's full relief, (see Section 105(c)(3) of the Act). 

This should not unduly burden Respondent, as at the hearing on 

Novgmber 3, 1986, Respondent had the opportunity and did present 

its case, i.e., that its actions in not providing Complainant a 

lunch aftera"walk-around" did not violate Section 103(f), 

supra. It would appear that the facts adduced by Respondent at 

the hearing would apply equally to all subsequent similar 

actions. 

80 
Conclusions of Law 

Complainant and Respondent are subject to Section 105 of the 

Act, the latter as miner and the former as mine operator. I have 

jurisdiction to hear and decide this case. Respondent has 

violated Section 103Cf) of the Act by not providing the Complainant with a continuous half hour for lunch upon the completion of his duties as a "walk-around. 11 

Relief 

It is ORDERED that: 

(1) Respondent pay Complainant $10.32 within 10 days of 

this decision. 

(2) Respondent shall desist from not providing Complainant 

a continuous half hour for lunch upon completion of his "walkaround11 duties. 

(3) Respondent shall pay costs and expenses including 

attorneys fees reasonably incurred by Complainant in connection 

with the institution and prosecution of this proceeding. 

(4) For each instance subject to March 19, 1986 until the 

date of this decision, Respondent shall pay Complainant, his 

usual rate of pay for each half hour of lunch time Respondent 

failed to provide Complainant upon completion of his duties as 

"walk-around". 

(5) Counsel are directed to confer and attempt to agree on 

the amounts due under paragraphs 3 and 4 above, and if they can 

agree to submit a statement to me within 20 days of this decision. 

If they can not agree, Complainant shall within 30 days of this 

decision file a detailed statement of the amount claimed, and 

Respondent shall submit a reply thereto within 30 days thereafter. 

If there are significant and substantial issues of fact raised in 

these statements, a supplemental hearing might be held. 

This decision shall not be final until I have issued a supplemental decision on the amounts due under paragraphs 3 and 4. 

(6) Respondent shall post a copy of this decision on a 

bulletin board at the surface mine which is available to all 

employees and it shall remain there for a period of at least 60 

days. 

81 

~ /, ' 

""-" l "\-l__,•..._./Lv----

Weisberger 

Administrative Law Judge 
Distribution: 

William R. Nalitz, Esq., Sayers, King, Keener & Nalitz, 77 South 

Washington Street, W~ynesburg, PA 15370 (Certified Mail) 

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

Washington Road, Pittsburgb, PA 15241 (Certified Mail} 

dcp/rbg 

82 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 12 1987 

SECRETARY OF LABOR, : DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JOHNNY S. VANCE, 

Complainant 

. 

. 

. . 

. 

. 

Docket No. WEVA 86-424-D 

HOPE CD 86-11 

v. Lightfoot No. 2 Mine 

EASTERN ASSOCIATED COAL 

CORPORATION, 

. . 

Respondent : 

ORDER OF DISMISSAL 

Appearances: Page H. Jackson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia 

for ComplainantJ 

Steven p. McGowan, Esq., Steptoe & Johnson, 

Charleston, West Virginia, for Respondent. 

Before: Judge Melick 

The Secretary with the consent of 

ant requests in effect to withdraw his 

tion in the captioned case. Under the 

permission to withdraw is granted. 29 

case is therefore dismissed. 

\ 

the individual Complaincomplaint of discriminaci~.· cumstances herein, 

C. 

1

.R. § 2700.11. The 

\ 

· .. / ·~ .\ 

Gary ·~eli k , ·• \ /\~. 

/ 

Admilpistrati~e .La';;' 1/. . ( 703'~ 756-6261 I \ : 

::::r~~u:::::on, Esq., Office o\ the Soli~itor, U.S. Department of Labor, 4015 Wilson Slvd1, Room 12l7A, Arlington, VA 

22203 (Certified Mail) 

Steven P. McGowan, Esq., Steptoe & Johnson, P.O. Box 1588, 

Charleston, WV 25326 (Certified Mail) 

rbg 

83 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 131987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. 

. 

: Docket No. CENT 86-93-M 

A.C. No. 41-03327-05501 

v. . 

. Crusher No. 2 Mine 

AMARILLO ROAD COMPANY, 

Respondent . . 

Appearances: 

Before: 

DECISION 

Rebecca A. Siegel, Esq., Office of the 

Solicitor, U.S. Department of Labor, Dallas, 

Texas, for the Petitioner; 

E. E. Clark, Secretary-Treasurer, Amarillo 

Road Company, Amarillo, Texas, pro se, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 o.s.c. § 820(a), seeking a civil penalty assessment of $30 for an alleged violation of mandatory 

safety standard 30 C.F.R. § 56.16009. The respondent filed 

an answer denying the violation, and a hearing was held in 

Amarillo, Texas, on December 11, 1986. The parties waived 

the filing of posthearing briefs, but I have considered their 

oral arguments made on the record in the course of my adjudication of this matter. 

Issues 

The issues presented in this proceeding are as follows: 

1. Whether the respondent violated the 

cited mandatory safety standard, and if so, 

the appropriate civil penalty to be assessed 

84 
for the violation based on the criteria found 

in section llO(i) of the Act. 

2. Additional issues raised by the parties are identified and discussed in the 

course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Healtti Act of 1977, 

Pub. L. 95 64, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et ~· 

Stipulations 

The parties stipulated to the following (Tr. 5-12): 

1. The respondent's mining activities involve products 

which affect interstate commerce, and the respondent is 

sub]ect to the jurisdiction of the Act. 

2. The respondent's annual mining production of limestqne is 31,615 tons. The respondent is a highway contractor, and its limestone mining and crushing operations employ 

from 16 to 18 miners. 

3. The cited condition or practice which resulted in 

the issuance of the violation was not the result of any negligence by the respondent. 

4. For purposes of this case, the respondent has no 

prior history of violations. 

5. The inspector's gravity findings, as reflected on 

the face of the citation, are accurate and correct. 

6. The respondent exhibited good faith compliance in 

abating the cited condition or practice. 

Discussion 

Section 104(a) "S&S" Citation No. 2660902, issued on 

January 9, 1986, cites a violation of 30 C.F.R. § 56.16009, 

and the cited condition or practice is described as follows: 

A serious non-fatal accident occurred on 

January 2, 1986, resulting in two broken legs 

85 
and a broken back when an employee for some 

unknown reason walked under an unsecured 

47 foot section of belt conveyor framework 

which had just been raised into place but not 

secured. Moments prior to the accident, all 

employees involved in setting the structure 

were advised by the foreman to stand clear 

until more jacks and supports could be 

installed to secure the section of conveyor 

and related load out bin. 

The citation was terminated on Februray 5, 1986, and the 

termination notice states as follows: "When suspended loads 

are required at the crusher plant the employees has (sic) 

again been informed of the hazards involved at a safety meeting held on 1-13-86. Employees that violate the foreman's 

dissuade safety orders will face dismissal of employment." 

MSHA's Testimony and Evidence 

MSHA Inspector Michael C. Sanders, testified as to his 

training and experience, and he confirmed that he issued the 

citation in question on January 9, 1986, after conducting an 

investigation of the accident which occurred on January 2, 

19 86. 

Mr. Sanders identified photographic exhibits P-1 through 

P-4 as the conveyor and portable load out bin, and confirmed 

that he took the pictures on January 9, 1986. Photograph P-1 

shows the conveyor which fell on the accident victim resting 

against the lip of the load out bin; P-2 is a rear view of 

the bin with wooden support blocks under the axle; P-3 is 

similar to P-1; and P-4 shows a part of the load out bin 

supported by jacks and wooden blocks. 

Mr. Sanders sketched a diagram showing the final flow of 

the limestone material along the bin feed out conveyor 

through to the load out bin, and to the truck load out conveyor (exhibit P-5), and he explained the processing sequence. 

He confirmed that the crusher "plant" consists of portable 

conveyors and bins which are moved from location to location 

as required. 

Mr. Sanders stated that his investigation of the accident disclosed that at the time of the accident the plant was 

in the process of being moved and was in the final stages of 

assembly. One end of the conveyor which fell on the employee 

was elevated and resting against the lip of the bin as shown 

86 
in photographs P-1, P-3, and R-1, but the safety chain normally used to secure the conveyor to the bin to prevent movement once the assembly is completed was not attached to the 

bin. The other end of the conveyor was resting on the ground. 

Mr. Sanders stated that the end of the conveyor which 

was resting on the bin was lifted in place to that position 

by a front-end loader. Once in place, the loader pulled away 

and left the area. The supervisor on the scene, Vicente Loe, 

noticed that the three employees who were assembling the 

plant had not secured the conveyor chain to the bin as they 

had been instructed. He also observed that the weight of the 

conveyor, as it rested against the bin, resulted in some movement of the support blocks under the bin axle. Recognizing 

these hazards, Mr. Loe left the scene to bring back the 

front-end loader to stablize the conveyor and to secure it to 

the bin. However, before leaving, Mr. Loe informed the work 

crew of the hazard of the unsecured conveyor and specifically 

instructed them to stay clear of the conveyor until he 

returned with the loader. For some unexplained reason, the 

accident victim disregarded Mr. Loe's directives and went 

under the conveyor. When he did, movement of the bin blocks 

caused the end of the conveyor resting on the bin to fall on 

the victim breaking his legs, and his back. 

on cross-examination, Mr. Sanders stated that during his 

accident investigation he did not speak with the injured 

employee or the other two employees. He confirmed that he 

had no reason to question Mr. Loe's version of the accident, 

and he concluded that the respondent was not negligent, and 

that it resulted solely from the negligence of the injured 

employee who disregarded Mr. Loe's instructions to stay clear 

of the conveyor until it could be supported by the loader and 

secured by the chain •. 

Mr. Sanders confirmed that the conveyor which fell and 

struck the employee was not "suspended in the air," and that 

one end was on the ground, and the other end which fell was 

elevated at an angle resting against the bin and the chain 

was not secured to the bin. He stated that in the assembly 

and disassembly of the conveyor and bin, the conveyor is normally lifted off the ground by means of an end-loader and 

placed against the bin until it can be secured to the bin by 

a safety chain. According to his interpretation of section 

56.16009, if the safety chain is not secured to the bin, he 

considers the conveyor to be "suspended" within the meaning 

of that standard, and that is why he cited this standard. If 

the conveyor were secured to the bin by the safety chain, he 

87 
would not consider the conveyor to be "suspended" and he 

would not have issued the citation. 

Respondent's Arguments 

The respondent agreed that there is no dispute as to the 

facts of this case, and that the inspector's testimony regarding the circumstances of the accident in question is accurate. 

Although Mr. Loe was present in the courtroom, respondent's 

representative E. E. Clark stated that he saw no need to call 

him as a witness, and that the respondent's position is as 

stated in its answer and exhibits filed in this proceeding. 

Mr. Clark took the position that the respondent has not 

violated section 56.16009, because the conveyor in question 

was not in fact a "suspended load," in that it had been 

placed at rest on the bin similar to an inclined plane, or a 

ladder 'resting against a wall. Mr. Clark pointed out that 

the conveyor was not free on all sides, or "suspended" or 

hoisted in the air as the phrase "suspended load" normally 

implies. He also argued that since section 56.16009, is 

included as part of MSHA's "Materials Storage and Handling" 

standards under Subpart O, Part 56, Code of Federal Regulations, it does not apply in this case because the conveyor 

cannot be considered "materials" as that term is used in the 

standards appearing in Subpart o. 

Mr. Clark asserted that the respondent's safety rules 

(exhibit R-2) require each employee to follow instructions 

and not to take chances, and that the hoisting or lifting of 

objects over workmen is prohibited. 

Mr. Clark maintained that the accident was not caused by 

the respondent's or Mr. Loe's failure to recognize a hazard 

and react accordingly in a safe and prudent manner, but was 

caused by the negligence of the injured employee who disregarded Mr. Loe's cautionary instruction to stand clear of the 

conveyor. Since MSHA agrees that the respondent was not 

negligent, Mr. Clark believes that the respondent should not 

be held accountable for any violation. Mr. Clark concludes 

that since the injured employee violated his supervisor's 

order to stand clear, and since the load was not suspended in 

the first place, no violation of section 56.16009 has been 

established. 

I take note of the fact that as part of its answer to 

MSHA's proposal for assessment of civil penalty, the respondent included a copy of a company accident report filled out 

and signed by Mr. Loe on the day of the accident. Mr. Loe 

88 
stated that when he asked the two employees who were at the 

scene for an explanation as to why they did not attach the 

conveyor chain or wait until he returned, they responded that 

"they didn't know" and "just thought that they could block 

the bin and took a chance." 

Petitioner's Arguments 

Petitioner asserts that section 56.16009 is a broad standard which should be liberally construed, and that the inspector's interpretation and application of the phrase "suspended 

loads" was correctly applied and should be affirmed. In 

response to the respondent's assertion that since the cited 

standard appears under Subpart o, Part 56, dealing with storage and handling of materials, it is not intended to apply to 

equipment such as a conveyor, petitioner cites my prior decision of October 8, 1979, in Pennsylvania Glass Sand Corporation, 1 FMSHRC 1191 (August 1979). In that case, I concluded 

that the cited standard applied in the case of a motor suspended above a work area. 

In response to the respondent's argument that it should 

not be liable for any violation when it is clear that it was 

not negligent, and that the accident was caused by the 

employee's negligence in failing to follow the safety instructions of his supervisor, petitioner states that the law is 

otherwise, and that the courts and the Commission have consistently ruled that a mine operator is liable for a violation 

without regard to fault. 

Findings and Conclusions 

The respondent in this case is charged with a violation 

of mandatory safety standard 30 C.F.R. § 56.16009, which 

states that "Persons shall stay clear of suspended loads." 

MSHA concedes that the respondent was not negligent and that 

the foreman who was supervising the construction work at the 

scene of the accident warned his crew and the injured miner 

to stand clear of the conveyor in question until it could be 

further secured from any movement. 

Two issues are presented in this case. The first question is whether or not the respondent can be held liable and 

accountable for a violation which resulted from the negligence of one of its employees who for some unknown reason 

clearly disregarded his foreman's instructions to stay cleQr 

·of the conveyor which fell and struck him. The second issue 

is whether or not the cited mandatory standard section is 

89 
applicable to the alleged violative condition which prompted 

the issuance of the citation. 

The respondent's contention that it cannot be held liable 

for a violation of ariy mandatory safety standard because it 

was not negligent is rejected. As correctly stated by the 

petitioner, the law is otherwise, and the Commission has consistently held that under the Mine Act, an operator is liable, 

without regard to fault, for violations committed by its 

employees. Asarco, Incorporated-Northwestern Mining Department, 8 FMSHRC 1632 (November 1986), and the cases cited 

therein. 

The term "load" is defined in A Dictionary of Mining, 

Mineral, and Related Terms, U.S. Department of the Interior, 

1968 Edition, in pertinent part as follows at page 650: 

f. The weight borne by a structure 

caused by gravity alone (dead load) or by 

gravity increased by the stress of moving 

weight (live load), as in the case of hoisting 

a string of drill rods. 

The term "suspend" is defined in Webster's New Collegiate 

Dictionary, in pertinent part as follows: "[T]o hang so as to 

be free on all sides except at the point of support." 

In the Pennsylvania Sand Glass case, supra, the inspector issued a citation based on his belief that someone had 

performed work under a scrubber motor which had been lifted 

up in the air by a chain hoist and tied off with a safety 

ch.ain. The inspector believed that maintenance work was 

required to be performed in the area under the motor while it 

was in that suspended position. In addressing the question 

as to whether the standard applied to the motor, even though 

it appeared under a "materials storage and handling" general 

regulatory section, I concluded that "it may be applied to a 

situation where it is established that men are working under 

any suspended loads, whether it be 'materials', as that term 

is commonly understood, or motors or other equipment," 

1 FMSHRC 1208. Although I concluded that the cited section 

was applicable, I vacated the citation on the ground that the 

inspector failed to describe the alleged violative condition 

with any particularity, and that he personally did not 

observe anyone working under any suspended load. 

The facts presented in the Pennsylvania Sand Glass case 

are clearly distinguishable from the facts presented in the 

instant case. In Pennsylvania Sand Glass, the inspector's 

90 
rationale for issuing the citation was based on his belief 

that someone was working under a motor while it was suspended 

in the air and held in that position by a chain lifting apparatus. In the case at hand, there is no evidence that the 

conveyor belt structure which fell was tied to any crane or 

other lifting apparatus, or was otherwise suspended at the 

time of the accident. The evidence established that one end 

of the conveyor piece in question had been lifted up by means 

of a front-end loader and placed against the side of the bin, 

while the other end remained on the ground at an angle. 

Further, once placed in that position by the end loader, the 

loader 1 t the area and was not holding the end which had 

been laid to rest against the bin. Under these circumstances, 

I cannot conclude that the conveyor section which fell was a 

suspended load within the meaning or intent of section 

56.16009, nor can I conclude that the cited section is applicable on the facts here presented. 

I take note of the fact that the "condition or practice" 

cited by the inspector on the face of his citation makes no 

reference to any "suspended loads." However, the abatement 

and termination notice indicated that abatement was achieved 

by informing all employees of the hazards concerning "suspended loads." The testimony established that the end of the 

conveyor which fell was not secured to the end of the bin by 

a safety chain which is normally used for this purpose. While 

it may be true that the accident could have been prevented by 

securing the safety chain, the respondent here is not charged 

with any safety infraction for failure to secure the end of 

the conveyor to the bin. The respondent is charged with a 

violation that requires men to stay clear of a suspended load, 

and MSHA's theory is that the conveyor piece which fell was 

suspended. On the facts of this case, I cannot conclude that 

the petitioner has established a violation of section 56.16009. 

ORDER 

In view of the foregoing findings and conclusions, section 104(a) Citation No. 2660902, January 9, 1986, 30 C.F.R. 

§ 56.16009, IS VACATED, and the petitioner's civil penalty 

proposal IS DISMISSED. 

91 
Distribution: 

Rebecca A. Siegel, Esq., Office of the Solicitor, U.S. 

Department of Labor, 525 Griffin Street, Suite 501, Dallas, 

TX 75202 (Certified Mail) 

E. E. Clark, Secretary-Treasurer, Amarillo Road Company, P.O. 

Box 32075, Amarillo, TX 79120 (Certified Mail) 

/fb 

92 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 13 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

RONNIE D. BEAVERS, 

DONALD L. BROWNING, 

ROBERT L. CARPENTER, 

EVERETT D. CURTIS, 

LARRY L. EFAW, 

ROGER LEON ERWIN, 

CHARLES W. FOX, 

LESTER D. FREEMAN, 

LARRY F. HUFFMAN, 

HARRY EDWIN HURST, 

ROBERT HURST, 

GARY.C. KNIGHT, 

LARRY LANTZ, 

MICHAEL L. MARRA, 

WILFORD MARSH, JR., 

DAVID R. MARTIN, 

DANNIE M. MAYLE, 

CHARLES W. McGEE, 

CHARLES F. MURRAY, 

WALTER F. MURRAY, 

LARRY NORRIS, 

CLARA Y. PHILLIPS, 

KENNETH D. SHOCKEY, 

RICHARD D. SNIDER, 

JESSE L. WARD, 

BEDFORD WibFONG, JR., 

Complainants 

and 

UNITED MINE WORKERS OF AMERICA,: 

Intervenor 

v. 

KITT ENERGY CORPORATION, 

Respondent 

93 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 85-73-D 

MORG CD 84-1 

Kitt No. 1 Mine 
Appearances: 

Before: 

SUPPLEMENTAL DECISION 

Frederick W. Moncrief, Esq., Office of the 

Solicitor, U.S. Department of Labor, Arling~ 

ton, Virginia, for Complainants; 

Mary.Lu Jordan, Esq., United Mine Workers of 

America, Washington, D.C., for Intervenor; 

B. K. Taoras, Esq., Kitt Energy Corporation, 

Cleveland, Ohio, for Respondent. 

Judge Maurer 

I issued a decision on the merits in this case on September 10, 1986. In that decision, I found that the complainants 

had established that they had been discriminated against by 

respondent in violation of section 105(c) of the Federal Mine 

Safety and Health Act of 1977 (the Act). At that time, I. 

ordered the parties, by counsel, to communicate for the purpose of stipulating to the extent possible the amounts of 

monetary rel f due each of the named complainants, as well 

as the amount of attorney fees that may be awarded to counsel 

for the intervenor, United Mine Workers of America, who had 

intervened on the side of the complainants. 

The parties were able to stipulate the amounts due the 

individual complainants if I did not allow any award based 

on the overtime claim pressed by the UMWA, and for the reasons that follow I will not. 

The basis for the UMWA's claim that the complainants are 

due some overtime pay is that the operator employed part of 

his workforce on the two weekends which were included within 

the back pay period in issue. Therefore, UMWA's position is 

that the operator should reimburse complainants in an amount 

which reflects the fact that arguably some unspecified portion of the 26 of them would have worked the two weekends in 

question, or some part thereof. They propose that each complainant be awarded a percentage of his or her Saturday and 

Sunday pay that exactly matches the percentage of the operator's workforce that worked on that day. 

The Secretary of Labor parts company with the UMWA on 

this issue. While agreeing that reimbursement for lost overtime is generally recoverable, he states that this is an 

atypical case. The more typical case being one which involves long periods of unemployment where the loss of overtime earnings is clearly demonstrable. Here, he asserts, 

and I concur, that it is speculative at best whether any 

overtime opportunities were lost to these complainants. 

The operator correctly points out that the burden of 

proof on damages in this case is on the complainants. They 

must establish by a preponderance of the evidence that they 

94 
in fact lost wages for overtime during the time they were laid 

o • There is no evidence in this record of which complainants, if any of--:them, would have worked overtime on any particular Saturday or Sunday during the layo , and therefore 

I find the UMWA's claim that all are entitled to some portion 

of overtime pay during the two weekends herein involved too 

speculative. The Secretary of Labor, appearing on behalf of 

the complainants, does not support this claim for overtime. 

The UMWA, appearing as an intervenor and a representative of 

the miners, has failed to carry the burden of proof on this 

issue. I therefore will award no back pay for overtime. 

A second issue the parties were unable to resolve 

amongst themselves was appropriate attorney fees, if any be 

appropriate, to be awarded the UMWA, or it's staff attorney, 

for its appearance and participation in this case as an 

intervenor. 

Section 105(c) (3) of the Act provides that "[w]henever 

an order is issued sustaining the complainant's charges under this subsection, a sum equal to the aggregate amount of 

all costs and expenses (including attorney's fees) as determined by the Commission to have been reasonably incurred by 

the miner, applicant for employment or representative of 

miners for, or in connection with, the institution and prosecution of such proceedings shall be assessed against the 

person committing such violation." 

Contrary to the operator's position, attorney fees may 

be assessed in proceedings under any part of subsection (c) 

of section 105 of the Act. See, e.g., Secretary on behalf 

of Ribel v. Eastern Associatecr-coal Corp., 7 FMSHRC 2015, 

2023 (1985), where the Commission held that "private attorneys' fees may be awarded to a prevailing miner in a 

Secretary-initiated section 105(c) (2) discrimination proceeding, provided that private counsel's efforts are nonduplicative of the Secretary's efforts and further, that 

private counsel contributes substantially to the success of 

the litigation." 

In Munsey v. FMSHRC, 701 F.2d 976 (D.C. Cir. 1983), 

which in turn relied on Nat'l Treasury Employees Union v. 

Dept. of the Treasury, 656 F.2d 848 (D.C. Cir. 1981), the 

Court of Appeals for the District of Columbia held that 

unions and union attorneys are entitled to costs and attorney fees for representation of union members. The Court 

also held that if the fees are awarded to the attorney 

personally (not the union), the attorney is entitled to 

receive market value of her services. The fact that 

the attorney is a salaried employee of the union does not 

ct the size of the to which she is otherwise entitled. 

95 
In this case, the UMWA as intervenor was a representative of miners and Mary Lu Jordan, Esq., was the UMWA staff 

attorney representing the complainants along with counsel 

for the Secretary, who instituted these proceedings. 

Ms. Jordan has submitted a petition for attorney fees detailing 36.81 hours of time spent on the case at a requested 

hourly fee of $110.00, for a total requested attorney fee of 

$4,049.10. The operator, while objecting to the fee in toto 

and in general has failed to cite with sufficient specificity 

any portion of it that relates to duplicative or insubstantial efforts on the part of Ms. Jordan. My review of her 

fee petition and her work product in this case leads me to 

the conclusion that she did indeed significantly participate 

in the case and contributed in a substantial way to the success of the litigation. I also find that the hours and 

market rate claimed by her are reasonable. Accordingly, I 

am going to award the requested attorney fee of $4,049.10. 

ASSESSMENT OF CIVIL PENALTIES 

The Secretary of Labor, by counsel, filed his complaint 

of discrimination in this case seeking inter alia, "an order 

assessing appropriate civil, penalties against Respondent for 

its violations of section lOS(c) ." Since this case was submitted on stipulated facts, I have evaluated evidence concerning the statutory criteria set forth in section llO(i} 

of the Act only insofar as.evidence was available in the 

record to do so. Where no evidence of certain criteria was 

included in the stipulated record, such as the operator's 

history of previous violations, the size of the operator's 

business and the effect on the operator's ability to continue in business, I have considered these criteria in the 

light most favorable to the operator. Having done so, I 

consider a civil penalty of $1,000 for a violation of section 105(c} of the Act involving 26 individuals a de 

minimus assessment under the totality of circumstances 

contained in the stipulated record. 

