November 1982 

Comnission Decisions 

11-30-82 William A. Haro v. Magma Copper Co. WEST 79-49-~f Pg. 1935 

Administrative Law Judge Decisions 

11-01-82 William A. Haro v. Magma Copper Co. WEST 81-365-DM Pg. 1948 

11-02-82 Rayn:ond Fa..rmer v. Eastern Associated Coal WEVA 82-135-D Pg. 1957 

11-04-82 iConsolidation Coal Co. LAKE 82-69-R Pg. 1960 

11-08-82 Energy Coal Corp. WEVA 82-371-R Pg. 1964 

11-10-82 Sun Landscaping & Supply Co. WEST 80-425-M Pg. 1967 

11-10-82 Energy Fuel Nuclear WEST 81-385-M Pg. 1970 

11-12-82 David Hollis v. Consolidation Coal Co. WEVA 81-480-D Pg. 1974 

11-15-82 MSHA ex rel Qnar J. Persinger CENT 80-202-DM Pg. 1997 

11-15-82 John Cullen Rock Crushing WEST 82-33-M Pg. 2005 

11-16-82 MSHA ex rel Lenward H. Wood CENT 81-183-DM Pg. 2010 

11-18-82 Mountain Drive Coal Co. KENT 81-110-R Pg. 2019 

11-19-82 Eastover Mining Co. KENT 81-141 Pg. 2029 

11-19-82 Billy IYioon Tipple SE 81-50 Pg. 2034 

11-23-82 Shamrock Coal Co. KENT 81-228 Pg. 2037 

11-23-82 Richard E. Bjes v. Consolidation Coal Co. PENN 82-26-D Pg. 2043 

11-23-82 West Freedom Mining Corp. PENN 82-176 Pg. 2069 

11-23-82 New River Fuel, Inc. WEVA 82-250 Pg. 2074 

11-23-82 Melvin L. Cass v. Trew Corp. YORK 82-22-DM Pg. 2079 

11-24-82 Consolidation Coal Co. PENN 82-203-R Pg. 2093 

11-24-82 Mathies Coal Co. PENN 82-209-R Pg. 2099 

11-30-82 Coonnnwealth Mining Co. KENT 81-96-R Pg. 2106 

11-30-82 U. S. Steel Corp. PENN 81-207-R Pg. 2111 

11-30-82 Shannopin Mining Co. PENN 81-209-D Pg. 2114 
Commission Decisions 
NOVEMBER 

!he following case was Directed for Review during the month of November: 

Secretary of Labor, HSHA v. Thompson Brothers Coal Company, Docket No. 

PENN 81-171. (Judge Broderick, September 23, 1982) 

Review was Denied in the following cases during the month of November: 

Secretary of Labor v. FMC Corporation, Docket Nos. WEST 81-131-RM, 

WEST 81-234-M, WEST 80-380-M. (Judge Morris, October 7, 1982) 

Secretary of Labor v. Bill Garris, Docket No. LAKE 82-90. (Judge 

Moore, Interlocutory Review of October 14, 1982 Order) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

WILLIAM A. HARO 

v. 

MAGMA COPPER COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 30, 1982 

DECISION 

Docket Nos. WEST 79-49-DM 

WEST 80-116-DM 

This discrimination case involves a number of alleged violations of 

section 105(c)(l) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et (1976 & Supp. IV 1980). For the reasons that 

follow, we affirm the administrative law judge's decision in part, and 

reverse and remand in part. 

At the time of the events in this case, the complainant, William Haro, 

was a journeyman mechanic at Magma Copper Company 1 s underground copper 

mine in San Manuel, Arizona. Haro asserted below that Magma took discriminatory actions against him in three separate incidents because of 

his exercise of rights protected by the Mine Act. The first alleged act 

of discrimination was Haro's transfer in June 1978 from the swing shift 

to the day shift. The transfer occurred after Haro had refused to 

remove a railroad car from a production train unless he received assistance 

and had protested an order to tie a tail light on another railroad car. 

In the second incident, Haro received a written warning for refusing to 

change a grease line. In the final incident, Magma required Haro to 

attend safety training and transferred him to a different job after he 

was involved in an accident while servicing an airslusher in November 

1978. !:_/ 

The administrative law judge concluded that Haro's refusal to cut 

the railroad car from the train was a protected work refusal and that 

Magma discriminated against Haro by transferring him after this incident. 

1/ The judge's decision is reported at 3 FMSHRC 2421 (October 198l)(ALJ). 

]:_/ Two complaints of discrimination filed by Haro are consolidated in 

this case. The first, Docket No. WEST 79-49-DM, involves the grease 

line and airslusher incidents; the second, Docket No. WEST 80-116-DM, 

involves the railroad car incident. In addition to these complaints, 

Haro filed with the Commission two others, which were dismissed after 

hearings before an administrative law judge. Haro v. Magma Copper Co., 

4 FMSHRC 1350 (July 1982)(ALJ), and Haro v. Ma~Copper Co., WEST 81-

365-DM (November 1, 1982)(ALJ). In the former case, the judge concluded 

"that Haro failed to prove that a five day suspension and reprimand were 

motivated in any part by protected activity. In the latter, the judge 

concluded that Haro had not proved that his termination by Magma on 

February 12, 1981, was motivated in any part by protected activity. 

1935 

82-11-
3 FMSHRC at 2424-25. He determined, however, that Hare's protest over 

tying a tail light on a railroad car did not involve protected activity. 

3 F11SHRC at 2424. The judge held that Haro's refusal to change the 

grease line was a protected work refusal, and concluded that Magma's 

issuance of a written warning to Haro violated the Mine Act. 3 FMSHRC 

at 2425-27. Concerning the airslusher incident, the judge concluded 

that Haro did not prove that he had engaged in protected activity, and 

dismissed Hare's complaint as to this incident. 3 FMSHRC at 2427-28. 

The judge awarded Haro back pay of $3,500 for the time from his transfer 

after the railroad car incident to the date of the hearing, and additional 

backpay in an unspecified amount from until Hare's termination by Magma. 3 FMSHRC at 2430. The judge also ordered that Haro's 

employment record be expunged of all references to his refusal to change 

the grease line. 3 FMSHRC at 2427. 1./ 

raises several issues on review: First, that the judge erred 

in d its evidence of a legitimate business reason for transferring Haro after the railroad car incident; second, that the judge 

erred in finding that Haro had a reasonable, good faith belief in a 

hazard when he refused to change the grease line; and third, that the 

judge erred in calculating back pay. , although Magma prevailed 

on the issue of discrimination in the airslusher incident, it objects to 

the j 's finding that Haro was not responsible for the airslusher 

accident. Haro did not file a petition for review. 

We reverse the judge's finding of a violation regarding the railroad car incident, and remand for further of fact and conclusions of law. We affirm his holding that Magma violated section 

105(c)(l) of the Mine Act in connection with the grease line incident. 

While we will not review the merits of the airslusher incident because 

Haro did not petition for review, we do disapprove the judgers dicta 

concerning responsibility for the accident. 

Analytical Framework 

We first established the general principles for analyzing discrimination cases under the Mine Act in.;;;..:::.:..;;;;...:__;;:.;;.;;__;;;_;:=· Fasula v. Con-

.::....:.c:::::.:::::.=:;..=.=c:..=_;;._~;;;.._'-"-·' 2 FMSHRC 2786 (October 

grounds sub nom. Consolidation Coal Co. v. (3d 

Cir. 1981), and Sec. ex rel. Robinette v. Co., 3 

FMSHRC 803 (April 1981). In these cases we held that a complainant, in 

order to establish a prima facie case of discrimination, bears a burden 

of production and persuasion to show (1) that he engaged in protected 

activity and (2) that the adverse action was motivated in any part 

The judge declined. to order Haro's reinstatement because Haro's 

termination was the subject of a discrimination complaint in WEST 

81-365-DM then pending before a different administrative law judge, and 

he did not wish to "intrude into the issues raised in that case." 3 

FMSHRC at 2429. (As noted above (n., 2), the judge in that case determined 

that Haro's termination was in no part motivated by protected activity, 

and dismissed his complaint.) 

1936 
by the protected activity. Pasula, 2 FMSHRC at 2799-2800; Robinette, 3 

FMSHRC at 817-18. !!../ In order to rebut a prima facie case, an operator 

must show either that no protected activity occurred or that the adverse 

action was in no part motivated by protected activity. Robinette, 3 

FMSHRC at 817-18 & n. 20. If an operator cannot rebut the prima facie 

case in this manner, it may nevertheless defend by proving that (1) it 

was also motivated by the miner's unprotected activities, and (2) that 

it would have taken the adverse action in any event for the unprotected 

activities alone. Pasula, 2 FMSHRC at 2799-2800. The operator bears an 

intermediate burden of production and persuasion with regard to these 

elements of defense. Robinette, 3 FMSHRC at 818 n. 20. This further 

line of defense applies only in "mixed motive" cases, i.e., cases where 

the adverse action is motivated by both protected and unprotected activity. 

We made clear in Robinette that the ultimate burden of persuasion does 

not shift from the complainant in either kind of case. 3 FMSHRC at 818 

n. 20. The foregoing Pasula-Robinette test is based in part on the 

Supreme Court's articulation of similar principles in Mt. Healthy City 

School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87 (1977). 

In Sec. ex rel. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November 1981), pet. for review filed, No. 81-2300 (D.C. Cir. December 11, 

1981), we affirmed our Pasula-Robinette test, and explained the proper 

criteria for analyzing an operator's business justifications for an 

adverse action: 

Commission judges must often analyze the merits of an 

operator's alleged business justification for the 

challenged adverse action. In appropriate cases, they 

may conclude that the justification is so weak, so implausible, or so out of line with normal practice 

that it was a mere pretext seized upon to cloak discriminatory motive. But such inquiries must be restrained. 

The Commission and its judges have neither the 

statutory charter nor the specialized expertise to 

sit as a super grievance or arbitration board meting 

out industrial equity. Cf. Youngstown Mines Corp., 

1 FMSHRC 990, 994 (1979)-.- Once it appears that a 

proffered business justification is not plainly incredible or implausible, a finding of pretext is 

inappropriate. We and our judges should not substitute for the operator's business judgment our 

!±./ As we have recently held, illegal discrimination may also occur in 

the absence of protected activity where the adverse action is motivated 

by a suspicion or belief that protected activity has occurred. Moses v. 

Whitley Development Corp., 4 FMSHRC 1475, 1480 (August 1982). The 

analysis of such cases closely f ollo~s the analytic framework described 

here. Id. 

1937 
views on "good" business practice or on whether 

a particular adverse action was "just" or "wise." 

Cf. NLRB v. Eastern Smelting & Refining Corp., 

598 F.2d 666, 671 (1st Cir. 1979). The proper focus, 

pursuant to Pasula, is on whether a credible justification figured into motivation and, if it did, 

whether it would have led to the adverse action 

apart from the miner's protected activities. If a 

proffered justification survives pretext analysis 

•.• ,then a limited examination of its substantiality 

becomes appropriate. The question, however, is not 

whether such a justification comports with a judge's 

or our sense of fairness or enlightened business 

practice. Rather, the narrow statutory question is 

whether the reason was enough to have legitimately 

moved that operator to have disciplined the miner. 

Cf. R-W Service System Inc., 243 NLRB 1202, 1203-04 

(1979)(articulating an analogous standard). 

3 FMSHRC at 2516-17. Thus, we first approved restrained analysis of an 

operator's proffered business justification to determine whether it 

amounts to a pretext. !iJ Second, we held that once it is determined 

that a business justification is not pretextual, then the judge should 

determine whether "the reason was enough to have legitimately moved the 

operator" to take adverse action. 

The Secretary misunderstands our holding. He asserts that the 

formulation of the operator's defense quoted above allows an employer to 

meet its burden merely by putting forward "any facially plausible 

reason, other than protected activity, for the adverse action." Br. at 

7. To the contrary, the reference in Chacon to a "limited" and "restrained" examination of an operator's business justification defense 

does not mean that such defenses should be examined superficially or be 

approved automatically once offered. Rather, we intend that a judge, in 

carefully analyzing such defenses, should not substitute his business 

judgment or sense of "industrial justice" for that of the operator. As 

we recently explained, "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." Bradley v. Belva Coal Co., 

4 FMSHRC 982, 993 (June 1982)(emphasis added). !ii 

See,~·· Moses v. Whitley, 4 FMSHRC at 1481-82, in which we concluded that evidence of a "business justification" based on poor performance was so weak as to make the defense virtually pretextual. 

!ii In Bradley v. Belva, we also mentioned some of the ways in which an 

operator may attempt to establish that it was motivated by the asserted 

business reason: "Ordinarily, an operator can attempt to demonstrate 

this by showing, for example, past discipline consistent with that meted 

out to the alleged discriminatee, the m~ner's unsatisfactory past work 

record, prior warnings to the miner, 'or personnel rules or practices 

forbidding the conduct in question." 4 FMSHRC at 993. 

1938 
restated the principles that govern this case, we now apply 

them to the facts before us. ]_/ 

The "Bad Order" Railroad Car 

On June 13, 1978, Haro was asked by a dispatcher to cut out a bad 

order ("B.O") car on a production train. §) "Bad order" means in 

unsafe condition. Haro, relying on a company memorandum, refused to 

remove the car without assistance. After speaking with the dispatcher, 

Haro reported to Stonehouse, the shaft foreman and his immediate on-site 

Tr. 62. Haro then called Torres, a supervisor from Hare's 

This case provides an appropriate occasion for noting recent 

in an· analogous body of discrimination law developed by the 

National Labor Relations Board. That agency also took its lead from 

v. Doyle, supra, and estaba discrimination case similar to the one adopted in 

Fasula and Robinette. 251 NLRB 

1083, 1086-89 (1980), enf NLRB v. Wright Line, a Div. of 

, 662 F. 1981), cert. denied, 102 S, Ct. 

A number of Circuit Courts of Appeals have approved the 

NLRB 1 s Line approach in its See, fgr example, Zurn 

NLRB, 680 F.2d 683, 686-93 (9th Cir. 1982); NLRB v. 

--, 669 F.2d 547, 550 & n. 4 (8th Cir. 198~ The .;;;._c;.;_;;_;;_;~;_c;_=--=..5.l-__;;;_;__._ 

First Circuit, in its decision enforcing the NLRB's Wright Line 

substantially agreed with the NLRB's test, but disagreed on two points: 

The Court held that a burden of production, but not persuasion, shifts 

to the employer after a prima facie case is established, and that the 

employer's burden to produce such evidence "in no way resembles a true 

affirmative defense." 662 F.2d at 901-07 & n. 9. The First Circuit 

noted that the Supreme Court announced a similar scheme for allocating 

burdens of proof in Title VII cases in Texas Dept. of Community Affairs 

v. Burdine 450 U.S. 248 (1981). On November 15, 1982, the Supreme 

Court granted certiorari in a case involving Wright Line issues to 

resolve the conflict in the Circuits regarding the Wright Line test, and 

to resolve the apparent tension between Mt. Healthy, and 

supra. NLRB v. Transporation Management Corp., 674 F.2d 130 

Cir. 1982), cert. granted, 51 U.S.L.W. 3373 (U.S. November 16, 

1982)(No. 82-168). 

For the present, we will adhere to the allocation of burdens of 

proof announced in Fasula and in Mine Act discrimination cases. 

§_/ At the time of these events, Haro was a dump mechanic working on 

the swing shift with no supervisors from the mechanical department, 

which was his own division. Tr. 59, 131, 291. A dump mechanic is one 

who handles mechanical problems in the dumps (spill pockets, shafts and 

sumps), and does other assigned tasks. Tr. 59, 68, 131, 292. 

1939 
department at Torres' home, and Stonehouse listened on an extension 

phone. Tr. 62, 92-93, 111, 268. Torres agreed that Haro should not cut 

the car alone. Tr. 92-93, 111. Haro did not discuss the events with 

Cothern, the shift boss, and Stonehouse's supervisor. Tr. 66, 316. 

Torres testified that Haro was acting according to instructions when he 

called him at home. Tr. 93. He stated that if dump mechanics cannot 

work out problems with the shaft foreman and shift boss, they are to 

call him, or his supervisor, Navarro. Id. Navarro also testified that 

mechanics are to call if they have problems, but are encouraged to try 

to work out problems with those on the spot. Tr. 132. 

The day after the B.O. incident, Haro was directed to tie a tail 

light onto a railroad car that did not have a special bracket for a 

light. Haro protested, stating that it was against company policy to 

tie lights on cars and that a car with brackets should be moved to the 

end of the train. Haro did, however, attach the light. The judge found 

.that it was company policy to tie on a light if so ordered and to log 

this for a supervisor's benefit. 3 FMSHRC at 2423. 

Shortly after these incidents Haro was removed as a dump mechanic 

on the swing shift and assigned to work in shafts and dumps on the day 

shift, when he would be supervised by a foreman from his own department, 

Haro earned less on the day shift than he had on the swing shift, Tr. 

21, 317-18, 

In his decision, the judge found Haro's refusal to cut the B.O. car 

was based on a reasonable, good faith belief in a hazard, and, therefore, that the refusal was protected activity under section 105(c) of 

the Mine Act. 3 FMSHRC at 2424. The judge found no protected activity 

in Haro's protest concerning tail lights because he was "unable to see 

that Haro's perception of a safety hazard was a reasonable one." Id. 

(Haro did not petition for review of the judge's finding of no protected 

activity in this incident, and, in any event, the evidence supports the 

judge's finding.) The judge determined that.Haro's transfer to a 

different shift was motivated in part by the protected activity in the 

B.O. car incident. He stated that the tied-on lights may also have 

motivated the operator, but concluded: 

[Magma] has failed to meet its burden of persuasion 

that Haro's action in tying on the light under protest 

would have itself warranted the adverse action. I, 

therefore, conclude that Magma's transfer of Haro to 

another shift and position constituted discriminatory 

conduct in violation of the Act. 

3 FMSHRC at 2425 (emphasis added). 

Magma admits that Haro's refusal to cut the B.O. car was protected 

activity (Br. at 13), and conceded below that the B.O. car and tail 

light incidents "were factors 'in some part' in the determination to 

transfer" Haro. Post-hearing Supp •. br. at 3. Thus, Magma concedes a 

prima facie case as to the B.O. car ihcident. Magma, however, contends 

that it successfully defended against that prima facie case by showing 

it would have transferred Haro in any event for legitimate reasons alone. 

1940 
Br. at 12-14; Post-hearing Supp. br. at 4, 7. In this regard, Magma 

does not rely on the tail light incident as a defense (as the judge 

implied). Rather the operator argues that it legitimately transferred 

Haro because he was "duplicitous and dissembling" and needed more supervision, which was available on the day shift from supervisors in his own 

department. Br. at 4-5; Post-hearing Supp. br. at 6-7. In addition, 

Magma contends that Haro broke the "chain of command" by calling a 

supervisor off the scene and became involved in a conflict with the 

supervisor who was at the mine. Br. at 2-5. At the hearing below, 

Magma presented this business justification for transferring Harb, and 

it asserts that its presentation satisfied its defensive burden. Magma 

further contends that the judge's failure to rule on this claimed 

legitimate business reason for transferring Haro violates the standards 

for decision in the Administrative Procedure Act. 

Magma has not appealed the judge's findings that Haro in 

protected activity in the B.0. car incident and that his transfer was 

motivated in part by that protected activity, There is no argument as 

to whether Haro proved a prima facie case. The precise question before 

us is whether Magma successfully defended against Haro 1 s prima facie 

case by showing it would have transferred Haro anyway. 

Magma's arguments that the judge ignored its defense are well 

founded. As we have stated: 

The APA and our rule require findings of fact, conclusions 

of law, and supporting reasons in order to prevent arbitrary decisions and to permit meaningful review ••.. 

Without findings of fact and some justification for 

the conclusions reached by the judge, we cannot perform 

that function effectively. 

The Anaconda Co., 3 FMSHRC 299, 299-300 (February 1981). The judge's 

decision did not address Magma's defense and thus has made review 

impossible. For example, the judge did not mention Haro's call to a 

supervisor off the property; therefore, he did not discuss Magma's 

argument that Haro was transferred for breaking the "chain of command" 

at the mine. Nor did he address the operator's evidence of a conflict 

with the supervisor on the scene as a result of Haro's call off the 

property. The judge appears to have believed that Magma's defense was 

based on the tail light incident, a "defense" Magma did not raise. 

