MARCH 1991 

COMMISSION DECISIONS 

03-01-91 

03-07-91 

03-08-91 

03--12-91 

03-20-91 

Sec. of Labor on behalf of Clyde Cole v. 

Canyon Country Enterprises 

Jet Concrete, Inc. 

Ricky Davis, employed by Wampler Bros. Coal 

Stenson Begay v. Liggett Industries, Inc. 

Donald Northcutt, Gene Myers, Ted Eberle v. 

Ideal Basic Industries, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03-06-91 

03-06-91 

03-06-91 

03-06-91 

03-08-91 

03-08-91 

03-11-91 

03-11-91 

03-12-91 

03-12-91 

03-13-91 

03-15-91 

03-15-91 

03-15-91 

03-15-91 

03-18-91 

03-19-91 

03-19-91 

03-19-91 

03-28-91 

03-28-91 

03-28-91 

03-28-91 

03-29-91 

Mar-Land Industrial Contractor 

Drummond Company, Inc. 

Drummond Company, Inc. 

Ideal Cement Company 

Zeigler Coal Company 

Gatliff Coal Company, Inc. 

Transit Mixed Concrete Co. 

The Pittsburg & Midway Coal Mining Co. 

Texas Utilities Mining Company 

David Thomas & Isaacs v. Ampak Mining 

Kenneth L. Chandler v. Zeigler Coal Co. 

Carl Strating, Jinks Coleman, employed by 

South Texas Aggregates 

Mack Energy Company 

Consolidation Coal Company 

Consolidation Coal Company 

Sec. Labor on behalf of William McDonald v. 

Al Hamilton Contracting Co. 

Bethel Fuels Incorporated 

Lonnie Jones v. Deer Path Corporation 

Arnold R. Sharp v. Elk Creek Coal Co. 

Fuel Company 

Keystone Coal Corporation 

Caldwell Stone Company, Inc. 

C. Turner v. New World Mining Inc. 

Eastern Associated Coal Corporation 

ADMINISTRATIVE LAW JUDGE ORDERS 

03-19-91 

03-19-91 

Utah Power and Li Company 

Southern Ohio Coal Company 

WEST 90-165-DM Pg. 317 

WEST 90-347-M 

KENT 90-432 

CENT 88-126-D 

CENT 89-162-DM 

SE 90-117-M 

SE 90-126 

SE 90-125 

WEST 88-202-M 

LAKE 91-2 

KENT 89-242-R 

WEST 90-72-M 

CENT 90-38 

CENT 91-26 

KENT 89-13-D 

LAKE 90-107-D 

CENT 90-147-M 

WEVA 90-160 

WEVA 90-303 

WEVA 90-307 

PENN 90-249-DM 

WEVA 90-166 

KENT 91-78-D 

KENT 89-147-D 

KENT 90-442 

PENN 90-258 

SE 90-79-M 

VA 90-51-D 

WEVA 89-198 

WEST 90-320 

WEVA 90-171 

Pg. 320 

Pg. 323 

Pg. 326 

Pg. 327 

Pg. 333 

Pg. 339 

Pg. 356 

Pg. 359 

Pg. 367 

Pg. 368 

Pg. 383 

Pg. 385 

Pg. 387 

Pg. 389 

Pg. 391 

Pg. 425 

Pg. 432 

Pg. 471 

Pg. 473 

Pg. 476 

Pg. 4 78 

Pg. 480 

Pg. 481 

Pg. 488 

Pg. 492 

Pg. 493 

Pg. 503 

Pg. 508 

Pg. 511 

Pg. 521 

MARCH 1991 

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

Secretary of Labor, MSHA v. Explosives Technologies International, Inc., 

Docket No. CENT 90-95-M. (Judge Broderick, January 24, 1991) 

Secretary of Labor, MSHA v. Jet Concrete, Inc., Docket No. WEST 90-347-M. 

(Chief Merlin, Default Decision, February 14, 1991) 

Secretary of Labor, MSHA v. Ricky Davis, employed by Wampler Brothers 

Coal Co., Docket No. KENT 90-432. (Chief Merlin, Default 

Decision, February 13, 1991) 

Charles T. Smith v. KEM Coal Company, Docket No. KENT 90-30-D. (Judge 

Fauver, January 31, 1991) 

Ronny Boswell v. National Cement Company, Docket No. SE 90-112-M. 

(Judge Maurer, February 7, 1991) 

Secretary of Labor, MSHA v. Warren Steen Construction, etc., Docket 

No. LAKE 89-68-M, LAKE 89-93-M. (Judge Broderick, February 19, 1991) 

Review was denied in the of March: 

Secretary of Labor on behalf of Clyde Cole v. Canyon Country Enterprises, 

Docket No. WEST 90-165-DM. (Judge Lasher, January 22, 1991) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 1, 1991 

SECRETARY OF LABOR, 

MINE SAFETY & HEALTH 

ADMINISTRATION (MSHA) 

On behalf of CLYDE c. COLE 

Docket No. WEST 90-165-DM 

v. 

CANYON COUNTRY ENTERPRISES 

d/b/a CURTIS SAND AND GRAVEL, 

a corporation 

ORDER 

A petition for-discretionary review has been filed on behalf 

of Complainant Clyde C. Cole seeking review of a decision issued by 

Commission Administrative Law Judge Michael A. Lasher on January 

22, 1991. In that decision, the judge granted the Secretary of 

Labor's motion to withdraw her complaint of discrimination filed on 

Mr. Cole / s behalf under section 105 ( c) ( 2) of the Federal Mine 

Saiety and Health Act of 1977, 30 u.s.c. § 8l5(c)(2), and the judge 

dis~issed the section l05(c)(2) complaint with prejudice. 

As grounds for his granting of the motion to withdraw and his 

dismissal of the section l05(c)(2) complaint, the judge indicated 

that upon completion of discovery in this matter, the Secretary 

determined t~at no violation of section l05(c) of the Mine Act had 

occurred. The judge further declined a request by David P. 

Koppelman, Esq., International Union of Operating Engineers, Local 

12 9 AFL-CIO, attorney for Mr. Cole, to substitute Mr. Cole in lieu 

of the Secretary as sole complainant. In so declining, the judge 

stated, 11 such rights as Mr. Cole has would appear to be provided in 

section l05(c)(3) of the [Mine] Act." The judge's disposition of 

this matter is correct. 

The statutory scheme devised by .Congress for addressing 

minerst complaints of discrimination provides that when the 

Secretary determines that no discriminatory violation has occurred, 

the miner may still pursue his individual complaint of 

discrimination pursuant to section 105(c)(3) of the Act. 1 "The 

Section 105(c)(3) provides, in part~ 

"If the 

determines 

subsection 

complainant 

days of 

Secretary, upon investigation, 

that the provisions of this 

have not been violated, the 

shall have the right, within 30 

notice of the Secretary's 

317 
presence of section 105(c)(3) within the statutory scheme 

establishes the appropriate recourse Congress intended the miner to 

have under the Mine Act", when the Secretary determines that a 

complaint should not be filed or, as here, should be withdrawn. 

Robert K. Roland v. Secretary of Labor, 7 FMSHRC 630, 635-636 (May 

1985). See also s. Rep. No. 181, 95th Cong. , 1st Sess. 36-37 

(1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 624-625 (1978). 

The appropriate procedural route in this case is the one 

indicated by the judge, i.e., the complainant's filing of a 

complaint under section 105(c)(3). Under the circumstances 

presented here, we deem the filing of the petition for 

discretionary review as suspending the 30-day time limit applicable 

to the filing of individual complaints under section 105(c)(3). 

Should complainant wish to pursue this matter, he may do so by 

filing a section 105(c)(3) complaint within 30 days after receipt 

of this order. The record in the section l05(c)(2) case may be 

noticed judicially in any such new proceeding. 

Accordingly, unger the' circumstances, the petition for 

discretionary review~is denied. 

Ri~ v. Backley, 

Arle~L'e t ML£~ Holen,)Commissioner , , I ~ 

, ... J ' : ~ ~ ~ ' ' '. • . -'--'---\., lLk ~<,,.,• L. Clair Nelson, Commissioner 

determination, to file an action in his own 

behalf before the Commission, charging 

discrimination or interference in violation of 

[section 105(c)(l)J." 

30 u.s.c. § 815(c)(3). 

318 
Distribution 

David P. Koppelman, Esq. 

I.U.O.E., Local No. 12 

150 East Corson St. 

P.O. Box 7109 

Pasadena, California 91109 

Scott H. Dunham, Esq. 

O'Melveny & Myers 

400 South Hope Street 

Los Angeles, California 30071 

Susanne Lewald, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

71 Stevenson St., Suite 1110 

San Francisco, California 94105 

Administrative Law-Judge Michael Lasher 

Federal Mine Safety and Health Review Commission 

280 Federal Bldg. 

1244 Speer Blvd. 

Denver, Colorado 80204 

319 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

JET CONCRETE, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 7, 1991 

Docket No. WEST 90-347-M 

BEFORE: Backley, Acting Chairman; Doyle, Holen and Nelson, Commissioners 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seg. (1988)("Mine Act"). On February 

14, 1991, Commission Chief Administrative Law Judge Paul Merlin issued an 

Order of Default finding respondent Jet Concrete, Inc. ("Jet") in default for 

failure to answer the Secretary of Labor's civil penalty proposal and the 

judge's order to show cause. The judge assessed Jet a civil penalty of 

$3,000, as proposed by the Secretary. For the reasons explained below, we 

vacate the judge's default order and remand for further proceedings. 

The judge's jurisdiction in this proceeding terminated when his default 

order was issued on February 14, 1991. 29 C.F.R. § 2700.65(c). Under the 

Mine Act and the Commission's procedural rules, once a judge's decision has 

been issued, relief from the decision may be sought by filing with the 

Commission a petition for discretionary review within 30 days of the decision. 

30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). By letter to Judge Merlin, 

filed February 25, 1991, Jet asserts that it filed its answer with Commission 

Administrative Law Judge John Morris. Under the circumstances, we deem Jet's 

February 25th letter to constitute a timely petition for review, requesting 

relief from the judge's default order. g_,_g_,_, Middle States Resources. 

Inc., 10 FMSHRC 1130 (September 1988). 

The record discloses that an inspector of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") issued Jet ten withdrawal orders 

alleging violations of various safety regulations. Upon preliminary 

notification by MSHA of the civil penalties proposed for these alleged 

violations, Jet filed a "Blue Card" request for a hearing before this 

independent Commission. On October 15, 1990, counsel for the Secretary filed 

a proposal for civil penalty assessments. When no answer to the penalty 

proposal was filed, Judge Merlin issued a show cause order on November 28, 

1990, directing Jet to file an answer within 30 days or show good reason for 

the failure to do so. Under the Commission's rules of procedure, the party 

320 
against whom a penalty is sought must file an answer with the Commission 

within 30 days after service of the proposal for penalty. 29 C.F.R. 

§ 2700.S(b) & .28. 

In its February 25th letter Jet states that, in fact, it filed an answer 

which was dated December 19, 1990, and addressed to Judge Morris. Jet submits 

that this case was assigned to Judge Morris in an order dated November 1, 

1990, and, thus, that it believed all correspondence was to be sent to Judge 

Morris. However, the order of assignment to Judge Morris referred to by Jet 

does not involve Docket No. WEST 90-347-M, the present proceeding, but rather 

an unrelated proceeding involving Jet, Docket Nos. WEST 90-273-M and WEST 90-

274-M. 

It appears that Jet, proceeding without benefit of counsel, may have 

confused the roles of Judge Merlin and Judge Morris in this proceeding. It 

also appears that Jet may have responded, or attempted to respond in a timely 

manner, to Judge Merlin's show cause order. The Commission has generally 

afforded a party relief from default where it appears that the party's actions 

were due to inadvertence, mistake, or excusable neglect. See, ~. Amber 

Coal Company, 11 FMSHRC 131, 132 (February 1989). In light of these 

considerations, we conclude that the operator should have the opportunity to 

present its position to~the judge, who shall determine whether ultimate relief 

from default is warranted. ~.Hickory Coal Co., 12~FMSHRC 1201, 1202 

(June 1990). 

321 
For the foregoing reasons, we grant Jet's petition for discretionary 

review, vacate the judge's default order and civil penalty assessment, and 

remand this matter to the judge for appropriate proceedings. is reminded 

to file documents connected with this proceeding with the judge and to serve 

counsel for the Secretary with copies of any of its filings. 29 C.F.R. 

§§ 2700.S(b), 2700.7. 

Distribut.ion 

Duane S. Frehner 

Jet Concrete Inc. 

112 W. Brooks Avenue 

North Las Vegas, Nevada 39030 

Catherine R. Lazuran, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

71 Stevenson St., Suite 1110 

San Francisco, CA 94105 

Dennis D. Clark, 

Office of the Solicitor 

U.S. Department of Labor 

~015 Wilson Blvd. 

Arlingt.on, VA 22203 

·Richard V. Backley, Acting Chairman 

Arlene Holen, Commissioner 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul ~~rlin 

Federal :'.-line Safety & Health Review Commission 

1730 K Street. ~.w .. Suite 600 

Washington, D.C. 20006 

322 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

RICKY DAVIS, Employed by 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

March 8, 1991 

Docket No. KENT 90-432 

WAMPLER BROTHERS COAL CO., INC. 

BEFORE: Backley, Acting Chairman; Doyle, Holen, and Nelson, Commissioners 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On February 

13, 1991, Commission Chief Administrative Law Judge Paul Merlin issued an 

Order of Default finding respondent Ricky Davis ("Davis"), employed by 

Wampler Brothers Coal Co., Inc., in default for failure to answer the 

Secretary of Labor's civil penalty proposal and the judge's order co show 

cause. Davis had been cited under section llO(c) of the Mine Act, 30 U.S.C. 

§ 820(c), for, allegedly, knowingly ordering a violation of 30 C.F.R. 

§ 75.1701. The judge assessed the civil penalty of $800 proposed by the 

Secretary. For the reasons that follow, we vacate the default order and 

remand this case for further proceedings. 

On February 21, 1991, the Commission received correspondence from 

Davis in which he states that he had received a "letter" informing him that 

he had failed to respond to a "letter," and directing him to pay $800. 

Davis asserts that he had mailed a response on December 17, 1990, to J. 

Philip Smith, an attorney with the Department of Labor's Regional 

Solicitor's Office in Arlington, Virginia. Mr. Smith has informed the 

Commission's Docket Office that his files do not contain a response from 

Davis. 

The judge's jurisdiction in this proceeding terminated when his default 

order was issued on February 13, 1991 29 C.F.R. § 2700.65(c). Under the 

Mine Act and the Commission's procedural rules, once a judge's decision has 

issued, relief from the decision may be sought by filing with the Commission 

a petition for discretionary review within 30 days of the decision. 30 

U.S.C. 823(d)(2); 29 G.F.R. § 2700.70(a). Here, Davis's letter, received by 

the Commission on February 21, 1991, seeks relief from the judge's default 

order. We will treat it as constituting a timely petition for discretionary 

review. See,~. Middle States Resources. Inc., 10 FMSHRC 1130 (September 

1988). 

323 
The record discloses that upon preliminary notification by MSHA of the 

civil penalty proposed for his alleged violation, Davis filed a "Blue Card" 

request for a hearing before this independent Commission. On October 5, 

1990, counsel for the Secretary served Davis with the Secretary's penalty 

proposal. When no answer to the penalty proposal was filed, the judge, on 

November 28, 1990, issued a show cause order directing Davis to file an 

answer within 30 days or show good cause for his failure to do so. As 

noted, Davis alleges that he mailed a response on December 17, 1990, to 

Smith in the Solicitor's office. Under the Commission's rules of 

procedure, the party against whom the penalty is sought must file an answer 

with the Commission within 30 days after service of the penalty proposal. 

29 C.F.R. § 2700.S(b) & .28. 

It appears that Davis, proceeding without benefit of counsel, may have 

confused the roles of the Commission and the Department of Labor in this 

adjudicatory proceeding. It also appears that Davis may have timely 

responded, or attempted to respond, to the judge's show cause order. In 

accordance with the standards set forth in Fed. R. Civ. P. 60(b)(l), the 

Commission will afford relief from default upon a showing of inadvertence, 

mistake, or excusable neglect. See,~. Amber Coal Co., 11 FMSHRC 131, 

132 (February 1989). 

On the basis of the present record, we are unable to evaluate the 

merits of Davis' position but we will permit Davis the opportunity to 

present his position to the judge, who shall determine whether final relief 

from the default order is warranted. See,~. Hickory Coal Co., 12 FMSHRC 

1201, 1202 (June 1990). 

324 
Accordingly, we vacate the judge's default order and remand this 

matter for further proceedings. Davis is reminded to file all documents and 

correspondence with the Commission, and to serve the Regional Solicitor's 

Office with copies of all such filings. 29 C.F.R. §§ 2700.S(b) & .7. 

Distribution 

Ricky Davis 

General Delivery 

Shelby Gap. Kentucky 41563 

J. Philip Smith, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

/"') ,;/ 

,,c;;C/0c:At, ::r?~/lt? Richard V. Backley, Acting Chairman 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

325 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

:·larch 12, 1991 

STENSON BEGAY 

v. Docket No. CENT 88-126-D 

LIGGETT INDUSTRIES, INC. 

BEFORE: Backley, Acting Chairman; Doyle, Holen, and Nelson, Commissioners 

BY THE COMMISSION: 

This discrimination proceeding arising under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988), is on remand to the 

Commission from an opinion of the United States Court of Appeals for the 

Tenth Circuit affirming the decision of Commission Administrative Law Judge 

Roy J. Maurer in this matter. Liggett Indus .. Inc. v. fMSHRC, ~- F.2d ~-' 

No. 89-9546 (January 9, 1991), aff'g, 11 FMSHRC 887 (May 1989)(ALJ). (The 

judge's decision became a final decision of the Commission through operation 

of the statute. 30 U.S.C. § 823(d)(l).) In its decision, the Court 

indicated that counsel for complainant Stenson Begay had requested the Court 

to award him attorney fees for legal services rendered in the Court 

proceedings and had argued to the Court that such fees are statutorily 

mandated. Slip op. at 7. The Court stated, however, that this "matter 

should first be considered by the AL.J." Id. 

In accordance with the 

remanded to Judge Maurer for 

the Court's opinion. 

Court's order to the Commission, this matter is 

further appropriate p~oceed~s consistent with 

,./-/ /J // /'\4, //l. 

~ 

~~v·{~~~-' 

Richard V. Backley, Acting Chairman 0 

/ 

Joyce A Doyle Commissioner 

Arlene 

&.1 

Holeq, :lit~ Commissioner ' I "-i '--:i-JI ' ,,, \ I i ! ; I , --:-• 

1

\... L '--'V !~ l_ \.__ i, {;..-~ 

L. Clair Nelson, Commissioner 

326 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 20, 1991 

DONALD NORTHCUTT, GENE M'tERS, 

and TED EBERLE 

v. 

IDEAL BASIC INDUSTRIES, INC. 

Docket No. CENT 89-162-DM 

BEFORE: Backley, Acting Chairman; Doyle, Holen and Nelson, Commissioners 

This discriminatJon proceeding under the Federal Mine Health and 

Safety Act of 1977, 30 U.S.C. § 801 et seg. (1988)(the "Mine Act" or "Act") 

is before the Commission on interlocutory review. 

On January 31, 1991, the petition for interlocutory review filed on 

behalf of Ideal Industries, Inc., ("Ideal") was granted. 1 In its 

petition, Ideal seeks review of the December 7, 1990 Order of Commission 

Administrative Law Judge John J. Morris. Specifically, Ideal urges that the 

final disposition of the proceeding will materially advance upon immediate 

review of the following issues: (1) Does a miner's claim that he was 

discharged in retaliation for filing a workers' compensation claim state a 

claim for which relief can be granted under section 105(c) of the Act, and 

if so, (2) Is this claim barred under the doctrine of~ judicata where the 

miner has already settled and dismissed with prejudice his workers' 

compensation retaliatory claim in federal district court. Subsequent to 

filing the instant petition, Ideal received the December 14, 1990 Order of 

the judge, which purported to set forth the scope of the issues pending in 

the subject section 105(c)(3) action. Ideal filed an amendment to its 

petition seeking Commission clarification of the issues pending before the 

judge. Amendment at 1. 

For the reasons that follow, we decline to rule that, as a matter of 

law, the filing of a workers' compensation claim fails to constitute a 

protected activity under section 105(c) of the Act; we remand, for 

reconsideration the issue of whether the doctrine of res judicata bars the 

subject complaint of discharge; and we clarify the specific issues pending 

before the judge. 

We have reviewed the record in this case, and the record of the 

predicate section 105(c)(2) discrimination case docketed at No. CENT 

88-142-D. We conclude that it is necessary, at this juncture, to set forth 

1 The petition was filed by Holnam, Inc., described by counsel as 

"successor by operation of law to Ideal Basic Industries, Inc .... " 

327 
the specific issues pending before the judge. 

The instant action has been filed pursuant to section 105(c)(3) of the 

Act. To be valid a complaint thereunder must allege violations that were 

investigated by the Secretary of Labor and were determined by the Secretary 

not to be violative of section lOS(c)(l) of the Act. 

In this case the clearest indication of the issues investigated by the 

Secretary is contained in the predicate section 105(c)(2) complaint of 

discrimination and discharge filed by the Secretary on behalf of the 

complainants and others on August 23, 1988 and docketed at No. CENT 88-142-

D. 2 In that complaint, the Secretary alleged that the complainants 

engaged in two forms of protected activity: (1) prior to October 16, 1987, 

complainants filed Oklahoma State workers' compensation claims based on 

disabilities allegedly caused by hazardous conditions at the Ada Quarry and 

Plant, and (2) complainants made safety complaints to supervisors and agents 

of Ideal. The Secretary also alleged three separate adverse actions taken 

by Ideal: (1) Ideal discriminated against the complainants by requiring them 

to wear respirators and hearing protection devices that were different from 

those required of other miners performing the same job, and in more areas of 

the mine than other miners, (2) ,complainants were disciplined for failure to 

comply with such dispa~ate requirements and (3) that Ideal's "discrimination 

and, or discharge of complainants was in violation of section 105(c)(l) of 

the Act." Complaint at 3. 

Thus, the complaint filed by the Secretary on behalf of the 

complainant miners alleged illegal discharges because the complainants 

engaged in the two aforementioned protected activities. Although the 

Secretary failed to set forth any details regarding the discharges, the 

record discloses that discharges allegedly occurred in April of 1988. Order 

of December 7, 1990 at 4. 

On July 28, 1989, the Secretary and Ideal filed a joint "motion to 

approve settlement agreement and motion to withdraw." In that document, 

Ideal effectively admitted engaging in the first two of the three alleged 

adverse actions charged by the Secretary. In that same motion, the 

Secretary effectively determined that no discriminatory discharge violation 

had occurred. The motion contained the following: 

Motion at 4. 

The Secretary of Labor, after further review and 

evaluation, has determined that there is an 

insufficient basis for the Secretary to proceed with 

the claim of discriminatory discharge of any of the 

complainants. 

2 The complaint was amended on November 4, 1988. However, the amendment 

contained therein related only to the amount of civil penalty sought by the 

Secretary. 

328 
In his Decision Approving Settlement, on August 3, 1989, Commission 

Administrative Law Judge Michael A. Lasher Jr., properly construed the 

Secretary's withdrawal of the allegation of discriminatory discharge to have 

the provisions contained in section 105(c)(3) of the Act: 

(Complainant and Respondent have agreed that the 

Secretary of Labor's withdrawal shall not prejudice 

the rights of the individual claimants to pursue, 

pursuant to 30 U.S.C. § 815(c)(3) and 29 C.F.R. 

§ 2700.40(b), 4l(b) and 42(a), their allegations of 

discriminatory ). 

Decision at 2. 

Consequently, at the conclusion of the predicate section 105(c)(2) 

action filed by the Secretary on behalf of the complainants (No. CENT 88-

142-D), only one of the three allegations of violation of section lOS(c)(l) 

survived. Specifically, the surviving allegation was that: complainants 

were illegally discharged because they had engaged in two protected 

activities: (1) filing workers' compensation claims based upon disabilities 

allegedly caused by hazardous condttions at the Ada Quarry and Plant, and 

(2) making safety compl~iRts to supervisors and agents of Ideal. 

Accordingly, this allegation of violation was the sole allegation which 

could properly have been the subject of a complaint filed pursuant to 

section 105(c)(3) of the Act. 

After review of the subject section 105(c)(3) complaint filed 

September 11, 1989, and complainants' statement of issues filed February 12, 

1990, in response to Judge Morris' Order of January 23, 1990, we conclude 

that the case presently pending before Judge Morris does contain the very 

same allegation of illegal discharge initially filed by the Secretary, i.e., 

that the complainants were discharged in violation of section 

lOS(c)(l) because complainants engaged in two protected activities: (1) 

fil workers' compensation claims based on disabilities allegedly caused 

by hazardous conditions at the Ada Quarry and Plant, and (2) making safety 

complaints to supervisors and of Ideal. 

To the extent that the record in this matter contains conclusions, 

or orders by the judge that conflict with the foregoing, they are 

hereby vacated. 

Protected Activity 

Ideal argues that a miner's claim that he was discharged in 

retaliation for filing workers' compensation claims fails to state a claim 

for which relief can be i.e., that such a claim does not constitute 

an protected by § 105(c) of the Act. In relevant part, section 

lOS(c)(l) provides: 

No person shall discharge . . . any miner . . . because 

such miner . . . has filed or made a complaint under 

or related to this Act, including a complaint 

notifying the operator . . . of an alleged danger or 

329 
safety or health violation ... or because such miner 

... has instituted or caused to be instituted any 

proceeding under or related to this Act ... 

(emphasis supplied). 

This issue has not been the subject of prior review by the Commission, 

but several Commission administrative law judges have found the existence of 

protected activity when agencies other than the Mine Health and 

Administration were contacted regarding health or safety hazards. 3 

In the predicate section 105(c)(2) action before Judge Lasher, Ideal 

moved for dismissal or summary judgment based upon the same argument. In 

denying the motion Judge Lasher held: 

[T]he filing by a miner with an appropriate state 

agency of a claim for Workmen's Compensation can in 

the abstract be considered to be a notification to a 

mine operator of an alleged danger or safety or 

health violation as provided in section 105(c)(l) of 

the Act. Whether such claim should be so considered 

and become a_ protected activity can only be 

determined on the basis of all the evidence. In 

this connection, in the perspective of the issue 

raised on motion for dismissal or summary judgment, 

it is pointed out that Petitioner has specifically 

alleged that the Oklahoma State Workmen's 

Compensation claims were "based on disabilities 

allegedly caused by hazardous conditions .... " 

Petitioner also contends that such claims are 

complaints "related" to the Mine Act. 

Order of June 13, 1989, at 2. 

We agree with Judge Lasher that the issue is not summarily disposed of 

by exclusive reference to the text of section lOS(c) of the Act. The 

factual context in which the alleged activity occurred is determinative of 

whether the activity is protected. 

Accordingly, we conclude that the issue of whether the filing of 

workers' compensation claims is a protected activity is a proper subject of 

litigation in this case. To the extent that the record in this matter 

contains conclusions, finding or orders that conflict with the foregoing, 

3 See Secretary of Labor on behalf of William Johnson v. Borden Inc., 

(Chemical Div .. Smith-Douglass), 3 FMSHRC 926, (April 13, 1981); Johnny Howard 

v. Martin-Marietta Corp., 3 FMSHRC 1599, (June 19, 1981); Secretary of Labor 

on behalf of Joseph Gabossi v. Western Fuels-Utah, Inc., 9 FMSHRC 1481, 1505 

(August 21, 1987), remanded on other grounds, 10 FMSHRC 953 n. 3 (August 15, 

1988). But see Randy J. Collier v. Great western Coal, Inc., 12 FMSHRC 35, 

(January 9, 1990). 

330 
they are hereby vacated. 

Res judicata 

Ideal argues that the subject claim of illegal discharge under the 

Mine Act is barred by the doctrine of res judicata because the complainants 

previously settled and dismissed with prejudice workers' compensation 

retaliatory discharge claims in federal district court. 

Prior to the initiation of the instant case, Ideal filed a civil 

action t complainants and other employees in the U.S. District Court 

for the Eastern District of Oklahoma charging, alia, violations of the 

Racketeer Influenced and Corrupt Organizations Act (Case No. 88-186-C). 

Complainants interposed a counterclaim alleging that Ideal discharged them 

in retaliation for filing state workers' compensation claims in violation of 

Oklahoma State law. However, on June 2, 1989, the parties consented to 

entry of an order whereby the complainants voluntarily dismissed with 

prejudice the counterclaim which alleged "workers' compensation retaliation 

wrongful discharge." Order at 1. 

Reciting the foregoing, Ideal, ... moved to dismiss the complaint in the 

instant case on the basis . ...of res judicata. In his order of December 7, 

1990, denying the motion, the judge concluded that" ... different causes of 

action were involved in the District Court case and the case before the 

Commission." Order at 4. In explaining the basis for his legal conclusion, 

the judge said: 

As indicated in this order, the issue of whether a 

workman's compensation claim is an activity 

protected under the Act is not an issue in this 

case. Such issue will not be decided, since it was 

dismissed with prejudice in the case filed before 

Judge Lasher. (CENT 88-142-D). 

Order of December 14, 1990 at 4. 

As we have indicated earlier, the workers' compensation claim issue 

was not dismissed with prejudice by Judge Lasher and is presently pending. 

Accordingly, we remand this issue to the j for reconsideration. 

Without intimating an opinion on this issue, we note that the 

Commission has previous considered the issue of res judicata and its 

impact upon matters arising under section lOS(c) of the Act. Bradley v. 

4 FMSHRC 982 (June 4, 1982), 2 MSHC 1729. There the 

Commission set forth a framework for analyzing application of res judicata 

to section 105(c) actions. The dismissed counterclaim should be compared to 

the present section 105(c)(3) complaint in light of the iples set forth 

in ==-=~="-.1-

331 
For the foregoing reasons, this matter is hereby remanded to the 

judge. 