ORDER 

1. It is ORDERED that within 30 days of the date of 

this Supplemental Decision the operator pay: 

a. Complainant R. Beavers the amount of $974.11. 

b. Complainant D. Browning the amount of $924.53. 

c. Complainant R. Carpenter the amount of $856.59. 

d. Complainant E. Curtis the amount of $924.53. 

e. Complainant L. Efaw the amount of $851.64. 

96 
f. Complainant R. Erwin the amount of $851. 64. 

g. Complainant c. Fox the amount of $851.64. 

h. Complainant L. Freeman the amount of $1,136.09. 

i. Complainant L. Huffman the amount of $856.59. 

j. Complainant H. Hurst the amount of $918.21. 

k. Complainant R. Hurst the amuunt of $918.21. 

1. Complainant G. Knight the amount of $924.53. 

m. Complainant L. Lantz the amount of $828.97. 

n. Complainant M. Marra the amount of $924.53. 

o. Complainant W. Marsh the amount of $871.78. 

p. Complainant D. Martin the amount of $871.78. 

q. Complainant D. Mayle the amount of $851.64. 

r. Complainant C. McGee the amount of $1,698.84. 

s. Complainant C. Murray the amount of $851.64. 

t. Complainant W. Murray the amount of $851.64. 

u. Comp1ainant L. Norris the amount of $850.10. 

v. Complainant C. Phillips the amount of $851.64. 

w. Complainant K. Shockey the amount of $851.64. 

x. Complainant R. Snider the amount of $871.78. 

y. Complainant J. Ward the amount of $1,698.84. 

z. Compl nant B. Wilfong the amount of $924.53. 

2. It is FURTHER ORDERED that the operator pay attorney 

fees of $4,049.10 to Mary Lu Jordan, Esq., within 30 days of 

the date of this Supplemental Decision. 

3. It is FURTHER ORDERED that the operator pay a civil 

penalty of $1,000 to the Secretary within 30 days of the date 

of this Supplemental Decision. 

R 

14M~ Maurer 

Admi 1strative Law Judge 

97 
Distribution: 

Frederick w. Moncrief, Esq., Office of the Solicitor, U. S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

St., N.W., Washington, DC 20005 (Certified Mail) 

B. K. Taoras, Esq., Kitt Energy Corporation, Standard Oil Bldg., 

7th Floor, 200 Public Square, Cleveland, OH 44114 (Certified 

Mail) 

yh 98 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 14 1987 

DAIRL EDDINGTON, 

Complainant 

v. 

FALCON COAL COMPANY, 

Respondent 

Before: Judge Maurer 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. ,KENT 86-164-D 

BARB CD 86-24 

On January 30, 1986, the complainant, Dairl Eddington, 

filed a complaint of discrimination under section 105(c) (2) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq., "the Act," with the Secretary of Labor, Mine 

Safety-and Health Administration (MSHA) against the Falcon 

Coal Company. That complaint was denied by MSHA and 

Mr. Eddington thereafter filed a complaint of discrimination 

with this Commission on his own behalf under section 105(c) (3) 

of the Act. Mr. Eddington alleges that he was discriminated 

against in violation of section 105(c) of the Act because he 

was disqualified for a position in the mine that was subsequently filled by a relative of the superintendent. More 

specifically he alleges as follows: 

Robert Spencer, inside boss, told Henry Coots and 

I on the outside to do on that day the same as we 

had done on Friday 13th. 

Inside, Robert then told me to build brattish. 

The material sent in was not enough. The materials sent were plaster or sealer was froze, 

and I could only use half of it. Then I had to 

take the scoop outside to get mandor, asking 

Robert where it was he didn't know, so I had to 

go find Kash Mullins, Supertindent, he then told 

me where the mandor was. Then when I found the 

mandor I had to move other materials to find it. 

Then running out of material again we had to send 

Ronnie Whitaker and another worker outside to get 

the rest of the material. They brought sack 

cloth and cap boards. They also didn't brino any 

4 inch block or 2 inch header block because they 

were out. 

99 
At 2:30 Robert Spencer told me, I was wanted on the 

outside by Kash Mullins. Before leaving the job I 

asked was the brattish he was working on alright. 

Roberts' reply to the question was "Yes, Dairl it's 

Ok• II 

On arriving outside it was about 2:45, Kash Mullins 

started to talk, then he said wait a minute, he then 

came back with Robert Spencer. They then told me 

why they were disqualifing me. Kash said because of 

being out of the mines as long as I had been I was 

no longer an experienced miner. They evaluated me 

on the scoop for the length of time, I had operated 

the scoop in their presence, and in their opinion I 

should have been faster. Robert Spencer, said I was 

a good worker, and so did Kash. But that I wasn't 

putting out enough production and that they would be 

glad to have me work as an inexperienced miner. They 

also said you had to be able to operate something 

other than a scoop. 

I operated a front end loader and built brattish. 

Brattish person and scoop operator are different 

classification. 

The Falcon Coal Company thereafter responded, inter 

alia, that the complaint· fails to state a claim upon which 

relief can be granted under section 105(c). That contention 

may be taken as a motion to dismiss under Rule 12(b) (6) of 

the Federal Rules of Civil Procedure. For the purposes of 

such a motion, the well pleaded material allegations of the 

complaint are taken as admitted. 2A Moore's Federal Practice, ,[ 12. 08. A complaint should not be dismissed for insufficiency unless it appears to a certainty that the complainant is entitled to no relief under anv state of facts 

which could be proved in support of a claim. Pleadings are, 

moreover, to be liberally construed and mere vagueness or 

lack of detail is not grounds for a motion to dismiss. Id. 

Section 105(c) (1) of the Act provides as follows: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere with the exercise of the statutory rights of 

any miner, representative of miners or applicant 

for employment in any coal or other mine subject 

to this Act because such miner, representative of 

miners or applicant for employment has filed or 

made a complaint under or related to this Act, 

Ioo 
including a complaint notifying the operator or 

the operator's agent, or the representative of the 

miners at the coal or other mine of an alleged danger or safety or health violation in a coal or 

other mine or because such miner, representative 

of miners or applicant for employment is the subject 

of medical evaluations and potential transfer under 

a standard published pursuant to section 101 or because such representative of miners or applicant for 

employment has instituted or caused to be instituted 

any proceedings under or related to this Act or has 

testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on 

behalf of himself or others of any statutory right 

afforded by this Act. 

In order to establish a prima facie violation of section 

lOS(c} (1) the complainant must prove that he engaged in an 

activity protected by that section and that the alleged discrimination was motivated in any part by that protected actiyi ty. Secretary ex. rel. David Fasula v. Consolidation 

Coal Company, 2 FMSHRC 2786 (1980), rev'd on other grounds, 

sub nom, Consolidation Coal Company v. Secretary, 663 F.2d 

1211 (3rd Cir., 1981}. In this case Mr. Eddington asserts 

that he was discriminated against because he was wrongfully 

disqualified for a position in the mine which subsequently 

was filled by a relative of the superintendent. Assuming 

that this allegation is true, it is clearly not sufficient 

to create a claim under section lOS(c) (1) of the Act. That 

section does not provide redress for a wrongful disqualification for a particular job that may have been unfair if 

that disqualification was not caused in any part by an activity protected by the Act. Accordingly, the complaint 

herein must be denied and the case dismissed. 

Distribution: 

Dairl Eddington, P. 0. Box 15, Viper, KY 41774 (Certified 

Mail) 

George S. Brooks II, Esq., 1200 First Securitv Plaza, 

Lexington, KY 40507 (Certified Mail} 

101 

yh 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 15 1987 

JIM WALTER RESOURCES, INC., 

Contestant 

: 

. . CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

DECISION 

Docket No. SE 87-29-R 

Citation No. 2810754; 12/9/86 

Bessie Mine 

Appearances: R. Stanley Morrow, Esq. and Harold D. Rice, Esq., 

Birmingham, Alabama, for Contestant; 

William Lawson, Esq., Office of the Solicitor, 

u. s. Department of Labor, Birmingham, Alabama 

for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

Docket Number SE 87-29-R is a notice of contest filed by Jim 

Walter Resources, Incorporated on December 12, 1986 to review a 

Citation, issued December 9, 1986, and a underlying safeguard 

notice issued December 5, 1986 by an inspector of the Mine Safety 

and Health Administration under Section 104(a) of the Act. 

In this citation December 19, 1986 was provided as the date 

that termination was due. Subsequently, this date was extended 

until January 19, 1987. 

On December 12, 1986 Contestant filed a Motion For Expedited 

Proceedings. On December 12, 1986, this case was assigned to me 

by Chief Judge Paul Merlin. On December 12, 1986 in a conference 

call between Contestant, Respondent, and the undersigned it was 

agreed that trial for this matter be scheduled for January 5, 

1987. By Notice of Hearing dated December 19, 1986 Contestant's 

Motion For Expedited Proceedings was granted and the matter was 

set for hearing in Birmingham, Alabama on January 5, 1987. The 

hearing was held as scheduled. Bill Pitts, Gerald Tuggle, James 

A. Jones, Stephen w. Vaughn, and Edward Scott testified for 

Respondent. Bobby Taylor testified for Contestant. 

102 
Applicable Statute and Regulations 

Section 314Cb) of the Act which also appears in 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. 

Notice to Provide Safeguards and Citation 

The subject notice to provide safeguards dated December 5, 

1986 provides as follows: 

Present means of controlling the underground rail 

traffic is inadequate in that a person designated by 

the operator to give clearance was not provided nor 

blocked signals being used. 

This is a notice to provide safeguard requiring all 

underground rail traffic to require clearance from a 

person so designated by the operator or block signals 

to be installed and maintained in an operative condition to provide clearance. 

The subject citation, dated December 9, 1986, provides as 

follows: 

mine. 

The mine operator failed to comply with a notice to 

provide safeguard number 2810752 issued December 5, 

1986 that required all underground rail traffic to 

require clearance from.a person so designated by the 

operator or block·signals to be installed and maintained in an operative condition to provide clearance. 

No plan nor work was presented to comply with the safeguard on the termination date due December 9, 1986 at 

8 o'clock a.m. 

Stipulations with Reguard to Jurisdiction 

The parties stipulated as follows: 

1. The operator is the owner and operator of the subject 

2. The operator and the mine are subject to jurisdiction of 

the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over this 

case. 

4. The MSHA Inspector who issued the subject citation was a 

duly authorized representative of the Secretary. 

103 
5. A true and correct copy of the subject citation was 

properly served upon the operator. 

Findings of Fact and Discussion 

In Contestant's Bessie Mine, aside from walking, the only 

way of transporting men and material from the entry to the 

various work area is by way of tranportation vehicles such as 

jeeps, locomotives, or trip motors, all of which must travel 

along a single track. This track is used for transportation of 

vehicles going into and out of the mine. These transporation 

vehicles use the track during every shift. In order to prevent 

head-on collisions Contestant has furnished each transportation 

vehicle with a two-way telephone-radio which gets its power from 

a trolley line which is also used to power the vehicle. In 

general, according to the uncontradicted testimony of Inspector 

Gerald Tuggle, and Contestant's motorman James A. Jones who testified for Respondent, an operator when leaving a certain area, 

such as Header Number 3, would call to say that he is leaving 

Header Number 3 and going to Header Number 4. These calls are 

done in transit and the operator does not wait for any response. 

According to the uncontradicted testimony of Inspector 

Tuggle and motorman Jones, the track in the Bessie Mine contains 

steep upgrades followed by steep downgrades especially throughout 

the Palos Shaft between Header Number 3 and Header Number 7. 

Indeed, the uncontradicted testimony of Tuggle and Jones 

establishes that the slope of the upgrades and downgrades are so 

steep, as to create numerous blind spots where vision is so 

limited that an operator of a vehicle at that point is unable to 

see a vehicle coming at him from the opposite direction and that 

in essence these conditions are "unique" to Bessie Mine (Tr. 106). 

Blind spots are also present in areas where the track leaves the 

belt and enters a s curve. Mr. Tuggle's uncontradicted testimony 

established that other mines may have upgrades and downgrades, 

but they are not as bad as in the Bessie Mine. Also, there are 

areas of the track that have rock dust, debris or sand which 

prevent a vehicle's wheels from fully touching the rail, thus 

eliminating a ground for the telephone-radio and causing static 

or interference. According to the uncontradicted testimony of 

Tuggle, sand is used "a lot" due to the hills and hollows of the 

track at Bessie Mine. 

Contestant's only witness, Safety Inspector Bobby Taylor, 

stated that in his opinion the present telephone-radio system of 

preventing h~ad-on collisions or collisions in blind spots is 

"not inadequate." In essence he said that in general in 

approaching blind spots one should slow down and operate at a 

speed which is consistent with track conditions. Although 

excessive speed might be a contributing factor to collisions, the 

104 
issue here is whether Contestant's telephone-radio system, when 

used while traveling at proper speed, resulted in any increased 

risk of collision. 

Taylor testified that when approaching a blind spot it is 

possible to be warned by the lights of an oncoming vehicle. He 

testified that when the vehicle lights are not functioning one 

can see cap lights of the miners riding in the vehicle. On 

cross-examination Jones admitted that it is pQssible to see the 

light of a oncoming jeep before a collision. However 1 it can not 

be found that the risk inherent in approaching a blind spot, 

i.e., not knowing for certainty that there is not any vehicle 

beyond the blind spot, is minimized to any great degree by being 

able to see the light on the oncoming vehicle. There is no clear 

convincing evidence as to the distance which one can see and be 

warned by a light of the oncoming vehicle especialy approaching 

the end of a blind area or going around an S curve at normal 

speed. 

The balance of the evidence indicates that the present 

system of controlling traffic creates a risk of injury due to the 

specific conditions of the contour of the track of the Bessie 

Mine. Indeed, even Taylor indicated that the present system 

could work "with certain improvements" CTr. 229). Considerable 

weight was accorded the testimony of Jones and Scott due to the 

extensive nature of their experience operating and riding 

vehicles along the track of Bessie Mine. In this connection it 

is noted that Jones has been a motorman for 6 years, and Scott 

worked as a motorman for 20 years and as a fire boss for 12 years. 

In essence, their testimony corroborates the opinion of Tuggle 

that under the present system whenever transportation enters a 

blind spot there is uncertainty in not knowing whether another 

vehicle is coming in the opposite direction or is stuck beyond 

the blind spot. Due to the fact that the responsibility of the 

operator of a vehicle along the track is only to indicate on the 

telephone-radio that he is leaving a point to go to another 

point, he can only be warned of a oncoming vehicle or a vehicle 

disabled in a blind spot if the second vehicle has communicated 

it is leaving a certain area and the first vehicle heard the 

transmission. The oncoming vehicle, similarly, will avoid risk 

of collision only if its telephone-radio received communication 

from the first vehicle as to its destination. However, the 

uncontradicted testimony of Tuggle was that material on the 

track, a condition peculiar to Bessie Mine, prevents a good 

ground for the telephone-radio and thus prevents adequate 

~eception and transmission. Further, due to the numerous blind 

spots, caused by steep upgrades and downgrades of the track, and 

the fact that there is only a single track that carries traffic 

every shift, the risk of collision is quite high. Indeed, 

Contestant's witness .Taylor testified that about once a week 

while traveling in a vehicle underground he has unexpectantly met 

a vehicle coming in the opposite direction and that the vehicle 

operator did not hear communications from Taylor's vehicle. 

Tuggle, Scott and Jones also testified to similar occurrences. 

105 
It is thus found that the present system, which allows a 

vehicle operator to proceed into a blind area without receiving 

positive clearance, increased the risk of collision. Section 

304(b) of the Act which also appears at 30 C.F.R. § 75.1403, in 

essence authorizes a Federal Mine Inspector to issue safeguards 

which in his judgment will "minimize hazards" with respect to 

transportation of men and materials. It is clear that the safeguard issued by Tuggle on December 5, 1986 falls within the 

purview of the above section. This safeguard requires underground rail traffic to require clearance from a person designated 

by the operator or in the alternative block signals are required. 

According to the uncontradicted testimony of Tuggle, under a 

dispatch system a vehicle operator must call the dispatcher 

before proceeding into a certain area. The operator can proceed 

into the area only after the dispatcher tells him the area is 

clear. In a Block System, according to the uncontradicted testimony of Scott and Tuggle, an operator of a vehicle upon entering 

an area turns on a traffic light. This light remains on until 

the operator clears the area and turns the light off. 

Taylor testified that the present system is better than a 

dispatcher and as good or better than a Block System. He testified that in the 9 months that he worked at Bessie Mine, which 

has neither a Block System nor a dispatcher, there were no wrecks. 

In contrast, he said that at the Number 3 Mine which has a Block 

System and a dispatcher, in any 9 month period since 1973 there 

have been more wrecks. However, there were no records produced 

to provide evidence that the accidents at Number 3 Mine were 

caused solely by a malfunction of a dispatcher or Block System. 

They could have resulted from negligence or other causes. What 

is clear is that the present system creates a risk of injury and 

that the safeguard in the judgment of Tuggle will minimize the 

risk. This opinion in essence was corroborated by the testimony 

of Scott and Taylor. Considerable weight was placed on their 

testimony due to their extensive experience operating and riding 

on underground transportation vehicles especially at the Bessie 

Mine. 

The traffic control systems required in the safeguard are 

clearly not fool proof. On cross-exmination Tuggle indicated 

that there could be people who would not call a dispatcher as 

required, and Taylor indicated that a dispatcher might erroneously give clearance to two vehicles to enter the same area at 

the same time. It is clear that any system will not decrease the 

risk of injury if there is human -error. There is no way to 

insure 100 per cent against human error. However, a dispatcher 

system used properly, will insure that a vehicle will not enter a 

blind spot unless it has positive clearance from a dispatcher. 

This will minimize the hazard of collision inherent in the 

present system. 

106 
Taylor indicated that with the Block System there is a 

continuous problem of lights going out. More weight was placed 

on the testimony of Scott due to his 20 years experience 

operating and traveling underground vehicles in mines with a 

Block System in his job as fire boss. It was his testimony that 

although block lights could go out, these are one of the first 

items a fire boss inspects. It is concluded that a Block System, 

which is maintained, will thus minimize risk of collision in 

blind spots, as under that system a vehicle would not enter an 

area containing a blind spot if the light is lit. Accordingly, 

the hazards of the present system will be minimized. 

At the hearing no evidence was presented to rebut statements 

in the December 9, 1986 Citation and testimony of Tuggle that 

safeguard 2810752 has not been complied with. 

Based on all of the above, it is concluded that the safeguard of December 5, 1986 was properly issued. The Contestant 

has failed to comply with the safeguard issued on December 5, 

1986. As such, the citation (2810054) of December 9, 1986 was 

properly issued. 

At the hearing counsel for both parties presented opening 

arguments. At the conclusion of the hearing counsel for both 

parties presented proposed findings of facts and posthearing 

arguments. In reaching my decision I have considered all these. 

At the hearing the parties additional stipulations were 

offered as follows: 

1. The history of the company with reguard to violations is 

average. 

2. Imposition of a penalty will have no effect on the 

ability of the operator.to continue in business. 

3. The size of the operator is medium. 

4. The negligence of the operator, in the violation 

referred to in citation 2810054 is low. 

5. The gravity of the violation contain in citation 2810054 

with reguard to the likelihood of an accident or injury was as 

testified to by T~ggle. 

6. The violation referred to in citation 2810054 was not 

abated on the respresentation of counsel. This is not considered 

to be a lack of good faith. 

107 
ORDER 

It is ORDERED t.hat the Contest, filed on December 12, 1986, 

contesting citation 2810054, be DISMISSED. 

~vram 

~~ Weisberger 

Administrative Law Judge 

Distribution: 

Harold o. Rice, Esq., and R. Stanley Morrow, Esq., Jim Walter 

Resources, Inc., P. O. Box C-79, Birmingham, AL 35283 (Certified 

Mail) 

H. Gerald Reynolds, 13sq., Jim Walter Corporation, 1500 North Dale 

Mabry Highway, Tampa, FL 33607 (Certified Mail) 

William Lawson, Esq., Office of the Solicitor, u. s. Department 

of Labor, 2015 2nd Avenue, Suite 201, Birmingham, AL 35205 

(Certified Mail) 

dcp 

108 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 211987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. SE 86-83 

A.C. No. 01-01401-03628 

No. 7 Mine 

DECISION 

Appearances: William Lawson, Esq., Office of the Solicitor, 

u.s. Department of Labor, Birmingham, Alabama, 

for Petitioner; Harold Rice, Esq., and R. Stanley 

Morrow, Esq., Birmingham, Alabama, for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

In this proceeding, the Secretary seeks civil penalties for 

two alleged violations of the mandatory standard contained in 30 

C.F.R. § 75.316. In one, Respondent is charged with violating 

its approved ventilation, methane and dust control plan by 

failing to maintain line curtain to within ten feet of all faces 

in all working places inby the last open crosscut at all times 

except while roof bolting. With respect to this violation, the 

parties submitted the case for decision on stipulated facts and 

an agreed-upon issue. The other citation involves an alleged 

failure to comply with the approved ventilation plan in that 

methane in excess of 2.0 percent (modified by agreement at the 

hearing to 1.0 percent) was detected in the Southeast and South 

bleeder entries of the subject mine. Evidence was taken on this 

violation at the hearing in Birmingham, Alabama, on October 22, 

1986. Ronald James Soneff, II, William Jerry Vann, and Kenneth 

Ealey testified on behalf of the Secretary. Ted Sartain 

testified on behalf of Respondent. Both parties have submitted 

post hearing briefs. Based on the entire record and considering 

the contentions of the parties, I make the following decision. 

109 
PRELIMINARY FINDINGS OF FACT 

Respondent at all times pertinent hereto was the owner and 

operator of an underground coal mine in Tuscaloosa County, 

Alabama, known as the No. 7 Mine. Respondent is medium sized and 

its history of prior violations is average. The imposition of 

penalties herein will not affect Respondent's ability to continue 

in business. The violations charged were abated in good faith. 

ORDER NO. 2605979 

On March 13, 1986, Federal Mine Inspector Gerald N. Tuggle 

issued a withdrawal order under section 104(d)(2) of the Act 

alleging a violation of 30 C.F.R. § 75.200. It was modified on 

March 24, 1986, to charge a violation of 30 C.F.R. § 75.316 

rather than § 75.200. The parties have stipulated that the 

following condition was present in the No. 8 section of the 

subject mine: the continuous mining machine had mined the 

crosscut to the left on the curtain Cbrattice line) side and the 

end of the curtain terminated in excess of 10 feet from the 

deepest point of penetration of the face to the straight of the 

entry. The parties have agreed that the approved ventilation, 

methane and dust control plan in effect at the subject mine when 

the order.was issued required that the line brattice be 

maintained to within 10 feet of the area of deepest penetration 

of all faces in all working places inby the last open crosscut at 

all times except while roof bolting. 

The parties have agreed that the issue before me is whether 

Respondent was required to maintain line curtain to within 

10 feet of all faces, or only the working faces from which coal 

is being extracted or was most recently extracted. The same 

issue was decided by me in a case between the same parties in 

September 1985. Secretary v. Jim Walter Resources, Inc., 7 

FMSHRC 1471 (1985). I decided that Respondent was required to 

maintain the line curtain to within 10 feet of all faces. 

Respondent did not seek Commission review, and the decision 

became a final decision of the Commission. 30 u.s.c. § 823(d)(l). 

Ordinarily, the doctrine of ~ judicata or collateral estoppel 

would preclude the relitigation of an issue between the same 

parties which was previously litigated. 46 Am. Jur. Judgments 

§ 397 (1969); lB Moore's Federal Practice§ 0.405 (1982); 

RESTATEMENT (SECOND) OF JUDGMENTS, §§ 27, 83 (1982); KENNETH 

DAVIS, ADMINISTRATIVE LAW TREATISE, § 21:1-21:9 (2d Ed. 1983); 

Commissioner v. Sunnen, 333 U.S. 591 (1948); United States v. 

Utah construction & Mining Co., 384 U.S. 394 (1966); Montana v. 

United States, 440 U.S. 147 (1979). However, the same issue 

between the same parties was relitigated in the case of Jim 

Walter v. Secretary, 8 FMSHRC 568 (1986), review pending-:---ln 

that case Judge Koutras held that the plan requirement that line 

brattice be maintained to within 10 feet of all faces means all 

working faces. The question of issue preclusion was apparently 

110 
not raised by the Secretary in that case. Because the issue has 

been decided in conflicting ALJ decisions, and is presently 

before the Review Commission, I will address the merits of the 

case. 

30 C.F.R. § 75.316 provides in part as follows: 

A ventilation system and methane and dust control plan 

••• suitable to the conditions and the mining system 

of the coal mine and approved by the Secretary shall be 

adopted by the opera tor • • • 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* * * [Emphasis added]. 