Accordingly, we remand the case for further findings of fact and conclusions of law on the evidence relevant to Magma's defense. 

Because we agree that Haro proved a prima facie case, the judge 

need only analyze whether Magma proved that it would have transferred 

Haro anyway for legitimate business reasons, regardless of his protected 

refusal to cut the B •. 0. car. We express no view on the merits of this 

issue. 

Before turning to the next incident of alleged discrimination, we 

must address the judge's award of back pay stemming from the B.O. car 

incident. The judge found that, after his transfer, Haro's pay was 

reduced by a shift differential and an extra day's pay every three 

weeks. He awarded $3,500 and an additional unspecified amount of back 

1941 
pay for 

Magma. 

stand. 

105(c), 

the period after the hearing and up to Haro's termination by 

If the judge upholds Magma's defense on remand, his award cannot 

If the judge determines that Haro's transfer violated section 

we conclude that he must reconsider the question of the appropriate amount of back pay. 

Magma argues that the judge erred in awarding compensation up to 

the time of the hearing because Haro requested a transfer in October 

1978, and was transferred November 2, 1978. 2/ The company asserts that 

its obligation for back pay, if any, should be tolled as of the time 

that Haro voluntarily sought a transfer. Magma also argues that the 

judge's award of back pay was based on unreliable calculations. Finally, 

Magma contends that the judge failed to explain how he arrived at his 

figures, and, therefore, a remand is necessary for detailed findings. 

The judge's award was based on Haro's estimate at the hearing that 

he had lost between $3,500 and $3,700. 3 FMSHRC at 2430. The judge 

noted that Hare's testimony was unrefuted, and commented on the "lack of 

more specific documentation." Id. Further, the judge also granted Haro 

an unspecified amount of "back pay plus interest since the hearing of 

this case, until the date of [Hare's] termination by [Magma]." 3 FMSHRC 

at 2430. The date of Hare's discharge, February 12, 1981, is a matter 

of public record. Haro v. , Docket No. WEST 81-365-m1 

(November 1, 1982) (ALJ). We recognize that "unrealistic exactitude" or 

"mathematical certainty" is not required in ascertaining the award due 

to a victim of discrimination. See Kaplan v. International Alliance 

of Theatrical and Stage Employees, 525 F.2d 1354, 1362-63 (9th Cir. 

1975)(Award in Title VII cases); NLRB v. Carpenters Union, Local 180, 

433 F.2d 934, 935 (9th .Cir. 1970)(Award in NLRA cases). Nonetheless, 

more precision is required than the judge provided in this case. We 

also recognize that although Magma had the opportunity to present 

evidence to the judge at the hearing on the correct amount of the award, 

it did not do so. However, it appears from the record that the judge 

did not indicate how he was going to proceed on back pay, and the operator 

may not have anticipated that an award would be included in the decision. 

Thus, in the interest of fairness, if Haro prevails on his claim, the 

judge should solicit the information necessary to make further findings 

on the relief due to Haro and should address Magma's various arguments 

on the appropriate amount of back pay. See Moses v. Whitley, 4 FHSHRC 

at 483-84. 

The Grease line Incident 

Approximately three months after the events discussed above, on 

September 25, 1978, Haro was instructed to change a grease line near a 

2/ Haro admits requesting a transfer in September 

request was made because of continuing harassment. 

that his transfer in November (after. the airslusher 

below) was not related to his request: 

194~~ 

1978, but claims the 

Haro further asserts 

accident discussed 
shaft in a loading pocket. Before changing the grease line, Haro made 

several requests: He asked that a skip be spotted in front of the 

loading chute; that men working on the surface be removed from the top 

of the shaft; and that a worker be assigned to assist him. Haro testified that he wanted the skip for protection in the event of a fall, and 

that men on the surface sometimes caused debris to fall down the shaft, 

which could result in rock falls. Haro's requests were not granted, and 

he did not change the grease line. On October 2, 1978, Haro received a 

written warning for failing to change the grease line. 

We note initially that the judge's discussion of this incident fulfills the requirements of the APA and our rules. The judge found that 

Hare's refusal to repair the grease line was a protected work refusal, 

and that the written warning Haro received over the incident constituted 

discriminatory action. 3 FMSHRC at 2427. Because the warning was 

admittedly issued for not changing the line, the only question is 

whether Haro met the requirements for a protected work refusal--that 

is, whether he had a good faith, reasonable belief in a hazardous 

condition. Robinette, 3 FMSHRC at 812. If Haro~s work refusal meets 

this test, then the warning he received was issued in violation of 

section 105 (c). 

Magma raises three arguments: First, that Haro was not motivated 

by a concern for but by a desire for 11 a punctilious adherence to 

what he felt the work rules were" (Br. at 19); second, that Haro failed 

to communicate his safety concerns at the time of his work refusal; and, 

third, that it was safe to change the grease line without having a skip 

in the area and without a partner. 

In our view, Haro was motivated not only by a good faith concern 

for safety, but also communicated that concern at the time. Haro's 

testimony, corroborated by that of another witness, indicates that he 

made several specific requests to the lead man at the time of the grease 

line incident: He requested that a skip be spotted, that persons be 

cleared from the shaft area, and that he be assigned a partner. In 

their testimony, Haro and the corroborating witness explained that the 

skip was to prevent falling (Tr. 27, 170-71), and that men should be 

removed from above to prevent discarded objects from causing rocks to 

fall down the shaft. Tr. 30, 171. A third witness testified that 

mechanics often spot a skip where it would stop their fall (Tr. 206), 

that workers should be cleared to avoid debris falling down the shaft 

and ricocheting off its side (Tr. 217), d.nd that a partner "observes in 

case of a malfunction or fall." Tr. 210-11. We are satisfied from this 

testimony that Hare's requests were made in good faith and that their 

focus was safety. Magma also attacks the judge's crediting of Haro's 

testimony on the grease line incident, but nothing presented on review 

persuades us to take the unusual step of overturning the judge's credibility 

resolution. 

We also affirm the judge's conclusion that Haro's belief in a 

hazard was a reasonable one. Magma .argues that, from an objective 

standpoint, it was safe to change the' line without the safety measures 

Haro requested. We have expressly rejected a requirement that miners 

1943 
who have refused to work must objectively prove that hazards existed. 

Robinette, 3 FMSHRC at 811-12. Rather, we adopted "a simple requirement 

that the miner's honest perception be a reasonable one under the circumstances." 3 FMSHRC at 812. Magma has only demonstrated that perhaps 

reasonable minds could differ as to the validity of Haro's safety 

beliefs. As the judge correctly stated, "The issue is not whether the 

work could be done without a ski[p], but it is whether Haro's action in 

not repairing the grease line was reasonable and in good faith." 3 

FMSHRC at 2426. He found that it was, and the testimony outlined above 

supports his conclusion. 

In sum, Haro articulated a safety concern and had a reasonable 

basis for ·refusing to work. Magma's warning to Haro over this exercise 

of protected activity therefore violated section lOS(c)(l) of the Mine 

Act. Accordingly, we affirm the judge on this issue. 

The Airslusher Incident 

On November 1, 1978, Haro and another miner were assigned to 

service an airslusher in a spill pocket. In the course of their work, 

Haro turned on the air to the machine and an accident occurred resulcing 

in injury to his partner. Haro received a letter dated November 2, 

1978, which identified him as the cause of the accident and required him 

to attend two days of safety training. He suffered no loss of pay for 

attending the safety training. Haro was also transferred to a position 

on the surface. 

The judge opined that Haro was not responsible for the injury to 

his partner, and that the company's actions toward Haro "appear unjustified." 3 FMSHRC at 2428. The judge, however, found no protected 

activity and dismissed the complaint as to this allegation of discrimination. He concluded: 

Id. 

Haro did not make any safety complaint or exercise 

any other right afforded him under the Act. The 

actions taken against Haro because of Magma's 

erroneous belief that Haro was responsible for the 

incident, therefore, cannot be deemed to be in 

violation of the Act. Although such action may 

have been improper, redress of the damages suffered 

by Haro as a consequence thereof is not within the 

authority of the Commission. 

Although it prevailed on this incident, Magma argues that the judge 

erroneously found that Haro was not responsible for the accident. Haro 

did not seek review in this case, and we need not address the merits of 

the judge's dismissal of this aspect of Haro's complaint. We wish to 

note, however, that once the judge found that Haro had not engaged in 

protected activity and thus had not proved a prima facie case, any 

speculation as to the cause of the accident and the "fairness" of Magma's 

discipline was irrelevant. 

1944 
For the foregoing reasons, we affirm the judge's decision regarding 

the grease line incident and his order expunging all references to the 

matter from Haro's employment record. While affirming the judge's 

dismissal of the discrimination complaint concerning the airslusher 

incident, we disapprove his dicta on the cause of the accident. We 

reverse and remand for further findings of fact and conclusions of law 

on the railroad car incident and, if necessary, for determination of 

what award is due to Haro. The judge's present award of back pay with 

respect to this incident is vacated. 10/ 

Commissioner Nelson assumed office after this case had been considered at a Commission decisional meeting and took no part in the 

decision of the case. A-new Commissioner possesses legal authority to 

participate in pending cases, but such participation is discretionary 

and is not required for the Commission to take official action. The 

other Commissioners voted on the disposition of the case prior to 

Commissioner Nelson's assumption of office. Accordingly, in the 

interest of efficient decision-making, Commissioner Nelson elects not to 

participate in this case. 

1945 
Distribution 

Paul F. Tosca, Jr., Esq. 

807 Pioneer Plaza 

100 North Stone Avenue 

Tucson, Arizona 85701 

N. Douglas Grimwood, Esq. 

Twitty, Sievwright & Mills 

1100 West Clarendon, #1700 

Phoenix, Arizona 85103 

Debra L. Feuer, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

ALJ John L. Morris 

Fed. Mine Safety & Health Rev. Commission 

333 West Colfax Ave., Suite 400 

Denver, Colorado 80204 

1946 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W, COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

NOVi \& 

WILLIAM A. HARO, ) COMPLAINT OF DISCHARGE, 

) DISCRIMINATION OR INTERFERENCE 

Complainant, ) 

) DOCKET NO. WEST 81-365-DM 

v. ) 

) MSHA CASE NO. MD 81-70 

MAGMA COPPER COMPANY, ) 

) MINE: San Manuel 

Respondent, ) 

) 

DECISION AND ORDER 

Appearances: 

Debra Hillary, Esq. 

Cahan & Hillary 

600 TransAmerica Building 

177 North Church Avenue 

Tucson, Arizona 85701 

For the Complainant 

N. Douglas Grimwood, Esq. 

Twitty, Sievwright & Mills 

100 West Clarendon 

Phoenix, Arizona 85013 

For the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

Complainant, William A. Haro, alleges in his complaint filed pursuant 

to provisions of the Federal Mine Safety and Health Act of 1977, (hereinafter the "Act") that respondent, Magma Copper Company, terminated Haro's 

employment with respondent on February 12, 1981, in violation of section 

105(c)(l) of the Act.}) Haro alleges that he was terminated for 

reasons other than misconduct, namely, because of his participation in 

proceedings before the Federal Mine Safety and Health Review Commission. 

1/ Section lOS(c)(l) reads in pertinent part "No person shall discharge 

or ••• discriminate against ••• 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 safety or 

health violation in a ••• mine ••. " 

1948 
Respondent denies the allegations and alleges that Haro's termination 

was based on his "refusal to follow the directives of management; insubordination." 

From conflicting testimony I find the facts to be as follows: 

Respondent operates a mine, mill, smelter, refinery, a rod plant, 

metallurgical facilities, and maintenance facilities for all the 

maintenance work near the town of San Manuel, Arizona. Since 1974, the 

claimant, William A. Haro, had been a mechanic employed by the Respondent. 

In the past Haro had filed three complaints with the Mine Safety and Health 

Administration alleging discrimination. These complaints had been filed on 

July 3, 1978, January 4, 1979, and September 10, 1979. Haro had also filed 

approximately 20 to 30 grievances in 1979. 

On February 10, 1981, Haro's supervisor, Rueben Roberts, instructed 

Haro to assist two electricians who were going to be working on the 

overhead crane in the car shop. Haro told Roberts at about 9: 30 a.m., that 

the electricians were going to try to move the overhead crane from the 

middle of the shop to one end of it and that Haro had called for the use of 

a Grove crane. Roberts decided the overhead crane should be moved by other 

persons so the Grove crane and operator were not needed. 

After lunch on the same day, February 10, 1981, Roberts wanted to have 

a crane operator move some cars and sought out Sledge, the supervisor who 

had access to a crane. When Roberts approached Sledge, Sledge was on his 

way to correct what he considered to be an unsafe practice by his employee, 

Clifford Kelly, in the way he was moving a suspended load while operating 

the Grove crane. On a previous occasion, June 12, 1980, Sledge had 

observed Kelly and Haro moving a load with a crane and had verbally 

reprimanded Kelly for moving the load without the load being physically 

restrained to keep the load from swaying. Sledge's instructions were that 

suspended loads must be physically restrained by a tag chain, rope that is 

hand held, or the object itself must be hand held. However, Roberts had 

told his employees, including Haro, that in moving a suspended load, they 

could either restrain the load or guard it. In the instant case Haro was 

walking along with the suspended load (a work platform) while it was in 

transit. 

Sledge asked Roberts to walk with him in following the Grove crane. 

When the crane had parked and the work platform that was being transported 

was on the ground, Sledge went to Kelly, the crane operator, and told him 

the load being transported had not been physically restrained as required. 

Kelly stated that the load had been physically restrained. Sledge then 

walked over to where Haro and his supervisor, Roberts, were standing and 

asked Haro if the load had been physically restrained. Haro responded with 

words to the effect of "are you asking me a direct question?" When Sledge 

1949 
said that he was asking a direct question, Haro stated that if Sledge 

wanted an answer, he could ask Haro's boss, Roberts, to ask the question. 

Sledge then asked Roberts to repeat Sledge's question to Haro and after 

Roberts did so, Haro responded to the effect that "I have no connnent at 

this time." This response upset Sledge, and he angrily left the area. 

Haro commented to Roberts that Sledge was not as big a supervisor as 

he thought he was, and that Haro was going to file a grievance against 

Sledge~ After Roberts returned to his regular duties, Haro came to Roberts 

and said that he wanted to invoke section 6.1.H of the collective 

bargaining agreement. That section provides: 

''In a grievance arising out of complaints of unsafe 

working conditions, the employee may request the 

immediate supervisor in his department to make 

arrangements to relieve the grievance man to handle 

the grievance with the immediate supervisor. This 

shall not be construed as permitting any employee 

to interfere with the employees job assignment.u 

When Roberts went to obtain a grievance man, the assistant mine 

superintendent told Roberts to return to Haro and find out what type of 

grievance Haro wanted to file and what kind of unsafe working conditions 

Haro wanted to file it against. 

When Roberts again contacted Haro, Roberts was informed by Haro that 

he wanted to file a grievance regarding the procedures on moving materials 

with the Grove crane. Roberts suggested that since no imminent danger 

existed, the appropriate time to file the grievance asking for 

clarification would be at the start of the shift, at lunch time, or at the 

end of the shift. Haro disagreed and stated that he would not file a 

grievance if Roberts would get Sledge from his department and have hi~ come 

over to talk to Haro. Roberts declined and then went to look for a 

grievance man. 

Sledge contacted his supervisor, Bud Vogt, the section foreman of the 

mechanical division, in order to find out if it would be proper to suspend 

Kelly for a safety infraction and Haro for insubordination. Vogt conferred 

with the general foreman, Lino Gonzales. The mine superintendent, Bob 

Zerga was then contacted and after some discussion, Zerga decided to have a 

meeting of those persons in his office in regard to the conduct of Haro. 

After the information was discussed in Zerga's office, he telephoned Tom 

Hearon, the assistant general manager, for advice because Zerga knew there 

already was "litigation outstanding involving Mr. Haro" and that Zerga had 

been accused of being prejudiced against Haro. Fifteen to twenty minutes 

later Bob Skiba, manager of personnel services, called Zerga recommending 

that Haro be suspended pending investigation of the charges against him. 

1950 
Although it was unusual to have higher levels of management involved in the 

discharge of a miner for insubordination, Zerga "pushed it there" because 

the miner involved was Haro. 

At approximately 3:00 p.m. on February 10, 1981, in the presence of 

Haro and his grievance man, a suspension hearing was conducted by Tim 

Acton, the assistant mine superintendent, Lorenzo Chavez, the senior 

personnel administrator was also present. Haro was given a suspension 

notice stating that he was suspended until 8:00 a.m., February 11, 1981, 

pending investigation of poor performance of duties and insubordination. 

The grievance man for Haro asked Acton who Haro was allegedly ubbordinate to. Acton replied that the insubordination was with respect to 

Sledge and Roberts. Haro said that the suspension notice did not conform 

to the collective bargaining agreement, that the notice contained no 

explanation, and. that it was unsigned. Roberts signed the notice, and it 

was given to Haro. Haro put the suspension notice on the desk and stated 

that he had not been given a full reason and explanation in writ and was 

going back to work. He also stated that Roberts had trumped up this action 

and that it was different than "what had happened an hour ago". Haro was 

informed that unless he accompanied the guards and left with them, Chavez 

would call "law enforcement". Haro voluntarily left the premises, 

At approximately 4:00 p.m., February 10, 1981, several management 

personnel met to review the events involving Haro. It was decided that the 

electricians who were present with Haro that morning and who would know 

whether the work platform was supposed to have been moved by Haro should be 

interviewed the next morning on February 11, 1981. It was their opinion 

that 11 if the balance of the investigation confirmed what we already knew 

about the situation, that Mr. Haro would be discharged for insubordination." The points discussed at the 4 o'clock meeting were (1) that Roberts 

had told Haro not to move the work platform or use the Grove crane, (2) 

that Haro had refused to answer Sledge and Roberts in their direct 

questions; and (3) Haro had refused to be suspended. Since further 

investigation was to take place on February 11, 1981, Haro was contacted by 

telephone and told not to come in on February 11, 1981, as he had been 

instructed, but to appear on February 12, 1981 at 9:00 a.m. Acting on the 

advice of his union, Haro did appear on February 11, 1981. Haro gave 

Roberts two grievances which alleged (1) the company was in violation of 

the collective bargaining agreement in that the supervisor failed to 

contact the grievance man on Haro's request and that on Haro's, persistence 

that the supervisor contact the grievance man, Haro was suspended on 

unfounded charges, and (2) the company was in violation of the collective 

bargaining agreement in that it did not explain the reason for the 

suspension for insubordination and that the company would not explain "who 

Mr. Haro was insubordinate towards." Since Haro' s hearing date had been 

changed by management to February 12, 1981, Haro was then escorted from the 

property. 

1951 
On February 11, 1981, at 4:00 p.m. Sledge held a disciplinary 

conference with Kelly, the Grove crane operator, and his grievance man. 

Kelly acknowledged having been instructed in the proper way to move a 

suspended load by Sledge. Kelly was then given a three day disciplinary 

layoff. 

On February 12, 1981, Tim Acton, the assistant mine superintendent, 

held the termination hearing with Haro and his grievance man present. 

Acton told Haro he had some questions he wanted to ask Haro and that after 

the questions were answered, Haro could state his own defense. The first 

question was why he had not followed Roberts instruction about using the 

Grove crane and moving the work platform, Haro's response was that he did 

not have to answer Acton's question. Haro then replied that Roberts had 

not told h not to move the work platform. Acton then asked a second 

question concerning why Haro had refused to answer Sl 1 s and Roberts' 

questions about holding onto the load, Haro refused to answer the question 

and said that he was being denied due process, and that he wanted a full 

trial where witnesses could be called. Acton then asked Haro why he had 

refused to be suspended on February 10th, Haro then said that the company 

was in v lation of the collect bargaining agreement. He stated that he 

had not been given a full explanation and generally objected that he had 

not been g due process of law, After Haro's refusals to answer the 

questions, Chavez, the senior personnel administrator, indicated that Haro 

would have to be terminated, Haro was given a termination slip, He 

refused to sign it, but his grievance man did sign it, 

Haro filed a grievance regarding his termination al ing that 

respondent had violated the collective bargaining agreement in its 

termination of him. The parties stipulated in this proceeding before the 

Administrative Law Judge that the record be expanded to include the 

subsequent determination of the arbitrator that there had been no violation 

of the collective bargaining agreement in the discharge of Haro by the 

respondent. 