~ _,,/ / 

~~~KAt-L;, < 

<:> 

Richard V. Backley, Acting Chairman 

Joyce A. Doyle, Commission;:? 

Arlene Holen, Commissioner 

Distribution 

Michael C. Towers, Esq. 

Fisher & Phillips 

1500 Resurgens Plaza 

945 East Paces Ferry Rd. 

Atlanta, Georgia 30326 

Benn A. Goff, Esq. 

Goff and Meador 

6301 Gaston Ave., Suite 520 

Dallas, Texas 75214 

J. Warren Jackmsn, Esq. 

L. Clair Nelson, Commissioner 

Pray, Walker, Jackman, Williamson & Marlar 

Ninth Floor 

Oneok Plaza 

Tulsa, Oklahoma 74103 

Administrative Law Judge John ~!orris 

Federal Mine Safety & Health Review Commission 

280 Colonnade Center 

1244 Spper Boulevard 

Denver, Colorado 80204 

332 
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 

MAR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MAR-LAND INDUSTRIAL CONTRACTOR, 

INCORPORATED, 

Respondent 

6 \991 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. SE 90-117-M 

A. C. No. 54-00001-05503 BOY 

Ponce Cement or Ponce Cement 

Plant 

Appearances: Janes. Brunner, Esq., U. s. Department of Labor, 

Office of the Solicitor, New York, New York, 

for the Secretary; 

Daniel Dominguez, Esq., Miguel A. Maza, Esq., 

Dominguez and Totti, Hato Rey, Puerto Rico, for the 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me based on a Proposal for Assessment of 

Civil Penalty in which the Secretary {Petitioner) alleged that 

the Operator (Respondent) violated 30 C.F.R. § 56.15005. 

Pursuant to notice, the case was heard in Hato Rey, Puerto Rico 

on December 3, 1990. Anibal Colon Deffendini, Johnny Torres 

Garcia, German Matos Hernandez, and Roberto Torres-Aponte 

testified for Petitioner. Jose Luis Ortiz Gonzalez, Miguel A. 

Garcia, and Sidney Kaye testified for Respondent. Petitioner 

filed Proposed Findings of Fact and a Memorandum of Law on 

January 13, 1991. Respondent filed a Legal Memorandum and 

Proposed Findings of Fact on February 22, 1991. 

Findings of Fact and Discussion 

I. 

On February 19, 1990, Cecilio Caraballo, a rigger employed 

by Respondent, was performing construction work in the conversion 

area of Respondent 1 s work site at Puerto Rican Cement. 

Caraballo, who was working approximately 50 feet off the ground, 

was wearing a safety belt to which a rope was attached. He 

333 
wrapped another rope around a beam to which he attached the rope 

portion of the belt that he was wearing. He either leaned back 

or attempted to descend, and then fell to the ground, and was 

killed. Roberto Torres-Aponte, an inspector employed by MSHA, 

was the only witness who testified that he actually had examined 

the safety belt and ropes used by Caraballo. He described the 

condition of the belt and ropes tied to as "good" (Tr. 84, 85) 

Thus, taking into account the fact that there is no evidence that 

there was anything wrong with the condition of either the belt or 

ropes, and considering the fact that Anibal Colon Deffendini, 

Johnny Torres Garcia, and German Matos Hernandez, all of whom 

witnessed the accident, indicated that the belt and the ropes 

fell to the ground along with Caraballo, I. conclude that the belt 

was not properly secured to the beam. Hence, the belt was not 

being worn and used in a safe fashion. Accordingly, I find that 

Respondent herein did violate Section 56.15005 as alleged in the 

Citation issued to Respondent by MSHA Inspector Roberto-Torres 

Aponte. 

II. 

Clearly the violation herein contributed to the sk of 

falling. Further, inasmuch as the violation herein led to the 

death of Caraballo, I conclude that the violation was significant 

and substantial. (See, Mathies Coal Co., 6 FMSHRC 1 (January 

1984)). 

III. 

Inasmuch as the violation herein resulted in a fatality, I 

conclude that the violation was of a high level of gravity. 

IV. 

Essential it is Respondent's position that it was not 

negligent with regard to the violation at issue. For the reasons 

that follow, I disagree. 

According to the testimony of three of Respondent's riggers, 

Deffendini, Hernandez, and Jose Luis Ortiz Gonzalez, Respondent's 

supervisors conducted weekly meetings, at which time the use of 

safety belts was discussed. These employees did not testify to 

any specif instructions or information that was provided at 

se meetings. No testimony was adduced from any of 

Respondent's supervisors as to the specific content of the weekly 

safety meetings pertaining to the use of the belts. Hence, the 

record before me fails to establish specifically what Respondent 

told his employees with regard to the use of safety belts, and 

more importantly, the specific manner in which they were to be 

334 
properly secured. 1 / According to Gonzalez, Victor Vega, 

Respondent's supervisor, conducted a safety meeting on the 

morning of February 19, the date of the accident at issue, and 

talked about how to use safety belts, and the use of other 

equipment. However, neither Gonzalez nor any other witness 

testified with regard to the specific instructions or information 

that was imparted. Thus, the record does not support a finding 

that any specific instructions were provided by Respondent on 

February 19, with regard to the ~eed to secure the safety belts 

and the correct manner to do so. I 

There is no evidence that Respondent provided Caraballo or 

its other employees with any written instructions on the usage of 

safety belts. Indeed, Respondent's only written safety policy 

does not mention the use of safety belts (Joint Exhibit A). 

Additionally, there is no evidence that supervisors were present 

to observe or supervise the manner in which Caraballo wrapped the 

rope around the beam, and attached his belt to it. In this 

connection, I find the testimony of Gonzalez that Vega conducted 

a safety meeting on February 19, 1990, by itself, insufficient to 

rebut the testimony o; Deffendini, Hernandez, and Johnny Torres 

Garcia, that, in essence, when Caraballo attached or attempted to 

attach his belt to the beam there were no supervisors present. 

Also, Respondent had notice that its employees were not 

securing their belts, as it had been served with two imminent 

danger orders for violations of Section 56.15005, supra, op the 

ground that employees wearing belts had not tied them off. 5 / 

1 ; Indeed, according to Johnny Torres Garcia, he had been 

working for Respondent for approximately a month prior to 

February 19,1990, and had not received any instructions from 

Respondent concerning the use of safety belts. 

2 ; Respondent relies on Colon's testimony that, when 

Caraballo was hired, he (Colon) informed him of the need to wear 

a belt and instructed him in the manner in which it was to be 

used" This testimony does not establish that Respondent 

discharged its obligation to instruct on the usage of safety 

belts, as there is no evidence that Colon, when he instructed 

Caraballo, was acting pursuant to directions from management 

rather than on his own initiative. 

3 ; The most recent such order was issued February 18, 1989. 

335 
There is no evidence that Respondent took any action response 

to such notic2 to ensure that employees properly secure their 

safety belts. I 

considering all of the above, I conclude that Respondent was 

highly negligent in not adequately instructing and supervising 

its employees in proper methods to be used in securing safety 

belts. 

A toxicological analysis of Caraballo's urine indicated the 

presence of .30 mcg/ml benzoylecgonine, a substance the liver 

metabolizes from cocaine, evidencing the fact that Caraballo had 

ingested cocaine at some time before his death. (The report 

indicated that the examination of the nasal passages was negative 

for cocaine and there was no cocaine detected in Caraballo's 

blood). As explained by Sidney Kaye, an eminent toxicologist, in 

essence, once ingested cocaine has been metabolized to 

benzoylecgonine, as was the case with Caraballo, it would cause 

depression which could be "deep" (Tr. 129). The depression can 

produce confusion, tiredness, muscle spasm, anxiety, 

restlessness, and a .lessened ability to concentrate and remember. 

However, Kaye indicated that he had no way of knowing how much 

cocaine Caraballo had taken and how long he had taken it prior to 

the accident. Also, no evidence was adduced with regard to a 

correlation between the level of benzoylecgonine present in the 

urine and the degree of impairment in concentration. Thus there 

is nothing in the record to indicate that the level of 

benzoylecgonine in Callaballo's urine was .i sufficient amount 

to have caused a significant deterioration in his concentration 

and memory so as to have significantly impaired his ability to 

properly perform the task of securing his safety belt. Thus, I 

find that although Caraballo's concentration and memory might 

have been impaired due to the ingestion of cocaine, the record is 

insuff ient to predicate a finding as to the degree of 

impairment in these functions as a consequence of the ingestion 

of cocaine. Hence, the presence of .30 mcg/ml of benzoylecgonine 

4; Miguel A. Garcia, Respondent's President and Project 

Manager at the subject site, testified that Respondent, in 

general, had policy of issuing warnings for safety infractions. 

so, Gonz testified that Respondent had reprimanded him for 

f ling to off his be I find this evidence is 

insufficient to establish that Respondent had either provided 

specific instruction in the requirement and manner of securing a 

belt or taken any supervisory action to monitor that belts were 

being secured properly. 

336 
in Caraballo's urine does not, per se, diminish Respondent's 

negligence to any significant degree. Accordingly, I conclude 

that the violation herein was as a result of Respondent's high 

level of negligence.j/ 

Taking into account the remaining statutory factors as 

stipulated to by the Parties, I conclude that a penalty of $5000 

is appropriate for the violation found herein. 

5/ Respondent has cited North American Coal Corp., 

3 IBMA 93 (April 1974), and Peabody Coal Corp.,, not officially 

reported, 1 MSHC 1676_(Judge Koutras, August 30, 1978) for the 

principle that an employer can not be held responsible for 

insubordinate acts of its employees, where the former has a 

policy promoting safety which it consistently applies. I do not 

find these cases to relevant to the instant proceeding. In North 

American, supra, the Operator was cited for violating 30 C.F.R. 

§ 75.1720(a), which mandated that miners are reauired to wear 

safety goggles. Accordingly, the Commissio.n held that a 

violation did not occur where the failure to wear goggles is 

entirely the result of the employees' negligence or disobedience. 

In contrast, in the case at bar, the evidence does not establish 

that the violation was entirelv the result of Caraballo's 

negligence or misconduct. The Commission in North American, 

supra, in essence, held that an Operator is in compliance with 

the mandate of requiring miners to wear goggles when it 

establishes a safety system to assure the wearing of such 

equipment. 

In Peabody coal Corp., supra, the Operator was cited for a 

violation of 30 C.F.R. § 77.1710 which mandates that miners shall 

be reauired to use safety belts and lines where there is a danger 

of falling. In holding that a violation did not occur, Judge 

Koutras noted that a miner who was not wearing a belt, was acting 

contrary to posted and published instructions. In the case at 

bar, the evidence fails to establish posted and published 

instructions with regard to the need to secure a safety belt and 

the proper manner to do so. Davis Mechanical Construction, Inc., 

5 OSHC 1789 ( June 2, 1977), and Constructora Maza, Inc., 

2 OSHC 3079 (July 8, 1974), involve alleged violation of safety 

standards set forth in Title 29 of the Code of Federal 

Regulation,s, and hence are not binding in the present proceeding 

which involves a violation of a differently worded regulation set 

forth in Title 30 of the Code of Federal Regulations. 

337 
ORDER 

It is ORDERED that, within 30 days of this Decision, 

Respondent pay $5000 as a Civil Penalty for the violation found 

herein. 

/~·, 

/A~e~ Administrative Law Judge 

Distribution: 

Janes. Brunner, Esq., Office of the Solicitor, U. s. Department 

of Labor, 201 Varick Street, Room 707, New York, NY 10014 

(Certified Mail) 

Daniel Dominguez, Esq., Miguel A. Maza, Esq., Dominguez and 

Totti, P. O. Box 1732, Hato Rey, PR 00919 (Certified Mail) 

dcp 

338 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 6, 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 90-126 

A. C. No. 01-00323-03638 

v. Chetopa Mine 

DRUMMOND COMPANY, 

INCORPORATED, 

Respondent 

Appearances: 

Before: 

DECISION 

Douglas N. White, Esq., and Carl c. Charneski, 

Esq., Office o_f the Solicitor, U. S. Department 

of ~abor, Arlington, Virginia; and 

George D. Palmer, Esq., and William Lawson, Esq., 

Office of the Solicitor, U. S. Department of 

Labor, Birmingham, Alabama, for the Petitioner. 

Thomas c. Means, Esq., and J. Michael Klise, Esq., 

Crowell and Moring, Washington, D.C.; 

David M. Smith, Esq., Maynard, Cooper, Frierson 

and Gale, Birmingham, Alabama; and 

J. Fred McDuff, Esq., Drummond Company, Inc., 

Birmingham, Alabama, for the Respondent. 

Judge Merlin 

Statement of the case 

This action is a petition for the assessment of six civil 

penalties filed by the Secretary of Labor against Drummond 

Company, Inc., under section llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 820(a), hereafter referred to 

as the "Act 11 o 

Drummond Company, Inc., hereafter referred to as the 11 operator11, has filed a motion to remand for reassessment by the Secretary of proposed civil penalties and a memorandum in support 

thereof" The Secretary has filed a motion and brief in opposition to the motion to remand. Thereafter the operator filed a 

reply brief. On February 28, 1991, oral argument was heard on 

the motions. 

The parties have agreed to the following stipulations which 

were accepted at the oral argument (Tr. 3): (1) the operator is 

the owner and operator of the subject mine; (2) the operator and 

the mine are subject to the provisions and jurisdiction of the 

Federal Mine Safety and Health Act of 1977; (3) the Administrative Law Judge of the Federal Mine Safety and Health Review 

339 
commission has jurisdiction in this case; (4) only the proposed 

penalties in Docket No. SE 90-126 are the subject of the motion 

to remand; the Secretary agrees that the stipulations and exhibits are true and accurate, but objects to the consideration 

and/or admissibility of the same on the grounds of relevancy; 

(5) Program Policy Letter No. P90-III-4, is a true and accurate 

copy of the policy implemented by the Mine Safety and Health 

Administration, hereafter referred to as "MSHA", in assessing the 

penalties in this case; (6) as set forth in the letter and as was 

applied herein, excessive history is defined as "11 or more 

repeat violations of the same health or safety standard in a 

preceding 1-year period"; (7) as set forth in the letter and as 

was applied herein, if the excessive history of each citation 

consisted of between 11 and 25 violations inclusive, then the 

proposed penalty was increased 20%. If the excessive history of 

each citation consisted of between 26 and 40 violations inclusive, then the proposed penalty was increased 30%; (8) the 

foregoing policy was implemented in this case resulting in four 

citations being increased by 20% and two citations being 

increased by 30%. 

Issue 

The operator challenges the method whereby the Secretary 

arrived at the amount of penalties she has proposed in this case 

pursuant to section llO(a) of the Act, supra. In particular, the 

operator disputes the use made by the Secretary of the operator's 

prior history of violations in reaching the proposed penalties. 

Applicable Law and Policy 

Section llO(a), supra, directs the Secretary to assess a 

civil penalty for every violation. Section 105(a), 30 U.S.C. 

§ 815(a); provides that the Secretary shall notify the operator 

of the proposed penalty and of appeal rights. Section 

105(b) (1) ( , 30 UoS.C. § 815(b) (1) (B)v directs the Secretary in 

determining the proposed penalty to consider the following six 

factors: the operator's history of previous violations, the 

appropriateness of the penalty to the size of the operator's 

businessr negligence~ the effect on the operator's ability to 

continue businessv gravityv and demonstrated good faith in attempting to achieve rapid compliance after notification of the 

violation. 

Section 105(a), supra, allows the operator 30 days to notify 

the Secretary of its intention to contest a proposed penalty 

assessment. If the operator does not contest the proposed 

assessment within the time allowed, the proposed assessment is 

deemed a final order of the Commission not subject to review by 

any court or agency. Under section 105(d), 30 u.s.c. § 815(d), 

when the operator notifies the Secretary of its intention to 

contest the proposed assessment, the Secretary must immediately 

340 
advise the Commission and the Commission must afford an opportunity for a hearing under the Administrative Procedure Act. 

Pursuant to section llO(i), 30 u.s.c. § 820(i), the Commission has the authority to assess all penalties provided for in 

the Act and in so doing it must consider the same criteria that 

the Secretary considers in proposing penalties. 

In implementation of her responsibilities under sections 

105(a) and (d) and llO(a), supra, the Secretary adopted 30 C.F.R. 

Part 100. These regulations establish a tripartite scheme for 

calculating the amount of proposed civil penalties. 

The first method is the $20 single penalty assessment. 

30 c.F.R. § 100.4. This applies where a violation is not reasonably likely to result in a reasonably serious injury, hereafter 

referred to as "non S&S", and is abated within the time set by 

the inspector. As discussed infra, under the single penalty 

assessment the remaining four criteria, including history of 

violations, are not individually analyzed in each case. 

The second methoa is the regular assessment formula. 

30 C.F.R. § 100.3. The penalty computation is based upon the six 

factors in section 105(b) (1) (B), supra. Points are given on a 

sliding scale for each of the criteria and a penalty conversion 

table translates the points into a dollar amount. Of particular 

interest for present purposes is the fact that as originally 

enacted, a history of single penalty assessments was expressly 

excluded from an operator's history of previous violations when 

the regular formula was used. 30 C.F.R. § 100.3(c). 

The third method is the special assessment which provides 

that MSHA may waive the regular or single penalty assessments if 

it determines that conditions surrounding the violation warrant a 

special assessmento 30 C.FoR. § 100.5. Some types of violations 

may be of such a nature or seriousness that an appropriate 

penalty cannot be determined by the first two methods. Under 

such circumstances, eight categories are identified and are to be 

reviewed to determine whether a special assessment is appropriate a Special assessments are also to take into account the six 

criteria" 

The genesis of the issues presented in this case is to be 

found in the decision of the Court of Appeals for the District of 

Columbia in Coal Employment Project. et al. v. Dole, 889 F.2d 

1127 (1989), where the validity of the single penalty assessment 

was challenged on the ground that under that method individualized consideration was not given to all six statutory criteria. As set forth above, a single penalty assessment of $20 is 

341 
levied for a non S&S violation that is timely abated, but where 

separate consideration is not given to the other criteria. 

The court of appeals held that the Secretary was not required to adopt an individualized approach to all six criteria 

and that as a general matter assessment of penalties according to 

group classifications based upon the presence or absence of 

specific criteria was a reasonable interpretation of the Act. 

The court approved the use of a non-generalized approach with 

respect to the operator's size, ability to continue in business, 

and negligence. Id. at 1134-1136. 

The court however, expressed far different views regarding 

prior history of violations which it described as an especially 

important criterion in Congress' eyes. Id. at 1136. The court 

cited the legislative history of the Act to demonstrate that 

Congress had been concerned with repeat offenders and it said 

that Congress intended that civil penalties provide an effective 

deterrent against all off enders and particularly against off enders with records of past violations. The court then pointed out 

that violation history figured in the validity of the single 

penalty assessment in-two ways: (1) its presence or absence in 

the single penalty assessment under section 100.4; and (2) the 

omission of single penalty assessments from history in application of the regular and special assessment formulas. Id. at 

1136. 

The court then turned to two scenarios to illustrate its 

concerns. In the first situation, an operator who commits a 

series of non S&S violations that are timely abated would only 

incur a string of $20 penalties. The court believed this was 

contrary to Congress' intent that the more prior infractions 

incurredv the higher the current penalty should be and that there 

was no evidence Congress did not mean this approach to apply to 

violations governed the single penalty assessmento Unpersuaded by MSHAus representations about how the penalty scheme was in 

administered, the court held that the scheme must take into 

account the operator's history of violations whether they are 

significant and substantial, hereafter referred to as 11S&S", or 

non S&So MSHA regulations werev therefore, held unreasonable 

because they did not provide a method for imposing higher penalagainst operators who commit numerous non S&S violations . 

. at 1136-11380 Accordingly, the court's decision may be 

fairly interpreted to hold that the failure to take account of 

previous non S&S violations in determining the assessment of a 

current non S&S violation was erroro 

In the second situation described by the court, an operator 

commits an S&S violation after a series of single penalty assessmentso Section 100.3(c) provided that the history of single 

penalty assessments would not be included in a penalty computation under the regular assessment formula. Contrary to the 

342 
regulations, MSHA represented to the court that where an S&S 

violation was repetitious, i.e. similar to the prior non S&S 

violation, it could be subject to special assessment. Even 

assuming this were true, the court pointed out that if the later 

S&S violation was not repetitious of the earlier non S&S violation, only a regular assessment would be generated which would 

not take into account prior non S&S violations. Id. at 1138. 

Therefore, the court remanded the case to (1) resolve the 

inconsistencies between MSHA's regulations and its representations to the court so as to insure that MSHA took account of past 

single penalty violations in deciding whether a special assessment is required when a current violation itself might qualify 

for a single penalty assessment and (2) to amend or establish 

regulations to clarify how administration of the single penalty 

standard would take account of the history of both S&S and non 

S&S violations. In the interim until MSHA formally complied with 

the remand, it was directed to instruct field personnel (1) to 

consider an operator's history of non S&S violations in assessing 

a single penalty assessment and (2) to consider an operator's 

history of past single penalty assessments when imposing regular 

assessments against.an operator who commits an S&S violation 

after having committed a series of non S&S violations. Id. at 

1138. 

MSHA initially responded to the court's order by issuing 

interim regulations. 54 Fed. Reg. 53609 (1989). These instructions (1) called for-a special assessment review of non S&S 

violations involving high negligence and excessive history of the 

same type of violation and (2) suspended the sentence in section 

§ 100.3{c) which excluded prior single penalty assessments from 

the regular assessment formula. In a per curiam opinion dated 

April 12, 1990v the court disapproved the use of a high negligence factor 1 but did not disturb the partial suspension of 

section 100 3(c), noted herein. The court also told MSHA to 

devise a suitable interim replacement responding to the court 9 s 

concerns within 45 days and noted MSHA@s intention to publish a 

proposed final rule by August, 1990. Coal Employment Project v. 

Dole, 900 F.2d 367, 367-368 (D.C. Cir. 1990). 

Thereafter on May 29, 1990, MSHA issued Program Policy 

Letter No. P90-III-4. This letter states it is implementing a 

program of higher penalties for violations that meet a new 

svexcessive history" criteria. For each violation both an overall 

history of violations and a repeat history of the same mandatory 

standard are calculated. Excessive history is defined as (1) 16 

or more penalty points as derived from the table appearing in 

section 100.3(c) for the calculation of prior history points 

under the regular assessment formula or (2) 11 or more repeat 

violations of the same standard within a preceding one year 

period. 

343 
The program policy letter further provides that non S&S 

violations with excessive history are no longer eligible for the 

single penalty assessment and that MSHA elects to waive the 

single penalty in such cases and to assess penalties under the 

regular formula. In addition, S&S violations with excessive 

history that previously would have received a regular formula 

assessment will now receive a special history assessment, since 

MSHA elects to waive the regular formula assessment and assess 

under the special assessment method. Finally, the special 

history assessments for S&S violations are based on the regular 

formula point system plus a percentage increase for excessive 

history which will be added to the penalty. The percentage 

increases consist of three progressive increments of 20% to 40% 

based upon overall history points or number of repeat violations. 

In the instant case the six contested violations were 

specially assessed pursuant to the program policy letter. Four 

violations cited under 30 C.F.R. § 75.503 were subject to a 20% 

increase in their regular assessments and two violations of 

30 C.F.R. § 75.400 were subject to a 30% increase. (Stipulation 

No. 8) • 

The operator does not question the court's decision or 

directives in Coal Employment Project, et al. v. Dole, supra. 

Rather, it alleges that the program policy letter goes beyond 

what the court ordered, that the letter is contrary to the 

court's decision as well as to the Act and regulations, and that 

the letter was promulgated without notice and comment as required 

by the Administrative Procedure Act. 

Jurisdiction 

The threshold issue is whether or not I have jurisdiction to 

entertain the issues presentedo In this respectv the Commission us decision in Youghioghney & Ohio Coal CompanyQ 9 FMSHRC 673 

1987) v is instructiveo In that case the operator argued that 

since the Secretary had not complied with the Part 100 regulations in proposing penalties the case should be remanded to MSHA 

for reconsideration of the penalties. 9 FMSHRC at 6790 The 

Commiss held that since the administrative law judge had 

conducted an evidentiary hearing on the meritsv no compelling 

or practical purpose would be served by requiring the 

Secretary to undertake again the proposing of the penalties. 

In the Commission 1 s view, a preferable record had already been 

developed which allowed the Commission to assess penalties 

under its de novo authority. Once a hearing had been held, the 

344 
determination by the Commission or one of its judges that the 

secretary failed to comply with Part 100 did not require affording the Secretary further opportunity to propose penalties. The 

commission however, also stated: 

* * * * We further hold, however, that in 

certain limited circumstances the Commission 

may require the Secretary to re-propose his 

penalties in a manner consistent with his 

regulations. 

* * * * 

We further conclude, however that it would 

not be inappropriate for a mine operator prior to 

a hearing to raise and, if appropriate, be given 

an opportunity to establish that in proposing a 

penalty the Secretary failed to comply with his 

Part 100 penalty regulations. If the manner of 

the Secretary's proceeding under Part 100 is a 

legitimate 9oncern 'to a mine operator, and the 

Secretary's departure from his regulations can be 

proven by the operator, then intercession by the 

Commission at an early stage of the litigation 

could seek to secure Secretarial fidelity to his 

regulations and possible avoidance of full 

adversarial proceedings.* * * * 

Id. at 679-680. 

In the instant case there has been no hearing on the merits. 

At the very outset the operator raised the issue of the validity 

of the method pursuant to which the Secretary proposed the six 

penalties involved hereo Therefore, this case falls within the 

commissioncs pronouncement that where there is no record, the 

Commission can require the Secretary to re-propose penalties if 

the operator proves the Secretary has not followed Part 100. 

(Operator's Reply Brief, p. 2). 

The Solicitor 1 s argument that the Commission 1 s statements 

regarding jurisdiction are only suggestions cannot be accepted. 

(Solicitor 1 s Brief, pp. 8-9) o As set forth above, the Commission 

described its declaration as a holding and a conclusion" And its 

statements regarding what may be done in a situation like this 

case are straightforward and definitive" As for the Solicitor's 

assertion that the Commission is wrong in this respect, it need 

only be remembered that decisions of the Commission are binding 

upon its judges. I have previously rejected as mischievous any 

notion that I am at liberty to depart from Commission teachings. 

U. S. Steel Mining Company, Inc., 5 FMSHRC 746 (May 1986). The 

Solicitor's further assertion that this case is distinguishable 

345 
from Youghiogheny & Ohio, because it does not involve the Secretary's failure to abide by her own penalty regulations, also must 

be rejected. (Solicitor's Brief, p. 9). The operator contends 

that the Secretary's present attempt to propose penalties is 

based upon the invalid instructions of the program policy letter. 

(Operator's Brief, pp. 4-5; Operator's Reply Brief, pp. 2-4). If 

the instructions are found invalid, the Secretary must then 

propose penalties in accordance with Part 100 without recourse to 

the instructions. In other words, the operator's allegation is 

that at present the Secretary is not following Part 100 without 

the added instructions of the program policy letter which the 

operator believes are illegal. This case is therefore, within 

the purview of Youghiogheny & Ohio. 

Accordingly, I conclude I have jurisdiction to consider the 

issues presented. 

The court's Interim Mandate 

We turn now to the validity of the method whereby MSHA has 

proposed penalty assessments, ,in the instant case. This inquiry 

depends in the first-instance upon whether the method used by 

MSHA as set forth in the May 29, 1990, Program Policy Letter 

conforms to the court's decision and order in Coal Employment 

Project v. Dole, supra. As already noted, the operator does not 

contest the court 1 s instructions to MSHA. The questions presented are what the mandate means and whether MSHA's letter complies 

with it. As explained heretofore, the court approved the single 

penalty assessment with respect to three of the four statutory 

criteria which received group classification treatment. The 

court however, took a different stance with respect to history of 

prior violations. The court emphasized that this factor was of 

singular significance in the adoption and administration of the 

Act and directed its attention to the effect given by Part 100 to 

a prior of single penalty assessments, ioe. non S&S 

violations that are timely abated. It noted that 30 C.F.R. 

§ 100.4 made no provisions for taking such history into account 

when proposing a single penalty assessment and that one sentence 

30 C.F.R. § 100.3(c) provided that in proposing regular 

assessmentsf a prior history of single penalty violations would 

not be counted. 

The court held first that the regulations were unreasonable 

because when assessing a current non S&S violation they did not 

provide a reasonable and consistent method for imposing higher 

penalties against operators who had committed numerous past non 

S&S violations. The court further held that with respect to 

current S&S violations which are not repetitious of earlier non 

S&S violations, MSHA regulations and policies were deficient 

because they implied that the current violations would result 

only in regular assessments which would not reflect the earlier 

violations. Accordingly, the court ordered MSHA, alia, to 

346 
establish regulations to clarify how the single penalty assessment would take account of both a non S&S and an S&S history. In 

the interim the court required MSHA (1) in assessing single 

penalties to consider an operator's history of non S&S violations 

and (2) to consider a past history of single penalties when 

imposing regular assessments against operators who have a current 

S&S violation. 

The May 29, 1990, Program Policy Letter establishes a new 

element which the Secretary must take into account when proposing 

civil penalties under the Act. As already explained, this 

element, entitled "excessive history", comes into existence 

either when an operator has more than 16 penalty points as 

derived from Table 6 in section 100.3 of the regulations or more 

than a given number of repeat violations of the same health and 

safety standard. In its "Background" discussion the letter 

states that increased assessments at mines with an excessive 

history of both S&S and non S&S violations should serve as a more 

effective deterrent. Clearly, therefore, excessive history 

encompasses both categories of violations. 

The program pol~ey letter's adoption of an excessive history 

standard which includes both S&S and non S&S violations, exceeds 

the court's interim mandate. To be sure, the court conducted a 

wide ranging analysis of the crucial part played by prior history 

in proposing and assessing penalties. But in considering the 

challenge before it to the single penalty assessment, the court 

focused upon the history of single penalty assessments as that 

history relates to assessments of current S&S violations and 

current non S&S violations. The first hypothetical given by the 

court was of an operator who commits a series of non S&S violations and receives only a string of $20 penalties, i.e. an 

operator with a current non S&S violation after of history of 

previous non S&S violationso The second hypothetical was concerned an operator who commits a current S&S violation (nonrepetitious) after an earlier series of non S&S violations" With 

these examples in mind, the court directed the Secretary as an 

interim matter to consider an operator's history of non S&S 

violations both in assessing current single penalties and imposing current regular assessments" The program policy letter goes 

beyond the court s interim instructions because it deals not only 

with the operatorus history of non S&S violations but also with 

its S&S history" 

In light of the foregoing, the program policy letterus 

declaration that non S&S violations with excessive history are no 

longer eligible for the single penalty assessment cannot be 

accepted as within the confines of what the court allowed MSHA to 

undertake immediately. 

So too, the program policy letter's pronouncement that S&S 

violations with an excessive history will now receive a special 

347 
history assessment, as set forth heretofore, with percentage 

increments in penalty amounts also cannot be approved. The terms 

of the interim mandate are clear and the program policy letter 

goes beyond them. 1 

Finally, it must be recognized that the court in Coal 

Employment Project v. Dole, supra, contemplated that there would 

be rulemaking to bring Part 100 in line with the legislative 

history and purposes of the Act. The second portion of the 

court's remand directs MSHA "to amend or establish regulations" 

to clarify how administration of the single penalty standard 

would take account of a history of violations that did and did 

not pose significant and substantial threats to miner safety. 

The court issued its interim mandate for limited agency action 

until MSHA "formally" complied with the remand. One must not 

lose sight of the clear distinction between the remand and the 

interim instructions. The interim instructions concern only the 

role of a prior non S&S history, whereas the remand, which envisages formal procedures, encompasses a history of both types of 

violations, S&S and non S&S. 

I find unconvincing the Solicitor's representations that the 

rulemaking now undertaken by the Secretary with respect to prior 

history and other matters, is voluntary. (Solicitor's Brief, 

p. 17); 55 Fed. Reg. 53481 (1990). The notice of proposed 

rulemaking makes clear that it is being undertaken pursuant to 

the court's remand. The program policy letter is an attempt to 

put new rules regarding the treatment of history of prior violations on a fast track without reference to the court's intent 

regarding new regulations which would be adopted pursuant to 

formal compliance with its remand. In addition, the prospective 

nature of the proposed rulemaking which applies only to citations 

and orders issued after January 1, 1991, undercuts the fast track 

approach of the lettero 

Administrative Procedure Act 

The next inquiry is whether the program policy letter can 

stand on its own without reliance upon the court's interim 

In this connection it is noted that the first interim 

instructions supra, were plainly correct in suspending the 

sentence in section 100.3{c) which had excluded timely paid 

single penalty assessments from an operator's history for regular 

assessment purposes. The history covered was only that of non 

S&S violations and the offending sentence was specifically 

identified by the court. As already set forth, the court's per 

decision let stand the suspension. 

348 
mandate. This depends upon whether notice and comment are 

required under the Administrative Procedure Act. 

Section 553 of the Administrative Procedure Act, 5 u.s.c. 

§ 553, hereafter referred to as the "APA11 , provides that when an 

agency proposes to engage in rulemaking, it must publish notice 

of the proposed rulemaking in the Federal Register, give interested persons an opportunity to participate in the rulemaking 

through submission of written data, views or arguments with or 

without opportunity for oral presentation, and publish the final 

rule incorporating a concise statement of its basis and purpose 

30 days before its effective date. 

Section 551(4), 5 u.s.c. § 551(4), defines a rule as 

follows: 

(4) "rule" means the whole or a part of 

an agency statement of general or particular 

applicability and future effect designed to 

implement, interpret, or prescribe law or 

policy or describing the organization, procedure, or-practice requirements of an agency 

and includes the approval or prescription 

for the future of rates, wages, corporate or 

financial structures or reorganizations 

thereof, prices, facilities, appliances, 

services or allowances therefor or of valuations, costs, or accounting, or practices 

bearing on any of the foregoing; 

An exception to the notice and comment requirement is 

however, given by section 553(b) (A), 5 u.s.c. § 553(b) (A): 

(A) to interpretative rules, general 

statements of policyp or rules of agency 

organization, procedure or practice. 

Essential to a proper determination of the instant case is 

recognition and acknowledgment of the important purposes served 

by notice and comment. One purpose of the rulemaking process is 

to insure a thorough exploration of relevant issues culminating 

in application of agency expertise after interested parties have 

submitted their arguments. Pacific Gas and Electric Company v. 

Federal Power Commission, 506 F.2d 33, 39 (D.C. Cir. 1974). 

Another purpose is to provide that the legislative function of 

administrative agencies is so far as possible exercised only upon 

public participation and notice as a means of assuring that an 

agency 1 s decisions are both informed and responsive. American 

Bus Association v. United States, 627 F.2d 525, 528 (D.C. Cir. 

1980). Also, public participation and fairness must be reintroduced to affected parties after governmental authority has been 

delegated to unrepresentative agencies. Batterton v. Marshall, 

648 F.2d 694, 703 (D.C. Cir. 1980). Finally, notice and comment 

349 
are necessary to the scheme of administrative governance established by the APA because they assure the legitimacy of administrative norms. Air Transport Association of America v. Department of Transportation, 900 F.2d 369, 375 (D.C. Cir. 1990). 

It is likewise critical to recognize the characteristics of 

"legislative" or "substantive" rules which can only be issued 

after notice and comment. Substantive rules establish binding 

norms which determine present rights and obligations. American 

Bus Association v. United States, supra, at 532. They are rules 

which carry the force of law and in so doing grant rights, impose 

obligations or produce other significant effects on private 

interests. Batterton v. Marshall, supra, at 701-702. such rules 

have a present binding effect. Community Nutrition Institute v. 

Young 1 818 F.2d 943, 947 (D.C. Cir. 1987). 

A particularly salient characteristic of agency action 

subject to notice and comment is the reduction or elimination of 

agency discretion. The following are instances where for this 

reason notice and comment were required. Parole Board guidelines 

reduced the decision maker's field of vision and defined a fairly 

tight framework, thereby circumscribing the agency's statutorily 

broad power. Pickus v. United States Board of Parole, 507 F.2d 

1107, 1113 (D.c. Cir. 1974). An agency policy letter immediately 

lifted restrictions against certain carriers and did not even 

hint to decision makers that they could exercise discretion. 

American Bus Association v. United States of America, supra, at 

531-532. A statistical methodology adopted for computation of 

unemployment statistics was a formula which left no discretion to 

weigh or alter contributing elements. Batterton v. Marshall, 

=-=.s;..=.=I at 707. A part of an agency's program letter limited 

state discretion and imposed a new obligation on the states by 

establishing a mathematical formula for determining contributions 

to pension funds. Cabais v. Egger, 690 F.2d 234, 239 (D.C. Cir. 

1982 . Rules establishing allowable levels of food contaminants 

cabinned agency enforcement discretion by precluding prosecution 

of certain producers. Community Nutrition Institute v. Young, 

~----~' at 948. Agency orders shaped and channeled enforcement 

iminating certain specific obligations regarding airline 

ing. State of Alaska v. U.S. Department of Transporta-

, 868 F.2d 441, 447 (D.C. Cir. 1989). 

Section 553(b) (A) of the APA, supra, establishes exceptions 

to notice and comment, one of which is for general statements of 

pol In analyzing whether an agency action falls within one 

of the exceptions under section 553(b) (A), the courts have established certain general princ • Exceptions to notice and 

comment requirements are to be narrowly construed and only 

reluctantly recognized. Air Transport Association of America v. 

Department of Transportation, , at 375; American Hospital 

Association v. Bowen, 834 F.2d 1037, 1044-45 (D.C. Cir. 1987); 

Batterton v. Marshall, supra, at 704; American Bus Association v. 

350 
United States, supra, at 528. In addition, an agency's characterization of its action is given some but not overwhelming 

deference. Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 

533, 537-538 (D.C. Cir. 1986). Thus, an agency's description of 

an act as a policy statement provides some indication, but an 

announcement is not necessarily a policy statement because the 

agency has so labelled it. Environmental Defense Fund v. 

Gorsuch, 713 F.2d 802, 816 (D.C. Cir. 1983); General Motors 

Corporation v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984); 

Chamber of Commerce v. Occupational Safety and Health Administration, 636 F.2d 464, 468-469 (D.C. cir. 1980); Pacific Gas and 

Electric Company v. Federal Power Commission, supra, at 39. 

With these precepts in mind, the courts have paid much 

attention to the attributes of a particular exception. In the 

case of a general statement of policy, courts have examined 

whether the statement establishes a binding norm and is finally 

determinative of the issues or rights to which it is addressed. 

Pacific Gas and Electric Company v. Federal Power Commission, 

supra, at 38. Those agency ac.tions .that are not binding or 

finally determinativ~ are viewed as policy statements. Another 

attribute of a general statement of policy is agency discretion. 

Just as the absence of agency discretion is a hallmark of a 

substantive rule, so the presence of such discretion connotes a 

general statement of policy. A policy statement genuinely leaves 

the agency and its decision makers free to exercise discretion. 

American Bus Association v. United States, supra, at 529. 

Guidelines adopted for use in citing operators and independent 

contractors under the Mine Safety Act did not constitute a 

binding substantive regulation, because the language of the 

guidelines was replete with indications that the secretary 

retained discretion to cite operators or contractors as he saw 

fito Brock v. Cathedral Bluffs Shale Oil Co., supra, at 538. An 

agency statement that there were no grounds to delay awarding 

certain licenses by random selection, i.eo lottery, was not a 

binding rule but only interpretative, since the agency was not 

bound to any specific procedures or even to conduct a lottery. 

National Latino Media Coalition v. Federal Communications 

Commission, 816 F.2d 785, 789 (D.C. Cir. 1987). 

Applying the foregoing p~inciples to the case at hand, I 

conclude that notice and comment under the APA are required and 

that until they take place the program policy letter cannot be 

applied. By every measure, the precepts laid down by the letter 

must be held to be substantive and not merely a general statement 

of policy as asserted by the Solicitor. (Solicitor's Brief, 

p. 11). The letter sets forth the exact numerical levels at 

which an excessive history comes into being and the letter 

further details precisely what occurs when these levels are 

attained. Non S&S violations with excessive history are subject 

to the regular assessment formula and S&S violations with excessive history are subject to a special history assessment formula 

351 
containing prescribed percentage increments in penalty amounts. 

The Secretary's broad authority under the Act to propose penalties in accordance with the six criteria is channelled, shaped, 

and indeed circumscribed in a tight framework. Air Transport 

Association of America v. Department of Transportation, supra; 

Community Nutrition Institute v. Young, supra; Pickus v. United 

states Board of Parole, supra. Absent is agency discretion with 

respect to a large number of cases involving prior history of 

violations and in place is a rigid mathematical formula which 

allows no room for maneuver either with respect to the existence 

or consequences of an excessive history. Batterton v. Marshall, 

supra; Cabais v. Egger, supra. 

Accordingly, if an operator has a certain number and type of 

violations within a given period it is charged with an excessive 

history and when it has such a history, its civil penalty liability is increased along prescribed lines. That is what happened 

in this case. The provisions of the letter were applied and the 

operator owed more money. Such circumstances demand that interested persons be given notice and opportunity to participate in 

rulemaking before the .-letter becomes final. MSHA should welcome 

the input of those who would be so directly and seriously affected by the dictates of the letter. Without such input the letter 

lacks requisite legitimacy. 

I have carefully reviewed the arguments advanced by the 

Solicitor with respect to notice and comment, but cannot accept 

them. The assertion- that notice and comment are not required 

because the letter does not change the penalty proposal and 

assessment scheme is not persuasive. (Solicitor's Brief, 

pp. 12-14). Admittedly, the letter does not alter the steps 

through which each penalty proposal and assessment pass, e.g., 

assessment conference. 30 C.F.R. § 100.6. However, this case 

has nothing to do with the procedural framework for determination 

of individual penalty amounts, or with the division of functions 

between the Secretary and the Commission, or with the independent 

authority of the Commission to assess penalties nova. Rather 

this case involves imposing additional monetary obligations upon 

operators pursuant to a new method of penalty calculation without 

lowing said operators to be heard first with respect to the 

propriety of new method. 

I also find misplaced the Solicitor 1 s proposition that 

notice and comment are not required because the Secretary's 

penalty proposals are not final. (Solicitor 1 s Brief, pp. 13-14; 

Oral Argument Tr. 38-41, 52-54). The appealability to the 

Commission of the Secretary's penalty proposals does not mean 

that notice and comment are unnecessary. The Secretary's proposal function is an indispensable part of the Act's civil penalty 

scheme. In addition, section 105(a) of the Act, supra, provides 

that penalty proposals of the Secretary which are not appealed 

are final and not subject to any kind of review. In fact, almost 

352 
all the secretary's penalty proposals become final under this 

provision. The appeal rate to the Commission from MSHA proposed 

assessments were 3.2% in FY'88, 3.7% in FY'89, 4% in FY'90 and 

6.7% for the first four months of FY'91. 2 The realities of how 

the civil penalty system actually works cannot be ignored. Even 

in cases that come before the Commission, the Solicitor submits 

sufficient information for the Commission to approve settlements 

in the amount of the original assessment in a significant percentage of all settlement cases. Thus, in FY'90 the Commission 

approved settlements in the amount of the Secretary's original 

proposal in 29% of all settlement cases. 3 The Solicitor's purported distinction regarding finality notwithstanding, Batterton 

v. Marshall, supra, is precisely on point and its holding that 

notice and comment are necessary for a methodology of mathematical calculations signifies how this case should be decided. 

(Solicitor's Brief, p. 16; Operator's Reply Brief, pp. 5-6). 

Nor does Air Transport Association of America v. Department 

of Transportation, supra, support the Solicitor. (Solicitor's 

Brief, pp. 14-15). The signi~icance of that case is to be found 

in the extension of ~Gtice and comment requirements to the 

adoption of a procedural framework for adjudication of civil 

penalties before the Federal Aviation Administration. The 

majority of the court refused to countenance an exception to the 

notice and comment requirements for an agency's rules of procedure. What is significant for our purposes is that both the 

majority and dissent in Air Transport agreed that changes in 

substantive criteria· such as those embodied in the program policy 

letter are subject to notice and comment. Air Transport, supra, 

at 375-376, 382. 

In this connection also, the Solicitor's representations 

regarding the allegedly voluntary nature of the proposed rulemaking which the Secretary has undertaken regarding citations issued 

after January 1 1991, are not persuasive. As set forth herein, 

judicial precedent makes clear that notice and comment under the 

APA are required for the changes the Secretary wants to make. 

The proposed rulemaking recognizes this and is inconsistent with 

the attempt of the program policy letter to act without reference 

to the safeguards of the Administrative Procedure Act. 

Finally, notice and comment cannot be excused on the basis 

of the "good cause" exception. 5 U.S.C. § 553(b) (3) (B). As 

noted above, the Secretary's initial response to the court's 

mandate in Coal Employment Project, et. al. v. Dole, supra, was 

2 See, Solicitor's response filed February 12, 1991. 

3 See, Memorandum dated February 25, 1991, from Chief Docket 

Clerk, which was admitted into the record at the oral Argument as 

ALJ Exhibit No. 1. (Tr. 4). 

353 
interim regulations which relied upon the immediacy of the 

court 1 s instructions as constituting good cause for dispensing 

with notice and comment. The court struck down that portion of 

the interim regulations which it perceived as contrary to its 

decision. The program policy letter is, of course, not an 

interim regulation and does not even refer to the good cause 

exception. The Solicitor's argument that the good cause exception applies because the letter accomplishes the result ordered 

by the court, must fail in light of the fact that, as held above, 

the letter goes far beyond the court's interim instructions. 

(Solicitor's Brief, pp. 18-19}. 

In light of the foregoing, I conclude that notice and 

comment under the Administrative Procedure Act are necessary 

before the program policy letter can be effective. 

conclusion 

The foregoing is dispositive of the claims made by the 

parties. It is noted that th~ .. operator also attacks the program 

policy letter on its merits. The substantive validity of pending 

changes in the treatment of prior history is presented in the 

proposed rulemaking. In light of the several holdings rendered 

herein, it is neither necessary nor appropriate to consider the 

merits. 

Order 

In light of the. foregoing, it is ORDERED that the operator's 

motion for remand be GRANTED. 

It is further ORDERED that the Secretary recalculate her 

proposed penalties without reference to Program Policy Letter 

Nao P90-III-4o 

i~ ~ " \ \ 0 ------·,--o.--v..,..r__,1 

Paul Merlin 

Chief Administrative Law Judge 

Distribution~ 

William Lawson, Esqov Office of the Solicitor, U. s. Department 

of Laboru 2015 Second Avenue North, Suite 201, Birmingham, AL 

35203 (Certified Mail) 

Douglas N. White, Esq., Counsel, Trial Litigation, Office of the 

Solicitor 1 u. S. Department of Labor, Room 414, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

354 
Carl c. Charneski, Esq., Acting Counsel, Appellate Litigation, 

Office of the Solicitor, U. s. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

Thomas c. Means, Esq., J. Michael Klise, Esq., Crowell & Moring, 

1001 Pennsylvania Avenue, NW., Washington, DC 20004-2505 

(Certified Mail) 

David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C., 

1901 Sixth Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, 

AL 35203-2602 (Certified Mail) 

J. Fred McDuff, Esq., Drummond Company, Inc., Post Office Box 

10246, Birmingham, AL 35202 (Certified Mail) 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th street, NW., 

Washington, DC 20005 (Certified Mail) 

/gl 

355 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON. D.C. 20006 

March 6, 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DRUMMOND COMPANY, 

INCORPORATED, 

Respondent 

356 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 90-125 

A. C. No. 01-00515-03761 

Mary Lee No. 1 Mine 

Docket No. SE 90-127 

A. C. No. 01-00821-03677 

Mary Lee No. 2 Mine 

Docket No. SE 90-131 

A. C. No. 01-00515-03763 

Mary Lee No. 1 Mine 

Docket No. SE 91-2 

A. C. No. 01-00323-03642 

Chetopa Mine 

Docket No. SE 91-3 

A. C. No. 01-00821-03681 

Mary Lee No. 2 Mine 

Docket No. SE 91-4 

A. C. No. 01-00515-03768 

Docket No. SE 91-15 

A. C. No. 01-00515-03770 

Docket No. SE 91-20 

A. C. No. 01-00515-03772 

Mary Lee No. 1 Mine 

Docket No. SE 91-21 

A. C. No. 01-00821-03682 

Mary Lee No. 2 Mine 

Docket No. SE 91-29 

A. C. No. 01-00515-03775 

Mary Lee No. 1 Mine 
Appearances: 

Before: 

DECISION 

Douglas N. White, Esq., and Carl c. Charneski, 

Esq., Office of the Solicitor, U. s. Department 

of Labor, Arlington, Virginia; and 

George D. Palmer, Esq., and William Lawson, Esq., 

Office of the Solicitor, U. s. Department of 

Labor, Birmingham, Alabama, for the Petitioner. 

Thomas c. Means, Esq., and J. Michael Klise, Esq., 

Crowell and Moring, Washington, D.C.; 

David M. Smith, Esq., Maynard, Cooper, Frierson 

and Gale, Birmingham, Alabama; and 

J. Fred McDuff, Esq., Drummond Company, Inc., 

Birmingham, Alabama, for the Respondent. 

Judge Merlin 

In accordance with the decision rendered this day in Secretarv of Labor v. Drummond Company, Incorporated, Docket No. 

SE 90-126, it is hereby ORDERlS.D that the operator's motions for 

remand in these case be GRANTED.· 

It is further ORDERED that the Secretary recalculate her 

proposed penalties in these cases without reference to Program 

Policy Letter No. P90-III-4. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution~ 

lliam Lawson, ov Office of the Solicitor 1 U. s. Department 

of Labor, 2015 Second Avenue North, suite 201, Birmingham, AL 

35203 (Certified Mail) 

Douglas N. White, Esq., Counsel, Trial Litigation, Office of the 

icitor, U. s. Department of Laborv Room 414, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

Carl C. Charneskiu Esq., Acting Counsel, Appellate Litigation, 

Office of the Solicitor, U. s. Department of Labor, 4015 Wilson 

Boulevard, Arlington 1 VA 22203 (Certified Mail) 

Thomas C. Means, Esq., J. Michael Klise, Esq., Crowell & Moring, 

1001 Pennsylvania Avenue, NW., Washington, DC 20004-2505 

(Certified Ma ) 

357 
David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C., 

1901 Sixth Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, 

AL 35203-2602 (Certified Mail) 

J. Fred McDuff, Esq., Drummond Company, Inc., Post Office Box 

10246, Birmingham, AL 35202 (Certified Mail) 

Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, NW., 

Washington, DC 20005 (Certified Mail) 

/gl 

358 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAP 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

Vo 

IDEAL CEMENT COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-202-M 

DECISION AFTER REMAND 

Before: Judge Morris 

On November 27, 1990, .the Commission reversed in part the 

JudgeYs decision and remanded this case for further 

consideration. 

In its order of remand the Commission ruled that the absence 

of side screens on the operator's uni-loader constituted an 

equipment defect within the meaning of 30 C.F.R. § 56.9002. 

Specifically, the Commission ruled that: 

Although Allied Chemical Corp. [6 FMSHRC 1854u August 

1984] focused on a relatively common type of equipment 

def ect--one affecting the functioning of the equipment~-we have no difficulty in concluding that the term ~equipment defect' can also extend to a defective or 

missing component that does not affect the operation of 

the equipmento (Slip Opinion at 6). 

The Commission further remanded the case for findings of 

fact and conclusions thereon as specified in the order of remand. 

At the hearing the following individuals testified for the 

Secretary~ 

Robert Eo Stinson, metal and non-metal Inspector for the 

State of Montana. 

Vincent J. Schafer, Ideal maintenance man. 

Stephen M. Carey, Ideal heavy equipment operator. 

Steven L. Livingood, Ideal control chemist. 

359 
Archie Huenergardt, control room operator and lab technician 

at the time of the accident, now an Ideal electrician. 

Marvin Doornbos, Ideal maintenance man. 

Stanley Veltkamp, Ideal maintenance man. 

Eric Shanholtz, mine safety and health inspector for MSHA. 

Darrell Woodbeck, metal and non-metal inspector for MSHA. 

The following individuals testified for respondent: 

Bert Todd, Ideal yard foreman. 

Gary Huls, Ideal production supervisor. 

William Fairhurst, Ideal mill supervisor. 

Arlene Sherman, Ideal Personnel and Industrial Relations 

Administrator respom~ible fo'r plant safety. 

Based on a preponderance of the substantial, reliable and 

probative evidence I enter the following: 

FINDINGS OF FACT 

1. The side guards on the uni-loader are especially 

designed in the ROPS to prevent contact with the lifting arms. 

Mr. Bertagnolli would not have been killed if the side screens 

had been in place. {Stinson, 254, 257). 

2o There were no eyewitnesses to the accident but Inspector 

Woodbeck concluded Mro Bertagnolli 1 s head and part of his torso 

were outside of the uni-loader when the arms raised and pinned 

him against the top of the ROPS. Side screens would have 

prevented him from being in this position. (Woodbeck, 357u 

375). 

Jo The purpose of the side screens is to keep your arms out 

from underneath the loader while you are operating it. (Todd 0 

404) 0 

4o When the operator sits in the uni-loader everything is 01 pretty closen 0 (Doornbus8 171) a 

5o The overall width of the uni-loader was 54 inches. The 

width between the lifting arms was 45.4 inches. (Specifications 

pamphlet, Exhibit P-24, third page). 

6. Prior to the accident Ideal modified its 1835 Case Uniloader in the following manner: 

360 
a) the ROPS were lowered four inches (Stinson, 320; 

Sherman, 4 55) • 

b) the tires, originally lO to 11 inches wide, were 

replaced with 6 to 7 inch wide tires (Schafer, 38; Sherman 

445) • 

c) the company also manufactured a jack hammer 

attachment. This was not standard equipment from the Case 

company (Todd, 406). 

d) a piece of plywood was attached to the front of the 

uni-loader (Schafer, 42, 43). 

7. Screens on the uni-loader have a tendency to interfere 

with the operator's side vision, especially to the left. An 

equipment operator testified he had to see the rear tires to back 

the equipment out of the kiln. The ramp is only so wide. Side 

screens prevented him from seeing the rear tire (Livingood, 138, 

139). 

8. The air hammer itself was attached to a backing plate. 

The inspector found that with the jack hammer raised he could not 

see the drill point (Stinson, 254). 

9. During the kiln job some workers wanted the side screens 

on the uni-loader; others did not (Carey, lll; Fairhurst, 426-

429). 

10. The decision to use or not use side screens was left to 

the equipment operators (Carey, lll; Fairhurst, 429). 

11. The side screens were either on and off from time to time~ both for yard and kiln work (Huenergardtu 147 0 148; 

Schaferu 41~ Woodbeck 0 356u 373). 

12. Supervisors did riot require or prevent the use of side 

screens (Carey, 103-104). 

13. Ideal 0 s plant manager told Inspector Stinson that the 

side screens had been removed for some time (Stinson0 247). 

14. The cornpany 1 s safety manual contains the following provision~ 

Machine guards and other safety devices are 

provided for your protection. Guards shall 

not be removed except for making repairs, 

cleaning, dressing, oiling or adjusting and 

then only by authorized persons when machines 

are stopped. Replace guards when work is 

complete~ and before lock outs are removed. 

361 
(Fairhurst, 432; Exhibit P-29, page 9, 

paragraph 5) • 

PISCUSSION AND FURTHER FINDINGS 

The evidence is essentially uncontroverted: prior to 

acquiring the Case uni-loader in 1981 or 1982 it was necessary to 

remove the cage on Ideal's loader to get it inside the kiln (Tr. 

455). Due to width and height restrictions the 1835 Case Uniloader was modified by lowering the ROPS and installing smaller 

tires (Tr. 455). 

In the cylindrical kiln the lights were not too good. The 

kiln itself is 300 feet long and 10 to 12 feet wide. The uniloader was estimated at 12 feet long and 3-1/2 to 4 feet wide 

(Tr. 39, 125, 141). 

In the kiln area the operator of the uni-loader uses the 

jack hammer attachment to knock out the overhead bricks (Tr. 91). 

After a sufficient number of worn out bricks are removed the kiln 

is then rotated and the top becomes the bottom (Tr. 63). 

In knocking down the 4 inch by 8 inch bricks the operator 

maneuvers the loader over the fallen brick to reach more bricks 

(Tr. 34, 75). 

Immediately before the accident it appeared to witness 

Veltkamp that Mr. Bertagnolli could not get the machine in 

position (Tr. 175}. It seemed to witness Doornbos that Mr. 

Bertagnolli was having trouble knocking the brick down. He 

testified bricks are hard to get out, especially the first brick 

(Tr. 161). 

Given the above scenario it appears that the lack of side 

screens affected safety since Mro Bertagnolli was crushed by the 

lifting arms while he was operating the uni-loadero Given the 

lighting conditions, his work, the difficulty of seeing what he 

was trying to accomplish and the lack of side screens I conclude 

that Mro Bertagnolli leaned outside the confines of the uniloader at the same time the lifting arms were being raised (or 

lowered)o The presence of side screens would have prevented this 

accidento 

The presence of side screens also prevent any bricks from 

striking the operatoro As heavy equipment operator Carey aptly 

stated nwhen you're knocking brick out, you always had a chance 

of catching a brick coming into your lap or whatnot" (Tr. 88). 

Carey was one of the workers who would go to the garage for the 

screens and put them on; however, there were times, other than 

the kiln job, when he operated the uni-loader without side 

screens (Tr. 88)0 

362 
There is no evidence of the precise measurements of the 

distance between the side arms and the operator's cab. However, 

the photographs indicate and confirm witness Doornbus• testimony 

that when the operator sits in the cab everything is "pretty 

close" (See and compare Exhibits P-9, P-16, P-17, R-2 and the 

drawings in Exhibit P-24). 

The specifications do not indicate the distance from the 

arms to the operator's cab. But the total distance between the 

lifting arms, at mid-point, is shown as 45.4 inches. 

One of the three principal uni-loader operators who 

testified complained that the side screens interfered with his 

view of the rear tires when backing the equipment out of the 

kiln. In view of the obvious width restrictions in the kiln I 

find Mr. Livingood's testimony to be credible. However, at the 

time of the accident Mr. Bertagnolli was attempting to remove 

bricko He was not backing out the uni-loader. 

Any problem that exists, ... in connection with backing up the 

equipment may be solved by constructing a wider entrance ramp to 

the kiln. (Exhibit P-2 shows present ramp.) 

Ideal's safety policies did not prevent the removal of the 

side screens (Facts 9-14)~ 

The witnesses essentially all testified the placement or 

removal of side screens was left to the individual equipment 

operators. 

If Ideal had a policy requiring the use of side screens it 

was not enforced. 

The record contains no evidence of any industry or 

manufactureras policy regarding the removal of the side screens 