The ventilation plan in this case, as in the other cases, 

was changed in 1972 to include the following language: 

Line brattice shall be maintained to within 10 feet of 

the area of deepest penetration of all faces in all 

working places inby the last open crosscut at all times 

except while roof bolting and servicing as s~ated in 

the plan. 

This provision was imposed upon Respondent in 1972 because 

of the high methane liberation in its mines. For this reason, 

the Secretary required "additional or improved equipment," beyond 

that required by 30 C.F.R. § 75.302-l(a), which mandated that 

line brattice be maintained to within 10 feet of active working 

faces. I conclude that the requirement imposed by the Secretary 

is within his authority, and that the term "all faces" includes 

idle faces. The citation was properly issued. The parties have 

stipulated that the proposed penalty of $750 is appropriate for 

the violation. 

CITATION NO. 2605452 

FINDINGS OF FACT 

On February 20, 1986, MSHA ventilation specialist 

William Vann inspected the subject mine, after being informed by 

MSHA safety inspector Jerry Tuggle that the mine was having 

problems with high methane concentrations in the area of the No.· 

1 longwall section. Inspector Vann was accompanied by Ted 

Sartain, ventilation engineer for Jim Walter, and by a union 

representative. He took methane readings with three separate 

mechanical instruments, three in the Southeast bleeder entries, 

111 
and four in the South bleeder entries. The former varied from 

2.1 percent methane to 2.5 percent. Two bottle samples were 

taken and were later analyzed at the MSHA laboratory. The 

samples showed 2.13 percent and 2.21 percent methane. The 

readings in the South bleeder entries varied from 1.4 percent to 

3.06 percent and included readings of 2.4 percent, 2.6 percent, 

2.7 percent and 3.0 percent methane. Three bottle samples were 

taken and analyzed at 2.32 percent, 2.33 percent and 3.05 percent 

methane. Mr. Sartain also took methane readings which esentially 

agreed with those of Inspector Vann. The area covered by the 

Inspector totalled approximately 6600 feet. Because of these 

findings, the Inspector issued an imminent danger withdrawal 

order under section 107Ca) of the Act requiring Respondent to 

withdraw from the No. 1 longwall section and the Southeast main 

and South entries behind the longwall. He also issued a 104{a) 

citation charging a violation of the ventilation, methane and 

dust .control plan. At the time the order and citation were 

issued, the longwall was energized and in operation. 

Ronald Soneff, a fireboss at Jim Walter, made an inspection 

of the No. 1 longwall section in the latter part of 1984. He 

found and recorded the finding of 4 percent methane in the South 

bleeder entries. The following day he was told not to inspect 

the area thereafter. After a management change, he returned to 

firebossing the area in mid-1986. 

The subject mine is a gassy mine. It liberates in excess of 

19 million cubic feet of methane in a 24 hour period. For this 

reason it is subject to spot inspections under section 103(i} of 

the Act every 5 working days. The subject mine has experienced 

52 methane ignitions from 1977 to 1985, six of them between 

October 22, 1985 and September 24, 1986. The last one 

(September 24, 1986) occurred on the headgate side of the No. 1 

longwall section. 

The roof in the South bleeder entries is very poor and has 

been deteriorating since at least 1984. Rock falls have affected 

the ventilation in the South and Southeast bleeder entries. In 

December 1985, Inspector Vann told Ted Sartain that the roof was 

beginning to deteriorate in the bleeder entries. Sartain replied 

that Respondent was beginning to install cribs in the area. 

The ventilation System and Methane and Dust Control plan in 

effect for the subject mine on February 20, 1986 contained the 

following provision: 

All provisions of published regulations and 

criteria pertaining to ventilation and methane and .dust 

control must be followed except as noted below: 

112 
75.316-2(d)--When methane content in a ma1n 

return exceeds 1.0 volume percentum, mine 

management shall submit a plan detailing 

additional evaluation procedures and 

safeguards which will be utilized to insure 

safety. 

On August 1, 1985, Respondent requested a change in the 

ventilation plan as follows: 

Jim Walter Resources, No. 7 Mine requests that the 

methane content in the main return air courses be in 

excess of 1.0 volume percentum, but shall not exceed 

2.0 volume percentum. The following provisions will be 

complied with in this area: 

1. Fireboss examinations ••• at intervals not to 

exceed twenty four hours. 

2. Electrical equipment will not be operated in an 

area where the methane content •.• is 1.0 percentum or 

more. 

3. The main return air splits shall be examined 

immediately prior to entering a return shaft or fan. The 

methane content of the air passing through the fan shall be 

less than 1.0 volume percentum. 

The request was appr0ved February 21, 1986 by the MSHA District 

Manager in a letter reading: 

The request that the methane content in the bleeder 

entry and the Number One South East Main return air 

courses after the bleeder splits from the longwall 

panels enter these air courses be in excess of 1 

percent but not to exceed 2 percent methane has been 

reviewed and is approved for the area serving the 

Number One Longwall. 

After the order and citation were issued on February 20, 

1986, and the No. 1 Longwall was shut down, Respondent closed 

No. 11 section (a continuous miner section) and took the air from 

that section and put it on the longwall to increase the 

ventilation and reduce the methane. On February 23, 1986, 

Inspector Vann found that the volume of air was increased in the 

South and Southeast bleeder entries, and the methane content had 

been reduced to less than 1.5 percent. The order was terminated. 

The citation was terminated on February 26, 1986, when it was 

learned that the District Manager had approved the supplement to 

the ventilation plan. 

113 
ISSUE 

Whether Respondent's failure to maintain the methane content 

in the South and Southeast bleeder entries of the No. 1 longwall 

section at or below 1.0 percent was a violation of the approved 

ventilation plan. 

CONCLUSIONS OF LAW 

Respondent is subject to the provisions of the Federal Mine 

Safety and Health Act of 1977 in its operation of the No. 7 Mine, 

and I have jurisdiction over the parties and subject matter of 

this proceeding. 30 C.F.R. § 75.316 requires Respondent to adopt 

a ventilation system and methane and dust control plan. When 

such a plan is adopted and approved by the Secretary, Respondent 

is required to comply with its provisions. Zeigler Coal Company 

v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976). The provisions in the 

plan in effect at the subject mine relating to maximum 

permissible methane content are not, as counsel for the Secretary 

admits, a model of clarity. However, I believe that a fair 

reading of the letter of July 17, 1985 approving the plan shows 

that it requires adherence to the criteria in 30 C.F.R. 

§ 75.316-2 (§ 75.316-2Cd) provides that methane in a return air 

course should not exceed 2.0 percent, and that air in any active 

workings shall contain less than 1.0 percent methane) except that 

where methane in a main return exceeds 1.0 percent, a plan shall 

be submitted with detailed evaluation procedures and safeguards 

to insure safety. The "exception" thus imposes a more stringent 

requirement than the criteria in§ 75.316-2(d). I read the plan 

to require Respondent when circumstances indicate that methane 

may exceed 1.0 percent to take the steps necessary to reduce it 

below 1.0 percent. The evidence here shows a history of 

excessive methane in the area in question. It also shows that 

Respondent was aware of this fact. It further shows a seriously 

deteriorating roof condition which could be expected to disrupt 

ventilation. It shows on the date of the inspection methane 

readings far in excess of the maximum percentages, and 

approaching dangerous levels. These facts in combination show a 

violation of the ventilation plan. The request of August 1, 1985 

to increase the maximum permissible level to 2.0 percent does not 

constitute "a plan detailing additional evaluation procedures and 

safeguards which shall be utilized to insure safety." 

The steps taken after the order and citation were issued 

should have been taken earlier and would have prevented the 

excessive methane buildup. Cf. Secretary v. Youghiogheny & Ohio 

coal Company, 5 FMSHRC 1581 (1983), vacated on motion, 7 FMSHRC 

200 (1985). 

114 
The excessive methane content in the area of the mine in 

question posed a serious hazard to miners--f rom an ignition or 

mine fire, or even an explosion if the methane concentration 

increased. The conditions causing the excessive methane were 

known to Respondent, which should have taken steps to reduce it. 

The violation was very serious, and resulted from Respondent's 

negligence. Based on the criteria in section llOCi) of the Act, 

I conclude that an appropriate penalty for the violation is 

$1000. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED that Respondent shall, within 30 days from the date 

of this decision, pay the following civil penalties for 

violations found herein: 

Order 2605979 

Citation 2605452 

Distribution: 

$ 750 

1000 

Total $1750 

j

j,r;vz 5 ),lf:,,,,cft Vl d 

James A. Broderick 

Administrative Law Judge 

William Lawson, Esq., U.S. Department of Labor, Office of the 

Sollicitor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail} 

Stanley Morrow, Esq., Ha_rold ·o. Rice, Esq., Jim Walter Resources, 

Inc., P.O. Box C-79, Birmingham, AL 35283 <Certified Mail} 

slk 

115 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 211987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF SAM BALL, 

Complainant 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

: 

. 

. 

. . 

. . 

. . 

. 

. 

DISCRIMINATION PROCEEDING 

Docket No. VA 86-23-D 

NORT CD 85-9 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On November 4, 1986, the Secretary filed a motion to 

withdraw the complaint, based on a settlement agreement between 

the parties. Respondent supported the motion. By the settlement 

agreement, Respondent agreed not to discriminate against any 

miner or representative of miners in violation of the Act, and, 

in particular agreed not to discriminate against Sam Ball or any 

other miner in making job assignments because of their status as 

miners' walkaround representatives •. Respondent agreed to post a 

copy of the settlement agreement for a period of 60 days. 

On January 8, 1987, counsel for Respondent certified that 

the settlement agreement had been posted by Respondent for a 

period of 60 days. 

Accordingly, the motion to withdraw the complaint pursuant 

to the settlement agreement is GRANTED, and this proceeding is 

DISMISSED. 

j~~=~ Administrative Law Judge 

116 
Distribution: 

Mark R. Malecki, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 Certified Mail> 

Thomas c. Means, Esq., Crowell & Moring, 1100 Connecticut Ave., 

N.W., Washington, D.C. 20036 (Certified Mail) 

Sam Ball, Rt. 1, Box 197, St. Charles, VA 24282 (Certified Mail) 

slk 

117 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 211987 

WEST ELK COAL COMPANY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WEST ELK COAL COMPANY, INC., 

Respondent 

. 

. 

CONTEST PROCEEDINGS 

Docket No. WEST 86-28-R 

Citation No. 2336427; 10/23/85 

Docket No. WEST 86-29-R 

Citation No. 2336428; 10/23/85 

Docket No. WEST 86-30-R 

Citation No. 2336430; 10/24/85 

Docket No. WEST 86-31-R 

Citation No. 2833301; 10/30/85 

Docket No. WEST 86-32-R 

Citation No. 2833302; 10/30/85 

Mt. Gunnison No. 1 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-73 

A.C. No. 05-03672-03542 

: Mt. Gunnison No. 1 Mine 

DECISIONS 

Appearances: 

Before: 

Thomas F. Linn, Esq., Legal Department, 

Anaconda Minerals Company, Denver, Colorado, 

for Contestant/Respondent; 

James H. Barkley, Esq., Office of the 

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

Colorado, for Respondent/Petitioner. 

Judge Koutras 

118 
Statement of the Proceedings 

These consolidated proceedings concern five Notices of 

Contest filed by the West Elk Coal Company, Inc., challenging 

the validity of five section 104Ca) "non-S&S" citations 

issued pursuant to the Federal Mine Safety and Health Act of 

1977, and civil penalty proposals filed by MSHA seeking civil 

penalty assessments for the citations. 

The cases were heard by Commission Judge John A. Carlson, 

and the parties filed posthearing briefs. However, due to the 

untimely death of Judge Carlson, the cases were reassigned to 

me, and the parties agreed to my adjudication of the cases on 

the basis of the record made before Judge Carlson without any 

additional hearings. I have considered all of the arguments 

made by the parties in their respective briefs in the adjudication of these proceedings. 

Issues 

The issues presented in these proceedings are as follows: 

1. Whether the respondent violated the 

cited mandatory safety standard, and if so, 

the appropriate civil penalties to be assessed 

for those violations based on the criteria 

found in section llOCi) of the Act. 

2. Whether the inspector who issued the 

citations followed the appropriate test procedures in support of the alleged violations, 

and whether or not those procedures were proper 

and valid. 

3. Additional issues raised by the parties are identified and disposed of in the 

course of these decisions. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 u.s.c. § 801 et ~· 

2. Section llOCi) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Mandatory safety and health standard 30 C.F.R. 

§ 75.316. 

119 
4. Commission Rules, 20 C.F.R. § 2700.l et seq. 

Discussion 

These cases arise out of five citations issued by MSHA 

Inspector Matthew Biondich in connection with his permissibility inspection of the low water shutdown systems on five 

diesel operated shuttle cars used underground in West Elk's 

Mt. Gunnison No. 1 Mine. The citations were issued between 

October 23 and 30, 1985, and each allege a violation of the 

approved mine ventilation system and methane and dust-control 

plan requirements found in 30 C.F.R. § 75.316. Each citation 

alleges that a violation of the ventilation plan occurred in 

that the cited equipment was not in compliance with the "manufacturer's operating specifications and maintenance manual in 

the care of use of diesel equipment * * * in that the low 

water shutdown * * * would not shut the engine off when the 

water ·was completely drained from the scrubber." 

During the course of a regular inspection of the mine, 

Inspector Biondich tested 12 diesel shuttle cars to determine 

their compliance with the applicable permissibility standards. 

The ram cars are used to carry coal from the mine face area to 

a dump point. Since the cars work in the face area and passed 

the last open crosscut, they are required to be in compliance 

with the permissibility standards. These standards require 

that the hot exhaust from the car diesel engines be routed 

through a device known as a scrubber. The purpose of the 

scrubber is to cool the exhaust with water so that exhaust and 

any expelled carbon particles will not act as a source of dust 

or methane ignition. The water used in the system is contained in the scrubber tank, and the scrubber operates by routing the exhaust through a perforated pipe which is under water. 

As water is depleted from the scrubber tank, a float valve 

assembly attached to the side of the scrubber tank senses any 

depletion of water and allows water to enter the scrubber tank 

from another 90 gallon tank called variously the makeup, 

reserve, or supply tank. The scrubber is equipped with a 

device known as the low-level water shutoff device, and the 

purpose of that device is to shut off the car engine in the 

event the scrubber tank no long.er has water in it to cool the 

exhaust. On 5 out of the 12 cars inspected by the inspector, 

the low-level water shutoff device, when tested, did not act 

to shut down the car engines, and they were cited. The citations in issue are as follows: 

Citation No. 2336427 was issued at 9:40 a.m., on 

October 23, 1985, and it cites a violation of mandatory 

120 
safety standard 30 C.F.R. § 75.316. The cited condition or 

practice is as follows: 

The approved ventilation plan was not 

being complied with according to manufacturer's 

operating specifications and main.tenance manual 

in the care and use of diesel equipment in 

1 south panel working section (005-C} in that 

the low water shut down on the R6 Jeffrey Ramcar serial No. 38272 would not shut the engine 

off when the water was completely drained from 

the scrubber. 

The violation was abated at 12:40 p.m., the same day by 

installing a new float valve assembly. 

The condition or practice cited in the four remaining 

citations are identical to Citation No. 2336427, and simply 

cite four additional ram cars. They are as follows: 

Citation No. 2336428 was issued on October 23, 1985, at 

10:50 a.m. for a violation on Jeffrey Ram Car No. R-11. The 

citation was abated at 11:30 on that same day by repairing 

the needle valve on the float valve assembly. 

Citation No. 2336430 was issued on October 24, 1985, at 

9:30 a.m. for a violation on ram car No. R-12. The violation 

was abated at 10:40 on that same day by installing a new air 

float valve on the .float compartment. 

Citation No. 2833301 was issued on October 30, 1985, at 

9:00 a.m. for a violation on ram car No. R-4. The violation 

was abated at 10:25 on that same day by clearing rust flakes 

out of the float tank compartment. 

Citation No. 2833302 was issued on October 30, 1985, at 

11:00 a.m. on ram car No. R-5. The violation was abated at 

1:30 on that same day. The abatement noted that the low 

water shut-down device on the ram car was restored to operating condition in that the engine would shut off before the 

water was drained from the scrubber. 

MSHA's Testimony and Evidence 

MSHA Inspector Matthew Biondich testified as to his mining experience and training, including training with respect 

to diesel equipment permissibility inspections. He confirmed 

that he conducted the inspections in question beginning on 

October 23, 1985, and that he inspected the diesel operated 

121 
ram cars for permissibility compliance. He identified 

exhibit S-1 as a copy of the pertinent portion of the mine 

ventilation plan as it pertains to diesels. He confirmed · 

that paragraph #2, pg. 28, of that plan applies to the cited 

ram cars, and that the cars were not being operated and maintained in accordance with the referenced manufacturer's 

manual specifications (Tr. 6-11). 

Inspector Biondich stated that he inspected ram car #R-6 

on October 23, 1985, for permissibility, and confirmed that 

it operated from the face areas to the dumping point past the 

last open crosscut. He stated that he has conducted over 100 

permissibility inspections since 1977, and he described the 

procedures he follows in conducting these inspections. With 

respect to any required permissibility tests, such as diesel 

fuel, air, and water shut down systems, he confirmed that 

these tests are conducted by company personnel and that he 

simply acts as an observer. Equipment subject to the permissibility standards must be inspected weekly by the operator 

(Tr. 13-17). 

With regard to the low water shut down systems test on 

the ram cars, Mr. Biondich stated that he requested the personnel conducting the test to shut the main water supply off 

to save time, and he believed the operator's personnel were 

familiar with the required test (Tr. 18). 

Mr. Biondich explained that the purpose of the car scrubber is to cool the exhaust of the diesel car engine so as to 

prevent fire and explosion hazards caused by the heat generated by the exhaust system. The scrubber serves to cool the 

exhaust heat and flames generated by the car engine, and it 

does this by using water from the machine water supply. If 

there is no water in the scrubber, the machine will "kick out 

hot carbon and heat" into the mine atmosphere, and this would 

create a fire and explosion hazard. The tests were conducted 

to ascertain whether or not the low water shutoff device on 

the cars were working properly so as to shut down the engine 

in the event the available water from the scrubber water 

supply reached a certain level (Tr. 18-21). 

Mr. Biondich identified exhibit S-2 as a schematic drawing of a scrubber and makeup tank and float valve illustrative 

of the kind used on ram car No. 6, and he explained how the 

low water shutoff device operates and how it is tested (Tr. 

21-23). He explained that in the event the water in the scrubber falls below a certain level, the engine cutoff float valve 

operates to add water to the scrubber from a water makeup tank. 

In the event there is insufficient water in the makeup tank, 

122 
or if the water falls below 5 or 6 inches in the scrubber and 

is not replaced, the valve is supposed to shut the car engine 

down (Tr. 24). 

Mr. aiondich confirmed that company personnel tested the 

engine cutoff valve on the No. 6 car and that he observed the 

test. The main water supply from the reservoir was shut down 

so that the water level in the scrubber could be checked without using all of the water in the makeup tank. In addition 

to a needle valve used to shut off the makeup tank water 

supply, some of the cars were equipped with a regular water 

shutoff valve between the scrubber and makeup tank. Once the 

scrubber tank water supply was cut off, a plug on top of the 

scrubber was opened, and the individuals conducting the tests 

explained that this was done to prevent air locks in the 

scrubber tank. After all of· the water drained from the scrubber and stopped running out of the scrubber tank, the engine 

kept running and the valve would not shut down the engine~ 

Had the engine scrubber cutoff float valve been operating 

properly, the engine should have shut off. Since it did not, 

he concluded that the car was not being maintained properly 

(Tr. 24-28). 

Mr. Biondich stated that the citation for the No. R-6 

car was abated at 12:40 p.m., 3 hours after the machine was 

tested, and he confirmed that he was present "a majority of 

the time" during the abatement. Abatement was achieved by 

installing another float valve assembly, and a second test 

was conducted using the same procedure as previously 

described. Before the water stopped draining out of the 

scrubber tank, the car engine shut down, and this indicated 

to him that the shutoff valve was operating properly. The 

same test was used both during his initial inspection and the 

abatement of the violation (Tr. 29-31). 

Mr. Biondich confirmed that after the No. R-6 car was 

tested, the same company mechanic tested the No. R-11 car, 

and the low water shutoff valve was tested in the same manner 

as the No. R-6 car was tested. He again asked the mechanic 

to shut down the main water supply to save time in draining 

the scrubber tank, and to prevent water from the 60-gallon 

tank spilling on the roadways. After the scrubber tank was 

completely drained, the engine continued to run with no water 

in the tank. The condition was abated within 40 minutes by 

cleaning and repairing the needle valve on the scrubber float 

valve assembly. After this was done, the car was tested 

again using the same test, and the engine shut off. This led 

him to conclude that the needle valve had been defective, and 

the mechanic told him that this was the case (Tr 32-35). 

123 
Mr. Biondich stated that after the tests were completed 

he spoke with the Jeffrey Manufacturer's representative, a 

Mr. Murphy, and advised him that the cited conditions had 

been corrected. Mr. Biondich stated that he explained the 

test procedures which were used to Mr. Murphy, and Mr. Murphy 

did not criticize the test procedures (Tr. 38). 

Mr. Biondich stated that he returned to the mine on 

October 24, 1985, and observed the test conducted on the 

No. R-12 ram car low water shutoff device. The test was conducted in the same manner as on the previous day, and the 

engine would not shut off when the scrubber was completely 

drained. The citation was abated within 40 minutes by installing a new float valve on the float compartment. The abatement 

work was conducted by the Jeffrey representative, Mr. Murphy, 

and Mr. Biondich observed him. After installing the new float 

valve, Mr. Murphy tested the machine. Mr. Murphy's test differed from the other tests conducted by the company mechanic 

in that he drained the scrubber tank by means of a 2-inch 

drain plug on the side of the rear of the scrubber rather than 

taking off the water supply hose for the float valve assembly. 

Mr. Biondich stated that he advised Mr. Murphy that the water 

hose had been removed when the previous tests were conducted, 

and that Mr. Murphy replied "you don't need to do it" (Tr. 

42) • 

Mr. Biondich confirmed that the mechanics who tested the 

other cars the day before drained the scrubber tank by means 

of a front valve which drained all of the water out, while 

Mr. Murphy drained the tank by means of the other valve which 

left 5 to 6 inches of water in the scrubber. The first time 

Mr. Murphy tested it with 5 to 6 inches of water left in the 

tank, the engine would still not shut down (Tr. 43). In 

Mr. Biondich's view, Mr. Murphy's use of a different drain 

valve, and his leaving the float value assembly hose intact, 

did not significantly effect the results of the prior tests 

conducted by the company mechanic (Tr. 44-46). After 

Mr. Murphy corrected the problem, he tested the car twice, 

and it worked properly. Mr. Biondich then terminated the 

citation (Tr. 47). 

Mr. Biondich confirmed that he again returned to the 

mine on October 30, 1985, and observed a company mechanic 

test the No. R-4 ram car scrubber water shut down device. 

Mr. Murphy ordered the testing of that car, and the mechanic 

followed the same procedures used on the other cars, except 

that he did not disconnect the water supply hose from the · 

main reservoir tank. In order to achieve uniformity in the 

124 
test procedures, Mr. Biondich stated that he advised the 

mechanic that the other mechanics who tested the previously 

cited cars had disconnected the hose in question, but afte~ 

the mechanic advised him that this was not necessary, 

Mr. Biondich allowed him to leave it intact. However, in 

each instance during all of the testing on all of the cars, 

the main water valve between the scrubber tank and the main 

water reservoir was shut off (Tr. 49). 

Mr. Biondich stated that when the No. R-4 car was tested 

by the mechanic, the majority of the water had been drained; 

and when it trickled out, the engine ran for 15 minutes and 

did not shut down. Mr. Biondich concluded that the low water 

shutoff device was not functioning properly and he issued the 

citation. The violation was abated within an hour and a half 

(Tr. 50). The mechanic disconnected the float tank compartment from the side and the scrubber and removed the water 

supply hose. Mr. Biondich observed that the hose was filled 

with 11 hard water" or "rust flakes," and that the scrubber 

tank contained these flakes. Mr. Biondich helped to clean 

out the tank and the mechanic installed another hose. After 

this was done, the low water shutoff device was again tested, 

and it operated properly. Before the water was completely 

drained from the scrubber, the engine would shut down CTr. 

52-53). 

Mr. Biondich confirmed that he next inspected the No. 5 

ram car on October 30, and observed the test conducted on 

that car by company personnel. The test procedure for the 

No. R-4 car was again repeated for the No. 5 car, and when 

tested, the engine would not shut down when the water was 

drained from the scrubber tank. Mr. Biondich issued the citation, and returned the next day to abate it. Mr. Biondich 

confirmed that he was not present during the abatement, and 

did not know what was done to correct the condition. However, 

the No. 5 car was again tested using both test procedures, 

i·~·, leaving the float tank hose on, and taking it off, and 

when tested both ways, the low water shutoff valve device was 

operable, and it shut down the machine. Mr. Biondich then 

abated the citation (~r. 54-55). 