ISSUE 

The issue is whether or not the termination of Haro's employment with 

the respondent was contrary to section 105(c)(l) of the Act, 

DISCUSSION 

The complainant establishes a prima facie case if: 

11 , •• A preponderance of the evidence proves (1) that 

(the miner) engaged in a protected activity, and (2) 

that the adverse action was motivated in any part by 

the protected activity." Pasula v, Consolidation Coal 

Co., 2 FMSHRC 2786 (1980) at 27 

1952 
The complainant claims two protected activities: 

1. "The incident on February 10th, for which he was initially 

suspended and later terminated, involved his calling for a safety grievance 

and a grievance man on his job site pursuant to section 6.1.H of his union 

contract." 

2. "His testifying in engaging in administrative law appeals against 

Magma Copper Company on at least two prior occasions involving three 

different complaints." 

In addition, Haro introduced evidence of filing numerous grievances, 

an indeterminate number of which were connected with safety, These 

activities are ed by the Federal Mine Safety and Health Act of 1977, 

and may not be the motivation in t adverse personnel action against an 

employee. Fasula v. Consolidation Coal Co., supra; Robinette v. United 

Castle Co., 3 FMSHRC 803 (1981), Thus, the complainant established by a 

preponderance of the evidence that he did engage in ected activities 

ling complaints with the Mine Sa and Health Administration in 1978 

and 1979 and then ling safety grievances in 1979. 

The second element of Haro's prima facie case must be a showing that 

adverse action was taken and was mot ed in any part the protected 

activity. In Secretary of Labor, Mine Safety and Health Administration, 

Ex Rel. Johnny N. Chacon v. Phelps Dodge Corporation, 2 FMSHRC 2508 (1981), 

the Review Commission utilized four criteria in analyz the operators 

motivation with regard to an adverse personnel action: 

"l. Knowledge of the protected activity; 

"2. Hostility toward protected activity; 

"3. Coincidence in time between the protected activity and the adverse action; and 11 4. Disparate treatment of (the complainant). 11 

A reasonable inference to be drawn from the activities of Haro in 

filing three different complaints under the jurisdiction of a Federal Mine 

Safety and Health Act of 1977, as well as the filing of numerous grievances 

against the respondent is that management had knowledge of Haro's protected 

activities. Bud Vogt, the section foreman, mechanical division, testi ed 

that he was aware that Haro had led MSHA complaints and "a tremendous 

amount of grievances". He also testifed that he was aware that MSHA or the 

State Mine Inspector had come out to the property on one occasion in 

response to Haro's complaint. Bob Zerga, the mine superintendent, also had 

knowledge of Haro's protected activity. He had been involved in the MSHA 

charges brought by Haro and was also involved in h safety grievances. 

However, there was no evidence from which to draw an inference that 

management was in any way hostile toward protected activity on the part of 

Haro. When Zerga was notified of the facts concerning the alleged in1953 
subordination of Haro, he contacted the assistant general manager, Tom 

Hearon, in order to obtain an objective opinion in regard to the action to 

be taken involving Haro. Although Hearon's advise was ordinarily to 

terminate the miner involved, he recommended that a careful evaluation of 

the case be made because of the legal matters already pending involving 

Haro. Thus, management took extra precautions in this particular case 

because Haro was involved. 

As further evidence that respondent did not bear any hostility toward 

protected activity, it was shown that between October 30, 1980 and January 

15, 1982 the seven Unions involved at the company had filed a total of 135 

grievances related to safety. Of the employees who had led these 

grievances, there were several who "quit for personal reasons 11 , one was 

terminated for being absent without leave, but other than Haro, the rest of 

the personnel who filed safety grievances were still employed with the 

respondent. The manager of personnel services, Bob Skiba, testified that 

his impression of Haro was that he was not a "reasonable person" and that 

he was "very arrogant, challenged authority of supervision, very testy, a 

difficult personality to supervise •. ," This impression was formed in a 

grievance hearing in December, 1979, when Haro 1 s supervisor was making his 

presentation. Mr. Skiba testified as follows: 

"and as I recall, in the course of his explanation, 

he was interrupted by Bill Haro, This was after 

there had been some, I think, bantering back and 

forth. It was not a quiet meeting. Generally, the 

the meetings with Mr. Haro were not quiet type meetings, 

The general maintenance foreman, Hamilton, was making 

his presentation and Mr. Haro had interrupted him, and 

he said words to this effect that 11We can have you 

replaced." 

At this point, Skiba told Haro that if he did not change his attitude 

toward supervision, he would probably lose his job. 

There was no coincidence in time between the protected activity and 

the adverse action taken against Haro. All of the MSHA complaints had been 

filed by September, 1979. The only dates given for the "protected 

activity" related to safety grievances were also filed in 1979. MSHA 

discrimination charges involving Haro had been "pending" since July 3, 

1978. It is unlikely that the respondent would wait over 31 months to 

terminate Haro for filing such charges. Thus, the conclusion is that there 

was no coincidence in time between the protected activity and the adverse 

action. 

There was no disparate treatment of Haro. One of Haro's witnesses 

testified that Hare's suspension hearing, termination hearing, and second 

step grievance hearing were handled differently than other individuals in 
that it was not explained to Haro what he was accused of doing. However, 

the respondent's tape recording and notes of the suspension hearing on 

February 10, 1981, disclosed that Haro was told what he was being suspended 

for and to whom he had been insubordinate, namely supervisors Roberts and 

Sledge. The opinion of the arbitrator upholding Haro's termination as not 

being violative of collective bargaining agreement is further evidence that 

Haro was given the same treatment as other miners similarly situated, and 

that there was no disparate treatment. 

Haro has failed to show any of the direct circumstantial indicia of 

discriminatory intent. He suffered no disparate treatment. There is no 

significant coincidence in time between the protected activity and the 

adverse action. There is no evidence of hostility by the respondent toward 

the protected activit in which complainant engaged, The respondent 

stated a legitimate, non-discriminatory reason for discharging Haro. 

Supervisor Sledge had observed one of his employees engaged in an unsafe 

act about which that employee had been previously instructed and previously 

disciplined. The employee had denied to Sledge that he had committed an 

unsafe act on February 10, 1981. Sledge had inquired of his co-worker, 

Haro, whether the unlawful act had been committed. Although Sledge was not 

Hare's immediate supervisor, Roberts was, and Haro would not answer the 

question even when it was repeated by Roberts, Respondent has the right to 

obtain whatever information is required regarding unsafe work practices 

taking place on its property and to take the appropriate disciplinary 

action to prevent their reoccurrence. Haro was interferring in a 

legitimate business function of the operator by refusing to answer. Skiba 

and Zerga testified concerning the fact that the respondent's personnel 

policy considers insubordination to be an offense requiring immediate 

discharge. Haro failed to show that the termination for insubordination 

and poor work practices was "so weak, so implausible or so out of line with 

normal practice that it was a mere pretext seized upon to cloak 

discriminatory motive". Secretary, ex rel. Jonny Chacon v. Phelps Dodge, 

supra. Haro failed to show that the justification was pretextual. 

CONCLUSION 

I find that the complainant, William A. Haro, has failed to sustain 

his burden of proof showing that his termination of employment with 

respondent was motivated in any part by protected activity. 

The complaint is dismissed. 

ORDER 

,e;( D. Boltz 

lAaministrative Law Judge 

1955 
Distribution: 

Debra Hillary, Esq. 

Cahan & Hillary 

600 TransAmerica Building 

177 North Church Avenue 

Tucson, Arizona 85701 

N. Douglas Grimwood, Esq. and 

Ralph Sievwright, Esq. 

Twitty, Sievwright & Mills 

100 West Clarendon, Suite 1700 

Phoenix, Arizona 85013 

1956 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RAYMOND FARMER, 

V. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

COMPLAINT OF DISCRIMINATION, 

DISCHARGE, OR INTERFERENCE 

EASTERN ASSOCIATED COAL 

CORPORATION, 

Docket No. WEVA 82-135-D 

HOPE CD 82-7 

Appearances: 

Before: 

Respondent Wharton No. 4 Mine 

DECISION 

Raymond Farmer, Big Creek, West Virginia, pro se; 

Mark C. Russell, Esq., Jackson, Kel , Holt and O'Farrell, 

Charleston, West Virginia, for Respondent. 

Judge Melick 

This case is before me upon the complaint of Raymond Farmer under 

section lOS(c) (3) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq., the "Act," alleging that the Eastern Associated Coal 

Corporation (Eastern) discriminated against him on September 23, 1981, presumably in violation of section lOS(c)(l) of the Act. 1/ He seeks one million dollars in damages. Evidentiary hearings were held on Mr. Farmer's complaint in Charleston, West Virginia. 

In order to establish a prima facie violation of section 105(c)(l) of 

the Act, Mr. Farmer must prove by a preponderance of the evidence that he has 

engaged in an activity protected by .that section and that he has suffered discrimination or interference which was motivated in any part by that protected 

1/ Section 105(c)(l) of the Act provides in part as follows: "No person 

shall * * * in any manner discriminate against * * * or cause discrimination 

against or otherwise interfere with the exercise of the statutory rights of 

any miner * * * in any coal or other mine subject to this act because such 

miner * * * has filed or made a complaint under or related to this act, 

including a complaint notifying the operator or the operator's agent or the 

representative of miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine, * * * or because of the 

exercise by such miner * * * on behalf of himself or others of any statutory 

right afforded by this act. 
activity. Secretary, ex rel David Pasula v. Consolidation Coal Co., 2 FMSHRC 

276 (1980), rev'd on other grounds, Consolidation Coal Co. v. Secretary, 663 

F. 2d 1211 (3rd Cir., 1981). 

Mr. Farmer complains herein that the mine operator discriminated against 

him by failing to immediately call an ambulance upon his representations that 

he had suffered chest and could not continue working. More specifically, 

Farmer complains that 1 1/4 to 1 1/2 hours had elapsed between his first complaint to the operator and the arrival of an ambulance. He is unable, however, to cite any precipitat protected activity in which he had been engaged that caused the alleged discrimination. Under the circumstances, even 

assuming there was in fact evidence of discrimination as alleged, Mr. Farmer 

has failed to show that it was within the scope of section 105(c)(l). 

Even if Mr. Farmer's complaint of a sudden onset of a physical impairment could in itself be considered a protected refusal to work as resul 

from a good faith reasonable belief that continuing to work would involve 

safety hazards, there is insufficient evidence in this case of any proscribed retaliation, discrimination, or interference against Mr. Farmer. 

Pasula, supra; Secretary, ex rel Robinette v. United Castle Coal Co., 3 FMSHRC 

803 (1981); Bradley v. Belva Coal Co., 4 FMSHRC 982 (1982). 

The evidence shows that around 6:20 on the morning of September 23, 1981, 

mine foreman Robert Jarrell was called over the "trolly phone" and told by 

the dispatcher that both motor crews, consisting of four miners (including 

the Complainant), had reported. "sick" and wanted a ride outside the mine. 

When Jarrell reached the purportedly sick miners, one, Ernie White, said that 

he had something in his eye and another, Herman Wagoner, complained that he 

had the flu. Mr. Farmer complained that he was beginning to have "chest pains 11 , 

that his "chest felt like a heavy weight was against it", and that his left 

arm hurt. The fourth miner apparently changed his mind about being "sick" and 

decided to go ahead and work. Jarrell apparently became angry at what appeared 

to be flimsy excuses to get out of work and to elose down the section. It is 

not disputed that Jarrell nevertheless took the three "sick" miners out of the 

mine in his jeep and that someone called an ambulance. 

The accident report based on information furnished by Mr. Farmer establishes the time of occurrence at 6:20 a.m. The records of the Boone County 

ambulance authority indicate that someone from the mine called at 6:30 that 

morning, that an ambulance was dispatched six minutes later, and that it arrived at the mine at 7:00 that morning. The records further indicate that the 

ambulance was enroute to the hospital at 7:10 a.m. and arrived at Boone Memorial Hospital at 7:37 a.m. with Farmer. Farmer was admitted for observation 

and claims that he was told he had a "light heart attack". No medical evidence has been submitted to corroborate his claims. 

Within this framework of evidence, I cannot find that Eastern denied or 

impeded Mr. Farmer's access to an ambulance or to other appropriate medical 

services. I observe, moreover, that Mr. Farmer conceded at hearing that if 

indeed there was truly a medical emergency, there was nothing to prevent him 

1958 
from using the mine telephone and calling for an ambulance himself. I find 

accordingly that even assuming, arguendo, Mr. Farmer had engaged in an activity protected by the Act, there is insufficient evidence of any resulting 

discrimination or interference to support the complaint herein. 

Accordingly, the Complaint is denied Dismissed. 

Distribution: By certified mail. 

Mr. Raymond Farmer, Box 85, Big 

Mark C. Russell, Esq., Jackson, Kelly, Holt and O'Farrell, P.O. Box 553, 

Charleston, WV 25322 

1959 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Contestant 

Contest of Order 

NOV 4 

v. 

Docket No. LAKE 82-69-R 

Order No. 824092; 3/11/82 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Oak Park No. 7 Mine 

DECISION A.~D ORDER 

On October 28, 1982, this matter came on for oral argument on the 

operator's motion for summary decisiun and the Secretary's opposition 

thereto. 

The motion was supported by a ition of the charging r 

in which he testified he did not believe the conditions cited in his 

107(a)-104(a) Order-Citation constituted either (1) an imminent danger 

or (2) a violation of 30 C.F.R. 75.308 of the mandatory standards. 

The Secretary opposed the challenge to the validity of the order on 

the ground that a 1.5% accumulation of methane constitutes per se an 

imminent danger. Pittsburgh Coal Comp~--1.:1:Y_, 2 IBMA 277 (1973); Eastern 

Associated Coal Corp., 3 IBMA 60, 62 (1974). These holdings were, in 

1./ The inspector testified he issued the order,and citation because he 

received the following written instructions from his superior on March 10, 

1982, the day before the order-citation issued: 

Dean: 

In event of methane in excess of 1. 5% or more you must issue 

107(a) imminent danger, whether find it or you. 

You must also use the section number 75.308. State in body 

of notice the circumstances: In other words management was aware of 

condition and took appropriate action by withdrawing miners and 

pulling the power. 

There will be no penalty assessed if operator does what he 

is supposed to do. 

Paul 

19()0 
turn, predicated on the legislative history of the standard (Section 

303(h)(2) of the Coal Act) which states: 

This provision makes it clear that the operator has an obligation to take positive steps when there is a methane buildup. 

Production must cease and all efforts must turn to reducing the 

danger where methane reaches the 1-percent level. If the air 

contains 1.5 percent of methane, withdrawal of the miners by the 

operator or inspector, if he is present, is required and electric 

power must be shut off, 

and Safety Act, Committee on Education and Labor, House 

Representatives, 9lst Cong., 2d Sess 58-59 (1970). 

I find that as a matter of and law a L 5% concentration o 

methane is an imminent 

The operator also urged that because the inspector found that 

all miners, except those required to abate the condition, 2 had been 

voluntarily withdrawn, albeit only some 400 feet to the power center, 

issuance of a withdrawal order was unnecessary and improper. 3 As 

the Secretary points out, it is well settled that the withdrawal of 

miners by the operator (so-called voluntary withdrawal) does not abate 

an imminent danger nor does it preclude issuance of an imminent danger 

withdrawal order. The purpose of such an order is to insure the miners 

will not be required to return until the condition of imminent danger 

has been corrected. v. Secretary, 1 FMSHRC 1472, 

1577 (1979); , 2 IB}1A 128, 136 (1973), 

affd. v. Interior Board of 

th Cir. ~E~a~s~t~e~r~n::_:_=-::.c:.._:c==-=-=-=-

same is true of the operator s 

was t of cutt into a methane feeder 

in the corner of the A Entry of the 2D Off 3 North Section. This was 

known as a "ho section. While the area was apparently well rock 

dusted and the section deenergized, the condition would have to be 

classed as highly explosive inasmuch as the buildup continued for some 

time after the withdrawal order issued. The record shows the order 

issued at 1140 but was not abated until 1310, an hour and a half later. 

The record does not show when the feeder was first discovered nor why, 

after it was discovered, the section was not dangered off. A concentration of 5% is, of course, extremely explosive. It is unfortunate that 

the inspector was so unconcerned that he failed to remain on the section 

to monitor the situation. 

3/ For this proposition, the operator relied on a decision by Judge 

Boltz. v. C.F. & I. Steel Corporation, 3 FMSHRC 99 (1981). 

Judge Boltz later recognized his decision rested on an erroneous reading 

of the precedents. C.F. & I Steel Corporation v. 3 FHSHRC 

2819 (1981). 

1961 
claim that it was making a good faith effort to abate the condition. 

UMWA v. Clinchfield Coal Company, 1 IBMA 33, 41 (1971); Valley Camp 

Coal Company, 1 IBMA 243, 248 (1972). 

This brings us to the challenge to the 104(a) violation charged. 

The authorities are clear that a 1.5% accumulation of methane standing 

alone does not constitute a violation of 75.308. Eastern Associated 

Co'al Corp., 1 IBMA 233, 237 (1972); 

1 IBMA 250, 253 (1972). 

The inspector found mining operations had ceased, the area deenergized and an effort made to remedy the situation. Despite these 

efforts the concentration was still at 1.7% when discovered by the 

inspector. It took another hour and a half to the condition 

within the acceptable limit of 1%. This indicates it may have worsened 

before it was controlled. Counsel for the expressed some 

reservations about the level and effectiveness of the effort to abate 

and the diligence with which precau~ions were pursued since the 

section had not been off. 21 Based on representations made 

the inspector, however counsel for the was compelled to 

concede he had insufficient evidence to prove the operator had failed to 

take the necessary action to abate as in 75.308. Compare, 

supra. For these reasons, I find 

the motion for summary decision as to the fact of violation must be 

granted. 

4/ I believe a more reading of the law would show that while a 

1% concentration is not a violation an operator's failure to control and 

dissipate the concentration before it reaches 1.5% warrants a finding of 

violation. A close of all of the relating to the 

control of methane discloses that whenever a concentration of .25% to 

.5% is observed safe practice dictates action be taken 

to monitor the situation closely and to adjust the ventilation system so 

as to keep the concentration from ever 1.5%. 

Counsel for the Secretary and the trial judge were shocked to learn 

that the inspector, who had eleven years of experience, did not believe 

any danger existed as he did not know that a methane accumulation of 

1.5% is per se an imminent danger. Prior to this case, the 

and apparently other inspectors in the Vincennes District, believed that 

as long as the miners were withdrawn from the face and the section 

deenergized there was no danger and no violation. It is understood that 

as a result of these disclosures the Assistant Secretary for Mine Health 

and Safety will take appropriate action to correct this deficiency in 

the inspectors' 

1962 
I conclude, therefore, there is no triable issue of fact; that as 

a matter of law the Secretary is entitled to a summary decision on the 

validity of the inuninent danger withdrawal order; and that the operator 

is entitled to a summary decision on the violation charged. 

Accordingly, it is ORDERED that the validi of the order challenged 

is AFFIRMED and the contest DISMISSED. It is FURTH.ER ORDERED that the 

violation be, and hereby is, VA ATED and the contest GRANTED. 

Distribution: 

Robert Vukas, 

Pitt 

. , Consolidation Coal 

PA 15241 (Certified 

, Consol Plaza, 

Patrick H. Zohn, . , Office of the Solicitor, U.S. Department 

of Labor, 881 Federal Bldg., 1240 East Ninth St., Cleveland, OH 

44199 Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 8, 1982 

ENERGY COAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

Notices of Contest 

Docket No. WEVA 82-371-R 

Citation No. 10713161 5/19/82 

Docket No. WEVA 82-372-R 

Citation No. l07~3181 20/ 2 

Docket No. WEVA 82-3 3 R 

No. 1071319; /8 

Docket No. WEVA 82-374-R 

tation No. 1071321; 5/24/82 

Docket No. WEVA 82-375-R 

Citation No. 1071329; 5/27/82 

No. 14 Mine 

ORDER OF DISMISSAL 

On August 20, 1982, Energy Coal filed a 

"Notice of And/Or Request For " with respect 

to the above-c ioned citations. The ce of Appeal 

which has been the designated numbers indicated 

that the had had a conference the MSHA District 

Manager and no penalty proposals had then been issued. 