and the circumstances under which the side screens could be 

removed without impairing safety. 

In its order of remand the Commission noted that in 

interpreting and applying broadly worded standardsu the 

appropriate test is whether a reasonably prudent person familiar 

with the mining industry and the prote9tive purposes of the 

standard would have recognized the specific prohibition or 

requirement of the standard 0 citing Canon Coal Co., 9 FMSHRC 667u 

668 (April 1987) 9 Quinland Coal, Inc., 9 FMSHRC 1614 0 1617-18 

(September 1987)0 

The Commission further emphasized that the reasonably 

prudent person test contemplates an objective--not subjective--

analysis of all the surrounding circumstances and factors bearing 

on the inquiry in issue, Great Western Electric Company, 5 FMSHRC 

840, 841-42 (May 1983); U.S. Steel Corp., 5 FMSHRC 3, 5 (January 

363 
1983); Alabama By-Products, 4 FMSHRC 2128, 2129 (December 1982). 

From the total record ·r conclude that a reasonably prudent 

person familiar with the mining industry and the protective 

purposes of the standard would have recognized its requirements. 

In particular, the removal of worn-out brick from a kiln takes 

place three to four times per year (Tr. 35). Each clean-out 

takes two to three days (Tr. 35). 

A reasonably prudent operator would recognize the 

requirements since, in the work process, the company would 

observe two areas that would affect the safety of the operator. 

The initial area involves the bricks themselves as they are 

chipped from overhead. Some bricks can end up in the lap of the 

operator. Side screens, which came as standard equipment on the 

Case Uni-loader, would have prevented the operator from being 

struck by any falling bricks. 

The second area involved th~ lifting arms and the hydraulic 

ram. An operator .might not necessarily be leaning outside of the 

uni-loader but with the lifting arms and ram in close proximity, 

an operator's arms could be caught or pinched by the lifting arms 

and ram. See Exhibits P6, P9, PlO, Pll, Pl2, Pl3, Pl6, Pl7, R2 

and compare with P18 (with ·screens attached)o 

The presence of side screens would have prevented 

Mr. Bertagnolli from leaning out of the uni-loader. Side screens 

would also have prevented any lesser injuries to an operator. 

Some evidence establishes that the presence of the side 

screens adversely affected safety. This occurred when the uniloader operator was backing the equipment out of the kiln and 

down the rampo As previously stated this problem might well be 

handled by construction of a wider rampu (See Exhibit P-3 0 

Entrance to ramp) o In any event, backing the equipment down the 

ramp was not the work being done when Mr. Bertagnolli was 

crushed. 

The Commission has ruled the missing screens constituted an 

equipment defect within the. meaning of the regulation. Since I 

conclude the defect affected safety and since I further find the 

regulation was applicable to Ideal it follows that the citation 

should be aff irmedo 

CIVIL PENALTY 

Inasmuch as the citation is to be affirmed it is appropriate 

to assess a civil penalty. 

The statutory criteria to assess such penalties are 

contained in§ llO(i) of the Act, 30 u.s.c. § 820(i). 

364 
The operator's history, as evidenced by Exhibit P-27, 

indicates Ideal received 35 citations between January 1986 and 

April 1987. I consider this an average adverse history. Under 

the broad scope of prior favorable history I note the plant 

received safety awards. One was in 1982 for 3000 consecutive 

days without an accident (Tr. 443, Exhibit R7). Further, since 

the 1950s the Trident plant has, on two occasions, worked over 

4000 days without an accident (Tr. 442). 

Ideal appears to be a medium sized operator. Its 80 

employees at the Trident plant annually produce 300,000 tons of 

cement. 

The Trident plant is one of nine plants nationwide (Tr. 23, 

440). In view of its size it appears the penalty hereafter 

assessed is appropriate. 

Ideal was negligent. The uni-loader received an exceptional 

amount of attention due to its many modifications. The company 

should have known of the probability that the equipment operator 

could be struck by falling brick or pinched by the arms or ram of 

the equipment. These~factors cause me to conclude that the 

operator's negligence was high since it took no remedial action. 

The record indicates Ideal was in debt and close to 

bankruptcy three years ago (Tr. 439). However, Ideal did not 

present any information concerning its financial condition at the 

time of the hearing. Therefore, in the absence of any facts to 

the contrary, I find that the payment of penalties will not cause 

Ideal to discontinue its business. Buffalo Mining Co., 2 IBMA 

226 (1973); Associated Drilling. Inc., 3 IBP.i..A 164 (1974). 

Mro Bertagnolli died when he was crushed by the lifting armo 

In view of this the gravity of the violation is apparento 

Ideal demonstrated its statutory good faith by abating the 

violative condition. 

Considering all of the statutory criteria I deem that a 

civil penalty of $8000 is appropriateo 

365 
For the foregoing reasons, I enter the following: 

ORDER 

Citation No. 2649413 is AFFIRMED and a civil penalty of 

$8000 is ASSESSED. 

Law Judge 

Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80290 (Certified Mail) 

James J" Gonzalesr Esq"" HOLLAND & HART, 555 - 17th Streetv Suite 

2900 PoOo Box 8749 Denveru CO 80201 (Certified Mail) 

slk 

366 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 8, 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ZEIGLER COAL COMPANY, 

Respondent 

Before: Judge Merlin 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 91-2 

A. C. No. 11-00586-03642 

Murdock Mine 

DECISION 

Pursuant to an order previously entered in this matter, 

the above-captioned docket number now contains only Citation 

No. 03406060 which presents the issue of the validity of the 

Secretary's instructions regarding "excessive history" which 

are to be followed in proposing penalties under the Mine Act. 

The briefs and motions filed in the instant case on this 

issue are virtually identical to those filed in Drummond Company 

Inc., Docket No. SE 90-126. On March 6, 1991, a decision was 

rendered in Drummond. 

In accordance with the decision in Drummond, it is hereby 

ORDERED that the operator's motion to remand be GRANTED and that 

the Secretary RECALCULATE the proposed penalty without reference 

to Program Policy Letter No. P90-III-4. 

-= p~' Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U. s. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 

60604 (Certified Mail) 

Douglas White, Esq., counsel, Litigation, Office of the Solicitor, U. s. Department of Labor, Room 414, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

3regory s. Keltner, Esq., Zeigler Coal company, 50 Jerome Lane, 

?airview Heights, IL 62208 (Certified Mail) 

/gl 

367 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Mill' 

h ~X't\ 

GATLIFF COAL COMPANY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Respondent 

368 

CONTEST PROCEEDINGS 

Docket No. KENT 89-242-R 

Citation No. 3178703; 8/3/89 

Docket No. KENT 89-243-R 

Citation No. 3178704; 8/3/89 

Docket No. KENT 89-244-R 

Order No. 3178706; 8/3/89 

Docket No. KENT 89-245-R 

Citation No. 3178707; 8/3/89 

Docket No. KENT 89-246-R 

Citation No. 3178708; 8/3/89 

Docket No. KENT 89-247-R 

Citation No. 3178709; 8/3/89 

Docket No. KENT 89-248-R 

Citation No. 3178710; 8/3/89 

Docket No. KENT 89-249-R 

Order No. 3178711; 8/3/89 

Docket No. KENT 89-250-R 

Citation No. 3178712; 8/3/89 

Docket No. KENT 89-251-R 

Citation NO. 3178713; 8/3/89 

Docket No. KENT 89-252-R 

Order No. 3178714; 8/3/89 

Gatl No. 1 Mine 

Mine ID # 15-04322 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

GATLIFF COAL COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 90-100 

A.C. No. 15-04322-30530 

Docket No. KENT 90-215 

A.C. No. 15-04322-30531 

Gatliff No. 1 Mine 

DECISION 

Appearances: Robert I. Cusick, Esq., Wyatt, Tarrant and Combs, 

Louisville, Kentucky, for Gatliff Coal Company, 

Inc.; 

Anne Knauff, Esq., U.S. Department of Labor, 

Office of the Solicitor, Nashville, Tennessee, 

for the Secretary of Labor. 

Before: Judge Melick 

These consolidated cases are before me under sections 105(d) 

and 107(e) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. 801 et seq., the "Act, 11 to contest citations and 

withdrawal orders issued by the Secretary of Labor to Gatliff 

Coal Company, Inc., (Gatliff) and for review of civil penalties 

proposed by the Secretary for those violations of mandatory 

standards alleged therein. 

Citation No. 3178703 alleges a violation of the standard at 

30 C.F.R. § 50.10 and charges as follows: 

A fatal accident occurred at 3:20 a.m. and the 

victim was pronounced dead at local hospital at 

5~00 a.m. The company never reported this accident to 

MSHA" An employee heard the announcement on the radio 

around 8~00 a.m. and contacted the subdistrict manager. 

The first company contact with MSHA was by Freddie 

Maggard at 8:30 a.m., on 8/1/89, returning a call from, 

the MSHA subdistrict manager. 

The standard at 30 C.F.R. § 50.10 provides as follows: 

If an accident occurs an operator shall 

immediately contact the MSHA District or Subdistrict 

Office having jurisdiction over its mine. If an 

operator cannot contact the appropriate MSHA District 

or Subdistrict Office it shall immediately contact the 

MSHA Headquarters Office in Washington, D.C. by 

telephone, toll free at 202-783-5582. 

The testimony of MSHA Inspector James P. Payne, Sr., in 

369 
regard to the instant citation, is undisputed. The accident 

giving rise to this citation occurred at 3:20 a.m., on 

August 1, 1989. According to Payne the first contact from 

Gatliff came from Freddie Maggard, an official of Gatliff, when 

he returned a call to the MSHA office in Barbourville, Kentucky 

around 8:30 that morning. Payne also acknowledged that the MSHA 

subdistrict manager had received information relating to the 

accident earlier that morning and indeed that information had 

been relayed to Inspector Payne around 8:00 that morning. Payne 

testified that after receiving this information he did not report 

to the mine site until about noon that day. It did not appear 

that the accident site had been altered. Indeed Payne 

acknowledged that he would not have ,done anything differently had 

he been informed of the accident earlier. Payne also 

acknowledged that had an MSHA office had been contacted by 7:00 

that morning he would not have cited Gatliff for the instant 

violation. 

The testimony of Gatliff Safety Director John Blankenship is 

not inconsistent. Blankenship first learned of the accident 

while home in bed when he received a call around 4:00 a.m. He 

arrived at the mine-site around 4:30 a.m. after the ambulance had 

already departed with victim, Boyd Fuson. Concerned about the 

Fuson's condition, Blankenship went immediately to the hospital 

where he learned that Fuson had died. 

Around 5:40 that morning Blankenship first made efforts to 

telephone the MSHA offices but without success. He later 

telephoned the MSHA office around 5:45 a.m. and again around 

6:00 a.m., but again without success. Blankenship testified that 

he was aware that a toll free telephone number appeared in the 

Code of Federal Regulations but that his copy of the code was in 

his office some 40 miles away. He then succeeded in reaching a 

state mine safety officialf Leroy Gross, and he thought Gross 

would call the MSHA District Office" 

The evidence shows that the accident at issue occurred 

about 3:20 a.m. on August 3, 1989, and that Gatliff officials did 

not execute direct contact with MSHA officials until about 8:30 

on that morning. I therefore conclude that Gatliff failed to 

cvimmediately contact 11 an MSHA office as required by the cited 

standard. I find however, under the particular circumstances of 

this case, that Gatliff officials made good faith efforts to make 

timely contact with MSHA offices which were not open during the 

early hours of August 1. I also take into consideration that the 

accident scene was admittedly not tampered with and Gatliff 

officials cooperated in the MSHA investigation. Under these 

particular circumstances the violation was not of significant 

gravity nor did it involve significant negligence. Considering 

the criteria under section llO(i) of the Act it is apparent that 

a penalty o"f $20 would be appropriate for the instant violation. 

370 
Citation No. 3178704, issued pursuant to section 104(d) (1) 

of the Act, alleges a "significant and substantial" violation of 

the standard at 30 C.F.R. § 77.1605(k) and charges as follows: 1 

The haulage road leading to the backfill ramp was 

not provided with sufficient berm, as required. The 

berm ranged from 0-2 feet in height and the truck axle 

was three feet in height. A fatal haulage accident 

occurred when a Euclid R-50 rock truck travelled 

through the berm and down a 120 foot embankment. The 

driver was thrown from the vehicle. 

The cited standard provides that: 11 [b]erms or guards shall 

be provided on the outer bank of elevated roadways." 

It is not disputed that the area cited was the outer bank of 

an elevated roadway. According to Inspector Payne the berm in 

the area cited was from o to 2 feet high. Payne opined that an 

axle-high berm, at least i.e. 3 feet high, may have been adequate 

although he conceded that even a 3 foot berm would not have 

stopped a truck such as that i~volved herein when fully loaded. 

Payne observed however;that such a berm would have turned the 

wheels of the truck away from the embankment. Payne believed 

that the operator was highly negligent because any prudent person 

should have observed this inadequate berm. He also opined that 

the violation was "significant and substantial" because an 

1

section 104(d) (1) provides as follows: 

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

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and 

if he also finds that, while the conditions created by such 

violation do not cause imminent danger, such violation is of such 

nature as could significant and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard, 

and if he finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory health or 

safety standards, he shall include such finding in any citation 

given to the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 

90 days after the issuance of such citation, an authorized 

representative of the Secretary finds another violation of any 

mandatory health or safety standard and finds such violation to 

be also caused by an unwarrantable failure of such operator to so 

complyr he shall forthwith issue an order requiring the operator 

to cause all persons in the area affected by such violation, 

except those persons referred to in subsection (c) to be 

withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines 

that such violation memory accordingly has been abated. 

371 
accident had in fact occurred resulting in fatal injuries. The 

violation was abated by the dumping of refuse along the outer 

bank to form a berm 3 to 3 1/2 feet high. 

According to Gatliff Safety Director John Blankenship, the 

area of the accident had been for the most part bermed except for 

one turn-around area. Blankenship testified that Operator's 

Exhibit No. 5, a photograph, depicts the area where the truck 

passed over the berm. He observed, based on tests performed at 

the mine site, that even a 5 foot berm with the same type truck 

under similar circumstances would not prevent overtravel. 

Based on the undisputed evidence alone however it is clear 

that there was no berm in place in at least some portion of the 

outer bank of the cited roadway. Under the circumstances the 

violation is proven as charged. In reaching this conclusion I 

have not disregarded Respondent's argument that under the cited 

standard a reasonably prudent mine operator could not have known 

what size berm was required. However in this case the evidence 

shows that at least some areas of the cited elevated roadway had 

no berm at all. Accordingly.the.Respondent's argument that it 

did not know what size berms were required is inapposite to the 

specific facts herein. The violation was also "significant and 

substantial". While the truck herein apparently passed through 

an area of roadway that may have had a two-foot berm, clearly in 

the areas of elevated roadway where no berm existed the violative 

condition was even more serious. Clearly fatal injuries were 

reasonably likely. See Mathies Coal Company 6 FMSHRC 1 (1984). 

I also find that the violation herein was the result of 

"unwarrantable failure". The complete absence of berms over 

sections of the cited elevated roadway in this case may 

reasonably be inferred to have resulted from a lack of 

supervisiono It not disputed that there was no supervisor on 

site this area during the shift at issue. This omission of 

such an aggravated nature as to constitute gross negligence and 

i

1 unwarrantable failure". See Emery Mining Company, 9 FMSHRC 1997 

(1987). Considering the factors under section llO(i) of the Act 

I find that the proposed civil penalty of $4,000 is indeed 

appropriate. 

Order No. 3178705r also issued pursuant to section l04(d) (1) 

of the Act, alleges a violation of the standard at 30 C.F.R. § 

77.1701 and charges as follows: 

Emergency communications were not available at the 

Colonel Hollow Job Number 75. Communications with the 

services that provide emergency medical assistance and 

transportation were discontinued when the company 

vehicle with the company radio left the mine property. 

On 8/i/89, following a serious accident which occurred 

at approximately 3:20 a.m., employees were required to 

372 
travel approximately 2 1/2 miles to a public telephone 

to summons an ambulance. 

The cited standard, 30 C.F.R. § 77.1701 provides as follows: 

(a} Each operator of a surface coal mine shall 

establish and maintain a communication system from the 

mine to the nearest point of medical assistance for use 

in an emergency. (b) The emergency communication 

system required to be maintained under paragraph (a) of 

this section may be established by telephone or radio 

transmission or by any other means of prompt 

communication to any facility (for example, the local 

sheriff, the State highway patrol, or local hospital) 

which has available the means of communication with the 

person or persons providing emergency medical 

assistance or transportation in accordance with the 

provisions of paragraph (a) of this section. 

According to the undisputed testimony of Inspector Payne, 

the foreman's truck, which carried a radio sufficient to provide 

emergency communication, had departed the mine site around 5:30 

or 6:00 p.m., the evening before the accident leaving only a 

bulldozer with a citizen band radio. Payne observed that the 

citizen band radio was incapable of reaching the mine office the 

hospital or the police station because of its limited range. He 

also noted there were no telephones at the job site and the 

nearest telephone was 2 1/2 miles away. Payne also maintained 

that the subject accident had occurred around 3:20 a.m., so that 

there purportedly had been no radio communications since 6:00 

p.m. the night before. Payne acknowledged however that a citizen 

band radio could provide adequate means of communication under 

the cited regulation if it was properly monitored. 

According to James Meadors, a Gatliff foreman, the men at 

the Colonel Hollow Job No. 75 were able to communicate by citizen 

band radio to the mechanics' trucks the lube truck and/or to the 

foreman's truck within a 3 mile range. Each of those trucks 

carried a radio sufficient to communicate with the mine office 

and thereupon police and ambulance emergency services could have 

been called by telephone. According to Meadors the lube truck 

with such radio was at the job site three miles from the Colonel 

Hollow Job site. 

Donald Hopkins was one of two miners travelling to the 

nearest telephone that morning to call for an ambulance. Hopkins 

testified that he did not think to use the citizen band radio. 

Safety Director Blankenship testified that indeed emergency 

notification was then available by radio from the lube truck to 

Gatliff off ices where telephones were located to further 

communicate as necessary for emergency services. According to 

Blankenship the lube truck was at the adjacent job site on the 

373 
morning of the accident only three miles from the accident. 

Within this framework of evidence I cannot find that the 

Secretary has sustained her burden of proving the violation 

charged herein. While Inspector Payne testified that there was 

no radio at the Colonel Hollow Job site at the time of the 

accident sufficient to communicate with the mine office some 15 

miles away, he failed to consider the citizen band radio then at 

that job site which was capable of communicating with the lube 

truck radio which could then communicate with the mine off ice 

where it is undisputed there was a telephone. Under the 

circumstances Order No. 3178705 must be vacated. 

Citations 3178707, 3178708, 3178709 and 3178710 all charge 

violations of the regulatory standard at 30 C.F.R. § 77.1710(i). 

That standard provides in relevant part as follows: 

Each employee working in a surface coal mine ••. shall 

be required to wear protective clothing and devices as 

indicated below: 

***" (i) Seat belts in a vehicle where there is a danger of 

overturning and where roll protection is provided. 

In particular, Citation No. 3178707 charges as follows: 

It was evident that seat belts were not being worn 

on the R-50 rock truck and that the driver was thrown 

from the vehicle when it overturned. The belts were 

dirty and it did not appear that they had been worn for 

some time. This vehicle was travelling over hazardous 

terrain where there was danger of overturning. These 

conditions were observed on 8/l/89i during a fatal 

accident investigation" 

Gatliff does not dispute that the cited trucks were 

operating in areas subject to the danger of overturning but 

maintains that the R-50 rock trucks do not need seat belts under 

that standard in any event because 11 roll protection" is not 

provided those vehicles. Even assuming, arguendo, that 

haulage trucks such as the one at issue are not required by the 

standard at 30 C.F.R. § 11:403(a) to have "roll protection11 it is 

nevertheless apparent that the truck at issue in fact did have 

g'roll protection;u. 

In this case the credible evidence shows that the apron of 

the truck dump bed overhung the cab of the truck in a manner 

which provided some roll protection when in the lowered position. 

While the apron may not have provided the best possible 

protection it provided sufficient protection to even meet the 

definition set forth in 30 C.F.R. § 77.2(w). Since the apron did 

provide "roll protection" seat belts were required to be worn in 

374 
accordance with the cited standard. 

It may also reasonably be inferred from the evidence in 

this case that the victim was not wearing a seat belt at the time 

the cited truck overturned. He was thrown from the truck and the 

undisputed testimony was that the steering wheel was bent upwards 

as his body exited. The seat belt was also found unclasped 

behind the driver's seat. Under the circumstances it may 

reasonably be inferred that the victim was not wearing his seat 

belt at the time his truck overturned. Accordingly I find that 

the violation is proven as charged. I also find that the 

violation was "significant and substantial". See Mathies Coal 

Company, supra. The fatal accident in this case provides ample 

support for this conclusion. 

I do not however find that the Secretary has proven her 

claims of high negligence. There is insufficient evidence that 

this driver's failure to wear a seat belt was the result of 

inadequate training, discipline or supervision. According to Mr. 

Blankenship he had restated to his employees in the annual 

refresher training the previous June the necessity to wear seat 

belts. The victim was present at this training. Blankenship 

also testified that he had never seen the victim not wear his 

seat belt. 

Under the circumstances and considering the criteria under 

section llO(i) of the Act I find that a civil penalty of $400 is 

appropriate for this violation. 

Citation No. 3178708 charges as follows: 

It is evident that the seat belt is not being used 

in the Euclid R-50 rock truck, company No. 3027. The 

belt is dirty and was coupled behind the driver's seat 

and a hoses were stacked on top of the belt. This 

vehicle was travelling over hazardous terrain where 

there is danger of overturning. These conditions were 

observed 8/1/89, during a fatal accident investigation. 

According to Inspector Payne the cited truck had been 

operating earlier on the shift during which the fatal accident 

occurred, had been parked some two to three hours before the 

accident and was not then being used. Payne surmised however 

from the evidence that the belt was dirty 1 that it was coupled 

behind the driver's seat, and that air hoses were stacked on top 

of the belt, that the seat belts had not been used when the 

truck was in operation earlier on that shift. 

According to John Blankenship however, it was common 

practice to buckle the belts behind the seats to keep the belts 

from the mud on the truck floors. He noted that the cited truck 

had been out of service for some time when the inspector examined 

375 
it and that it was therefore implicitly not surprising that the 

belts were in a dirty condition. Blankenship also noted that the 

fact that air hoses may have been stacked on top of the belts in 

a truck that had been taken out of service hours before the 

inspection does not necessarily lead tQ the inference that the 

seat belts had not been used when the truck was last operated. 

The fact that the seat belts were dirty, that the belts were 

buckled behind the driver's seat, and that air hoses were stacked 

on top of the seat belts is not sufficient from which to infer 

that seat belts were not used 12 hours earlier while the truck 

was operating. The truck had been taken out of service 2 or 3 

hours before the accident at issue and Inspector Payne admittedly 

did not arrive at the accident site for nearly 12 hours after the 

truck had been withdrawn from service. The Secretary's suggested 

inference is therefore not reasonable under the circumstances and 

the required nexus between the evidentiary facts and the ultimate 

fact to be inferred does not exist. See Mid-Continent Resources, 

6 FMSHRC 1132 (1984), Garden Creek Pocahontas, 11 FMSHRC 2148 

(1989). Under the circumstances I find that the Secretary has 

failed to sustain her_burden 'of proving the alleged violation and 

the citation must be vacated. 

Citation No. 3178709 charges as follows: 

It is evident that the seat belt is not being used 

in the Michigan 475 end loader company No. 2035. The 

seat belt is dirty and was placed behind the operator's 

seat. This vehicle was travelling over hazardous 

terrain where there was a danger of overturning. 

These conditions were observed on 8/1/89, during a 

fatal accident investigation. 

Againf according to Inspector Payne the citation at issue 

was based upon his conclusion that the seat belts on the cited 

equipment were dirty and that they were "placed behind the 

operator's seat". Payne did not observe any of the equipment in 

operation without seat belts and never asked the equipment 

operator 1 s whether they indeed used seat belts. Again, under the 

circumstances I do not find a sufficient nexus between the 

evidentiary facts and the ultimate facts the Secretary seeks to 

have inferred. Under the circumstances there is insufficient 

evidence to support the alleged violation and this citation must 

also be vacated. 

Citation No. 3178710 charges as follows: 

It is evident that the seat belt is not being used 

in the bull dozer. The seat belt is dirty and was 

placed behind the operator's seat. This vehicle was 

travel~ing over hazardous terrain where there was 

danger of overturning. These conditions were observed 

376 
on 8/1/89, during a fatal accident investigation. 

This citation is also purportedly based upon Inspector 

Payne's inference (from dirty seat belts and that the seat belts 

were found behind the operator's seat) that the seat belts were 

not being used. For the reasons already stated I find this 

evidence insufficient. Citation No. 3178710 must therefore also 

be dismissed. In reaching this conclusion I have not disregarded 

the admission of bulldozer operator Donald Hopkins that he did 

not wear his seat belt all the time. The citation alleges a 

violation on August 1, 1989, however and there is no evidence to 

connect this admission of Hopkins to the alleged failure to wear 

his seat belt on August 1, 1989. The Secretary has therefore 

failed to meet her burden and Citation No. 3178710 must therefore 

also be vacated. 

Withdrawal Order No. 3178706 was issued pursuant to section 

107(a) of the Act. That section provides in part as follows: 

If, upon any inspection or investigation of a coal 

or other mine wh~ch is subject to this Act, an 

authorized representative of the Secretary finds that 

an imminent danger exists, such representative shall 

determine the extent of the area of such mine 

throughout where the danger exists, and issue an order 

requiring the operator of such mine to cause all 

persons except those referred to in section 104(c), to 

be withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the 

Secretary determines that such imminent danger and the 

conditions or practices which caused such imminent 

danger no longer exist. 

Section 3(j) of the Act defines "imminent danger" as the 

existence of any condition or practice in a coal or other mine 

which could reasonably be expected to cause death or serious 

physical harm before such condition or practice can be abated. 

In this case it is charged that a "practice" rather than a 

"condition" existed i.e. "a common practice at this operation to 

not wear the seat belt provided in the mobile equipment.iu 

In Rochester and Pittsburgh Coal Company v. Secretary of 

Labor, 11 FMSHRC 2159 (1989), the Commission set forth the 

analytical framework for determining the validity of imminent 

danger withdrawal orders issued under section 107(a) of the Act. 

The Commission indicated that it is first appropriate for the 

judge to determine whether the Secretary has met her burden of 

proving that an "imminent danger" existed at the time the order 

was issued. The Commission also observed however that even if an 

imminent danger had not then existed, the findings and decision 

of the inspector in issuing a section 107(a) order should 

nevertheless be upheld "unless there is evidence that he has 

377 
abused his discretion or authority". Rochester and Pittsburgh, 

supra. at p.2164 quoting Old Ben Coal Corp. v. Interior Board of 

Mine Operations Appeals, 523 F.2d 25 at p.31 (7th Cir. 1975}. 

There is no evidence that the issuing MSHA inspector ever 

observed any of the cited mobile equipment operators without seat 

belts. However the credible evidence is that the victim of the 

accident involving the Euclid haulage truck was not wearing a 

seat belt. In addition it is undisputed that bulldozer operator 

Donald Hopkins admitted that he did not wear his seat belt while 

operating equipment "all the time". This evidence I find 

sufficient to conclude that the failure to wear seat belts was a 

sufficiently established "practiceb within the meaning of section 

3(j) of the Act which could "reasonably" be expected to cause 

death or serious physical harm before such practice could be 

abated. That "practice" therefore constituted an imminent danger 

and the order at bar must be affirmed. 

Order No. 3178711 issued pursuant to section 104(d) (1) of 

the Act, fn.l supra, alleges,?1 "signficant and substantial" 

violation of the standard at 30 C.F.R. § 77.1001 and charges as 

follows: 

Loose overhanging material, (i.e. dirt, trees, 

loose rock) was observed on and above the highwall on 

the drill bench (Jellico Seam) and above the spoil pit 

(Blue Gem Seam). A highwall drill, endloader, 

bulldozer, and 2 rock trucks were working in these 

areas. These conditions were observed on 8/1/89, 

during a fatal accident investigation. 

The cited standard, provides that "[l]oose hazardous 

material shall be stripped for a safe distance from the top of 

p or highwallsv and the loose unconsolidated material shall be 

sloped to the angle of reposer or barriers, baffle boards, 

screens 7 or other devices be provided that afford equivalent 

protection" ~ 

According to Inspector Payne, at the time of his inspection 

at the Colonel Hollow Job No. 75, on August 1, 1989, there was a 

tree overhanging the high wall from the Jellico Seam level and 

loose material had not been cleaned off. He also observed 

fractured and loose rock on the Blue Gem Seam level. He noted 

that equipment was working next to the highwall at the Blue Gem 

level and that the highwall was from 60 to 70 feet high. The 

tree was lying flat ready to slide down. He concluded that the 

material was loose because he observed cracks in it. There was 

also activity around the highwall evidenced by drill holes and, 

on the lower level, coal had been loaded at the Blue Gem Seam 

level. 

378 
The inspector concluded that the violations were the result 

of aggravated conduct, high negligence and "unwarrantable 

failure" on the grounds that he believed the foreman should have 

observed these conditions during his preshift examination. He 

also concluded that the violation was "significant and 

substantial" because the material could likely fall off the 

highwall injuring drillers and other workers below. He noted 

that the large rocks and the tree (approximately 18 to 20 inches 

in diameter) could cause such injuries. It was "highly likely" 

for an accident to occur because of its position on the highwall. 

Moreover persons loading holes and drill operators were 

unprotected without cabs or other devices. It is noted however 

that Inspector Payne apparently did not inquire and did not 

determine whether work was actually being performed in the pit 

area. 

James Meadors, the day shift foreman, maintains that he told 

the night shift workers not to work in the pit area because of 

the apparently dangerous highwall conditions and told them that 

the conditions would be corrected on the following day shift. 

There is no evidence however that Meadors "dangered off" the 

area. 

Within this framework of essentially undisputed evidence it 

is clear that the violation is proven as charged. Since there 

was no effective barricade of the endangered area I also find 

that the violation was "significant and substantial". While the 

day shift foreman may very well have warned some of the workers 

present at the time he left the mine site not to work in the 

endangered pit area, that warning was clearly not sufficient in 

itself. Without barricades, other persons later entering the 

mine site could easily wander beneath the dangerous highwall with 

a reasonable likelihood that they would suffer serious injuries. 

The violation was therefore ''significant and substantial 11 o 

Mathies Coal Company, suprao The failure of Meadors or other 

supervisory personnel to have 11 dangered offU or physically 

barricaded the acknowledged dangerous area also constitutes 

negligence of such an aggravated nature as to constitute 

nunwarrantable failure"o Emery Mining Company, supra. Within 

this framework and considering the criteria under section llO(i) 

of the Act it is clear that the proposed civil penalty of $800 is 

warrantedo 

Citation No. 3178712 alleges a "significant and substantial" 

violation of the standard at 30 C.FoR. § 77.207 and charges as 

follows~ 

Sufficient illumination was not provided in the 

pit for a bulldozer pushing down spoil and an endloader loading rock trucks. The only illumination 

available was the headlights and backup lights of the 

equipment. These vehicles were working in close 

379 
proximity to a 70-60 foot highwall. These conditions 

were observed 8/1/89, during a fatal accident 

investigation. 

·The cited standard, 30 C.F.R. § 77.207, reads as follows: 

Illumination sufficient to provide safe working 

conditions shall be provided in and on all surface 

.structures, paths, walkways, stairways, switch panels, 

loading and dumping sites, and working areas. 

While the issuing inspector acknowledged that he did not 

observe the cited conditions under night conditions he 

nevertheless inf erred from prior night experience that the 

existing illumination from vehicle lights alone would not be 

sufficient. He noted that while the trucks had four lights and 

the endloader had lights on both ends there would nevertheless be 

unlighted blind spots during night operations. He noted that the 

bulldozer was pushing spoil into the pit at the Blue Gem Level 

and that vehicles below including the trucks and loader, were 

working within 2 0 to __ 3 0 feet, of the highwall. With out adequate 

illumination of the highwall these operators would be unable to 

see material falling off the highwall. 

Safety Director John Blankenship disagreed with this 

assessment and noted that another MSHA Inspector had previously 

examined this site during night operations and had never issued 

citations for insufficient lighting. Within the above framework 

of evidence however it may reasonably inferred that indeed there 

was insufficient illumination of the highwall during night 

operations. Clearly the face of the highwall could not be 

sufficiently illuminated merely by vehicle lighting as the 

vehicles moved about" In light of the equivocal testimony of the 

inspector however I am unable to conclude that the violation was 

iusignficant and substantial 11 o 

Moreover in light of the undisputed evidence that MSHA 

inspectors had previously observed this site during evening hours 

and had never previously cited this condition I cannot find that 

the operator is chargeable with significant negligence. Within 

the above framework and considering the criteria under section 

llO(i) of the Act I find that a civil penalty of $50 for the 

violation is appropriate. 

Citation No. 3178713 similarly alleges a "significant and 

substantial" violation of 30 C.F.R. § 77.207 and charges as 

follows: 

Sufficient illumination was not provided at the 

backf~ll dumping ramp for the rock trucks to dump. The 

only illumination provided was the headlights and 

backup lights of the rock trucks. These conditions 

380 
were observed on 1/1/89, during a fatal accident 

investigation. 

There does not appear to be any direct evidence in the 

record concerning this alleged violation. I am, moreover, unable 

to infer from testimony that any such violation occurred. The 

citation must accordingly be vacated. 

Order No. 31788714, issued pursuant to section 104(d) (1) of 

the Act, (See, fn. 1 supra.) alleges a violation of the standard 

at 30 C.F.R. § 77.1713 and charges as follows: 

Adequate and sufficient examinations for hazardous 

conditions to eliminate such conditions were not being 

conducted on the second shift by a certified person. 

Numerous violations were observed during a fatal 

accident investigation which occurred at 3:20 a.m., on 

8/1/89. It was a practice for the day shift foreman to 

make an on-shift examination just prior to leaving work 

each day. This one exam;i.nation was usually conducted 

around 5:30 p.m •. -to 6:00 p.m. The second shift crew 

then worked from 5:30 p.m. until 4:00 a.m., without any 

further examinations. Violation Nos. 3178704 through 

3178713 were issued. These conditions were observed on 

8/1/89 and 8/2/89 during a fatal accident 

investigation. 

The cited standard, 30 C.F.R. § 77.1713, provides in 

relevant part as follows: 

At least once during each working shift, or more 

often if necessary for safety, each active working area 

and each active surface installation shall be examined 

by a certified person designated by the operator to 

conduct such examinations for hazardous conditions and 

any hazardous conditions noted during such examinations 

shall be reported to the operator and shall be 

corrected by the operator. 

The issuing inspector based this order upon his observation 

of the existence of the violations charged in the citations and 

orders previously discussed. He concluded that this violation 

was also "significant and substantial 11 because of those 

violations. He also concluded that this alleged violation was 

the result of "unwarrantable failure" on the grounds that the 

evening shift foreman, who was the only person certified to 

perform the required examinations, had left the mine site at 6:00 

p.m. the evening before and there was no foreman remaining on the 

job at a time when the violative conditions should have been 

discovered_by proper inspection. While it is apparent from the 

previous discussion in this decision that I do not agree that all 

of the violations cited by the issuing inspector were valid, I 

381 
nevertheless have found sufficient violations from which I can 

conclude that the Secretary has proven there was an insufficient 

examination performed at this job site. Indeed the existence of 

admittedly dangerous highwall conditions without "dangering off 11 

or barricading the area to prevent entry is sufficient alone to 

warrant the conclusion that an insufficient examination was 

performed and that the failure to perform such an examination was 

the result of an aggravated omission constituting gross 

negligence and "unwarrantable failure" Failure to properly 

conduct examinations and therefore allowing such dangerous 

conditions to remain also warrants the conclusion that this 

violation was "significant and substantial". 

Inasmuch as there is redundancy between the underlying 

substantive violations subject to separate civil penalties and 

the violation herein I conclude that a reduced civil penalty of 

$500 warranted considering the criteria under section llO(i) 

of the Act. 

At hearing the parties p~esented a settlement agreement with 

respect to Citation No. 2996585 in which it was agreed that full 

payment of the proposed penalty of $20 would be paid. I have 

considered the representations and documentation submitted in 

support of the motion and conclude that the proffered settlement 

appropriate under the Act. 

ORDER 

Citation/Order Nos. 3178705, 3178708, 3178709, 3178710 and 

3178713 are vacated. Citation/Order Nos. 3178703, 3178704, 

3178707, 3178711, 3178712, 3178714 and 2996585 a~e affirmed. 

Imminent Danger Order No. 3178706 is affirmed. Gatliff Coal 

Company Inco? is accordingly directed to pay civil penalties 

ing ,790 within 30 days of the fa~te of t\ils de{sion/ 

I l ~. (f/l.A_,(, V\ 

-bary\Melick \ \ 

Administrative Law Judge 

Di j J 

Anne Knauff, Esq., Office of the Solicitor, U.S. Department of 

Laborp 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certif Mail) 

Robert I. Cusick, Esq., Wyatt, Tarrant & Combs, Citizens Plaza, 

Louisville, KY 40202 (Certified Mail) 

nb 

382 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAR 111991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 90-72-M 

A.C. No. 04-01695-05515 

v. Azusa Plant 

TRANSIT MIXED CONCRETE COMPANY, 

Respondent 

DECISION APPROVING SETTLEMENT 

AFTER REMAND 

Before: Judge Morris 

On February 7, 1991, the Commission remanded the above case. 

The record discloses a Decision Approving Settlement was 

entered on October 11, 1990. However, the decision on said date 

did not include the agreed settlement of Citation No. 3466442 for 

the proposed civil penalty of $600. 

After the order of remand, the Judge advised the parties he 

would issue a decision approving their agreement and reaffirming 

the disposition entered on October llv 1991. No objection 

was filed to the entry of such an ordero 

Accordinglyv I enter the followingg 

ORDER 

lo The settlement is APPROVED. 

2o Citation No. 3466442 and the proposed penalty of $600 

are AFFIRMED. 

3o The decision approving the settlement entered 

October llu 1990v is REAFFIRMED. 

l"-nl'~___,t.:.~~ orris 

ative Law Judge 

383 
Distribution: 

John c. Nagle, Esq., Associate Regional Solicitor, u.s. Department of Labor, 3247 Federal Building, 300 North Los Angeles 

Street, Los Angeles, CA 90012 (Certified Mail) 

Mr. Gene Wade, TRANSIT MIXED CONCRETE co., 4760 Valley Boulevard, 

Los Angeles, CA 90032 (Certified Mail) 

ek 

384 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

MAR 111991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THE PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-38 

A.C. No. 29-00845-03534 

York Canyon 

Appearances: Mary E. Witherow, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

for Petitioner; 

Ray D. Gardner, Esq., Pittsburg & Midway Coal Minning Company, Englewood, Colorado, 

for Respondent. 

Before: Judge Cetti 

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

Health Administration (MSHA), charged Respondent with violating 

three safety regulations promulgated under the Federal Mine 

Safety and Health Act, 30 U.S.Co § 801, et~ (the "Act"). 

After notice to the partiesv a hearing was held in Pueblov 

Colorado on September 2lv 1990. At the hearingf both parties 

presented oral and documentary evidence on Citation No. 3240566 

concerning the alleged improper grounding of a guy wire, and 

Citation No. 3240567 concerning a drag line trailing cable. 

At the hearingv testimony was taken from the following 

witnesses 

lo MELVIN SHIVELEYu MSHA coal mine inspectoru 

2. WILLIAM BECKv electrical supervisor at York Canyon 

Pittsburg Midway coal Complex, and -

3o EDWARD BOLTON, Respondent 1 s senior electrical engineer. At the end of a full day of hearing, the case had to be 

continued. Before the matter was reset for further hearing, the 

parties advised they had reached an amicable settlement of all 

matters at issue. In the settlement agreement filed March 4, 

1991, Petitioner moved to amend Citations 3240567 and 3240566 to 

delete the "significant and substantial" designation. 

385 
The parties stated that Respondent withdrew its Notice of 

Contest to the violation alleged in Citation 3240565 and its 

related proposed penalty of $91.00. 

Based upon my review and evaluation of the evidence presented at the hearing, I find the settlement agreement to be 

reasonable, in the public interest, and consistent with the 

statutory criteria in Section 110 of the Act. The settlement 

agreement is approved. 

ORDER 

1. Citation Nos. 3240566 and 3240567 are MODIFIED to 

delete the designation "Significant and Substantial" and, as so 

modified, are AFFIRMED. 

2. Citation No. 3240565, alleging a violation of 30 C.F.R. 

§ 77o400(a), including its finding that the violation was "Significant and Substantia-1," is AFFIRMED. 

3. Respondent, if it has not previously done so, is 

ORDERED to pay to the Secretary of Labor within 30 days from 

the date hereof the sum of $273.00 as and for a civil penalty for 

the above Citations. Upon such payment, this proceeding is 

DISMISSED. 

Distribution~ 

Mary E. Witherowu Esq., Office of the Solicitor, U~S. Department of Labor 0 525 Griffin Streete Suite 501, Dallas, TX 75202 

Certified Mail) 

Ray Do Gardner 11 Esqov Pittsburg & Midway Coal Mining Company, 

6400 South Fiddler's Green Circle, Englewood 0 CO 80111-4991 

Certified Mail) 

Mro Robert Butero, International Health and Safety Representative 

for UMWA District 13v 228 Lea Streetv Trinidadv CO 81082 

(Certified Mail) 

ek 

386 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TEXAS UTILITIES MINING 

COMPANY, 

Respondent 

March 12, 1991 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 91-26 

A. C. No. 41-01192-03531 

Big Brown strip 

DECISION 

In response to the February 11, 1991, show cause order, the 

parties agreed that subject case should be stayed pending a 

decision by the undersigned in Drummond Co. Inc., Docket No. 

SE 90-126. 

However, before a stay order could be issued herein, a 

decision was rendered on March 6, 1991, in Drummond granting the 

operator's motion to remand the penalty to the Secretary. The 

decision in Drummond 1s dispositive of this case, which involves 

one violation where the excessive history criteria in Program 

Policy Letter No. P90-III-4 was used to calculate the amount of the 

penalty. 

In light of the foregoing; it is ORDERED that the operator 1 s 

motion for remand be GRANTED. 

It is further ORDERED that the Secretary recalculate her 

proposed penalty without reference to Program Policy Letter 

No. P90-III-4. 

~\2Ju~ Paul Merlin 

Chief Administrative Law Judge 

387 
Distribution: 

Brian L. Pudenz, Esq., Office of the Solicitor, u. s. Department of 

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 (Certified 

Mail) 

Douglas White, Esq., Counsel, Trial Litigation, Office of the 

Solicitor, U. S. Department of Labor, Room 414, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Hand Delivered) 

Christopher R. Miltenberger, Esq., Worsham, Forsythe, Sampels & 

Wooldridge, Thirty Two Hundred, 2001 Bryan Tower, Dallas, TX 75201 

(Certified Mail) 

/gl 

388 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 12 1991 

DAVID THOMAS, 

Complainant 

v. 

AMPAK MINING, INC., 

GEARY BURNS AND 

PEGGY A. KRETZER, 

Respondents 

GEORGE ISAACS, 

Complainant 

v. 

AMPAK MINING, INC., 

GEARY BURNS AND 

PEGGY A. KRETZER, 

Respondents 

DISCRIMINATION PROCEEDING 

Docket No. KENT 89-13-D 

BARB CD 88-16 

Mine No. 1 

DISCRIMINATION PROCEEDING 

Docket No. KENT 89-14-D 

BARB CD 88-34 

Mine No. 1 

DECISION AND ORDER AWARDING COSTS AND DAMAGES 

Before: Judge Melick 

Pursuant to the Default Decision and Order issued 

February 7, 1991, and the unopposed Supplemental Statement of 

Attorney Fees and Expenses filed herein, it is hereby ORDERED 

that within 30 days of the date of this decision Respondents' 

Geary Burns and Peggy A. Kretzer (who are jointly and severally 

liable) pay to Tony Oppegard, the attorney for complainants' 

David Thomas and George Isaacs, attorney fees and expenses of 

$7,802.39, in addition to previously awarded damages and costs 

(ordered to be paid by Arnpak Mining, Inc. on March 9, 1990) plus 

interest in accordance with the commission's decusion in UMWA v. 

Clinchfield Coal Co., 10 FMSHRC 1493 (1988). Th"s decision--

represents the final disposition/Jthese procee ings ~efo. re this 

judge. 1 ' l ;vLv--~ 0,_~/ ''-. 

Gary elick , Admin"strative\ aw Judge 

(703) 756-6261 \) 

389 
Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508 

(Certified Mail) 

Graham Martin, Esq., Main Street, United Federal Building, 

Hindman, KY 41822 (Certified Mail) 

Mr. Geary Burns, P.O. Box 1183, Paintsville, KY 41240 (Certified 

Mail) 

Ms. Peggy Kretzer, HC 83, Box 172, River, KY 41254 (Certified 

Mail) 

390 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR J 3 1991 

KENNETH L. CHANDLER, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. LAKE 90-107-D 

MSHA Case No. VINC CD 90-04 

ZEIGLER COAL COMPANY, 

Respondent Zeigler No. 11 Mine 

Appearances: 

Before: 

DECISION 

Mr. Kenneth,L. Chandler, Tilden, Illinois, prose, 

f9r the Complainant; 

Timothy M. Biddle, Esq., Claire S. Brier, Esq., 

CROWELL & MORING, Washington, D.C., for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed by 

the complainant, Kenneth L. Chandler, against the respondent 

Zeigler Coal Company, pursuant to section lOS(c) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c). The 

complainant filed his initial complaint with the Mine Safety and 

Health Administration (MSHA), and after completion of an investi~ 

gation of the complaint, MSHA advised the complainant by letter 

dated June 6 1990, that the information received during the 

investigation did not establish any violation of section 105(c) 

of the Act. Thereafter, the complainant filed a complaint with 

the Commissionn 

A hearing was held in st. Louis, Missouri, and the parties 

were afforded an opportunity to file posthearing briefs. The 

respondent filed a brief, but the complainant did not. However, 

the complainant did an undated letter received on January 6, 

1991, and a second letter received February 4, 1991, in which he 

explains the circumstances of the incident which precipitated his 

complaint and cites an arbitrator's decision and a decision by a 

State unemployment referee with respect to two cases which he 

believes are relevant to his case. I have considered all of the 

391 
posthearing arguments and submissions made by the parties, 

including their oral arguments made on the record in the course 

of the hearing, in my adjudication of this matter. 

The complainant, who is still employed by the respondent, 

alleges that he was suspended for 5 days without pay on 

October 18, 1989, after requesting mine management to provide him 

with dry clothing after riding a man cage into the mine on 

October 16, 1989, during an unusual and heavy rainfall which 

resulted in his becoming "soaking wet and cold." The complainant 

further alleges that his suspension was "in retaliation for my 

health and safety efforts for myself and other employees." He 

requests back pay for the 5-day suspension period, and the 

removal of all references of the suspension action from his 

personnel records. 

The respondent denies that it has discriminated against the 

complainant, and maintains that the complainant did not engage in 

protected activity under section 105(c) of the Act because his 

refusal to work in wet clothing was unreasonable and not made in 

good faith. The respondent asserts that it disciplined the 

complainant for legi~imate business reasons and that he was 

suspended for insubordination for failing to follow an order to 

go to work on October 16, 1989, and "for acting in concert when 

leaving the mine in a group exit" with other miners on his 

working unit prior to the end of the normal work shift that day. 

Issues 

The issues in this case include the following: (1) whether 

the complainant was engaged in protected activity when he 

requested dry clothing on October 16, 1989; (2) whether his 

leaving the mine prior to the end of his normal work shift 

constituted a reasonable and protected "work refusalvv for health 

or safety reasons; (3) whether the complainant communicated any 

health and safety concerns to mine management prior to his 

leaving the mine~ and (4) whether the 5-day suspension disciplinary action by the respondent was a bona fide and legitimate 

business reason made in good faith, or whether it was carried out 

to retaliate against the complainant for his engaging in any 

protected health or safety activity. 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, 

30 U.S.C. § 301 et seq. 

2. Sections 105(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(c) (1), (2) and 

( 3) • 

39 2 
3. Commission Rules, 29 C.F.R. § 2700.1, 

Stipulations 

The parties stipulated to the following (exhibit ALJ-1): 

1. Zeigler Coal Company is subject to the Federal 

Mine Safety and Health Act of 1977 ("the Act"). 

2. The Federal Mine Safety and Health Review 

Commission ("the Commission") has jurisdiction over the 

parties and subject matter of this case under sections 

105(c) and 113 of the Act, 30 u.s.c. §§ 815(c) and 823. 

3. Respondent Zeigler Coal Company is the operator of the Zeigler No. 11 Mine. 

4. At all times relevant to this case, Complainant Kenneth L. Chandler worked at the Zeigler No. 11 

Mine as a miner as defined in section 3(g) of the Act, 

30 u.s.c. § 802(g). 

5. Mr. Chandler reported to work for the second 

shift at the Zeigler No. 11 Mine on October 16, 1989. 

6. On October 16, 1989, there was a rainstorm at 

the beginning of the second shift and all of the miners 

working that shift got wet while on their way to the 

mine. 

7. Mr. Chandler and the seven other miners working on his crew on October 16, 1989, left the mine 

property before the end of the second shift. 

80 None of the other miners working the second 

ft on October 16, 1989, left the mine property 

before the end of the shift. 

9. On October 18, 1989, Mr. Chandler and the 

seven other miners who left the mine before the end of 

the second shift on October 16, 1989, were disciplined 

for insubordination and for leaving the mine prior to 

the end of their shift. Mr. Chandler and five of the 

miners were suspended for 5 days, one of the miners was 

discharged, and another was suspended for 2 days after 

admitting insubordination. 

10. Mr. Chandler filed a complaint with the 

United States Department of Labor, Mine Safety and 

Health Administration ( 11MSHA 11 ) on November 17, 1989. 

39 3 
11. MSHA subsequently notified Mr. Chandler that 

its investigation of his November 17, 1989, complaint 

did not reveal any violation of section 105(c) of the 

Act. 

12. On July 6, 1990, Mr. Chandler filed a complaint with the Commission against Zeigler Coal 

Company. 

13. This complaint was properly served on Zeigler 

Coal Company on July 25, 1990. 

Complainant's Testimony and Evidence 

Kenneth L. Chandler, the complainant, testified that on 

October 16, 1989, he was working as a face man on the second 

shift (4:00 p.m. to midnite). He stated that "it was raining 

cats and dogs, really pouring down," and that he ran approximately 100 yards from the surface dressing area to reach the 

shaft cage to go underground. He stated that it took approximately 4 to 7 minute§ to reach the underground area on the 11 open 

cage" which had no top and large overhead holes. The temperature 

was approximately 42 degrees, and after an 18-minute ride on the 

man trip, he reached the working section "sopping wet and cold. 11 

Mr. Chandler stated that during the man-trip ride he and the 

other miners asked face foreman Lawrence Rainey whether they 

would get dry clothing, and Mr. Rainey left to "make the faces." 

Mr. Chandler then proceeded to the transformer area and took his 

coat off and was putting it on the transformer when Mr. Rainey 

returned and informed him that he could not allow him to stand by 

the transformer "because they'll fire me." Mr. Chandler asked 

Mr. Rainey again about getting coveralls, and Mr. Rainey left to 

make a phone call. 

Mr. Chandler stated that Mr. Rainey returned and that "the 

words I caught he said was go to work or go home, we are not 

go to give you no coveralls" (Tr. 18). Mr. Chandler stated 

that he did not know whether Mr. Rainey called mine manager Shan 

Thomasv or assistant superintendent William Patterson, but 

understood or •

1 speculated11 that he called Mr. Patterson. 

Mr. Chandler and seven other miners then went to the man to 

leave the area. 

Mr. Chandler stated that after arriving on the surface, he 

and the other miners went to the "tool crib shack" and to 

Ms. Carla Lehr who was on duty. She told them she would return 

in 15 or 20 minutes and left, but did not return. Mr. Chandler 

then went to the mine foreman's office, and after finding no one 

, he returned to the locker room, took a shower, and went 

home. On his way out, he looked into the foreman's off , and 

saw mine superintendent Mike Smart there (Tr. 22). 

394 
Mr. Chandler stated that he returned to the mine the next 

day, October 17, put on his work clothes, and proceeded to the 

man cage to go to work, but was met by mine manager Shan Thomas 

who told him "to stand aside." Mr. Thomas informed Mr. Chandler 

and the other seven miners who left the mine the previous day, 

that their "work assignment was in the office." They were then 

taken to a room at the mine office, and Mr. Chandler and each 

miner were interviewed privately and individually (Tr. 23-25). 

Mr. Chandler confirmed that Mr. Smart, Mr. Patterson, 

Mr. Rainey, and a labor relations representative (Nick) were all 

present as management representatives during his interview, and 

that two union representatives, or committeeman, were also 

present (Tr. 27). Mr. Chandler believed that he was at the mine 

office for 5-1/2 hours, and after he was interviewed, he was told 

to go home, and he left the mine. He confirmed that the other 

miners on his work shift "walked out when they took us in the 

off ice" and there was a "wildcat strike 11 because he and the other 

seven miners were not allowed to go to work. Mr. Chandler stated 

that the strike began when Mr. Thomas "stopped us from getting on 

the cage," and that the second shift did not work on October 17 

(Tr. 30-31). 

Mr. Chandler stated that he next returned to the mine on 

October 18, and was kept in the locker room. several union 

representatives were present, and they informed him that mine 

management was considering discharging him. The union president 

produced a "letter," which he refused to sign. He was then given 

another letter informing him that the respondent was suspending 

him for 5 days (Tr. 33-34; exhibit C-1). 

Mr. Chandler believed that the mine was idle for approximately 3 days "over this--trying to make people work with sloppy 

clothing and stuff like that, you, know, safety, but that the 

miners returned to work under a court injunction (Tre 38)o 

Mr. Chandler confirmed that he completed his 5-day suspension and was not paid his hourly rate of $14 or $15 for these 

days. He further confirmed that he filed a grievance for loss of 

pay on October 16 and 17, and received pay for 4-1/2 hours, 

which settled and ended part of the grievance, but d not settle 

that part 11 on wet, sloppy clothing; whether a company could make 

me work in wet sloppy clothing for 8 hours 11 (Tr. 41). 

Mr. Chandler stated that he was given an unexcused absence 

for October 16, which is still on his record, but that nneither 

side said nothing11 about the 11wet clothes issue 11 (Tr. 43). He 

confirmed that in 1983 the respondent supplied him with boots and 

coveralls when he was "sopping wet, 11 that he came out of the mine 

on another occasion to get some coveralls when he was saturated 

395 
with oil when a hydraulic line broke, and that on September 12, 

1989, another miner was saturated with oil and came out of the 

mine, showered, and returned to work with no lost time (Tr. 45). 

Mr. Chandler stated that pursuant to a union/management 

agreement, boots or "waders" are made available to miners, and 

that the respondent furnishes rain gear when bolting is done in 

wet areas. He confirmed that he keeps a supply of personal 

clothes at the mine, that he is paid an annual clothing allowance 

of $190 by the respondent, but does not keep an extra set of work 

clothes at the mine (Tr. 46-47). 

Mr. Chandler stated that there were no raincoats to wear on 

October 16, before he went to the cage, and in order to obtain a 

raincoat he would have "to go outside and back around to the 

crib," and he did not know whether he would have been permitted 

to do so. He confirmed that since the incident in question, the 

day shift has been provided with plastic trash bags for protection against the rain, but he did not consider this to be "raingear" (Tr. 49). He stated t~at the dry clothes issue has not 

been bargained by the union, and that the October 16, rainfall 

was the first time it has rained so hard (Tr. 50). 

On cross-examination, Mr. Chandler confirmed that he could 

have remained in the dressing area at the start of his shift 

rather than going to the cage, that he did not ask the foreman to 

hold the cage, and made no attempt to ask anyone for rain gear 

before going to the cage (Tr. 53). He stated that the distance 

to the cage "might be 100 feet" rather than 100 yards, and that 

he could have gone to the supply room by walking through an 

inside off ice rather than walking outside if he had obtained 

permission to do so. He confirmed that he did not ask for 

ion (Tr. 55). He confirmed that there are no restrictions 

as to how he spends his clothing allowance, that he could have 

a spare set of clothing to keep at the mine, and that 

he had an extra coat and extra pair of shoes at the mine on 

October 16 (Tr. 56). 

Mr. Chandler confirmed that the union advised him that it 

would not pursue the dry clothing part of his grievance any 

further after the pay issue concerning his pay for October 16 and 

17, was resolved, and that he disagreed with the union's decision 

(Tr. 56-57) . 

Mr. Chandler confirmed that 11 one of the main issues" with 

respect to the wildcat strike was the termination of one miner 

(Burnett), a member of his crew who left the mine on October 16 

(Tr. 60). He confirmed that eight miners and a foreman were 

assigned to his work shift unit on October 16, and there are two 

additional units and a labor crew, or a total of 38 to 40 men on 

the shift. He confirmed that everyone on the shift got wet, and 

396 
that everyone stayed and worked on that shift except for the 

seven miners on his unit who left the mine (Tr. 62). 

Mr. Chandler stated that boots and rain gear are available 

at the mine, but that he has not been "sopping wet" in the past, 

and would only want a full change of clothes when he is "sopping 

wet" (Tr. 64). He confirmed that he left the mine at 6:30 p.m., 

on October 16, 5-1/2 hours before his normal work shift ended. 

When asked whether he had permission to leave, he stated as 

follows at (Tr. 65): 

Q. So if it was 6:30, then you left the mine five and 

a half hours then before the shift ended? 

A. Right. 

Q. And you didn't have permission to leave the mine 

from anybody on the property, is that correct? 

A. I'd say so, when the ,.~ine manager come there and 

asked me what m¥;trouble was, yeah. 

Q. And the mine manager gave you permission to go 

home? 

A. He didn't tell me I couldn't go or I could go. He 

never said nothing. All he said was that I'm sorry 

you're wet. 

Q. And you construed that as permission that you could 

go home? 

Mr. Chandler identified exhibits R-1 and R-l(a), as the 

respondentis rules concerning nearly outs,n and confirmed that 

they were in effect on October 16, 1989 (Tr. 67). He conceded 

that he left work early that day, but stated that he notified the 

mine manager that he was leaving the mine. He explained that he 

notified foreman Rainey that he wanted to leave and go home, and 

that Mr. Rainey ngave me the ultimatum to go to work or go home, 

so he give me a choice" (Tr. 70). However, Mr. Chandler further 

stated that he did not tell mine manager Shan Thomas that he was 

going home, but did tell him that "I'm wet, sloppy clothing, I'm 

froze, I'm going to try and get some dry clothing" and that he 

was ngoing to the top to see if I can get some dry clothing." He 

then conceded that he did not say anything to Mr. Thomas about 

going home (Tr. 69-71). 

Mr. Chandler confirmed that he saw mine superintendent Smart 

as he left the mine office to go home on October 16, and believed 

that Mr. Smart saw him. He confirmed that he did not speak to 

396 
Mr. Smart or say anything about going home. Mr. Chandler confirmed that he is a licensed plumber, performs plumbing work on 

his own, and has worked at that job when he was wet (Tr. 74). 

Mr. Chandler stated that except for Mr. Burnett who was 

terminated, and Mr. Smith, who signed a letter, all of the other 