Mr. Biondich confirmed that he conducted permissibility 

inspections on all 12 of the ram cars used in the mine, and 

observed company personnel test the emergency air shut off, 

the fuel shutoff, and the low water shutoff on each car. The 

five cited cars failed to meet the low water shutoff permissibility requirements (Tr. 58). 

125 
On cross-examination, Mr. Biondich confirmed that each 

of the citations were issued because of the operator's failure 

to maintain the ram car low water shut down devices in accordance with the manufacturer's operating specifications and 

maintenance manual as required by the mine ventilation plan 

(Tr. 64-65). He confirmed that while the plan requires the 

manuals to be available for inspection, he did not request a 

copy of the manual test procedures. He also confirmed that he 

came into possession of the manual test procedures for the 

first time in December after the citations were issued when he 

attended a training session conducted by MSHA diesel specialist Jerry Lemon (Tr. 65). Mr. Biondich denied that company 

supervisors George Moore, Gaylon McDaniel, and Dewey Walker, 

who accompanied him during his inspections, advised him that 

they did not know how to test the ram cars, and that he 

(Biondich) stated to them "Don't worry about it. I'll tell 

you how to do it" (Tr. 66-67). 

Mr. Biondich confirmed that diesel equipment used in 

underground mines is a relatively new phenomenon, and that he 

has received training on the checking of diesel equipment 

from Mr. Lemon (Tr. 68). Mr. Biondich identified exhibit 0-2 

as a copy of the Jeffrey Manufacturer's Permissibility Checklist for the ram cars in question, and confirmed that the 

instructions are the same ones given to him in December after 

the citations were issued. He also confirmed that page four, 

entitled "Low Scrubber Water Shut Down" are the proper manufacturer's manual testing procedures for the testing of the 

cited ram car (Tr. 68-69). 

Mr. Biondich confirmed that the manual test procedures 

set out in exhibit 0-2, were not followed when the cited ram 

cars were tested (Tr. 69). He identified exhibit 0-3, as a 

photograph of the ram car scrubber tank in question, and he 

located the drain valve with a handle used to drain the water 

out of the cars at the time the tests were conducted in the 

lower right-hand corner of the scrubber (circled on the 

exhibit). He identified the drain valve used by Mr. Murphy 

during his tests as the gray cylinder with a hole in it on 

the side of the scrubber tank in the left of the photograph. 

When asked whether the "black cylinder" shown in the photograph is the scrubber lower level tank, Mr. Biondich replied 

"I's say no." When asked what it was, he replied "I don't 

know" (Tr. 72). He confirmed that most of his permissibility 

inspections were electrical inspections, and that his experience with diesel inspections consists of approximately 12 

regular mine inspections (Tr. 73). 

126 
Mr. Biondich confirmed that during all of the tests, he 

instructed the company testing personnel to shut off the 

valve between the water supply tank and the scrubber tank. 

He conceded that this shut-off procedure is not specified in 

the Jeffrey testing manual, and admitted that the Jeffrey 

procedures were not followed in this regard (Tr. 73). He 

explained that all he checked was the low water shut down, 

and his instructions to shut down the valve between the water 

supply and scrubber tank were given "so we wouldn't be there 

a long time and also water running down through your entry 

where you have 60 gallons running down" (Tr. 74). 

Mr. Biondich conceded that the test procedure in paragraph 2(b) concerning the disconnection of "the air supply 

line at the upper tank valve" was not performed or followed 

in any of the tests he observed. With regard to the test 

procedures found in paragraph 2(a), he stated that it was 

performed on some of the cars which were equipped with valves 

to relieve the main water tank pressure, but not on others 

because they were not equipped with such a valve. These cars 

had another pressure valve installed in the line, and in such 

cases MSHA's procedures do not require that the main water 

tank be completely drained, and he simply had the valve shut 

off. He conceded that this MSHA procedure is not part of 

Jeffrey's procedures which are in fact approved by MSHA as 

the procedures for testing the cars (Tr. 75). 

Mr. Biondich identified the rear of "the lower level 

tank" referred to in test procedure 2(c) as the "white painted 

plug" on photograph 0-3. He was not sure of the location of 

the 6 or 7 inch drain valves, and he confirmed that he never 

measured the lower water level with a tape during any of the 

tests because all of the water had been drained from the tank 

CTr. 76-79). He conceded that in the event the cars are 

tested on uneven levels and the drain pipes are above the 

bottom of the tank, water could be trapped in the scrubber 

tank and upper float tank (Tr. 80). 

Mr. Biondich confirmed that the Jeffrey ram car scrubber 

is equipped with a backup secondary heat sensor in the exhaust 

system, and in the event scrubber gases are not cooled because 

of a lack of water, the heat sensor will shut down the machine 

(Tr. 80-81). 

With regard to the new float valve assembly installed to 

abate the citation for ram car No. R-6, Mr. Biondich denied 

that he was ever told that the float valve assembly removed 

from the machine was not defective. With regard to ram car 

127 
No. R-11, he conceded that the machine was checked in different places through "trial and error," and that equipment 

changes were being made to try to determine the trouble. 

Mr. Biondich admitted that he met with company maintenance 

manager Richard Skvarch on October 31, after the citations 

were issued and that they discussed how the low water devices 

worked. He denied that Mr. Skvarch explained the proper test 

procedures to him or that he pointed out that draining the 

tank through the main drain valve was improper (Tr. 85). 

Mr. Biondich admitted that Mr. Skvarch informed him that the 

low water shut off device on the No. R-12 car had been checked 

by the Jeffrey procedures several times during the maintenance 

shift before his arrival and that it was functioning properly 

(Tr. 86). 

Mr. Biondich confirmed that on December 12, 1985, MSHA 

requested permission from the company to conduct a school on 

low water shut down devices and other permissibility checks 

on the diesel cars at the mine. Mr. Biondich stated that the 

school was intended for the benefit of three newer MSHA 

inspectors, but that he was present. He further confirmed 

that Mr. Lemon conducted the classes of instruction and that 

copies of the Jeffrey procedures were passed out to the 

inspectors, and that Mr. Lemon "walked them through" the permissibility testing procedures (Tr. 90-91). Mr. Biondich 

conceded that the tests conducted on the cited ram cars did 

not follow the Jeffrey manual procedure, but he still believed 

that the tests were valid (Tr. 9.1). He denied hearing any 

statements by Mr. Lemon during the instruction classes that 

"if you don't follow these instructions * * * (Jeffrey Manual) 

you know what west Elk will do and I don't blame them." He 

also denied hearing Mr. Lemon state "if you don't follow those 

instructions, you don't have a leg to stand on" (Tr. 91-92). 

Mr. Biondich identified exhibit 0-4, as procedures for 

testing Jeffrey machines which are the "same type" as the one 

he cited but for different models. He described these procedures as a "general outline," and while he had them in his 

briefcase, he did not refer to them when he inspected the 

cited cars "because I'd done it before." He confirmed that 

he did not use these procedures when the cited cars were 

tested, and that they were not used by the company personnel 

performing the tests. His only participation in the actual 

testing was limited to instructing company personnel to shut 

off the water valve from the main tank CTr. 101-105). 

In response to further questions, Mr. Biondich confirmed 

that the tests conducted on the ram cars which were in compliance and not cited were the same tests conducted on the 

128 
cited cars, except for the fact that some of the mechanics 

disconnected the shut off valve, and others did not (Tr. 

107-109). He described the location of the float valve device 

which shuts the car engine down when the water level gets too 

low as the "smaller white box" attached to the "bigger white 

box" identified as the scrubber in photographic exhibit 0-3 

(Tr. 108). 

Jerry Lemon, MSHA Diesel Specialist Goordinator, testified as to his mining experience and duties, and he confirmed 

that he has served as an inspector conducting inspections on 

diesel equipment. He has a college BS degree in automotive 

and diesel engineering, and his duties include the training 

of inspectors in the inspection of diesel equipment, and the 

testing approval of diesel equipment field changes and modif ications. He has also served on MSHA committees concerned 

with the regulations and guidelines for diesel equipment used 

in underground mines. He denied making the statements attributed to him by the operator's counsel during a diesel training session he conducted at the mine with respect to what 

would happen in the event MSHA inspectors did follow the 

Jeffrey testing manual guidelines (Tr. 110-113). 

Mr. Lemon stated that he is familiar with the cited ram 

cars in question, and he identified the black hose shown in 

photographic exhibit 0-3 as the hose which connects to the 

scrubber makeup tank. As water is used up through evaporation of the exhaust, water in the scrubber is made up by 

means of this hose from the makeup tank. He confirmed that 

several mechanics disconnected that hose during some of the 

car tests, and in his opinion this was not necessary. He 

explained that while disconnecting the hose would eliminate 

any air locks in the float tank, water may still be present 

in the float tank and the engine will still run and be nonpermissible. The disconnection of the hose will drain the water 

out of the float system and deactivate it and shut the 

machine down. In his opinion, the hose should not be disconnected, and he has reviewed no literature indicating that 

this hose should be disconnected (Tr. 114-116). 

Mr. Lemon explained his reasons why the hose in question 

should not be disconnected. He indicated that should a malfunction occur in the scrubber, the hose would not be disconnected. The removal of the hose would overcome any design 

problem and would allow the scrubber to function under test 

conditions but not under actual mine operating conditions. 

He stated further that the true test would be to drain all of 

the water from the scrubber at the lowest point, and once 

drained, if the system does not shut down the engine, it would 

129 
indicate that the shut-device is inoperable. The quickest way 

to isolate the makeup tank is by opening or closing the air 

pressure valve, thereby forcing all of the water into the 

scrubber. 

Mr. Lemon confirmed that the test method used by the 

inspector to isolate the main water holding tank was proper 

and speeds up the test process. If the tank were not isolated 

in the manner instructed by the inspector, it may take 2 hours 

to drain all of the water out of the system. The whole purpose of the test is to remove all of the water from the scrubber to see whether it shuts off the machine, and simply 

turning off the water from the makeup tank will not effect the 

test of the low water shutoff device to determine whether it 

shuts down the machine (Tr. 119-120). 

Mr. Lemon confirmed that he is familiar with the Jeffrey 

test procedure outlined in exhibit 0-2, and he confirmed that 

he has not seen it as part of any maintenance manuals. He 

stated that it was sent out by separate letter by Jeffrey to 

mine operators using their equipment (Tr. 121). 

Mr. Lemon confirmed that the inspector did not follow 

procedure 2(b), when the tests were conducted on the cited 

cars. He explained that the procedure in question is directed 

to mechanics for troubleshooting possible defective scrubber 

water float valves. Once that check is completed, if the 

makeup tank has been isolated pursuant to procedure 2(a), the 

next step would be to go to procedure 2(c). Even if step 2(b) 

is skipped, as long as all of the water is drained from the 

scrubber and the makeup tank is isolated, if the engine did 

not shut down, this would indicate a faulty system and a violation. The basic point of the test is to determine whether or 

not the scrubber will shut down when it reaches a water level 

below 7 inches (Tr. 122-123). 

Mr. Lemon stated that the principal goal of the test is 

to determine whether the shutoff system works, and this is 

achieved by draining all of the water out of the scrubber and 

following test procedure 2(a) and 2(c). In his opinion, the 

inspector complied with these test procedures when the cited 

machines were tested (Tr. 123). 

Mr. Lemon identified exhibit S-9 as an MSHA diesel "permissibility checklist" used to train MSHA inspectors. He 

indicated that this checklist was adopted by MSHA after its 

submission by Jeffrey, and it is used by MSHA inspectors in 

the field to check out the Jeffrey equipment. He confirmed 

that the checklist deals with "the same type of scrubber" at 

130 
issue in these proceedings, and while there are two Jeffrey 

scrubber models, "Jeffrey equipment is basically the same" 

although one model uses an air system, while another model 

uses air and oil (Tr. 125). Mr. Lemon confirmed that the 

checklist (exhibit S-9) applies to a model 4110 scrubber, and 

stated "I'm almost positive it's the same scrubber" as those 

involved in the cited cars which are in issue in this case. 

However, upon further examination of photographic exhibit 

0-3, he stated "this picture of the scrubber ••• does not 

look the same. It looks to me there's been some modifications made on this" (Tr. 126). 

Mr. Lemon explained the similarities and dissimilarities 

between the scrubber model shown in the photograph (Model 

4114), and the checklist model referred to in exhibit S-9. 

He claimed ignorance of any· modifications shown in the photograph, and speculated that they may not have been made by the 

Jeffrey Company (Tr. 128). Mr. Lemon confirmed that he was 

familiar with all ram cars manufactured by Jeffrey, including 

the scrubber systems on all of its models, but denied that he 

had ever previously seen a system as shown in the photograph 

as a system manufactured by the Jeffrey Company (Tr. 128). 

He confirmed that any diesel ram cars manufactured by Jeffrey 

must be certified and approved by MSHA, and that the cars 

manufactured by Jeffrey have been approved by MSHA. Once 

this is done, any changes or modifications must have MSHA's 

approval (Tr. 129). He would generally be involved in any 

such approval process, and only in a "remote instance" such 

as his being on leave, would he not be informed of any scrubber changes or modifications (Tr. 129-130). 

West Elkvs counsel asserted that there is no evidence in 

this case that the scrubber depicted in the photograph in 

question was used on any of the cited ram cars in question. 

In response to a question from the bench as to whether or not 

the scrubbers on the cited ram cars differ in some signif icant way from the scrubber shown in the photograph, counsel 

responded as follows (Tr. 131): 

MR. LINN: I'm not altogether certain, frankly, 

Your Honor. I think some do differ and some 

may be the same. This is a new issue as far as 

I'm concerned. My understanding is that these 

modifications are Jeffrey modifications. They 

have been approved by MSHA and we'll have testimony to that, effect. The point I'm getting at 

is that what is depicted in 0-3 is not a unit 

that is on any of the ram cars at issue. 

131 
MSHA's counsel confirmed that the question of whether 

any scrubber modifications or changes constitute separate 

violations of MSHA's standards is not an issue in these 

proceedings (Tr. 131). 

Mr. Lemon stated further that while he could not determine the model number of the scrubber depicted in photographic 

exhibit 0-3 from the photograph, he believed that the Jeffrey 

checklist, exhibit S-9, would nonetheless apply and that the 

model number makes no real difference since all scrubbers are 

basically constructed the same way (Tr. 132-133). He confirmed that the Jeffrey permissibility checklist procedures 

identified as "Exhaust System-Low water shutdown test" on the 

back of the fourth page of exhibit S-9, as used in MSHA's 

Training School, coincide with the test methods used by Inspector Biondich in support of the citations issued in these proceedings, and basically contain procedures 2Ca} and 2Cc) of 

the Jeffrey procedures outlined in exhibit 0-2 as followed by 

the inspector. He confirmed that the exhibit S-9 procedures 

do not include a procedure for testing the water supply line 

as stated in test procedure 2(b), exhibit 0-2, and stated that 

step 2Cb) is "just an additional test" to help a mechanic isolate any scrubber problem "from that valve on around to the 

block to the fuel shutoff and the air valve" (Tr. 135). 

Mr. Lemon concluded that the test procedures found in exhibit 

S-9 reflects that the inspector conducted the proper test (Tr. 

135). 

On cross-examination, Mr. Lemon confirmed that he conducted a school at the mine in December, 1985, for the purpose 

of instructing MSHA inspector's as to how to go about checking 

the permissibility of diesel ram cars, and that tne instructions included the procedures outlined in exhibit 0-2, as 

well as S-9, because "they coincide with each other" (Tr. 

136). He confirmed that mine personnel were present at the 

school, but he could not recall telling Mr. Skvarch that 

unless the proper MSHA approved test procedures were used in 

issuing the citations they would be invalid (Tr. 138). 

Mr. Lemon reiterated that the Jeffrey test procedure 

checklist, exhibit 0-2, are not part of any maintenance 

manuals kept at the West Elk Mine or any other mine he has 

visited. He was never told that the procedures are from the 

manual and he assumed they are from Jeffrey because they are 

on Jeffrey's letterhead. He confirmed that the checklist is 

very thorough, and more so than the exhibit s~9 checklist 

(Tr. 140). Mr. Lemon stated that checklists 0-2 and S-9 do 

not indicate whether they have MSHA's approval. However, 

checklist S-9 will be included with all new Jeffrey equipment 

132 
maintenance manuals for use by mine mechanics in making their 

equipment inspections (Tr. 140). 

Mr. Lemon explained test procedures 0-2, and he stated 

that the test is designed to drain the scrubber rather than 

the whole water supply tank, and the makeup tank has to be 

isolated (Tr. 144). Referring to photograhic exhibit 0-3, he 

stated that if he were to conduct the test, he would drain 

the water from the scrubber tank drain valve which is circled 

in the photograph, rather than from the grey cylinder marked 

·"LL, 11 or lower level tank. In his opinion, the grey cylinder 

is the water control valve cylinder and not the lower level 

tank (Tr. 144). If water is drained from that cylinder and 

there is an air lock in the float, even though the water is 

drained from the scrubber, water may still be in the float 

and the system will still run and be nonpermissible (Tr. 145). 

When asked to again identify the lower level tank, Mr. Lemon 

stated "I'm not positive because they're not that clear on 

their instructions (Tr. 145). 

Mr. Lemon stated that the "lower level drain valve" does 

not appear on other specification drawings, and he confirmed 

that there are two different scrubber systems for the model 

4114 scrubber, and different tank sizes. He also confirmed 

that Inspector Biondich never checked the scrubber water 

level in any of the tests performed on the ram cars in question (Tr. 146). He stated that the water level should be 

tested with the machine on level ground because water could 

be trapped in either the upper float tank or the lower level 

tank, and that the hose between the scrubber tank and the 

main water supply tank should not be disconnected (Tr. 147). 

He confirmed that closing the shutoff valve between the scrubber tank and the main water supply tank, as instructed by 

Inspector Biondich, could cause an air lock (Tr. 148). 

In response to further questions concerning the testing 

procedures, Mr. Lemon stated as follows {Tr. 149-150): 

Q. All right. If you accept that premise and 

take a shortcut, do a short version of 0-2, 

and you find the system doesn't work properly, 

don't you think it's prudent, that is if you 

do what the inspector did and just drain out 

the main drain valve and it doesn't shut off, 

wouldn't you say or wouldn't you agree that it 

would be more prudent to go back, fill up the 

system, run through a detailed test procedure 

in order to determine whether, in fact, it was 

a failure on the one hand of the system, or 

133 
whether, for example, the scrubber might be 

tipped or -- or it might be air locked or some 

other malfunction unrelated to the test procedure or related solely to the test procedure, 

rather? wouldn't you agree that'd be a prudent thing to do? 

A. Yes. 

Mr. Lemon stated that he used the permissibility test 

procedures in exhibit S-9 during the training classes he conducted at the mine after the citations were issued. He had 

previously seen the procedures detailed in exhibit 0-2, and a 

copy was given to him by the operator during the training 

classes, and some of those procedures were covered during the 

classes, including the procedures detailed in paragraph 2(b) 

(Tr. 153-154). In his opinion, the test procedures in paragraph 2(b) need not be followed to determine whether or not 

the scrubber is working (Tr. 155). Testing the equipment on 

inclines makes a difference mechanically, since the shifting 

of water in the tank may allow the machine to continue working even though the water level was low, or it could shut the 

machine down prematurely if the water shifted in another 

direction (Tr. 156). He conceded that testing the machine on 

an incline "would make some difference but not a whole lot of 

difference" and that it could effect the test results in that 

an air lock could be present. If there was an air lock, and 

the water shifted to the opposite end of the tank away from 

the drain plug, 8 or 10 inches of water could be in the tank 

even though the plug were open and no water was coming out 

(Tr. 157). However, the equipment is required to operate on 

both level ground and inclines. 

Mr. Lemon could not state whether Inspector Biondich 

instructed the person conducting the test to shut down a 

water valve which isolated the reserve water tank. He stated 

that he was not aware of any such water gate valve on the 

model 4114 scrubber, and the makeup tank on that model is 

isolated by isolating the air pressure going into the tank by 

means of a cap which is removed to bleed the air pressure off 

the makeup tank. However, a small amount of water will continue to gravitate or trickle from the scrubber (Tr. 159). 

If an impermissible gate valve was installed between the 

makeup tank and the scrubber, and that valve were closed to 

isolate the scrubber, the test results could be affected by a 

resulting air lock (Tr. 159). This may explain the absence 

of such a gate valve on the equipment as manufactured, but he 

could not state that this is the case (Tr. 160)0 Hypothetically, the addition of a nonpermissible gate valve could 

134 
defeat the proper testing by creating a potential air lock 

(Tr. 160). 

In response to further questions, Mr. Lemon explained 

the water level testing procedure stated in exhibit S-9, and 

confirmed that Inspector Biondich did not at any time measure 

the water level in the tank. Mr. Lemon stated that he personally always measures the water level as part of a test in 

order to determine the level at which the lower water device 

is shutting off. If it shuts off at 3 inches, rather than 7, 

then there is more risk involved. A determination must be 

made as to whether there is no water, or that the float mechanism is not adjusted at the proper level (Tr. 173). If the 

tank is emptied and the engine continues to run, this would 

be indicative of a bigger problem. The water measurement 

factor involved in both tests, S-9 and 0-2, is designed to 

confirm whether the float is actually shutting down the 

machine engine when the water level reaches a certain level 

above an empty tank to provide a safety margin (Tr. 174). 

Mr. Lemon stated that it was his understanding that during the tests conducted in Inspector Biondich's presence, all 

of the water was removed from the scrubber in two of the cited 

cars, and in the other cars there some dribble of water. If 

all of the water were removed, there was no need to measure 

the water level. However, if the cars were on an incline or 

unlevel surface, water may have been present in the other end 

of the tank if it were tipped CTr. 177). Problems in measuring pursuant to test S-9 could be encountered because of the 

curled configuration of the scrubber exhaust pipe (Tr. 179}. 

Testing on pitched mine surfaces do present some problems, but 

in the mine in question he could not recall any steep grades 

that would present a real serious problem (Tr. 180). 

West Elk's Testimony· and Evidence 

Richard , Surface Operation Maintenance Manager, 

testi as s mining experience, and confirmed that he 

holds a BS Degree in Mechanical Engineering from Penn state 

University. He confirmed that he was at the mine on 

October 23, 1985, when Mr. Biondich cited ram cars No. 6 and 

No. 11 for improperly functioning scrubber shut down systems. 

Mr. Skvarch was concerned that production personnel accompanied Mr. Biondich since maintenance men are usually assigned 

to accompany inspectors on permissibility inspections. 

Mr. Skvarch confirmed that he spoke with several mechanics 

after the citations were abated and found that some parts were 

changed to ce the machines back into service. He did not 

135 
believe that the mechanics understood what was really wrong 

with the machines (Tr. 182-185). 

Mr. Skvarch stated that the float and valve assemblies 

removed from the No. 6 and No. 11, were examined in the shop 

when they were brought in and he could find nothing wrong 

with them or any reason for their failure (Tr. 186). He 

stated that the low water level shutdown devices were normally 

checked each day, but after the citations were issued they are 

checked every 8-hour shift (Tr. 187). He confirmed that the 

low water shutdown device test procedures at page 4, exhibit 

0-2, were followed at the mine, and after the citations were 

issued, they are used on each shift CTr. 187). 

Mr. Skvarch stated that he was at the mine on October 24, 

when the No. R-12 car was cited. The company technician 

infor~ed him that he had tested that car four times at 

7:00 a.m., and that it had shut down in accordance with the 

test. The car was parked where it was tested, and it was not 

moved. After Mr. Biondich cited it at 9:00 a.m., Mr. Skvarch 

was alarmed and concerned because he could not determine what 

was wrong. It then became apparent to him that the manufacturer's recommended test procedures were not being followed 

and he spoke with Mr. Biondich on October 30, after the first 

citations were issued. Mr. Biondich informed him that "the 

test procedure he was using was doing the same thing or that 

it would work," and within the next 2 hours he cited two more 

cars (Tr. 19 0) • 

Mr. Skvarch identified exhibit 0-1 as a schematic diagram 

of the water supply system and scrubber tank shutdown system 

for a Jeffrey ram car, and he confirmed that it was prepared 

under his direction. He described how the low water shutdown 

system operates, and he identified the component parts, including the lower level tank and upper float tank and the procedure for measuring the water level. He stated that the lower 

float tank "is the brains of the system" and it decides when 

the scrubber needs more water. The upper float tank is the 

mechanism which senses the absence of water coming from the 

water supply tank, and when this occurs, it activates an air 

pressure dump which shuts down the machine (Tr. 191-196). 

Mr. Skvarch identified exhibit 0-2 as a copy of the 

Jeffrey manufacturer's authorized test procedures, and referring to the schematic diagram, he explained each step of test 

procedures using the diagram as a "walk through" (Tr. 196-200). 

Mr. Skvarch stated that the test procedures detailed in exhibit 

S-9 are for a different 4110 scrubber system than the one 

depicted in his diagram. The shut off system is inside of the 

136 
float tank and not on the outside, and a dip stick cannot be 

used to measure the water level because it would hit the 

exhaust pipe. He confirmed that the two scrubbers which have 

been described use different systems requiring different test 

procedures (Tr. 201). 