The Notice stated that it was being filed to preserve the 

record and in order to notify MSHA of intention to 

contest the violations and/or the proposed 

penalties. 

On September 20, 1982, the Solicitor 

dismiss the contest for untime 

a motion to 

The 

Secretary's motion ained that the cit were 

received by from May 19, 1982 to 27, 1982. 

The Solicitor c section lOS(d) of the Act ch provides 

that a notice of contest to a citation be within 

30 days of its rece Based thereon the tor argued 

that since the not not contested until 

1964 
August 18, 1982 1/, they were not fi within the requisite 

30-day period. The Secretary further stated that if Energy 

Coal intended to contest the civil penalties ing from 

the five citations, the cases were not yet ripe for docketing 

because the penalties had yet to be proposed. 

On October 1, 1982, the operator filed a response to 

the Secretary's motion to dismiss alleging that had 30 days 

from the date of its July 21, 1982 safety and health conference 

with MSHA within which to contest the citations at issue. 

The Solicitor's motion to dismiss must be granted. 

Section 105(d) of the Act is clear ing that an 

operator contest issuance of a citation within 30 from 

the citation's receipt. 29 CFR 2700.20. Island Creek 

Coal Company, 1 FMSHRC 989 (August 3, 1979) affirming 

PIKE 79-18 (January 30, 1979) reported at 1 MSHC 2143-2144. 

In these cases, the operator waited for iods ranging from 

83 to 91 days before mailing the notices of contest. No 

reason has been given the long delay, Even if I accepted 

the operator's allegation that on 21, 1982 the conference 

officer stated that the 30 days ran from the date of the 

conference, the notices could not be accepted as timely. 

The 30 days for appealing the notices had long since run by 

then and in any event, the conference f could not 

change the requirements of the Act and regulations. 

It appears that the operator may be confusing an appeal 

from issuance of the citations with an appeal from proposed 

penalty assessments. The pen aspects are still open. 

However, this period does not begin to run until MSHA 

proposed the penalty. 29 CFR 2700.26. From the materials 

before me it appears that penalties have not yet been 

proposed for these citations. Therefore, it is too early 

for the operator to request a hearing regarding penalties. 

In light of the foregoing, these cases are DISMISSED. 

Chief Administrative Law Judge 

1/ They were mailed to the Commission and the Secretary by 

certified mail on August 18, 1982 and received by the 

Commission on August 20, 1982.· 

1965 
Distribution: Certified Mail. 

William G. Francis, Esq., Francis, Kazee and Francis, 

111 East Court Street, P.O. Box 700, Prestonsburg, 

KY 41653 

David E. Street, Esq., Office of the Solicitor, u. S. 

Department of Labor, Rm. 14480-Gateway Building, 

3535 Market Street, Philadelphia, PA 19104 

1966 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 \\1)\1 \. ~ \\\\ 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

CIVIL PENALTY PROCEEDING. 

Petitioner, ) 

v. ) 

) 

SUN LANDSCAPING & SUPPLY COMPANY, ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~ 

Appearances: 

DOCKET NO. WEST 80-425-M 

MINE: White Marble 

Marshall P. Salzman, Esq., Office of Daniel W. Teehan, Regional Solicitor, 

United States Department of Labor, San Francisco, California 

For the Petitioner 

Before: Judge John J. Morris 

DECISION 

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

Health Administration, (MSHA), charges respondent with violating three 

safety regulations adopted under the authority of the Federal Mine Safety 

and Health Act, 30 U.S.C. 801 ~seq. 

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

Phoenix, Arizona on August 31, 1982. Respondent, who was represented by 

counsel, did not appear at the hearing. 

JURISDICTION 

At the request of petitioner the Judge took official notice of the 

decision of Sun Landscaping and Supply Company, 2 FMSHRC 975 (1980). 

The foregoing case adjudicated that respondent at this location was 

subject to the Federal Mine Safety and Health Act. On the basis of such 

official notice and with the evidence in this case showing the mine was in 

operation at the time of the inspection respondent is held to be subject to 

the Act. 

196'7 
ISSUES 

The issues are whether respondent violated the regulations and, if so, 

what penalties are appropriate. 

CITATION 383496 

This citation alleges a violation of Title 30, Code of Federal 

Regulations Section 50.40(b), which provides as follows: 

(b) Each operator shall maintain a copy of each 

report submitted under § 50.30at the mine office 

closest to the mine for five years after submission. 

Upon request by the Mining Enforcement and Safety 

Administration, an operator shall make a copy of any 

report submitted under § 50.20 or 50.30 available 

to MESA for inspection or copying. 

The evidence shows that respondent did not have the quarterly report 

form (Tr. 6). 

This citation should be affirmed. 

CITATION 383498 

This citation alleges a violation of Title 30, Code of Federal 

Regulations, Section 55.15-1 which provides as follows: 

§ 55.15 Personal protection 

55.15-1 Mandatory. Adequate first-aid materials, 

including stretchers and blankets, shall be provided 

at places convenient to all working areas. Water or 

neutralizing agents shall be available where corrosive 

chemicals or other harmful substances are stored, 

handled or used. 

The evidence shows the facility did not have stretchers and blankets 

(Tr. 6). 

This citation should be affirmed. 

CITATION 383500 

This citation alleges a violation of Title 30, Code of Federal 

Regulations, Section 65.13-21 which provides as follows: 

55.13-21 Mandatory. Except where automatic shutoff 

valves are used, safety chains or other suitable locking 

devices shall be used at connections to machines of highpressure hose lines of 3/4 inch inside diameter or larger, 

and between high-pressure hose lines of 3/4 inch inside 

diameter or larger, where a connection failure would 

create a hazard. 

1968 
The evidence shows that the two inch high pressure air hose at the 

double connection between the compressor and the drilling machine did not 

have a safety chain or locking device (Tr. 7). The pressure in the hose 

was 100 psi (Tr. 7). 

The citation should be affirmed, 

CIVIL PENALTIES 

Petitioner proposes penalties of $40, $72, and $72, respectively, for 

the foregoing violations. 

The criteria for assessing civil penalties are contained in 30 U.S.Co 

820( i). 

The public record here shows that respondent, a small company, has a 

prior history of 18 violations (Tr. 4)" Statutory good faith is not 

appropriate here since the violations were not abated by affirmative action 

(Tro 4-5). One of the violations in the prior case involving this 

,respondent was a violation of 30 C.F.R. § 55.13-21 in that the hose 

coupling did not have a safety chain, Sun Landscaping, 2 FMSHRC at 980. 

Considering all of the statutory criteria I deem that the proposed 

civil penalties are appropriate" 

Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

1. Citation 383496 and the proposed penalty of $40 are affirmed. 

2. Citation 383498 and the proposed penalty of $72 are affirmed. 

3. Citation 383500 and the proposed penalty of $72 are affirmed. 

4. Respondent is ordered to pay 'the amount of $184 within 30 days 

the date of this order. 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor 

United States Department of Labor, 11071 Federal Building 

450 Golden Gate Avenue, San Francisco, California 94102 

W.T. Elsing, Esq., 34 W. Monroe Street, Suite 202 

Phoenix, Arizona 85003 

1969 

of 
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 (11SHA), 

Petitioner 

V. 

ENERGY FUEL NUCLEAR, 

Respondent 

DECISION 

Docket No: V..TEST 81-385-M 

A.O. No: 42-01472-05005 I 

?.1ine 

Appearances: Robert J. Lesnick, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1961 Stout Street, Denver, CO 

Before: 

for Petitioner; 

Bill Maywhort, Esq., Holland and Hart, P,O.B. 8749, 

Denver, CO, for Respondent 

Judge Moore 

The citation in this case resulted from an accident caused by a 

premature explosion in which a miner was severely injured. ·while the 

injured miner takes sole responsibility for the fact that he was injured, 

and admits that he was taking short cuts not allowed by management, it 

is MSHA's position that that fact does not subtract from the operator's 

guilt in this matter. In fact, MSHA seeks a penalty in excess of that 

recommended by the assessment office on the theory that the employment 

of a bonus system for miners increases the negligence factor. The 

argument is that an incentive plan or bonus system encourages miners to 

push production at the expense of safety. 

Terminology is important in this case. Ignitor cord is an easily 

ignited cord which burns with a hot external flame at a certain speed. 

A slow burning cord would burn at the rate of twenty seconds per foot 

and a fast burning cord would burn at 5 seconds per foot. The cord is 

marked off at 1 foot intervals so if you know the burning rate it is 

easy to assemble a series of explosions that will go off as desired. 

In a normal connection, the ignitor cord is passed under the lip of the 

thermalite connector sometimes referred to as a spitter and the lip of the 

thermalite connector is crimped down with the thumb. The thermalite 

connector is a small metal capsule which is a type of fuse lighter. The 

end not connected to the ignitor cord is crimped around the fuse. The 

fuse itself is a wax and string covered powder stream that in this 

case burned at a rate of forty-five seconds per foot. The other end of 

the fuse sets off the blasting cap which in turn sets off the primer and 

then the main body of the dynamite and prell explosion. "Prell" is a 

trade name for ANFO which stands for ammonium nitrate and fuel oil. 

1970 
During the course of the questioning of the injured miner and the 

inspector there was an obvious confusion concerning the meaning of the 

terms, test fuse, spitter (fuse lighter) and igniter cord. I also 

think there are errors in the transcript which add to the confusion. 

There were, however, terminology problems unassociated with the 

transcript. For example the narrative findings for a special assessment refers to "lead spitters which had a burning rate of 4.5 seconds 

per foot." The accident report (petitioner's exhibit 7) states 

"Dupont fuse ignitors and caps were used and when tested burned at 45 

seconds per foot. 11 A fuse lighter (the type used at this mine), a 

spitter, and a thermalite connector are all the same thing. They are 

metallic devices with a diameter sufficient for a safety fuse to be 

inserted and very much resemble a blasting cap. The length is about 

l" to 1-1/2" and there is no burning rate in the normal sense of the 

word 1_/ involved. A blasting cap does not have a burning rate, in the 

practical sense of the word, since it explodes. Whatever the accident 

report and the special assessment writers were talking about it was 

not spitters or blasting caps. It must have been either fuse 

or ignitor cords. Sometimes the inspector, Mr. Deason, used the term 

"spitter cord" when he meant igniter cord. I do not believe, however, 

that the inspector said that igniter cord was the same thing as a 

spitter as indicated on page 117 of the transcript. In his testimony 

concerning overdrilling however, he did seem to confuse ignitor cord 

and safety fuse. At times he seemed to think that the ignitor cord was 

burning back down in the drill hole toward the detonator. It is the 

fuse (safety fuse) that burns back in the hole. 

The company is charged with 2 violations in connection with this 

accident. One of the citations alleges a violation of 30 C.F.R. 57.6-90 

which states: 

"persons who use or handle explosives or detonators shall 

be experienced men who understand the hazards involved .... " 

In connection with this standard it is charged that Mr. Tate did not 

understand the hazards involved. The other citation alleges a violation 

of 30 C.F.R. 57.6-116 which states: 

"fuse shall be ignited with hot wire lighters, lead 

spitters, ignitor cord, or other devices designed 

for that purpose. Carbide lights shall not be used 

to light fuses." 

];_/ Technically even explosions have a propagation rate but it is not 

on the scale involved here. None of the items involved in this case 

have a burning rate of 4.5 seconds per foot and only the safety 

fuse has a burning rate of 45 seconds per foot. 

1971 
30 C.F.R. 57.2 contains definitions of igniter cord and safety 

fuse but does not contain a definition of "fuse." I am interpreting 

the regulation as requiring that "safety" fuse "be lighted with hot 

wire lighters, lead ters, igniter cord, or other such device 

designed for this purpose." Despite the fact that both the inspector 

and Mr. Tate as well as the attorneys for both parties were of the 

opinion that the lighting of the spitters with a propane torch is 

prohibited by 57.6-116, I am of the opinion that it is not. The 

regulation says that you can not the fuse except with certain 

devices, and Mr. Tate in this case lit the fuse with a spitter. Using 

a propane torch to the spitter may violate company policy but it 

does not violate the regulation. Every fuse had a blasting cap on one 

end and a spitter on the other. (Tr. 139-140), If he had used his 

torch to light the fuse directly, it would have been a violation. But 

he did not do that. Citation No. 576778 is Vacated. 

As to the charge, that Mr. Tate did not fully understand 

the hazards involved, there are two items that must be considered. The 

first involves the allegation, made for the first time at the trial, that 

it was an unsafe practice to overdrill, that is, drill too many holes, 

in the face area. The inspector testified that the area had been overdrilled and that this created a hazard in that certain holes may not 

fire and may end up in the muckpile. Mr. Tate had been questioned about 

the overdrilling and did not think it was a hazard. Since thia particular 

so-called hazardous practice was not mentioned in the citation, the accident 

report, or the special assessment, but only for the first L.me at the 

trial, I doubt that anyone gave it serio'll'S consideration until just 

before the trial. I am going to disregard the charge. Moreover the 

standard requires that the miner understand the hazards. It does not 

require that he agree with an inspector as to what the hazards are. 

The second item involves the practice of wrapping the ignitor cord. 

around the ter once before crimping the rim of the spitter down on 

the cord. The inspector did not convince me that this practice would 

lead to the failure of the round to fire and there was other testimony 

including that of Mr. Tate that it was an acceptable method of attaching 

igniter cord to a spitter. Like the prior matter, this was not mentioned 

in the citations, in the accident , or in the narrative findings 

for a special assessment. It is not fair to raise such a charge for 

the first time at a trial but, as stated, the inspector's testimony 

regarding this practice was unconvincing in any event. 

The are two versions of what actually went on at the accident site 

just before the premature explosion. One version is supplied the 

victim himself and the other version is supplied the inspector who 

examined the site after the accident and interviewed the victim. I 

think it fairly obvious that the victim had not recovered from the 

explosion effects at the time of his interview with the inspector. 

1972 
The victim, Mr. Tate, was not too clear in his testimony about the 

distinction between the main face area and what he called the slab round. 

From hearing his testimony I thought he put fifty or so loaded holes 

in the face and about twenty in the rib right next to it. I thought he 

lit all of the spitters with a butane torch and had his safety test 

fuse on the ground at his feet. The safety test fuse was merely a fuse 

of the same length as the others that he lit so that he could observe 

it burning and see how much time he had left before his rounds would go 

off. If he lit the safety fuse first and if it burned at the proper 

rate it should complete its burning before any of the fuses that he lit 

with the torch and spitter would ignite and explode the detonator caps. 

From the inspector's testimony it turns out that the so-called slab 

round was thirty or fifty feet away from the face round and was not in 

a direct line. In other words the entry after the slab area turned 

slightly to the right. The inspector says that Mr. Tate told him he 

wired up the face area correctly with spitter and ignitor cord and was 

using his torch to light the spitters in the slab area when the face 

explosions went off. But regardless of which version actually occurred, 

Mr. Tate was well aware of the hazard involved in lighting the spitters 

with a torch rather than ignitor cord. The hazard involved in 

the spitters with a torch rather than tor cord is that you have to 

stand there and light each spitter, whereas if you use ignitor cord you 

just light it and leave. Using the ignitor cord, as the inspector said 

Mr. Tate did, to light spitters and then stand there and make sure the 

spitters are properly lighted does not make sense. I do not believe 

he did that. But Mr. Tate did light spitters with his torch, which while 

not prohibited, is not as ~afe as using i~nitor cord. He did~it,~ecause 

he was in a hurry and trying to get some extra production so that his 

crew would get an incentive bonus. 

The standard states that the blaster should be aware of the 

hazards involved and I think it clear that Mr. Tate was aware. He 

deliberately chose to ignore safety precautions. He was however, an 

experienced blaster and I can not find that he failed to understand the 

hazards involved. Citation No: 576779 is vacated and the case is 

DISMISSED. 

Distribution: By Certified Mail: 

Charles C. Moore, Jr., 

Administrative Law Judge 

Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department of Labor, 1961 Stout Street, Denver, CO 80294 

Bill Haywhort, Esq., Holland and Hart, P.O. Box 13749, 

Denver, CO 80201 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DAVID HOLLIS, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

NOV 121992 5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION, OR 

INTERFERENCE 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. WEVA 81-480-D 

Appearances: 

Before: 

Osage No. 3 Mine 

DECISION 

J. Montgomery Brown, Esq., Fairmont, West Virginia for 

Complainant; 

Jerry Palmer, Esq., Pittsburgh, Pennsylvania for Respondent. 

Judge Melick 

This case is before me upon the Complaint of David Hollis, under section 

105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, 

et ~., the "Act," alleging that the Consolidation Coal Company (Consol) 

discharged him on September 29, 1980, in violation of section 105(c)(l) of the 

Act.];./ Evidentiary hearings were held on Mr. Hollis 1 s complaint in Morgantown, West Virginia. 

Motion to Dismiss 

At hearing, Consol renewed, in a Motion to Dismiss (and Motion for Summary Decision), its argt.nnent made in prior motions that Complainant had failed 

}:./ Section 105(c)(l) provides in part as follows: 

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

interfere with the exercise of the statutory rights of any miner * * * in 

any coal or other mine subject to this act because such miner * * * has 

filed or made a complaint under or related to this act, including a complaint 

notifying the operator or the operator's agent, or the representative of miners 

at the coal or other mine of an alleged danger or safety or health violation 

in a coal or other mine * * * or because such miner * * * has instituted or 

caused to be instituted any proceeding under or related to this act * * * or 

because of the exercise by such miner * * * on behalf of himself or others 

of any statutory right afforded by this act." 

1974 
to meet the time deadlines set forth in sections 105(c)(2) and 105(c)(3) of 

the Act. 2 Under section 105(c)(2), of the Act, the miner or representative 

of miners who beiieves that he has been discharged in violation of the Act 

"may, within 60 days after such violation occurs, file a complaint with the 

Secretary". There is no dispute in this case that the Complainant, David Hollis, was discharged by Consol on ember 29, 1980, but did not file a complaint of discriminatory discharge with the Secretary of Labor, Federal Mine 

Safety and Health Administration (MSHA) until April 7, 1981, more than six 

months later. 

In UMWA v. Consolidation Coal Co., 1 FMSHRC 1300 (1979) the Commission 

examined the legislative intent underlying the statutory time periods established for filing discrimination complaints: 

In explaining section 105(c)(2)'s requirement that a discrimination complaint be brought within 60 days of the alleged 

Act, the Senate Committee [Committee on Human Resources, Subcommittee on Labor] stated: 

The bill provides that a miner may, within 

60 days after a violation occurs, file a complaint 

with the Secretaryo While this time limit is 

necessary to avoid stale claims being brought, it 

should not be construed strictly where the filing 

of a complaint is delayed under justifiable circumstance8. Circumstances which could warrant the 

extension of the time limit would include a case 

where the miner within the 60 day period, brings 

the complaint to the attention of another agency 

or to his employer, or the miner fails to meet 

the time limit because he is misled as to or misunderstands his rights under the act. [Report 

No. 95-181, 95th Congress, 2nd Session at page 624 

(1978)]. 

The Senate Committee also expressed a similar view as to 

the 30 day period provided for in section 105(c)(3) in which 

a miner can file a discrimination complaint on his own behalf 

if the Secretary determines that no violation has occurred: 

[A] As mentioned above in connection with 

'!::_/ Judge John Cook, to whom this case was initially assigned, had treated 

Consol's Motion to Dismiss as a Motion for Summary Decision under Commission 

Rule 64, 29 CFR § 2700.64, and denied the Motion for the reason that unresolved issues of material fact then existed. I am now ruling on the Motion 

to Dismiss in light of the additional evidence presented at hearing and in light 

of my determinations of credibility. 