miners who left the mine over the "wet clothes" issue were 

suspended by the respondent with a loss of pay (Tr. 75-76). He 

confirmed that he was interviewed and questioned on October 17 

about why he had left the mine on October 16, and that union and 

management personnel were present during the interview. He 

confirmed that he discussed the wet clothing issue and that he 

came out of the mine because he was wet and cold (Tr. 77-79). 

In response to further questions, Mr. Chandler confirmed 

that when Mr. Thomas spoke to the miners leaving on the man trip 

on October 16, he told Mr. Thomas that he was wet and cold and 

wanted some dry clothing (Tr. 82). He confirmed that Mr. Thomas 

said nothing about working or going home, and that he (Chandler) 

heard Mr. Rainey make the statement "go to work or go home." 

Mr. Chandler stated that he heard Mr. Rainey make this statement 

after he had made a~phone call, and he believed that "someone 

else told him to say this," but he did not know who Mr. Rainey 

may have called (Tr. 82-85). 

Mr. Chandler stated that prior to getting on the cage on 

October 16, to go underground, "no one said don't get on it or 

get on it, 11 but that he has been told that when the signal is 

given "when they run two cages," he is supposed to get on it and 

go to work (Tr. 86). He was told that miners on another unit who 

also rode the cage and were wet and cold were allowed to dry 

their clothes underground on the transformers by their foreman 

Tro 88) o He did not know why he failed to say anything to the 

foreman mine manager, or superintendent before riding the cage 

aown and exposed to the rain (Tr. 89-90) . 

Mr. Chandler confirmed that at the time the miners on his 

unit decided to leave the mine on October 16, he was not aware 

that other on another unit were allowed to dry their 

clothes on the transforners, and that he learned about this the 

next day or so when it was brought out at a union meeting (Tr. 

91) He further confirmed that the union would not take the dry 

clothing issue further to formal arbitration, and he did not know 

the reason for not doing so and was given no reason by the union 

(Tr o 9 2) • 

Mr. Chandler stated that on October 16, after reaching the 

bench and transformer area, he and his crew were standing around, 

and had placed their jackets on the transformer to dry. Several 

of the miners may have been drinking coffee and eating sandwiches 

and no one had started to work. Mr. Rainey came to the area, and 

Mr. Chandler stated that "I just hollered and asked him -- I said 

39 8 
are we going to get any wet (sic) clothing? And, you know, are 

coveralls down here, or raingear or something to put on? And 

somebody else asked him something; I don't know who it was" (Tr. 

95-100). 

Mr. Chandler stated that working in wet clothing would 

present a safety risk because "handling the electric cable with 

wet, sloppy clothing you can get electrocuted," and that the wind 

at the face would be "coming to you which is about 60,000 cubic 

feet per minute, you're working in air, you get chilled. You can 

get pneumonia, and you get sick, you're going to miss work" (Tr. 

101) . He confirmed that he had never previously worked under 

such conditions, and although he has gotten wet, it was "not 

sloppy wet like that. 11 He further confirmed that he said nothing 

to the mine manager or mine superintendent about the hazards 

which he testified to, and said "I'm sopping wet and just wanted 

dry clothes. * * * you know, I'm chilled. That's it. That's 

what I kept asking" (Tr. 102). 

In response to a questiori._as to whether he ever asked the 

mine manager or superintendent for permission to go and change 

clothes, Mr. Chandler stated as follows (Tr. 102). 

A. We said something to him about going up and getting 

dry clothing, you know. We'll see if we can get dry 

clothing on top. That's why we made the effort to go 

to Carla before I told him. I don't know if they would 

have let me went back down or not, but if I would have 

got dry clothing --

Q. What dry clothing would this Carla have given you? 

What would the mine have had there? 

f..L Coveralls. 

Mr. Chandler confirmed that the minimum amount of air 

permitted at the face is 3,000 cubic feet, and that 60,000 would 

be in the main intake. He stated the cable was all high voltage 

cable which is insulated, and that he will not touch a cable with 

his bare hands if he is 11 real wet,H and will use gloves, but that 

he will touch if he is sua little wetn (Tr. 109). He will not 

touch a cable with wet boots or if he were standing in water. 

William I. Patterson, was called as an adverse witness by 

the complainant, and he confirmed that he is presently the mine 

superintendent, and was serving as the general mine manager in 

October, 1989. He stated that if a miner leaves work early with 

the permission of management, it is an excused absence. However, 

if a miner tells the shift mine manager that he needs to leave 

because he is sick or for family business, the manager has no 

authority to prevent him from leaving, but the next day, management will determine the reasons for the absence and will deal 

399 
with it. If the absence is legitimate, such as a doctor's slip, 

the leave will be considered to be an excused absence, and not an 

"early out. 11 An "early out" is charged when there is no proof of 

sickness or someone leaves with no prior authorization, and the 

miner would then be subject to a written warning and "progressive 

steps from there" (Tr. 114-120). 

Mr. Patterson confirmed that since Mr. Chandler had no proof 

of any sickness or injury, or prior authorization to leave the 

mine pursuant to the respondent's early out policy, he was 

charged with an unexcused absence on October 16, when he left the 

mine (Tr. 120-121). Mr. Patterson did not believe that working 

wet was hazardous, and he confirmed that one can get electrocuted 

when dry or wet, and that it would possibly be hazardous for 

someone to stick their hand in an energized power box, but that 

"our people are all well trained enough not to encounter those 

situations" (Tr. 121-122) . 

Mr. Patterson confirmed that he handled the grievances, and 

he confirmed that Mr. Chandlt?.r filed a grievance for 4-1/2 hours 

of pay for the day }le was kept at the mine on October 17, and 

that the grievance was settled and he was paid for these hours. 

Mr. Chandler was charged with an unexcused absence on October 16, 

was not paid for that day, and he did not grieve this action (Tr. 

126-127). 

Mr. Patterson confirmed that Mr. Rainey telephoned him on 

October 16, and informed him that "he had an employee who wanted 

some dry clothing." However, Mr. Rainey interrupted the conversation and said "forget that, here comes the rest of the crew and 

they all want dry clothing also" (Tr. 128). Mr. Patterson denied 

that he told Mr. Rainey to instruct the miners to go to work or 

go home, and he stated that "our management people are trained 

very well not to make those statements, IQ and he assumed that 

Mr. Rainey "probably did not state it in that fashion. 91 

Mr. Patterson stated that there was no way he could have supplied 

everyone on the second shift with clothing, and that he 

instructed Mr. Rainey to tell his men to go to work (Tr. 129, 

131) 0 

Mr. Patterson stated that supervisors who have made statements 11 go to work or go home" have "open themselves up to enable 

people to go home. * * * That is why our people are trained not 

to ever make those comments" (Tr. 132). Mr. Patterson denied 

that he ever suspended Mr. Rainey, but confirmed that he suspended another foreman when he found that miners on his crew were 

losing from 10 to 25 minutes from work by drinking coffee and 

eating before starting any work (Tr. 133-134). 

Mr. Patterson stated that at the time Mr. Chandler was 

questioned on October 17, he (Chandler) contended that Mr. Rainey 

had said "go to work or go home," but Mr. Rainey "flatly denied 

400 
it" in the presence of Mr. Chandler (Tr. 142). 

denied that Mr. Rainey had ever been suspended 

superintendent, but confirmed that he had been 

other reasons (Tr. 143). 

Mr. Patterson 

for lying to a 

suspended for 

Mr. Patterson stated that Mr. Chandler does not have a bad 

work record and that Mr. Wisdom is a fine employee. He stated 

that he is responsible for running the mine, and that it is not 

out of the ordinary for people to work wet (Tr. 147). He stated 

that the respondent is not responsible for furnishing dry clothing, but that there have been instances when a miner was allowed 

to change clothing if he were saturated with oil or chemicals. 

He confirmed that he did not know how hard it was raining on 

October 16, and was not paying particular attention to the rain 

(Tr. 150-152). 

Mr. Patterson stated that the union could have taken the 

issue of dry clothing to arbitration before an arbitrator but 

chose not to take it beyond the step three suspensions issue when 

the matter was withdrawn by the union (Tr. 155). Mr. Chandler 

confirmed that this was the case, and he stated "That's why I'm 

here. Because the company nor the union has ever given me an 

answer on wet, sloppy clothing'' (Tr. 155) . Mr. Patterson confirmed that Mr. Chandler did not ask him for rain gear or to 

delay the cage on October 16 (Tr. 168). 

William M. Simon, shuttle car operator, confirmed that he 

worked on the same crew with Mr. Chandler on October 16, 1989, 

and was also suspended for 5 days as a result of the same incident (Tr. 171). He stated that the respondent has furnished him 

with boots "when we hit water down below" and with raincoats 

while washing off equipment. He confirmed that he filed for 

unemployment because of his suspension, and that the State of 

Illinoisr Department of Employment Security found "that there was 

no misconduct in our part for wanting to get dry clothes, 11 and 

although he was not paid unemployment, he was given 11 credit for a 

waiting week19 of unemployment and was not disqualified from 

receiving such credit (Tr. 172-174, exhibit C-2). 

Mro Simon stated that he has worked in the past while wet, 

but that the rainfall on October 16, was unusual and that he was 

~•soaked all the way to the skin. 11 He confirmed that he was paid 

for 5 hours for the time spent at the mine during the interviews 

of October 17, but that he was charged with an unexcused absence 

on October 16, and that he was suspended for insubordination, and 

not for unexcused leave on that day (Tr. 189-190). 

Mr. Simon stated that when Mr. Rainey came to the transformer area on October 16, "everybody said well, we want--we'd 

like some dry clothes." Mr. Rainey left to make a phone call, 

and when he returned "he said that Bill Patterson wasn't going to 

send any dry clothes to you, to go work or go home" (Tr. 190). 

401 
Mr. Simon stated that given that choice, he decided to go home 

and not work in wet clothes because he had pneumonia twice during 

the prior year. He confirmed that he said nothing to 

Mr. Patterson or to Mr. Rainey about his pneumonia while he was 

underground (Tr. 191). 

Mr. Simon stated that after speaking with Shan Thomas, the 

mine manager, at the man trip, and informing him that he wanted 

dry clothes, he and the other miners went to the surface and to 

Mr. Patterson's and Mr. Smart's offices, but they were not there. 

He then went to the supply room and asked Carla Lehr if she had 

dry coveralls and she informed him that she did, but did not know 

how many. She then left, and after waiting for 10 to 15 minutes 

for her to return, he took a shower and went home (Tr. 193). 

Mr. Simon stated that he would have returned to work in his 

street clothes but could not find anyone to allow him to do this, 

and he doubted that he would have been permitted to do so (Tr. 

192-195). He confirmed that he saw Mr. Patterson in an office on 

his way out of the mine, but they did not speak to each other 

(Tr. 196). 

On cross-examination, Mr. Simon confirmed that he was in the 

supply room where raingear is kept before riding the cage underground, and that he did not try to get a foreman to sign it out 

to him because no foreman was there and he had no time because he 

had to take the first cage trip. He also confirmed that he had 

an opportunity to speak with Mr. Patterson before leaving the 

mine, but did not do so, and that Mr. Patterson made no attempt 

to speak with him (Tr. 199-200). 

In response to further question, Mr. Simon stated that he 

may have been present when Mr. Rainey spoke to Mr. Chandler after 

telephoning Mr. Patterson. It was his understanding that 

Mr, Rainev informed the miners that it was Mr" Patterson who told 

Mr, Rainey to inform the miners to either go to work or go home. 

He confirmed that he said nothing to Mr. Rainey about his prior 

pneumonia, and did not hear Mr. Chandler say anything to 

Mr. Rainey about his working without raingear. He also did not 

hear Mr. Chandler make any safety complaints to Mr. Rainey (Tr. 

201-203). Mr. simon stated that he raised the question of his 

prior pneumonia with management for the first time during his 

interview on October 17 (Tr. 204}. He confirmed that he and the 

other miners who went home and were suspended filed discrimination complaints with MSHA, "but we lost and they didn 1 t agree 

with us 11 (Tr. 205). He stated that he took no further appeal 

because he did not file it in time (Tr. 205). He confirmed that 

he knew it was raining before he left the supply room and went to 

the cage, and that he would probably get wet in the rain. His 

fear of pneumonia did not prevent him from going out in the rain, 

because it was 11 not as bad as my fear of getting fired for not 

going out there" (Tr. 207). 

402 
Lowell D. Wisdom, shuttle car operator, testified that in 

October, 1989, he was working as a roof bolter, and that he said 

nothing to Mr. Patterson or Mr. Smart about the rain on that day, 

and they said nothing to him. . He stated that he made several 

attempts to locate them in the off ice when he first came to the 

surface and before showering and going home, but could not find 

them. He also indicated that he was reluctant to speak to 

Mr. Smart "because of his practice of punishment and writing 

people up and everything," but that he would not now hesitate to 

ask Mr. Patterson if it was necessary for the men to go down the 

cage in the rain because the "circumstances has changed tremendously since Mr. Patterson has beqome our superintendent" (Tr. 

209-212). He stated that several years ago when he was wet he 

was allowed to go to the surface to put on overalls and return to 

work, and that the company has provided him with raingear and 

boots when he requested them (Tr. 209, 213). 

On cross-examination, Mr. Wisdom confirmed that the purpose 

of the October 17, meeting with management was to explain what 

had happened the previous day. He identified a copy of his 

suspension letter, and confirmed that the letter says nothing 

about wet clothes. He-also confirmed that during the time in 

question there was tension at the mine over the manner in which 

Mr. smart was managing the mine, but he did not believe that the 11 Pittson Strike" which was in progress at that time had anything 

to do with the situation at the mine (Tr. 214-219). 

In response to further questions, Mr. Wisdom stated that he 

has never engaged in any wildcat strike, and that if he had 

received "good, dry clothing" on October 16, he would have gone 

to work (Tr. 219). He stated that his opinion of Mr. Patterson 

has not changed since October, 1989, but that Mr. Patterson was 

not in charge of the mine as he is at the present time (Tr. 220). 

He confirmed that he did not hear Mr. Rainey state that 

Mr. Patterson instructed him to tell the men to go to work or go 

home. Mr. Wisdom also confirmed that he never heard Mr. Chandle'r 

or Mr. Simon raise any safety questions with Mr. Rainey or 

indicate that working in wet clothes put them at risk, and that 

he made no such complaint (Tr. 222). 

Mr. Wisdom stated that he had no idea why his union did not 

pursue the "dry clothes issue 11 further, and he produced a newspaper article of November 1, 1989, concerning the wildcat strike 

(exhibit C-3, Tr. 225). He also confirmed that the union did not 

pursue his suspension further, and that the union district 

representative told him that he did not want to take the case to 

an arbitrator "because the arbitrator might rule against us and 

fire us 11 (Tr. 227). Mr. Simon stated that it was his understanding that the "insubordination" which resulted in his suspension 

was "for refusing to go to work, I guess. And it says for 

leaving the mine" (Tr. 229). He further explained that he was 

not suspended for taking an unexcused absence, but that he was 

403 
charged with an unexcused absence for October 16, and was not 

paid for that day. He failed to understand how he could subsequently be suspended for not taking orders on the day that he 

received no pay. He conceded that assuming he were told by a 

foreman to go to work, and he instead went home, this would be 

insubordination, but that "if they didn't pay me, I don't feel 

like they had any business giving me any orders." He further 

conceded that he did not work on October 16, but expected to be 

paid for the 1 hour he was underground before going home, and 

that "I feel like they would have been more right in issuing me a 

letter for insubordination had they been paying me" (Tr. 

230-231). 

Respondent's Testimony and Evidence 

William I. Patterson, mine superintendent, testified that he 

has been employed by the resp6ndent for 17 years and that on 

October 16, 1989, he was serving as the general mine manager 

responsible for the underground operation of the mine. He 

confirmed that the UMWA rep:i;~sents the miners, and that pursuant 

to contract, the mine has safety committees for dealing with 

employee safety complaints. A safety committeeman is available 

for each of the three working shifts at the mine, and he confirmed that he has had dealings with the safety committee numerous times. He confirmed that there was an ongoing strike at the 

Pittson Coal Company in October, 1989, and that a few of the 

respondent's miners were given permission, through their union 

district office, to participate in that strike, and to attend a 

union "solidarity" rally held on October 15. He stated that as a 

result of the strike, he "could see a change with some people" at 

the mine, but not all of them (Tr. 238-243). 

Mro Patterson stated that during the day shift on 

October 16! while he was underground, he 11 noticed a lot of 

dissension among some of the employees" on that shift, and 

informed superintendent Smart that 11 things just don't feel 

right. os He was not sure whether this had anything to do with the 

events of October 16, on the second shift (Tr. 244). He confirmed that he was in the "lamp room" at the beginning of the 

second shift, knew it was raining, but not how hard, and that he 

did not see the men get on the cage at the start of the shift. 

He stated that no one asked him to delay the cage from going 

underground, and he did not speak with Mr. Chandler at that time, 

and no one asked him for any raingear (Tr. 246). 

Mr. Patterson confirmed that he received a telephone call 

from unit 3 section foreman Lawrence Rainey from an underground 

phone on October 16, and Mr. Rainey told him that one of the 

miners, Dale Burnett, wanted dry clothing and that he had clothes 

in his basket and wanted dry clothes. Before he could finish the 

conversation, Mr. Rainey said "forget that--the whole unit wants 

clothes now" (Tr. 248-249). At that point in time, Mr. Patterson 

404 
stated that he realized that there were three working units and 

some "outby people" underground, comprised of approximately 40 to 

45 miners, and although there may have been 8 to 12 pair of 

winter coveralls which are usually available for people working 

outside in cold weather, he knew that he could not supply all of 

the miners and told Mr. Rainey that he did not have clothes on 

the surface and to order his people to go to work (Tr. 250). 

Mr. Patterson stated that he was positive that he did not 

tell Mr. Rainey to order the men to go to work or go home because 

"through years of training, our supervisors have been trained 

that you do not give people options, that you do not say those 

things" (Tr. 251). Mr. Patterson stated that during the 

October 17, interviews with the miners who went home the previous 

day, they were each interviewed separately, and only two of them 

indicated that Mr. Rainey had said "go to work or go home," and 

the rest of the individuals said they did not hear Mr. Rainey 

make such a statement. Those individuals stated that Mr. Rainey 

informed them that "it was my orders for them to go to work," and 

Mr. Rainey assured them that he did not make such a statement 

(Tr. 2 51-2 5 3 } . 

Mr. Patterson stated that the respondent does not furnish 

dry clothes to miners, and that they have occasion to get wet in 

the ming during their normal work duties in the mine where water 

is encountered. He explained that raincoats or boots may be 

requested when a miner is working under muddy conditions or is 

working in a wet entry, and that there are 8 to 10 rainsuits 

available at the mine, and that he would purchase more if needed. 

He stated that raincoats are different than dry clothes, and that 

it was his understanding that the miners were asking Mr. Rainey 

for dry clothes. He stated that "I really don't know what they 

was asking for because I think most of the people knew that I 

could not supply dry clothing" and that there was possibly four 

to five sets of winter overalls available for their use {Tr. 

255) 0 

Mr. Patterson stated that he has never supplied dry clothing 

for anyone who was wet with water, but that persons who have been 

wet with oil or a chemical would be able to get a pair of coveralls? but he considered these circumstances to be different from 

a situation where someone is wet from water. He confirmed that 

the miners are given an unrestricted clothing allowance, and 

there are no rules against bringing or storing clothes at the 

mine. He has never had an entire working unit ask for dry 

clothes during his employment at the mine {Tr. 257). 

Mr. Patterson stated that after speaking with Mr. Rainey on 

October 16, he went to the supply room and confirmed that he did 

not have enough coveralls. He then informed Carla Lehr, who was 

on duty, that some employees had requested dry clothing but that 

he did have them available, and that "if anything else becomes of 

405 
this," she was to summon him from a training class which he and 

Mr. Smart were attending at the mine (Tr. 258). Shortly thereafter, he was summoned out of the class by the surface supervisor, and he went to the supply room and Ms. Lehr informed him 

that "people had come out of the mine" (Tr. 261) • He heard the 

showers running and surmised "that the men had already got into 

the shower. 11 He returned to his office and then went to another 

office which has a view of the exit from the bath house. He then 

observed Mr. Chandler walking by the doorway to the office, and 

they did not speak. Mr. Chandler was the first person to leave 

the mine, and he was subsequently followed by the other miners 

who left together. Mr. Patterson stated that he was writing down 

the names of the miners who he recognized, and when asked why he 

did not speak to Mr. Chandler when he passed by the office, he 

responded as follows (Tr. 263-264, 266-267): 

A. It was my view that these people had taken their 

initial stand on what they was going to do. I have 

given the order to go to work. It's my job to manage 

the mine. I could not give them all dry clothing. I 

could not give the whole- shift dry clothing. 

And I had issued an order for them to go to work. 

They had decided to leave the mine, leave the property. 

And at this point in time, I felt it better to --

because I felt maybe there was some dissention, maybe 

the next day in the meeting find out the whole story. 

* * * * * * 

Q. had you had any other complaints from any other 

units underground about wet clothing? 

Q. After these men left, and I assume -- let me not 

assume anything. Did you try to talk to any of the 

other men? You said Mr. Chandler left; did you try to 

talk with any of the other men? 

Ao No s 

Q. As they left? 

A. No 1 sir 1 I did not. 

Q, Did any of them try to talk to you? 

A. No, sir. 

* 

Mr. Patterson stated that after Mr. Chandler and the other 

miners on his unit left the mine on October 16, he and Mr. Smart 

406 
met with Mr. Thomas and Mr. Rainey to find out what had occurred. 

Mr. Rainey explained that he encountered the unit underground at 

the power center, or transformer, and that some of the men were 

having coffee and sandwiches, and were drying their coats by 

laying them on the transformer. Mr. Rainey knew that he 

(Patterson) had recently suspended a foreman for allowing this to 

go on, and informed the miners about this action and told them 

they could not stand around and needed to go to work. One 

individual, Dale Burnett, asked Mr. Rainey for dry clothes and 

stated that "I want dry clothes or a ride out. 11 Mr. Rainey then 

made the phone call and informed the men that he (Patterson) had 

ordered them to go to work. Rather than going to work, the men 

got on the man trip and Mr. Thomas arrived on the scene and spoke 

with them and asked Mr. Rainey about what was going on. 

Mr. Rainey informed Mr. Thomas that he had instructed the men to 

go to work, and after Mr. Thomas reminded them that they had been 

given an order to go to work, "they again said we're leaving. We 

want dry clothes or whatever, and we're leaving" (Tr. 271). The 

men then left on the man trip and came to the surface, but the 

rest of the working shifts, except for unit 3, completed their 

work shift without incident (Tr. 272). 

Mr. Patterson stated that the next day, October 17, he 

instructed Mr. Thomas to inform the miners on unit 3 who had left 

the mine the previous day to "step aside" and not enter the cage 

to go underground and to tell them that "their work assignments 

for that day was in the front office. 11 The miners were brought 

to an office and a supervisor was posted to wait with them "so 

that everyone couldn't start talking and get the same story 

together" (Tr. 273). Mr. Patterson stated that the purpose of 

the meeting was to investigate why the men had disobeyed a work 

order and left the mine the prior day, and that no decision had 

been made as to any disciplinary action until all of the facts 

were known. In addition to himself, Mr. Patterson confirmed that 

Mrc Smart, at least two union committeemen, and human relations 

representative Dennis Niziolkiewicz, were present during the 

individual interviews with the miners, and Mr. Rainey was present 

nuduring part of it" (Tr. 275). Mr. Chandler was given an opportunity to explain his actions, and apart from the different 

accounts by two miners as to what Mr, Rainey purportedly told the 

miners underground on October 16, with respect to the statement 

i•go to work or go home, n Mr, Patterson agreed that after hearing 

the testimony of Mr. Chandler and Mr. Wisdom during the hearing 

in this case, his recollection and their recollection of the 

events of October 16, were essentially "pretty close" (Tr. 276). 

Mr. Patterson stated that he learned that the remainder of 

the second shift on October 17, "had wildcatted, 11 either before 

or after the meeting and interviews began, and that the men on 

the shift 11 had pulled an unauthorized work stoppage" and did not 

go underground. The wildcat strike lasted for 6 days, and the 

miners were out 6 to 8 days, and it took a court order to get 

407 
them back to work (Tr. 279). Mr. Patterson confirmed that none 

of the men who were interviewed on October 17, mentioned any 

concern about any safety hazard because of being wet underground, 

but he did recall that Mr. Simon mentioned something about "a 

cold or pneumonia'' (Tr. 277). 

Mr. Patterson stated that the disciplinary suspension 

decision with respect to Mr. Chandler and the other miners who 

left the mine on October 16, was a collective decision by himself, Mr. Smart, and Mr. Niziolkiewicz, and he explained the 

basis for that decision as follows (Tr. 279): 

A. The basis for the decision was the people had acted 

irresponsibly and had left their place of work and left 

the mine property with no prior authorizations. They 

engaged in a group effort of leaving the mine. And 

some of the information we gathered through the investigation of some of the things that did happen led to 

the final form of discipline. 

Mr. Patterson confirmed that Mr. Burnett was discharged 

because he played a ~big role" in the incident of October 16, and 

"got the bandwagon rolling in some of his comments of give me dry 

clothes or a ride out, and carrying on." He also was in trouble 

over absenteeism, and under these circumstances, he received a 

much stiffer punishment than the suspensions without pay given 

Mr. Chandler and the other miners (Tr. 280-281, exhibits R-3 

through R-7). Mr. Patterson explained that.the failure by 

Mr. Chandler and the other miners who were suspended to follow 

his order to go to work on October 16, constituted insubordination. Mr. Patterson also considered the "group exit" from the 

mine on that day to be an unauthorized work stoppage or strike by 

each of the individuals who left the mine (Tr. 285). 

Mr. Patterson confirmed that Mr. Jim Smith was given a 1 or 

2-day suspension after accepting the respondent 1 s offer for a 

suspension based on his admission of guilt for leaving the mine 

on October 16, and he signed a letter to this effect. 

Mr. Chandler and the other miners were given the same opportunity 

to sign such a letter, but they refused (Tr. 290-296). 

Mr. Patterson was present during the suspension grievances filed 

by Mr. Chandler and the other miners and he explained that the 

grievance concerned the issue of pay for the miners summoned to 

the off on October 17, and the suspensions. The pay issue was 

~esolved by paying the miners for the time spent during the 

investigation, and the suspensions were resolved when the union 

district off s withdrew the grievances. Mr. Patterson 

confirmed that he became aware of Mr. Chandler's discrimination 

complaint when he received a copy in the mail several weeks after 

the grievances were concluded (Tr. 296-298). 

408 
Mr. Patterson confirmed that he had the authority to hold 

the man cage on October 16, before Mr. Chandler and his crew went 

underground, but that no one requested him to do so, that none of 

the miners made any requests for raincoats, nor did they inform 

him that they intended to leave the mine. He confirmed that 

during his interviews with the miners on October 17, they all 

informed him that they had left the mine because they were wet 

(Tr. 302-304) . 

On cross-examination, Mr. Patterson stated that Mr. Rainey 

told him that Mr. Chandler's entire working unit wanted dry 

clothing, and that he (Patterson) instructed Mr. Rainey to inform 

the men to go to work and that he had no dry clothing (Tr. 307). 

He confirmed that Mr. Burnett took his discharge to arbitration 

and it was affirmed by the arbitrator (Tr. 313, exhibit C-4). In 

response to questions concerning Mr. Rainey's purported statement 

to "go to work or go home," Mr. Patterson responded as follows 

(Tr. 330-331): 

* * * but if Rainey told me to go to work or go home, 

how would you interpret tt? Is that a direct order? 

Or would you say-that's two orders? 

A. Mr. Chandler, we know through the history of the 

coal mining and other industries that the orders to go 

to work or go home have been used down the road in 

several cases for an individual to sidestep the real 

cause of the meaning of that. And I think it's been 

upheld before when people make those statements such as 

that, it's been upheld that possibly it is an order. 

So you yourself knowing this to be a fact, you 

know, and I only can deal with what Mr. Rainey told me, 

and hopefully he told me the truth and everybody else 

the truth that he did not make those statements. He 

made the statement directly as I said it. 

* * * * * * * 

Now, lets assume that that was a factF that Rainey gave 

them the alternative. What would your view be then on 

whether or not this was insubordination? 

THE WITNESS: If a supervisor gives a man an alternative to go to work or go home, I would probably be 

forced with no other stand to take but the man was 

following an order to go home. 

Mr. Patterson confirmed that Mr. Chandler and the other 

miners were not suspended because of unexcused absences, and he 

explained the respondent's policy concerning "early outs" and 

unexcused absences (Tr. 341-344). 

409 
Shan Thomas, testified that he has been employed by the 

respondent for 21 years, that he is a shift mine manager, and 

served as the second shift manager on October 16, 1989. He 

stated that he rode the man cage underground on that day with the 

work crews, that it was raining hard, and that no one said 

anything about waiting for the rain to stop before proceeding 

underground. After arriving underground, the men left on the 

mantrip to go to their working units and he waited for the second 

cage to come down with the rest of the men. He confirmed that 

everyone, including himself, was wet from the rain, but that no 

one asked for dry clothing at that time (Tr. 348-351). 

Mr. Thomas stated that he proceeded to Mr. Chandler's No. 3 

unit area and found that the miners were getting into the mantrip 

to leave the area. Section foreman Lawrence Rainey informed him 

that the men were leaving and that he had spoken to Mr. Patterson 

about the matter and that Mr. Patterson instructed him to 

instruct the men to go to work. Mr. Thomas then informed the men 

in the mantrip that they were aware of the fact that they were 

told to go to work, and he called the No. 5 unit and determined 

that "everything was running o.k. 11 and that no other miners left 

the mine. Mr. Thomas'confirmed that at no time did Mr. Rainey 

inform him that anyone on Mr. Chandler's unit had voiced any 

health or safety complaint, and that after the men left, 

Mr. Patterson instructed him and Mr. Rainey to come to the 

surface so that he could find out why the men had left their 

working area (Tr. 352-354). 

Mr. Thomas stated that on October 17, 1989, Mr. Patterson 

instructed him to inform the miners who left their work area on 

the previous day to report to his office. Mr. Thomas then went 

to the man cage and instructed Mr. Chandler and the other seven 

miners on his crew to stand aside and not get on the man cage, 

and he informed them that the work assignments for that day i

9

·was in the office. 0 At that point in time, the rest of the 

who were waiting to ride the man cage underground went to 

lamp room and put up their lamps. Mr. Thomas stated that he 

gave them direct orders to go to work but they ignored him, and 

he concluded that their refusal to go to work constituted a 

strike or work stoppage. Mr. Thomas confirmed that he did not 

icipate in the disciplinary action decision taken against 

Mr. Chandler and the other seven miners on his working unit (Tr. 

35 357). 

On cross-examination, Mr. Thomas confirmed that Mr. Rainey 

told him that he had spoken with Mr. Patterson by telephone on 

October 16, about the situation underground, and Mr. Thomas 

considered Mr. Chandler and the other "group" of men on his unit 

to be 11 a good bunch to work with" (Tr. 359). 

410 
Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

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

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula 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): 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); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). 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,(1) it was also motivated by the 

miner's unprotected ~ctivities 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 Baich 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 

Fasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, U.S. , 76 L.ed.2d 667 (1983), 

where the Supreme Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

Donovan Va or 709 F.2d 86 (D.C. Cir. 1983); 

Sammons v. ., 6 FMSHRC 1391, 1398-99 (June 1984). 

As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in 

NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 

1965) ~ 

It would indeed be the unusual case in which the 

link between the discharge and the [protected] activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, 

411 
circumstantial or direct, the [NLRB] is free to draw 

any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June 

1982}, the Commission stated as follows: 

As we emphasized in Fasula, and recently 

re-emphasized in Chacon, the operator must prove that 

it would have disciplined the miner anyway for the 

unprotected activity alone. Ordinarily, an operator 

can attempt to demonstrate this by showing, for example, past discipline consistent with that meted to the 

alleged discriminatee, the miner's unsatisfactory past 

work record, prior warnings to the miner, or personnel 

rules or practices forbidding the conduct in question. 

Our function is not to pass on the wisdom or fairness 

of such asserted business justifications, but rather 

only to determine whether they are credible and, if so, 

whether they would have motivated the particular operator as claimed. 

Mr. Chandler's Protected Activity 

It is clear that Mr. Chandler has a right to make safety 

complaints about mine conditions which he believes present a 

hazard to his health or well-being, and that under the Act, these 

complaints are protected activities which may not be the motivation by mine management for any adverse personnel action against 

him; Secretary of Labor ex rel. Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786 (October 1980), rev'd on other grounds nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981), 

and Secretary of Labor ex rel. Robinette v. United Castle Coal 

Co., 3 FMSHRC 803 (April 1981). Safety complaints to mine 

management or to a section foreman constitutes protected activity, v. Interior Board of Mine Operations Appeals, 595 F.2d 

746 (D<C. Cir. 1978); Chacon, supra. However, the miner 1 s safety 

complaints must be made with reasonable promptness and in good 

faith, and be communicated to mine management, MSHA ex rel. 

Michael J. Dunmire and James Estle v. Northern Coal Company, 

4 FMSHRC 126 (February 1982); Miller v. FMSHRC, 687 F.2d 194, 

195-96 (7th Cir. 1982); Sammons v. Mine Services Co., 6 FMSHRC 

1391 (June 1984). 

412 
It is well settled that the refusal by a miner to perform 

work is protected under section 105(c) (1) of the Act if it 

results from a good faith belief that the work involves safety 

hazards, and if the belief is a reasonable one. Secretary of 

Labor/Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2 BNA MSHC 

1001 (1980), rev'd on other grounds, sub nom. Consolidation Coal 

Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Bradley v. Belva 

Coal Co., 4 FMSHRC 982 (1982). Secretary of Labor v. Metric 

Constructors, Inc., 6 FMSHRC 226 (February 1984), aff'd sub nom., 

Brock v. Metric Constructors, Inc., 3 MSHC 1865 (11th Cir. 1985). 

The reason for the refusal to work must be communicated to the 

mine operator. Secretary of Labor/Dunmire and Estle v. Northern 

Coal Co., 4 FMSHRC 126 (1982). 

In his posthearing submissions in support of his case, 

Mr. Chandler asserts that on October 16, 1989, "the fact that I 

was wet and cold caused a dispute to arise involving concern of 

my health and safety" (letter received January 8, 1991). 

Mr. Chandler cites a January 22, 1990, decision by a State of 

Illinois unemployment compensation referee in connection with 

Mr. Simon's claim for~benefif~ during his 5-day suspension period 

(Exhibit C-2). The ~referee found that Mr. Simon and the other 

miners who left the mine "were not unreasonable in refusing to 

work in wet clothing in a cold and windy location," and that this 

refusal "was not misconduct, as the employer's demands were 

unreasonable." The referee concluded that since the employer did 

not carry its burden of proof that Mr. Simon's suspension 

resulted from "misconduct," he was not disqualified under state 

law from receiving unemployment benefit credits. 

Mr. Chandler also cites a September 25, 1984, arbitration 

award in the case of Peabody Coal Company, Riverking #1 Underground, UMWA Local No. 1670, John Lambert and Sylvester Frisch, 

Case No. 81-12-84-1445 (Exhibit ALJ-1). Mr. Chandler stated that 

Mr. Lambert and Mr. Frisch decided to leave the mine early after 

becoming wet and cold, and that they were charged with an 

unexcused 11 early out. 11 Hr. Chandler asserts that "the arbitrator 

ruled that they were wet, chilled and concerned about their own 

health, and to some degree, safety, and did not act insubordinately in making their decisions. 11 Mr. Chandler suggests that 

his case is identical, and that he too was wet and cold on 

October 16, 1989, and was concerned about his health and safety 

and did not act insubordinately in making his decision to leave 

the mine. 

In a subsequently filed letter of February 4, 1991, 

Mr. Chandler enclosed a copy of a West Virginia Law Review 

article titled "Protected Work Refusals Under Section 105(c) (1) 

of the Mine Safety and Health Act," 89 W. Va. L. Rev 629 (1987), 

co-authored by the respondent's counsel Timothy Biddle, and a 

two-page excerpt from an unidentified source, listing several 

work refusal decisions, and a discussion of "Four prerequisites 

413 
for refusal to work." Mr. Chandler asserts in the letter that he 

communicated his complaint to his immediate supervisor "Lawrence 

Raines," but that when he left the mine on October 16, 1989, "I 

did not know what the law was on Safety & Health disputes," and 

that he acted in good faith in complaining about a reasonable 

health and safety concern. 

Congress created a unique statutory scheme under section 

105(c) of the Mine Act to preserve a miner's right not to be 

discriminated against for engaging in protected activity. The 

issues and standards of proofs presented in arbitration proceedings pursuant to collective bargaining agreements, or in state 

unemployment compensation proceedings brought before adjudicators 

and referees, are not the same as those presented in discrimination cases adjudicated pursuant to the Mine Act. An employee's 

rights pursuant to a collective bargaining agreement, or an 

applicant's qualification or disqualification from receiving 

unemployment compensation benefits, are different from the 

statutorily protected safety rights of miners. Accordingly, the 

weight to be accorded arbitrator's decisions is within the sound 

discretion of the Commission's trial judge, on a case-by-case 

basis. Although the-judge is not bound by such decisions, he may 

nonetheless give deference or weight to an arbitrator's "specialized competence" in labor-management matters. See: Chadrick 

Casebolt v. Falcon Coal Company, Inc., 6 FMSHRC 485, 495 

(February 1984); David Hollis v. Consolidation Coal Company, 

6 FMSHRC 21, 26-27 (January 1984); Secretary on behalf of Pasula 

v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on 

other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 

F.2d 1211 (3d Cir. 1981). 

In the Peabody Coal/Lambert and Frisch arbitration case 

cited by Mr. Chandler two miners who were specifically assigned 

to wash down some mine face machinery with a high pressure hose 

asked management for rainsuits to protect them from getting wet 

while doing this work. The miners were told that rainsuits were 

not available, and they were informed that they could use some 

brattice cloth as make-shift rain ponchos and could use some 

available v

1 community boots" to protect their feet. They declined 

to do either, and during the process of washing down the equipment, they got wet and soaked. After advising management that 

they were wet and cold, the miners left the mine and they were 

assessed with an iiearly-out" and given an unexcused absence. 

They were also docked for pay for the period they were absent. 

The issue before the Lambert-Frisch arbitrator was whether 

or not the brattice make-shift rain gear and community boots 

offer by management constituted suitable protective safety 

equipment which the company was required to provide pursuant to 

Article III, section (m) of the labor/management contract. 

Management took the position that the miners got wet because they 

failed to use the make-shift equipment available to them, and the 

414 
union took the position that the miners were put in an improper 

situation and that getting wet was a natural incident to being 

assigned the job in question. 

The Lambert-Frisch arbitrator found that the company had to 

do more than provide make-shift equipment, and that pursuant to 

the contract provision in question, the company was required to 

make available to employees, who are assigned washing duties, 

protective rain gear and over boots that adequately protect them 

from getting wet. In assessing a grievance penalty, the arbitrator concluded that the miners who left the mine took some responsibility for their action and knew that their unauthorized 

leaving would be charged as an unexcused absence or worse. Under 

the circumstances, the arbitrator denied their requests for pay 

during the time they were absent from work. However, after 

finding that there was never any direct confrontation between the 

miners and management about their leaving the mine, and after 

commenting that the miners "were wet, chilled, concerned about 

their own health, and to some degree, safety, 11 the arbitrator 

concluded that they did not act insubordinately in making their 

decision to leave, and he ordered that the unexcused "early-out" 

be removed from their records. 

I find that the facts presented in the aforementioned 

arbitration decision cited by Mr. Chandler are distinguishable 

from the facts in his instant discrimination case. The case 

before the arbitrator concerned a direct challenge and interpretation of a wage agreement provision requiring the mine operator 

to furnish protective clothing to miners under certain specific 

work assignment conditions, and the arbitrator's finding that the 

miners were not insubordinate was based on a lack of any evidence 

of any "confrontation" with management. Even so, the arbitrator 

held the miners accountable for leaving work without authorizationo In Mro Chandler 1 s case, the union did not pursue any 11 dry 

clothes" contractual dispute, there is no evidence that 

Mr. Chandler 0 s work assignments would have otherwise exposed him 

to any wet mine conditions, and his leaving the mine early did 

result in a "confrontation" with management. Under the circumstances, I have given little weight to the arbitration decision 

in question. 

I have given no weight to the state unemployment compensation referee 1 s finding that Mr. Simon was not disqualified from 

eligibility for receiving unemployment compensation during his 

5-day suspension period. As stated earlier, the issues presented 

in state unemployment compensation proceedings are different from 

those litigated pursuant to the anti-discrimination provisions of 

the Mine Act. I take note of the fact that the referee's finding 

in Mr. Simon's case was based on his conclusion that the mine 

operator had not established any "misconduct" on the part of 

Mr. Simon. Mr. Chandler's suspension was based on "insubordination," and not "misconduct." 

415 
At the hearing in this case, Mr. Chandler submitted a copy 

of the arbitration decision of November 6, 1989, denying 

Mr. Burnett's discharge grievance. The decision reflects that 

foreman Rainey, mine manager Thomas, and mine superintendent 

Patterson appeared at the grievance hearing on behalf of the 

respondent, and that Mr. Simon, Mr. Wisdom, and three of the 

other suspended miners appeared on behalf of Mr. Burnett. 

Mr. Chandler's name is not included among those who appeared. 

In sustaining Mr. Burnett's discharge, the arbitrator found 

that he and "the other crew members were guilty of refusing a 

direct order to go to work" by foreman Rainey (Exhibit C-4, 

Finding #1, pg. 4). The arbitrator also found that Mr. Burnett's 

telling Mr. Rainey that he wanted dry clothes or a ride out "set 

up a confrontation situation with Management in the form of 

giving an ultimatum to Management, 11 and that "this occurred after 

the issuance of the direct order by Mr. Rainey" (Exhibit C-4, 

Finding #2, pg. 4). The arbitrator also stated as follows at 

page 6 of his decision: 

We are well aware that mining coal is dangerous, hard 

work and conditions are often undesirable. Getting wet 

in a mine or working wet is one of those uncomfortable 

situations and we are not unsympathetic to any miner, 

Union or Management, under such circumstances. The 

Arbitrator has worked in extremely uncomfortable conditions, both in heavy industry and in military service. 

However, most assuredly Management cannot be blamed for 

a 50 or 100 year rainstorm (as described by the Union) 

which got employees wet before going into the mine. 

Mr. Burnett and the rest of the crew acted in defiance 

of Management's right to operate its facilities. The 

other employees at the mine worked. 

There is no evidence that Mr. Chandler or any of the other 

miners on his unit made or communicated any health or safety 

complaints to foreman Rainey or to any other member of mine 

on October 16, 1989, when they requested dry clothes, 

or before leaving the mine, Although Mr. Chandler stated in his 

that he was protecting his "health and safety rights" 

when he made his request for dry clothes, that he "got soaked 

comp n while walking from the supply building to the man 

1 and that he was "very cold" when he arrived underground, he 

not contend that these conditions constituted any health or 

sa hazards, nor did he assert that he communicated any such 

concerns to his foreman or any other members of mine management. 

Indeed, the record establishes that while Mr. Chandler had ample 

opportunity to communicate any safety or health concerns to the 

section foreman, mine manager, and mine superintendent, he did 

not do so. 

416 
Shuttle car operator Simon, who testified that he had a 

previous case of pneumonia, confirmed that he raised no safety 

issue with the section foreman or mine superintendent before 

leaving the mine on October 16, 1989, and he conceded that he did 

not hear Mr. Chandler make any safety complaints. Shuttle car 

operator Wisdom confirmed that he made no safety complaints on 

October 16, and he confirmed that he never heard Mr. Simon or 

Mr. Chandler raise any safety questions with the section foreman 

or indicate that working in wet clothes placed them at risk. The 

Burnett arbitration decision is totally devoid of any references 

to any safety complaints or safety issues raised by the miners in 

connection with their mine exit of October 16, 1989. 

Mr. Chandler 1 s belated claim that working in wet clothes 

posed a hazard to him was raised for the first time at the 

hearing, when he testified that his wet clothes presented a 

possible electrocution hazard if he were to handle electric cable 

"with wet sloppy clothing," and that he could get "chilled, catch 

pneumonia, and get sick and miss work" if he were working in the 

face area where there was 60 , _ _coo cubic feet of air per minute 

(Tr. 101). Mr. Chandler had not previously mentioned these 

safety or health concerns in his prior MSHA or Commission complaints. Further, at the hearing, Mr. Chandler conceded that at 

no time did he mention these asserted hazards to foreman Rainey, 

mine manager Thomas, or superintendent Patterson, and that he 

simply stated that he was "sopping wet and just wanted dry 

clothes" (Tr. 102). 

Having viewed Mr. Chandler during the course of the hearing, 

particularly with respect to the manner in which he handled 

himself in presenting his pro se case, he impressed me as a 

rather astute individual. In his posthearing letter received 

February 4 1991 1 Mr. Chandler asserts that he communicated his 

complaint to foreman Rainey, that he acted in good faith in 

complaining about a reasonable health and safety concern, and 

that when he left the mine on October 16, 1989, he was ignorant 

of the law concerning safety and health disputes. Mr. Chandler 1 s 

arguments are rejected. I believe that Mr. Chandler realized too 

late during the hearing that any viable claim of discrimination 

pursuant to the Mine Act with respect to a protected work refusal 

must be based on a bona-fide and sincere showing of a health or 

safety hazard. On the facts here presented, I cannot conclude 

that Mr. Chandler has made such a showing, and I find his belated 

claims to be less than candid and lacking in credibility. 

Even if I were to accept Mr. Chandler's assertions concerning his belated claims of hazards associated with working in wet 

clothes, there is absolutely no evidence that he ever communicated these concerns to mine management, even though he had more 

than an ample opportunity to do so. It has consistently been 

held that a miner has a duty and obligation to communicate any 

417 
safety complaints to mine management in order to afford management with a reasonable opportunity to address them. See: 

Secretary of Labor ex rel. Paul Sedgmer et al. v. Consolidation 

Coal Company, 8 FMSHRC 303 (March 1986); Miller v. FMSHRC, 

687 F.2d 194 (7th Cir. 1982); Simpson v. Kenta Energy, Inc., 

8 FMSHRC 1034, 1038-40 (July 1986); Dillard Smith v. ., 

9 FMSHRC 992 (June 1987); Sammons v. Mine Services Co., 6 FMSHRC 

1391 (June 1984); Charles Conatser v. Red Flame Coal Company, 

., 11 FMSHRC 12 (January 1989), review dismissed Per curiam by 

agreement of the parties, July 12, 1989, U.S. Court of Appeals 

for the District of Columbia Circuit, No. 89-1097. 

In Secretary of Labor ex rel. Paul Sedgmer, Jr., et al., v. 

Consolidation Coal Company, supra, the Commission affirmed a 

Judge's dismissal of a complaint filed by several miners who 

received a suspension with intent to discharge after concluding 

that the mine operator had a good faith belief that the complaining miners had engaged in a work slowdown. The disciplinary 

action taken by the operator was based on its conclusion that the 

suspended miners had engaged.in a slowdown and had violated a 

number of employee 9onduct rules governing insubordination and 

participation in a work stoppage or slowdown. In addressing the 

issue as to whether or not the miners conduct (operating equipment at a slow speed) was predicated on a reasonable, good faith 

belief that it would have been unsafe to operate it at a greater 

, the Commission accepted the judge's finding discrediting 

one of the miner's assertion that he raised safety concerns prior 

to the incident which precipitated the disciplinary action. The 

Commission observed that none of the other complainants raised 

any safety concerns with mine management before, during, or 

afterf the conduct in question. In affirming the judge's dismissal of the case, the Commission stated as follows at 8 FMSHRC 

309, with respect to the failure by the complaining miners to 

communicate any concerns to management~ 

While such communications are not only expected, 

in ordinary course, in work refusal situations, the 

absence also lends weight to the conclusion that the 

disagreement here as to operating speed did not have a 

sound basis in concerns. (Citing Sammons v. 

FMSHRC 1391, 1397 (June 1984). 

In Miller v. , supra, the Seventh Circuit Court of 

ls upheld a Commission Judge 1 s di of a discrimination 

complaint involving a section foreman"s refusal to start up a 

longwall mining machine which he believed was in an unsafe 

condition. The miner took no steps to report his refusal to 

start the machine to his supervisor, and in holding that the work 

refusal was not protected activity, the court stated as follows 

at 687 F.2d 196: 

418 
* * * * * * * 

Thinking our way as best we can into the minds of the 

Senators and Representatives who voted for the 1977 

amendments, we can imagine them wanting to allow miners 

to complain freely about the conditions of safety and 

health in the mine without having to worry about retaliation if the complaint was later determined to have 

been frivolous yet at the same time not wanting to 

render mine operators powerless to deal with miners 

who, simply by alleging a hazard to safety and health, 

claim a privilege to walk off. the job without notice. 

We are unwilling to impress on a statute that does not 

explicitly entitle miners to stop work a construction 

that would make it impossible to maintain discipline in 

the mines. 

As the complainant in this case, Mr. Chandler has the burden 

of establishing by a preponderance of the evidence that he made 

and communicated any safety qgmplaints to mine management, that 

management knew or haGl reason to know about the complaints, and 

that the adverse action (suspension) which followed was the 

result of the complaints and therefore discriminatory. In short, 

Mr. Chandler must establish a connection between the complaints 

and his suspension. See: Sandra Cantrell v. Gilbert Industrial, 

4 FMSHRC 1164 (June 1982); Alvin Ritchie v. Kodak Mining Company, 

Inc., 9 FMSHRC 744 (April 1987); Eddie D. Johnson v. Scotts 

Branch Mine, 9 FMSHRC 1851 (November 1987); Robert L. Tarvin v. 

Jim Walter Resources, Inc., 10 FMSHRC 305 (March 1988); Connie 

Mullins v. Clinchfield Coal Company, 11 FMSHRC 1948 (October 

1989). I cannot conclude that Mr. Chandler has established such 

a connection. 

The Work Refusal 

After careful review and consideration of all of the evidence and testimony in this case, I cannot conclude that 

Mr. Chandler had a reasonable, good faith belief on October 16, 

1989 1 that to work in wet clothes constituted a health or safety 

hazard, when he refused his foreman 1 s directive to go to work, 

and opted instead to leave the mine. The record establishes that 

Mr. Chandler and the rest of his working unit were dry when they 

arrived for work, and got wet when they left the shelter of the 

supply room and walked to the man cage in an unusual downpour of 

rain. Mr. Chandler conceded that he could have remained at the 

supply building, rather than walk in the rain to the man cage, or 

he could have asked the foreman to hold the cage until the rain 

ended. He did neither. Even though he was in close proximity to 

the supply room where some rain gear was stored, Mr. Chandler 

conceded that he made no attempts to ask anyone for rain gear 

before walking out in the rain. Although the entire working 

shift, consisting of three working units, were also exposed to 

419 
the soaking rain and got wet, there is no evidence that any of 

these other units asked for dry clothing, and they went to work 

without incident. 

Although Mr. Chandler claimed that the respondent, as a 

matter of practice in the past, routinely supplied dry clothing 

to employees, the evidence shows otherwise. What the company did 

supply was extra coveralls if an employee were exposed to oils or 

other contaminants, or rain gear and boots to those employees who 

were assigned work which would expose them to getting wet, or to 

employees who were expected to work in wet and muddy mine areas. 

I find no evidence that the respondent was obligated to otherwise 

furnish employees dry clothing or wearing apparel upon request. 

Under the union contract, the respondent was required to furnish 

safety equipment, but not personal wearing apparel such as 

clothing, shoes, boots where worn as part of normal footwear, 

hats, belts, and gloves. Instead, each employee, including 

Mr. Chandler, receives an annual clothing allowance of $150 to 

spend at their discretion. Mr. Chandler confirmed that he does 

not keep an extra set of work clothes at the mine, but does keep 

some items of personal clothing there. 

Mr. Chandler confirmed that he would not expect the respondent to furnish him with a top coat, gloves, and ear muffs to 

keep him warm if he were working in 15 degree temperature, but he 

believed that working in wet clothes was a different situation 

(Tr. 165). He further conceded that he would not expect the 

respondent to furnish him dry items of work clothes such as a 

shirt, overalls, and underwear, but would expect the respondent 

to furnish him with coveralls. 

Mr. Chandler testified that if he were furnished dry coveralls, he would have removed all of his wet clothing and worked 

only in his coveralls (Tr. 103). He confirmed that he has worked 

under wet mine conditions in the past 1 and had gotten wet while 

working 1 but not i

1 sopping wet. uu He stated that he would only 

want a 1 change of dry clothes if he were "sopping wet" and 

that the degree of wetness would make a difference (Tr. 64). 

Although I sympathize with Mr. Chandler's desire to perform 

his work comfort and with dry clothing, based on all of the 

testimony and evidence adduced in this case, I conclude and find 

that at most, Mr. Chandler has established that working in "wet, 

sloppy, clothing 11 presented an uncomfortable working condition, 

rather than a working condition that presented any real safety or 

health hazard. As noted earlier by the arbitrator in rejecting 

Mr. Burnett 1 s grievance, "getting wet in a mine or working wet is 

one of those uncomfortable situations and we are not unsympathetic to any miner, Union or Management, under such circumstances." In addition, the Commission recently held that 

discomfort is not a hazard justifying a protected work refusal. 

420 
See: v. Monterev Coal Co., 12 FMSHRC 1505 (August 

1990), where the Commission stated as follows at 12 FMSHRC 1515: 

Mining is not the most comfortable of professions. 

Many items of basic miner's apparel or gear such as 

clothing, personal protection equipment and other 

safety accessories (e.g., cap lamps and batteries, 

self-rescuers, hard-toed shoes and hard hats) contribute to the general discomfort of laboring in an underground mining environment. It is problematic, however, 

to compare such discomfort, in either type or degree, 

to the hazards heretofore at issue in work refusal 

cases brought before the Commission. 

In the final analysis, I am not persuaded that the "dry 

clothing" dispute which culminated in the group work refusal and 

exit from the mine by Mr. Chandler and the rest of the miners on 

his working unit had anything to do with any bona fide safety or 

health concerns. As noted earlier, there is no evidence that 

Mr. Chandler or any of the other miners who testified in this 

proceeding ever raised any sa~ety concerns or registered any 

safety complaints in connection with their wet condition, and 

there is no evidence that any health or safety issue was raised 

in the Burnett grievance. I believe that the dispute, which the 

evidence strongly suggests was instigated by Mr. Burnett, and 

which came about during a period of mine tension and labor unrest 

because of the ongoing Pittston strike, was based on a somewhat 

tenuous belief by the miners that the respondent had some duty or 

obligation to provide them with dry clothing before requiring 

them to go to work. Their requests, which management found 

unreasonable and impossible to fulfill, soon escalated into a 

full-blown work refusal and group exit from the mine, followed by 

a wildcat strike by the entire work force which shut down the 

mine and forced the respondent to obtain a court injunction to 

return the miners to worko 

Mr. Chandler agreed that the union could have pursued 

arbitration to seek redress of the dry clothing issue, but that 

it did not do so. Mr. Chandler was obviously unhappy with the 

unionRs decision not to pursue the matter further when he stated 

uuThatRs why rum here. Because the company nor the union has ever 

given me an answer on wet, sloppy clothing" (Tr. 155). In this 

context, and in the absence of any evidence of discrimination 

within the parameters of section 105(c) of the Mine Act, I am of 

the view that such disputes are best left to the union/management 

collective bargaining and grievance processes. It is not my 

function, nor is it within my jurisdiction, to mediate or arbitrate such disputes under the aegis of the Mine Act. 

421 
The Respondent's Motivation for Mr. Chandler's Suspension 

The respondent's policy and guidelines concerning "Early 

Out" (employees leaving work shift early), dated August 29 and 

September 15, 1989, state as follows: 

[E]mployees are expected to work their full shift 

unless prior authorization has been granted by management. Unauthorized early outs will subject employees 

to disciplinary action up to and including discharge. 

Disciplinary action will be determined on a case by 

case basis. (Exhibit R-1). 

Employee's leaving work early without notifying 

management, who participate in any group exits, claim 

sickness to avoid work assignments, or participate in a 

concerted effort to leave work early may be disciplined 

up to and including discharge under the relevant provisions of the Wage Agreement. (Exhibit R-1-A). 

The respondent's_credibl'e and unrebutted testimony establishes that Mr. Chandler was suspended for insubordination and 

for leaving the mine as part of a group exit prior to the end of 

his regular work shift. Mr. Chandler's suggestion that 

Mr. Thomas gave him permission to leave the mine is rejected. 

Mr. Chandler conceded that Mr. Thomas said nothing to him about 

leaving the mine, and I find no support for Mr. Chandler's 

conclusion that Mr. Thomas authorized him to leave the mine 

before his normal work shift ended. As for the insubordination 

charge, I find that the evidence clearly supports a conclusion 

that Mr. Chandler refused a direct order by foreman Rainey to go 

to work, and that this conduct by Mr. Chandler constitutes 

insubordination. 

In the course of the hearing, and in his posthearing letter 

received January 8, 1991, Mr. Chandler argued that he was not 

insubordinate because foreman Rainey gave him the option of going 

to work or going home, and he opted to go home. Mr. Chandler 

testified that after he requested dry clothing, Mr. Rainey made a 

phone call, and when he finished the call, Mr. Chandler claims he 

heard Mr. Rainey make the statement 11 go to work or go home, 11 but 

he believed that someone else instructed him to make that statement (Tro 82-85). Mr. Chandler had earlier testified that "the 

words he caught" from Mr. Rainey were "go to work or go home" 

(Tr. 18). Mr. Wisdom testified that he did not hear Mr. Rainey 

make the statement, and Mr. Simon testified that he may have been 

present when Mr. Rainey spoke with Mr. Chandler, and that it was 

his understanding that Mr. Rainey informed the working unit that 

Mr. Patterson had instructed him to tell the men to go to work or 

go home (Tr. 201-203; 221). 

422 
Superintendent Patterson denied that he ever instructed 

Mr. Rainey to give Mr. Chandler and the other miners an option to 