With regard to the gate valve used to shut off the water 

between the water supply tank and the scrubber tank pursuant 

to Inspector Biondich' s instructions, Mr •. Skvarch stated that 

some of the cited cars were equipped with such a valve, but 

he was previously unaware of this. The car had been brought· 

in from another mining operation and had only been in service 

for a couple of days prior to the inspection. He agreed that 

it takes a long time to drain the water tank, but insisted 

that the valve in question was not installed for test purposes. It was used as a "quick flush" for the scrubber so 

that the entire system need not be drained. He explained 

that while the approved testing requires the draining of the 

water tank, the "quick flush" is used to keep the scrubbers 

clean. He described the procedure as "We just come in, shut 

it off, break the line, flush the scrubber out, check it over, 

put it back together, fill it up, bring the water level back 

up and go right back into service" (Tr. 203). 

Mr. Skvarch stated that test procedures 0-2 are kept in 

the foreman's office at the mine in the parts books and in 

the parts books located in the mechanics lunch room, and he 

confirmed that they are part of the specifications and maintenance procedures for the machine in question (Tr. 203). 

Mr. Skvarch confirmed that he took photographic exhibit 

0-3, and he identified and marked the component parts of the 

scrubber system depicted in the photograph (Tr. 203-205). He 

confirmed that there are differences in the test procedures 

found in 0-2 and the test procedures conducted in the inspector's presence. He explained that during the company's tests, 

the entire water supply tank is drained, but in the inspector's test, the supply or makeup tank was not drained. A line 

was disconnected between the two tanks and it appeared that 

this was creating an air lock by shutting off a valve which 

removed the tank vent pressure. He believed that an air lock 

or water being trapped in one of the float tanks would not 

allow the system to work. He was also concerned that water 

would be trapped if the car were pitched, and any trapped 

water would hold the float up and it would never shut down the 

machine (Tr. 206). 

137 
Mr. Skvarch stated that Inspector Biondich did not check 

the water level in any of the cited cars, and that the draining of the scrubber tank from the drain used in the inspector's test was incorrect. He stated that the water must be 

drained from the lower level drain valve, which is a 6-inch 

level valve, so that when the car shuts off, one can verify 

that there is at least 6 inches of water remaining in the 

scrubber tank. Draining the water from this low level drain 

also ensures that all of the water is out of the upper float 

tank (Tr. 207). He also confirmed that step 2(b) of the 0-2 

procedures were completely ignored in all of the tests of the 

cited machines (Tr. 208). 

Mr. Skvarch stated that after the citations were issued, 

he was advised by Mr. Misel, Jeffrey's chief engineer for its 

ram car division, that company test procedure 0-2 was the 

correct procedure and that it had MSHA's approval, and that 

using shortcuts could cause problems such as air locking and 

water entrapment (Tr. 210). Mr. Skvarch confirmed that he 

attended an MSHA conference with Mr. Biondich and his supervisor, Mr. Turner, and they discussed the citations in question. Mr. Skvarch stated that he advised them that he 

suspected air or water entrapment during the tests supervised 

by Mr. Biondich, and that during the company's testing of the 

machines during each shift, using the company's test procedures, the machines shut down. Mr. Skvarch was informed that 

MSHA's testing could be used because it accomplished the same 

thing, and that the citations would stand. However, MSHA 

subsequently removed the "S&S" designations from the citations 

(Tr. 210-211). 

Mr. Skvarch confirmed that Mr. Lemon conducted a class 

at the mine, and that he CSkvarch) gave everyone a copy of 

test procedures 0-2, and they were reviewed and discussed. 

Mr. Skvarch stated that during an "off the record" discussion 

Mr. Lemon stated that unless the 0-2 procedures were followed 

"you don't really have a case." Mr. Lemon held up the 0-2 

procedures, and stated further "and you know what this man's 

going to do with these citations if you don't" (Tr. 214). 

Mr. Skvarch stated that Mr. Turner was present when these 

statements were made. Mr. Skvarch also stated that Mr. Lemon 

told him that he had "no involvement" in the issuance of the 

citations, and was simply there to conduct a class (Tr. 214). 

Mr. Skvarch stated that since the issuance of the citations, MSHA has tested the cars using the "proper test procedures," and they are worked properly (Tr. 215). He confirmed 

that during the abatement of the citations his maintenance 

personnel changed upper and lower float tanks and "everything 

138 
on the system" but never found a defective part. He also 

confirmed that during the past week or two he tested a car 

while on a grade similar to the condition when Mr. Biondich's 

tests were conducted, and using his test procedures, the 

machine would not shut down. However, when the authorized 

0-2 test procedures were followed, the machine shut down (Tr. 

217). In his opinion, the cited ram cars were operated and 

maintained in accordance with the manufacturer's applicable 

specifications and manuals (Tr. 217). 

On cross-examination, Mr. Skvarch confirmed that when the 

parts were changed on ram cars No. R-6 and No. R-11, no defective parts were found, and the mechanic's reports were so 

noted. He confirmed that he was not present with Mr. Biondich 

on October 23, 24, or 30 when the cars were cited and the conditions abated. He also confirmed that he did not examine the 

hose which was removed and replaced on the No. R-4 car, but 

that he did observe the disassembly of the float valve assembly on the No. 6 car, and could find nothing wrong with it. 

He believed that the replacement of the parts to render the 

machine serviceable may have relieved and air locks or water, 

and while he conceded that Mr. Biondich's test procedures 

"could work sometimes," but "most of the time it didn't" (Tr. 

219-224). 

Referring to photographic exhibit 0-3, Mr. Skvarch stated 

that the purpose of the circled white valve is to flush the 

scrubber system during a maintenance cycle, and that it is a 

fast way to remove scale and corrosion and replace the water 

in the scrubber tank. If the valve were opened and there was 

no water flowing out of the tank while sitting level, and 

there were no blockage in the valve, he would "tend to agree" 

that the tank would be empty. He agreed that if the machine 

continued to operate, it may indicate that the low water cutoff device was not working, but indicated that he "would have 

to check other things to be sure" (Tr. 230). He confirmed 

that when he had his conferences with MSHA after the citations 

were issued, no one from MSHA advised him that the company 

test procedures 0-2 had MSHA's approval (Tr. 233). 

Mr. Skvarch stated that when the company tests the low 

water shutoff devices the water supply tank is isolated by 

venting it according to the test procedure by shutting the 

needle valve or disconnecting the hose. By shutting off the 

air pressure to the water, the water drains through the system 

by "gravity or atmospheric" (Tr. 235). He personally has 

tested the system a dozen times, and he conceded that sometimes all of the water is not forced out of the tank, and he 

explained why this was the case (Tr. 236-237). The estimated 

139 
time for draining the tank ranged from 5 to 40 minutes (Tr. 

238). Although the air line in step two of the test is disconnected during the test, no other lines are disconnected. 

However, the air line is reconnected before going to test 

step (c), and once this is done there is no difference in the 

two test procedures insofar as that air line is concerned. 

He believed that two of the cited cars were equipped with a 

gate valve between the water supply tank and the scrubber 

unit, and if this were the cause of the air lock, it would be 

limited to those two cars (Tr. 240-241). However, air locks 

could also have been present on the other cars, and the gate 

valves have since been removed from the cars (Tr. 242). 

Mr. Skvarch agreed that step 2Cb) of the 0-2 procedures 

is a test to determine whether the shutdown system is working 

if the float valve trips it. He also agreed with Mr. Lemon's 

view that the test is valid even if step 2(b) were eliminated 

(Tr. 244). 

Michael R. Murphy, Senior Serviceman, Jeffrey Mining and 

Machinery Company, testified that his duties include the 

checking of equipment upon delivery to a mine, general troubleshooting, and giving instructions to equipment operators 

as to how to maintain the equipment. He confirmed that he is 

familiar with the low water shutdown devices on the cited ram 

cars in question, and that he was at the mine on October 30, 

1985. He was on the section 10 minutes after a car was cited, 

and Inspector Biondich informed him that he had shut off the 

little air valve going to the water tank, and after venting 

it, the big valve at the bottom of the scrubber tank drain was 

turned on, and after 5 minutes, the car would not shut down. 

The car in question was parked "kind of jackknifed in an entry 

and on a very bad angle." In this position, water could be 

trapped in the tank and the small float on the lower level 

tank, which holds just over a half-gallon of water, minus the 

float ball, would still be floating and indicating that the 

car still had water in the scrubber, when in fact, the scrubber tank may be empty. In this event, the water in the top 

float assembly would not allow the car to shut down {Tr. 

250-251). 

Mr. Murphy identified exhibit 0-2 as the Jeffrey permissibility checklist submitted to MSHA's Tridelphia's Office, 

and he stated that Jeffrey has MSHA's approval to distribute 

these procedures as "an approved drawing" that is included in 

the equipment parts book. The drawing is distributed to 

Jeffrey customers utilizing the scrubber system as a means of 

checking the system to determine whether it is working (Tr. 

251). He confirmed that page 4 of test procedures 0-2 are 

140 
the only proper procedures for testing the low water shutdown 

devices on the cars in question, but that they will need to 

be modified for the newer model 4114 cars at the mine (Tr. 

252). 

Mr. Murphy stated that using the inspector's test procedures, water could become trapped in the lower level tank, 

thereby giving invalid test results. He also stated that 

shutting off the gate valve shown on the schematic drawing, 

exhibit 0-2, during the test, could cause an air lock and 

produce an invalid test result, particularly if the machine 

were not level (Tr. 255). With regard to the 0-2 procedures, 

he reiterated that MSHA approved them and wanted to distribute 

them to its inspectors to inform them how to shut down the 

system properly. 

Mr. Murphy stated that during the inspector's tests, 

test procedure 2(b) was omitted. Further, although the large 

drain valve at the bottom of the scrubber tank was opened, 

the failure to use the other drain valve from the lower level 

tank as required by step (c) of the 0-2 procedures, would not 

have allowed water to completely drain from the small tank 

which allows the machine to shut down, particularly where the 

machine is parked at an angle. The draining of the small 

lower level tank would compensate for any machine angle or 

tilt (Tr. 256). In his opinion, there was no way the inspector could have checked the scrubber water level in the manner 

in which the machines were tested. Mr. Murphy stated that he 

used the proper test procedures the same day the car was 

cited, and it shut off, and no work had been done on that 

machine at that time (Tr. 257). 

Mr. Murphy stated that test procedures S-9 are absolutely 

not the proper procedures for the cited ram cars in question. 

He explained that the S-9 procedures are for machines with a 

float and shutoff assembly located inside the scrubber tank, 

while the 0-2 procedures relate to cars such as the cited cars 

which have remote float tanks or sensing devices affixed to 

the side of the tank. With regard to these remote assemblies, 

it is necessary to drain the lower level tank affixed to the 

scrubber tank in order to perform a valid test (Tr. 261). 

Mr. Murphy identified exhibit 0-4 as the Jeffrey test 

procedures for the model 410, HR150, and 411H ram cars. and 

stated that they do not apply to the cited ram cars or the 

4114 model in question, and he explained why (Tr. 261-262). 

(The exhibit was never received in evidence). Mr. Murphy 

concluded that the 0-2 Jeffrey procedure is the only way to 

141 
be sure that the low water shutdown device on the cited cars 

is properly operated and maintained (Tr. 262). 

On cross-examination, Mr. Murphy stated that he examined 

two cited cars on Oetober 30, but was not sure of the numbers, 

and both were parked 11 on a pitch" in the drift. He believed 

that water could have been trapped in the lower level tank, 

and this would account for the cars continuing to run. He did 

not perform the 0-2 test on car No. 4 and it shut down. The 

other car was being worked on by the mechanics. He tested for 

water in the lower level tank, and found water present. He 

did not check for water in the scrubber tank and the scrubber 

tank valve was open. This indicated that there was no water 

coming out of the valve, but water could have been trapped 

inside. The presence of water in the lower level tank would 

keep the machine running because the shutdown sensors are 

located there (Tr. 263-266). 

Mr. Murphy confirmed that he personally has never 

received a letter from MSHA informing him that test procedures 

0-2 have MSHA's approval. However, since the print of the 

procedures are stamped as MSHA approved, it is his assumption 

that they have MSHA 1 s approval (Tr. 270). He knows for a fact 

that procedures S-9 are not for the cited cars (Tr. 280). He 

also stated that the "MSHA stamp" cannot be used if it is not 

approved, and that Jeffrey engineering representative Paul 

Misel advised him that the 0-2 procedures were submitted to 

MSHA (Tr. 277). 

Mro Murphy agreed that the elimination of step 2(b) of 

the 0-2 procedures would not necessarily invalidate the 

inspector's test. However, it is necessary to test the water 

level in the scrubber tank, and the inspector did not do this. 

It is also necessary to find out whether there is water in 

the rest of the system because there is nothing on the car 

when it is at idle that will shut down the car if the scrubber tank is empty and there is water in the float valves. 

The float valve is the mechanism that determines whether the 

car will shut down, and not the level of water in the scrubber. In his opinion, the test method followed by the inspector might cause the machine to give false results or' "lie to 

itself" because there may still be water in the lower level 

tank. Even though the scrubber tank is full, if the lower 

level float bowl is drained and the machine shuts off, he 

would consider the low water shutoff device to be operable. 

He concluded that the test by the inspector was improper 

because it did not include the draining of water from the 

lower level bowl, but only from the scrubber (Tr. 271-274; 

283-285). 

142 
George c. Moore, operations shift foreman, testified as 

to his experience, and he confirmed that he travelled with 

Inspector Biondich on October 23, 1985, when he issued the 

first two citations in these proceedings. Mr. Biondich 

informed him that he wanted to check the low water shutdown 

device on a ram car, and asked him to bring in a car so that 

he could check it. Mr. Moore advised Mr. Biondich that he 

needed a mechanic because he (Moore) did not know how to perform the test. Mr. Biondich responded "don't worry about it. 

I can tell you how the procedure can be done" (Tr. 295). 

Mr. Moore stopped the first available car travelling down the 

haulage entry, and after checking it for electrical permissibility, it was parked on a downhill grade, and Mr. Biondich 

instructed him to turn off the valve between the water supply 

tank and the scrubber system. Mr. Moore identified the car 

as the No. R-6 car, and referring to the schematic exhibit 

0-1, he confirmed that "two valves on top were shut off , 11 and 

the water was drained by removing the bottom scrubber drain 

valve with a crescent wrench. After that car was cited, it 

was parked in the crosscut, and Mr. Moore called the maintenance department to begin work to abate the citation. 

Mr. Moore stated that ram car No. R-11 was then checked 

using the same test procedure. The car was pulled into the 

entry, the scrubber was filled with water, and the valves 

were shut off and the tank was vented. The car did not have 

a drain plug similar to the No. R-6 car, and the water was 

drained by turning the valve at the bottom of the tank. 

Mr. Moore stated that two or three valve assemblies were 

tried on the No. R-6 car, and the float valve assembly was 

changed. Using the inspector's test procedures, the car would 

shut down one time, and the next time it would not. When the 

water was drained from the No. R-11 car, the engine would not 

shut down and it was cited. A maintenance man then took the 

air line off the float valve assembly and the machine shut 

down. He did some work on the needle valve and after putting 

it back together, the engine shut down, and Mr. Biondich 

abated the citation. Both cars were parked on an incline when 

they were initially tested (Tr. 299-300). 

Mr. Moore stated that at no time did Mr. Biondich request 

the manufacturer's test procedures, and he confirmed that 

Mr. Biondich did not ask to see them, nor did he have a copy 

with him (Tr. 300). Mr. Moore identified the hose removed 

from the No. R-11 car as the air dump shutdown hose shown on 

exhibit 0-1, and he was not sure whether or not there is a 

needle valve in that hose which senses when the upper float 

143 
tank is out of water, or whether or not that was the needle 

valve which was examined (Tr. 302). 

Gaylen S. McDaniel, supervisory safety advisor, testified 

as to his mining experience, and he confirmed that he accompanied Inspector Biondich on October 24, 1985. Mr. Biondich 

informed him that he was going to check the low water shutdown 

devices on the remaining ram cars which were not checked the 

previous day. The No. R-12 car was brought to the service 

area and it was "parked on an angle" when it was tested. The 

air was turned off on the main water supply tank, it was then 

vented, and the valve between the supply tank and upper level 

float was shut off. The main scrubber drain valve was opened, 

and after the water was allowed to drain for approximately 10 

to 15 minutes, the car would not shut down, and Mr. Biondich 

cited it. Water was still trickling out of the tank at the 

time it was cited. Mr. McDaniel informed Mr. Biondich that he 

did not know how to check the low water shutdown, and 

"Mr. Biondich told me he had taken the class on it and that he 

could tell me how to check it" (Tr. 305). 

Mr. McDaniel confirmed that he followed Mr. Biondich's 

instructions when the car was tested, and when he pointed out 

that water was still coming from the scrubber tank, 

Mr. Biondich responded "it had drained long enough and most 

likely the tank was drained as far as it was going to drain" 

(Tr. 306). Mr. McDaniel confirmed that Mr. Biondich did not 

refer to any written test instructions while the test was 

conducted, and asked him for none (Tr. 306). Mr. McDaniel 

confirmed that he was later shown a copy of test procedures 

0-2, and that they differed from the tests instructions given 

by Mr. Biondich in that the air supply line at the upper tank 

as covered by procedure 2(b) was not disconnected, and that 

the water was not "slowly drained from the scrubber through 

the drain in the lower level tank" as provided for in procedure 2(c). In addition, the water level in the lower level 

tank was not checked after draining the water out of the main 

scrubber tank, as provided in procedure 2(c) (Tr. 307). 

Dewey R. Walker, shift supervisor, testified as to his 

experience, and he confirmed that he was present on 

October 30, 1985, when the last two citations were issued by 

Inspector Biondich. Mr. Walker stated that prior to going 

underground, Mr. Skvarch held a meeting with Mr. Biondich, 

and they discussed the problems concerning the previously 

cited cars, and Mr. Skvarch expressed concern that the proper 

Jeffrey test procedures were not being followed in the testing 

of the cars for compliance. Mr. Skvarch believed there were 

problems with air locks or trapped water in the tanks. 

144 
Mr. Biondich stated that he was going to test the remaining 

cars in the same manner as those previously tested "to keep 

everything uniform" (Tr. 309). 

Mr. walker stated that after the meeting, he and the 

inspector went underground and tested car Nos. R-4 and 

No. R-5, and they were both parked on "slight angles." The 

caps were removed from the top of the main water supply tank 

as shown on schematic exhibit 0-2, to make sure water was in 

the tank. The water supply valve shown by the circled mark 

by a green line on the schematic, between the main tank and. 

upper float tank was then shut off, and the bottom gate valve 

on the lower scrubber tank was opened to allow water to drain 

out. After approximately 10 minutes, water was still trickling out of this drain, but the machines failed to shut down, 

and Mr. Biondich cited them (Tr. 310-312). Mr. Walker stated 

that Mr. Biondich had no written test procedures with him, 

and he could not recall Mr. Biondich showing him a copy of 

his test procedures (Tr. 313). Mr. Walker confirmed that the 

exact same test procedures were followed on both cars (Tr. 

314). 

Robert Moschetta, safety manager, testified as to his 

experience, and he confirmed that he holds a Masters Degree 

in safety management and a degree in environmental science 

from the West Virginia University. He confirmed that he 

attended a meeting at the mine on October 30, 1985, with 

Inspector Biondich, Mr. Skvarch, and company maintenance personnel to discuss .the propriety of the tests conducted on the 

previously cited cars. Mr. Skvarch reviewed a diagram similar 

to the schematic, exhibit 0-1, and discussed the manufacturer's test procedures with the inspector. During the meeting, Mr. Biondich stated that he was basically checking the 

machines in the same manner as shown in the Jeffrey procedures 

discussed by Mr. Skvarch, and that his CBiondich's) methods 

were the same (Tr. 316). 

Mr. Moschetta confirmed that he attended an informal 

MSHA conference concerning the citations on November 15, 1985, 

and he identified exhibit 0-5 as his notes taken during that 

conference. He stated that at this meeting, Mr. Biondich 

stated that he was using the proper test procedures, but that 

he did not say this during the October 30th meeting (Tr. 317). 

He identified exhibit 0-6, as his notes taken during a subsequent meeting with Mr. Biondich and his supervisor, Bill 

Turner, on November 21, 1985, when they discussed the five 

citations and the proper test procedures. Copies of the 0-2 

procedures were given to Mr. Turner and Mr. Biondich, and 

Mr. Turner stated that he was sure that Mr. Biondich was 

145 
following the proper test procedures. Mr. Turner stated that 

he would get in touch with Mr. Lemon, and that they would have 

another meeting to discuss and check the cars (Tr. 320). 

Mr. Moschetta identified exhibit 0-7, as his notes of a 

telephone conversation he had with Mr. Turner on November 22, 

1985, and that during that conversation Mr. Turner advised 

him that Mr. Biondich took the position that he did not 

instruct company personnel as to what to do to check the low 

water shutdown devices, and that he simply told them that he 

would like to check the devices and observe the tests to determine whether the machines would shut down. Mr. Moschetta 

stated that he advised Mr. Turner that this was inconsistent 

with his past discussions, and he stated that during the 

October 30 meeting Mr. Biondich did in fact state that he 

instructed company personnel as to how to go about testing the 

cars (Tr. 322). 

On cross-examination, Mr. Moschetta confirmed that during 

the meetings in question Mr. Biondich took the position that 

the tests methods he utilized during the tests performed on 

the cited machines were correct (Tr. 325). He also confirmed 

that between the October 30 and November 15, meetings, 

Mr. Biondich changed his story as to the test procedures he 

was using. He further confirmed that the test procedures 

detailed in 0-2 were explained to Mr. Biondich by Mr. Skvarch 

on October 30, before the last two citations were issued, and 

that they were available at the mine before all of the citations were issued (Tr. 326-327). 

MSHA's Rebuttal Testimony 

Mr. Lemon was of the view that the inspector's test where 

the water was drained from the scrubber was more accurate than 

West Elk's suggested test because there is less room for error 

"where water is still trapped there because of various reasons," and because "it leaves less error for the machine to 

lie to itself" (Tr. 336). Based on his experience with the 

type of scrubber in question, he believed that under normal 

operating conditions the scrubber could be empty of water, yet 

the low water tank could still have water in it causing the 

machine "to lie to itself" (Tr. 337). He disagreed with 

Mr. Murphy's opinion that any test "quirks" during the testing 

of the machines would not appear in the normal operation of 

the cars (Tr 338). He confirmed that the mine has inclines, 

and he agreed that if tested on an incline, it could cause the 

machine to lie to itself indicating it had water when it did 

not CTr. 339). 

146 
Mr. Lemon was of the opinion that Inspector Biondich 

complied with steps 2Ca) and 2(c) as outlined in the Jeffrey 

0-2 test procedures, and that following those steps, he effectively tested whether or not the machine would shut itself 

down when there was insufficient water to cover the exhaust 

(Tr. 343). 

On cross-examination, Mr. Lemon stated that the best 

method for determining whether there is water in the scrubber 

is by draining the tank. Assuming the machine was not on a 

level when tested, this is done by opening the lower righthand valve on the scrubber. He also identified the 11 seven 

inch level" plug on the left lower side of schematic 0-1, 

marked "mechanic" on photographic exhibit 0-3, and stated that 

if the machine is on an incline, prudence would dictate that 

this plug should be pulled to determine whether there was any 

water in the scrubber tank, and that one could stick his finger "in and around in the tank and see if the water is there 

at the seven inch level" (Tr. 344). He conceded that this 

plug was not pulled during the testing of the cited machines 

(Tr. 345). 

Mr. Lemon stated that at the school he conducted on 

December 5, he covered the S-9 test procedures, and also covered the 0-2 procedures "as a courtesy of the company because 

they handed it to me." He stated that three or four tests 

were conducted during the school using both test methods (Tr. 

346). He agreed that in the event the scrubber tank drain is 

elevated relative to the rest of the tank, it is possible 

that water may be trapped in the lower and upper tanks, and 

water may be in the scrubber tank. He also agreed that if 

the gate valve between the water supply tank and the scrubber 

tank is turned off, it could cause an air lock and give 

invalid test results (Tr.,346-347). 

With regard to the test procedures, Mr. Lemon stated as 

follows (Tr. 347-349): 

Q. Is it your testimony that the 0-2 procedure 

should not be utilized in connection with testing these ram cars? 

A. No, because on the 4114's -- well, just 

like the maintenance book the company gave me 

themself, a lot of the units we have running 

out here in the west still have the old system. 

Then we have the newer system which is similar 

to the old system on these cars. And then we 

have basically this system which I've been 

familarized during this hearing, which is a 

147 
little bit new to me. I picked this up. So 

I'm going to be doing some more checking on 

this stuff, but we have the same instructions 

for the 4110 in that 4114 maintenance manual 

that's right there on the table. That's why 

we go over there. 

Q. You then learned quite a bit about this 

system with this hearing. 

A. I have, yes. 

Q. And you do agree, do you not, that the 0-2 

procedure is for the shut down system shown in 

0-1? 

A. I agree with that, but in my agreement, I 

also see some problems that need addressing. 