1975 
the time in filing complaints, this 30 day limitation may be waived by the court in appropriate circumstances for excusable failure to meet the requirement. Legislative History, supra, at 625. 

Thus, it is clear that Congress intended that the time periods 

for filing discrimination complaints under the 1977 Act can be 

extended in appropriate circumstances. 

The specific issue to be decided, then, is whether appropriate circumstances exist in this case that would justify an extension of the filing 

deadlines set forth in sections 105(c)(2) and (3). The operator as the moving 

party and proponent of the statutory limitation periods carries the burden of 

establishing that the Complainant is barred by those provisions. 5 U.S.C. § 

556(d); Raymond v. Eli Lilly & Co., 412 F. Supp. 1392, at p. 1401 (DCNH, 1976)" 

Mr. Hollis explained in his initial complaint to MSHA the reasons for his 

late filing: 

First of all, the reason that I did not file under this 

Act was just plain ignorance of the Act. I was basically in 

total confusion during my whole discharge proceedings. No one 

informed myself [sic] of any rights I may have used after my 

discharge. Union representatives urged myself [sic] to have 

the five-day arbitration hearing and once the verdict was in. 

Discharge was upheld by arbitrator (P. Selby). I was told by 

the union local indirectly~and by District Vice-Pres. Carrol 

Rogers they were not obligated to do anything else for me. I 

was appointed to the chairmanship of the safety comm. after 

Robert Moore's resignation during the Four States [Mine] discharges and I had never been on the ·safety comm. and never attended a safety comm. training class to have direct knowledge 

of safety act. 

After my discharge, I filed with the Human Rights Comm., a 

state funded organization, and the National Labor Review Board 

[sic]. I filed with H.R.C, (October 15, 1980) against Consol and 

Local and District (Local 4043 and District 31) for discrimination and unfair representation. It has been over six month [sic] 

since filing with West Virginia H.R.C. and still no fact finding 

meeting or investigation. I felt it was solely my obligation 

as the complaintee to be able to verify my charges against both 

respondents. I felt I knew what had taken place, resulting in 

my discharge; but the problem was verifying the reasoning for 

my discharge and what each accused party had done to abuse or 

deny my rights under the Health and Safety act. 

Subsequently, in his deposition, Hollis alleged that he first became 

aware of his right to file a discrimination complaint under the Federal Mine 

Safety and Health Act only a few days before he actually filed the complaint. 

1976 
He claims that he discovered this right in talking to MSHA employee Earl McManus at the Morgantown MSHA office. McManus did not testify in this case. 

Consol argues that Hollis knew of his section 105(c) rights within the 

statutory filing period and consciously chose not to exercise those rights. 

It is clear that, because of the position held by Hollis as Chairman of the 

Mine Safety Committee, he certainly should have known of his rights under the 

Act to file complaints of unlawful discharge and discrimination with 11SHA. 

Indeed, it is not disputed that he had been an active, if not militant, chairman of the Safety Committee since his appointment by the local union in April 

1980, and that in that capacity he frequently met with state and Federal (MSHA) 

safety officials. He had access to copies of the Federal law and Hollis himself asserts that he "knew the law" and had more knowledge of the Federal Mine 

Safety law than any other member of the Safety Committee. Moreover, the successor chairman of the Safety Committee, Edward Pugh, acknowledged that it was 

one of the duties of that position to advise miners of their rights under section 105(c) of the Act. The fact that Hollis has also achieved a level 

of education, having completed two years of college, also reflects on his 

ability to have understood and waived his rights. 

However, even if Hollis did not, even in his capacity as Chairman of the 

Safety Committee, know of his section lOS(c) rights, he nevertheless was 

clearly advised of those rights in the decision of Arbitrator Paul Selbyo In 

that decision, issued October 20, 1980, Arbitrator Selby specifical informed 

Mr. Hollis that "[i]n both the Mine Health and Safety Act and the National 

Labor Relations Act, there are prohibitions against an employer taking disciplinary action against an employee for making charges or filing claims under 

the particular legislation." (Operator's Exhibit No. 15 at p.37). 

In light of the foregoing, I do not find the Complainant's claimed ignorance of his rights under the Act to be credible. It may reasonably be inferred that he did not file timely under the Act because the Arbitrator had 

already specifically rejected his claims that he had been fired fo;~ activities 

protected by the Act. In a well-reasoned and thorough decision, the Arbitrator had found "no evidence in the record that this discharge action was taken 

in any time reference to, or was caused by, any activity of the Grievant [Hollis] with respect to any grievances, or any of the demands for inspection 

under § 103( g) of the Mine Health and Safety Act * * *" (Operator's Exhibit 

No. 15 at p. 37). Hollis admitted that after the Arbitrator's decision, he 

thought his best case was with the West Virginia Human Rights Commission, 

charging discrimination against a racial minority. It appears from Hollis's 

initial complaint to MSHA that he changed his mind and decided to file under 

the Act only after more than 6 months had elapsed and the state Human Rights 

Commission had not even begun its investigation. 

Under all the circumstances, I conclude that Mr. Hollis did indeed know, 

within 60 days of the alleged unlawful discharge, of his right to file a complaint under section lOS(c) of the Act but consciously chose not to file such 

a complaint until more than 5 months after he knew that such a right existed. 

I do not find in this case any justification to extend the filing time. Accordingly, Consol's Motion to Dismiss is granted and this case is Dismissed. 

1977 
Secondary Disposition on the Merits 

Even assuming, however, that the Complaint had been timely filed, the 

case would nevertheless fail on its merits. A prima facie violation of section 

lOS(c)(l) of the Act may be proven by a preponderanc~the evidence showing 

that the miner has engaged in an activity protected by that section and that 

the discharge of him was motivated in any part by that protected activity. 

Secretary ex rel David Fasula, v. Consolidated Coal Co., 2 FMSHRC 2786 (1980), 

Rev'd. on other grounds, Consolidated Coal Co. v. Secretary, 663 F. 2d 1211 

(3rd Cir. 1981). In this case, it is not disputed that Mr.Hollis had engaged 

in protected activities. Indeed, the parties have stipulated as follows: 

During the period, April 1980 through September 1980, on 

the date of his discharge; that the safety committee filed with 

the operator approximately 30 safety complaints; all of which 

eventually were examined or read or seen by Mr. Joseph Pride 

(mine superintendent] at some point in time; and that Mr. Price 

was aware at all times that Mr. Hollis was a member of or chairman of the safety committee during that period, when these safety 

complaints were filed. 

Consol specifically concedes in its brief that Hollis did in fact engage 

in safety related activities during his tenure on the Safety Committee at the 

Osage No. 3 Mine (Operator's Brief P• 27). 

The second element of a prima facie case is a showing that the adverse 

action was motivated in any part by the protected activity. The Complainant 

herein alleges the following circumstantial evidence to show discriminatory 

intent: knowledge by management of his protected activities, hostility towards 

those protected activities, and disparate treatment of him. See Secretary 

ex rel Johnny Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981). 

1\t the time of his discharge on September 29, 1980, Mr. Hollis had been 

employed by Consol for more than eight years. He had various experience in 

the mines as a buggy operator, loading machine operator, general inside laborer, 

and lastly, as a wireman. In April 1980, Hollis was appointed by the union 

local to serve as chairman of the Safety Committee at the Osage No. 3 Mine. 

Hollis claims in this case that it is because of his activities on the Safety 

Committee that he was singled out for discharge. In this regard it is undisputed that during the period April 1980 through September 1980, the Safety 

Committee filed with the operator approximately 30 safety complaints. It is 

further undisputed that all of these complaints were at some point in time 

seen by mine superintendent Joseph Pride. In particular, Hollis cites four 

complaints written by him under section 103( g) of the Act <luring his tenure 

as chairman of the Safety Commit tee. )./ While ordinarily the identity of the 

3/ Complaints under section 103(g) of the Act may be made by a representative of miners or a miner directly to MSHA and MSHA must then perform an 

inspection pursuant to those complaints. 

1978 
person initiating such a complaint is not disclosed to the operator, Mr. Hollis apparently did not hide from Superintendent Pride the fact that he had 

authored those complaints. According to Hollis, the complaints dealt essentially with coal spillage on the tracks at the lower end of the mine. Superintendent Pride was apparently irritated at these complaints because he felt 

that area of the mine "wasn 1 t in that bad a shape". Pride conceded that he 

wanted to clean the outby areas, particularly in light of complaints in that 

area originating from the motorman, but that Hollis would disagree, and insist 

on cleaning the lower end of the mine. According to Pride, Hollis would get 

his way by filing a 103(g) complaint with MSHA and "pretty soon, we'd be cleaning track [in the lower end of the mine]". Pride admitted that as a result 

of these complaints, he was required to do "all the work in one area, the 

lower part of the mine", thereby interfering with work he wanted to complete 

in other areas of the mine. 

While the Complainant produced testimony from other me..mbers of the Safety Committee, including Larry Taylor, concerning statements made by Superintendent Pride that the Safety Committee "was costing him a lot of money on 

a lot of equipment checks we was [sic] making and shutting down a lot of sections that we had went [sic] to", it appears that at least some of these statements had been uttered in 1979, several months before Hollis had even become 

a member of that Safety Committee. Ralph Hicks testified, on the other hand, 

that members of the Safety Committee, including Hollis, did in fact attend a 

meeting about a month before Hollis 1 s discharge at which Pride also complained 

of the increased costs caused by the Safety Committee. 

There is no doubt that the relationship between Hollis and Superintendent Joe Pride, for whatever 'reasons, was poor. This poor relationship was 

due at least in part to problems under the collective bargaining agreement 

unrelated to health or safety and to Mr. Hollis 1 s admittedly arrogant nature. 

Indeed, the label "trouble-maker 11 placed by Superintendent Pride upon Hollis 

was, according to the Complainant's own witness, David Gearde, based upon Hollis's apparent involvement in a wildcat strike. Acccrding to the Complainant's 

witness, Larry Taylor, the relationship between Pride c:nd Hollis was "pretty 

rocky". "They didn't like one another a damned bit and they had lots of squabbles". Gearde testified that in several safety committee meetings he attended 11 it was always a shouting match". Gearde admitted that he too joined in the 

shouting at these meetings. It appears that the relationship between Hollis 

and Pride may have been further aggravated by Hollis's admitted arrogance and 

the fact that he "showed off11 his knowledge of "the contract and the law" in 

the presence of other miners to the apparent irritation and humiliation of 

Superintendent Pride. 

In a somewhat related matter, the Complainant alleges that he had broken 

a personal "agreement" with Superintendent Pride to improve their relationship. Hollis claims that this was an additional source of ill-will toward him. 

The terms of the alleged "agreement" are not at all clear, however. According to Complainant's testimony, it was as follows: 

Q. Now, in exchange for Mr. Pride being safe and for his 

providing indirect assistance to you in the election; what 

were you to give to him in return? 

197B 
A. He told me that I'd have to confine my act, you know, 

sort of -- excuse me. Let me answer it this way; Mr. Pride 

directly said, he said, the problem with you, Hollis, is you 

know law and contract and when you come out -- when you come 

out the mine or you come to the mine, that you -- like, you 

may catch me in the hallway and you embarrass me in front of 

the other union -- union and company people. And he said, 

that's what you got to tone down. He said, now, I don 1 t 

mind you going into your act, you know, your aggressiveness 

and stuff, but wink at me, let me know you don't mean it. And 

I asked him specifically, is that what goes on with the 

other peo in the committees? They -- before me, you know, 

I said, I asked him specifically, is that the way people act 

on the committee, as I'm on now or the people before me? And 

he said, well, we had arrangements that, you know, in front 

of the men we acted like we didn 1 t like one another, but 

behind closed doors was another was another thing. 

Hollis alleges that he breached this "agreement" by subsequentl:; becoming 

"aggressivr::" again and by writing a personal safe grievance under state law 

against assistant mine foreman McNair. Within this framework of evidence, however, I certainly cannot conclude that there was any "agreement" in the first 

place. The description of the alleged "agreement11 is so ambiguous, it is difficult to discern how its terms may have been breached by Hollis. At best, 

the "agreement" seems essentially to call only for civility between the men. 

In any case, it is impossible.to draw any reasonable inference that Superintendent Pride would, as a result of any breach of that agreement, have necessarily 

harbored anti-safety animus toward Hollis. !!._/ 

Thus, while Hollis and Pride no doubt disliked each other and did not 

get along, many reasons for this attitude and relationship existed that were 

not related to any activity protected by section lOS(c)(l) of the Act. While 

there is also evidence to .show that part of the poor relationship between the 

men may have been the result of Hollis's safety complaints, there is insufficient evidence that a causal connection existed between that specific aspect 

of their relationship and Hollis's discharge. 

As other evidence of alleged unlawful motivation, however, the Complainant charges that the reason given by Consol for his discharge, namely fighting, 

was merely a pretext and that no one who had previously engaged in fighting 

at the Osage No. 3 mine had ever been discharged. This precise factual issue 

was thoroughly addressed by the Arbitrator. (Operator's Exhibit No. 15). 

Considering the criteria set forth in Pasula (2 FMSHRC at p.2795), and in 

Alexander v. Gardner-Denver Company, U.S. 36 (1974), I accord the arbitral 

4/ To the extent that Hollis believes he breached an agreement with mine 

management, that, of course, reflects negatively on his own credibility. 

1980 
findings on this· factual issue great weight. 5/ Moreover, after my own de 

novo analysis of all the evidence before me, T find that I am in complete~ 

agreement with Aroitrator Selby's considered analysis and conclusions on this 

issue. 

The credible evidence in this regard clearly demonstrates that the Complainant 

as well as all mine employees had been informed, and it was well recognized, 

that t was a dischargeable offenseo The evidence further shows that following a raucous Christmas party in December 1979, the local union demanded from 

Superintendent Pride stricter enforcement of the disc inary rules against, 

among other things, fighting. The credible evidence further shows that short 

thereafter, and no later than February 1980, a large bulletin was posted on a 

mine bulletin board resta the rules against fighting. 

The facts as reviewed 

are as follows: 

Arbitrator Selby surrounding the 

Turning to the events shown in the record to have led to 

the discharge and grievance under consideration, as background, 

the record shows that at the bottom of the shaft through which 

the cage runs, where the cage opens at the bottom for entry and 

exit, a room, separate from the other structures in the mine 

at issue 

proper, has been constructed which is equipped as a wai room. 

It is to be inferred from the testimony that the cage is operated electrically in response two signal buttons in the same 

fashion as other passenger elevators operate. The waiting room 

was generally described by the witnesses to be some 50 feet 

long. The cage, its doors and shaft enclosure, along with the 

button signal panel, apparently constitutes the major portion 

of the wall of the waiting room at that end. At the opposite 

end of the room, there is a revolving door opening out into 

the mine, and that apparentl:r constitutes the major portion of 

that wall. The two side walls are equipped with benches on 

decisions, the arbitral findings may be 

entitled to great weight where, as here, full consideration was given by the 

arbitrator to the employee's statutory rights; the issue before the Commission Judge is solely one of fact; the issue was specifically addressed by the 

parties before the arbitrator; and the issue was decided by the arbitrator 

on the basis of what certainly appears to have been an adequate record. I 

observe, in addition, that Franklin Cleckley, a professor of law at the University of 1 . .Jest Virginia Law School, and a practicing attorney with whom Mr. 

Hollis consulted regarding his discharge, conceded that he indeed respected 

Paul Selby as an arbitrator in the coal industry. Mr. Selby's special competence in the field is further recognized by the fact that he had been 

selected by both the coal operators and the union to be the Chief Umpire under 

the previous contract and the fact that he was also appointed to the faculty 

of the University of \Jest V inia Law School apparently as a specialist in 

the field of labor law. 

1B81 
which the E!mployees may sit while waiting for the cage and 

the trip out of the mine to the surface. 

The record also shows, as further background to the 

events in this case, that prior to Friday, September 26, 

1980, there had been some difficulty between management and 

the employees, at least those on the afternoon - the 4:00 p.m. 

to midnight - shift so far as this record shows, concerning 

the time at which the employees coming off the shift should 

"cage" to the surface. Cutting through much of the details 

of the dispute, management sought to assure that the employees 

would not cage out until 15 minutes to the hour. A number of 

employees had been caging out as early as 11:15 p.m. and collecting pay until the 12:00 midnight time for the end of the 

shift. To stop this practice, the Employer had docked the 

pay of employees to reflect their early caging from the bottom. This had caused some protest, but according to the 

record, apparently was not altogether effective. A meeting 

between management and the Mine Committee did not resolve 

the matter of the acceptable time for caging out, and in 

the meeting; management announced that it would be taking 

steps to issue disciplinary slips (apparently, from the 

reaction expressed, a part of the progressive discipline 

policy to remedy "unsatisfactory work") for caging out early. 

At any rate, one of .. the first such "slips" issued 

after that meeting was issued to the Grievant [Complainant 

Hollis in this case] for his caging out earlier than 5 

minutes until the hour. On the grievance filed over the 

issuance of that slip, a series of meetings was had with 

mine supervision and higher supervision. As a result of 

those meetings, it was agreed that henceforth no one 

would "cage out" until 20 minutes until the hour and an 

agreed procedure for enforcement of the agreed caging time 

was worked out. That is, on the first offense thereafter, 

the offending employee would be "talked to" by the Superintendent. On the next and subsequent offenses, a further 

series of progressively more serious forms of discipline 

would be assessed. And, as a particular and specific part 

of the agreement, it was agreed that the matter would be 

handled as a disciplinary matter and there would be no 

further docking of pay as a remedy. Importantly, a part 

of the agreement on the policy and in settlement of the 

grievance on the Grievant's slip, that slip was removed 

and expunged. It is to be inferred from the testimony 

that all of this had just occurred shortly before September 26, 1980. 

Then, on the night of September 26, 1980, toward the 

end of the afternoon shift, as the Grievant testified, the 

1982 
Grievant an~ his buddy, David Cottingham, both classified 

and working as wiremen, had gone about their normal duties 

which included bringing equipment to the bottom. They got 

to the bottom at about 11:05 to 11:15 p.m (putting the 

testimony of both together on the timing). As the Grievant 

came through the revolving door into the waiting room, he 

saw two employees going onto the cage and on up to the 

top. Shortly after, members of a "dead-head" crew, which 

included Ralph Hicks, William Coburn, and two ladies, came 

in and sat on one of the benches at about the middle of 

the room. In the short period following, a number of persons began to gather in the waiting room up to number 

ranging in estimates by witnesses from 15 to 30 or so. 

Then, according to the testimony, Mr. Hicks said, 

"Let 9 s go up at 11:25." At this Grievant raised up from 

his resting position, saying that the agreement was to stay 

on the bottom until 11:40, and that Hicks, as a Committeeman, ought to aid in observing the agreement. With that, 

Grievant got up from the bench and walked over and leaned 

against the cage door. At the same time, since Grievant 

did not carry a watch, he asked another employee, David 

Mollisee, who was sitting on the bench next to the cage 

door and the button device used to signal for the cag , 

what time it was, and was told: "11:23." 

A short while later; estimated by the Grievant to be 

two or three minutes, William Coburn got up from the bench 

where he was seated, moved toward the cage, saying, "let's 

go", and asking Mr. Mollisee to push the button for the 

cage. At this point, an altercation between the Grievant 

and Mr. Coburn ensued, which altercation, its nature, 

extent, and course of events, is the subject of controverted 

testimony, and, eventually, the basis on which this case 

arose. 

William Coburn, subpoenaed as an Employer witness, 

stated that he came to the waiting room around 11:15 p.m. 

with his crew and sat down with them on the bench. Other 

employees came in and he estimated that some 30 had gathered. Some time around 11:30, he got up, walked to the 

cage, and asked Mr. Mollisee to push the button and Mr. 

Mollisee did so. At this, the Grievant told Mr. Coburn 

it was not time to go out, and Coburn retorted that Grievant was not going to tell him when he could go out or 

come in. At this remark, he said, the Grievant started 

cussing him. During this exchange, the cage came down 

and the door opened. At about this time, Grievant hit 

Mr. Coburn on the right side of his face alongside his 

nose and pushed him onto the cage. Mr. Coburn was dazed 

by the blow, but did recall that others got on the cage 

and that Mr. Cottingham restrained the Grievant. 