go to work or go home, and he indicated that such a statement was 

contrary to years of supervisory training and instructions that 

such options are never given. Mr. Patterson confirmed that 

Mr. Rainey denied making such statements. Although 

Mr. Patterson's testimony in this regard is hearsay, I find it 

credible and relevant and it is admissible. See: Secretary of 

Labor v. Kenney Richardson, 3 FMSHRC 8, 12 n. 7 (January 1981), 

aff'd 689 F.2d 632 (6th Cir. 1982), cert. denied, 77 L.Ed.2d 299 

(1983); Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135-1137 

(May 1984). I also take note of the following findings of the 

arbitrator in Mr. Burnett's grievance case (Exhibit C-4, pg. 4): 

1. Dale Burnett and other crew members were guilty of 

refusing a direct order to go to work which was 

issued by Foreman Lawrence Raines (sic) at the 

power center. 

2. Dale Burnett's telling Lawrence Raines (sic) (at 

the power center) that he wanted dry clothes or a 

ride out set up a confrontation situation with 

Management in the form of giving an ultimatum to 

Management. It is important to note that this 

occurred after the issuance of the direct order by 

Mr. Raines (sic). Mr. Rainey told Mr. Burnett in 

the presence of the crew that he didn't have the 

authority to get him dry clothes but he could get 

him a ride out. (Emphasis added). 

After careful consideration of all of the testimony and 

evidence, I find Mr. Chandler's testimony with respect to the 

purported 11work or go home" option by Mr. Rainey to be unreliable 

and less than credible. Mro Wisdom did not hear the statement 

attributed to Mr. Rainey 1 and Mr. Simon 1 s testimony is too 

equivocal and speculative, and there is no indication that 

Mr. Simon personally heard the statement. There is no evidence 

that Mr. Chandler, Mr. Simon, or Mr. Wisdom said anything to mine 

manager Thomas about going home, even though they had an opportunity to do so when he met them at the man trip as they were 

leaving the section to go to the surface (Tr. 70-71). Mr. Thomas 

testified credibly that he reminded Mr. Chandler and the other 

men in the man trip that they had been instructed to go to work, 

and the Burnett arbitrator found that the crew refused a direct 

order by Mr. Rainey to go to work, and that Mr. Burnett's request 

for dry clothing or a ride out of the mine came after Mr. Rainey 

had issued his direct order. Having viewed Mr. Patterson in the 

course of his testimony, he impressed me as a credible and 

straightforward witness, and taking into account Mr. Wisdom's 

favorable opinion of Mr. Patterson as a superintendent, I believe 

that Mr. Patterson testified truthfully when he denied that he 

ever instructed Mr. Rainey to give Mr. Chandler and the other 

423 
miners an option "to go to work or go home," and when he testified that Mr. Rainey denied ever making such a statement. 

I find no evidentiary support for Mr. Chandler 1 s contention 

that his 5-day suspension was the result of management's intention to retaliate against him for any health or safety efforts on 

behalf of himself and other employees. Nor do I find any evidence of any disparate treatment of Mr. Chandler. With the 

exception of Mr. Burnett, who was dealt with more severely 

because of his work record, and Mr. Smith who willingly took a 

1-day suspension (an option also available to Mr. Chandler), all 

of the remaining miners on Mr. Chandler's work crew who refused 

to go to work and left the mine received the same 5-day suspension as Mr. Chandler. 

On the basis of the foregoing findings and conclusions, I 

conclude and find that mine management suspended Mr. Chandler for 

a violation of a company rule against leaving work early without 

authorization, and for insubordination for refusing a direct work 

order given to him by his fo~~man. I further find and conclude 

that management had g~od and sufficient business and disciplinary 

reasons for suspending Mr. Chandler, and that the suspension was 

justified. See: Bradley v. Belva Coal Company, 4 FMSHRC 982 

(June 1982); Paula Price v. Monterey Coal Co., 12 FMSHRC 1505 

(August 1990); Secretary of Labor/Chacon v. Phelps Dodge Corp., 

3 FMSHRC 2508 (1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 51 (D.C. Cir. 1983). 

ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of a preponderance of all of the credible testimony and 

evidence adduced in this case, I conclude and find that the 

complainant has failed to establish a violation of section 105(c) 

of the Acto Accordingly, his complaint IS DISMISSED, and his 

claims for relief ARE DENIED. 

~~0u0::~ Administrative Law Judge 

Distribution~ 

Mr. Kenneth L. Chandler, Box 174, Tilden, IL 62292 

(Certified Mail) 

Timothy M. Biddle, ., Claire s. Brier, Esq., CROWELL & MORING, 

1001 Pennsylvania Avenue, N.W., Washington, DC 20004-2505 

(Certified Mail} 

/fb 

424 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 15 '99l 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CARL STRATING, EMPLOYED BY 

SOUTH TEXAS AGGREGATES 

INCORPORATED, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

JINKS COLEMAN, EMPLOYED BY 

SOUTH TEXAS AGGREGATES 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-147-M 

A.C. No. 41-02976-05525 A 

Helotes Mine 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 90-148-M 

A.C. No. 41-02976-05524 A 

Helotes Mine 

DECISION 

Appearances~ J. Philip Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia 

for the Petitioner; 

Carl strating, south Texas Aggregates, Inc., 

Knippa, Texas, Pro se, and on behalf of 

Jinks Coleman. 

Before~ Judge Melick 

These consolidated cases are before me upon the petitions 

for civil penalties filed by the Secretary pursuant to 

Section llO(c) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et seq., the "Act," charging earl Strating and 

Jinks Coleman as officers and agents of a corporate mine 

operator, South Texas Aggregates, Inc., (South Texas) with 

knowingly authorizing, ordering, or carrying out two violations 

425 
by the named mine operator. 1 

Neither Strating nor Coleman dispute that they were both 

officers and agents of the cited corporate mine operator however 

they both dispute that they "knowingly authorized, ordered, or 

carried out" the cited violations of the corporate mine operator. 

The issues before me therefore are whether indeed there were 

violations as alleged and, if so, whether either Coleman or 

Strating, or both, acting as officers or agents of the corporate 

mine operator "knowingly authorized, ordered, or carried out" 

such violations. If it is determined that either Strating or 

Coleman, or both, acted in such manner then a civil penalty must 

also be assessed considering the appropriate criteria under 

section llO(i) of the Act. 

strating and Coleman, are first charged in Dockets No. 

CENT 90-147-M and CENT 90-148-M respectively with knowingly 

authorizing, ordering or carrying out the alleged violation of 

the corporate mine operator as charged in Citation No. 3278307. 

That citation reads in relevant part as follows: 

Excessive ~ydralid [sic} leaks due to chaffing 

(sic] high pressure, (2500 psi) lines in the engine 

compartment of the 275B Michigan front loader and the 

subsequent rupture of one of these lines caused the 

unit to explode in flames on December 14th, 1988. 

Flames rapidly engulfed the operator's cab due in part 

to missing protective panels. The operator jumped 

7 1/2 feet to escape the flames breaking both ankles. 

The hydralic [sic] leaks had been reported repeatedly 

on pre-shift inspection reports. This is an 

unwarrantable failure. 

Since Section llO(c) of the Act predicates individual 

liabil of a corporate agent or officer upon the finding of a 

violation of a mandatory health or safety standard by the 

corporate I am strictly limited in determining whether 

there indeed was individual liability under section llO(c) of 

1

Sect llO(c) of the Act reads as follows: 

Whenever a corporate operator violates a mandatory heal th 

or standard or knowlingly violates or fails or 

refuses to comply with any order issued under this Act or 

any order incorporated in a final decision issued under 

s Act r except an order incorporated in a decision 

issued under subsection (a) or section 105(c), any 

director, officer, or agent of such corporation who 

knowingly authorized, ordered, or carried out such 

violation, failure, or refusal shall be subject to the 

same civil penalties, fines, and imprisonment that may be 

imposed upon a person under subsection (a) and (d). 

426 
Act to evaluation of only the precise allegations in the 

citations themselves and not allegations or charges of other 

violations that may have been stated elsewhere in the petitions 

for civil penalty. 

The essence of the charge in the citation is "excessive 

hydraulic [sic] leaks due to chaffing [sic] high pressure, (2500 

psi) lines in the engine compartment of the 275B Michigan frontloader and the subsequent rupture of one of these lines causing 

the unit to explode in flames on December 14, 1988". 

At hearings, however, the Secretary conceded that, despite 

thorough investigation of the explosion/fire on the cited loader, 

she was unable to determine the cause of the accident. Indeed 

she further conceded at trial that the one chafed hydraulic hose 

discovered after the fire was not in itself a safety defect for 

which the operator was chargeable--apparently because of its 

nearly inaccessible location on the loader. In light of these 

concessions it is clear that the Secretary has not proven the 

essential allegations in Citation No. 3278307. The charges 

herein against Strating and Coleman, based upon those 

allegations, must accordingly be vacated. 

In any event even if the Secretary had proven the existence 

of the cited violation, there is insufficient evidence that 

either of the Respondents had the requisite knowledge of such 

conditions before the accident at issue. The Commission defined 

the term "knowingly," in Kenny Richardson v. Secretary of Labor, 

3 FMSHRC 8 (1981), 689 F.2d 632 (6th Cir. 1982), cert denied, 461 

U.S. 928 (1983} as follows: 

"Knowingly", as used in the Act, does not have any 

meaning of bad faith or evil purpose or criminal 

intent. Its meaning is rather that used in contract 

law, where it means knowing or having reason to know. 

A person has reason to know when he has such 

information as would lead a person exercising 

reasonable care to acquire knowledge of the fact in 

question or to infer its existence 

We believe this interpretation is consistent with 

both the statutory language and the remedial intent of 

the coal Act. If a person in a position to protect 

employee safety and health fails to act on the basis of 

information that gives him knowledge or reason to know 

of the existence of a violative condition, he has acted 

knowingly and in a manner contrary to the remedial 

nature of the statute. 3 FMSHRC 16. 

While there is credible evidence that some management 

personnel i~cluding the victim's father, Billy Tucker, were 

apprised of some hydraulic oil leakage on almost a daily basis 

(and most certainly on December 12, 1988, two days before the 

427 
accident) there is no direct and insufficient circumstantial 

evidence that either Respondent herein was aware of uncorrected 

unsafe hydraulic oil leakage on the cited loader on the morning 

of the accident. While there is indeed credible evidence that 

both had been apprised from time-to-time of hydraulic oil leakage 

from the cited Michigan loader, the evidence does not show that 

they had been recently apprised of this problem or that previous 

efforts had not been made to correct this problem. Indeed even 

the loader operator himself acknowledged that the last and only 

time he reported such leakage directly to Mr. Strating was 1 or 2 

months before the accident and to Mr. Coleman some 3 or 4 weeks 

before the accident. In addition, while the service person 

responsible for replacing the lost hydraulic oil, Fred Vanwinkle, 

reported in a statement to investigators that he had complained 

to Carl (Strating) and Jinks (Coleman) about the so-called 

excessive leakage of hydraulic oil, the statement is ambiguous as 

to when VanWinkel complained specifically to the Respondents. 2 

Vanwinkle also reported in that statement that the first line 

manager responsible for repairing the loader was Frank Bluemel, 

the mine superintendent. 

The evidence also shows that the Michigan loader was 

frequently undergoing repairs to correct hydraulic oil leakage 

problems and was worked on as recently as the Saturday before the 

accident. It is also clear that it was in the economic self 

interest of the Respondents, because of the high cost of 

hydraulic oil, to remedy any excessive hydraulic oil leakage. 

The service records in evidence (Exhibit s-10, reproduced 

h8rein as Appendix A) for the cited Michigan loader do not, 

moreover 1 support the Secretary's position that there was such 

excessive daily oil leakage and such an absence of repairs that 

the Respondents should have had knowledge of uncorrected leakage 

in close proximity to the time of the accident. Indeed, the 

records show that on the day of accident, December 14, no 

hydraulic oil was added before the loader was operated and that 

on the day before only five gallons was added. While ten gallons 

had been added on December 12, the records show that none was 

added over the four preceding days. Thus, according to the 

Secretarygs own evidence the average daily consumption of 

hydraulic oil over that seven day period was only 2.1 gallons--

well within the limits of expected normal consumption. Even if 

the loader had not been used over that preceding weekend, and 

therefore eliminating those two days from the calculations, the 

average consumption of hydraulic oil over the preceding week was 

only three gallons per day--still within the normal range of 

expected consumption.In addition, mechanic Mo Garcia testified 

credibly that he had repaired a hydraulic leak on the loader only 

the Saturday before the accident. 

2

vanWinkle did not appear or testify at trial. 

428 
While several of the Secretary's witnesses also suggested 

that the consumption of hydraulic oil on the Michigan loader was 

about 25 gallons per day, the service records introduced by the 

Secretary (covering the period from November 2, 1988 to December 

14, 1988) show that on only one day was as much as 25 gallons of 

hydraulic oil added to the cited Michigan loader--and that for 

the following two days none was added. 

This documentary evidence is important for several reasons. 

One, it sheds doubt on the credibility of several of the 

Secretary's key witnesses and suggests that they may have been 

exaggerating the consumption of hydraulic oil on the Michigan 

loader, and, two, that the consumption over the week prior to the 

accident was within the acccepted normal range for such 

equipment. Accordingly, it cannot reasonably be inferred that 

the Respondents herein should have been on notice of any 

significant hydraulic oil leakage around the time of the accident 

for the simple reason that the records produced by the Secretary 

show that indeed there was not .... significant consumption of such 

oil during that time. - Thus I cannot find that the Secretary has, 

in any event, met her burden of proving that either Respondent 

Coleman or Strating "knowingly authorized, ordered, or carried 

out" the cited violation even assuming that there was a 

violation. Accordingly the charges that Strating and Coleman 

"knowingly authorized, ordered, or carried out" a violation as 

charged in Citation No. 3278307 must for this additional reason 

be vacated and dismissed. 

In each of these cases (Dockets No. CENT 90-147-M and 

CENT 90-148-M) Mssrs. Strating and Coleman were also charged 

with having "knowingly authorized, ordered, or carried out" the 

violation of the corporate mine operator charged in Order 

Noo 3063887" That Orderr as modifiedr reads in pertinent part as 

follows 

Defects on the Hough 560 front end loader were not 

corrected prior to continued operation which were 

hazardous to persons. The equipment was taken out of 

service for repairs to be completed but put back into 

service prior to completion. Defects are: Leaks in 

Hydraulic system, leaks in bucket cylinder-right side, 

leak in steering cylinder, hydraulic tank leaking, oil 

filter leaking, fuel system leak, brake fluid storage 

tank both left and right rear wheel cylinders leaking, 

inspection plates missing, both left and right hoist 

cylinder pressure hoses rubbed threw [sic] to inside 

metal covering, fuel/stop linkage disabled which 

required operator to dismount loader, walk to opposite 

side ot machine and manually cut off engine. 

429 
The Secretary's evidence regarding these allegations against 

Strating and Coleman is again insufficient. Whether or not there 

was a violation as charged, the evidence does not show that 

either of the Respondents had any knowledge or reason to know 

that the cited loader was placed in service on January 5, 1989, 

after having been taken out of service and parked for repairs. 

Indeed the fact that the cited loader had been taken out of 

service in the first place shows recognition by someone that 

defects indeed needed correction. The credible evidence shows 

that the pit foreman, Billy Tucker, approached mine 

superintendent Frank Bluemel that day advising him that a 

"shovel" had broken down and that he needed the cited Hough 

loader. The credible record shows that, without consulting 

anyone, Bluemel authorized Tucker to use the cited loader. Under 

these circumstances the fact that both Respondents may have 

previously been aware of hydraulic oil leakage and other problems 

with the Hough loader is immaterial. The credible evidence shows 

that it was Bluemel alone, or Bluemel and Billy Tucker together, 

who authorized the use of the Hough loader. Therefore, whether 

or not there was a violation of the mandatory standard charged 

in Order No. 3063887~ there ls irt~ufficient evidence that either 

Respondent Coleman or Strating, "knowingly authorized, ordered, 

or carried out" any such violation. The charges in the captioned 

cases relating thereto must accordingly be dismissed. 

ORDER 

Civil Penalty Proceedings Docket Nos. c 

CENT 90-148-M are hereby dismisse l. /,t 

1 

T 90-147-M and 

AU"'~-'\ .J 

~Az~,J~ Gary Melick 

· Administrative Law Judge 

Distribution: l 1 

J. Philip Smith, Esq., U.S. Departml~t of Labor, Office 

Solicitor, 4015 Wilson Boulevard, 4th Floor, Arlington, 

(Certified Mail) 

of the 

VA 22203 

Mr. Carl Strating, South Texas Aggregates, Inc., P.O. Box 217, 

Knippa, TX 78870 (Certified Mail) 

Mr. Jinks Coleman, South Texas Aggregates, Inc., P.O. Box 217, 

Knippa, TX 78870 (Certified Mail) 

nb 

430 
APPENDIX A_ 

Date Gallons of Hydraulic Oil Added 

and Day of Week 

LR-5 (Z230) 

Hough 560 Loader 175B Michigan Loader 

w 12/14 15 0 

T 12/13 5 5 

M 12/12 0 10 

s 12/11 20 0 

Sa 12/10 0 0 

F 12/9 20 0 

Th 12/8 15 0 

w 12/7 15 20 

T 12/6 10 15 

M 12/5 ' -0 . 5 

s 12/4 no record - no record 

Sa 12/3 0 5 

F 12/2 - no record - - no record - Th 12/1 - no record - - no record - w 11/30 - illegible - - illegible - T 11/29 10 0 ("OK") 

M 11/28 20 7 

s 11/27 - no record or illegible - Sa 11/26 - no record or illegible - F 11/25 - no record or illegible - Th 11/24 - no record or illegible - w 11/23 - no record or illegible - T 11/22 0 15 

M 11/21 5 10 

s 11/20 - no record - - no record - Sa 11/19 0 0 

F 11/18 - illegible - 0 

Th 11/17 10 25 

w 11/16 15 ~ illegible - T 11/15 10 0 

M 11/14 - no record or illegible - s 11/13 - no record or illegible - Sa 11/12 - illegible - - illegible - F i1r 1 20 0 

Th 11/10 - illegible - - illegible - w 11/9 - illegible - - illegible - T 11/8 7 0 ("OK") 

M 11/7 - no record or illegible - s 11/6 - no record or illegible - Sa 11/5 - no record or illegible - F 11/4 5 20 

Th 11/3 - illegible - - illegible - w 11/2 - illegible - 10 

431 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 15 !99i 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 90-160 

A.C. No. 46-06887-03519 

v. 

MACK ENERGY COMPANY, 

Respondent 

Docket No. WEVA 90-180 

A.C. No. 46-06887-03520 

Appearances: 

Before: 

Montague Mine 

DECISIONS 

Pamela s. Silverman, Esq., Office of the 

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

Virginia, for the Petitioner; 

Gerald P. Duff, Esq., HANLON, DUFF & PALEUDIS, 

St. Clairsville, OH 43950 (Certified Mail) 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the pet against the respondent pursuant 

to section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 820(a). Docket No. WEVA 90-160, concerns 

alleged violations of mandatory safety standards 30 C.F.R. 

§§ 77.410(a) (1), and 71.803(a), and Docket No. WEVA 90-180, 

concerns two alleged violations of mandatory safety standard 

30 C.F.R. § 77.1605(b). 

The 

were held in 

posthearing 

course of my 

filed timely notices of contests and hearings 

Charleston, West Virginia. The parties filed 

, and I have considered their arguments in the 

udication of these cases. 

The issues presented are (1) whether the cited conditions or 

practices constitute violations of the cited standards; 

432 
(2) whether the alleged violations were significant and substantial (S&S); (3) whether the alleged violations were the result of 

the respondent's unwarrantable failure to comply with the cited 

standards; and (4) the appropriate civil penalties to be assessed 

for the violations taking into account the civil penalty assessment criteria found in section llO(i) of the Act. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301, et seq. 

2. Sections 104(d) (1) and 110(1) of the Act. 

3. Commission Rules, 29 C.F.R. § 2700.l, et seq. 

Pretrial Rulings (WEVA 90-160) 

By motions received on Friday, November 30, 1990, the 

respondent moved to dismiss this case on the ground that the 

petitioner's proposals for assessment of civil penalties were 

untimely filed, and that one of the citations (No. 9960563), 

initially listed an improper section of the regulation. 

In the course of a pretrial telephone conference held with 

the parties on November 30, 1990, respondent's counsel was 

reminded of the fact that Chief Judge Paul Merlin issued a prior 

ruling on August 2, 1990, accepting the late filing of the 

petitioner's proposal for assessment of civil penalty. Respondent's counsel acknowledged that his file was incomplete and that 

he was unaware of this ruling when the motion was filed. I 

informed counsel that the record reflects that the petitioner's 

proposals were filed 20 days late, and that in the absence of any 

showing of prejudice, and in view of the decision in Salt Lake 

Countv Road Department, 3 FMSHRC 1714 (July 1981), Judge Merlin's 

prior ruling would stand and I reaffirmed it and denied the 

respondent's motion. 

With regard to the motion to dismiss Citation No. 9960563, 

on the ground that the citation initially cited an improper 

section of the Part 70 standards, counsel was reminded of the 

fact that the inspector subsequently modified the citation to 

cite section 71.803(a), instead of 70.508(a), and that the 

respondent has paid the proposed civil penalty assessment of $20 

for the violation. Counsel confirmed that including this issue 

as part of his motion was an oversight and it was withdrawn. 

Stipulations 

The parties stipulated to the following (Tr. 5-6): 

433 
1. The respondent is the operator of the Montague 

Mine. 

2. The respondent and the mine are subject to the 

Act. 

3. The presiding judge has jurisdiction to hear 

and decide these matters. 

4. MSHA Inspector Sherman Slaughter was acting in 

his official capacity when he issued the contested 

citation and orders. 

5. True copies of the citation and orders were 

properly served on the respondent or its agent. 

6. With regard to Docket No. WEVA 90-160, the 

respondent's history of prior violations consists of 

41 assessed violations which were issued during 

42 inspection days. The violation frequency rate is 

.97 assessed violations ~er inspection day, and 

reflects a moderate history of prior violations. 

7. With regard to Docket No. WEVA 90-180, the 

respondent's history of prior violations consists of 

43 assessed violations issued during 45 inspection 

days. The violation frequency rate is .95 assessed 

violations per inspection day, and reflects a moderate 

history of prior violations. 

8. The cited conditions and practices were abated 

by the respondent within the times fixed by the 

inspector. 

9. The respondent is a moderate size mine operator with a company annual production of 222,031 tons, 

and a mine production of 209,000 tons. 

10. With regard to Docket No. WEVA 90-180, petitioner9s exhibit G-4, is a true copy of the preshift 

examination report concerning the No. 71, R-50 rock 

truck. 

The parties agreed that the respondent has paid a $20 civil 

penalty assessment for section 104(a) Citation No. 9960563, 

issued by MSHA Inspector James M. Wills on January 11, 1990, for 

a violation of 30 C.F.R. § 71.803(a), and that this violation 

no longer in issue in Docket No. WEVA 90-160. 

434 
Discussion 

Docket No. WEVA 90-160 

This case concerns a section 104(d) (1) "S&S" Citation 

No. 3334094, issued by MSHA Inspector Sherman Slaughter on 

December 4, 1989. The inspector cited a violation of mandatory 

safety standard 30 C.F.R. § 77.410(a) (1), and the cited condition 

or practice is described as follows: 

The R-50 Euclid rock truck (Co. No. 76) being used 

to haul spoil at the mine was not equipped with an 

automatic alarm that would give an audible alarm when 

the truck was put in reverse or any other type of 

warning device (sic). This mine had ten citations 

issued during an eight month period (10/1/88 to 

6/30/89) for violations of 77.410, 30 CFR according to 

violation history contained in UMF. 

Docket No. WEVA 90-180 

This case concerns two section 104(d) (1) 11 S&S 11 orders issued 

by Inspector Slaughter on January 4, 1990. Section l04(d) (1) 11 S&S" Order No. 3334014, issued on January 4, 1990, cites a 

violation of mandatory safety standard 30 C.F.R. § 77.1605(b), 

and the cited condition or practice is described as follows: 

The Euclid R-50 rock truck (Co. No. 71) being used 

at the mine to haul spoil was not equipped with adequate brakes in that the truck could not be brought to 

a stop on the inclined haulroad where it was being used 

with a load and when the service brakes were applied 

and the truck was rolling before they were applied. 

The equipment operatoris preshift safety check list 

showed that the operator of the truck had reported the 

condition by checking the column "needs corrected" for 01 foot brakes. 11 The check list was dated 1/4/90 and 

signed by the equipment operator who according to the 

foreman, Grover Riddle, was the competent person who 

inspected the truck before it was placed in operation, 

Section 104(d) (1) 11 S&S" Order No. 3334015, issued on 

January 4, 1990, cites a violation of mandatory safety standard 

30 C.FoR. § 77.1605(b), and the cited condition or practice is 

described as follows: 

The Euclid R-50 rock truck (Co. No. 71) being used 

at the mine to haul spoil was not equipped with an 

adequate parking brake in that when the truck was 

stopped in the inclined area of the haulroad with the 

bed loaded and the transmission in neutral {the truck 

435 
backed up the incline and then put the truck in neutral) and the park brake applied the truck would roll 

off. The equipment operator's preshift safety check 

list showed that the operator of the truck had reported 

the condition by checking the column "needs corrected" 

for "parking brakes." The check list was dated 1/4/90 

and signed by the equipment operator who according to 

the foreman, Grover Riddle, was the competent person 

who reported the truck before it was placed in 

operation. 

Petitioner's Testimony and Evidence - WEVA 90-160 

MSHA Surface Coal Mine Inspector Sherman Slaughter testified 

as to his experience, training, and prior private industry work 

experience which included the operation of rock trucks. He 

confirmed that he has conducted several inspections at the mine 

beginning in June, 1989, and has spent in excess of 20 days at 

the mine during these inspections. He described the mine as an 

open pit surface mining operation with primarily level terrain 

and indicated that tbe coal ~s located approximately 65 to 

70 feet below the surface, and the coal is mined by removing the 

overburden and mining the coal "lift." He further stated that 

the mine has approximately 42 employees, and operates on two 

production shifts. The mine has six mechanics, and 13 to 

16 people work the evening shift, and there are approximately 

20 pieces of mining equipment at the mine at any given time (Tr. 

9-15) . 

Mr. Slaughter stated that based on his review of the respondent 1 s compliance and violation history, which includes "quite a 

few citations, 11 he believed that the respondent had a compliance 

problem which required "special emphasis" by MSHA's "target 

mines 11 programo He concluded that the respondent has an "above 

averageH compliance record for an operation of its size. 

Mr. Slaughter confirmed that he conducted an inspection at 

the mine on December 4, 1989, and he identified exhibit G-1, as a 

copy of h inspection notes for November 16, 1989, when the 

inspection began, as well as December 4, 1989, when he issued 

citation No. 3334094 (exhibit G-2). He confirmed that foreman 

Bud Connor accompanied him during the inspection (Tr. 16-20). 

Mr. Slaughter stated that he went to the pit area and 

observed a back hoe, a dozer, scrapers, and surface personnel 

coming in and out of the pit. He also observed the cited R-50 

Euclid truck in operation, and he requested the driver to operate 

the truck in reverse, and when he did, the reverse backup alarm 

did not work. Mr. Slaughter stated that the alarm is usually 

installed at the rear of the truck, and that when he and 

Mr. Connor looked for it they discovered that the truck had no 

alarm at all installed on it. Since section 77.410(a) (1) 

436 
required the truck to be equipped with a warning alarm which 

gives an audible alarm when it is put in reverse, Mr. Slaughter 

issued the citation (Tr. 20-22). 

Mr. Slaughter stated that he based his significant and 

substantial (S&S) finding on the fact that the pit where he 

observed the truck in operation was a small area with not much 

room, and the haulroad leading to the pit was congested. There 

were approximately six people working in the pit, and two haulage 

trucks were operating on their normal "haul cycle," and they 

would have to pull in and out of the pit area ramp while loading. 

Mr. Slaughter stated that he further considered the fact 

that service personnel would be in the pit area servicing the 

equipment, and if the trucks needed to be serviced they would 

direct the trucks to back up to be available for servicing. He 

also stated that personnel working in the pit would take their 

lunch breaks at the pit area, and that the haulage trucks would 

be the last vehicles to come in for the lunch period. The 

employees taking lunch, as well as a dozer operator, would be on 

the ground during this time. -··He confirmed that the citation was 

issued during the lunch hour, and while he observed people on 

foot, he could not recall whether any of the trucks were operating at that time. 

Mr. Slaughter stated further that service personnel signalling the truck would be on foot and that the driver sometimes 

eats his lunch in the truck with the engine running. If he 

decided to back up, the lack of a reverse alarm may not serve to 

alert personnel on foot that the truck would be backing up. He 

also indicated that a foreman drives a small pickup truck in and 

out of the pit and may not be paying attention to a truck which 

may be backing up (Tr. 22-30). 

Mro Slaughter stated that the truck in question weighs 

approximately 100,000 lbs and has a rated payload capacity of 

50 tons" The tires are approximately 6 feet high, and he confirmed that he has driven such a truck. He stated that the 

driver 1 s view to the rear through the rear-view mirrors would be 

obscured for a large distance, but that he could see out of the 

side windows. Based on all of these factors, Mr. Slaughter 

concluded that given the weight of the truck, the congested pit 

area, and the presence of other equipment and people on foot, it 

was reasonably likely that a fatal accident would occur if it 

were to back over someone. If the truck struck another piece of 

equipment, he believed it was reasonably likely that a 

n lost-time 11 accident, rather than a fatality, would occur (Tr. 

30-33). 

Mr. Slaughter further stated that he was aware of at least 

one fatal accident incident in his district where a dozer operator left his machine on a haulage road and was killed when he got 

437 
behind a truck and was run over. He also alluded to an MSHA 11 fatalgram11 which reflected a fatal accident when a rock truck 

backed over a pickup truck. He confirmed that the rock trucks 

"back up all the time" at the mine for different reasons (Tr. 

33-36). 

Mr. Slaughter stated that he based his "high negligence" 

findings and belief that the respondent engaged in "aggravated 

conduct" on the fact that the respondent had been previously 

cited 10 times for violations of section 77.410, which should 

have made it aware that it had a problem which needed to be 

corrected and that an inspection program was needed. He also 

believed that the lack of an alarm would be obvious to the 

back-hoe and dozer operator. He confirmed that the work shift 

began at 6:30 a.m., and that he issued the citation at 12:30 p.m. 

(Tr. 36-40). 

Mr. Slaughter believed that the 10 prior citations for 

violations of section 77.410, was "high," and he confirmed that 

he discussed this with mine management and advised them that 

there was a need to develop a safety program to address the 

problem and that if this weri-not dcine any future citations for 

violations of this standard would be "unwarrantable" violations 

(Tr. 44-45). 

Mr. Slaughter stated that he discussed the matter with mine 

superintendent Jack Wilfong. Mr. Slaughter confirmed that the 

respondent had a safety program, and it was his understanding 

that it was communicated to employees by giving them copies with 

their pay checks. He also confirmed that the respondent used its 

equipment operators as the competent persons to inspect their 

equipment, but he believed that the respondent needed to instruct 

the operators as to how they should conduct these inspections and 

needed to retrain them to report equipment conditions which 

needed attention (Tr. 45-49). 

Mr. Slaughter stated that during his discussions with the 

superintendent, the superintendent informed him that he was 

having problems with equipment break downs, and that "he tried to 

fix these things when they occurred on a priority bas 11 (Tr. 

9) 0 

On cross-examination, Mr. Slaughter confirmed that he was 

aware of no fatalities or injuries at the mine attributable to 

the lack of a reverse alarm on a piece of equipment. He also 

confirmed that the respondent 1 s truck operators were competent 

and well-trained in the operation of their equipment. He further 

confirmed that with the exception of the lunch hour, there was 

not much foot traffic in the pit area, and that those people on 

foot would generally observe a truck, and that service personnel 

would have their attention directed to the truck (Tr. 50-52). 

438 
Mr. Slaughter confirmed that he did not see any preshift 

inspection report concerning the cited truck. He reiterated that 

the truck was not equipped with a reverse alarm, but if it were 

so equipped, and did not sound when the truck was operated in 

reverse, he would have cited subsection (c) of section 77.410. 

He confirmed that he and foreman Connor looked for the alarm on 

the cited truck but could not find one installed on the truck. 

He agreed that a reverse alarm could break down after 6 hours of 

use (Tr. 53-56). 

Mr. Slaughter again confirmed that the equipment operators 

were used to inspect their equipment, and that in the event they 

did not report a condition which needed attention, mine management might not know about the condition. He confirmed that he 

was never present during any safety meetings at the mine, but 

conceded that they may have been held (Tr. 56). 

Mr. Slaughter confirmed that he terminated the citation on 

December 14, and he did not know whether the respondent may have 

corrected the condition earlier. All that he knew was that the 

reverse alarm was working properly when he again inspected the 

truck to terminate the citation. He believed that a reverse 

alarm on a truck would "get a person's attention to be on the 

look-out" for a truck operating in reverse. Mr. Slaughter does 

not recall speaking with the truck driver or what he may have 

said about the reverse alarm (Tr. 57-62). 

Petitioner's testimony and Evidence - WEVA 90-180 

Inspector Slaughter confirmed that he conducted a spot 

inspection at the mine on January 4, 1990, and he identified 

copies of his inspection notes of January 2 and 4, 1990 (Exhibit 

G-4). He also confirmed that he issued two section 104(d) (1) 

orders for inadequate service brakes and the parking brake on the 

cited truck in question (exhibits G-5 and G-6). 

With regard to Citation No. 334014, concerning the inadequate service brakes, Mr. Slaughter stated that he went to the 

mine to conduct a spot inspection of a back hoe. He noticed that 

the cited truck was in operation and he spoke with the driver and 

requested him to test the truck after he left the pit with a 

load. He asked the driver to apply the brakes when he drove down 

the inclined portion of the roadway, and when the driver applied 

the brakes the truck would not stop. The inspector confirmed 

that the driver informed him that the brakes would not hold or 

stop the truck. 

Inspector Slaughter stated that the procedure he followed 

for testing the truck was a normal method followed by MSHA 

inspectors and that this functional test is routinely done by 

inspectors to test the adequacy of brakes on an inclined portion 

of a roadway where a truck is normally used. He further stated 

439 
that the term "adequate" brakes means that a truck driver can 

stop and control a loaded truck while traveling on his normal 

route of travel after applying the service brakes, and in this 

case, he confirmed that the service brakes would not stop the 

truck when the driver applied the brakes (Tr. 84-90). 

With regard to Citation No. 334015, concerning the truck 

parking brake, Inspector Slaughter stated that the driver put the 

truck in neutral gear on an inclined portion of the roadway, and 

the brake would not hold. He confirmed that he requested the 

driver to apply the parking brake a second time under similar 

circumstances, and when he did, the brake would still not hold 

the truck. Mr. Slaughter confirmed that it was sometimes necessary to stop and park the truck on an incline when there was a 

breakdown. He confirmed that foreman Grover Riddle was with him 

when the truck was tested (Tr. 90-94). 

In support of his significant and substantial (S&S) finding 

with respect to the truck service brakes, Mr. Slaughter stated 

that he considered the fact that the haul road over which the 

truck operated was "up and do.wn" and that there was a 11 swag 11 at 

the intersection witlra roadway used as a normal approach to the 

pit. He also indicated that the main roadway would not allow two 

trucks to pass each other, and one truck would have to pull over 

and wait for the other one to pass. He also considered the fact 

that the left side of the roadway was elevated, as well as 

inclined, at an approximate grade of 7 to 10 percent, and that 

the swag area near the pit roadway was a "blind spot" except for 

a distance of 100 feet prior to the intersection (Tr. 94-99). 

Mr. Slaughter stated that the speed of the truck while 

traveling down the inclined portion of the roadway approaching 

the pit roadway intersection would be approximately 20 miles per 

hour, and that dozers, scrapers, and other rock trucks would be 

operating at the intersection as they exited the pit. Although 

the primary roadway was bermed with 40-to-45-inch high berms, he 

ieved that a loaded truck traveling down the inclined roadway 

with inadequate brakes would travel through the berm. He also 

believed that a truck driver who attempted to position his truck 

close to the pit hill to facilitate the loading of the truck 

would be exposed to a hazard of going over the hill if the brakes 

would not hold (Tr. 99-100). 

Mr. Slaughter confirmed that the trucks are equipped with 

transmission retarders which could serve as a braking device but 

that they are disconnected for longer transmission torque life 

and that there no requirement for the use of the retarders. 

Given the size of the truck, including its load, he believed that 

a fatal accident was reasonably likely and that one person would 

be at risk (Tr. 101-102). 

440 
With regard to the parking brake citation, Mr. Slaughter 

confirmed that he based his S&S finding on the fact that the 

truck is parked at different mine areas for different reasons. 

Although the driver informed him that the parking brake would not 

hold the truck and that he tried to park it in a low spot when it 

was necessary, Mr. Slaughter believed that the truck may be 

parked in an inclined area and "roll off" (Tr. 103). 

Mr. Slaughter stated that a truck driver may or may not get 

out of his truck when it is parked, and that he has observed 

trucks which were out of commission parked with the operator out 

of the truck. He confirmed that service trucks go the pit area 

to service equipment, and that employees eat their lunch at the 

pit. If a truck was to run over someone, he believed that it was 

reasonably likely that it would result in a fatal injury. 

Further, if a driver found what he believed was a "low spot" to 

stop and park his truck, this may not be the case, and if the 

truck rolled and struck someone, it would be reasonably likely 

that a fatality would occur. 

With regard to his "high" negligence findings with respect 

to both violations, -M'r. Slaughter stated that the truck driver, 

Harold Johnson, informed him that he had reported the fact that 

the brakes would not work for "the past three days." 

Mr. Slaughter identified exhibit G-7 as the equipment check-lists 

filled out by the truck driver, and he confirmed that Mr. Johnson 

provided him with a copy of his checklist for January 4, 1990, 

and that he (Slaughter) only became aware of the checklists dated 

January 2 and 3, 1990, shortly before the hearing. 

Mr. Slaughter confirmed that Mr. Johnson was designated by 

the respondent as the competent person to inspect the trucks, and 

that Mr. Johnson told him that he operated the truck because he 

would not have any other work to do and would be sent home if he 

did not drive it. Mr. Slaughter further confirmed that he 

discussed the matter with mine foreman Grover Riddle, but he 

could not recall what was specifically discussed. He further 

confirmed that he did not know what was wrong with the brakes and 

terminated the orders after finding that the service brakes and 

parking brakes would stop and hold the truck (Tr. 117-125). 

On cross-examination, Mr. Slaughter stated that there are no 

MSHA guidelines for determining the adequacy of brakes pursuant 

to section 77.1605(b), and that he relies on his experience with 

the equipment to make such a determination. He confirmed that 

the driver, Mr. Johnson, was alone in the truck and that he 

(Slaughter) did not know how hard Mr. Johnson applied the brakes 

or whether he in fact made an honest effort to apply the brakes. 

He confirmed that he knew that Mr. Johnson applied the brakes 

because he heard the noise made by the air valves. He further 

confirmed that the truck brakes were air-over-hydraulic, and that 

441 
he did not ride in the cab with the driver because the truck only 

has one seat. 

Mr. Slaughter confirmed that the truck driver on the first 

shift (Roach) also filled out check-lists for his inspections of 

the truck and found nothing wrong with the brakes. He further 

confirmed that he did not speak with Mr. Roach or have him test 

the brakes during his shift. He stated that he was not aware 

that the prior citations involved any injuries or fatalities at 

the mine as a result of improper brakes on any of the respondent 1 s trucks, and he confirmed that the check-lists filled out 

by Mr. Johnson do not state that the truck was inoperative. 

Respondent's Testimony and Evidence 

Jerry Gomer, respondent's secretary and treasurer, identified exhibit R-A as a summary of the repairs made to the cited 

truck for December, 1989, and he stated that this reflects that 

extensive brake work was done on the truck. He also identified 

exhibit R-B as an MSHA Safety award presented to the respondent 

in 1988, and exhibit R-C as &-financial statement prepared by the 

respondent's accountaht reflecting an accrued loss of $540,000. 

Mr. Gomer believed that the payment of civil penalty assessments 

"would affect the viability" of the respondent (Tr. 158-163). 

On cross-examination, Mr. Gomer stated that payment of the 

proposed civil penalty assessments in these proceedings would 

probably not put the respondent completely out of business (Tr. 

164). Respondent's counsel confirmed that Mr. Gomer had no 

personal knowledge of the cited conditions or practices in these 

cases (Tr. 166). Mr. Gomer stated that the respondent has a 

safety program instituted by the State of West Virginia Department of Energy, that it is reviewed annually, and that he makes 

sure that each employee receives a copy of the respondent's 

safety program annual with their pay checks (Tr. 166). 

Findings and Conclusions 

Fact of Violation 

Section 104(d) (1} 11 s&s 1v Citation No. 3334094, December 4, 1989, 

(Docket No. WEVA 90-160) 

In this case, the respondent charged with a violation of 

mandatory safety standard 30 C.F.R. § 77.410(a) (1), for failure 

to equip the cited rock truck with an automatic backup alarm that 

would give an audible alarm when the truck was put in reverse. 

The cited standard provides as follows: 

442 
§ 77.410 Mobile equipment; automatic warning devices. 

(a) Mobile equipment such as front-end loaders, 

forklifts, tractors, graders, and trucks, except pickup 

trucks with an unobstructed rear view, shall be 

equipped with a warning device that --

(1) Gives an audible alarm when the equipment is 

put in reverse; * * * 

I take note of the fact that section 77.410(a) (1), is 

presently included in MSHA's Part 77 regulations, which were 

revised as of July 1, 1990. The citation was issued on 

December 4, 1989, and section 77.410, which was included under 

the Part 77 regulations revised as of July 1, 1989, provided as 

follows: 

Mobile equipment, such as trucks, forklifts, front-end 

loaders, tractors and graders, shall be equipped with 

an adequate automatic warning device which shall give 

an audible alarm when such equipment is put in reverse. 

Although the inspector cited section 77.410(a) (1), rather 

than section 77.410, he testified that section 77.410(a) (1), 

became effective in September, 1989, and the requirements of both 

standards with respect to backup alarms are identical (Tr. 53). 

I find no procedural defect in the citation, nor can I conclude 

that the respondent has been prejudiced by the inspector's 

citation of the revised standard, rather than the previous 

standard which was in effect at the time the citation was issued. 

The inspector testified that when he observed the truck in 

operation, respondent's foreman, Bud Connor, was with him. The 

inspector requested the driver to operate the truck in reverse, 

and when he did, the alarm did not sound. The inspector confirmed that when he and the foreman looked for an alarm, which is 

usually installed on the rear of the truck, it was discovered 

that no alarm was installed on the truck. The inspectorgs notes, 

made in the course of his inspection on December 4, 1989, reflect 

that upon inspection of the cited truck he noted that "the backup 

alarm would not work. (There was none on it)" (Exhibit G-1, pg. 

3 2) • 

In its posthearing brief, the respondent argues that the 

citation issued by the inspector is not clear as to whether there 

was an alarm on the truck and it was not working, or whether 

there was no alarm. Respondent also asserts that the preshift 

report did not show that the alarm was missing or inoperative. 

With regard to the preshift report, the inspector testified 

that he never reviewed any such report (Tr. 52). Further, the 

report is not a matter of record, and the respondent never 

443 
produced it at the hearing. Under the circumstances, the respondent's argument is rejected. The truck driver and the foreman 

who accompanied the inspector did not testify in this case, and 

the inspector's testimony, which I find credible, is unrebutted. 

The inspector confirmed that he cited a violation of section 

77.410(a) (1), because the cited truck was not equipped with a 

backup alarm that would give an audible alarm when the truck was 

operated in reverse (Tr. 53). He confirmed that if the truck 

were equipped with such an alarm, and simply did not function, he 

would have cited a violation of section 77.410(a) (c), which 

requires that such an alarm function (Tr. 53). 

With regard to the clarity of the citation, the respondent's 

counsel pointed out at the hearing that the statement on the face 

of the citation that the truck "was not equipped with an automatic alarm that would give an audible alarm when the truck was 

put in reverse" lends itself to different interpretations and 

could be construed to mean that an alarm was on the truck, but 

that it simply did not function. Counsel asserted that it has 

always been the respondent's ,impression that this was the case 

(Tr. 54-55, 91). I take note of counsel's statement that "we 

don't have any evidence on that point," and he asserted that the 

respondent's defense deals with the asserted "significant and 

substantial" and "unwarrantable failure" findings made by the 

inspector with respect to the violation (Tr. 82). 

In its answer of July 24, 1990, the respondent suggests that 

the cited truck may have been equipped with an alarm, but that it 

was simply inoperative. The answer was filed by the respondent's 

corporate president, Michael B. Mccort, and he asserts that it 

was difficult to maintain backup alarms in proper working order 

because of strong equipment vibrations and bumps inherent in 

surface mining operations. Mr. Mccort stated that "we know that 

the inspector had been informed by the operator of the piece of 

equipment, on several citations, that the backup alarm was 

working when he put the equipment in the dirt at the start of the 

shift. The inspector choose (sic} not to make note of that." 

However, Mr. Mccort did not testify in this case, and as noted 

earlier, the respondent presented no testimony with respect to 

the violation, nor did it present any evidence to support 

Mr. McCort 1 s suggestions that backup alarms may be breaking or 

malfunctioning because of broken wires due to any adverse working 

conditions. I also take note of Mr. McCort 1 s statement in his 

answer that 11 removing a piece of equipment from service for 

backup arm repairs is economically difficult." 

In view of the foregoing, I conclude and find that the 

petitioner has established a violation of section 77.410(a) (1), 

by a preponderance of all of the credible and probative testimony 

and evidence adduced in this case. Accordingly, the violation IS 

AFFIRMED. 

444 
Fact of Violation 

Section 104(d) (1) "S&S" Order No. 334014, January 4, 1990 (Docket 

No. WEVA 90-180) 

The respondent here is charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.1605(b), for inadequate service 

brakes on the cited rock truck. The cited standard provides as 

follows: 

§ 77.1605 Loading and haulage equipment; 

installations. 

* * * * * * 

(b) Mobile equipment shall be equipped with 

adequate brakes, and all trucks and front-end loaders 

shall also be equipped with parking brakes. 

* 

The inspector testified ~hat he observed the cited truck in 

operation during the eourse of his inspection, and that since it 

had been out of service when he conducted a prior inspection, he 

decided to inspect it. He informed foreman Grover Riddle, who 

was with him, that he would inspect the truck (Tr. 88). The 

inspector then spoke with the driver and informed him that he 

wanted to determine whether the brakes were adequate. The 

inspector asked the driver to load his truck, and that after he 

left the pit with his load, he was to tram up a steep incline on 

the haulroad, and after reaching the top of the hill "knoll," he 

was to apply his service brakes as he came down the roadway on 

the other side. The inspector testified that he positioned 

himself so that he could observe the truck, and when the truck 

came down the hill, the driver could not stop the truck with the 

service brakes and it rolled down into the hill 11 swag. 11 The 

inspector confirmed that he then spoke with the driver, and the 

driver informed him that the brakes would not hold or stop the 

truck (Tr. 8 9 ) . 

The inspector testified that it is difficult to determine 

whether the service brakes on a truck are working by simply 

examining and looking at the truck, and that for this reason, a 11 functional test" conducted on an inclined roadway where the 

truck is used. In his opinion, the phrase "shall be equipped 

with adequate brakes" found in section 77.1604(b), means "that 

this equipment would have brakes that will operate and stop coal 

loading equipment with the size loads that it carries" (Tr. 90). 

Since the truck service brakes would not stop the truck in 

question on the inclined roadway, he believed that they were not 

adequate within the meaning of the cited standard (Tr. 90). 

The inspector confirmed that he simply observed the driver 

in the truck, and that he (the inspector) did not try the brakes 

445 
(Tr. 92). The inspector confirmed that when he reinspected the 

truck to abate the violation, he found that the brakes would hold 

the truck after another similar "functional test." However, he 

had no knowledge of any brake repairs and did not know what was 

done to render them serviceable again (Tr. 129-131). 

The inspector confirmed that there are no firm guidelines 

for determining the adequacy of service brakes, and that any 

determination in this regard must be based on "your experience 

with the equipment" (Tr. 132). He further confirmed that he was 

not in the truck with the driver at the time the test was conducted, and although he did not know whether the driver pressed 

down on the brakes "easily" or "all the way, 11 he knew that he 

applied the brakes because he could hear the brake air valve (Tr. 

135). The inspector stated that he had confidence in what the 

driver was doing, and that "I was confident by the test that I 

gave on the truck that those brakes weren't good" (Tr. 138). He 

confirmed that MSHA's policy does not permit an inspector to get 

into a truck and try the brakes himself {Tr. 139), and that the 

truck in question only has se~ting for one person (Tr. 144). 

The inspector confirmed that he had no reason to question 

the competence of the driver with respect to his ability to 

inspect and drive the truck (Tr. 142). He stated that the driver 

was seated in a normal position in the truck, and he did not 

believe that it was difficult for him to apply the brakes (Tr. 

142). He confirmed that the "functional test" which he conducted 

by observing the driver operate the truck after instructing him 

to apply the brakes, was an acceptable MSHA method that he has 

regularly used (Tr. 145). 

The inspector could not state precisely how fast the fully 

loaded truck was traveling down the incline during the test, and 

he stated that the truck 11was free rolling all the way and 

stopped in the swag" He didn't have any brakes on the truck" 

(Tro 149) o He reiterated that he knew that the driver had 

applied the brakes because he could hear the air valves and that 

the truck did not stop and eventually came to a stop in the 

bottom of the swag (Tr. 150). 

The respondent argues that contrary to the cited truck 

driver 9 s belief that the brakes "need corrected," the day shift 

driver of that same truck listed the brakes as "OK" and that 

neither driver refused to operate the vehicle or to take it out 

of operation by nred tagging11 it. The respondent concludes that 

since the day shift driver found the truck "OK," this 

from a competent driver that the brakes were adequate. The 

respondent also concludes that its answers to petitioner's 

interrogatories show that the brakes were indeed adequate. 

The respondent takes the position that the test conducted by 

the inspector in support of the violation was inappropriate and 

446 
flawed in that the inspector was not in the truck with the 

driver, did not know whether the driver in fact fully depressed 

the brake, and simply relied on what the driver had told him. 

The respondent argues further that the inspector was speculating 

that the brakes would not hold the truck, and was not acting on 

his own personal knowledge, and made a subjective, rather than an 

objective determination with respect to the adequacy of the 

brakes. The respondent concludes that the cited standard sets no 

objective standard for such a determination, that the petitioner 

has failed to carry its burden of proof, and that its research 

"has not turned up any reported cases on facts such as are 

present here." 

With regard to the respondent's answers to the interrogatories in question, I find nothing in those responses which may 

serve as an evidentiary basis to support any conclusion that the 

cited brake were adequate, and the respondent's conclusions in 

this regard are rejected. The answers are simply denials and 

assertions that the brakes were adequate "all circumstances 

considered," that the driver:was experienced, and that "no 

accident of such a speculative nature has occurred." Such 

statements are hardly proof of the adequacy of the brakes. 

Further, although the truck driver and foreman who was present 

with the inspector when he conducted his test are readily identified by name, the respondent failed to call them as witnesses. 

The respondent's conclusion that the foot brakes were 

adequate because the day shift driver (Harold Roach) indicated on 

his preshift safety check lists that they were "OK" and that 

neither driver refused to operate the truck or to take it out of 

service are rejected. The day shift driver, as well as the 

driver who was driving the truck, did not testify in this case, 

and the inspector's credible testimony that the truck would not 

stopr and continued to roll freely when the driver applied the 

brakes, stands unrebutted. The inspectores notes made at the 

time of the inspection reflect that the service brakes would not 

stop the truck when it started down the inclined portion of the 

roadway where the inspector observed it (Exhibit G-4, pg. 6). 

The respondent's arguments attacking the credibil and 

reliability of the 11 function test" conducted by the inspector in 

support of the violation are not well taken and they are 

rejected. In a number of reported cases interpreting the meaning 

of the term 11 adequate brakes," such determinations were made by 

the inspectors through their inspections of the braking systems 

where certain defects were noted, or by tests conducted on the 

trucks by operating them on inclines to determine their braking 

or stopping capability. These cases are discussed in my 

January 15, 1988, decision in Highwire Incorporated, 10 FMSHRC 22 

(January 1988), and a summary of these cases follow below. 

447 
In Concrete Materials, Inc., 2 FMSHRC 3105 (October 1980), 

and Medusa Cement Company, 2 FMSHRC 819 (April 1980), Judge 

Melick and Judge Cook affirmed violations for inadequate brakes 

on haulage trucks based on tests conducted by the drivers by 

driving the trucks on inclines to determine their braking and 

stopping capability. In the Medusa Cement case, an MSHA inspector defined the term "adequate" as "capable of stopping and 

holding a loaded haul unit on any grade on the mine property." 

Judge Cook found that the test conducted by the inspector and his 

interpretation of the results obtained sufficiently established a 

facie case for inadequate brakes. 

In Minerals Exploration Company, 6 FMSHRC 329, 342 (February 

1984), Judge Morris affirmed an "inadequate brake" violation 

based on an inspector's observation that the cited water truck 

was "pulling very hard to the right." Testimony by the operator's foreman reflected that the brakes on the truck had been 

relined 2 weeks before the citation was issued. 

In Turner Brothers, Inc."·· 6 FMSHRC 1219, 1259 (May 1984), 

and 6 FMSHRC 2125, 2;13-4 (September 1984), I affirmed violations 

of section 77.1605(b), for inadequate parking brakes on a coal 

haulage truck and an endloader based on tests which consisted of 

parking the equipment on an incline and setting the brakes to 

determine whether they would hold. In both instances, the brakes 

would not hold the equipment, and I concluded that the brakes 

were inadequate. Judge Melick made similar findings in another 

.:..:::=-"==--=-"'-'="-=-'=:...L.--==·r case, 6 FMSHRC 1482, 1483 (June 1984). 

In Wilmot Mining Company, 9 FMSHRC 684, 688 (April 1987), 

the Commission affirmed a judge's finding of a violation of 

77.1605(b), for inadequate defective brakes on a Terex 

front-end loader which was involved in a fatal accident. The 

j us finding was based on evidence which indicated that the 

brake master cylinder and an auxiliary brake cylinder were very 

low brake fluid, even though the brakelines, wheel cylinder 

and hydraulic brake 1 were intact, i.g., they had not leaked 

because of the accident. When tested at operating speed, the 

loader would not stop the normal expected distances. 

the operator 1 s contention that the evidence did not 

the judge 1 s finding as to the cause of the inadequacy of 

the brakes, the Commission stated in pertinent part as follows at 

9 FMSHRC 688~ 

To prove a violation of this standard, however, the 

Secretary is not required to elaborate a complete 

mechanical explanation of the inadequacy of the brakes. 

A demonstrated inadequacy itself may be sufficient. 

* * * Whatever the precise cause of the breaking 

defect, the evidence amply supports the judge's finding 

that the Terex was not "equipped with adequate brakes, 11 

in violation of the cited standard (emphas added). 

448 
I conclude and find that the unrebutted and credible testimony of the inspector, including the brake functional test which 

was performed under his supervision and observation, and which I 

find was reliable, proper, and reasonable in the circumstances, 

establishes that the cited truck service brakes were inadequate 

within the intent and scope of section 77.1605(b). While it is 

true that section 77.1605(b), which requires trucks to be 

equipped with adequate brakes has no specific requirement that 

the brakes be serviceable, I conclude and find that any reasonable interpretation of the intent of this standard requires that 

the brakes perform the function for which they are normally 

designed when they are on the truck, namely to stop the truck 

under normal operating conditions' when the brakes are applied. 

Under the circumstances, I further conclude and find that the 

petitioner has established a violation by a preponderance of the 

evidence, and the violation IS AFFIRMED. 

Fact of Violation 

Section 104(d) (1) "S&S 11 Orde~ No. 3334015, January 4, 1990 

(Docket No. WEVA 90-180) 

The respondent here is charged with a violation of mandatory 

safety standard 30 C.F.R. § 77.1605(b), for an inadequate parking 

brake on the same truck which was cited for inadequate service 

brakes. The cited standard required the truck to be equipped 

with parking brakes. 

The inspector testified that after completing his test 

concerning the service brakes, and after the truck had come to a 

stop in the roadway swag, he asked the driver to back the truck 

up the incline and to put the truck in neutral gear and to apply 

the park brakeso When he did, the parking brake would not hold 

the truck and the truck 1irolled back off" (Tro 91). This test 

was conducted more than once, and each time, the brake would not 

hold the truck, and the driver informed him that the parking 

brake would not hold the truck. The inspector's notes made on 

January 4, 1990, reflect that the truck would not stop when the 

parking brakes were applied (Exhibit G-4, pg. 7) o 

As noted earlier, the respondent called no witnesses for any 

testimony concerning any of the violations in these proceedings, 

and the inspector's testimony stands unrebutted. The respondent's arguments with respect to the inadequate parking brake 

violation are the same as those advanced with regard to the 

inadequate service brakes violation. The respondent argues that 

section 77ol605(b) simply requires that a truck be equipped with 

a parking brake, and does not require that such a brake be 

adequate. I have previously rejected identical arguments made in 

connection with violations of section 77.1605(b). See: Turner 

Brothers, Inc., 6 FMSHRC 1219, 1253-154 (May 1984), where I 

449 
concluded and found that a reasonable application of this standard requires that a parking brake perform the function for which 

it is intended, namely, to hold the truck against movement while 

it is in a parking mode, regardless of where it is parked. See 

also: Thompson Coal & Construction, Inc., 8 FMSHRC 1748, 1758 

(November 1986), upholding a violation for a defective parking 

brake on an end loader, where I stated as follows: 

Although the language of the standard implies that 

brakes other than parking brakes are to be adequate, I 

believe the clear intent of the standard is to be 

insure that all braking systems on such a piece of 

equipment be maintained serviceable and functionable so 

as to insure the margin of safety intended by the 

installation of these braking systems. Further, since 

the standard is obviously intended for the protection 

of the miners, any other interpretation would be contrary to the intent and purposes of the Act. * * * * 

For the reasons stated in my findings and conclusions, 

concerning the inadeq:1:1ate service brakes violations, which I 

herein adopt and incorporate by reference, including my prior 

decisions in Turner Brothers, Inc., and Thompson Coal & Construction, Inc., supra, with respect to the interpretation and application of section 77.1605(b), to a parking brake on a piece of 

mobile equipment, the respondent's arguments in defense of the 

violation are rejected. In the instant case, the credible and 

unrebutted testimony of the inspector establishes that when the 

parking brake on the cited truck was applied by the driver with 