* * * * * * 

Q. It's not your view, is it that these 0-2 

procedures are improper or inapplicable to 

this machine, is it? 

* 

A. No. With the exception of -- I have a 

problem with the low level tank -- I have a 

problem with water being in that tank and all 

the water being out of the scrubber and the 

system lying and still not shutting the diesel 

down. That's where I have my problem. 

Q. You agree, though, that that can happen if 

this valve is closed shown in 0-1, that can 

also happen if the machine is not level. Isn't 

that true? 

A. Yes. 

In response to further questions from the bench, 

Mr. Lemon stated as follows (Tr. 363-365): 

Q. All right. Witnesses for the operator 

have maintained that if you don't drain the 

main tank, you're liable to get a spurious 

result. May I take it that you don't agree 

with that? 

148 
A. No. After this testimony today, you know, 

we will change our testing procedure and we'll 

go along with that because by -- according to 

the previous instructions, specially with the 

4110 scrubber, states to isolate the area. 

You turn the air off. That that, in 

fact -- and you open the cab to the reserve 

tank. That that, in fact, stops the flow of 

the water. But there seems to be a problem 

there that the company's come up with. and 

possibly Jeffrey, so we need to drain these 

completely out and take the full amount of 

time. 

* * * * * * * 

Q. And that you indicated, as I understood 

your testimony, that in actual operation, 

there's a possibility where these particular 

ram cars that were cited, that the system could 

lie in that the scrubber could be emptied and 

yet there could be enough water in the lower 

tank not to trigger the shut down system. Is 

that correct? 

A. Yes, sir, that's correct. 

Q. Isn't that really just another way of saying that there!s a design deficiency in the 

system? 

A. Yes, Your Honor, there is. 

Q. But it's your position that the Mine Safety 

and Health Administration has actually approved 

this par~icular design? 

A. That could very well be the problem. I 

could have overlooked something, Your Honor, 

in Tridelphia that could have missed us, but 

that's why I say this needs to be brought to 

the attention of appropriate people and I will 

do that. 

MSHA's Arguments 

MSHA argues that Inspector Biondich followed the normal 

inspection routine by having West Elk's mechanics conduct the 

test on each of the cited cars. MSHA asserts that the tests 

149 
generally were conducted by isolating the scrubber tank so 

that water would not continue to run into the scrubber tank 

from the reserve tank and then by draining all of the water 

from the scrubber tank through a 1 inch valve located on the 

bottom of the scrubber tank. By removing all of the water 

from the scrubber tank with the car diesel engine running, 

MSHA maintains that the inspector was able to determine 

whether the low-level water shutoff device worked properly. 

When it did not shut down the engines with the water removed 

from the scrubber, the device did not shut down the engine, 

and the citations followed. After repairs were made to the 

equipment, the low water shutoff device operated correctlyo 

MSHA asserts that there does not appear to be any factual 

dispute as to the testing procedure used by the inspector, but 

there is a dispute as to whether the test procedure in 0-2 or 

S-9 represents the manufacturer's suggested test. MSHA maintains that test procedures S-9 represent the proper testing 

methods, and that other than draining the scrubber tank rather 

than the low water tank, there is little difference between 

the inspector's test and the 0-2 test procedures. 

MSHA states that the specific areas in which the inspector's test and the 0-2 test differed are as follows: (1) 

The float assembly which senses whether or not the scrubber 

tank needs additional water is contained in the low-level 

water tank, an additional water tank which is attached to the 

scrubber tank and is ported to the scrubber tank so that 

water can flow between the two tanks. The company procedure 

recommends that the low-level tank rather than the scrubber 

tank be drained. The inspector's method involved draining 

the scrubber tank since that is the tank which cools the 

exhaust. (2) A second difference between the two procedures 

is that the company recommends that once the low-level water 

device has shut off the machine after the float tank has been 

drained, the water level in the scrubber tank should be measured. However, having drained the scrubber tank the inspector did not take the unnecessary step of measuring the absence 

of water in that tank. (3) The third distinction between the 

two test procedures was that the inspector omitted all of the 

steps set forth in subparagraph 2Cb) of the manufacturer's 

suggested testing procedure. All parties agreed that part of 

the procedure did not affect the results of the test but is 

only a diagnostic step to help isolate particular problems in 

order to facilitate repair. 

MSHA suggest that a fourth distinction apparently raised 

by West Elk is that the reserve tank should not be isolated 

during the test (Tr. 279), and that the inspector's method 

150 
which isolated.the reserve tank was faulty. MSHA asserts 

that the isolation of the reserve tank by the inspector is 

consistent with the maufacturer's suggested test (See Ex. 0-2 

where the first step in the test isolates the water tank by 

closing the needle valve between it and the low pressure a~ 

regulator> and the practice used by other operators. MSHA 

further asserts that while West Elk's evidence is contradictory on this point, if it means to suggest the two tests 

differ in this respect, MSHA believe the inspector's test was 

consistent with the manufacturer's test. 

MSHA disputes the notion that the manufacturer's suggested 0-2 test procedures were somehow "approved by MSHA." 

It points out that the only evidence of such an "approval" 

came from the manufacturer's mine mechanic, Michael Murphy, 

who testified that he called a supervisor who told him he 

thought the 0-2 test procedure had been "approved" by MSHA. 

MSHA discounts Mr. Murphy's reliance on the fact that the 0-2 

procedure had a stamp at the bottom saying that prints were 

not to be altered without approval by MSHA, and points to the 

fact that the page did not contain prints. MSHA points out 

further that Mr. Murphy was a mechanic and that he had little 

contact with his own national organization and was not familiar with the dealings between his organization and MSHA. On 

the other hand, Mr. Jerry Lemon from MSHA works closely with 

the Certification and Approval Division, and has reason to 

know what machines and what modifications are approved. He 

testified that the operator is required to submit a test procedure to MSHA and that procedure which was submitted by the 

manufacturer is contained on the last two pages of S-9. Further, that test procedure was made the subject of a short 

training course for inspectors which is contained in S-9, and 

it was the procedure set forth in S-9 which was used to test 

the twelve shuttle cars. 

MSHA believes that the inspector's test is the best test 

under all circumstances because it tests whether the machine 

will shut itself off when there is no water in the scrubber 

tank to cool the exhaust, while the manufacturer's tests only 

determine whether the machine will shut itself off when the 

water is drained from the auxiliary lower level tank which 

contains the float assembly. MSHA further believes that the 

inspector's test is more accurate because he is concerned 

with whether or not the machine will shut itself off when 

there is no water in the scrubber tank and not whether or not 

it will shut itself off when there is no water in the float 

tank. MSHA views this difference as critical, and suggests 

that there are several factors where water could be drained 

from the scrubber tank, allowing the exhaust to escape to the 

151 
hostile environment without draining the low-level tank. The 

valve to the scrubber tank could be inadvertently left open, 

it could be accidentally knocked open while the machine is in 

transit, or the scrubber tank could become ruptured, all of 

which would allow water to escape from the scrubber tank and 

allow the machine to run while water was retained in a low 

water tank. 

In response to the testimony by the manufacturer's representative Murphy that the inspector's test should be discounted because of test "quirks" which cause the machine to 

"lie to itself" because of testing on inclines and the possibility of air locks, MSHA asserts that it is reasonable to 

conclude that if the machine would not shut itself off on an 

incline during testing, it would also fail to shut itself off 

on an incline under normal operating procedures. As for the 

air lock theory, MSHA concludes that Mr. Murphy's opinion is 

more speculation, and not based on any "hard evidence." 

MSHA concludes that the evidence fully supports the 

inspector's citations. Twelve cars were tested by draining 

the scrubber tank1 five failed to shut themselves down~ after 

short periods of repair all five worked properly using the 

same test that discovered the defective condition. The operator's defenses that the inspector used an improper test and 

that the results were inaccurate do not stand up under close 

scrutiny. The ventilation plan requires the operator to operate and maintain equipment according to manufacturer's specification. The ventilation plan does not bind MSHA to test 

the equipment as suggested by the manufacturer. MSHA may use 

the most accurate test. In any event, the S-9 test used by 

MSHA is the test submitted by the manufacturer for certification and approval. West Elk's testimony that the inspector's 

test was inaccurate is based on pure speculation and a twist 

of logic that the conditions of the test could never be duplicated in actual operations. West Elk's position defies logic 

and is contrary to the evidence. 

West Elk's Arguments 

west Elk asserts that no less than four test procedures 

of the low water shutdown devices were described at the hearing in these cases: First, there was the test procedure utilized in connection with issuing the citations. Second, there 

was a separate test procedure which the inspector had with him 

during the inspections but which played no role in the issuance of the citations (Tr. 100, 104). A third test procedure 

described was that employed for a different series of Jeffr~y 

ram cars as discussed by MSHA's expert, Mr. Lemon (Tr. 125-126; 

152 
Exhibit S-9). Finally, there was described at the hearing the 

test procedure authorized by the manufacturer as contained in 

Exhibit 0-2. This test procedure is part of the manufacturer's 

specifications and maintenance procedures (Tr. 203). 

West Elk points out that the test procedures employed by 

Inspector Biondich to support the citations were not the 

manufacturer's approved procedures found in 0-2, and that he 

had not even seen a copy until he attended a school conducted 

by Mr. Lemon at the mine in December, 1985, several weeks 

after the citations were issued. West Elk asserts that 

Mr. Biondich's test procedure was a shortcut method which may 

or may not produce valid results, and that this accounts for 

the fact that several other cars tested by Mr. Biondich 

showed the low water shutdown devices on those cars to be 

working properly. West Elk further points out that Mr. Lemon 

indicated that prudence requires that in the event a shortcut 

procedure does not show the system to be functioning properly, a detailed test should be conducted, and that he agreed 

that the 0-2 test procedures are proper and more thorough 

than the S-9 procedures relied on by the inspector. 

West Elk asserts that the testimony of manufacturer's 

representative Murphy demonstrated that a shortcut testing 

method can produce invalid results when the machines are 

parked on an incline while testing because of air locking, 

water locking, and the closing of the gate valve between the 

water supply tank and scrubber tank. West Elk asserts further that the parties are in agreement that the test results 

may be invalidv and that an apparent flaw in the inspector's 

test procedure was the closing of the gate valve on some of 

the cars. West Elk maintains that during the tests the 

inspector required the closing of this valve, and that 

Mr. Lemon admitted that this could result in air locking and 

produce invalid test results, and that he finally concluded 

that the design of the scrubber may itself be flawed. 

West Elk maintains that other significant flaws in the 

test employed by Inspector Biondich include the fact that in 

at least two cases the scrubber was not allowed sufficient 

time to drain fully and that water was still trickling out 

when the citations were issued. If not given sufficient time 

to drain, air locks can be created. West Elk points out further that no defective parts were found on any of the cited 

cars, and that after suspecting that the test procedures 

employed by the inspector led to inconsistent results, 

Mr. Skvarch compared both test procedures after the citations 

were issued and found that procedures 0-2 worked, while the 

inspector's test did not. In one case, Mr. Murphy tested a 

153 
cited car utilizing procedure 0-2 before any abatement work 

was done, and the engine shut down, thus showing that there 

was no malfunction in the system. 

west Elk argue·s that when called in rebuttal near the 

end of the hearing, Mr. Lemon admitted that the entire scrubber system in question was "a little bit" new to him, and 

that in view of the evidence adduced during the hearing 

stated that "we will change our testing procedure." West Elk 

maintains that since the issuance of the citations, MSHA now 

uses test procedures 0-2 to conduct tests of the low water 

shutdown systems, and that since these procedures are the 

only ones approved by MSHA, they are the only proper procedures, and the tests used to support the citations were not 

authorized. 

West Elk maintains that MSHA has not established that 

the cited scrubber systems were not functioning properly 

because the inspector's shortcut test procedures were flawed, 

and were not the proper tests recommended by the manufacturer. 

West Elk maintains that since the manufacturer has specified 

a specific test procedure for the testing of the scrubber 

system, MSHA's use of another procedure not approved by the 

manufacturer cannot be used as a basis for establishing a 

violation of the MSHA approved mine ventilation plan which 

requires that the equipment be maintained in accordance with 

the manufacturer's (not MSHA's} specifications. West Elk 

concludes that the MSHA test procedure is simply not a valid 

one, and that MSHA has not sustained its burden of showing by 

a preponderance of the evidence that any of the alleged violations occurred. 

West Elk argues that even assuming the validity of the 

test procedure followed by the inspector, under the circumstances presented in these proceedings, the procedure did not 

produce reliable results. In support of this conclusion, 

West Elk points out that the inspector required that a gate 

valve which existed on some, but not all of the cars, be shut 

off between the main water supply tank and the scrubber tank. 

According to the testimony of Mr. Lemon and Mr. Murphy, the 

shutting of this gate valve could cause an air lock to form. 

Further, since the scrubber tank in each cited instance was 

not parked in such a fashion as to assure complete draining 

of the scrubber tank, and because the scrubber tank was 

drained through the main drain valve rather than the lower 

level tank as required by the manufacturer's 0-2 procedures, 

the angle at which the cars were tested played a role in the 

outcome of the tests. In each instance, the lower drain plug 

from which water in the scrubber tank was drained was elevated 

154 
relative to the remainder of the tank thereby possibly trapping water both within the tank and the lower level tank. It 

is the lower level tank which senses the presence .or absence 

of water needed to cool the hot diesel exhaust gases. Thus, 

when the cars were tested, water may have been trapped in the 

lower level tank, thereby producing an invalid result. In 

essence, because the machines were parked at an angle, water 

trapped in the lower level tank lead the sensors to conclude 

that sufficient water was in the scrubber tank thereby misleading the device into the false belief that sufficient water was 

in the scrubber tank. The manufacturer's 0-2 procedures compensates for the effects resulting from the equipment being 

parked at an angle or on an incline. 

Thus, even assuming that the test employed is reasonably 

calculated to produce a reliable result, West Elk asserts 

that there is a reasonable likelihood that the results of the 

test were not valid because of air locks on the one hand 

and/or the angle on which the machines were sitting at the 

time the test was conducted. Since the test results are not 

reliable, West Elk concludes that MSHA has not sustained its 

burden of proving the alleged violations. 

West Elk points out that in reply to an inquiry from 

Judge Carlson during the course of the hearing, MSHA distilled 

its case to a single concept: that the shutoff devices did 

not work, but should have (Tr. 163-164). West Elk asserts 

that MSHA apparently believes that any test procedure is appropriate so long as it is reasonably calculated to produce a 

reliable result. However, West Elk insists that MSHA's theory 

does an injustice to the plain words of the ventilation plan 

that the equipment be maintained in accordance with the manufacturer's specifications rather than some specification-s~­

chosen by MSHA, and suggests that MSHA is not bound by the 

same requirements as the mine operator. West Elk maintains 

that MSHA should not be allowed to use an unapproved, arbitrary test procedure to support a violation of the ventilation 

plan requirement which is related solely to manufacturer's 

specifications and requirements, and that to do otherwise violates fundamental notions of due process and fairness. 

West Elk concludes that the same rules must apply to both the 

mine operator and MSHA, and that Mr. Lemon acknowledged as 

much when he stated that, in view of the evidence presented, 

"we will change our testing procedures" (Tr. 363). 

West Elk advances an ancillary issue as to whether the 

test procedure actually employed in testing the cited shutoff 

devices was a shortcut methodology selected by West Elk or 

whether it was a procedure dictated by the inspector. If the 

155 
former, West Elk acknowledges that one might arguably assert 

that West Elk is bound by its own procedures and may be 

estopped to deny the appropriateness as such test procedures 

in establishing the violations. However, West Elk believes 

that the entire test procedure employed was that mandated by 

the inspector, and he admitted that he required a valve to be 

closed and that this did affect the test results. Notwithstanding the inspector's denial that he directed the tests, 

West Elk relies on the testimony of its witnesses who accompanied the inspector that in each and every instance they 

told the inspector that they did not know of the appropriate 

test procedure, to which the inspector responded he would 

tell them how to conduct the test. West Elk submits that the 

testimony of these witnesses, and the testimony of Mr. Murphy, 

who witnessed one of the tests and confirmed that it was at 

the direction of the inspector, is much more credible. In any 

event, West Elk further concludes that it is clear that the 

manufacturer's test must be employed to determine whether the 

manufacturer's equipment is being properly operated and maintained, and that any other test procedure used by MSHA would 

result in de facto rulemaking with respect to those procedures. 

West Elk argues that as a matter of law, the citations 

issued by the inspector state no violation because there is 

no requirement in its ventilation plan that low water shutdown 

devices shut off the car engine when water is drained from the 

scrubber tank. West Elk points out that the sole evidence of 

its alleged failure to meet its responsibilities under the 

ventilation plan is the failure of the machine to shut down 

when water was drained from the scrubber tank. west Elk 

asserts that MSHA points to no provision of any maintenance 

manual or operating specifications to support this allegation, 

and that it seeks to impose by fiat a new requirement that 

engines on diesel equipment shut down when water is drained 

from the scrubber tank even though this asserted requirement 

is not part of the ventilation plan. 

West Elk asserts that it has long been held that ventilation plan requirements are enforceable in the same manner as 

mandatory standards. Ziegler Coal Company v. Kleppe, 

536 F.2d 398, 1 MSHC 1424 (D.C. Ct. App. 1976). Mandatory 

standards must be reasonably precise in order that the operator be given fair warning of the conduct which is proscribed. 

Secretary of Labor v. Missouri Gravel Company, 2 MSHC 2223 

CALJ, 1983). Since the ventilation plan contains no requirement that the engine shut down when water is drained from the 

scrubber tank, MSHA cannot maintain that such a requirement 

exists in view of the holdings of Ziegler and Missouri Gravel. 

West Elk concludes that no violation is properly stated in 

156 
the citations as a matter of law in that neither 30 C.F.R. 

§ 75.316 nor the ventilation plan requires that diesel equipment shut down "when water is drained from the scrubber tank." 

west Elk asserts further that the failure of an engine 

to shut down when a low water shutdown device is properly 

tested may be some evidence of a failure to achieve the ventilation plan's mandate for proper maintenance and operation, 

standing alone, test results using proper test procedures do 

not show by a preponderance of the evidence that the ventilation plan requirements have not been achieved. When it is 

considered that the test actually employed was wholly invalid, 

it cannot be said that MSHA has met its burden of proving a 

violation of 30 C.F.R. § 75.316. 

Findings and Conclusions 

West Elk is charged with violating the mandatory ventilation system and methane and dust control requirements of 

30 C.F.R. § 75.316, because it allegedly failed to maintain 

the low water shut down devices on the cited shuttle cars in 

accordance with the manufacturer's operating maintenance specifications. MSHA's theory is that tests conducted by West 

Elk at the direction of the inspector, for the purpose of 

determining whether the shut down devices were functioning 

properly, indicated that the devices were not performing as 

required, and support the inspector's findings. West Elk's 

defense is that the citations are not supportable because the 

test procedures mandated by the inspector in support of the 

citations were not the proper test procedures, were flawed, 

and were in fact unauthorized "shortcut" procedures which 

provided unrealiable and invalid results. 

The ventilation plan requirements found in 30 C.F.R. 

§ 75.316, provide as follows: 

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 

157 
reviewed by the operator and the Secretary at 

least every 6 months. 

It is well-settled that once a mine operator adopts an 

approved ventilation plan, the operator is required to comply 

with its provisions, Ziegler Coal Company, 4 IBMA 30, aff'd 

536 F2d 398, 409 (D.C. Cir.) (April 22, 1976); Mid-Continent 

Coal and Coke Company, 3 FMSHRC 2502 (1981). In short, a 

violation of an operator's ventilation plan constitutes a 

violation of 30 C.F.R. § 75.316. 

The parties agree that the applicable approved ventilation plan requirements are those which appear in exhibit S-1, 

and the inspector confirmed that the specific plan requirement he relied on is found in numbered paragraph A.2., page 

28. The plan requirements for diesel equipment states as 

follows: 

A. Diesel Equipment 

1. Any diesel equipment used inby the 

last open crosscut will comply with Title 30, 

Part 36 of the Code of Federal Regulations. 

2. All diesel equipment will be operated 

and maintained in accordance with the manufacturer's operating specifications and maintenance manual. These manuals and specifications 

will be made available for reference. 

3. Each diesel face equipment unit will 

be examined on a daily basis to insure that 

the engine and scrubber system are operating 

properly to minimize poisonous exhaust gases. 

Additionally, the exhaust of each unit will be 

examined to insure compliance with Section 

75.301-2, 30 C.F.R., regarding current threshold limit values for carbon monoxide and 

oxides of nitrogen. 

On working sections using diesel equipment 

an examination will be made for carbon monoxide 

and oxides of nitrogen in the immediate return 

of each split to determine compliance of Section 75.301-2, 30 C.F.R. The examination will 

be made after normal operations have begun but 

no longer than 4 hours after start up. 

158 
Any other non-face diesel equipment opera ting in an outby area will have an examination 

made for carbon monoxide and oxides of nitrogen 

gases immediately down wind from the working 

area on a weekly basis. 

A record of each examination and maintenance check will be kept in a book for that 

purpose which shall include the date, time, 

examination or maintenance check results, and 

samplers initials. 

4. The minimum quantity of air to be 

maintained over each piece of diesel equipment 

during operation shall be 10,000 CFM, and the 

minimum quantity of air passing through the 

last open crosscut where diesel equipment is 

used shall be 20,000 CFM. (Emphasis added). 

One basic issue which needs to be addressed is whether 

or not the citations issued by the inspector sufficiently 

describe a condition or practice which allegedly violates 

West Elk's approved ventilation plan. In each of the citations, the inspector alleges that west Elk failed to comply 

with its approved plan because it failed to follow the manufacturer's specifications in the care and use of diesel equipment • in that the low water shut down . • • would not 

SFiUt the engine off when the water was completely drained 

from the scrubber. West Elk argues that the sole evidence of 

its alleged failure to comply with the plan is the failure of 

the cited machine engines to shut down when water was drained 

from the scrubber tank. West Elk points out that since there 

is nothing in the plan mandating that the engine shuts off 

when water is drained from the scrubber tank, no violations 

of its plan have been established. 

I take note of the fact that the inspector failed to 

include in the citations any specific references to the applicable ventilation plan provisions, manufacturer's specifications, or permissibility standards which he believed were 

violated. Section 104(a) of the Act requires that a citation 

describe with particularity the nature of the violation, 

including a reference to the provision of the Act, standard, 

rule, regulation, . alleged to have been violated. 

Although the citations do include a specific reference to the 

general ventilation plan requirements of section 75.316, the 

inspector's failure to pinpoint the particular permissibility 

standard, plan provision, or manufacturer's specifications 

allegedly violated puts the presiding judge in the untenable 

159 
position of fishing through the record and standards to identify the applicable requirements. 

I have reviewed the transcript of Inspector Biondich's 

testimony, and find that it is devoid of any references to 

any specific applicable permissibility standards or manufacturer's specifications allegedly violated. The inspector 

identified the ventilation plan, quoted paragraph 2, and concluded that "They weren't being operated, maintained, in 

accordance with the manual" (Tr. 11). He also identified a 

diagram of a low water shutoff device, and confirmed that it 

was "illustrative" and "on the order of this type of equipment we were checking." He also confirmed that it was "illustrative" and "on that order" of the scrubber on the No. 6 car 

which he cited on October 25, 1985 (Tr. 21). However, the 

schematic was not offered or received as part of the record, 

and was withdrawn. 

I have also reviewed the transcript of Mr. Lemon's testimony, and find no reference to any specific permissibility 

standards allegedly violated in this case. Mr. Lemon referred 

to a diesel equipment permissibility "checklist" used by MSHA 

for training purposes (exhibit S-9), and stated that he is 

involved in conducting training for "diesel inspection of permissible schedule 31 equipment and underground coal mines for 

all electrical inspectors 11 (Tr. 125). Assuming that Mr. Lemon 

was alluqing to the permissibility requirements found in 

Part 31, Title 30, Code of Federal Regulations, I take note of 

the fact that they pertain to standards dealing with diesel 

locomotives. 

MSHA's posthearing brief contains no discussion with 

respect to any applicable permissibility standards for the 

cited cars in question. The only reference to any permissibility requirements is found at page 2 of the brief which 

states in pertinent part as follows: 

The 12 ram shuttle cars are used to carry 

the coal from the face area to a dump point. 

Since the cars work in the face and passed the 

last open crosscut they are required to be in 

compliance with the permissibility standards. 

Those permissibility standards require the hot 

exhaust from the diesel engine to be routed 

through a device known as the scrubber. The 

purpose of the scrubber is to cool the exhaust 

so that exhaust and expelled carbon particles 

will not act as sources of ignition. 

160 
The only clue in the transcripts as to the applicable 

permissibility standards appears at page 167 where MSHA's 

counsel makes reference to "part 36" (Tr. 167). During a 

colloquy with the Court, counsel stated as follows (Tr. 

167-169): 

* * * * * * * 

But here, Your Honor, the case, what we have 

simply said is that the shutoff devices do not 

work. Didn't say why they don't work. Whether 

they were inspected or inspected regularly or 

inspected properly. Obviously, they wouldn't 

be put on there if the manufacturer didn't 

intend for them to work. Ventilation plan says 

that what is on there, what's required to be on 

there, has to work. 