198:1 
Mr. CQburn also said that there were some 15 employees on the cage when the cage doors closed and it started 

up. He claims that three times on the way up, the Grievant broke away from restraining fellow emloyees and came 

at Mr. Coburn, grabbing him, one time getting a headlock 

on Mr. Coburn before he was restrained and pulled off. 

On the occasion of one of those rushes, Mr. Coburn threw 

up his hands to protect himself, and his dinner bucket 

which he was holding was knocked from his hands to the 

floor where it was smashed. He also reports that Grievant threw his, the Grievant's hard hat at him, but it 

missed. 

When the cage got to the top, Mr. Coburn sought out 

supervisory employees to report the incident and to make 

a complaint, In the course of this, he reported to Kurt 

Zacher, a section foreman; Bill Pride, Shift Foreman; and 

eventually, "Pete" Simpson, the Assistant Superintendent. 

After making his report, Mr. Coburn went on to the bathhouse, took his shower and got dressed, and went to his 

buddy'ls truck to ride home. He reports that after he 

got in the truck, the Grievant came out and tried to 

Mr. Coburn out of the truck, saying that he would "get 

him". 

Mr. Coburn claimed he got a broken nose in the affray, 

and that he went to the doctor for treatment after the meeting 

on Saturday, the next day. 

On cross-examination, Mr. Coburn denied using abusive 

language toward the Grievant at the bottom, but admits he 

probably used such language in his yelling back and forth at 

the grievant on the cage. He also admitted that he told the 

Grievant that Grievant couldn't tell him when to leave. 

On the other hand, the Grievant testified that when 

Mr. Coburn moved to the cage and remarked, "Let's go," he 

asked Mr. Coburn where he was going. Mr. Coburn replied that 

he was going outside. Grievant explained that it was too 

early and why they must wait until 11:40. At this Mr. Coburn 

said grievant couldn't tell him when to leave and that Grievant didn't care anyway. Grievant responded that Mr. Coburn 

was one of those who was always trying to tear down what he 

was working for, and that they - the two - were going to see 

Joe Pride (the Superintendent) tomorrow to get it straightened 

out. To this, Grievant reported, Mr. Coburn made derogatory 

remarks, repeating for the record the alleged words as he 

remembered them. 

1984 
All this while, the cage was on the way down. When the 

cage arrived, Grievant got on the cage with Mr. Coburn, intending to go to management. Grievant stated that there is always 

a "mad dash" by everyone to get on the cage on the first trip, 

and on this occasion, there was a lot of shoving in the course 

of which he got shoved into Mr. Coburn as the Grievant started 

around him to go on the cage and while the two were still having words. They made contact with each other and both grabbed 

each other's clothes. Grievant conceded that, under the conditions of the verbal exchanges between them, Mr. Coburn thought 

this was an agressive move. When the cage began moving up, the 

others on the cage restrained both of them. After both were 

restrained, the Grievant told the others on the cage that the 

people were going to ruin the policy that he had worked for and 

that he was trying to represent the majority of them. Grievant 

reports that ~r. Coburn then said that Grievant was an egotistical Committeeman, to which the Grievant replied that Mr. 

Coburn was no good and was selfish. 

Grievant further stated that, by the time the cage got 

to the top, the confrontation got out of hand and he probably 

set a bad example, and probably should have let Mr. Coburn go 

on up. He reported that he has had problems with Hr. Coburn 

before, and while he tries to do his job, he knows he is not 

the most popular person. He explained that his way of doing 

things is to go at it aggressively and go straight to the 

point - even to the exten~ that it might be called emotional, 

sometimes using rough and harsh language. However, that is 

the way most people around the mine who things done, both 

Union and supervisors, go about getting things done. In this 

case, there were no licks thrown and thus there was not a 

fight. While there may have been derogatory language used by 

both men, it was nothing out of the ordinary around a mine. 

Employer witnesses Zacher and Simpson, both supervisors on 

the afternoon shift, reported that Mr. Coburn had come out of 

the mine and reported to them about the incident. Both reported 

that, within a short time after he got off the cage, Mr. Coburn 

told them that there had been a fight on the bottom and on the 

cage and that Grievant had "pounded on him" in the cage and on 

the way up and that he wanted to make a complaint. Both reported that Mr. Coburn was very upset, hands shaking, and lips 

and voice trembling as he spoke. Both reported that Hr. Coburn 

had a scratch on his face in the vicinity of his right cheek 

bone, and his nose was red as if bruised. 

Mr. Simpson also testified that when he went into the 

men's shower room to tell Grievant about the investigative 

meeting to be held the next day, Saturday, Grievant had a 

1985 
scratch on his face along in front of his eyes. He also reported that as he told Grievant about the meeting, the Grievant 

told him to leave him alone, that he didn't want to talk about 

it right then. 

Other than the grievant and Mr. Coburn, there were eleven. 

witnesses who testified that they had been on the bottom at the 

end of the afternoon shift on September 26, 1980, at the time 

the altercation took place. All were classified employees. 

(The Employer witnesses stated that, in their investigation, 

they determined that no supervisor was present at the bottom 

or on the cage at the time, and that the one who arrived at 

the bottom nearest the time involved, did not arrive until 

after the cage had gone up with the two.) Seven testified in 

the Employer 1 s presentation, having been subpoenaed pursuant 

to the Interim Order entered at the end of the Sunday first 

partial hearing. Of the eleven, seven witnesses (four testifying in the Employer's case and three in the Union 

could testify about what they saw and heard at the bottom while the cage door was open and before doors closed and 

the cage started up. These seven witnesses did not ride up 

in the cage with the Grievant and Mr. Coburn, some because 

they did not attempt to get on for one reason or another; and 

some because they got on but were pushed off or got off when 

they saw what was going on. The other four witnesses, three 

testifying in the Employ~r case, and the other in the Union 

case, were on the cage during the whole affair. 

None of the eleven witnesses reported any blows 

struck outside the cage. All of them reported that there was 

an exchange of language in argur1ent between Grievant and Mr. 

Coburn about whether Mr. Coburn :·1as going up and why. Most 

reported the exchange to include profanity derogatory to the 

character, ancestry and sexual practices of the receiver, 

and that both of the men used such words in loud and angry 

tones of voice. 

Of the witnesses who did not ride up in the cage with 

the two, one reported that he didn't see anything because he 

came into the waiting room just as the cage started up; however, he did hear angry yell and a ruckus go on. Another 

of those witnesses, reported only that she heard the discussion 

about going up early and saw a "scuffle" before the doors closed. 

None of the witnesses who did not ride up in the cage reported 

or corroborated that there was a "mad rush" to get on the cage. 

To the contrary, most reported that the Grievant and Mr. Coburn 

got on ahead of the others who did get on. The other five who 

did not ride up with the two (one testifying in the Union case 

and four in the Employer's case) reported seeing the Grievant 

pushing and grappling Mr. Coburn and Mr. Coburn pushing back. 

1986 
They also stated they saw a Mr. Cottingham restraining the 

Grievant and holding him off Mr. Coburn. Two of those witnesses reported seeing another employee, a Mr. Mayhew, also 

holding the Grievant and restraining along with Mr. Cottingham. One of the witnesses, who says he knows the Grievant well 

and only reluctantly testified because he was subpoenaed, also 

said that he heard the Grievant say something to the effect, 

"Let me go; I'll kill him. 11 However, the witness hastened to 

say that the words were said in anger and he doesn't believe 

they were meant in the literal sense that the Grievant did 

mean to kill Mr. Coburn. This witness also reluctantly made 

the comment, in response to close questioning, that the only 

thing between him and the Grievant over the five years he has 

known the Grievant is that the Grievant has a quick temper 

and reacts 11 badly11 to criticism, and that was the reason, as 

he told Grievant at the time, that he wouldn't support the 

Grievant for Union office" 

Of the four witnesses who were on the cage as it went to the 

top with Grievant and Mr. Coburn on it, three were subpoenaed to 

testify in the Employer's presentation; the other testified in the 

Unionts presentation. Mr. Cottingham, testif in the Union's 

presentation, reported that, in gett on the cage, all the 

while with the angry exchange of words between Grievant and Mr. 

Coburn going on, because of the press, the Grievant bumped into 

Mr. Coburn and Mr. Coburn swung his bucket, hitting Grievant 

with it. The Grievant grabbed Mr. Coburn on the face, and Mr. 

Cottingham grabbed the Grievant and restrained him while others 

restrained Mr. Coburn. 

The other three witnesses contributed various aspects of 

a pair.it. of view of the events. All testified that there were 

some 15 employees on the cage while it was going up, and, questioned on cross-examination about the reasonableness of any such 

action as they reported given the crowded condition on the cage, 

they reported that the cage is rated to carry 26 persons and is 

large enough to hold 40. Thus, they said, even though it may 

have been awkward, and certainly dangerous, there was room to 

move around. 

John Yellets testified to seeing the Grievant have a headlock on Mr. Coburn and seeing Messrs. Cottingham and Mayhew pull 

Grievant off Mr. Coburn. Then, he reported, the Grievant broke 

away from the two holding him and surged after Mr. Coburn 

This time, a Mr. Nunez, along with Mr. Cottingham pulled Grievant 

off. Then, Grievant broke away again and went after Mr. Coburn; 

and this time, Messrs. Mayhew and Cottingham pulled him off. In 

the course of all this, Mr. Yellets reported, the two took a full 

revolution or two around the cage with others getting out of the 

way as best they could. Mr. Yellets also reported seeing a hard 

1987 
hat fly by him, which he assumed was thrown by the Grievant because 

only the Grievant was without a hat at the time, 

Anthony Nunez reported that while Mr. Cottingham was holdin~ 

the Grievant, he, Nunez, the Grievant's arm and told the 

Grievant to wait until got to the outside. Mr. was 

thrown off and got shoved against the door, reinjuring his back 

(he'd had a prior in to his back) to the point where he filed 

an accident report on the incident. Mr. Nunez objected to the writing in the report charac the incident in which he got his 

back hurt as a "fight", saying that was not the language he used, 

but what the safety men for the Company had written. However, in 

his testimony in the hearng, while not characteri the action 

of the parties involved, he did report as stated here in that 

testimony. Further in the course of his test , Mr. Nunez 

reported that the Grievant "s at" Mr. Coburn three times. 

And, in addition, he saw the Grievant throw his hard hat at 

Mr. Coburn. 

Ra Hicks had made a written statement in the course of 

the Employer 1 s investigation. However, he stated, at the time 

of the hearing, that some of the statements in the writing were 

inaccurate and not what he had wanted to say. He explained his 

signing the statement by saying that he had not read the statement because he did not have his glasses with him at the time. 

This testimony was contrGverted by Employer witnesses who reported that the statement had been read back to him, before he 

signed it, and that several had been made, at his request, even to the extent of adding a further paragraph which 

was signed separately in addition to the main body of the statement. 

However that may be, in the hearing, Mr. Hicks testified 

that he had seen the Grievant "have Mr. Coburn by the face" and 

that Mr. Coburn had his hands up. He also reported that Messrs. 

Cottingham and Mayhew "restrained" the Grievant, while others 

"got in front of" Mr. Coburn. Mr. Hicks also reported seeing 

the Grievant pick up a bell wrench which was taken away from him, 

although the witness said he did not see the Grievant attempt to 

use or swing the wrench (Operator's Exhibit No. 15, pp. 20-27). 

Arbitrator Selby also thoroughly analyzed the claim that other miners had 

previously engaged in fighting but were not discharged. 

Turning now to the matters involving the contention of 

the Union that the discharge of the Grievant in this case was 

discriminatory, the factual thrust of the claim and the testimony elicited to support it was that the Employer has not, prior 

to this incident, asserted discipline to enforce its Rules, and 

that this is the first time anyone can recall that any employee 

has been disciplined for a breach of the Rules. 

1988 
On cross-examination of virtually every witness testifying 

in the Employer's case, the Union elicited, or sought to elicit, 

recollections of incidents of breaches of the layer's Rules 

by both classified and supervisory employees. Upon such recollections, further questions were asked for the details of time, 

place, and whether any discipline was assessed. The recollections were of incidents of breaches of the rules against drinking, gambling, ho , and a few fights. All the witnesses 

stated that they could not recall any employee, classified or 

supervisory, who had been disciplined for the breaches. 

Of the eleven witnesses called in the Union's case, four 

were called, including the Grievant, to testi to the events 

on the cage, September 26. Mr. Hicks was also called as a >vi tness in the Union case, but his testimony at this point was 

directed to facts involving the enforcement of the Rules rather 

than the facts of the incident in question. The , however, 

is that with all of its witnesses, the Union also sought to elicit testimony cone the laxity of enforcement of the Rules 

prior to this case. And, again, the thrust was directed at reported incidents of breaches of the Rules d , gamb1 ing, horseplay and fighting. Another aspect of the point is 

that, as is the case in any situation where the object is to 

establish a course of conduct, it was relevant to that matter 

to present a substantial number of incidents along with a substantial number of detail$. In this case, the testimony pro~ 

duced a larger number of such incidents, and a recital of them 

in any summary would produce an extremely long piece of writing 

- even longer than is already imposed here. 

The incidents related included a great number of incidents 

of horseplay in which both classified and supervisory employees 

indulged. They also included incidents of dr and gambling, 

some notable ones involving Christmas parties at the mine which 

seems to have been a tradition at this mine. There were also 

incidents of fights. All of the incidents were claimed to have 

gone without disc being imposed upon the par s. For 

purposes of relevance and materiality, however, it has to be noted 

that the great majority of incidents reported were stated in generalities in terms of: " deal of horseplay goes on all the 

time"; "a great deal of ing and drinking goes on all the time 

at the mine"; and "there have been a number of fights which management did nothing about1'. In a great number of those instances 

where time and details were provided, relevance and materiality 

to the issues in this case were attenuated by reason of time and 

nature of the claimed offenses. 

That is, many of those incidents on which detail of time and 

happening was given were reports of breaches of rules against 

drinking, gambling and horseplay. The record shows that, although prohibiting such activities and making breaches thereof 

198B 
causes for discipline, the Employer's Rules state that such 

breaches "may" be cause for disciplinary action, but do not make 

the breaches specifically dischargeable offenses unless they are 

liable to, or do cause personal injury. Only fighting is made 

specifically a dischargeable offense by the Rules, and it is the 

assertion of discharge discipline for fighting which is the subject of this case. Thus, while the various illustrations may 

tend to show a laxity in enforcment of other rules, unless 

they are related to the more serious offense of ing, or a 

showing of personal injury caused by the other offenses, such 

illustrations do not demonstrate laxity in enforcement of the 

Rule t fighting and the failure to discharge for breach 

of that Ru 1 e. 

Further on the matter of relevance and materaliality of the 

various illustrations, the timing of the incidents contributes to 

such judgments. The record shows that since Joe Pride has become 

Superintendent at this mine, there has been an attempt to 11 tighten 

up" enforcement of the Rules. That is, after complaint made by 

the Mine Committee, the new summary was posted and even Union 

witnesses concede that after the post !!things were better" 

even while insisting that "it still goes on". The record also 

shows that, effective April 1, 1980, the Safety rules, reiterating that fighting is a dischargeable offense, were promulgated 

and the Grievant was given a copy of the same. Whatever may 

have been the "policy and practice" prior to about the first of 

the year 1980, the record shows that the Employer has attempted 

to reverse any apparent laxity, and the material question on 

fighting, especially, is the course of enforcement of the Rules 

with respect thereat since that time. 

Another problem to be dealt with with respect to the use of 

examples of lack of enforcement is the question whether management 

knew of the incidents and did nothing about them. As this case 

demonstrates, it is one thing to complain that management does 

not enforce Rules, but it is material to any determination of 

discriminatory enforcement to have evidence that management knew 

of the incidents and took no steps for assessment of discipline. 

Accordingly, it is tant to note here that of the many 

incidents reported in the testimony, I have summarized those 

which, under the foregoing princi of relevance and materiality, I judge to be probative on the question of discriminatory 

enforcement of the Rules here asserted. On that point, then, 

even of those incidents reporting fights in the past, I do not 

summarize the evidence thereon which does not show that management knew of the incidents, either because they were not reported 

or because it was shown that any such knowledge could have come 

only by hearsay without anyone being willing to present factual 

testimony on which the Employer could assay to "establish just 

1900 
cause for or discharge" as has been required by the 

National specifically since 1971 or by virtue of burdens of proof imposed by the arbitrators prior to the introcuction of those provisions into the And, I do not 

summarize those incidents in which there was an angry exchange 

of words and threatening gestures, but no physical contact, on 

the ground that such instances do represent threats to , 

to be sure, but could well be judged at the time, not to have 

developed into a fight, and thus, subject to different treatment 

than discharge discipline for 

Cindy Loughry Hammond, testif in the Union case, 

related an incident in September, 1979, during the term of Joe 

Pride as Superintendent, about an altercation she had with Keith 

Fox, a section foreman, over an unsatisfactory work slip. In 

the course of an angry argument in the parking lot dur which 

Mr. Fox cussed her and called her names, he punched her in the 

chest with his finger, threw her into a car and slapped her. She 

reported the incident to management. A meeting was held to investigate the matter at which Steve Webber and Dave Gearde of the 

Mine Committee were present along with her. Present for manaagement were Joe Pride, Superintendent and "Pete" Simpson, Assistant 

Superintendent. Mrs. Hammond contended in her testimony that she 

and Keith Fox made their statements before the supervisory employees and that Keith Fox called her a liar in most profane and derogatory terms. Since Dave ·Fox, a classified employee had been present, 

he was called into the meeting to state what he saw. Mrs. Hammond 

stated that Dave Fox corroborated her Her testimony is that 

management did nothing about the incident and that Keith Fox is 

still working as a supervisor. 

Both Steve Webber and Dave Gearde testified in the Union case 

about this matter (as well as other pertinent matters, of course). 

In the course of outlineing a list of past instances of 

in which management did nothing, Mr. Webber cited the Cindy Hammond incident, but did not add detail. Dave Gearde, on the other 

hand, also cited the Mrs. Hammond incident, saying that Dave Fox 

"admitted that Keith had punched her 11 , and otherwise corroborated 

her testimony. 

Keith Fox, however, called as a rebuttal witness for the 

Employer, denied that he had touched Mrs. Hammond. He also 

stated that Dave Fox had corroborated his version of the events 

in the course of the meeting before supervision, and had 

stated only that the two were arguing and using bad language to 

each other. His testimony in this hear was that Dave Gearde, 

in that previous meeting on the affair, had stated that he knew 

Keith Fox and didn't believe that he would have poked or punched 

Mrs. Hammond. He stated that that previous meeting had broken 

up with agreement that nothing further would be done. Joe Pride 

199.l 
and Thomas Simpson, also testified to the matter. Both reported 

that the statements in the meeting on the Cindy Hammond affair 

were that Keith had "shook his finger" at Cindy, but did not 

touch her. Both reported that Dave Fox said that Keith was 

shaking his finger at her, but did not touch her. Both reported that the broke up with an agreement that there 

had been no contact and thus nothing further was to be done. 

Both also reported that neither Mrs. Hammond nor the Mine Committee took up a grievance on the matter. 

Michael Kovach testified that during the Christmas Party, 

1979 in the "safety room", they all were si around playing cards and Some of the guys were go home. 

He was sitting in a chair next to a fellow named Keener. 

Someone hit Mr. Kovach alongside his head knocking him to 

the floor. Mr. Kovach got up and hit Mr. Keener. Mr. Keener 

told him that he didn't hit him, that it had been Bill Pride, 

Afternoon Shift Foreman, who was pointed out as at that moment 

going out the door to the room. Mr. Kovach said he then went 

home. He also said that he later asked Bill Pride if he had 

hit him to which Mr. Pride responded that of course he did 

not. Mr. Kovach made no complaint to anyone, that he 

was going to take care of it himself. No one was disciplined 

for any breach of the Rules on this occasion. 