the truck stopped in neutral gear on an incline, the brake would 

not hold or prevent the truck from moving or rolling. Under all 

of these circumstances, I conclude and find that a violation has 

been established by a preponderance of the evidence 1 and IT IS 

AFFIRMED. 

Significant and Substantial Violations 

A 11 significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or heal th hazard. 11 

30 C.F.R. § 814(d) (1). A violation is properly designated 

significant and substantial nif, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

450 
In order to establish that a violation of a mandatory safety standard is significant and substantial 

under National Gypsum the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that is, 

a measure of danger to safety-contributed to by the 

violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a 

reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, (August 1985), the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance witht.he language of section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC 

1866, 1868 (August 1984}; U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

In Halfway, Incorporated, 8 FMSHRC 8 (January 1986}, the 

Commission upheld a significant and substantial finding concerning a roof area which had not been supported with supplemental 

support, and ruled that a reasonable likelihood of injury existed 

despite the fact that miners were not directly exposed to the 

hazard at the precise moment of the inspection. In that case 1 

the Commission stated as follows at 8 FMSHRC 12~ 

[T]he fact that a miner may not be directly exposed to 

a safety hazard at the precise moment that an inspector 

issues a citation is not determinative of whether a 

reasonable likelihood for injury existed. The operative time frame for making that determination must take 

into account not only the pendency of the violative 

condition prior to the citation, but also continued 

normal mining operations. National Gypsum, supra, 

3 FMSHRC at 825; U.S. Steel Mining Co,, Inc., 6 FMSHRC 

1573, 157 4 (July 1984) . 

The respondent asserts that the inspector's "S&S'' findings 

with respect to all of the violations "are rather incredible." 

In support of its conclusion, the respondent argues that the 

mining areas in question are remote, with little, if any, pedestrian traffic, and that the cited trucks are large and heavy 

451 
pieces of "off road" equipment that travel slowly. The respondent asserts that the miners are knowledgeable and experienced 

workers who do not customarily come near the trucks or place 

themselves at risk by going behind them. Under these circumstances, the respondent concludes that it is highly unlikely that 

any miners would be careless around the trucks, and that any 

accidents are highly unlikely. The respondent cites the testimony of the inspector who confirmed that there has never been an 

accident or injury at the mine due to faulty brakes or the lack 

of a backup alarm, and the inspector's confirmation of the fact 

that the truck drivers are competent. The respondent also 

produced a copy of a safety award issued by MSHA in 1988, for its 

"Outstanding Safety Record" for a number of employee hours worked 

without a lost workday injury (Exhibit R-B). 

The respondent further argues that there was no indiscriminate foot travel near the cited trucks, and that except for 

service personnel, everyone would be in their vehicles. The 

respondent points out that the only time anyone would be near the 

trucks on foot would be during the lunch hour, and it finds 

"preposterous" and 11 incredible,'' the inspector's belief that 

miners or service personnel would be eating their lunch behind a 

truck while it was idling or that a driver would get in the truck 

and drive it in reverse during this time. The respondent concludes that the inspector•s belief that an injury would result 

from the cited brake conditions is speculative and that the 

inspector admitted that "This is not a normal thing, but it can 

happen" (Tr. 92). 

Backup Alarm Violation (Citation No. 3334094) 

The inspector's unrebutted and credible testimony reflects 

that at the time of his inspection, two rock trucks, a backhoe, 

dozers, and scrapers were working in the p where the cited 

truck was operating and that the backhoe was loading the trucks 

with fill material which would be hauled out to another area. 

The inspector described the pit area as "small and congested, 11 

and he indicated that one truck had to wait on a ramp outside the 

pit while another one was being loaded in the He confirmed 

that during the course of a shift, the cited truck would be 

backed up non numerous occasions" (Tr. 24, 28, 36). He stated 

that a backup alarm emits a 11 loud, piercing-type alarm, 11 that 

anyone hearing it would "automatically know something is backing 

up, 11 and that the intent of an alarm is to prevent an accident in 

the pit area where the truck is working in close proximity of 

other equipment (Tr. 60, 63). The inspector confirmed that he 

has operated the same type of truck which he c , and he stated 

that while one can see to either side of the truck through the 

rear view mirrors, the driver's view to the rear would be 

obscured and he cannot see directly behind him for any long 

distance (Tr. 31). 

452 
The inspector confirmed that when he was inspecting the 

backhoe during the lunch hour, he observed service personnel, and 

dozer and backhoe operators on foot, but he could not recall 

whether any of the trucks were in operation at that time (Tr. 

25). He further confirmed that with the exception of service 

personnel and the other equipment operators, who would be on foot 

during the lunch hour, any other miners in the pit area would be 

in their vehicles (Tr. 50). The inspector expressed his concern 

with the people who would congregate for lunch near the truck, 

particularly since the truck was usually the last piece of 

equipment to come into the pit and park during the lunch hour. 

He indicated that the truck driver, would either pull into the 

area where the miners were eating their lunch, or would back the 

truck up to park (Tr. 27-28). Although the inspector agreed that 

the people having lunch would see the truck coming into the area 

if they were looking at it, it was possible they would not see it 

if there was a lot of noise and they were not looking at it (Tr. 

51) . The inspector believed that any miners who may be in the 

proximity of the truck during the lunch hour could be run over if 

the driver, who sometimes leaves the engine running while having 

lunch, were to pull out and run over them (Tr. 63-65). 

Aside from any hazard exposure to the miners having lunch, 

the inspector believed that the greater hazard associated with 

the absence of a backup alarm on the cited truck was in regard to 

service personnel who would be greasing, fueling, or otherwise 

servicing the truck in the pit. He confirmed that service 

personnel usually are on foot next to their own vehicles when 

they signal the truck driver to either pull in or back in for 

servicing, and he indicated that they may not be paying attention 

to the truck or the driver, but would have their attention on the 

truck while it was being serviced (Tr. 24, 28, 52). The inspector also confirmed that during the hauling and loading cycle in 

the pit areas? which he has observed, trucks regularly backed 

into position next to the backhoes and dozers while loading and 

dumping, and the equipment operators are usually on foot when the 

trucks are being positioned, or they may be on foot preparing to 

go to lunch (Tr. 23-24; 62). 

The inspector further testified that in the course of normal 

mining operat , he has observed smaller vehicles operating in 

the pit, including a pickup used by the foreman who is regularly 

in and out of the pit, and small trucks used by the personnel who 

service the larger trucks. He confirmed that he has observed 

these smaller vehicles operating in the pit 11 a lot of times in 

and around these trucks 11 (Tr. 29-30). He believed that these 

smaller vehicles would be exposed to a hazard if they pulled in 

behind a truck and were not paying attention to it, or did not 

know whether the truck was preparing to move. The inspector 

believed that any injury to someone on foot or in a smaller 

vehicle which may be run over by a large rock truck "tends to be 

a fatal type injury" (Tr. 32). A rock truck backing over a 

453 
dozer, which is equipped with a protective canopy, would likely 

result in a ''lost time accident rather than a fatality (Tr. 33). 

Although the inspector agreed that the equipment operators 

working in the pit area, including the truck driver, were 

well-trained and competent operators, he confirmed that he was 

aware of two fatal accidents at other mining operations in his 

district. In one incident, a dozer operator backed up behind a 

coal truck and was run over and killed when he left his dozer and 

the truck backed over him. In the second, incident, a rock truck 

similar to the one he cited backed over a small pickup and killed 

the individual who was in it (Tr. 34-35). No testimony was 

forthcoming from the inspector as to whether or not the trucks 

involved in these incidents were equipped with backup alarms. 

The inspector believed that it was reasonable to expect that 

the cited truck, which operated in the small and congested pit 

area where other equipment was also operated, could back over 

someone if they failed to hear the backup alarm (Tr. 22). Taking 

into consideration the congested pit area where the truck and 

other equipment would-be operating, the presence of foot traffic 

and other smaller vehicles, and the hazard exposure which would 

be present in the absence of a backup alarm, the inspector 

concluded that it was reasonable to expect "that some time or 

other this truck would back over someone that wasn't aware that 

it was backing up because it had no alarm on it" (Tr. 32). 

After careful consideration of the testimony of the inspector with respect to the hazard associated with the miners who 

were on foot in the pit area during their lunch break, I cannot 

conclude that there was a reasonable likelihood of an accident or 

injury with respect to these individuals. The inspectors conclusions that an accident or injury was reasonably likely in this 

scenario was based on a number of speculative variable, including 

the possibility that the miners would not see the truck if they 

were not looking at it, particularly if there were a lot of 

noise, and the possibility of the truck driver pulling out after 

completing his lunch and running over the other miners eating 

their lunch. There no evidence as to the source of the 

no vu alluded to by the inspector, and since the equipment 

would be idle while the operators were eating lunch, the only 

other possible noise source would be the truck pulling into the 

area. I have difficulty believing that the miners having lunch 

would not see the truck or would deliberately place themselves at 

risk by eating their lunch in close proximity to a truck with its 

eng running while it was parked or while it was backing in. 

I conclude and find that the credible and unrebutted testimony of the inspector establishes that during a normal working 

shift before and after the lunch hour, the dozer and backhoe 

operators, as well as service personnel servicing the truck, 

would at various times be on foot in close proximity of the rock 

454 
truck which would be backing in for loading and dumping, and 

possibly for servicing. In the context of continuing mining 

operations, and in the absence of a backup alarm to alert or warn 

these individuals that the truck was backing up, particularly in 

a situation where the truck is operating in a small and congested 

pit area, and where the truck driver•s view to the rear of the 

truck is obstructed because of the size of the truck, I believe 

that one may conclude that it would reasonably be likely that a 

serious injury or accident would result if the truck were to 

strike a dozer, backhoe, or the equipment operators on foot in 

close proximity to the truck. I further conclude and find that 

the inspector's conclusion that the violation was significant and 

substantial was proper and reasonable in the circumstances 

presented, and his finding in this regard IS AFFIRMED. 

Service Brakes Violation (Order No. 3334014) 

The inspector testified that the inclined haulroad where thn 

truck operates was elevated approximately 45 to 50 feet from the 

bottom of the pit on the left~hand side of the road at an estimated grade of 7 to 10 percent. · ~e stated that after a truck 

travels over the high knoll and proceeds down the roadway into 

the swag, the road intersects at that point with another approach 

road to the pit where there is "cross traffic" consisting of 

other equipment and other rock trucks. The haulroad is not wide 

enough to permit trucks to pass at all locations, and the intersection at the approach road is a "blind area" where one truck 

would have to stop in order to see another truck coming down the 

inclined roadway. Any equipment or personnel going into the pit 

area would use the approach road, and the "blind area" would be 

"more or less 100 feet" from the intersection (Tr. 94-97). 

The inspector estimated that a loaded rock truck would be 

traveling 15 to 20 miles an hour down the inclined roadway, and 

that any traffic approaching the intersection would be traveling 

20 miles an hour. In addition to the rock trucks using the 

roadway, the inspector stated that dozers, scrapers, and service 

personnel and foremen would be working in the approach road area 

or would be using that road at different times, and they would be 

exposed to a collision hazard as a result of inadequate service 

brakes on the cited truck in question (Tr. 98-100). The inspector also believed that the truck would be at risk when it was in 

the pit fill area while the driver was attempting to get as close 

to the edge of the fill as he can to dump, and although there is 

a berm at that location, if the driver cannot stop because he has 

no brakes, he could back over the edge of the fill (Tr. 100). 

Further, although the roadway is bermed with 40 to 50 inch berms, 

if the driver were to get into the berm he could go through it 

because a berm is only intended to retain a vehicle, and it is 

not high enough to prevent a loaded truck from going through it 

(Tr. 100-101). 

455 
The inspector confirmed that the service brakes were the 

only means of stopping the truck, and that the transmission 

retarders are not used (Tr. 101). In view of the weight and size 

of the truck, and the speed at which it would be traveling, it 

was his judgment that any truck collision would probably result 

in a fatality to anyone struck by the truck (Tr. 102). 

Based on the credible and unrebutted testimony of the 

inspector, I conclude and find that the lack of adequate brakes 

capable of stopping the cited truck on the inclined portion of 

the roadway where it would normally travel in the course of a 

working shift presented a reasonable likelihood of an accident 

which would reasonably and likely be expected to result in 

injuries to the driver as well as to the other equipment operators and mine personnel exposed to such a hazard. The evidence 

establishes that the truck driver would be at risk if he were to 

travel over the edge of the pit fill area where he normally 

dumped his load if his brakes would not stop the truck, and he 

would also be at risk if he were to leave the inclined portion of 

the haulroad with a loaded t~μck and go through the berm. 

Further, both the driver and the other equipment operators using 

the pit approach road which intersected the haulroad on which the 

truck would be traveling would be at risk in the event of any 

collision resulting from the failure of the truck to stop because 

of inadequate service brakes. Under all of these circumstances, 

I conclude and find that the inspector's significant and substantial finding was reasonable in the circumstances presented, and 

IT IS AFFIRMED. 

Parking Brake Violation (Order No. 3334015) 

The inspector testified that while it was not normal for a 

truck driver to stop or park his truck on an inclined portion of 

the haulroad 7 11 it happens lots of timen if the truck were to 

break down or break a shaft coming out of the p (Tr. 92). 

The inspector confirmed that the mine terrain before any pits are 

developed is flat, but once the coal seam itself is developed, 

the pits are inclined areas and trucks hauling in and out of the 

pit area are operating in areas which are not level. He 

cated that service work may be performed on the haulroad, but 

that the trucks normal load, travel, and dump from one end of 

the p to the other end of the pit where the fill area is 

located {Tr. 67-68). 

In his inspection notes of January 4, 1990, the inspector 

noted that according to the driver of the cited truck, the truck 

was usually parked in a dip area were would not 11 roll off 11 

(exhib G-4, pgs. 7, 8). However, the inspector also noted that 

"if for some reason the truck had to be parked elsewhere (maybe 

catch on fire or break down) then there was not a brake to hold 

it. This made it reasonable to expect an occurrence. If the 

456 
truck did roll off the most severe injury that would occur would 

be fatal. 11 

The inspector testified that one of the reasons which 

contributed to his "S&S" finding was the admission by the truck 

driver that he knew the parking brake would not hold the truck 

and that he had to find a "dip or low point" to park the truck so 

that it would not roll off (Tr. 103). The inspector also testified that the truck is parked near the backhoe if that piece of 

equipment is down for any reason, and that the truck is also 

parked in a number of areas where it may be serviced, and when 

the driver eats lunch. The transmission will not hold the truck 

while it is parked, and the service brake is the only means of 

holding the truck while it is parked (Tr. 103). If the truck 

were parked in the pit area, service personnel and other equipment operators who may be parked behind the truck would be 

exposed to a hazard if the truck were to roll. The inspector 

stated that the only level area in the pit "is right on the 

coal, 11 and that the pit entrances and exits are inclined (Tr. 

105) . 

The inspector suggested that a truck driver may leave his 

vehicle parked unattended if he were to have a break down, or 

that he may leave the truck to talk to people, or for some other 

reason. He believed that a driver might park his truck in an 

area that he believes a low place, but that it may be slightly 

inclined and the truck might roll back to a lower place. He 

confirmed that he has observed a truck parked in a position where 

it could roll off while it was being serviced (Tr. 106-110). The 

inspector also believed that a truck parked in the area where 

miners are eating their lunch could roll off and place these 

miners at risk if they were down grade from the truck and the 

truck was pointed in their direction (Tr. 111-112). However, the 

inspector conceded that he did not observe any miners eating 

within the "zone of danger 11 of the truck which he cited, 

but he confirmed that he has observed this situation with other 

rock trucks (Tr. 112). There is no evidence as to whether these 

other trucks had any inadequate brakes, and the inspector conceded that the driver of the cited truck informed him that he 

used special precautions as to where he parked the truck because 

he knew the parking brake would not hold (Tr. 106). 

The inspector testified that it would be reasonable to 

expect that a fatality would occur if the truck were to roll off 

while it was parked because 11 if this truck runs over a person, 

it 1 s more than likely he will kill that person11 (Tr. 116). The 

inspector stated that the driver finds what he thinks a low 

spot and stops the truck and that "if he is right, will sit 

there, and if he's wrong, it will move" (Tr. 116). He believed 

that it would be reasonably expected that a truck would roll off 

457 
in the pit area where there are not many actual level spots (Tr. 

116). The inspector confirmed that the mine has never experienced any accident or injuries because of any inadequate making 

brakes or service brakes, and that based on the history of any 

such incidents at the mine in question, no accidents have 

occurred (Tr. 141). The inspector also confirmed that he had no 

reason to question the driver's competency to inspect or operate 

the cited truck (Tr. 142). 

After careful consideration of all of the testimony of the 

inspector, which stands unrebutted, I conclude and find that his 

determination that the violation was significant and substantial 

is correct. Although the inspector had no reason to question the 

driver's competency to drive or inspect the truck, I have serious 

reservations about the competency of a driver who would consciously operate a truck knowing that the parking brake (and 

service brakes) were inadequate. Although the driver indicated 

to the inspector that he normally does not park on an incline, 

and took special precautions in this case because the brakes 

would not hold, the fact remq,ins that in the normal course of 

business, the drive:i::--would be traveling down an inclined roadway 

with inadequate parking brakes, as well as inadequate service 

brakes, and would likely place himself and others at risk. 

There no evidence to establish whether or not the area 

where the truck was parked during the lunch hour was inclined or 

level, and I no reasonable basis for any conclusion that 

those miners were exposed to any hazard. Indeed, the inspector 

conceded that these miners were not within the ''zone of danger." 

However, the inspector's testimony establishes that most of the 

pit areas where the truck would be stopped for servicing, or 

while loading and dumping, were inclined and not level, and he 

confirmed that he has personally observed trucks parked in a 

position where they could roll off and injure someone. Further, 

while it may be true that a truck may not normally be serviced on 

an inclined haulroad, in the event of an emergency or a breakdown 

on the inclined portion of the haulroad, the lack of an adequate 

parking brake, which was the only means of holding the truck 

while it was stopped or parked, would the driver, and 

possibly other drivers who used the haulroad, at risk. 

Further if the truck were parked or stopped in an inclined pit 

area in close proximity of other servicing and operational 

equipment, could roll off and collide with such equipment. 

Under all of these circumstances, I conclude and find that this 

violation was significant and substantial, and the inspector 1 s 

finding IS AFFIRMED" 

The Unwarrantable Failure Issues 

The governing definition of unwarrantable failure was 

explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided 

458 
under the 1969 Act, and it held in pertinent part as follows at 

7 IBMA 295-96: 

In light of the foregoing, we hold that an inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to 

comply with such standard if he determines that the 

operator involved has failed to abate the conditions or 

practices constituting such violation, conditions or 

practices the operator knew or should have known 

existed or which it failed to abate because of a lack 

of due diligence, or because of indifference or lack of 

reasonable care. 

In several subsequent decisions concerning the interpretation and application of the term "unwarrantable failure," the 

Commission further refined and explained this term, and concluded 

that it means "aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of 

the Act." Energy Mining Corporation, 9 FMSHRC 1997 (December 

1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 

1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 

249 (March 1988). Referring to its prior holding in the Emery 

Mining case, the Commission stated as follows in Youghiogheny & 

Ohio, at 9 FMSHRC 2010: 

We stated that whereas negligence is conduct that 

is "inadvertent," "thoughtless" or "inattentive," 

unwarrantable conduct is conduct that is described as 

"not justifiable" or "inexcusable." Only by construing 

unwarrantable failure by a mine operator as aggravated 

conduct constituting more that ordinary negligence, do 

unwarrantable ilure sanctions assume their intended 

distinct place in the Act's enforcement scheme. 

In Emerv Mining, the Commission explained the meaning of the 

phrase 11 unwarrantable failure" as follows at 9 FMSHRC 2001: 

We first determine the ordinary meaning of the 

phrase iuunwarrantable failure. H 11 Unwarrantablen 

defined as nnot justifiable" or vvinexcusable. 11 11 Failuren is defined as "neglect of an assigned, expected, 

or appropriate action. 11 Webster 1 s Third New International Dictionary (Unabridged) 2514, 814 (1971) 

( 11Webster 1 s 11 ), Comparatively, negligence is the 

failure to use such care as a reasonably prudent and 

careful person would use and is characterized by 

"inadvertence," "thoughtlessness," and "inattention." 

Black's Law Dictionary 930-31 (5th ed. 1979). Conduct 

that is not justifiable and inexcusable is the result 

of more than inadvertence, thoughtlessness, or 

inattention. * * * 

459 
Backup Alarm Violation 

The respondent argues that there is no proof of any unwarrantable failure in that the cited backup alarm was not proven to 

have been listed as broken or absent, and it is not known how 

long it was not in compliance--if at all. The petitioner argues 

that the circumstances presented indicates that the respondent 

displayed a high degree of negligence amounting to aggravated 

conduct in allowing the violation to occur. In support of this 

conclusion, the petitioner points out that on November 16, 1990 

(sic), the inspector discussed the requirements of section 

77.410(a) (1) with mine management and indicated his concern with 

the respondent's previous compliance with this standard, as 

reflected in its history of prior violations, and instructed the 

respondent that it needed to take affirmative steps to improve 

its compliance with this standard. I take note of the fact that 

the violation in question was issued on December 4, 1989, and 

considering the petitioner's assertion that only "days later" 

after the inspector spoke with management, the respondent permitted the truck to be operated without a backup alarm, the petitioner's statement that the inspector spoke to management on 

November 16, 1990, appears to be a clerical error. 

The petitioner further argues that the situation presented 

is not one in which the alarm was present, and simply failed to 

function for mechanical reasons. Petitioner points out that the 

alarm, which should have been situated on the rear of the truck, 

in plain sight, was simply not there, and that the truck was 

operated for at least 6 hours on the day in question under 

conditions which should have made the violation obvious to 

everyone in the area. 

The inspector testified that his review of the "mine file" 

prior to his inspection reflected that the respondent had previously been cited 10 times over an 8-month period vv for this 

condition1u (Tro 36) o His inspection notes confirm that he 

reviewed the history of prior violations, and found 10 prior 

citations of section 770410, and he noted that "violations of 

770410 should be unwarrantable based on this history'' (Exhibit 

G-1) o The inspector testified that based on this history, he 

concluded that the respondent had failed to make an effort or 

take steps to develop and implement an equipment inspection 

program to preclude such violationso He stated that the history 11 exhibits what we call aggravated conduct on their part and we 

determined it to be unwarrantable conduct" (Tr. 36) o 

The inspector confirmed that he had a pre-inspection conference with the two representatives of mine management when he 

started his inspection on November 16, 1989, and that he discussed the respondent's safety program and the examination of its 

equipment, and pointed out that the respondent had received the 

10 prior citations. The inspector confirmed that he advised 

460 
management that "if a condition did exist, it was an unwarrantable type condition," and that if a safety program was not 

developed any future citations "would have to be unwarrantable" 

(Tr. 16, 44-45). The inspector testified that when he began his 

inspection in November, the respondent did not have a safety 

program posted, but that a copy was found by the superintendent 

and it was then posted. The superintendent informed him that 

copies of the program were distributed to the employees with 

their pay checks, but the inspector indicated that he never saw 

the checks or the safety statements (Tr. 45). 

The inspector further testified that any safety program 

should include some instructions or meetings with the equipment 

operators "to let them know when they have a problem" (Tr. 46). 

He confirmed that management informed him that safety meetings 

were held, and he confirmed that a safety program which was in 

booklet form, and which the respondent had "for a long period of 

time," was in fact posted (Tr. 47). The inspector confirmed that 

he never attended any safety meetings, and was unaware of any 

written materials concerning section 77.410, but he conceded that 

safety meetings may have been,held (Tr. 47). He further confirmed that foreman C6nner informed him that there were a lot of 

equipment breakdowns and repairs to be made and that he tried to 

"fix these things when they occurred on a priority basis" (Tr. 

49). Although the inspector indicated that he was unaware of any 

retraining for the equipment operators with respect to section 

77.410, he confirmed that they were well trained and competent 

equipment operators (Tr. 47, 50). 

The inspector confirmed that the respondent utilizes the 

equipment operators to conduct the preshift of the equipment, and 

he agreed that if an operator does not inform management of any 

condition that needs attention, or does not record it, management 

would be unaware of it unless it were verbally communicated by 

the operator (Tro 55-56) o However, the inspector believed that 

the lack of a backup alarm should have been obvious to the 

backhoe and dozer operators working the pit, and that the working 

shift had been in operation for 6-hours prior to his inspection 

of the truck. He could not recall where the foreman was located 

on the day in question (Tr. 38). 

The inspector confirmed that in the case of an alarm which 

may have been rendered inoperative because of a loose or pulled 

wire, he attempts to ascertain what may have happened. However, 

in the instant case, since he did not find any alarm on the 

truck, he could not recall any conversation with the foreman or 

the driver explaining the absence of the alarm (Tr. 70). He 

confirmed that the driver is required to examine his equipment 

before he operates it, and is required to fill out a preinspection safety checklist. However, in this case, he was not 

sure that the driver filled one out, and the foreman could not 

find one which is normally placed in his mailbox. The inspector 

461 
stated that the checklists filled out by the equipment operator 

at the start of his shift is placed in the box to be picked up at 

the end of the shift (Tr. 70-71). He also confirmed that this 

checklist system used by the respondent is required by state law 

(Tr. 72) . 

The inspector stated that section 77.404(a) requires the 

removal of unsafe equipment from operation, and that section 

77.1606(c) requires the inspection of equipment for defects, and 

the recording of needed repairs. However, he did not cite the 

truck in question with any of these violations, but did cite some 

other pieces of equipment (Tr. 73). 

The 10 previously issued section 77.410, citations reflects 

that they were all issued as section 104(a) citations. Six of 

the citations were "S&S," and they were issued at least 1 year 

earlier than the contested citation in this case. Four were 

non-"S&S" and were issued 7-months prior to the contested citation. The remaining violations for other standards were all 

issued as section 104(a) citations. This record does not reflect 

a history of unwarra~table failure violations. 

The inspector confirmed that the respondent has approximately 20 pieces of mobile equipment on the day shift that are 

required to be equipped with backup alarms, and he considered the 

previously issued 10 citations for violations of section 77.410, 

over an 8-month period to be "unusually high" (Tr. 42-43). 

However, copies of these prior citations were not produced by the 

petitioner, and the conditions which resulted from those violations are not known, and there were is no evidence that any of 

these prior citations involved rock trucks. Absent such information, I am unable to determine whether or not the previously 

cited conditions resulted from the absence of a backup alarm, or 

whether the alarms were on the equipment, and simply did not 

function for some reason. In the context of negligence, such 

information would be relevant in determining whether or not the 

respondent totally ignored the requirement for installing backup 

alarms on its mobile equipment, or whether the alarms were 

installed, but failed to sound because of any adverse working 

conditions or unforeseen mechanical malfunctions. 

On the facts of this case, I cannot conclude that the 

evidence presented by the petitioner establishes that the violation was an unwarrantable failure. Although the foreman and 

driver were both present, there is no evidence that the inspector 

made an attempt to ascertain why the alarm was missing, or the 

duration of its absence. Aside from the absence of any daily 

preshift report, which is apparently turned in by the driver at 

the end of the shift, there is no evidence that the inspector 

made any attempt to review any prior reports to determine whether 

or not the missing alarm had ever been reported, and there is no 

evidence that the driver was aware of the fact that the alarm was 

462 
missing, or whether he had reported it to the foreman. While it 

may be true that the absence of the alarm should have been noted 

during the course of the shift, the inspector apparently made no 

effort to interview any of the other equipment operators who may 

have been working in proximity of the truck while it was in the 

pit, and there is no evidence to establish that management was 

aware of the condition. 

Notwithstanding the petitioner's arguments to the contrary 

during the course of the hearing, on the facts of this case, I 

believe that the inspector was strongly influenced by the fact 

that the respondent had been previously cited for violations of 

section 77.410. I further believe that the inspector's finding 

of unwarrantable failure borders on a per se finding based on 

prior history. In my view, unwarrantable failure and negligence 

are distinct concepts, and the application of prior history to 

these determinations must be considered in context, and not in 

the abstract. Although prior history may be relevant in any 

finding of unwarrantable failure or the degree of negligence, 

Youghiogheny & Ohio Coal Company, supra, at 9 FMSHRC 2011, I 

believe it is but one ingredient which may be considered, but it 

is not the sole determining factor. I reject any notion that 

simply because a mine operator has been previously cited for a 

violation of a mandatory standard, he may at some future time be 

considered per se guilty of "aggravated conduct" for any repeat 

violations, regardless of the time frames or the facts and the 

circumstances associated with those prior violations. 

As noted earlier, the prior section 77.410 citations were 

issued 7 months or a year prior to the contested citation in this 

case, and the facts and circumstances surrounding the issuance of 

those citations are not in evidence. There is no evidence that 

any of those prior violations involved circumstances similar to 

those which were present in this case. 

I find no credible evidentiary support for the inspector 1 s 

belief that the respondent had no safety program, held no safety 

meetings or discussions with its equipment operators, and that 

the operators were not retrained. The inspector himself confirmed that the respondent had a long standing and posted safety 

program and that the equipment operators were well-trained and 

competent. The unrebutted testimony of the respondent's only 

witness reflects that the respondent has a safety program, that 

its preshift inspection system was in compliance with state law, 

and that MSHA had bestowed a safety award on the company for an 

accident free safety record. With regard to the asserted lack of 

safety meetings, the petitioner simply has not met its burden of 

proving that safety meetings were not held, and the inspector 

apparently spoke to no equipment operators or other mine personnel in this regard. 

463 
I find no credible or probative evidence of aggravated 

conduct by the respondent in connection with this violation, and 

I conclude and find that the petitioner has failed to establish 

an unwarrantable failure violation. To the contrary, I conclude 

and find that the violation resulted from mine management's 

inattention and failure to exercise reasonable care. Under the 

circumstances, the inspector's unwarrantable failure finding IS 

VACATED, and the section 104(d) (1) citation which he issued IS 

MODIFIED to a section 104(a) citation with significant and 

substantial findings, and as modified, the citation IS AFFIRMED. 

Service and Parking Brake Violations 

The respondent argues that the day shift truck operator 

repeatedly listed the brakes "OK," and that it is uncontested 

that the respondent had made extensive repairs and maintenance on 

the equipment in December, 1989, and that only minor adjustments 

were made after the violation was issued (exhibits R-1 and G-8). 

Under these circumstances, the respondent concludes that the 

truck was not neglected. The respondent also relies on my bench 

comments concerning the prior backup alarm citation, and whether 

or not a history of 10 prior citations may or may not support an 

unwarrantable failure violation (Tr. 76), in support of its 

argument concerning the cited brake conditions in this case. 

The petitioner points out that section 77.1606(a) requires 

the inspection of haulage equipment by a competent person before 

the equipment is used, and that any equipment defects affecting 

safety must be recorded and reported to the mine operator. 

Section 77.1606(c) requires that all equipment defects affects 

safety be corrected before the equipment is used. The petitioner 

argues that the respondent selected truck driver Harold Johnson 

to inspect the truck in question, and that on January 2, 3, and 

4, 1990 1 Mr, Johnson reported defects in both the service brakes 

and the parking brakes in his preshift examination reports 

(exhibit G-7), Since the reports are signed by foreman Grover 

Riddle, the petitioner concludes that mine management had actual 

knowledge of the defects, but took no action to correct the 

defects before the truck was used again. 

In response to the respondent 1 s contention during the 

hearing that there is no proof that a defect affecting safety was 

reported because the form filled out by Mr. Johnson merely 

indicates thc.t the parking and service brakes "need corrected," 

the petitioner argues that the form provides space for equipment 

operators to remark on 11 any other mechanical or safety defects, 11 

and that the plain meaning of this language is that this space 

used to remark on mechanical or safety defects than those 

already listed on the form. The petitioner points out that the 

form is one which is used by the respondent to record and report 

safety defects as required by section 77.1606(a), and it concludes that when taken as a whole, the part which was filled out 

464 
by Mr. Johnson is intended to be used for the reporting of safety 

defects. 

The "narrative findings" of the special assessment officer 

who assessed both of the brake violations, which are included as 

part of the pleadings filed by the petitioner, contain statements 

that "numerous citations have been issued during previous inspections at this mine for failure to maintain adequate service 

brakes and adequate parking brakes on mobile equipment." 

Two memorandums dated March 6, 1990, from MSHA's district 

manager to the director of the Office of Assessments, state as 

follows: 

Operating unsafe defective equipment at this mine 

appears to be normal and allowed by the operator. MSHA 

inspectors have is~ued numerous citations for these 

conditions in the past and the operator has not initiated any corrective action to assure adequate brakes 

(and adequate parking brakes) are maintained on the 

equipment; therefore, an ,extraordinarily high degree of 

negligence was determined. 

The petitioner's assertions that the cited brake violations 

were repetitious and that "numerous citations" have been issued 

at the mine for failure to maintain adequate service brakes and 

parking brakes are unsupported by any credible evidence and I 

have given it no weight. Aside from the fact that the petitioner 

produced none of the prior citations, the computer print-out 

reflecting the respondent's history of prior violations, submitted in WEVA 90-160, reflects no prior citations for violations 

of section 77.1605(b). Although the parties stipulated in WEVA 

90-180, that the respondent has a "moderate history of prior 

violations 11 consisting of 43 assessed violations, no further 

information or evidence was forthcoming with respect to those 

violations" Further, the "assessed violations 11 history served on 

the respondent by the petitioner during discovery simply list the 

total number of assessed violations issued during 1987 through 

1989 1 and it does not include a breakdown of those violations. 

After careful review of all of the evidence and testimony 

adduced in this case, the only support that I can find for the 

inspector~s unwarrantable failure findings lies in the equipment 

safety check lists signed by truck driver Johnson and countersigned by foreman Riddle. The inspector testified that when he 

spoke with Mr. Johnson on January 4, he informed him that the 

brakes were not working that day, as well as the previous two 

shifts, and that he had reported this on his checklists for all 

of these days (Tr. 127-128). The inspector's notes for 

January 4, reflect the following notation with respect to his 

conversation with Mr. Johnson: "When asked how long this condition had existed he said several shifts, specifically 1/4/90 and 

465 
the two preceding shifts. He said he had reported it each day on 

the check list" (Exhibit G-1, pg. 7). With respect to the 

preshift report of January 4, 1990, which Mr. Johnson showed to 

the inspector, the inspector's notes contain the following 

notation: "The condition was on the preshift check list and the 

company knew about it" (Exhibit G-1, pg. 9). 

The inspector confirmed that he discussed the brake conditions with foreman Riddle on January 4, but he could not recall 

the specifics of that conversation. With regard to the daily 

examination record books, the inspector's notes contain the 

following notations: "When Grover Riddle was asked to show the 

daily examination record book he did not have one. He said the 

book was in Jack Wilfong's truck which was not at the mine and he 

did not have any other book at the mine" (Exhibit G-1, pg. 10). 

The notes reflect that the inspector issued a citation, and I 

assume it was for not having the examination book at the mine. 

The inspector confirmed that he did not speak with the day 

shift truck driver Roach, and that he did not see the safety 

check list reports filled out by Mr. Roach, or the check lists 

filled out by Mr. Johnson for January 2 and 3, until the hearing 

in this case. Even if he had seen them, they would not have 

changed his mine because he was confident that the truck tests 

indicated that "those brakes weren't good'' (Tr. 137-138). 

The inspector further confirmed that M~. Riddle informed him 

that superintendent Wilfong picked up the checklists from the 

mailbox and took them with him when he left the mine on the 

evening of January 4, (Tr. 152). The inspector explained that 

except for the January 4, check list which Mr. Johnson showed him 

that day, and since the other reports were not at the mine, he 

did not at that time know that Mr. Riddle had countersigned the 

previous reports and had no reason for discussing them with him. 

With regard to Mr" Johnson°s January 4, check list report, the 

inspector stated that Mr" Johnson produced it that same day and 

that Mr. Riddle signed it at the time it was produced by 

Mr. Johnson (Tr. 154). The inspector confirmed that Mr. Riddle 

then informed him that he was not aware that the brakes would not 

hold the truck on the hill, but that he did not discuss with 

Mr. Riddle the reasons for his failure to do anything about it 

earlier (Tr. 154)" 

The record reflects that the day shift driver Roach marked 

his check lists for January 2, 3, and 4, 1990, "OK" in the spaces 

provided for reporting the condition of the service brakes and 

parking brakes, and that evening shift driver Johnson marked each 

of his lists for those same days "Needs Corrected" (Tr. 119-122)" 

In explaining the contradictory reports made by the two drivers 

of the same truck, the inspector stated "some operators just 

won't report that stuff, some will. That's the reason" (Tr. 

122). With regard to the earlier backup alarm violation, the 

466 
inspector suggested that an equipment operator may not report a 

defective condition because there may not be an extra truck for 

him to drive, and if he were unable to do any work, he would be 

sent home (Tr. 106-107). 

The evidence in this case reflects that the safety check 

list system used by the respondent required the equipment operator to check his equipment and to fill out the form at the 

beginning of his shift and to turn it in at the end of the shift. 

With regard to Mr. Johnson's check list for January 4, 1990, it 

would appear from the inspector's testimony that Mr. Johnson 

produced this report before his shift ended and after the inspector asked about it, and that Mr. Riddle signed it immediately. 

Under these circumstances, insofar as that day is concerned, I 

cannot conclude that Mr. Riddle had prior knowledge that 

Mr. Johnson had checked the brake conditions as "Needs 

Corrected." 

With regard to the check lists signed by Mr. Johnson on 

January 2 and 3, 1990, they are both countersigned by Mr. Riddle, 

and they were received in evid.ence without objection. Absent any 

evidence to the contrary, and based on the unrebutted testimony 

of the inspector, I conclude and find that Mr. Johnson submitted 

these reports to mine management and that foreman Riddle, for at 

least two working shifts prior to the inspection, knew or should 

have known that the service and parking brakes needed attention, 

or "Needs Corrected," as that phrase appears on the face of the 

forms. Under these circumstances, and as the responsible foreman, Mr. Riddle had a duty to at least inquire further as to the 

condition of the brakes, or to otherwise take corrective action 

to insure that the brake conditions which had been reported to 

him over a 2-day period were taken care of. Although a maintenance work report reflects that some work had been done on the 

cited truck on January 2 and 3, 1990 (Exhibit G-8), I find 

nothing on that report to establish that any brake work was done 

on those days" 

The fact that day shift driver Roach marked his safety check 

lists "OK" for the two prior shifts of January 2 and 3, 1990, is 

in my view irrelevant to the question of foreman Riddle's prior 

knowledge of the brake conditions as reported by Mr. Johnson. 

Mr. Roach and Mr. Riddle worked on different shifts, and 

Mr. Roach's check lists are countersigned by superintendent 

Wilfong, and not Mr. Riddle. Under the circumstances, there is a 

strong presumption that Mr. Riddle had no knowledge that 

Mr. Roach found the truck brakes "OK, 11 and any suggestion by the 

respondent that it relied on Mr. Roach's "OK" assessment of the 

brake conditions, or that this excuses Mr. Riddle's failure to 

act, is rejected. Insofar as Mr. Riddle is concerned, I conclude 

and find that his failure to act after he knew that the truck 

brakes in question needed attention was inexcusable and constituted a lack of due diligence to follow up on some potentially 

467 
hazardous brake conditions which he knew or should have known 

existed for at least two shifts prior to the inspection of 

January 4, 1990. I further conclude and find that Mr. Riddle's 

failure to take any action constitutes aggravated conduct with 

respect to both brake violations. Under the circumstances, the 

inspector's unwarrantable failure findings with regard to the 

service brakes and parking brake violations ARE AFFIRMED. 

The Unwarrantable Failure "Chain" 

In its posthearing brief, the respondent argued that the 

petitioner failed to prove the section 104(d) "chain" as to all 

three violations. Section 104(d) (1) of the Act authorizes an 

inspector to issue an unwarrantable failure citation if he finds 

a violation of any mandatory safety standard which does not 

constitute an imminent danger, but does involve conditions which 

the inspector believes are significant and substantial and which 

he believes resulted from an unwarrantable failure by the mine 

operator to comply with the requirements of the cited standard. 

Section 104(d) (1) further authorizes the inspector to issue an 

unwarrantable failurs= order'if, during the same inspection, or 

any subsequent inspection conducted within 90 days after the 

issuance of the initial unwarrantable failure citation, he finds 

another violation of any mandatory safety standard which he 

believes was also caused by an unwarrantable failure by the 

operator to comply. 

The record in this case reflects that the section 104(d) (1) 

unwarrantable failure citation issued by the inspector was issued 

on December 4, 1989. The two unwarrantable failure orders were 

subsequently issued by the inspector 30 days later on January 4, 

1990, and in each instance the inspector noted on the face of the 

orders that they were based on the previously issued underlying 

section 104(d) (1) citation. The inspector's unrebutted and 

testimony establishes that there were no intervening 

:nc1ean•1 inspections, that ngo days did not go by without another 

order" The 90 day period has to elapse before you get off that 

chain. 11 Under all of these circumstances, I conclude and find 

that the citation and orders issued by the inspector were procecorrectF and that all of the 11 chain 11 requirements found 

the Act for the issuance of such citations were followed by 

the inspector" However, in view of my vacation and modification 

of the initial underlying section 104(d) (1) citation rel on by 

the inspector to support his subsequently issued section 

104(d) (1) orders, those orders ARE MODIFIED to section 104(d) (1) 

citations, with 11 8&8 11 findings, and as modified, they ARE 

AFFIRMED. 

468 
History of Prior Violations 

The parties have stipulated that the respondent has a 

moderate history of prior violations and I have taken this into 

account in these proceedings. 

Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

The parties stipulated that the respondent is a moderate 

size mine operator. Although the respondent's 

secretary/treasurer Gomer believed that payment of the proposed 

civil penalty assessments will affect the "viability" of the 

company, he conceded that it would probably not put it out of 

business. Although the financial balance sheets produced by 

Mr. Gomer show an accrued loss, the accompanying letter by the 

C.P.A. who prepared the.reports contains a disclaimer with 

respect to any opinion concerning the financial statements taken 

as a whole, and the respondent has not produced any tax returns 

or net worth statements relative to its current financial condition. In the absence of any ±:urther credible evidence to the 

contrary, I cannot c9nclude that payment of the civil penalty 

assessments which I have made for the violations which have been 

affirmed will adversely affect the respondent's ability to 

continue in business. 

Negligence 

On the basis of my unwarrantable failure findings and 

conclusions with respect to the two brake violations, I conclude 

and find that these violations resulted from a high degree of 

negligence on the part of the respondent, and the inspector's 

findings in this regard are affirmed. With regard to the backup 

alarm violation 1 I conclude and find that the violation resulted 

from the respondent 1 s failure to exercise reasonable care, and 

that this constitutes ordinary and moderate negligence. 

Gravity 

In view of my "significant and substantial" (S&S) findings, 

I conclude and find that all of the violations which have been 

affirmed were serious. 

Good Faith Compliance 

The parties stipulated that the violations were timely 

abated by the respondent, and I have taken this into consideration in these proceedings. 

469 
civil Penalty Assessments 

On the bas of the foregoing findings and conclusions, and 

taking into account the six statutory civil penalty assessment 

criteria found in section llO(i) of the Act, I conclude and find 

that the following civil penalty assessments are reasonable and 

appropriate. 

Docket No. WEVA 90-160 

citation No. 

3334094 

3334014 

3334015 

12/04/89 

01/04/90 

01/04/90 

30 C.F.R. Section 

77. 410 (a) (1) 

30 C.F.R. Section 

77.1605(b) 

77.1605(b) 

ORDER 

Assessment 

$275 

$650 

$350 

The respondent IS ORDERED to pay civil penalty assessments 

in the amounts shown above within thirty (30) days of the date of 

these decisions and order. Payment is to be made to MSHA, and 

upon receipt of payment, these cases are dis~issed . 

Distribution~ 

~/e~ . $ A1Koutras 

/~ 

Administrative Law Judge 

Pamela So Silverman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203 (Certified Mail) 

Gerald P. Duffp Esqo, HANLON, DUFF & PALEUDIS CO., LPA, 46457 

National Road West, St. Clairsville, OH 43950 (Certified Mail) 

/fb 

470 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 15, 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 90-303 

A. C. No. 46-01452-03746 

Blacksville No. 1 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlement of 

the two violations involved in this case. The originally assessed penalty was $384 and the proposed settlement is $200. The 

Solicitor discusses the violations in light of the six statutory 

criteria set forth in section llO(i) of the Federal Mine Safety 

and Health Act of 1977. 

Citation No. 3314744 was issued for a violation of 30 C.F.R. 

§ 75.316. The approved ventilation plan was not being complied 

with at the 9 north and 10 north air course regulators because 

the wooden portions of the regulators had not been painted with 

fire resistant material. The proposed settlement would modify 

the citation to reflect that the violation was not significant 

and substantial. The originally assessed penalty was $192 and 

the proposed settlement is $100. The Solicitor represents that 

the reduction and modification are warranted because gravity was 

not as severe as had been first estimated. According to the 

Solicitor, the regulators in question were not located near any 

ignition source and were not likely to be exposed to flame or 

excessive heat except during a significant mine fire or explosion. In additionp there were no conditions in the mine at the 

locations of the regulators to suggest that such an event was 

likely to occur. I accept the Solicitor's representations and 

based upon them find that gravity was less than originally 

thought, Accordingly, I approve the recommended settlement and 

find that the citation should be modified as requested. 

Citation No. 3314753 was issued for a violation of 30 C.F.R. 

§ 75.316. The approved ventilation plan was not being complied 

with becauae one hundred eighty feet of energized power cable for 

the muck pump located at the No. 2 conveyor belt transfer was not 

support on well-insulated insulators. The inspector noted that 

the cable was lying on the damp pavement and that insulators had 

471 
not been installed. The proposed settlement would modify the 

citation to reflect that the violation was not significant and 

substantial. The originally assessed penalty was $192 and the 

proposed settlement is $100. The Solicitor represents that the 

reduction and modification are warranted because gravity was not 

as severe as had been originally thought. According to the 

Solicitor, the power cable was not usually handled or touched by 

miners and was in good shape. Moreover, the cable was fully 

protected by an undamaged outer jacket of hard rubber material. 

I accept the Solicitor's representations and based upon them find 

that gravity was less than originally thought. Accordingly, I 

approve the recommended settlement and the citation should be 

modified as requested. 

Accordingly, it is ORDERED that Citation Nos. 3314744 and 

3314753 be MODIFIED to delete the significant and substantial 

designations. 

It is further ORDERED that the proposed settlement be 

APPROVED and the operator PAY $200 within 30 days of the date of 

this decision. 

\~ 

\ • 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Page Ho Jackson, Esq., Office of the Solicitor, U. s. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Mro David Myers, UMWA, Route 1, Box 47-A, Morgantown, WV 26505 

( fied Mail) 

Mr" Barry Dangerfield, Consolidation Coal Company, P. o. Box 100, 

Osager WV 26543 (Certified Mail) 

/gl 

472 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 15, 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 90-307 

A. C. No. 46-01968-03878 

Blacksville No. 2 Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Merlin 

The Solicitor nas filed a motion to approve settlement of 

the four violations involved in this case. The originally assessed penalty was $924 and the proposed settlement is $672. The 

Solicitor discusses the violations in light of the six statutory 

criteria set forth in section llO(i) of the Federal Mine Safety 

and Health Act of 1977. 

Citation No. 2708200 was issued for a violation of 30 C.F.R. 

§ 75.316. The intake escapeway of the 12 L longwall panel did 

not have a constant air pressure from the intake escapeway to the 

track from the No. 2 block through the No. 23 block and including 

the area of the air lock haulage doors at No. 21 block. The 

proposed settlement would modify the citation to reflect that the 

violation was not significant and substantial. The originally 

assessed penalty was $450 and the proposed settlement is $300. 

The Solicitor represents that the reduction and modification are 

warranted because gravity was not as severe as had been first 

estimated. 

By way of background, the Solicitor discusses the 

requirements of the operator 1 s approved ventilation and dust 

control plan for the Blacksville No. 2 Mine. The plan requires 

that the operator maintain a constant air pressure from the 

intake escapeway to the track haulage entry on the 12L longwall 

panel. This provision was adopted because the operator elected 

to install air lock doors between the track entry and the intake 

escapeway entry to facilitate the movement of supplies to the 

working face of the section. The constant air pressure provision 

is intended to maintain the integrity of the intake escapeway in 

the event the air lock doors become damaged or open during a fire 

or other emergency in the track entry. In order to maintain the 

positive pressure differential, the operator hung a check curtain 

in the intake side of the longwall. Damage to the check curtain 

by the movement of equipment and men caused the violation. 

473 
According to the Solicitor, the violation was detected only 

when the air lock doors were open and that the when the doors 

were closed the violation was not readily apparent. The 

Solicitor further advises that the inspector was unable to 

quantify the volume of the air passing from the track entry to 

the intake escapeway when the air lock doors were not in use. 

And it is possible that the volume was small since the violation 

was abated by simply tightening the check curtain on the intake 

side of the section. In addition, the Solicitor avers that the 

air lock doors were only in use two or three times a shift for 

relatively short periods of time and that it was not likely that 

a fire or other emergency would occur in the track entry during 

the short period of time that the doors were utilized. I accept 

the Solicitor's representations and based upon them find that 

gravity was less than originally thought. Accordingly, I 

approve the recommended settlement and modification of the 

citation. 

Citation No. 3314981 was issued for a violation of 30 C.F.R. 

§ 75.515 because the conduit to the flow control switch of the 

No. 2 Peerless pump, located -in a crosscut two blocks down the 

empty track from tha rotary dump, had been pulled out of the 

fitting leaving the insulated wires loose to rub on the metal 

frame. The proposed settlement would modify the citation to 

reflect that the violation was not significant and substantial. 

The originally assessed penalty was $227 and the proposed 

settlement is $125. The Solicitor represents that the reduction 

and modification are warranted because gravity was not as severe 

as originally thought. According to the Solicitor, the ground 

flow switch is not on the pump but rather is a permanent 

installation surrounded by water, and, therefore, not generally 

handled by miners. The Solicitor further states that the switch 

is protected by a separate ground fault device. I accept the 

Solicitorus representations and based upon them find that gravity 

was not as severe as originally estimated. Accordingly, I 

approve the recommended settlement and the citation should be 

modified as requested. 

Citation No. 2708384 was issued for a violation of 30 C.F.R. 

§ 45.4(b) because the management failed to maintain in writing 

the information required for certain trucking companies serving 

as independent contractors. The originally assessed penalty was 

$20. Citation No. 3314695 was issued for a violation of 30 

C.F.R. § 75.303(a) because an adequate preshift examination had 

not been performed for the morning shift on the 6 north loaded 

track area. The originally assessed penalty was $227. After 

investigating these matters, the Solicitor believes the evidence 

at trial would support the fact of the violations and the 

inspector's evaluations of gravity and negligence. Settlements 

in the amount of the original assessments are sought for these 

citations. I accept the Solicitor's representations and approve 

the proposed penalties. 

474 
Accordingly, it is ORDERED that Citation Nos. 2708200 and 

3314981 be MODIFIED to delete the significant and substantial 

designations. 

It is further ORDERED that the proposed settlement be 

APPROVED and the operator PAY $672 within 30 days of the date of 

this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Page H. Jackson, Esq., Office of the Solicitor, U. s. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Walter J. Scheller III, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

Mail) 

Mr. Merie M. Myers, UMWA, Route 2, Box 147, Rivesville, WV 26588 

(Certified Mail) 

/gl 

475 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF WILLIAM McDONALD, 

Complainant 

v. 

AL HAMILTON CONTRACTING CO., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. PENN 90-249-DM 

PITT CD 90-24 

Hamilton Strip 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On March 14, 1991, the Secretary of Labor filed a motion to 

withdraw the complaint of discrimination filed on behalf of 

William McDonald. 

On March 5, 1991, McDonald entered into a settlement 

agreement with Respondent by which Respondent agreed to post a 

notice at the mine that it .would not discharge or otherwise 

discriminate against any miner in violation of the Mine Act. It 

also agreed to pay McDonald three days back pay with interest, to 

expunge any reference to the discipline imposed on McDonald 

involved in this proceeding from its personnel records and to pay 

a civil penalty of $500. In return, McDonald agreed to withdraw 

his discrimination complaint. 

I conclude that the motion and the settlement agreement 

effectuate the purposes of Section l04(c) of the Act and should 

be approved. 

Accordingly, the motion is GRANTED, and, subject to the 

completion performance by the parties of the settlement 

agreement, this proceeding is DISMISSED • 

.' '14 '/ ( (/J II L-'- ~_:) 

476 

James A. Broderick 

Administrative Law Judge 
Distribution: 

Linda M. Henry, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Alan F. Kirk, Esq., Kriner, Koerber & Kirk, 110 North Second 

Street, P.O. Box 1320, Clearfield, PA 16830 (Certified Mail) 

slk 

477 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HAR 1. 9 1991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BETHEL FUELS INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 90-166 

A.C. No. 46-06647-03553 

Docket No. WEVA 90-228 

A.C. No. 46-06647-03552 

No. 1 Deep 

DECISIONS APPROVING SETTLEMENTS 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil 

penalties filed by the petitioner against the respondent pursuant 

to section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 820(a). The petitioner has filed motions 

pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, seeking 

approval of the proposed settlements of the matters. The 

citations, initial assessments, and the proposed settlement 

amounts are as follows: 

DocJ<et No, WEVA 90-166 

30 C.F.R. 

Order No. Section Assessment Settlement 

3311311 11/14/89 75.1704-2(e) $600 $400 

Docket No. WEVA 90-228 

30 C.F.R. 

Section Settlement 

3311578 11/08/89 75.202(a) $600 -$600 

478 
Discussion 

In support of the proposed settlements, the petitioner has 

submitted information pertaining to the six statutory civil 

penalty criteria found in section llO(i) of the Act. In 

addition, the petitioner has submitted a full discussion and 

disclosure as to the facts and circumstances surrounding the 

issuance of the citations in question, and a reasonable 

justification for the approval of the settlements. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of these cases, I conclude and find that 

the proposed settlement dispositions are reasonable and in the 

public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, 

the motions ARE GRANTED, and the settlements ARE APPROVED. 

,ORDER 

The respondent IS ORDERED to pay civil penalty assessments 

in the settlement amounts shown above within thirty (30) days of 

the date of these decisions and order. Payment to be made to 

MSHA, and upon receipt of payment, these proceedings are 

dismissed. 