JUDGE CARLSON: Okay. Fine. 

say that? I'd like to know. 

that certainly, but --

Where does it 

It should say 

MR. BARKLEY: It's in the first exhibit which, 

I believe, is S-1. 

JUDGE CARLSON: Okay. I have not seen that. 

(Pause.) 

MR. BARKLEY:· The first two paragraphs of that 

deals with this question. First of all, 

part 36 requires that all these be maintained 

and permissible equipment and we feel that the 

scrubbers weren't working. Obviously, they 

weren't being maintained in permissible condition. Also, paragraph two says generally you 

have to operate this equipment in accordance 

with manufacturer's specifications. And 

there's a scrubber on there that's meant to 

work. It should work. 

JUDGE CARLSON: Where does it say that? It 

certainly makes good sense to me, but does it 

say that somewhere in the operator's manual? 

MR. BARKLEY: Your Honor, I think that's one 

of the things that's so basic, nobody says it. 

I have looked at the manual since I've been 

here and there are pages devoted to the maintenance of this particular system. Obviously, 

161 
with the intent to maintain it, you expect it 

to work, but it doesn't say the obvious fact, 

chapter 2, we've equipped with machine with a 

scrubber, it should work. Here's how you make 

it work. I don't have the permissibility standards. I believe I've got some. The standards 

that you ref erred -- but you ref erred to the 

permissibility standards. Here's a general 

catch-all there that says face equipment operator -- last open crosscut has to be maintained 

in a permissible condition. We have evidence 

that the fact equipment operator passed the 

last open crosscut. Permissible diesel equipment has to have a scrubber on it. The standard 

says it has to be maintained in a permissible 

operating order. Our theory is that the tests 

show this was not maintained in a permissible 

operating order. Just didn't work. Just didn't 

shut the machine off. 

Paragraph 1 of the ventilation plan requires that all 

diesel equipment used inby the last open crosscut comply with 

Title 30, Part 36, Code of Federal Regulations. I take note 

of the fact that Part 36 are the MSHA regulatory construction 

and design requirements for approval and certification of 

diesel powered equipment used in noncoal mines. Since west 

Elk is a coal mine operator, my assumption is that it has 

agreed to abide by these regulations since they have been 

incorporated as part of the approved ventilation plan. Under 

the circumstances, it would appear that these are the permissibility standards applicable to the cited cars in question. 

Section 36.25 covers the requirements for engine exhaust 

systems, and subsection (b) and (c) deals with exhaust flame 

arresters and "exhaust-gas cooling boxes." I assume that the 

scrubbers in question fall within these requirements, and 

take note of the fact that subsection 36.25(b)(l}, (3), and 

(c) provi in pertinent part as follows: 

(b)(l) The exhaust system of the engine 

shall be provided with a flame arrester to 

prevent propogation of flame or discharge of 

heated particles to a surrounding flammable 

mixture. 

· (b)(3) In lieu of a space-place flame 

arrester, an exhaust-gas cooling box or 

conditioner may be used as the exhaust flame 

arrester When used as a flame 

arrester the cooling box shall be equipped 

162 
with a device to shut off automatically the 

fuel supply to the engine at a safe minimum 

water level. 

(c) A device shall be provided that will 

automatically shut off the fuel supply to the 

engine immediately if the temperature of the 

exhaust gas exceeds 185 degrees F. at the 

point of discharge from the cooling system. 

The general permissibility test procedures for engine 

exhaust-gas cooling systems is found in section 36.47. Aside 

from general statements that tests should be made to determine the performance of the cooling system, "and low water 

level when the cooling system fails" (subsection (b)), and 

the adequacy of the temperature actuated automatic fuel shutoff device, there is nothing in the procedures detailing the 

specific test procedures which the parties believe are applicable to the cited cars. 

Although I agree that the narrative description of the 

alleged violative conditions cited by the inspector may be 

inartfully stated, after review of the entire record, including the answer filed by west Elk, its motion for summary judgment, and the testimony of all of its witnesses, I am not 

convinced that West Elk was unaware of what it was being 

charged with. 

west Elk's suggestion that an allegation that it violated 

its ventilation plan because the car engines would not shut 

down when water was drained from the scrubber tanks cannot be 

sustained because the plan contains no such specific requirement is rejected. In my view, the inspector's conclusions 

that the engines would not shut down when the cars were tested 

simply reflect the inspector's opinion and belief that West 

Elk did not maintain the low water shutoff devices in an operable condition so as to permit them to do what they were 

intended to do,!·~·, shut down the engine when the water in 

the scrubber reached a certain level. MSHA still has the burden of proving by a preponderance of the credible evidence 

that this was in fact the case. MSHA also has the burden of 

establishing that the test procedures relied on by the inspector in support of the alleged violations were proper, valid, 

and probative. 

There is a dispute as to whether the test procedures 

followed by the inspector to support the citations were proper 

and valid. west Elk believes that the 0-2 test procedures are 

the approved manufacturer's test procedures which apply to the 

163 
cited cars, and are the procedures which should have been 

followed. MSHA believes that the S-9 procedures represent the 

manufacturer's suggested test procedures, and it sees "little 

difference" in the two. However, at page 4-5 of its brief, it 

goes into some detail in describing three, and possibly four, 

differences between the two procedures. At pages 2-3 of its 

brief, west Elk points out that no less than four different 

test procedures were described during the hearing. 

I take note of the fact that the approved ventilation 

plan does not specifically include any reference or guidance 

with respect to the proper test procedures for insuring that 

once placed in operation, the approved diesel equipment is in 

fact being maintained in accordance with the permissibility 

requirements of 30 C.F.R. Part 36, as required by paragraph 1 

of the plan. Although I enjoy the benefit of hindsight, it 

seem~ to me that during the ventilation plan approval process, 

the specific testing requirements for all diesel equipment 

used in the mine to insure continued compliance with MSHA's 

permissibility requirements should have been addressed and 

incorporated as part of the plan. Only in this way can the 

parties clearly know what the ground rules are. In my view, 

this case is a classic example of how a broadly drawn and 

ill-defined ventilation plan can generate litigation and 

enforcement issues such as those presented in these 

proceedings. 

MSHA's threshold suggestion that the ventilation plan 

language found in paragraph 2 is only limited to equipment 

operational and maintenance requirements, and does not speak 

to the manner in which the cited equipment is to be tested is 

precisely the point raised above. MSHA's suggestion that it 

is not bound by the approved ventilation plan, or the 

suggested manufacturer's testing procedures, and may "use the 

most accurate test," are not well taken. 

On the facts of this case, the inspector issued the citations because he concluded that the cited equipment low water 

shutdown devices were not being maintained in accordance with 

the manufacturer's operating specifications. The only evidence available to the inspector to support this conclusion 

are the results of the tests administered by the operator 

following the inspector's directions and instructions. Since 

the operator is required to follow the manufacturer's specifications to insure compliance with MSHA 1 s permissibility 

requirements, and exposes himself to liability if he does 

not, I do not find it unreasonable to expect an operator to 

use the testing requirements suggested by the manufacturer to 

insure that the equipment is maintained properly. I believe 

164 
it is basically inconsistent and unfair for MSHA to insist on 

the one hand that a mine operator follow the manufacturer's 

specifications to stay in compliance, and on the other hand 

argue that when it is found out of compliance, MSHA can use 

any test it chooses to support violations and civil penalty 

assessments for those violations. In these circumstances, I 

agree with west Elk's position that the use of arbitrary, 

unapproved or invalid testing methods to support a violation 

of its ventilation plan violates fundamental notions of due 

process and fairness. 

MSHA's assertions that the ventilation plan language 

relied on by the inspector as the underpinning for the citations is limited to operational and maintenance specifications, and not to the methods used for testing the equipment 

to insure compliance with those specifications, ARE REJECTED. 

I conclude and find that a reasonable interpretation of the 

plan and its intended purpose to insure continued compliance 

with MSHA's permissibility requirements, supports a conclusion that west Elk was not only required to rely on the manufacturer's specifications to insure compliance with MSHA's 

requirements, but was also required to follow the manufacturer's test procedures to insure that it stays in compliance. 

If west Elk decides to use some other testing methods, and 

the equipment is subsequently found to be out of compliance, 

it does so at its peril, and assumes the risk of being cited. 

Conversely, since MSHA bears the burden of proof in establishing a violation by a preponderance of the credible evidence, 

I further conclude and find that MSHA must play by the same 

rules, and any alleged violations of its permissibility 

requirements must be established by the same testing requirements imposed on West Elk pursuant to its approved plan. Of 

course, if MSHA can establish that an approved testing procedure other than that of the manufacturer is part of the plan 

requirement, and that the procedure has in fact been adopted 

as part of the plan a fair notice to the operator, then 

both parties would be bound by that test procedure. 

The S-9 test procedures which MSHA claims are the only 

MSHA-approved procedures applicable to the cited cars state 

as follows: 

165 
Exhaust System 

* * * * * * * 

3. Low water shutdown test. 

With the water tank air pressure turned off 

and the engine running at idle, slowly drain 

the water from the scrubber at the drain •. 

Continue to drain the water until the low 

water shut-down system activates the safety 

system and shuts down the engine. Quickly 

close the drain so as not to loose (sic) any 

more water. Remove the cap on top o"f"the 

scrubber and measure the water depth. This 

measurement must be 8-1/2 + 1/2 inches. 

The o-2 test procedures which West Elk claims are the 

MSHA-approved procedures applicable to the cited cars state 

as follows: 

2. Low Scrubber Water Shut Down 

a. With supply water tank full and scrubber 

water at running level, close needle valve 

between low-air pressure regulator and water 

supply tank. Vent water tank by pushing red 

button on top of fill cap. Rotate cap 

counter-clockwise to first safety catch, thus 

allowing water tank to remain vented during 

test. 

b. With engine running, disconnect the air 

supply line at the upper tank vent valve. 

Loss of air should shut down the engine. 

After engine shuts down, reconnect the air 

line, reset the trip indicator, and restart 

the engine. 

c. Slowly drain the water from the scrubber 

through the drain valve in lower level tank 

until the engine shuts down. Immediately 

close the drain valve. Check the scrubber 

water level by removing first the top pipe 

plug on the rear of the lower tank (7" level) 

and if no water is visible, then reopen the 

valve (6 11 level). If no water flows from the 

bottom valve the system is not functioning properly. 

166 
The introductory language which appears on page 1 of the 

0-2 test procedures states in pertinent part as follows: 

"Listed below are the items and functions that must be maintained at all times in order to keep approval status of this 

vehicle. This checklist should be posted for easy reference 

by the personnel that have been assigned this responsibility." 

MSHA takes the position that the Jeffrey manufacturer's 

0-2 test procedures do not have MSHA's approval, and that the 

only test procedures submitted by Jeffrey are those found in 

S-9. MSHA discounts Mr. Murphy's reference to the MSHA 

"stamp of approval" which appears on the face of 0-2 as an 

indicia of MSHA approval. MSHA asserts that this printed 

information refers to "prints," and that the procedures are 

not "prints." 

Mr. Murphy believed that the 0-2 procedures have been 

approved by MSHA, and stated that he was so advised by a 

Jeffrey manufacturer's representative. Mr. Skvarch agreed 

(Tr. 210). In describing the procedures, Mr. Murphy characterized them as follows at (Tr. 251): 

* * * * * * * 

This is the permissibility checklist that we 

have submitted to MSHA in Tridelphia and have 

their approval to distribute as an approved 

piece of drawing. It's an approved drawing. 

In other words, it's not just a piece that 

goes in the maintenance manual. It goes in 

the parts book as an approved drawing. Something that I understood is not to be deviated 

from and it has been, sent out to customers 

that have this type of a system to show that 

that is how the system has to be checked to 

see if it is working. 

Mr. Lemon referred to the very same printed information 

appearing on 0-2 as did Mr. Murphy, and Mr. Lemon believed 

this information evidenced the fact that the cited Jeffrey 

cars are MSHA certified and approved, and he confirmed that 

the 0-2 permissibility checklist submitted by Jeffrey is 

applicable to the model 4114 ram cars CTr. 129, 133). 

Mr. Lemon confirmed that he was previously aware of the 0-2 

checklist even though he never saw it in any manuals, and 

stated that "it may have come along with the prints, ••• 

sent out to the different coal operators that have this.type 

of machinery on their property" (Tr. 121). 

167 
The term "print" is defined by Webster's New Collegiate 

Dictionary as "printed matter" or "a reproduction." Although 

one may speculate that the term "print" refers to the car 

specifications, I also note that the document contains the 

word "Drawing No. 532A329," and it is altogether possible 

that this refers to the car specifications. However, none of 

these contradictions in terminology is explained or clarified 

by MSHA's expert witness Lemon. 

Mr. Lemon and Mr. Murphy are in agreement that the 0-2 

permissibility test procedures are included among the materials shipped by Jeffrey as the manufacturer's test procedures. Since the equipment is MSHA certified and approved, 

and absent any evidence to the contrary, I conclude and find 

that the 0-2 procedures are part and parcel of the Jeffrey 

manufac:turer's specifications, and that the term "print" 

appearing on each page of 0-2 refers to the printed material 

appearing therein, including the scrubber shutdown test 

procedures. 

MSHA's suggestion that the testing procedures followed 

by the individuals who tested the cited cars were their 

responsibility, and that Inspector Biondich was merely a 

"~asual observer" are not well taken. I believe the testimony of the three company representatives who accompanied 

Mr. Biondich, and conclude that he dictated the test procedures and gave instructions as to how the tests were to be 

performed. 

Mr. Skvarch testified that the 0-2 procedures are kept 

at the mine and that they are part of the equipment specifications and maintenance procedures (Tr. 203). Even though the 

ventilation plan requires that they be made available for 

reference, Inspector Biondich admitted that he never asked to 

see them at the time of his inspections. He conceded that 

the 0-2 procedures are the proper ones for testing the cited 

cars, and admitted that he did not follow them when he issued 

the citations (Tr. 65, 69, 91), and that the instructions he 

gave for shutting the water supply between the supply tank 

and scrubber tank were not part of the 0-2 procedures (Tr. 

73). Mr. Biondich also agreed that the 0-2 procedures 

appeared to be approved by MSHA (Tr. 75). 

Although Inspector Biondich alluded to several other test 

procedures which were in his briefcase at the time of his 

inspections, he conceded that they pertained to scrubber 

models 410, HR 150, and 411 H, which are different from the 

ones he cited, and that he did not use them (Tr. 100-101). · 

168 
As a matter of fact, there is no evidence that Mr. Biondich 

relied on any written test procedures at the time he inspected 

the cars and issued the citations, and simply relied on his 

own notions as to the test procedures which should be used. 

The three West Elk representatives who accompanied Mr. Biondich 

during his inspections all confirmed that he did not refer to 

any written test procedures during his inspections, and maintenance manager Skvarch expressed concern that Mr. Biondich was 

using the wrong test procedures. 

Mro Murphy testified that the S-9 test procedures are 

not the proper procedures for testing the cited cars because 

they pertain to a di erent type of low water shutdown 

devices than those on the cited cars (Tr. 261). Mr. Skvarch 

was of the same opinion (Tr. 201). Although Mr. Lemon 

believed that the S-9 procedures deal with the "same type of 

scrubbers" as those cited by the inspector, and identified a 

diagram of a cylindrical type 4110 flame arrestor which 

appears at page 4 of S-9, as one of these which was cited, he 

conceded that it was not the same type scrubber which the 

inspector said he cited (Tr. 70, 125-127). 

MSHA suggests that since Mr. Murphy is "a mechanic" with 

little contacts with Jeffrey and no familiarity with the dealings between Jeffrey and MSHA, his testimony is less credible 

than Mr. Lemon, who works closely with MSHA's Certification 

and Approval Division, and has reason to know what machines 

and modifications are approved. MSHA's position is not well 

takeno Mr. Murphy ls an experienced senior equipment serviceman whose duties include troubleshooting and instructions as 

to how to maintain and service the equipment. The fact that 

he is not directly involved in the certification and approval 

process, and all of the paperwork that goes with that process, 

is no basis for concluding that he is ignorant of the test 

procedures which apply to the equipment in question. Since 

testing is an integral part of maintaining and servicing the 

equipment, and since Mr. Murphy is an experienced serviceman, 

I conclude that he is just as competent as Mr. Lemon, and that 

his testimony regarding the 0-2 test procedures is credible. 

There is nothing in S-9 that reflects that the procedures 

detailed therein are approved by MSHA. S-9 was characterized 

by Mr. Lemon as a "training outline" he uses to train inspectors, and he claimed that the outline was adopted from procedures submitted by Jeffrey "to make it basic and easy for the 

mine inspectors in the field to check out Jeffrey equipment" 

(Tr. 125). Mr. Lemon stated that he conducts training "for 

diesel inspection of permissible schedule 31 equipment and 

underground coal mines for all electrical inspectors." I take 

169 
note of the fact that Part 31 of MSHA's regulations deals with 

diesel mine locomotives, and not the type of equipment cited 

by Inspector Biondich. 

Mr. Lemon agreed·that the 0-2 checklist test procedures 

are the proper procedures for testing the cited scrubber 

low-water shutdown devices, and that they are more thorough 

than the S-9 procedures (Tr. 139-140). He confirmed that he 

used the 0-2 procedures as part of the training course he 

conducted at the mine after the citations were issued CTr. 

136, 346, 348). He also confirmed that the car manufacturer 

is required to submit such checklists with the equipment when 

it is submitted to MSHA for certification and approval, and 

that such a checklist was submitted for the equipment in 

question. 

Mr. Lemon confirmed that he was aware of the 0-2 test 

procedures some 5-months prior to the issuance of the citations, and was shown a copy by a service representative at a 

mine in Utah {Tr. 357). He has since requested a copy from 

another mine operator in Colorado (Tr. 359). When asked why 

he did not request a copy from "his people" at any time prior 

to the issuance of the citations, he explained that he "never 

had a need" for them because the diesel equipment under his 

jurisdiction was equipped with older model 4110 scrubbers, 

rather than the newer model 4114, and that "90% of ours in 

the Utah area still have the old scrubbers on them" (Tr. 358). 

He conceded that the new models "are a little bit new to me," 

and that based on his familiarization with the newer models 

during the course of the hearing, "we will change our testing 

nrocedures" (Tr. 363). Further, Mr. Lemon confirmed that 

since the issuance of the citations, MSHA has tested the very 

same cited cars using "the proper test procedures" and that 

"they all shut down and operated properly." He also confirmed 

that he has never determined why the test procedures mandated 

by Inspector Biondich to support the citations did not work 

(Tr. 215). 

Inspector Biondich made no mention of the S-9 test procedures as such, and after review of his testimony I take note 

the fact that he was never asked about them. However, 

with respect to the 0-2 test procedures, and in response to 

West Elk's questions on cross-examination, Mr. Biondich 

referred to them as the proper test procedures that are part 

of the maintenance manual test procedures (Tr. 65). In a 

later reference to 0-2 test procedures, Mr. Biondich again 

confirmed that the 0-2 test procedures are the proper ~rocedures contained in the maintenance manual for the testing of 

the cited Jeffrey cars (Tr. 69). In responding to a question 

170 
from West Elk's counsel who was quoting from the 0-2 procedures, Mr. Biondich affirmed that the instructions are 

"approved" CTr. 77). Still later, he confirmed that the 0-2 

procedures distributed to him and the other MSHA inspectors 

during the training session conducted by Mr. Lemon were 

instructions out of the west Elk maintenance manual for 

Jeffrey ram cars (Tr. 90). 

The only evidence suggesting that the 0-2 test procedures 

were not approved by MSHA is the testimony of Mr. Lemon that 

he never saw them in any manuals, that he relied primarily on 

the S-9 procedures while conducting his training courses, and 

that the 0-2 procedures do not contain the signature or initials of any MSHA approving official. 

I have carefully reviewed Mr. Lemon's testimony regarding 

the 0-2 and S-9 test procedures, and I find it rather equivocal and contradictory with respect to the question of any MSHA 

approvals. For example, while confirming that Jeffrey is 

required to submit permissibility checklists for each piece of 

equipment submitted to MSHA's Tridelphia Office for approval 

and certification, Mr. Lemon confirmed that such a checklist 

was submitted. However, he did not specify which one he had 

in mind. When asked about the S-9 procedures which he used as 

part of his training outline, Mr. Lemon stated that it was 

prepared from a checklist submitted by Jeffrey and that the 

checklist dealt with the same type of scrubbers cited by the 

inspector. Since the cited scrubbers were approved by MSHA, I 

believe one can reasonably conclude that the 0-2 procedures 

were also approved by MSHA. Further, I find it highly 

unlikely that a large and well-known manufacturer such as 

Jeffrey would expose itself to liability by disseminating permissibility test procedures which on their face clearly imply 

that they are approved by'MSHA if this were not the case. 

In confirming that the cited Jeffrey cars have MSHA's 

approval, Mr. Lemon referred to the same information which 

appears on each page of the 0-2 test procedures implying 

MSHA's approval, as evidence of that approval (Tr. 129). 

Under the circumstances, I see no reason why West Elk cannot 

rely on that very same information to support its assertion 

that the 0-2 procedures likewise have MSHA's approval. 

At one point during the hearing, Mr. Lemon was asked 

whether the 0-2 test procedures were the approved Jeffrey 

permissibility procedures. He responded "I can't answer 

that," and he explained that he had never seen them as part 

of any maintenance manuals (Tr. 138-139). However, he also 

"assumed that they came from Jeffrey," and he believed that 

171 
they were "separate from the maintenance manual" (Tr. 139). 

If this is true, then I fail to understand why Mr. Lemon 

would have expected to find them in any manuals. Although 

West Elk's ventilation plan requires that equipment manuals 

and specifications be made available for reference, I find 

nothing in the plan requiring the permissibility test procedures to be physically kept in the manuals. 

In confirming that his prior knowledge of the 0-2 test 

procedures came about as the result of his visits to two other 

mines, Mr. Lemon did not state that he requested to review the 

maintenance manuals or that he made any effort to do so. This 

may also explain why he did not find them in any manuals. In 

explaining why he had not previously requested a copy of those 

procedures from his own MSHA people, Mr. Lemon stated that he 

never had a need for them because 90 percent of the scrubbers 

under his jurisdiction were older 4110 models. Since the 

scrubber diagram included as part of the S-9 procedures is an 

older 4110 model, and since those procedures applied to the 

older model, one can reasonably conclude that Mr. Lemon did 

not consider the 0-2 procedures particularly important or relevant. However, this is hardly a basis for concluding that the 

0-2 procedures are not the approved procedures for testing the 

cars cited by the inspector. Likewise, the fact that Mr. Lemon 

may not have seen the 0-2 procedures in any manuals is no basis 

for concluding that they were not approved by MSHA. 

Mr. Lemon is one of three diesel "coordinators" working 

out of the MSHA district office which considers equipment 

approvals and certifications. He conceded that there are 

occasions when equipment approvals are made while he is on 

leave, and that he may not be totally aware of all of these 

approvals. When testifying about the possible design deficiencies in some of the cited cars, even though the cars have 

been approved by MSHA, Mr. Lemon conceded that it was possible 

that he "could have overlooked something" (Tr. 365). In my 

viewf the same could be said about the 0-2 test procedures. 

In view of the foregoing, and after a careful weighing 

of all of the testimony, I cannot conclude that MSHA has 

established through any credible testimony that the 0-2 test 

procedures were not approved by MSHA. To the contrary, I 

conclude and find that the preponderance of the evidence supports a conclusion that the 0-2 test procedures have MSHA's 

blessing and approval, and that they were the proper procedures which should have been followed by the inspector at the 

time of his inspections. 

172 
The thrust of MSHA's case is that the cited low water 

shutdown devices were not functioning properly, and that the 

test administered by Inspector Biondich established this as a 

fact. I disagree. On the facts of this case, it seems clear 

to me that Inspector Biondich failed to follow the proper 

manufacturer's 0-2 test procedures. MSHA's suggestion that 

the S-9 test procedures followed by the inspector are basically the same as those found in 0-2 are rejected. There are 

differences in the two test procedures. For example, the 

first sentence of test procedure 2.a. of 6-2 requires the 

closing of a needle valve with the supply water tank full and 

the scrubber water at running level. S-9 makes no reference 

to any needle valve, nor does it mention the water supply 

levels in the tanks. The first sentence of test procedure 

2.c. of o-2 requires that water be slowly drained from the 

scrubber through a drain valve in the lower level tank until 

the engine shuts down. The second sentence requires that the 

scrubber water level be checked at the lower tank 7 and 6-inch 

levels. The S-9 procedure simply requires that the water 

level be tested by measuring the water depth through a cap on 

the top of the scrubber. Further, MSHA acknowledges that 

there are differences in the two test procedures, and it 

details those differences at page 4 of its brief. 