Steve Webber related an incident which he said had been 

reported to the Mine Committee by Joe Pride. In that incident, apparently two men, one named Gene Pugh and the other 

McNair, were arguing loudly in the hallway outside the Superintendent's Office. In the course of that argument a coffee 

cup was knocked to the floor. Joe Pride called them into the 

office and discussed the matter. According to Mr. Webber, 

the findings were reported to the Committee that the two were 

arguing and McNair shook his finger in Pugh's face and Pugh 

knocked it away. Mr. Pride testified that the way it was 

determined was that McNair had a cup of coffee in his hand 

and while Pugh was talking and waving his hands around, he 

knocked the cup from Mr. McNair 1 s hand. There was no discipline assessed on this occasion. 

Mr. Webber also reported that he himself had had a 

fight with another classified employee in which they 11 had 

got into it pretty heavy". This, however, was back in 1972, 

and although he contended management knew about it, no 

ever came of it by way of discipline nor did anyone even mention it. 

Mr. Cottingham testified that in early part of 1979, 

while on the section on which Keith Fox was the foreman, Keith 

Fox didn't want Mr. Cottingham to do something he was supposed to do and Mr. Cottingham insisted upon doing it. There 

1992 
were angry words and a Bobby Carter jumped in between them. 

No blows were struck, and Mr. Cottingham reported no ill 

feelings because he shortly thereafter bid off the section. 

Reports were made to management but no discipline was taken. 

Mr. James Michaels, presently a member of the Mine Committee, testified to a fight he had in June, 1977 with an 

employee named Varner. There had been some horseplay on 

the cage in the presence of the shift foremen dur which 

a shirt had been ripped off Mr. Michaels and when he didn't 

take kindly to it and remonstrated, Mr. Varner made threats 

to others about getting Mr. Michaels. After the following 

working shift, Mr. Michaels made claim to Mr. Varner for payment for the shirt. A fight ensued in which Mr. Varner was 

injured. Mr. Varner tried to report the incident as an accident to the Assistant Shift Foreman. Mr. Michaels said the 

Assistant Shift Foreman talked Mr. Varner out of filing the 

report warning him that the consequences would likely be that 

Mr. Varner would be disciplined. No discipline was assessed. 

On cross-examination, Mr. Michaels conceded that if discipline or discharge had been assessed, and if the two involved 

had denied there had been a fight, it would have been difficult for managment to make the discipline stick. In this 

case, no boss saw the fight and no bosses were present. Mr. 

Michaels said that he understood that Mr. Weimer, the Company 

Safety Man did try to look into it without much success. 

(Operator 1 s Exhibit Numb~r 15 p. 27-32) 

* * * 

The Union contends the Employer has not enforced its Rules 

against fighting by disciplining offenders at any time prior to 

the occasion even though there have been numerous incidents of 

violations of the Rules by fighting in the past. The record does 

show that there may have been laxity in the enforcement of the 

Rules of Conduct in the past. However, as commented upon in the 

summary of the evidence, in my opinion, that laxity was neither 

as broad as the union argues, nor was any laxity with respect 

to enforcement of rules against drinking, gambling or horseplay 

necessarily carried over to the far more serious offense of 

fighting. The fact shown in this record is that fighting was 

and is treated separately and more seriously than the other 

offenses by the Rules. Moreover, much of the evidence of past 

fights-gone-undisciplined was afflicted with lack of specificity 

as to time and detail, and more important , with lack of any 

indication that the Employer knew or had reason to know the 

incidents so as to be able to do anything about them. Even 

some of those where knowlege was alleged, the evidence was 

in the form that "management knew of i t 11 , but 11 no reports were 

made to to management." Thus, most of the incidents related, 

1993 
even though related in this case by first person protaginists, 

were just unprovable hearsay and rwnor so far as the Employer 

could do anything about it at the time the incidents occurred. 

In addition, the incidents of fighting shown in the evidence to have occurred before Joe Pride bcame Superintendent 

have been discounted. The reason is that even though an Employer may have been lax in enforcement of its rules over a 

period of time, that laxity cannot result in a "past practice" binding upon a employer to the point where that employer 

is bound to forever ignore fighting or other activity which 

may or does cause injury. Thus, an Employer may, on proper 

notice, call a halt to any such laxity, especially with regard 

to safety rules, and to renew enforcement. That renewed 

enforcement, of course, is bound by the limitations and protections that notice must be given, the renewed enforcement must be evenhanded and consistent, and must be pursued 

with a proper "business purpose" as opposed to some discriminatory or arbitrary purpose. 

The record here shows that this Employer did, around the 

first of the year 1980, take steps to tighten up enforcement 

of its rules. Moreover, the Mine Committee assumes substantial responsibility for urging such renewed enforcement, even 

asserting that if the Employer didn't do something to stop 

some of the things going. on, it would take steps to stop them. 

Pursuant to that resolve, the Rules summary was posted 

as a reminder that the Rules remained in effect and that the 

Employer would take steps to enforce them. It is to be acknowledged that many of the Mine Worker witnesses denied .having 

seen the Rules posted, but the record clearly shows that th0y 

were posted. Then, the new Safety Rules, specifically statin6 

that fighting is a dischargeable offense were promulgated. 

These were given to the Grievant as chairman of the Safety 

Committee for the purposes of Article III, section (g) requiring that notice be given before proposed new rules are scheduled to become effective. No protest of this part of the 

rules of the Committee, or of any part of the rules is shown 

in this record. Grievant had specific notice that the rules 

would Qe enforced as written with respect to fighting. 

During the term of Joe Pride as Superintendent, the 

record discloses one other incident of fighting for sure, 

and possibly two others occurred. Except for the Cindy 

Hammond incident, the evidence clearly shows that all such 

incidents either were not fights of the kind involved here, 

or management was not notified of them so that it could 

take any action. One such incident, the Pugh-McNair incident, 

illustrates that the Employer did investigate those instances 

1994 
which came to its attention and did make determinations concerning whether a fight did in fact occur. That Pugh-McNair 

incident cannot, in my opinion, be called a fight anywhere 

near like was involved in this case. 

The Cindy Hammond-Keith Fox incident was of a more serious nature. However, that case was not presented to me for 

determination on all its facts and evidence. What was presented was sharply conflicting testimony about who said what 

and what agreements were made concerning the incident and 

whether it should be pursued. In light of the fact that no 

grievance was filed and taken up, and in light of the necessities of proof if disciplinary action is taken, I find that 

this incident was not one in which the Employer ignored evidence. and facts on which to take disciplinary action for 

fighting in breach of the Rules. 

The point is that I find from this record that the 

Employer, during the term of Joe Pride's Superintendency, 

has not failed to pursue discipline for fighting in violation of its renewed rules in cases where there has been 

evidence available on which it could reasonably be expected 

to establish that a fight occurred and that the particular 

employees were accountable for the fight. In this case, 

the Employer took disciplinary action against both employees involved, and on tha~. basis, in this first such case, 

there was no disparity of treatment between the Grievant 

and Mr. Coburn, so far as the Employer's actions are conc&n~. 

Now, I have found that the Grievant did engage in 

the fight with Mr. Coburn and that such fight was in violation of the Rules and was a dischargeable offense. I 

do not find from the evidence in the record that the Employer took disciplinary action against the Grievant 

because of any built-up, accumulated animus against the 

Grievant because of his activities on behalf of the Union 

and because of his activities in making claims and charges 

with regulatory agencies. Instead, it cannot be avoided 

that the Grievant did engage in fighting. It cannot be 

avoided that the response of the Employer was in reaction 

to the fight and was assessed against both the Grievant 

and Mr. Coburn, the employees involved. (Operator's Exhibit No. 15 PP• 39-41). 

While the evidence developed at the hearing before me provided some 

greater detai]_ than was available to the Arbitrator, there is nothing in that 

additional evidence that would warrant any change in the analysis and conclusions of these incidents made by the Arbitrator. Within this framework of 

evidence, I have no difficulty concluding that the Complainant was engaged 

1995 
in fighting with co-worker Coburn on September 26, 1980, that physical injuries were sustained by Coburn, that the matter was a serious breach of the 

known rules of conduct of a severity far b that of any other incident 

cited, and that f was and is a well-recognized dischargeable offense. 

In addition, I have no difficulty conclud that Hollis's di was 

not discriminatorily disproportionate. 

Under all the circumstances, I do not find sufficient evidence to conclude 

that, in discharging Hollis, the operator was motivated in any part by his protected activities. Moreover, because of the seriousness of his infraction, 

it is clear that the operator would have in any event, been tified in discharging Hollis and indeed would have done so based on his unprotected activities (fighting) alone. Fasula, supra. 

For these additional reasons, the 

and this case is Dismissed. 

t 

~~,. Ji I 

caky t ·.. ck 

Assis~!nt Chief 

I 

Distribution: By certified m~il. 

Denied 

trative Law Judge 

J. Montgomery Brown, Esq., Counsel 

P.O. Box 269, Fairmont, WV 26554 

Hollis, 15 Deveny Build 

Jerry Palmer, Esq., Consolidation Coal Compa1y, Consol Plaza, Pitt , PA 

15241 

199f) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE. SUITE 400 

DENVER. COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY 

HEALTH ADMINISTRATION (MSHA) on 

of OMAR J. PERSINGER, 

) 

AND ) 

behalf) 

) 

) 

Complainant, ) 

v. 

ASH GROVE CEMENT COMPANY, 

) 

) 

) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~ 

DECISION 

Appearances: 

Robert S. Bass, Esq. 

Office of the Solicitor 

United States Department of Labor 

911 Walnut Street, Room 2106 

Kansas City, Missouri 64106 

For the Complainant 

Mr. John H. Ross, III 

Vice President and Secretary 

and 

Mr. Harry N. Ahl, Superintendent 

Ash Grove Cement Company 

1000 Tenmain Center 

Kansas City, Missouri 64105 

For the Respondent 

Before: Judge Virgil E. Vail 

l 5 NO\J \982. 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

DOCKET NO. CENT 80-202-DM 

MD 79-85 

MINE: Louisville Plant Quarry 

and Mill 

STATEMENT OF THE CASE 

The Secretary, on behalf of Omar J. Persinger (hereinafter 

"Persinger"), filed a complaint against respondent Ash Grove Cement Company 

(hereinafter "Ash Grove"), alleging that on or about July 9, 1979 and for a 

period of time thereafter, Ash Grove discriminated against Persinger in 

violation of section lOS(c)(l) of the Federal Mine Safety and Health Act 

199? 
of 1977, 30 U.S.C. § 80l(c) et seq., (hereinafter cited as "the 

Act") • 1 / Pursuant to notice-,-a hearing on the merits was held in 

Omaha,-Nebraska following which both parties were afforded the opportunity 

to submit post hearing briefs. To the extent that the contentions of the 

parties are not incorporated in this decision, they are rejected. 

STIPULATION 

The, parties stipulated to the following: 

1. On July 9, 1979, and all times material thereafter, respondent Ash 

Grove Cement Company operated the Louisville Plant Quarry and Mill near 

Louisville, Nebraska. This is a mine as that term is de in section 3 

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

2. Respondent employed Omar J. Persinger as a loader operator and 

laborer, and as such, Mr. Persinger was a miner as that term is defined in 

section 3 (g) of the Act. Mr. Persinger was so employed as of July 9, 

1979. 

3. Ash Grove Cement Company and the mine are subject to the Federal 

Mine Safety and Health Act of 1977. 

4. This proceeding is authorized by section 105(c)(2) and 113 of the 

Act. The Federal Mine Safety and Health Review Connnission and this 

Administrative Law Judge has jurisdiction in this case. 

5. Respondent Ash grove had a total of 55 assessed violations for the 

years 1979 and 1980. 

1/ Section 105(c)(l) reads in pertinent parts as follows: 

No person shall discharge or in any other manner discriminate against 

or otherwise interfere with the exercise of the statutory rights of any 

miner ••• because such miner ••• has filed or made a complaint under or 

relating to this Act, including a complaint notifying the operator or the 

operator's agent, or the representative of the miners ••• of an alleged 

danger or safety or health violation ••• ,or because such miner •.• has 

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

this Act or has testified or is about to testify in any such proceeding, or 

because of the exercise by such miner ••• on behalf of himself or others of 

any statutory right afforded by this Act. 

1998 
6. Respondent Ash Grove had 439,033 man-hours worked in 1979 and 

225,096 man-hours worked in 1980. 

FINDINGS OF FACT 

1. The facts stated in the above stipulation are accepted and adopted 

as Finding of Fact. 

2. Persinger was employed by Ash Grove on December 29, 1956 and has 

continued this employment through the date of the hearing. 

3. In April 1977, Ash Grove created a new job of loader operator and 

laborer in Departments 27 and 55 to work during the third shift (4 p.m. to 

midnight), Persinger was successful in his bid for this job. The notice of 

job vacancy number 35 stated in part as follows: 

Remarks: Employee will work as loader operator and if 

time permits can be used as laborer in Dept. 27. If 

kiln goes down he will be used as laborer in either 

Dept. 27 or 55 but will continue to receive Bracket 18 

pay. '!.; 

4. Persinger 1 s duties as a loader operator primarily involved using a 

front-end loader to stockpile coal and haul it from the stockpiles to a 

hopper from which the coal was then transferred by a feeder to a crusher 

and through a vibro-conveyor to an elevator which carried the coal to 

silos. The silos hold coal for use in an Allis Chalmers kiln in the cement 

plant. Additional duties involved digging out the crusher and coal spouts 

if they became plugged. Prior to May 1979, Persinger's principal job was 

to keep the coal silos full and when that was finished he would clean up 

around the coal building using a broom and shovel. 

5. Departments 27 and 55 are designations used by respondent in its 

bookkeeping. Department 27 in the job description (Exhibit P-1) was to 

designate a vacancy in the coal handling system for the ACL kiln. 

Department 55 is the yard department description. 

6. On May 9, 1979, Persinger, as a miner's representative, accompanied two mine inspectors of the Mine Safety and Health Administration 

(MSHA) on a walkaround inspection of Ash Grove's plant. During the 

inspection, Persinger pointed out certain housekeeping problems in the coal 

silo area where he worked including some grates which were "curled" and had 

holes in them through which a miner's leg could drop. He also pointed out 

2/ Exhibit P-1. 

1999 
an area under a conveyor belt where n fire had occurred and was allowed to 

burn itself out. As a result of this inspection, several citations were 

issued to Ash Grove for violations of the Act, some of which pertained to 

violations involving conditions in the area where Persinger worked. 

7. Following the MSHA inspection which took place between July 9 and 

12, 1979, a plant labor gang was utilized to clean-up the areas cited 

including the coal area. On July 19, 1979 after the general cleanup, Henry 

Mueller, ACL kiln foreman, told Persinger that he would have to clean the 

areas around the coal silos every day. 

8. On a date not certain, but following the inspection end July 

12, 1979 and prior to July 20, 1979, Melvin Gerdes, a foreman in Ash 

Grove's quarry, told Persinger that he was to clean the air cleaners every 

night on the Hough 400 loader he operated on his shift. 

9. On July 20, 1979, Persinger wrote a letter addressed to the MSHA 

inspectors stating that he considered the requirement to clean the air 

cleaners on his loader by himself, constituted an unsafe pract 3/ 

The safety complaint was delivered by Persinger to Kenneth Sjogren,-union 

president, who in turn delivered it to Ed Lilly, an MSHA inspector. 

10. On July 24, 1979, Gar Summy, Ash Grovevs supervisor of production 

and quality controls, inspected the ACL coal silo area and found the 

housekeeping conditions unacceptable. 

11. On July 25, 1979, Summy wrote a letter to Persinger outlining 

that he had been verbally warned on two occasions about his responsibility 

to clean the coal silo area and that an inspection on July 24, 1979, by 

Summy, revealed that Persinger was not complying. The letter stated that 

continued neglect of

4

duties will result in further action up to and 

including dismissal._/ 

12. On the same day, July 25, 1979; Lilly investigated Persinger's 

safety complaint regarding the air cleaners at Ash Grove's plant. After a 

discussion of the problem, with management, it was agreed that Persiuger 

would not clean the air cleaners on the loader unless another miner was 

present to help him. No citation was issued to Ash Grove as a result of 

this complaint. 

13. On August 7, 1979, Persinger filed a complaint of discrimination 

against Ash Grove with MSHA alleging that since the inspection of July 9, 

1979, he had been harassed by supervi~ors, assigned additional work, and 

sent a letter threatening dismissal. _/ 

3/ Exhibit P-3. 

4/ Exhibit P-4. 

5/ Exhibit R-5. 

2000 
14. On August 23, 1979, PersingP-r filed a grievance through the union 

with Ash Grove alleging that the extra duties invo~ved in cleaning the coal 

silos and the loader changed his job description. I A denial of this 

grievance was not appealed by the union. -

15. Since the filing of the complaint of discrimination, Persinger 

has continued to work for Ash Grove in the same job and pay bracket and has 

been considered by his supervisors as doing a satisfactory job of housekeeping in his work area. 

16. Persinger is the only miner employed by Ash Grove in the job 

position of loader operator and laborer in the coal silo area. 

ISSUE 

Did Ash Grove discriminate against Persinger in violation of section 

105(c)(l) of the Act, while Persinger was engaged in a protected activity? 

DISCUSSION 

In its decision of Secretary of Labor on behalf of David Pasula Vo 

Consolidated Coal Company, 2 FMSHRC 2786, (October 14~ 1980), Rev'd on 

other grounds, No. 80-2600 (3d Cir. October 30, 1981), the Federal Mine 

Safety and Health Review Commission set forth tests for determining whether 

or not a miner had been discriminated against. The Commission ruled that 

to establish a prima facie case for a violation of section 105(c)(l) of the 

Act, a complainant must show by a preponderance of the evidence that (1) he 

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

against him was motivated in any part by the protected activity. The 

employer may affirmatively defend, however, by proving by a preponderance 

of all the evidence that, although part of his motive was unlawful, (1) he 

was also motivated by the miner's unprotected activities, and (2) that he 

would have taken adverse action against the miner in any event for the 

unprotected activities alone. 

The first element of a prima facie case is a showing that protected 

activity occurred. The evidence in this case shows that Persinger, as a 

miner's representative, during a walkaround inspection on July 9, 1979, 

pointed out to MSHA inspectors various conditions which were health and 

safety violations and resulted in citations being issued to Ash Grove. 

Further, Persinger on July 20, 1979, filed a safety complaint with MSHA 

6/ Exhibit R-7. 

2000A 
regarding a requirement by Ash Grove, that he clean air cleaners on his 

loader every night he used the machine. There is no question that these 

activities and complaints regarding health and safety amount to protected 

activity. Section 105(c)(l) in its relevant parts protects the miner or 

miner's representative who has "filed or made a complaint under or relating 

to this Act ••• of an alleged danger or safety or health viol at ion •. , " 

It is concluded that the first element of the requirement to establish 

discrimination is established, 

The second element of a prima facie case is a showing that adverse 

action was motivated in any part by protected activity. Persinger, in s 

complaint of discrimination, alleged that as a result of his protected 

activity, he was harrassed by his supervisor, assigned additional work 

which he was accused of not completing, and subsequently received a letter 

from a supervisor threatening possible dismissal. 

A review of the evidence of record shows a lack of direct evidence to 

show that the actions on the part of Ash Grove were motivated by the 

complaints of Persinger about health and safety violations. The Commission 

in its decision in Secretary of Labor on behalf of Johnny N. Chacon v. 

Phelps Dodge Corporation, 3 FMSHRC 2508, (November 13, 1981), stated as 

follows: 

Direct evidence of motivation is rarely encountered; more 

typically, the only available evidence is indirect. As 

the Eighth Circuit, for example, has analogously stated with 

regard to discrimination cases arising under the National 

Labor Relations Act: 

It would indeed be the unusual case in which the link 

between the discharge and (protected) activity could be 

supplied exclusively by direct evidence. Intent is 

subjective and in many cases the discrimination can 

be proven only by the use of circumstantial evidence. 

Furthermore, in analyzing the evidence, circumstantial 

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

inferences. NLRB v. Melrose Processing Co, 351 F. 2d 

693, 698 (8th Cir. 1965). 