~~~strative ~fo~ Law Judge 

Distribution~ 

Pamela S. Silverman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203 (Certified Mail) 

Mr. Thomas Stockdale, Safety Coordinator, Bethel Fuels, Inc., 

Route 7, Box 510, Morgantown, WV 26505 (Certified Mail) 

/fb 

479 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

LONNIE JONES, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

MAR 19 J99L 

DISCRIMINATION PROCEEDING 

Docket No. KENT 91-78-D 

MSHA Case No. BARB CD 91-05 

DEER PATH CORPORATION 

Respondent No. 1 Mine 

ORDER OF DISMISSAL 

Before: Judge Fauver 

At a conference call on March 14, 1991, with the judge, the 

Complainant, and counsel for Respondent, the Complainant moved to 

withdraw his complaint and dismiss this case. 

The motion is GRANTED, and this proceeding is DISMISSED. 

Distribution~ 

tt)~f~ William Fauver 

Administrative Law Judge 

Mr. Lonnie Jones, 730 Highway 26, Williamsburg, KY 40769 

(Certified Mail) 

Mr. Michael E. Demski, General Manager, Deerpath Corporation, 

P.O. Box 759, Jellico, TN 37762 (Certified Mail) 

/fb 

480 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 19 \991 

ARNOLD R. SHARP, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

BIG ELK CREEK COAL COMPANY, 

Respondent 

Docket No. KENT 89-147-D 

PIKE CD 89-08 

DECISION 

Appearances: Joe T.~Roberts, Esq., London, Kentucky for 

the Complainant; 

Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs, 

Louisville, Kentucky for the Respondent. 

Before: Judge Melick 

This case is before me upon the Complaint by Arnold R. Sharp 

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

of 1977, 30 u.s.c. § 801 et seq., the 11Act" alleging unlawful 

discharge on February 28, 1989, by the Big Elk Creek Coal Company 

(Elk Creek) in violation of section 105(c) (1) of the Act1 • 

1section 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, 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 

481 
More particularly Mr. Sharp alleges in his Complaint as 

follows: 

On February 28, 1989, I was discharged from my job 

for missing too much work and for not signing a medical 

authorization form concerning an accident I had at work 

on January 20, 1989. The days I have missed worked 

[sic] were mostly due to my becoming sick after working 

in terrible weather conditions and I have always gave 

[sic] them doctor's statements. In regard to the 

request for a medical release, I filled out an accident 

report, submitted emergency room records and submitted 

a doctor's statement from Dr. Ratliff. 

Since I won a previous discrimination case against 

this company and was put back to work, I have 

continually been harassed and have been wrongfully 

fired. I request reinstatement and all other relief to 

which I am entitled. 

In his post hearing brief.the Complainant appears to have 

abandoned this assereion that his discharge was the result of the 

settlement of a previous discrimination case against this mine 

operator and he makes new claims of certain additional protected 

activity, namely that he "complained to his supervisors and also 

to MSHA about the unsafe conditions of the burm [sic], truck, 

sweeper, and steam jenny as well as the health hazard to the 

sweeper and steam jenny". · 

In order to establish a prima facie case of discrimination 

under Section 105(c) of the Act, a complaining miner bears the 

burden of proving that (1) he engaged in protected activity and 

(2) the adverse action complained of was motivated in any part by 

the protected activity. Secretary on behalf of Fasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (1980), rev 1 d on 

other grounds, sub nom. Consolidation Coal Co. v. Marshall 663 

F.2d, 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v. 

United Castle Coal Company, 3 FMSHRC 803, 817-818 (1981). 

The mine operator may rebut a prima facie case by showing 

either that no protected activity occurred or that the adverse 

contid fn.1 

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. 

482 
action was in no part motivated by protected activity. If the 

operator cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively by proving that it also was 

motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected 

activity. Pasula, supra, Robinette, supra; See also Eastern 

Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 

1987); Donovan v. Stafford Construction Co., 732 F.2d 954 (D.C. 

Cir. 1984); Baich v. FMSHRC, 719 F.2d 194 (6 Cir. 1983) 

(specifically approving the Commission's Pasula-Robinette test)·. 

see NLRB v. Transportation Management Corporation, 462 U.S. 393 

(1983), approving a nearly .identical test under the National 

Labor Relations Act. 

While it has never been clearly articulated, it appears 

from the "statement of the case" in the Complainant's Brief that 

he is now maintaining that his discharge by Elk Creek on February 

28, 1989, was a discriminatory response to the following 

protected health and safety complaints and activities: 

* * * 

(1) After Claimant, Mr. Sharp, went back to work 

on January 25, 1989, he went back to running the same 

steam jenny and also ran a blue and white broom, which 

sweeps the coal, and known as a coal sweeper, which had 

no doors, windows, roll bar protection, and no heater, 

and while running the broom, Mr. Sharp would get 

soaking wet with freezing ice covering his body and 

clothing and further that the sweeper had no windshield 

and did not have protective goggles and therefore, 

debris, dirt and coal came into the cab of the broom 

actually hitting Mr. Sharp. (Tr.28) 

Mr. Sharp complained to the foreman, Harlen couch, that 

the broom sweeper was ·unsafe and Mr. Couch told Mr. 

Sharp that he would run it or be fired and Mr. Sharp 

also complained to the superintendent Mr. M.C. Couch 

about the broom being unsafe and was told "you will run 

or be fired. 11 Then Mr. Sharp complained to Jim 

Meese at the Lexington Off ice and explained the 

situation to Mr. Meese and the condition of the broom 

sweeper and was told by Mro Meese, "you will work, Mr. 

Sharp, or you will be fired." (Tr. 29) 

The broom sweeper had no doors, no windows, no heater, 

and no roll bar protection and therefore Mr. Sharp, 

after exhausting his reports of the unsafe conditions 

to the company, finally reported it to the Federal Mine 

Safety people, and the government issued a citation but 

Mr. Sharp was filed [sic] before he could observe 

whethQr the unsafe conditions on the broom could be 

corrected by the company. (Tr. 29-30) on February 20, 

19 8 9 • (Tr. 3 1) 

483 
Mr. Sharp also, between January 20, and February 28, 

1989, complained to his supervisors and to the Federal 

Mine Safety people that the steam jenny was unsafe and 

was a health hazard, 

* * * Mr. Sharp had previously been fired and made 

complaint and after hearing/trial, he was ordered 

reinstated by the Administrative Law Judge and went 

back to work in September, 1987, and was supposed to go 

back to work on the rock truck, but at that time they 

put him on the steam jenny through September and 

October and in October, 1987, the steam jenny was 

parked and anti-freezed, and covered with plastic and 

Mr. Sharp was then put back on the rock truck in 

November of 1987, and from November until January 5, 

1988, Mr. Sharp was the sole driver of the rock truck 

and at that time made complaints about the brakes, horn 

and lights to his foreman, Willie Martin, and the 

problems were not taken care of by the company, and 

then Mr. Sharp compla{ned to. MSHA in November of 1987 

and an inspector came and looked at the truck, and Mr. 

Sharp also complained about the burm (sic] on the edge 

of the hollowfill, and the inspector wrote up a 

citation on the truck and on the burm [sic]. (Tr. 57-

62) 

* * * (3) when he [Mr. Sharp] went back to work on 

February 22, 1988, he went back to work on a new rock 

truck in which he drove up until June and he was taken 

off the new truck and placed on the truck that he had 

previously operated and made prior complaints about 

which still had no horns, neither front nor rear, and 

the brakes were metal against metal, which had never 

been fixed since he had reported and MSHA had issued a 

citation and this was truck number 621 1 and again Mr. 

Sharp complained to Mr. M.C. Couch, Herlan couch, and 

Jim Meese, who were all his immediate superiors about 

the safety of the truck and which they did nothing 

about andv 

* * * 

(4) Since Mr. Sharp began working for the 

Respondent he has driven a rock truck, helped operate 

an augerr a steam jenny and a coal sweeper and Mr. 

Sharp has made complaints to his fellow employees, 

foremen, supervisor, and administrators, as well as to 

MSHA about the unsafe conditions of all the equipment 

that he has operated or helped operate for the 

Respondent and also has made complaints about unsafe 

conditions of the burm (sic] where the rock trucks dump 

into the hollowfill, and Exhibit C-5, shows that MSHA 

wrote a citation on the broom for being unsafe and a 

health hazard which Mr. Sharp had reported on 

484 
February 20, 1989, and Mr. Sharp was fired on 

February 28, 1989. (Tr.· 104-106) • 

* * * It is noted preliminarily that several of the above 

allegations of protected activity and harassment have been the 

subject of previous complaints under section 105(c) of the Act. 

Those complaints have been considered and rejected by the 

Department of Labor's Federal Mine Safety and Health 

Administration and, in those cases pursued to this Commission, by 

a Commission administrative law judge, and have since become 

final. 2 

I do however find in this case credible evidence to support 

many of Sharp's claims of protected safety and health complaints. 

While Harlen Couch denied at hearing that Sharp had ever made 

complaints to him neither M.C. Couch nor Willie Martin, two of 

Sharp's former supervisors, were called to testify. Sharp's 

allegations of complaints to them therefore stand unrebutted. In 

addition, Elk Creek Administrator, James Meese, was candid in 

acknowledging that not only did Sharp complain to him about 

alleged unsuitable rairt gear and about alleged unsafe conditions 

on the steam jenny (Tr.189) but also that Sharp regularly told 

him of complaints he was making to MSHA (Tr.200). 

Sharp has failed however to sustain his burden of proving 

that Elk Creek was thereby motivated by such activities in 

discharging him. According to the credible testimony of 

James Meese he was the person who made the final decision to fire 

Sharp and his decision was based solely on Sharp's attendance 

problems and refusal to sign the medical information release. He 

2

Those prior 105(c) complaints were as follows~ 

lo BARB-CD 87-53 -- A Complaint concerning a lack 

of training and not being reinstated to the proper job. 

This was withdrawn on August 19, 1988, and approved by 

Judge George Koutras. 

2. PIKE-CD 88-10 -- A Complaint about warnings for 

missing work, dismissed March 20v 1989 by Judge Koutras. 

3o PIKE-CD 88-18 -- A complaint of harassment for 

Sharp 1 s not reporting to work as scheduled following a 

training session on First Aid. this was dismissed at 

Sharp 1 s request on March 30, 1989 by Judge Koutras. 

4. PIKE-CD 89-02 -- A Complaint about a warning 

concerning absenteeism for staying home with his wife, 

dismissed by Judge Koutras on August 22, 1989. 

5. PIKE-CD 89-07 -- A Complaint filed by Sharp 

alleging. he was assigned to the steam jenny in 

retaliation for his earlier 105(c) Complaints. this was 

dismis.sed by MSHA on March 30, 1989, and no further 

review was sought by Sharp. 

485 
specifically denied placing any reliance on Sharp's record of 

making health and safety complaints to the company and to MSHA. 

I find this testimony completely credible. 

This conclusion is strongly reinforced by the evidence that 

Elk Creek's justification for its discharge of Sharp was based 

upon credible, documented and well-founded unprotected business 

reasons. This evidence supports both the finding that his 

discharge was not motivated by any protected activity but also 

that even assuming, arguendo, Sharp had established a prima facie 

case, it would have been rebutted. Robinette supra. 

In this regard the letter of discharge to Mr. Sharp dated 

February 28, 1989, states as follows: 

We have given you ample time since your first notice on 

November 15, 1988, to improve your attendance at Big 

Elk Creek Coal Company. on January 17, 1989, you were 

advised for the second time in two months that your 

attendance was unaccept~ple and that for the following 

90 days your att~ndance would be closely reviewed. 

Since your second notice on January 17, 1989, you have 

missed another 5 days for various illness or personal 

reasons. 

Also, on January 29, 1989, you claim you injured a 

muscle in your right leg in an alleged on-the-job 

injury but did not report it to your foreman at the 

time. You missed 4 days for this claimed injury. We 

have repeatedly asked you to sign a medical 

authorization so that we could obtain information from 

your doctor about this claimed injury. As recently as 

February 24, 1989, you were advised that if you didn't 

return the formv signed, you would be subject to 

discipline up to and including discharge" You have 

refused to sign and return the formo 

At this time, we feel you have missed too much time 

during the 90-day period and, in view of all of this, 

we have no alternative but to terminate your employment 

effective February 28 7 1989. (Exhibit No. C-10) 

The credible evidence supports the allegations in the above 

letter. In particular the credible evidence shows that from the 

week ending November 11, 1988 through February 25, 1989, Sharp 

was absent from work 26 days out of 94 workdays {excluding 

excused absences and 81 injury" days) or about 25 percent of his 

scheduled work days. The evidence further shows that on 

January 17r 1989, Sharp was advised by Elk Creek for the second 

time in two-months that his attendance was not acceptable and 

that it would be closely monitored for the next 90 days. 

Following the second notice on January 17, 1989, the evidence 

shows that Sharp indeed missed another five days for various 

illnesses or for personal reasons. It can reasonably be inferred 

486 
from the evidence in this case that three of those days were 

unexcused and indeed that Sharp was falsely claiming a medical 

excuse for those absences on January 21, through 23, 1989. 

The discharge letter also refers, as a separate ground for 

discharge, Sharp•s refusal three times to sign a release to 

permit review by Elk Creek of medical reports relating to that 

absence. The reports provided to the operator by Sharp are not 

legible and appear to offer contradictory diagnoses. Under the 

circumstances the operator was justified in seeking further 

explanation. 

This procedure was even more warranted in light of Sharp's 

previous history of attendance deficiencies and of his 

predictions purportedly made to Elk Creek Administrator, James 

Meese, shortly before the absence, that he might very well get 

hurt working on the task that he was then performing. According 

to the credible and undisputed testimony of Meese, Sharp 

complained to him on January 21, 1989, about working the steam 

jenny and predicted that he might get hurt. 

Under all the circumstances I do not find that Mr. Sharp has 

sustained his burden of proving that he was discharged in 

violation of Section 105(c) (1) of the Act. 

ORDER 

Discrimination Complaint Docket No. K 

DISMISSED. 

Law Judge 

Distribution~ 

Joe T. Roberts; Esq. Roberts Building, 405 South Main Street 1 

London; Kentucky 40741 (Certified Mail) 

Edwin S. Hopson, Esq., Wyatt, Tarrant & Combs 1 Citizens Plaza, 

Louisville, Kentucky 40202 (Certified Mail) 

nb 

487 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 8 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ELY FUEL COMPANY, 

Respondent 

Dccket No. KENT 90-442 

A.C. No. 15-13576-03S06 

Ely Fuel Company 

DECISION 

Appearances: Elaine Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee for 

Petitioner; 

Frank Stewart, President, Ely Fuel Company, 

Pineville, Kentucky for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105(d) of the 

Federal Mine and Health Act of 1977, 30 u.s.c. § 801 

e't sea., the "Act," .in which the Secretary has proposed civil 

pen.alties for two alleged violations by the Ely Fuel Company 

(Ely) of mandatory standards, The general issues before me are 

whether Ely committed the violations as alleged and, if so, che 

amount of civil penalty to be assessed. 

c tat.ion No. 3380133 alleges a usignificant and substantial" 

violation of the standard at 30 C.F.R. § 77.502-2 and charges 

that "the co. nas not conducted a monthly examination and 

~ecorded it in an approved MSHA record book by a qualified 

person." 

The standard at 30 C.F.R. § 77.502-2 is requires that "the 

examinations and tests required under the provisions of this 

section 77.502 shall be conducted at least monthly." The 

standard at 30 C.F.R. § ~7.502 provides as follows: 

Electric equipment shall be frequently examined, 

tested~ and properly maintained by a qualified person 

to assure safe operating conditions. When a 

potentially dangerous condition is found on electric 

equipment, such equipment shall be removed from service 

until such condition is corrected. A record of such 

488 
examinations shall be kept. 

In its Answer and at hearings in this case Ely acknowledges 

that the violation occurred as charged but denies that an injury 

or illness was likely to result from the violation and denies 

that it was a "significant and substantial" violation. According 

to Inspector Richard Saylor of the Federal Mine Safety and Health 

Administration (MSHA), during the course of his regular 

inspection on June 20, 1990, he examined the record books for the 

monthly electrical examinations at the subject mine and found 

that the monthly examination had not been performed. Ely 

Foreman, J. c. Smith, acknowledged that they had not performed 

the monthly exam. According to Saylor an injury was "reasonably 

likely" and it was "very likely that something could happen and 

cause a person to get hurt or injured." He noted that the 

purpose of an electrical inspection is to determine that nothing 

is wrong with the electrical system. Saylor testified that if a 

person "got in electricity it would have to be serious". He 

noted that there were electrical motors, and transformers on 

the crushers and it involved high voltage. More particularly he 

noted that a motor could get "shorted out" and you would "get 

power on" the person .. -He opined that injuries would occur to 

only one person that being the person operating the tipple. 

Ely President Frank Stewart denied at hearing that the 

violation was serious. He observed that the tipple is run only 

five months a year and he is given a day or two notice by his 

contractor to run the tipple. It is only upon such notice that 

he arranges for the electrical inspection. On this occasion 

Stewart maintains he called his regular electrical inspector, 

Donald Dunn, the day before the citation was issued to inspect 

the tipple. According to Stewart, Dunn was late showing up and 

the MSHA inspector arrived first. Dunn purportedly showed up 

later. Neither Inspector Saylor nor Dunn apparently found any 

electric fects in the equipment. 

Stewart also testified that the requisite electrical 

inspection had been made early the month before and that his 

foreman J.C. Smith, though not a certified electrician had 35 

years electrical experience and regularly inspects the tipple 

himse' 

It is noted that Ely had previously been cited for a 

violation of the same standard at issue herein for failing to 

conduct the required monthly electrical examination under 

30 C.F.R. § 77.502-2, only four months before. It is also 

apparent that Ely management-including foreman J.C. Smith knew 

that the required electrical inspection had not been performed 

when they commenced operation of the tipple knowing that such an 

examination was required. The violation was therefore the result 

of high negligence. 

489 
While there was no record of any violative electrical 

condition existing on the date of the citation it may 

nevertheless reasonably be inf erred that the violation was 

''significant and substantial". The circumstances expected in 

continuing mining operations may be considered in the evaluation 

of whether a hazard would be reasonably likely. Under the 

circumstances I conclude that the violation was indeed 

"significant and substantial". See Mathies Coal Company, 

6 FMSHRC 1 (1984). 

Considering the criteria under section llO(i) of the Act I 

concur with proposed civil penalty of $36. 

Citation No. 3380134 alleges a violation of the standard at 

30 C.F.R. § 77.1707 and charges that "the company didn't have an 

adequate first aid kit at the tipple and that some items were 

missing." 

The cited standard, 30 C.F.R. § 77.1707 provides in part as 

follows: 

(a) Each opera-tor of a surface coal mine shall maintain 

a supply of the first aid equipment set forth in 

paragraph (b) of this section at or near each working 

place where coal is being mined, at each preparation 

plant and at shops and other surf ace installations 

where ten or more persons are regularly employed. 

(b) The first aid equipment required to be maintained 

under the provisions of paragraph (a) of this section 

shall include at least the following: 

(1) One stretcher; 

(2) One broken-back board (if a splintstretcher combination is used it will satisfy 

the requirements of both paragraph (b)(l) of 

this section and this paragraph (b) (2); 

(3) Twenty-four triangular bandages (15 if a 

splint-stretcher combination is used); 

(4) Eight 4-inch bandage compresses; 

(5) Eight 2 inch bandage compresses; 

(6) Twelve 1-inch adhesive compresses; 

(7) An approved burn remedy; 

(8) Two cloth blankets; 

(9) One rubber blanket or equivalent substitute; 

(10) Two tourniquets; 

(11) One 1-ounce bottle or aromatic spirits of ammonia 

(12) The necessary complements of arm and leg 

splints or two each inflatable 

plastic arm and leg splints. 

(c) All first aid supplies required to be maintained 

under·the provisions of paragraphs (a) and (b) of this 

section shall be stored in suitable, sanitary, dust 

tight, moisture proof containers and such supplies 

490 
shall be accessible to the miners. 

Ely does not dispute the violation but maintains that there 

were only a few items missing from the first aid kit and argues 

that the allegation in the citation was ."so frivolous that it 

defies belief". 

Inspector Saylor acknowledged that the violation was of low 

gravity and that only a few items were apparently missing from 

the first aid kit but noted that he does not have the discretion 

to overlook violations even when they are not serious. Indeed 

Saylor has noted on the citation that the violation herein was 

not serious and the Secretary has proposed only a nominal penalty 

of $20. There is, in addition, little evidence in this case of 

operator negligence. Under the circumstances and considering the 

relevant criteria under section llO(i) of the Act I find the 

Secretary's proposed penalty of $20 to be appropriate. 

ORDER 

Ely Fuel Company is hereby .directed to pai civil 

of $56 within 30 days-of the date -0f his deci ion. 

penalties 

I (/ 

I ' r' Ii j 11 'l 

'1 :J ' ,. _/·, '----..... 

l~' \ VV'\ - "-

,Gary Melick \ \ ./ 

/ Admi 'istrative\ Law Judge ' \ 

Distribution: 

Elaine Smith, Esq., U.S. Department of Labor, O~fice of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nasvhil , TN 

37215 (Certified Mail) 

President Frank Stewart, Ely Fuel Company, P.O. Box 980, 

Pineville, KY 40977 (Certified Mail) 

nb 

491 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

KEYSTONE COAL MINING 

CORPORATION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 90-258 

A.C. No. 36-05658-03681 

Urling No. 3 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

This case is before me upon a petition for assessment of a 

civil penalty under § 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 seq. Petitioner has filed 

a motion to approve a settlement agreement and to dismiss the 

case. I have considered the representations and documentation 

submitted and I conclude that the proffered settlement is 

consistent with the criteria in § llO(i) of the Act. 

WHEREFORE, IT IS ORDERED that the motion for approval of 

settlement is GRANTED, and Respondent shall pay the approved 

penalty of $135 within 30 days of this decision. Upon such 

payment this case is DISMISSED. 

td~?t~v~ William Fauver 

Administrative Law Judge 

Distribution: 

Susan M. Jordan, ., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104_,(Certified Mail) 

William M. Darr, Esq., Keystone Coal Mining Corporation, P.O. 

Box 792, Indiana, PA 15701 (Certified Mail) 

/fb 

492 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. Docket No. SE 90-79-M 

A.C. No. 31-01869-05525 

v. 

Miller Hill Quarry 

CALDWELL STONE COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

·- Leslie John Rodriguez, Esq., Office of the 

Solicitor, U.S. Department of Labor, Atlanta, 

Georgia, for the Petitioner; 

Mr. Dale Caldwell, President, Caldwell Stone 

Company, Inc., Hudson, North Carolina, prose, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO{a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a). 

Petitioner seeks a civil penalty assessment in the amount of $650 

for an alleged violation of mandatory safety standard 30 C.F.R. 

§ 56.14107(a). The respondent filed a timely answer contesting 

the alleged violation, and a hearing was held in Hickory, 

North Carolina. The parties waived the filing of posthearing 

briefs but I have considered their oral arguments made on the 

record in the course of the hearing. 

Issues 

The issues presented in this case are (1) whether the 

respondent violated the cited mandatory safety.standard, and 

(2) the appropriate civil penalty to be assessed pursuant to the 

civil penalty assessment criteria found in section llO(i) of the 

Act. 

493 
Applicable Statutory and Regulatory Provisions 

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

30 U.S.C. § 301, et seq. 

2. 30 C.F.R. § 56.14107(a). 

3. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

Stipulations 

The parties stipulated that the Commission has jurisdiction 

in this matter and that the respondent is a small mine operator 

(Tr. 4) . 

Discussion 

The contested section 104(a) non- 11 S&S" Citation No. 3254968, 

issued by MSHA Inspector William T. Hall on February 6, 1990, 

cites an alleged violation of mandatory guarding standard 

30 C.F.R. § 56.14107(a), and ~he cited condition or practice 

states that "The head-pulley and drive unit were not guarded on 

the surge conveyor." 

Petitioner's Testimony and Evidence 

MSHA Inspector William T. Hall testified as to his education, experience, and training, and he confirmed that he holds a 

bachelor's degree in industrial technology and occupational 

safety and health from the University of Kentucky (Tr. 10-12). 

He confirmed that he conducted an inspection at the respondent's 

mining operation on February 6, 1990, and that foreman John Cline 

accompanied him (Tr. 13). 

Mr. Hall stated that he issued the citation in question 

after finding that the surge conveyor head pulley and drive unit, 

which constituted moving machine parts, were not guarded. In 

view of the numerous inspections he has conducted, Mr. Hall could 

not specifically recall or describe the area where the violative 

conditions were present. However, he confirmed that the hazard 

concerned exposed moving machine parts which could cause injury 

to only one employee, namely, a plant utility clean-up man who 

would be in the area. Under the circumstances, he concluded that 

an injury was unlikely 1 and that the violation was non- 11 8&8 11 (Tr. 

14) , 

Mr. Hall confirmed that subsection (b) of section 57.14107, 

provides an exception which does not require a guard if the 

exposed moving part is at least 7 feet away from any walking or 

working area. However, in the instant case, there was a material 

spillage buildup of approximately 1-foot under the conveyor and 

this placed the unguarded head pulley within 6 feet of the 

494 
spillage and outside of the exception. He confirmed that he is 

6-foot one and a-half inches tall, and when he stood on the 

material he was "looking right at the head pulley" which he 

estimated was 6 feet above the material on which he was standing 

(Tr. 14 -15) • 

Mr. Hall could not recall that foreman Cline made any 

comments about the violation, and he confirmed that it was abated 

(Tr. 15). He stated that he based his "high negligence" finding 

on the respondent's prior violation history of the guarding 

standard. He confirmed that the unguarded pulley was readily 

observable, and it appeared that a competent person had not 

inspected the workplace for a hazard. Under the circumstances, 

he found no mitigating circumstances with respect to the respondent's negligence (Tr. 16). 

Although Mr. Hall agreed that someone would have to make a 

deliberate effort to reach the unguarded pulley, he nonetheless 

believed that anyone walking on the material spillage buildup 

could slip and fall into the pulley. However, he believed that 

an injury was unlikely, and that the violation was not significant and substantial~ because only one person was in the area. 

Mr. Hall confirmed that he recommended a "special civil penalty 

assessment" for the violation because of the respondent's past 

history of violations of the guarding standard in question (Tr. 

17-18) 0 

On cross-examination, Mr. Hall stated that if someone 

tripped on the material spillage pile he could fall into the head 

pulley which would be 6 feet above ground at this location (Tr. 

19). He confirmed that he did not measure the distance between 

the top of the pile and the unguarded pulley because "I could 

walk right up to it and see it was 6 feet above the ground" (Tr. 

2 0) 0 

After reviewing several photographs of the conveyor produced 

by the respondent, Mr. Hall stated that he could not identify the 

cited unguarded pulley in question because he could not specifically recall it because nit's been over a year ago and things 

could have changed on the property11 (Tro 21-22; exhibits R-1 

through R-4)" 

Referring to photographic exhibit R-3, the respondent 0 s 

representative, Dale Caldwell, stated that Inspector Hall listed 

the wrong conveyor in his citation, and he believed that Mr. Hall 

mistook the tail pulley of the No. 2 surge conveyor for the head 

pulleyo However, Mr. Caldwell explained that the surge conveyor 

cited by the inspector is a part of the "second phase" of the 

surge conveyor which is "the belt coming out of the tunnel 11 (Tr. 

33). Inspector Hall could not recall the head pulley and drive 

unit that was cited (Tr. 33). Although he identified a drive 

495 
unit in the photograph, Mr. Hall reiterated that due to the 

passage of a year, he could not recall the specific situation 

(Tr. 34). 