Inspector Biondich admitted that he failed to follow the 

0-2 procedures in issuing the citations. He admitted that he 

did not check the water level as required by procedure 2.c., 

even though water could be trapped in the scrubber tank and 

upper float tank. ·He admitted that he instructed the test 

personnel to shut off the water between the water supply tank 

and the scrubber by means of a valve not specified in the 0-2 

procedures, and that the procedures in 0-2 for the draining 

of the water from the low level tank at the 7 and 6-inch 

levels were not followed. Mr. Lemon conceded that at no time 

during the testing of the cited cars did the inspector measure the water tank level. He confirmed that he always 

checks the water level "because that's part of the check" 

(Tr. 173). 

Mr. Lemon and Mr. Murphy agreed that if a "shortcut" version of the 0-2 test procedures were done, and the low water 

shutdown devices did not work properly, a prudent thing to do 

would be to run through the entire detailed 0-2 procedures in 

order to determine whether the device itself was defective or 

whether the malfunction might be caused by an air lock or something unconnected with the test procedure itself (Tr. 150; 

258-259). Mr. Lemon also conceded that testing the cars on 

inclines, and other aspects of the test procedures followed by 

the inspector could produce invalid results because of air 

173 
locking and water locking, and he also concluded that the 

design of the scrubber system itself may be flawed. 

MSHA's assertions that the test procedures followed by 

Inspector Biondich were properly calculated to give reliable 

results and support the violations are rejected. I agree 

with west Elk's arguments that the tests used by the inspector were "shortcut methods" which did not produce reliable 

results in that they failed to take into account the possibility of air locks and trapped water resulting from testing the 

cars on inclines, the presence of gate valves on some of the 

cars, and the draining of water through the scrubber main 

valve, rather than the scrubber lower level tank. I also 

take note of the fact that in each of the cited cars, the 

scrubber parts which were replaced as part of the abatement 

process were not found to be defective, and that subsequent 

testing following the 0-2 procedures, rather than those 

followed by the inspector, indicated that the devices were 

operating properly. Further, MSHA's own expert (Lemon> agreed 

that part of the test procedures dictated by the inspector, 

i.e., closing of a gate valve, testing the cars on inclines, 

and failure to drain the main tank and low level tank, could 

result in air locks and trapped water, and produce invalid 

test results. As a matter of fact, at the conclusion of the 

hearing, Mr. Lemon candidly stated that based upon the testimony and evidence, "we will change our testing procedures" 

(Tr. 363). Although Mr. Lemon acknowledged that the cited 

scrubbers are MSHA approved, as stated earlier, he adtnitted 

that possible design deficiencies may cause the low water 

shutdown devices "to lie," and that this is something that he 

could have overlooked or missed by MSHA, and that it "needs to 

be brought to the attention of appropriate people" (Tr. 365). 

In view of the foregoing findings and conclusions, I 

cannot conclude that MSHA has established by any credible or 

probative evidence that the cited low water shutdown devices 

were in violation of the ventilation plan or out of compliance 

with the manufacturer's permissibility specifications. I further conclude and find that the testing procedures mandated by 

the inspector were improper, that he failed to follow the 

approved manufacturer's 0-2 test procedures, and that the test 

methods he did employ were unrealiable and invalid, and do not 

support the alleged violations. Under the circumstances, the 

citations ARE VACATED. 

ORDER 

In view of the foregoing findings and conclusions, IT IS 

ORDERED THAT: 

174 
1. West Elk's Contests ARE GRANTED. 

2. Section 104(a) Citation Nos. 2336427, 

2336428, 2336430, 2833301, and 2833302, ARE 

VACATED. 

3. MSHA's proposals for assessment of 

civil penalties for the alleged violations, 

Civil Penalty Docket No. WEST 68-73, ARE 

DENIED, and the civil penalty matter IS 

DISMISSED. 

& cl~_, 4~o~ras MC~ Administrative Law Judge 

Distribution: 

Thomas F. Linn, Esq., 555 Seventeenth Street, DAT 1850, P.O. 

Box 5300, Denver, co 80202 (Certified Mail) 

James H. Barkley, Esq., Office of the Solicitor, u.s. 

Department of Labor, 1585 Federal Building, 1961 Stout 

Street, Denver, CO 80294 (Certified Mail) 

/fb 

175 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES, 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 JAN 211987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JAY TUFT & COMPANY, INC., 

Respondent 

Docket No. WEST 86-60-M 

A.C. No. 42-01804-05506 

Lapoint Gravel Pit 

DECISION 

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

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

for Petitioner; 

Douglas E. Grant, Esq., Grant & Grant, Salt Lake 

City, Utah, 

for Respondent. 

Before: Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, charges respondent with violating Section 

109(a) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et~, (the Act>. 

After notice to the parties, a hearing on the merits took 

place in Salt Lake City, Utah on August 12, 1986. The parties 

waived their right to file post-trial briefs. 

Issues 

The issues are whether respondent violated the Act; if so, 

what penalty is appropriate. 

Citation 2084520 

This citation alleges respondent violated section 109(a) of 

the Act in that it failed to post a previous Citation (No. 

2084519). The citation, which had allegedly not been posted 

dealt with respondent's interference with an MSHA investigation. 

·Section 109(a) of the Act, now 30 u.s.c. § 819(a), provides 

as follows: 

176 
Sec. 109. (a) At each coal or other mine there shall be 

maintained an off ice with a conspicuous sign designating 

it as the office of such mine. There shall be a 

bulletin board at such off ice or located at a conspicuous 

place near an entrance of such mine, in such manner that 

ordersu citations, notices and decisions required by law 

or regulation to be posted, may be posted thereon, and 

be easily visible to all persons desiring to read them, 

and be protected against damage by weather and against 

unauthorized removal. A copy of any order, citation, 

notice or decision required by this Act to be given to an 

operator shall be delivered to the ,off ice of the affected 

mine, and a copy shall be immediately posted on the 

bulletin board of such mine by the operator or his agent. 

Summary of the Evidence 

Benjamin M. Johnson, a special investigator for MSHA, 

conducted an investigation of respondent at its Midvale off ice on 

January 31, 1985 (Tr. 8, 9). The investigation concerned an 

electrical violation at the Lapoint pit where the citation had 

been served. The focus of the investigation concentrated on 

whether the violation was of a knowing and willful nature (Tr. 

35) • 

During the investigation Jay Tuft, respondent's president, 

objected to the use of a tape recorder. He had been instructed 

by his attorney not to permit their use (Tr. 20, 21). Later, 

while inspector Johnson was interviewing the company foreman, Mr. 

Tuft entered the room and confiscated the cassette tape in the 

recorder (Tr. 9, 10, 20). As a result Citation 2084519 was 

issued for interfering with a special investigation (Tr. 10; Ex. 

Pl) o At the time it was served the inspector explained to Mr. 

Tuft that he was responsible to post it on the mine bulletin 

boa (Tro ll}o Tuft asked if he was required to make a special 

trip to the mine located 145 miles away from the company off ice 

(Tr. 11, 12). 

Inspector Johnson requested another federal inspectoru who 

was conducting a regular inspection at the mine site, ta 

n if the citation had been posted at the mine (Tr. 12). 

Field notes generated by MSHA inspector Joslin were received in 

evidence. They indicated the citation had never been posted 

although other citations appeared on the bulletin board (Tra 14). 

Subsequentlyu on March 21, 1985, Citation 2084520 was issued 

for a lure to post the previous citation (TrG 14~ Ex. P3). 

On April 19, 1985 inspector Johnson visited the mine sites 

The off ice manager indicated she had never received the citation 

from Mr. Tuft CTrc 16, 17). The inspector next issued a section 

104(b) non-compliance order for the failure to post the two 

citations (Tr. 18). The company office manager then talked to 

177 
Mr. Tuft's secretary and was advised that both copies of the 

citation were in her desk and they had not been mailed to the 

mine site (Tr. 18). The front-end loader operator also indicated 

to the inspector that he had never seen the citations posted on 

the bulletin board (Tr. 19). 

Jay Tuft testified that during the course of his two hour 

interview with Johnson he objected to the use of a tape recorder. 

When he objected the inspector put it away (Tr. 24, 25). 

Later that day Tuft heard men's voices in his wife's office. 

When he opened the door he found the inspector taping his interview with foreman Richard Logan. Tuft again objected to the 

use of the recorder. When Johnson failed to stop the recorder 

Tuft did so and removed the cassette. Johnson left. The 

following day an MSHA attorney called Tuft from Denver. That 

afternoon Johnson reappeared with a Midvale policeman and demanded his tape. Tuft contacted his attorney and then surrendered 

the tape (Tr. 26). Respondent thereafter paid a $600 penalty for 

the citation that followed (Tr. 27). 

When he received the citation Tuft was told by Johnson to 

post it. Tuft put it on his bulletin board in his Midvale office 

<Tr. 27, 29). The large bulletin board contains workman's compensation notices, minority matters, licenses, diesel permits and 

things of that nature (Tr. 33). All business affairs are conducted out of the Midvale office. At the mine site the trailer 

office contains a desk, a chair and a small bulletin board (Tr. 

33). All of the contact between Tuft and Johnson took place in 

the company off ice. None of it took place at the mine site 160 

miles away (Tr. 27). The citations were all personally posted by 

Tuft at the mine site after he received notice of the requirement 

(Tr. 27, 28)0 

Tuft indicated that there were two or three copies of the 

citation at his office. He agreed there could have been a copy 

in his desk CTr. 30). Tuft believed Johnson was lying when he 

related his interview with the company off ice manager to the 

effect that the citation had not been received at the mine site 

by April 19th (Tr. 31, 32). The loader operator would not know 

if the citation was posted because he cannot read or write (Tr. 

32) • 

Discussion 

The statutory requirement mandates that citations are to be 

posted at the mine site. 

In this factual situation a credibility issue arises as to 

where and if the citation was posted. Inspector Johnson testified it was not posted. His testimony is verified by the field 

178 
notes of inspector Joslin together with 

office manager and the loader operator. 

over Mr. Tuft's bare contrary statement 

citation at the mine site. 

the statements of the 

I credit MSHA's evidence 

that he posted the 

However, I credit Mr. Tuft's testimony that he posted the 

citation at the company off ice in Midvale. He was in a position 

to know what occurred. In addition, many items are posted on the 

company bulletin board at the Midvale off ice. But such posting 

at the off ice and at a place apart from the mine site does not 

constitute compliance with section 109(a) of the Act. Such 

evidence, however, relates to respondent's negligence and good 

faith. These latter elements are factors to be considered in 

assessing a civil penalty. 

For the foregoing reasons, I conclude that Citation 2084520 

should be affirmed. 

Civil Penalty 

The statutory criteria to assess a civil penalty is 

contained in Section llO(i) of the Act. 

In considering the statutory criteria I find that the 

computer printout received in evidence indicates respondent had 

eight violations in the two year period ending March 24, 1985 

(Ex. P4). In view of these few citations I conclude that 

respondent's history of previous violations is below average. 

The penalty appears appropriate in relation to the size of the 

business. The parties have stipulated that the proposed penalty 

of $106 would not impair the ability of the company to continue 

in business (Tr. 5). The operator's negligence is mitigated 

somewhat by the fact that the notice was posted at the Midvale 

off ice. The gravity of the violation is low since it is a posting requirement. Respondent in fact abated after it was advised 

of the requirement. On balance, I believe that a civil penalty 

of $50 is appropriate. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portion of this decision, the following conclusions 

of law are entered: 

1. The Commission has jurisdicti9n to decide this .case~ 

2. Respondent violated Section 109(a) of the Act. 

Based on the foregoing findings of fact and conclusions of 

law I enter the following: 

179 
ORDER 

1. Citation 2084520 is affirmed. 

2. A civil penalty of $50 is assessed. 

3. Respondent is ordered to pay the sum of $50 to the 

Secretary within 40 days of the date of this decision. 

Law Judge 

Distribution: 

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

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

80294 (Certified Mail) 

Douglas E. Grant, Esq., Grant & Grant, 349 South 200 East, Suite 

410, Salt Lake City, UT 84111 (Certified Mail) 

/bls 

180 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

JAN 281987 

JIM WALTER RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SFCRFTARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respond~nt 

. . 

: 

. 

. 

CONTEST PROCEEDINGS 

Docket No.-SE 86-85-R 

Order No. 2812055; 5/14/86 

Docket No. SE 86-86-R 

Order No. 2812056; 5/14/86 

No. 4 Mine 

CIVIL PFNALTY PROCEEDING 

Docket No. SE 86-123 

A. C. No. 01-01247-03714 

No. 4 Mine 

DECISION APPROVING SETTLFMENT 

ORDER DISMISSING NOTICES OF CONTEST 

Before: Judge Merlin 

The parties have filed a joint motion to approve settlements 

of the two violations involved in these cases. The total of the 

originally assessed penalties was $1,900. The total of the 

recommended settlements is $600. 

The motion discusses both violations in light of the six 

criteria set forth in section llO(i) of the Mine Safety and 

Heal~h Act of 1977. Order No. 2812055, the subject of 

SE 86-85-R, was issued for violation of 30 C.F.R. § 75.316. A 

scoop operator had knocked down a ventilating curtain and iled 

to repair it. Order No. 2812056, the subject of SF 86-86-R, was 

i£sued for violation of 30 C.F.R. § 75.200. This same scoop 

operator proceeded to clean up coal from under an unsupported 

roof. Both orders were issued pursuant to Section 104Cd)(2} of 

the Act. 

Further investigation revealed that the scoop operator had 

been ordered to clean up a different face. Through no fault of 

181 
the supervisor, the scoop operator went to the wrong face. The 

scoop operator was later disciplined. In light of these facts, 

MSHA has reduced these 104(d)(2} orders to 104(a) citations 

because the violations were not the result of an unwarrantable 

failure on the part of' the mine operator. In addition, these 

facts show that negligence was less than was originally believed. 

A reduction in the proposed penalty for Citation No. 2812055 from 

$900 to $300 is now recommended. A reduction in the proposed 

penalty for Citation No. 2812056 from $1,000 to $300 is also 

recommended. 

The representations and recommendations of the parties are 

accepted. The mine operator has withdrawn its request for a 

hearing. 

Accordingly, it is ORDERED that the motion to approve 

settlements is GRANTED. 

It is further ORDERED the above-captioned notices of contest 

are DISMISSED. 

It is further ORDRRFD that the mine operator is to pay $600 

within 30 days of the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

~. Stanley Morrow, Esq., Harold D. Rice, Esq., Jim Walter 

Resources, Inc., P. O. Box C-79, Birmingham, AL 35283 

(Certified Mail} 

H. Gerald Reynolds, ~sq., Jim Walter Corporation, 1500 North Dale 

Mabry Highway, Tampa, FL 33607 (Certified Mail} 

George D. Palmer, Esq., Office of the Solicitor, U. s. Department 

of Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 

35203 (Certified Mail) 

William Lawson, Bsq., Office of the Solicitor, U. s. Department 

of Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 

35203 (Certified Mail) 

Jim Casner, President, UMWA Local 2245, District 20, 83 Manor 

Estates, Tuscaloosa, AL 35405 (Certified Mail) 

182 
Mr. Lawrence Beeman, Director, Office of ~ssessments, U. s. 

Department of Labor, Room 918, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

/gl 

183 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

SECRETARY OF LABOR, 

MINE SAF~TY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

DRUMMOND COMPANY, INC., 

Respondent 

January 28, 1987 

CIVIL PENALTY PROCEEDING 

: Docket No. SF. 86-135 

A. C. No. 01-00515-03650 

Mary Lee No. 1 Mine 

DFCISION APPROVING SBTTLEMPNT 

Before: Judge Merlin 

The parties have filed a joint Inotion to approve settlements 

of the two violations involved in this case. The total of the 

originally assessed penalties was $2,200. ~he total of the 

proposed settlements is $1,950. 

The motion discusses both violations in light of the six 

criteria set forth in section llOCi) of the Federal Mine Safety 

and Health Act of 1977. Order Mo. 2606500 was issued for violation of 30 C.?.R. § 75.200 because a roof bolter began instal 

ing bolts before the temporary roof support jacks were in place. 

A reduction in the proposed penalty for this violation, from 

$1,250 to $1,000, is now recommended because of reduced gravity. 

Only one miner was exposed to the hazard, rather than two, as was 

originally believed. ~he one miner exposed was protected somewhat by a canopy and by the fact that he was standing next to the 

rib. 

Order No. 2605858 was issued for violation of 30 C.F.R. 

§ 75.316 because of failure to comply ~ith the a~proved ventilation plan. The line brattice was 38 feet from the deepest 

penetration of the tace, rather than 10 feet as required by the 

plan. The air velocity was only 47 feet per minute, rather than 

60 feet per minute as required by the plan. ~ concentration of 

methane of 1.4 percent hact been allowed to accumulate. The 

operator has agreed to pay the $950 penalty originally assessed 

for this violation. 

The representations and recommendations of the par~ies are 

acce9ted. 1'he .settlewents are for substantial amounts and are in 

accord with the statutory pur~oses. 

184 
Accordingly, the motion to approve settlements is GRANTBD 

and the operator is ORDERFD TO PAY $1,950 within 30 days of the 

date of this decision. 

Paul Merlin 

Chief Administrative Law 

Distribution: 

William Lawson, ~sq., Office of the Solicitor, U. S. Department 

of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL 

35203 (Certified Mail) 

J. Fred McDuff, Drummond Company, Inc., Post Office Box 10246, 

Birmingham, AL 35202 (Certified Mail) 

Ms. Joyce Hanula, UMWA, 900 15th Street, N.W., Washington, DC 

20005 (Certified Mail) 

/gl 

185 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 291987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

GLEN IRVAN CORPORATION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-64 

A.C. No. 36-04596-03507 

Bark Camp Strip 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On January 12, 1986, the Secretary of Labor, filed a 

motion for approval of a settlement reached by the parties 

in this case. The violations were originally assessed at 

$5400 and the parties propose to settle for $2700. 

Three violations are charged, all growing out of a fatal 

fall-of-material accident. The operator was charged with 

a violation of 30 C.F.R. § 77.1006(b) because an employee 

was working between a highwall and a front end loader. A 

penalty of $4000 was initially assessed. It was also charged 

with failure to properly conduct a preshift examination, and 

with having loose, fractured material on a highwall. These 

violations were initially assessed at $800 and $600, respectively. 

The motion states that the violations were serious and caused 

by Respondent's negligence. However, the settlement is 

proposed because Respondent has filed under Chapter 11 of 

the Bankruptcy Act, and its mining operations have ceased. 

I have considered the motion in the light of the criteria 

in section llO(i) of the Act, and in the light of Respondent's 

financial condition, and conclude that it should be approved. 

Accordingly, the settlement motion is APPROVED, and 

Respondent is ORDERED TO PAY the sum of $2700 in accordance 

with an order for distribution which may hereafter be issued 

by the Bankruptcy Court in the Western District of Pennsylvania. 

7 • 

. • I 1 / /' / .,,, 'I I[' /! /" // 

~ 

/ .t {1-'.tJ r. - J "'.!6 I :--·c-u . . . .~ 

;) James A. Broderick 

Administrative Law Judge 

186 
Distribution: 

Covette Rooney, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Robert M. Hanak, Esq., 311 Main Street, Reynoldsville, PA 

15851 (Certified Mail) 

slk 

187 
FEDERAL MINE·- SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 3 O 1987 

WEBSTER COUNTY COAL CORP., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. KENT 87-9-R 

Citation No. 9897010; 9/19/86 

Dotiki Mine 

DECISION 

Appearances: Susan E. Chetlin, Esq., and Timothy Biddle, Esq., 

Crowell and Moring, Washington, D.C. for 

Contestant; Edward H. Fitch, Esq., Office of the 

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

Virginia, for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Contestant filed a notice of contest of a 104(a) citation 

issued September 19, 1986 charging a violation of 30 C.F.R. 

§ 70.lOO(a). The citation was issued following anaylses of five 

dust samples in September 1986 taken from the working environment 

of a cutting machine operator. The concentration of respirable 

dust in the five samples was 1.4 mg/m3, 3.5 mg/m3, 2.0 mg/m3, 

2.4 mg/m3 and 1.5 mg/m3, giving an average concentration of 2.1 

mg/m3. On November 25, 1986, Contestant filed a Motion for 

Summary Decision, seeking a ruling that the special finding on 

the citation that the violation was significant and substantial 

is invalid. On December 24, 1986, the Secretary filed a Response 

to the Motion and a Cross Motion for Summary Decision, seeking a 

ruling that the significant and substantial designation of the 

violation is valid. Contestant does not dispute the fact of a 

violation, but only the significant and substantial finding. The 

Secretary accepts the statement of facts in Contestant's motion 

as being acurate. Therefore, since there is no issue as to any 

material fact, the case may be decided on the cross motions for 

summary decision. 

188 
FINDINGS OF FACT 

In compliance with 30 C.F.R. § 70.207, Contestant submitted 

five respirable dust samples of the working environment of the 

cutting machine operator collected during a bimonthly period in 

the Dotiki Mine to MSHA for analysis. The concentrations of 

respirable dust in the samples were 1.4 mg/m3, 3.5mg/m3, 

2.0 mg/m3, 2.4 mg/m3 and 3.5 mg/m3, giving an average 

concentration of 2.1 mg/m3. 

CONCLUSIONS OF LAW 

30 C.F.R. § 70.lOO(a) requires coal mine operators to 

continuously maintain the average concentration of respirable 

dust in the mine atmosphere during each shift to which each miner 

is exposed at or below 2.0 milligrams per cubic meter of air. 

The facts here establish that Contestant failed to comply with 

this requirement. It therefore was in violation of the mandatory 

standard. The issue is whether that violation was significant 

and substantial. 

The Commission determined in Consolidation Coal Company v. 

secretary, 8 FMSHRC 890 (1986) that a health standard violation 

may be denominated significant and substantial if four "elements" 

are present: (1) an underlying violation of a health standard; 

(2) a discrete health hazard contributed to by the violation; 

(3) a reasonable likelihood that the health hazard will result in 

an illness; and (4) a reasonable likelihood that the illness will 

be of a reasonably serious nature. The decision went on to state 

that any exposure to respirable dust above the 2.0 mg/m3 level 

would satisfy the second element. The third element is presumed 

by the establishment of a violation. The fourth element was 

established by medical facts concerning pneumoconiosis which 

"support a conclusion that there is a reasonable likelihood that 

illness from overexposure to respirable dust will be of a 

reasonably serious nature." 8 FMSHRC at 899. 

Following its analysis of these elements, the Commission 

concluded: "Therefore~ rather than requiring the Secretary to 

prove anew all four elements in each case, we hold that when the 

Secretary proves that a violation of 30 C.F.R. § 70.lOO(a), based 

on excessive designated occupational samples, has occurred, a 

presumption that the violation is a significant and substantial 

violation is appropriate." id. The presumption may be rebutted 

if the operator establishes~hat the miner or miners involved 

were not exposed to the hazard posed by the excesive dust, for 

example, through the use of personal protective equipment. There 

is no evidence in this record which would tend to show that the 

miners were not exposed to the hazard. The presumption is 

therefore unrebutted. 

189 
The Commission's Consolidation Coal decision refers to 

portions of the legislative history of the Act tending to show 

that Congress recognized that exposure to repirable dust below 

approximately 2.2 mg/m3 would not pose any danger of "disabling 

disease" or "complicated coal workers pneumoconiosis. 11 

Nevertheless, it is clear that the holding in the 

Consolidation Coal case, by which I am bound, is that exposure to 

respirable dust in excess of 2.0 mg/m3 creates a presumption that 

the violation is significant and substantial. Since the 

presumption has not been rebutted here, I hold that the violation 

is significant and substantial. 

ORDER 

Based on the above findings of fact and conclusions of law, 

IT IS ORDERED: 

(1) The Notice of Contest filed herein is DENIED. 

(2) Citation 9897010 issued September 19, 1986 including its 

special finding that the violation charged was significant and 

substantial. is AFFIRMED. 

(3) This proceeding is DISMISSED. 

Distribution: 

, 14U5 A!li '!::ltztz~f James A. Broderick 

Administrative Law Judge 

Susan E. Chetlin, Esq., Timothy Biddle, Esq., Crowell and Moring, 

1100 Connecticut Ave., N.W., Washington, D.C. 20036 (Certified 

Mail) 

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

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

slk 

190 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 3 0 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, 

INC. I 

Respondent 

. . 

. . 

Docket No. WEVA 86-436 

A.C. No. 46-01409-03526 

Seneca Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Mark R. Malecki, Esq., Office of the Solicitor, 

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

for Petitioner; 

Before: 

Billy M. Tennant, Esq., Pittsburgh, 

Pennsylvania, for Respondent. 

Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act). Petitioner has filed a 

motion to approve a settlement agreement and to dismiss the 

case. Respondent has agreed to pay the proposed penalty of 

$20 in full. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set 

forth in Section llOCi) of the Act. 

WHEREFORE, the motion for approval of set lement is 

GRANTED, and it is ORDERED that Respondent pay a penalty of 

$20 within 30 days of this order. 

Distribution: 

Judge 

~-_/~\ ) 

Mark R. Malecki, Esq., Office of t e Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Billy M. Tennant, Esq., 600 Grant Street, Room 1580, 

Pittsburgh, PA 15230 (Certified Mail) 

rbg 

191 
* U.S. GOVERNMENT PRINTING OFFICE 1987; 181-224/63001 

192