In response to further questions, Mr. Hall stated that he 

relied on a computer print-out of the respondent's history of 

prior violations which is on file in his office. He believed 

that he issued some of the prior guarding citations, and although 

he could not recall reviewing the prior citations at the time of 

his inspections, he believed that he did because he is required 

to review the mine file. He stated that he was not influenced by 

the delinquency letters reflected in exhibit P-1, because the 

computer print-out in the mine file was not the same as the one 

in evidence in this case and he would not have had the delinquent 

payment information when he made his negligence finding in this 

case (Tr. 27). 

Mr. Hall confirmed that in view of the exception found in 

section 56.14107(b), the question of whether a guard was required 

would depend on whether there was a material spillage buildup on 

the ground below the pulley, 'and that the requirement for a guard 

could change from day-to-day depending on the existence of 

spillage which may result in the moving part being less than 

7 feet above the spillage pile. If there was no spillage, the 

unguarded pulley would have been 7 feet above the ground and it 

would not require a guard (Tr. 27-29). 

Mr. Hall stated that the conveyor is supposed to be locked 

out when maintenance work or greasing is performed, but he did 

not know the procedures followed by the respondent in this regard 

(Tr. 29-30). 

Respondent 1 s Testimony and Evidence 

Dale Caldwell 1 respondent 1 s presidentr testified that 

Hall cited an unguarded surge conveyor head pulley and 

drive unit, and referring to photographic exhibits R-1 and R-3, 

he identified the location of these moving parts as the circled 

equipment on the conveyor shown at the top of the photographs. 

However; he indicated that what the inspector actually observed 

was an unguarded tail and head pulley on the number 2 conveyor, 

and he identified this of equipment as the conveyor closest 

to the ground as shown exhibits R-1 and R-3 (Tr. 34-35)¢ 

Mr. Caldwell believed that Inspector Hall was looking at the 

bottom conveyor when he issued the violation, and that he 

incorrectly identified it as the surge conveyor when he wrote the 

citation. Mr. Caldwell stated that he knew that Mr. Hall had the 

wrong conveyor "because my foreman took me out there and showed 

me the conveyor" (Tr. 36). Mr. Caldwell stated that the surge 

conveyor head pulley and drive unit shown in exhibits R-1 and R-3 

496 
were probably 7 or 8 feet above the material buildups shown in 

the photographs (Tr. 36). 

Mr. Caldwell confirmed that he was not with Inspector Hall 

when he issued the citation, but that his foreman was. He also 

confirmed that he discussed the citation with Mr. Hall, but did 

not point out that he may have cited the wrong conveyor. In 

explaining why he did not point this out to the inspector, 

Mr. Caldwell stated that "I'm glad when he leaves," but that the 

$650 fine "got my attention," and that he reviewed the citation 

and "I realized that he had the wrong conveyor down there" (Tr. 

41) . 

Mr. Caldwell stated that foreman Cline informed him that 

Mr. Hall had cited the wrong conveyor after they returned to the 

plant to discuss abatement. Mr. Caldwell stated that regardless 

of whether the head pulley or tail pulley were correctly cited, 

he still believes that someone would have to deliberately reach 

or jump up to contact the unguarded equipment (Tr. 42). 

On cross-examination, Mr• Caldwell confirmed that the four 

photographic exhibits-were taken the day before the hearing of 

January 23, 1991. Although he agreed that the amount of spillage 

shown in the photographs is not the same observed by the inspector during his inspection, Mr. Caldwell believed that the area 

where the material drops below the conveyors is the same area 

(Tr. 4 7) . 

Mr. Caldwell reiterated that foreman Cline told him that 

Inspector Hall issued the citation for the unguarded tail pulley 

of the No. 2 belt, and that the surge conveyor is the conveyor 

that feeds onto the No. 2 belt (Tr. 48). Mr. Caldwell agreed 

that it was not unusual to have material spillage in the area 

where both conveyors are located (Tr. 49). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with a violation of mandatory 

guarding standard 30 C.F.R. § 56.14107(a), for failing to provide 

a guard for the cited surge conveyor head pulley and drive unit. 

Section 57.14107, provides as follows: 

(a) Moving machine parts shall be guarded to 

protect persons from contacting gears, sprockets, 

chains, drive, head, tail, and takeup pulleys, flywheels, coupling, shafts, fan blades; and similar 

moving parts that can cause injury. 

49 7 
(b) Guards shall not be required where the 

exposed moving parts are at least seven feet away from 

walking or working surfaces. 

Subsection (b) of the standard provides an exception for 

guards, and it provides that no guard is required if the exposed 

moving parts are at least 7 feet away from walking or working 

surfaces. In this case, Inspector Hall confirmed that he issued 

the citation and found a violation because the accumulated 

material spillage under the exposed conveyor pulley and drive 

unit placed them within 7 feet of the spillage (Tr. 30). The 

petitioner's counsel agreed that this was the case, and he 

pointed out that if the spillage had been cleaned up no guard 

would have been required and the respondent would have been in 

compliance (Tr. 31). 

Mr. Caldwell asser~ed that he contested the citation because 

he believed that the proposed civil penalty assessment for the 

violation was excessive (Tr. 5). He contended that the inspector 

identified the wrong pulley in the citation and that he mistook 

the tail pulley of the No. 2 surge conveyor for the head pulley. 

Mr. Caldwell confirmeg that he was not with Mr. Hall when he 

inspected the conveyor and issued the citation, and he indicated 

that foreman Cline told him that Mr. Hall had incorrectly identified the cited piece of equipment. 

Inspector Hall testified that he cited the unguarded surge 

conveyor head pulley and drive unit, but in view of the fact that 

the citation was issued over a year ago, and the many intervening 

inspections he has conducted, Mr. Hall could not recall the 

specific piece of equipment which he cited, nor could he identify 

it in any of the photographic exhibits. 

Mr. Caldwell did not produce foreman Cline to testify in 

this case. Further, Mr. Caldwell confirmed that he discussed the 

violation with Inspector Hall when he issued the citation but 

that he said nothing to him about citing the wrong conveyor (Tr. 

40) v and I take note of the fact that Mr. Caldwell said nothing 

to suggest that Mr. Hall may have cited the wrong piece of 

equipment when he filed his answer of July 2, 1990, in this case. 

I also take note of Mr. Caldwell vs testimony that the head pulley 

cited by Mr. Hall, and the tail pulley referred to by 

Mr. Caldwell were "both at the same area" and that he believed 

that someone would have to deliberately reach up to contact them 

(Tr. 41). I further note the fact that the photographs produced 

by Mr¢ Caldwell were taken almost a year after the citation was 

issued. 

The respondent's argument that Mr. Hall incorrectly identified the cited pulley in question is rejected, as less than 

credible. I find Mr. Hall to be a credible witness, even though 

he had no present recollection of all of the details surrounding 

498 
the is9uance of the violation. I conclude and find that the 

petitioner has established a violation of the cited standard, and 

the citation issued by the inspector IS AFFIRMED. 

Size of Business and Effect of Civil Penalty Assessment on the 

Respondent's Ability to Continue in Business 

The parties stipulated that the respondent is a small 

operator. Mr. Caldwell testified that the quarry in question is 

his only mining operation and that he employs 11 miners. He 

confirmed that his annual production in 1990 was approximately 

200,000 tons of crushed stone (blue granite), and that the quarry 

worked approximately 19,163 man-hours (Tr. 4-5). I have taken 

this into consideration in assessing the civil penalty for the 

violation in question. 

In the absence of any evidence to the contrary, I cannot 

conclude that the payment of the civil penalty which I have 

assessed for the violation will adversely affect the respondent's 

ability to continue in business. 

History of Prior Vioration 

The respondent's history of prior violations is reflected in 

a computer print-out covering the period February 2, 1988, 

through February 5, 1990 (exhibit P-1; Tr. 8). The information 

in the print-out shows that the respondent was assessed for 65 

violations, and that the proposed civil penalty assessments for 

these violations totalled $6,476. The respondent paid civil 

penalty assessments in the amount of $1,681.19, for 26 of the 

violations. The remaining unpaid violations resulted in delinquency letters from MSHA and referrals of several violations to 

the United States Attorneys Office for collection action (Tr. 

18)" Mr. Caldwell stated that he is currently making payments on 

the delinquent assessments (Tr. 8). 

I take note of the fact that forty (40) of the prior 

assessed violations were section 104(a) non-"S&S" citations. 

Eight (8) of the prior violations were for violations of section 

56.14107 1 and two (2) of these were non-"S&S," and six (6) were 

"S&s,uu 

For an operation of its size, I cannot conclude that the 

respondent has a particular good compliance record, particularly 

with respect to the non-payment of assessed civil penalties which 

has resulted in a number of MSHA delinquency letters, and several 

referrals to the U.S. Attorneys Office for collection. I have 

considered this compliance record in assessing the civil penalty 

for the violation. 

499 
Gravity 

Inspector Hall confirmed that due to the passage of time, he 

could not recall the specific conditions which prevailed at the 

time he issued the citation (Tr. 14, 19}. He stated that the 

conveyor is required to be locked out when it is greased or 

maintenance is performed, and there is no evidence that this was 

not done. Under the circumstances, and in view of the inspector's non-s&s finding, I conclude and find that the violation was 

non-serious. I find it unlikely that the one employee who may 

have been in the area would walk or stand on top of the accumulated spillage under the conveyor and place himself at risk by 

contacting the unguarded equipment in question. 

Good Faith Compliance 

The record reflects that the violation was abated 1-hour 

prior to the time fixed by the inspector on the same day the 

citation was issued. Abatement was achieved by cleaning up the 

spillage under the conveyor, thereby placing the unguarded 

equipment at least 7 feet above the ground (Tr. 31). Under the 

circumstances, I conclude and find that the respondent abated the 

violation rapidly and in good faith, and I have taken this into 

consideration in the assessment of the civil penalty for the 

violation. 

Negligence 

Inspector Hall made a finding of "high negligence," and he 

testified that he based this on the respondent's prior history of 

violations of the guarding standard (Tr. 15). He found no 

mitigating circumstances, and indicated that the unguarded 

equipment was in plain view and that a competent person should 

have noticed the violation (Tr. 16). 

The inspector could not recall the circumstances surrounding 

the issuance of the prior eight guarding violations. 

Mr. Caldwell conceded that violations have occurred in the past, 

but he pointed out that no injuries have ever resulted from any 

of these violations, and that he has always corrected any cited 

violative conditions (Tr. 5-6). The petitioner and the inspector 

had no information to the contrary regarding the respondent's 

accident-free record (Tr. 43-44). 

Mr. Caldwell testified that he had never been cited for any 

similar conditions during the entire time he has been in business 

since 1979, and that all conveyor moving parts have always been 

above ground level (Tr. 20, 24). 

500 
Contrary to the inspector's "high negligence" finding, which 

I find is unsupported, I conclude and find that the violation 

resulted from the respondent's failure to exercise reasonable 

care, and that this constitutes ordinary negligence. 

Civil Penalty Assessment 

The record in this case reflects that the non-"S&S" violation was "specially assessed" at $650, and the special assessment 

officer noted that the respondent "had been cited numerous times 

for similar conditions during previous inspections at the mine." 

The petitioner's counsel confirmed that MSHA has changed its 

civil penalty assessment policy in light of a recent Federal 

district court decision, and that "stiffer penalties" have been 

assessed based on "prior history" (Tr. 38). 

In this case, MSHA's computer print-out reflects eight prior 

citations for violations of section 56.14107, over a 2-year 

period of time. However, copies of the prior citations were not 

produced by the petitioner, and the inspector could not recall 

the circumstances under which those prior violations were issued 

(Tr. 8, 2 6) . 

It is clear that I am not bound by MSHA's proposed civil 

penalty assessment, or the penalty assessment procedures found in 

Part 100, Title 30, Code of Federal Regulations. Contested civil 

penalty cases are heard de novo by the presiding judge, and any 

civil penalty assessment is made in accordance with the criteria 

found in section llO(i) of the Act. 

With regard to MSHA's "excessive history" civil penalty 

assessment policy, I take note of the fact that the Commission's 

Chief Judge, Paul Merlin, recently ruled that the policy is 

invalid because of the Secretary 1 s failure to adopt such policy 

through rulemakingo See~ Secretary of Labor (MSHA) Vo Drummond 

Company, Inc., Docket No. SE 90-126, March 6, 1991. Apart from 

this ruling, and although I have concluded that the respondent 

does not have a particularly good overall compliance record and 

have taken this into consideration in assessing the civil penalty 

for the violation which has been affirmed, I cannot conclude that 

the respondent 1 s history of prior guarding violations is such as 

to warrant any additional increase in the civil penalty 

assessment. 

On the bas of the foregoing findings and conclusions, and 

taking into account the civil penalty assessment criteria found 

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

penalty assessment in the amount of $125 is reasonable and 

appropriate for the violation which has been affirmed. 

501 
ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $125, for a violation of 30 C.F.R. 

§ 56.14107(a), as stated in section 104(a} non-S&S Citation 

No. 3254968, February 6, 1990. Payment is to be made to MSHA 

within thirty (30) days of the date of this decision and order, 

and upon receipt of payment, this matter is dismissed. 

4A~o~ Administrative Law Judge 

Distribution: 

Leslie John Rodriguez, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 339, 1371 Peachtree Street, N.E., 

Atlanta, GA 30367 (Ce:i;_tified Mail) 

Mr. Dale Caldwell, President, Caldwell Stone Company, Inc., P.O. 

Box 765, Hudson, NC 28638 (Certified Mail) 

/fb 

502 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 8 1991 

WAYNE C. TURNER, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

NEW WORLD MINING INC., 

Respondent 

DECISION 

Docket No. VA 90-51-D 

NORT CD 90-08 

No. 1 Strip 

Appearances: Donala E. Earls, Esq., Norton, Virginia, for the 

Complainant; 

Before: 

Karen K. Bishop, Esq., Wise, West Virginia, for the 

Respondent. 

Judge Weisberger 

Statement of the Case 

This case is before me based upon a Complaint filed on 

August 24, 1990, by Wayne c. Turner (Complainant) alleging, in 

essence, that he was discriminated against by New World Mining 

Incorporated (Respondent), in violation of Section 105(c) of the 

Federal Mine Safety Act of 1977 (the Act). Respondent filed an 

Answer on September 27, 1990, and the case was subsequently 

assigned to me on October 4, 1990. In a telephone conference 

call initiated by the undersigned, between Complainant and 

Counsel for Respondent, the former indicated that he intended to 

be represented by an attorney. On October 23, 1990, in a 

telephone conference call initiated by the undersigned, between 

Counsel for both Parties, it was agreed that this case be set for 

hearing on November 27, 1990. Subsequently, Respondent requested 

an adjournment which was not opposed by Complainant. The case 

was rescheduled and heard in Abingdon, Virginia, on December 13, 

1990. At the hearing Michael D. Sturgill, Wayne Turner, and Mark 

McGuire tes fied for Complainant. Henry M. Yates, Edward Edmond 

Stanley, and Francis Salyers testified for Respondent. 

At the conclusion of the hearing, the Parties were granted 

the right to file Briefs and Proposed Findings of Fact, 3 weeks 

subsequent to the receipt of the transcript of the hearing. 

Volume I of the Transcript was filed on January 24, 1991, and 

Volumes II and III were filed on January 28, 1991. To date, 

503 
neither Party has filed any posthearing submission. Nor has 

either Party requested an extension time to file a f and 

Proposed Findings Fact. 

Findings of Fact and Discussion 

Wayne C. Turner (Complainant) had been employed by 

Respondent for approximately 3 years until he was fired by his 

foreman, Francis Salyers, on Monday, April 30, 1990. It is 

Complainant's position that his discharge by Respondent was in 

violation Section 105(c) of the Act, which, as pertinent, 

provides that it is unlawful to discharge a miner because of the 

exercise by such miner " ... of any statutory right ford by 

this Act. 11 • 

Discussion 

The Commission, a recent decision, Goff v. Youghiogheny & 

Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the 

legal standards to be applied in a case where a miner has alleged 

acts of discriminatioR. The 'commission, in Goff, supra, at 1863, 

stated as follows: 

A complaining miner establishes a prima facie case 

of prohibited discrimination under the Mine Act by 

proving that he engaged in protected activity and that 

the adverse action complained was motivated in any 

part by that activity. Pasula, 2 FMSHRC at 2797-2800; 

Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-18 (April 1981). The Operator 

may rebut the prima facie case by showing either that 

no protected activity occurred or that adverse 

was not motivated in any part by protected 

Robinette, 3 FMSHRC at 818 n. 20. See also 

v. Stafford Constr. Co., 732 F.2d 954, 958-59 

D.C. C 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) ( ifically approving the 

Commission's ?asula-Robinette test). 

In the period at issue, Turner operated a drill from ide 

a cab located on a platform (table). drilling operation 

produced large amounts of dust, but the ill apparatus was 

equipped with a water system, dust collector, and bushings to 

prevent dust from entering the cab where the drill operator 

worked. In addition, the itself was equipped with an air 

conditioner to allow proper ventilation in the cab, should it be 

c ed to out dust. Turner indicated that none of this 

equipment worked properly, and that specifically the bushings had 

worn out, allowing quant ies of dust to enter the 

According to Turner, on numerous occasions he complained to his 

foreman, Francis Salyers, about these conditions. Salyers, while 

sputing that Turner complained to him about the worn bushings, 

504 
did acknowledge that Turner had complained to him two or three 

times about dust on the drill, and specifically had complained 

about the air conditioning not functioning. Henry M. Yates, 

Respondent's superintendent, who is the supervisor of Salyers, 

indicated that Turner had complained to him approximately two or 

three times about dust. 

Thus, inasmuch as Respondent, in essence, has not rebutted 

Turner's testimony that he had complained to Respondent's 

managers with regard to the presence of dust in his work 

environment, I conclude that Turner engaged in protected 

activities. 

II. 

a. Respondent's Reaction to Turner's Complaints 

On direct examination, Turner was asked what "would they" 

say to him when he complained about the air conditioner and the 

fact that he had to "breathe that dust" (Tr. 58). Turner 

answered that Salyers said "You're like a woman, you bitch more 

than a woman does aboUt the dust on these drills" (Tr. 58). This 

statement by Salyers constitutes the only evidence adduced 

relative to any manifested adverse reaction by Respondent to 

Turner's protected complaints. On the other hand, Salyers 

indicated that on the Friday prior to the Monday on which Turner 

was fired (April 30), in response to ~he complaints as to dust 

that Turner had made that day, he spent the whole day purchasing 

and installing insulation in order to seal the cracks in the air 

conditioner. Also, Yates indicated that in response to Turner 1 s 

complaints about dust, he ordered bushings to be made. Turner, 

in essence, testified that at times he had been provided with 

dust collectors. In essence, he also said that when he 

complained about the dust coming through the bushings, he was 

~old by Salyers that he would get a replacement bushing as soon 

as he could. He also indicated that when he complained about the 

water system, Salyers indicated to him that he would get it 

fixed, but in fact never did. Thus, Ccmplainant has failed to 

establish that Respondent manifested any significant animus 

towards him as a consequence of his having complained about 

exposure to dust. 

b. The Firing of Turner 

In general, the work week at Respondent's mine is Monday 

through Friday, with work being required on Saturday on an "as 

needed basis." (Claimant's Exhibit~). On Friday, April 27, 

Yates informed Salyers that work was required on Saturday. There 

is a conflict in the record between Complainant's witnesses and 

Respondent's witnesses Edward Edmond Stanley, the night foreman, 

and Salyers, as to whether the latter had informed Turner and his 

505 
crew (Michael D. Sturgill and Michael McGuire) that they were 

expected to work the following day i.e., Satulday. On Saturday, 

April 28, neither Turner nor Sturgill worked. I 

On the morning of Monday, April 30, 1990, when Sturgill and 

Turner arrived at the work site, there is a conflict in the 

evidence between the testimony of Complainant's witnesses and 

that of Salyers, as to whether the latter initiated cursing at 

Sturgi and Turner for not having reported to work on Saturday. 

However, both Complainant's witnesses and Salyers are consistent 

in testifying that a heated discussion ensued between Turner and 

Sturgill on the one hand, and Salyers on the other. According to 

Turner, Salyers told him that "if you're copping an attitude to 

me, I will fire you right now" (Tr. 71). Turner indicated that 

he responded by saying "well, you can take a flying leap and kiss 

my ass ... 11 (Tr. 71), and then leaving. Sturgill indicated 

that there was cussing back and forth with regard to whether he 

and Turner were told on Friday to work on Saturday. Sturgill, in 

essence, corroborated Turner's version. 

Salyers indicated that he told Sturgill and Turner not to 

curse, and whereas Sturgill then kept quite, Turner continued to 

curse. Salyers indicated that he told Turner that if he (Turner) 

continued to curse him, he (Salyers) would f him. Salyers 

said that Turner said "f--- you, Buck if you're going to fire me, 

go ahead and fire me," and then he (Salyers} fired Turn.er 

(Tr. 274). On cross-examination Salyers said that when Turner 

said to him, "Buck you're a M. F." (Tr 328), it led to his 

termination. In rebuttal, Sturgill and Turner denied that the 

latter called Salyers a "M. F., 11 but they did not rebut Salyers' 

testimony that Turner had said "f--- you. 11 

Salyers indicated that the cursing him by Turner was the 

sole reason he f Turner, Salyers further indicated 

specif that Turner was not fired for not having worked on 

Saturday. In this connection, McGuire corroborated that this was 

what Salyers had said on' 1 30, when Turner was fired. 

c. Motivation 

In evalua~ing whether the £ ing of Turner was motivated in 

any part by his protected activities, i.e., complaints about 

exposure to t, it is not necessary to make a determination as 

to whether Turner had been notified by Salyers he had to 

work on Saturday, and whether Salyers or Turner initiated 

cursing, A determination of these matters does not have any 

bearing on the main issue here , i.e., the nexus if any between 

Turner's protected activities, and his firing. I find that 

1 ; ~cGuire was called by Salyers early that morning and did 

subsequently report to work. 

506 
Salyers manifested a slight degree of animus toward Turner's 

complaints about exposure to dust. However, the weight of the 

evidence establishes that Turner continued to curse Salyers after 

having been warned in this regard by the latter. I find that the 

evidence establishes, accordingly, that Salyers wo~ld have fired 

Turner in any event based on Turner's cursing him. I 

Accordingly, I find that it has not been established herein that 

Respondent discriminated against Complainant in violation of 

Section 105(c) of the Act. 

ORDER 

It is hereby ORDERED that this case be DISMISSED. 

~W~ger Administrative Law Judge 

Distribution: 

Donald E. Earls, Esq., 940 Park Avenue, P. O. Box 710, Norton, VA 

24273-0710 (Certified Mail) 

Karen K. Bishop, Esq., P. o. Box 1438, Wise, VA 24293 (Certified 

Mail) 

dcp 

2; This conclusion is not negated by the testimony of 

Complainant's witnesses, that other employees had cursed Salyers. 

I find this testimony alone insufficient to establish that Turner 

received disparate treatment. Specifically, the record fails to 

establish that there were any specific instances in which other 

employees had similarly cursed, not in jest, at Salyers after 

having been warned in that regard, and that these employees were 

not disciplined. 

507 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVL LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 91991 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EASTERN ASSOCIATED COAL 

CORPORATION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-198 

A. C. No. 46-01456-03826 

Federal No. 2 Mine 

DECISION ON REMAND 

Before: Judge Weisberger 

I. 

on February 23, 1990, I issued a Decision in this case 

wherein I found, inter alia, that Respondent's violation of 

30 C.F.R. § 75.400 was not a result of its 11 unwarrantable 

failure.'' On February 7, 1991, the Commission, pursuant to the 

granting of Petitioner's Petition for Discretionary Review, 

issued a Decision remanding the issue of unwarrantability 

" ... for further analysis and consideration" consistent with 

its Decision (Eastern Associated Coal Corp., 13 FMSHRC ~~' 

Docket No. WEVA 89-198, slip op., February 7, 1991). 

On February 19, 1991, a telephone conference call 

initiated by the undersigned with Counsel for both Parties, the 

latter were granted until March 12, 1991, to file Briefs. 

Subsequently, pursuant to Respondent's request, which was not 

objected to Petitioner, the date to file Briefs was extended 

to March 19, 1991. On March 14, 1991, Peti~ioner filed a Brief 

on Remand. Respondent filed a Brief on March 25, 1991. 

II~ 

In its Decision, supra, sl op. at 10, the Corrunission noted 

as follows with regard to matters not addressed in my original 

Decision: 

Evidence seemingly unaddressed by the judge in his 

analysis is relevant in considering the question of 

unwarrantable failure. The judge appears to have found 

that a leak was the source of the problem. See 

12 FMSHRC at 242. Thus, he apparently rejected the 

testimony of Eastern 1 s witnesses that the most 

508 
plausible explanation for what occurred was either a 

spill or overfill. The judge, however, made ho finding 

concerning how long the leak had continued unabated. 

If the leak had actually continued unabated from 

February 6, as Merchant testified, a lack of care on 

Eastern's part would appear to be present. Tr. 205-06. 

The area was fire-bossed daily and involved at least 

12 to 15 inspections (preshift and onshift) by four or 

five different people over the period February 6-8. 

Tr. 209, 233, 235; R. Exh. 6. (Emphasis added.) 

The rationale for the remand by the Commission in its 

Decision appears to be set forth as follows: "The fact that the 

judge did not reconcile his findings with respect to negligence 

and unwarrantable lure requires that we vacate his conclusion 

that no unwarrantable failure existed and remand this proceeding 

to the judge for further analysis and consideration." (Eastern 

Associated, supra, slip op., at 10.) · 

III. 

I have considered the arguments set forth in Respondent's 

Brief. However, I have limited my analysis and decision to the 

issues raised by the Commission in its rationale for the remand, 

and in its discussion of the deficiencies in the original 

Decision as set forth, infra, p. 1-2. 

Upon further analysis of the record, I find it establishes 

that Respondent was highly negligent with respect to the cited 

violations. The reasons for this conclusion are set forth in th2 

original Decision (12 FMSHRC at 242). Additionally, I note that 

Merchant indicated that on the 2 days prior to February 8, the 

date of the Citation at issue, the tipple was not leaking less. 

Further, in s regard, Merchant, the tipple operator, 

testified as follows on direct examination: 

Q. The previous two days did you put in an amount that 

was equal to the normal amount you would put in a 

tipple that's running well? 

You would put three to five cans in, which is from 

15 to 25 gallons in per shift (Tr. 206). 

Respondent did not adduce any testimony regarding the leak at the 

tipp for the period February 6-8. Hence, based on the 

testimony of Merchant that was not rebutted or impeached, I 

conclude that the leak at the tipple continued unabated from 

February 6. Since, as noted by the Commission in its Decision, 

(slip op, supra, at 10), the area was fire bossed daily and 

involved at least 12 to 15 inspections by four or five people 

over.the period February 6-8, I thus conclude that the evidence 

establishes a significant lack of care on Respondent's part in 

not detecting the leak. 

509 
For the above reasons, upon reconsideration, I conclude that 

Respondent's high level of negligence reached the level of 

aggravated conduct. As such, I find that the violation herein 

was the result of Respondent's unwarrantable failure (see, Emery 

Mining Corp., 9 FMSHRC 1997, 2004, (1987)); Youghiogheny & Ohio 

Coal Co., 9 FMSHRC 2007, 2010 (1987)-}. -

ORDER 

It is ORDERED that Citation No. 3100463 be converted to the 

original Section 104(d)(2) withdrawal der. 

Distribution: 

Avram eisberger 

Administrative Law Judge 

Glenn M. Loos, Esq.~ -Office of the Solicitor, u. s. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Thomas L. , ., 800 Laidley Tower, Post Office Box 1233, 

Charleston, WV 25324 (Certified Mail) 

dcp 

510 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

March 19, 1991 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

. . Docket No. WEST 90-320 

A.C. No. 42-00121-03725 

Docket No. WEST 90-321 

A.C. No. 42-00121-03726 

UTAH POWER AND LIGHT COMPANY, 

MINING DIVISION, Deer Creek Mine 

Respondent 

Docket No. WEST 90-322 

A.C. No. 42-01944-03578 

Docket No. WEST 90-323 

A.C. No. 42-01944-03579 

Docket No. WEST 90-324 

A.C. No. 42-01944-03580 

Cottonwood Mine 

ORDER DENYING RESPONDENT'S MOTION TO REMAND 

Respondent UPL's Motion to Remand (dated November 16, 1990) 

the above five dockets (containing 30 challenged enforcement documents, i.e., Citations or Orders) to the Secretary of Labor 

(MSHA) for recomputation (reassessment) of the proposed penalties 

in accord with the Secretary's regulations (30 C.F.R. Part 100}, 

is opposed by the Secretary (Opposition to Motion to Remand dated 

January 30 1990)0 

Sumrnarv of Contentionsg 

UPL contends~ 

That the 30 proposed penalties were calculated on the 

basis of rules that MSHA 0'unlawfully implemented without public 

notice and comment as required by the Administrative Procedure 

Act,m i.e., its Program Policy Letter P90-III-4. 1 Related to 

l After receiving a directive of the Circuit Court of Appeals 

for the District of Columbia Circuit in Coal Employment 

Project v. Dole, 889 F.2d 1127 CD.C. Cir. 1989) to do so, 

MSHA promulgated its three-page MSHA Policy Program Letter 

P90-III-4 (herein PPL) which issued and became effective 

May 29, 1990, the stated purpose of which was to implement a 

program for higher civil penalty assessments at mines with 

an "excessive history" of violations. 

511 
this contention, is UPL's argument that MSHA did not follow its 

own (pre-existing the PPL) regulations pertaining to penalty 

assessment. 

2. The PPL exceeds the scope of the Court's Order in Coal 

Employment Project. 

3. MSHA's "excessive history" penalties under the PPL provisions are unlawfully retroactive since all but 1 of the 30 subject citations were issued prior to the effective date of the 

PPL, May 29, 1990; the new PPL "policy" is detrimental to a mine 

operator since the mine operator is deprived of a knowing choice 

between contesting or paying earlier "single penalty assessments 

and other violations." 

MSHA contends~ 

L The Commiss..ion lacks jurisdiction to order MSHA to reassess a proposed penalty. 

2. a. The PPL was properly applied by MSHA in proposing 

the penalties involved here because it is not subject to the 

notice and comment provisions of the Administrative Procedure Act 

(herein APA) o 

b. Assuming arguendo that the "notice and comment" rerequirements of the APA apply to the PPL, the directive of the 

Circuit Court in Coal Employment Project, supra, places the PPL 

within the "good cause" exception [5 u.s.c. 553(b)(B)] which provides that the notice and comment provisions are not applicable 0 when the agency good cause finds that notice and public 

procedure thereon are impracticabler unnecessary 0 or contrary to 

the public interestan 2 

Co As to 22 of the 30 subject citations and orders, 

such were the subject of nspecial assessmentsn under 30 C.F.R. 

0.5 and were proper and consistent with such regulation since 

it provides that 8 some types of violations may be of such a 

nature or seriousness that it is not possible to determine an 

appropriate penalty under~v the regular assessment formula (Section 100.3) or the single penalty assessment formula (Section 

2 

Q Q a 4) o Go 

I subsequently conclude that the PPL complied with the triggering provisions of the "good cause" exception. See also 

Fn. 13u Secretaryvs Opposition dated January 30, 1991. 

512 
Ci) Section 100.5 clearly provides that "MSHA may 

elect to waive" the regular assessment formula 

if it determines that conditions surrounding the 

the violation warrant a special assessment. 

Cii) Types of violations qualifying for special 

penalty assessment are identified in Section 

100.S{h) as those involving: 

a) a high degree of negligence 

b) a high degree of seriousness 

c) unique aggravating circumstances. 3 

3. The "excessive history" provisions of the PPL were not 

retroactively applied since: 

a. the critical time consideration is when the alleged 

violations were assessed by MSHA, not when the citations were issued; when the 30 subject penalty proposals (assessments) were 

issued the PPL provisions were in place. 

b. the "excessive history" provisions do not constitute 

a 11 rule" within the meaning of the APA, and assuming arguendo 

they were applied retroactively, since they were not a rule the 

APA prohibi~ions against retroactivity do not apply. 

Decision 

MSHAus contention that the Commission lacks general jurisdiction to order the requested remand is rejectedo Absent change 

of policy in the future 0 the Commission has ruled on this question a Thusu while the Commission has previously determined that 

the Secretary 9 s penalty regulations are not binding on the Commission, Sellersburg Stone Co., 5 FMSHRC 287 <1985), aff'dff 736 

Fo2d 1147 (7th Ciro 1984)v the Commission has specifically held 

3 MSHA contends that the "special historyv• assessment provisions of the PPL qualify as implementation of the special 

assessment provision under 100.5 since a mine operator's 

history of numerous violations can be such as to constitute 

"aggravating circumstances." Although not the crux of this 

decision, I emphatically concur with this argument. 

513 
that a mine operator may, prior to hearing, raise and, if appropriate, be given the opportunity to establish, that in proposing 

.Penalties the Secretary failed to comply with her Part 100 penalty regulations. Youghiogheny & Ohio Coal Company, 9 FMSHRC 

673, 679-680 (1987). Given the Commission's independent penalty 

assessment authority, the scope of the inquiry is limited: 

whether the Secretary had arbitrarily proceeded under a particular provision of her penalty regulations. Secretary v. Missouri 

Rock, Inc., 11 FMSHRC 136 (Feb. 1989). What the Commission actually stated in Youghiogheny, in terms of the purposes of and restrictions for remand is significant: 

We further conclude, however, that it would 

not be inappropriate for a mine operator prior to 

a hearing to raise and, if appropriate, be given 

an opportunity to establish that in proposing a 

penalty the Secretary failed to comply with his 

Part 100 pt;nalty regulations. If the manner of 

the Secretary's proceeding under Part 100 is a 

legitimate concern to a mine operator, and the Secretary1 s departure from his regulations can be 

proven by the operator, then intercession by the 

Commission at an early stage of the litigation 

could seek to secure Secretarial fidelity to his 

regulations and possible avoidance of full adversarial proceedings. However, given that the Secretary need only defend on the ground that he did 

not arbitrarily proceed under a particular provision of his penalty regulations, and given the 

Commission's independent penalty assessment authority" the scope of the inquiry into the Secretary 0 s 

actions at this juncture necessarily would be 

lirniteao (Emphasis added)" 

Summing up: 

~" The motion for remand must be made prior to a hearing to 

obtain °possible avoidance of full adversarial proceedingsn and 

to obtain Secretarial fidelity to assessment regulations; 

2o the Secretary need only defend on the ground that she 

ITTdid not arbitrarily proceed under a particular provision~ of the 

regulations1 and 

3o the scope of the inquiry, in view of the Commission's de 

novo assessment authority, is limited. 

514 
Under its own rules announced in Youghiogheny, supra, is the 

Commission's jurisdiction to remand to MSHA for penalty reproposal authorized, that is, did the Secretary (.MSHA) arbitrarily 

proceed under the Part 100 regulations? Assuming for the sake of 

argument that the Commission remand is found warranted under 

Youghiogheny, whether such remand should be ordered in view of 

the Circuit Court's pending jurisdiction over the questions would 

seem to be a policy matter for the Commission which I do not directly entertain here. Nevertheless, the possibility is recognized that Commission remand might well turn--as UPL urges--on 

the invalidation of the PPL, an action the Circuit Court has not 

yet taken. 

I am unable to conclude that the action of the Secretary in 

proposing penalties calculated under the formula of the PPL is 

arbitrary. It remains to be seen whether or not such formula 

will ultimately be determined to be inconsistent with both 

(a) its Part lOQ regulations as they were interpreted prior 

to the assertion of the Circuit Court's jurisdiction in 

Coal Employment Project, and 

(b) the Circuit Court's directive and mandate in Coal Employment Project. 

What is clear is that the PPL is MSHA's direct attempt at 

compliant response, i.e., a reinterpretation of certain of its 

Part 100 regulations, to the Court's directives in Coal Employment Project. See Per Curiam Opinion (No. 88-1708) filed 

April 17, l990u in this section (Ex. R-8 to UPL's Memorandum)e 

wherein in the Court indicated that it was dissatisfied with 

MSHAis interim regulation (prior to the PPL)~ 

In particularv we are troubled by the scenario of 

repeated low negligence violations. By our reading of the MSHA interim regulation, unless MSHA 

determined that such repetition amounted to high 

negligence" the offending mine operator would be 

assessed only a series of single penalties.so• 

In light of MSHAus substantial discretion in determining what constitutes "high negligence," we 

fear that even a series of identical non-S&S violations may not require MSHA to invoke the violation history criterion and may not generate more 

than a single penalty each time. Thus MSHA 9 s 11 high 

negligence" requirement seems inconsistent with 

the concerns we voiced ••• in our opinion that even a 

string of non-S&S violations would generate only a 

series of $20 penalties. 

515 
Subsequent to the Court's Per Curiam Opinion, the PPL was 

issued. Thereafter, the mine operator's motion to remand to MSHA 

for reassessment in this matter (and at least two other such motions in similar circumstances before other administrative law 

judges) have been filed. 

There is no question but that the penalty assessments here 

under the PPL are calculated differently from and are higher (the 

augmentation being based on increases sterruning from {"excessive 

history" calculations) than they would have been under pre-Coal 

Employment Project and pre-PPL Part 100 formulations. Thus-;-tile 

question of arbitrariness--and Corrunission jurisdiction to remand 

--appears to rest on whether Cl} the Court's assertion of jurisdiction over MSHA and its penalty assessment regulations, and 

(2) its resultant directives to MSHA, justify such changes. 

There is no reason to conclude that MSHA's promulgation and application of the PPL was instigated by any consideration other 

than the Circuit Court 1 s mandate. 4 The increases in UPL 1 s 30 

assessments here result from the Court's instructions to MSHA. 

In such circumstances can MSHA's complained-of action be said to 

be arbitrary? 5 

4 

5 

The authority of the federal court, once having been exercised in a particular matter, guards against deviation. See 

City of Cleveland v. Federal Power Commission, 561 F.2d 3~ 

(D.C. Cir. 1977). 

The word ~arbitrary" is not synonymous with "correct." 

American Petroleum Institute v. E.P.A. 9 661 F.2d 340v 349 

(5th Ciro 1981)0 Blackgs Law Dictionary (5th Ed. 1979) 

defines aarbitrary~ as follows: 

Arbitrary. Means in an "arbitrary" manner, as 

fixed or done capriciously or at pleasure. Without 

adequate determining principle9 not founded in the 

nature of thingsu nonrational, not done or acting 

according to reason or judgment1 depending on the 

will aloneu absolutely in power; capriciously; tyrrannical0 despotic; Cornell v. Swisher County, Tex. 

Civ. APP•u 78 S.W.2d 1072u 1074. Without fair, solidu and substantial cause~ that is, without cause 

based upon the law, U.S. v. Lotempio, D.C.N.Y. 58 

F.2d 358, 359~ not governed by any fixed rules or 

standard. Ordinarily, "arbitrary" is synonymous 

with bad faith or failure to exercise honest judgment and an arbitrary act would be on performed 

516 
I think not and, in agreement with the Secretary's welldelineated position, I find that it was proper and not arbitrary 

for the Secretary in this case, in response to the Court's directive in Coal Employment Project to consider UPL's "excessive 

history" of violations, not only in determining whether 8 of the 

30 violations qualified for single penalty assessment, but also 

whether the remaining 22 violations should be assessed under the 

special assessment formula of Section 100.5 instead of the regular assessment formula of Section 100.3. To do otherwise would 

result in inconsistent enforcement of the Mine Act: recividous 

mine operators (or operators with otherwise unsatisfactory compliance track records) would be able to evade the consequences 

of their "excessive history" of violations solely because their 

conduct was too serious to be considered for a single penalty 

assessment. Application of the Secretaryvs excessive history 

policy only to violations whch might qualify for single penalty 

assessment, and not to violations which otherwise would be reguarly assessed, would result in a situation where the more serious 

violations (i.e.v the regularly assessed violations) are treated 

more leniently than vfolations which pose a lesser threat to the 

miners 1 safety and health <i.e., the singly assessed violations). 

Given the Court's concern in Coal Employment Project about assigning proper weight to an operator's history of violations and 

the need for civil penalties to serve as a deterrent to future 

violative conduct, the Secretary's policy of considering whether 

an operator's history is sufficient to raise a regular assessment 

is consistent with the holding in Coal Employment Project as well 

as with the Mine Act. 

(continued from previous page) 

without adequate determination of principle and one 

not founded in nature of things" Huey Ve Davisu 

Tex o Ci v " App o 5 5 6 S " W o 2 d 8 6 0 u 8 6 5 " 

Certainlyu MSHAu in attempting to carry out the 

rcuit court's willff cannot be accused of bad 

faith or acting in a capriciousff tyrannicalv irrational e or absolutistic wayo Whether or not it is 

determined in the future that it proceeded at the 

time of its passage of the PPL in accordance with 

all of the numerous requirements being placed on 

it from several different directions begs the question. There is no basis to find that it acted without substantial cause or without good reasons. 

517 
The related argument of UPL bears scrutiny. At page 9 of 

the Memorandum supporting its Motion, UPL contends: 

The computations of the proposed penalties for 

the 22 alleged S&S violations have characteristics 

of both regular and special assessments, but are in 

fact neither. The proposed penalties are based in 

part on penalty points computed by using the criteria 

in 30 C.F.R. § 100.3, like the regular assessment, 

including penalty points for history of previous violations, with the unenhanced proposed penalties reported on the standard MSHA Form 1000-179, as though 

they were regular assessments .••• Yet, like special assessments, these proposed penalties come with "Narrative Findings for a Special Assessment," which expressly waive the regular assessment formula MSHA in 

fact just used, invoke the special assessment regulation, and state that the penalty amount has been increased by a certain percentage for "excessive history." ••• ~hus, rather than "waive the regular assessment formula (§ 100.3)," and impose a special assessment as § 100.5 provides where "it is not possible to 

determine an appropriate penalty under [the regular 

assessment formula or the single penalty provision)," 

MSHA instead did compute the penalty under the regular 

assessment formula but then also added to it an additional penalty under § 100.5. 

This contention is found hypertechnical and is rejected. 

Specifically, it appears that MSHA, following the temporary 

interim procedure outlined in the PPL did for all intents and 

purposes waive the regular assessment formula and did impose a 

special assessment under Section 100o5o The PPL itself indicates g n

1

MSHA has elected to waive the regular formula assessment 

and assess them under the special assessment provisions of 30 

C.F.R. § 100.5. 0 The clear--and stated--purpose of the PPL is to 

implement a program for higher civil penalties at mines with an 

excessive history of violations and this directly deals with the 

concerns of the DoCo Circuit Court in Coal Employment Projecte 

suprao 

It is found that the special-history assessment provisions 

of the PPL fall within the special penalty assessment formula of 

C.F.Ro § 100.So The Secretary 1 s assessing 22 of the 30 violations at issue under the special penalty assessment provisions of 

Section 100.5 is consistent with her 30 C.F.R. Part 100 regulations. Thus Section 100.5 specifically provides that "MSHA may 

elect to waive the regular assessment formula (§ 100.3) or the 

518 
single assessment provision (§ 100.4) if the Agency determines 

that conditions surrounding the violation warrant a special assessment." (Emphasis added). 

Some of the types of violations which the Secretary has 

identified as qualifying for a special penalty assessment appear 

in Section 100.S(h), to wit: "Violations involving an extraordinarily high degree of negligence or gravity or other unique 

aggravating circumstances." (Emphasis added). The special-history assessment provisions challenged by UPL constitute a proper 

method for implementing this special category. The special-history provisions of the PPL were reasonably adopted by the Secretary to ensure that the penalty fits the infraction where an operatorv s history of violations is such that it properly constitutes an uaggravating circumstance." It is held that "excessive 

history" (like excessive negligence and excessive gravity) fits 

within the category of "aggravating circumstances" and that there 

exist reasoned bases for this judgment of the Secretary. 

Finally, and one~ again assuming arguendo, that the "notice 

and comment" provisions of the APA apply to the PPL, since the 

PPL accomplishes the result mandated by Coal Employment Project, 

to properly consider the operator's history of violations--the 

PPL falls within the "good cause 11 exemption of the APA. Specifically, the notice and comment provisions of the APA do not apply when the agency, as here, "for good cause finds (and incorporates the finding and a brief statement of reasons therefor in 

the rules issued) that notice and public procedure thereon are 

impracticable, unnecessary, or contrary to the public interest." 

5 UoS.C. § 553(b)(B). (Emphasis added). See Mid-Tex Elec. Coopv Inc.p Vo F.E.R.C.v 822 F.2d 1123 (D.C. Cir. 1987), involving as here" an niinterim11 order of a temporary nature. In the 

instant case 7 the overwhelming fact of the D.C. Circuit Court 1 s 

control over and directions to MSHA would seem sufficient to 

trigger the applicability of the "good cause" exemption of the 

APA to the PPL, and, if sufficient for that purpose, would negate 

the presence of caprice, whim, bad faith, and arbitrariness in 

MSHA's issuance of the PPL. 

Conclusion 

There is no basis asserted in the record to find that the 

Secretary has proceeded arbitrarily under any provision of her 

penalty regulations. As the Secretary argues, this case involves 

the manner in which MSHA "weighs 11 the "history of violations" 

criterion--a mandatory statutory penalty assessment factor--and 

UPL's objection actually goes to the weight assigned by MSHA to 

an assessment criterion (the history criterion) rather than to 

519 
the arbitrary failure of the Secretary CMSHA) to follow her 

regulations. Respondent's motion is found to lack merit. 6 

ORDER 

The Commission's standard for remand of the Secretary's penalty proposals for recomputation not having been met by Respondent UPL, its motion therefor is DENIED. 

Distribution: 

c?J./e~~J ~' ~J:d?t j'J r 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Carl c. Charneski, Esq., Edward H. Fitch, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Suite 

423, Arlington, VA 22203 

Jo Michael Klise, Esq., Thomas C. Means, Esq., CROWELL & MORING, 

1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505 

6 In failing to obtain remand, UPL is not left without substantial remedy. Independent de novo penalty evaluation 

is achievable before the Commission, should a&~inistrative 

or pre-trial settlement negotiation with MSHA not mitigate 

penalty levels. As to the propriety of the PPL penalty 

conformations, such are subject to challenge before the 

federal appellate court. Both forums presently have active 

jurisdiction for these respective purposes. 

520 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 19 199\ 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Docket No. WEVA 90-171 

A.C. No. 46-03805-03968 

Martinka No. 1 Mine 

PA~TIAL SETTLEMENT DECISION 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns civil penalty proposals filed by 

the petitioner against the respondent pursuant to section llO(a) 

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

§ 820(a), seeking civil penalty assessments for three alleged 

violations of certain mandatory safety standards found in 

Parts 75 and 77, Title 30, Code of Federal Regulations. The 

respondent filed a timely contest and the case was scheduled for 

hearing in Morgantown, West Virginia, on March 5, 1991. However, 

the case was stayed on February 8, 1991, at the request of the 

petitioner pending a Commission decision in a related matter 

dealing with mandatory safety standard 30 C.F.R. § 77.404(a), the 

standard relied on by the inspector when he issued two of the 

contested citations in this case. 

By motion received on February 25, 1991, and filed by the 

petitioner pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, 

the parties seek approval of a proposed settlement of contested 

section 104(d) (2) "S&S 11 Order No. 3117257, issued on January 11, 

1990, and citing an alleged violation of mandatory safety 

standard 30 c.F.R. § 75.305. The parties assert that the 

proposed settlement does not involve the pending contested 

citations for alleged violations of section 77.404(a), and that 

the stay order with respect to those citations remains in effect. 

521 
Discussion 

In support of the proposed settlement of Order No. 3117257, 

the petitioner has submitted information pertaining to the six 

statutory civil penalty criteria found in section llO(i) of the 

Act. The petitioner has also submitted a full discussion and 

disclosure as to the facts and circumstances surrounding the 

issuance of the order. The petitioner asserts that after further 

investigation of the factual circumstances surrounding the 

violation, it has agreed to modify the contested section 

104(d) (2) order to a section 104(a) 11 S&S" citation without a 

finding of unwarrantability. The petitioner has also agreed that 

the initial proposed civil penalty assessment of $395, should be 

reduced to $200, and it concludes that the proposed settlement 

and payment of $200 is reasonable and will serve to effect the 

intent and purposes of the Act. 

Conclusion 

After careful review and consideration of the pleadings, 

arguments, and submissions in support of the motion to approve 

the proposed settlement of the order in question, I conclude and 

find that the proposed settlement disposition is reasonable and 

in the public interest. Accordingly, the motion for partial 

settlement filed in this case IS GRANTED, and the settlement IS 

APPROVED. 

ORDER 

The respondent IS ORDERED to pay a civil penalty assessment 

in the amount of $200 in satisfaction of the modified section 

104(a) 11 S&S 11 Citation No. 3117257, 30 C.F.R. § 75.305. Payment 

is to be made to MSHA within thirty (30) days of this partial 

settlement decision and order, and I reserve final disposition of 

the matter until payment is made in compliance with this order. 

With regard to the remaining two contested citations for 

alleged violations of 30 C.F.R. § 77.404(a) (Citation 

Nos. 3112059 and 3112060), the previously issued Order Staying 

Proceeding February 8, 1991, pending further 

notice. 

Distribution: 

Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of 

Labor, Ballston Towers #3, 4015 Wilson Boulevard, Suite 516, 

Arlington, VA 22203 (Certified Mail) 

Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & Critchfield, 

Suite 4, 5000 Hampton Center, Morgantown, ii/V 26505 

(Certified Mail) 

522