The Commission in Phelps Dodge, 

evidence suggested four criteria to 

motivation with regard to an adverse 

in dealing with indirect 

ized in analyzing the operator's 

personnel action: 

1. Knowledge of the protected activity; 

2. Hostility toward protected activity; 

3. Coincidence in time between the protected activity and the 

adverse action; and 

4. Disparate treatment of (the complainant). 

2001 
Persinger in his complaint of discrimination dated August 7, 1979 

alleged that he had worked for Ash Grove since 1956 and had always received 

compliments on his work and never had an adverse comment placed in his 

employment file until July 1979. However, since the inspection conducted 

at the plant on July 9, 1979, in which he participated, he had been 

harassed by his supervisors and sent a letter threatening dismissal. He 

stated that he believed this harassment was a result of his pointing out 

safety violations to the inspectors. 7J A reasonable inference can be 

drawn from the evidence in this case that Ash Grove's management were aware 

of Persinger's activities as a miner's representative during the walkaround inspection which took place on July 9, 1979. Several of the 

citations that were issued involved safety violations in the coal silo area 

where Persinger was the only employee such as those involving the steel 

grates, the fire that was allowed to burn itself out, and the accumulations 

of coal and dust in the area. Further, it is apparent that a reasonable 

inference could be drawn that there was a coincidence in time between the 

date of the inspection and the assignment of additional duties to Persinger 

for clean-up in his area. These activit s complained of all occurred 

within a three week period of time following the inspection. 

However, the primary issue here is whether or not the activities complained of by Persinger amounted to adverse action motivated in any part by 

the protected activity. The evidence supports Ash Grove's contention that 

actions taken by them in ordering additional clean-up duties on the part of 

Persinger was motivated by the requirements of the citations issued by MSHA 

during the inspection conducted from July 9 through 12, 1979 and not as a 

result of Persinger's involvement therein as a miner's representative. 

Henry Mueller, AGL kiln foreman and Persinger's direct supervisor 

since 1977, testified that prior to July 1979, he had discussed with 

Persinger that he needed to put more effort into clean-up in the coal silo 

area. Mueller stated that after the inspection, he had assigned miners 

from the day crew to do the initial heavy cleaning in the coal silo area 

required by the citations. On July 19, 1979, Mueller told Persinger that 

the area had received a good clean-up and was in "pretty good shape and 

that we would like to keep it that way." 

On the next day, July 20, 1979, Persinger talked to Mueller and stated 

he was having trouble doing his regular work and the clean-up too. Mueller 

testified that he suggested to Persinger that he quit dumping coal earlier 

so he could do the clean-up that was required. On July 24, 1979, Persinger 

went to Mueller's office and stated that he was unhappy about the 

additional clean-up duties assigned to him and maintained that he was a 

7/ Exhibit P-5. 

2002 
loader operator and should not be responsible for the clean-up in the coal 

silo area. Mueller testified that he told Persinger that clean-up was part 

of his job classification as it was with all jobs at Ash Grove. 

Summy testified that he was a party to the conversation with Persinger 

and Mueller on July 24, 1979 and told Persinger that he was expected to do 

more clean-up in his area. Summy also testified that on the next day, July 

25, 1979, he inspected the coal silo area after Persinger completed his 

shift and did not feel Persinger had spent any time on his clean-up. 

As a resu,lt of this observation, Summy sent Persinger the letter dated July 

25, 1979 indicating Persinger had previously been warned about the lack of 

clean-up on two previous occasions and specifying items that needed immediate attention. Sunnny also stated in the letter that "continued neglect 

would result in further disciplinary action up to and including dismissal. 11 

Mueller testified that after July 25, 1979, Persinger has done the clean-up 

and has also kept the silos full. 

I find that the most credible evidence supports Ash Grove's contention that Persinger was not discriminated against. There is no evidence 

of disparate treatment of Persinger as the testimony of record indicated 

that housekeeping and clean-up was the responsibility of all employees at 

Ash Grove. Persinger was not discharged from his job, transferred, nor did 

he suffer a reduction in pay, The evidence shows that prior to the 

inspection on July 9, 1979, Pers r was required to do some clean-up. 

The fact that the duties were expanded considerably can logically be 

attributed to the increased housekeeping requirements placed on Ash Grove 

by the MSHA inspectors rather than any adverse treatment by Ash Grove's 

management of Persinger. The evidence does not show that Ash Grove ever 

complained that Persinger did not keep the silos full of coal or do his 

other assigned tasks. 

Persinger has also alleged that the safety complaint filed on July 20, 

1979 with MSHA over cleaning the air gleaners on the loader was an 

additional aggravation to Ash Grove. I This may be true, however, Ash 

Grove was not aware of the complaint 'U'ntil it was brought to their 

attention by inspector Lilly on July 25, 1979 which is after the alleged 

harassment over the clean-up duties described above. There is no evidence 

of record that Summy knew of this complaint prior to his writing the letter 

dated July 25, 1979. There does not appear to be a nexus between this 

complaint and the alleged harassment over the clean-up duties. 

Persinger did testify that since the events described above, other 

employees use his loader to move clinkers and leave it dirty so that he has 

to clean the machine before and after he uses it. Also, he has on several 

occasions had to go to the office to straighten out his pay checks and has 

difficulty in getting drinking water on his job site. These complaints 

fall short of establishing a complaint of discrimination for there is no 

showing of a disparate treatment on his part from that of other employees 

at the plant. 

8/ Secretary's Brief p. 2. 

2003 
The "ultimate burden of persuasion" on the question of discrimination 

rests with the complainant and never "shifts." As indicated in Pasula, 

supra, there are intermediate burdens which do shift. The complainant 

bears the burden of producing evidence and the burden of persuasion in 

establishing a prima fac case. In this case, Persinger has established 

that his activities involving the inspection and the safety complaints were 

protected activity. However, he fails in proving that he was discriminated 

against as a result of this protected activity. 

On August 23, 1979, Persinger filed a grievance through the union 

against Ash Grove alleging that the additional clean-up duties changed his 

job description. Although the facts surrounding the grievance itself is 

basically similar to the complaint of discrimination, it is not to be 

confused with the requirements of section lOS(c)(l). A change of duties 

may effect the employees rights under the bargaining contract with the 

union and not be based upon a violation of employees protected activity. 

At times, the thrust of the evidence in this case more pertinent to the 

grievance than to the discrimination complaint herein. 

Ash Grove in its answer to the complaint and its post hearing brief 

fiave requested it be awarded costs and attorney fees if successful herein. 

Under 28 U.S.C. § 2412, the government exempt from liability for costs 

and attorney fees except as specifically and unequivocally authorized by 

Congress. Van Hoomisson v. Xerox 503 F.2d 1131. Ash Grove must 

look to 5 U.S.C. § 504 for any re might seek herein, but its request 

is premature at this time. c:_; 

CONCLUSION 

In conclusion, I find that Persinger has failed to prove by a 

preponderance of the evidence that he was discriminated against. 

The complaint is dismissed. 

Distribution: 

ORDER 

Virgil(jl.Vail 

Administrative LRw Judge 

Robert S. Bass, Esq., Office of the Solicitor 

United States Department of Labor, 911 Walnut Street 

911 Walnut Street, Room 2106, Kansas City, Missouri 64106 

Mr. John H. Ross III, Vice President and Secretary 

Mr. Harry N. Ahl, Superintendent, Ash Grove Cement Company 

1000 Tenmain Center, Kansas City, Missouri 64105 

9 Title II - Equal Access to Justice Act. 

20011 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

JOHN CULLEN, d/b/a/ 

JOHN CULLEN ROCK CRUSHING, 

Respondent. 

) 

) 

) CIVIL PENALTY PROCEEDING 

) 

) DOCKET NO. WEST 82-33-M 

) 

) MSHA CASE NO. 05-03488-05002 

) 

) MINE: Marrow Pit 

) 

) 

) 

) ~~~~~~~~~~~~~~~~~~~~ 

Appearances: 

Mr. John Cullen, John Cullen Rock Crushing 

4356 Blueflax Drive 

Pueblo, Colorado 81001 

Pro Se 

Katherine Vigil, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

For the Petitioner 

Before: John A. Carlson, Judge 

DECISION 

This is a civil penalty proceeding arising out. of respondent's alleged 

refusal to allow one of petitioner's mine inspectors to inspect 

respondent's rock quarrying and crushing operation near Pueblo, Colorado. 

The matter is before me under the provisions of the Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 ;;.!_seq., (the "Act"). 

A hearing on the merits was held on September 23, 1982. The parties 

declined to submit briefs or proposed findings of fact and conclusions of 

law. The Secretary charges respondent with violation of section 103(a) of 

the Act which provides: 

"Sec. 103. (a) Authorized representatives of the Secretary 

or the Secretary of Health, Education, and Welfare shall 

make frequent inspections and investigations in coal or 

other mines each year for the purpose of (1) obtaining, 

utilizing, and disseminating information relating to health 

and safety conditions, the causes of accidents, and the 

causes of diseases and physical impairments origi~ating in 

such mines, (2) gathering information with respect to 

2005 
mandatory health or safety standards, (3) determining 

whether an innninent danger exists, and (4) determining 

whether there is compliance with the mandatory health 

or safety standards or with any citation, order, or 

decision issued under this title or other requirements 

of this Act. In carrying out the requirements of this 

subsection, no advance notice of an inspection shall be 

provided to any person, except that in carrying out the 

requirements of clauses (1) and (2) of this subsection, 

the Secretary of Health, Education, and Welfare may give 

advance notice of inspections. In carrying out the requirements of clauses (3) and (4) of this subsection, the 

Secretary shall make inspections of each underground coal 

or other mine in its entirety at least four times a year, 

and of each surface coal or other mine in its entirety at 

least two times a year. The Secretary shall develop guidelines for additional inspections of mines based on criteria 

including, but not limited to, the hazards found in mines 

subject to this Act, and his experience under this Act and 

other health and safety laws. For the purpose of making any 

inspection or investigation under this Act, the Secretary, 

or the Secretary of Health, Education, and Welfare, with 

respect to fulfilling his responsibilities under this Act, 

or any authorized representative of the Secretary of the 

Secretary of Health, Education, and Welfare, shall have a 

right of entry to, upon, or through any coal or other mine. 

The undisputed evidence shows that James P. Ploughman is an authorized 

representative of the Secretary of Labor. Ploughman's duties under the Act 

included the inspection of mines. He attempted to conduct an inspection of 

respondent's operation on April 15, 1981 but was turned away by Mr. Cullen 

who insisted inspectors had no right to come upon the property without a 

search warrant. 

The evidence also shows that respondent sells the rock extracted and 

crushed in his operation to various construction companies, and that in 

in conducting his business he uses equipment manufactured outside of 

Colorado. He employed three workers at the time of inspection. 

Mr. Cullen's defense, as articulated at the hearing, appeared to be 

based upon a belief that the inspection provisions of the Act purport to 

allow warrantless inspections of business properites in violation of the 

Fourth Amendment's bar against unreasonable searches and seizures. He also 

questioned whether his operation is subject to the Act, suggesting in his 

testimony that he had heard that the Act was to be amended to exclude 

coverage of rock crushing operations. Beyond this, he maintained that at 

the time of the questioned inspection he was attempting to contest five 

2006 
earlier citations upon essentially the same grounds. 1/ These earlier 

citations arose from a single inspection. He believed that a further 

inspection was unfair until these earlier charges were heard and decided, 

Finally, he suggested that he was being harassed, and that the inspection 

provisions of the Act are "communistic." 

I first observe that there is no legitimate issue of coverage under 

the Act, The Act extends to sand and gravel pits and to rock quarries 

under the broad definition of a mine in Section 3(h). 2/ Attempts to 

amend the Act to exclude these activities have been made, but no such 

change has been enacted. For a time, certain temporary appropriations 

measures forbade the Mine Safety and Health Administration to expend funds 

for enforcement of the Act against sand, gravel or quarry operators~ but no 

such provisions were in effect at the time of the inspection or hearing in 

this case. Moreover, whether an appropriations measure not the affecting 

substance of the Act is enforceable before this Commission (which has no 

express authority to adjudicate disputes arising under appropriation acts) 

is highly questionable. Finally, the evidence shows that the Cullen 

operation "affects commerce" as that term is used in the Act. This is so 

irrespective of whether respondent sells his product intrastate or interstate. 1./ 

Respondent's constitutional objection to the inspection also lacks 

merit. The "warrantless inspection" issue has been settled by the United 

States Supreme Court in Donovan v. Dewey, U.S. , 101 S. Ct. 2534 

(1981). There the Court held that the nonconsensual, warrantless 

inspections authorized under the Act do not offend the Fourth Amendment 

guarantees against unreasonable searches and seizures. 

Since the uncontroverted evidence shows that Mr. Cullen turned away 

the inspector because he lacked a search warrant, a violation of section 

103(a) of the Act occurred. 

1/ The existence of these earlier citations was stipulated. Respondent 

asserted that he wanted a hearing on their validity, but that his letters 

had apparently been lost by MSHA, and that he was still trying to ascertain 

why he had not been granted a hearing. Counsel for petitioner knew nothing 

of the fate of the citations except that they were issued, and that civil 

penalties were now somewhere in the collection process. 

J:./ Waukesha Lime and Stone Company, Inc., 3 FMSHRC 1703, n. 3 (1981). 

3/ Wickard v. Filburn, 317 U.S. 111 (1942). 

2007 
Nor is it a defense that respondent believed it somehow improper for 

the inspector to visit the mine while previous citations were pending. 

Neither the Act, nor any holding of the courts, nor any holding of this 

Commission supports such a notion. !!._/ The Act requires that surface 

operations be inspected at least twice a year, but imposes no limits on the 

frequency of inspections. 

We now turn to the matter of appropriate penalty. Waukesha Lime, 

cited previously, stands for the proposition that a refusal of inspection 

justifies imposition of a civil penalty under the Act. In the present case 

the Secretary proposes a penalty of $200. For the reasons which follow, I 

conclude that $200 is excessive. 

Section llO(i) of the Act sets forth the criteria a judge must weigh 

in assessing a reasonable penalty. These are the degree of the operator's 

negligence, the size of his mine, his good faith in abating the violation, 

the gravity of the violation, and whether exaction of a particular penalty 

will affect the operator's ability to continue in business. Here the 

respondent's refusal of entrance to the inspector was more than negligent, 

it was deliberate. This factor weighs against respondent. Neither does he 

deserve extensive credit for good faith. He did ultimately abate by 

allowing an inspection, but the inspection at issue here was not his first. 

During the initial inspection respondent was apprised of the existence of 

the Act, From that time he was under a duty to make reasonable inquiry as 

to his obligations under the statutes. Nevertheless, one can have some 

sympathy for this pro se respondent whose financial means are limited and 

for whom federal safety regulation is a fairly new experience, I give 

credence to his testimony that he was confused by a second inspection while 

he was attempting to obtain review on the earlier inspection, which he 

believed to have been unlawful. The uncertainty surrounding his apparent 

attempts to contest the results of the earlier inspection tends to blunt 

the effect of that inspection as an unfavorable "prior history." 

Since 

and health 

applied. 

the site. 

this case does not involve a violation of a substantive safety 

standard, the customary measurements of gravity cannot be 

There is no evidence of what hazards, if any, actually existed at 

The size of respondent's crushing operation is quite small. While the 

evidence did not establish that imposition of the proposed penalty of $200 

would affect his ability to remain in business, it did show that in the 

year preceding the year of inspection he suffered a loss of approximately 

$30,000 and in 1981 he only broke even. These facts weigh in his favor. 

On balance, I conclude that a civil penalty of $75 is appropriate. 

4/ This case presents no proper issue as to whether or not the inspection 

attempt was made in bad faith -- that is, for reasons other than those 

authorized by the Act. Respondent's allegation of "harassment" was based 

upon the mere fact of inspection. It was supported by no specific evidence 

from which a wrongful purpose or active misconduct may be inferred. 

2008 
CONCLUSIONS OF LAW 

Upon the entire record in this case, including the determinations 

of fact made in the narrative portion of this decision, the following 

conclusions of law are entered. 

(1) The Connnission has jurisdiction to hear and decide this matter. 

(~) Respondent, John Cullen, violated section 103(a) of the Act. 

(3) The appropriate civil penalty is $75. 

ORDER 

Accordingly, the citation is affirmed and respondent is ORDERED to pay 

a civil penalty of $75 to the Secretary within 30 days of the issuance of 

this order. 

Distribution: 

Katherine Vigil, Esq. 

Office of the Solicitor 

Carlson 

dministrative Law Judge 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Mr. John Cullen 

John Cullen Rock Crushing 

4356 Blueflax Drive 

Pueblo, Colorado 81001 

2009 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

. OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VlkGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AL\ID HEAL TH 

ADHINISTRATION (MSHA), 

Complaint of Discharge, 

Discrimination, or Interference 

Docket no. CENT 81-133-DN 

On behalf of 

LEN\.J'ARD H. WOOD, 

v. 

Complainant 

ARKHOLA SAL\ID AND GRAVEL COHP ANY, 

Respondent 

MD 79-02 

Jenny Lind 

DECISIOi\! 

and Plant 

Appearances: Richard Collier, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, on behalf of 

Complainant; 

William B. Hiller, . , Atlanta, , on behalf 

of Respondent~. 

Before: Administrative Law Judze Broderick 

STATEBENT OF THE CASE 

Complainant that he was discharged on January 1, 1J79, from 

the position he held with Respondent as a shovel operator because he 

refused to work under unsafe conditions. He does not seek reinstatement 

and is claiming lost wages for the two-week from January 1, 1979 

to January 15, 1979. Respondent denies that Complainant was discharged 

and denies that his Respondent's employ was related to activities protected under the Hine Safety Act. Complainant filed his complaint with the Secretary of Labor on January 5, 1979. His complaint 

was filed with the Review Commission on :'.'fay 7, 1981. 

Pursuant to notice, the case was called for hearing on the merits 

on 14, 1982, in Fort Smith, Arkansas. Lenward H. Uood, the 

Complainant, and William Wilcox, a federal dine Safety and Health 

Administration special investigator, testified for Complainant. 

Ross, Bill Scarbrough, and Joe Wasson testified on behalf of Respondent. 

2010 
Both parties waived their rights to file posthearing briefs and 

made oral arguments on the record at the close of the hearing. Based on 

the entire record, and considering the contentions of the parties, I 

make the following decision. 

FINDrnGS OF FACT 

1. Respondent at all times pertinent to this proceeding was the 

operator of the Jenny Lind Quarry and Plant near Fort Smith, Arkansas, 

which was a mine as that term is defined in the Federal Mine Safety and 

Health Act of 1977, 

2. Complainant was employed by Respondent as a shovel operator 

from about June 1975 to April 1977 and from November 1977 until 

January 1, 1979, and was a miner as that term is used in the Act, He 

normally worked from about 7 o'clock a.m, until dark, 6 days per week. 

3. The shovel which Complainant operated consisted of a cab and 

crane with a large scoop in front designed to pick up rocks and load 

them into dump trucks. The trucks then took the rocks to the crusher, 

The capac of the shovel was in excess of 5 tons of rock. 

4. The shovel in question had both hand and foot controls. Levers 

operated by hand were used to swing the crane around and hoist the load. 

Foot pedals were used to keep the bucket in place, that is to keep the 

stick from going in or out, and to keep the bucket from dropping. While 

the shovel is being operated, the hand and foot controls are constantly 

being used. At some time in the Spring of 1978, Respondent had a 

tion put in the cab of the crane which had the result of deflectin13 some 

of the heat from the engine away from the cab •. 

5. On a number of occasior.s prior to January 1, 19?9, Complainant 

complained to his supervisor about the lack of heat in the cab of the 

shovel. 

6. Complainant operated the shovel in January, 1977, in January 

1978, and in February 1973, when temperatures ranged from 4 degrees 

Fahrenheit to 19 degrees fahrenheit with wind speeds varying from 

3 to 13 knots per hour. 

7. On January 1, 1979, when Complainant reported to work, he was 

informed that the temperature was minus 11 degrees fahrenheit. In fact, 

at the Fort Smith, Arkansas airport the temperature was 19 degrees 

fahrenheit at 6:00 a.m., January 1, 1979. It was 18 degrees at 

9:00 a.m. The wind speed at 6:00 a.m. was 10 knots, and at 9:00 was 

13 knots. The wind was coming from North by Northwest. The subject 

quarry was on the north slope of the mountain and therefore exposed to 

the wind. 

2011 
8. It is necessary for the safe operation of the power shovel in 

question, that the operator have full in his hands and feet 

when he operates the controls. 

9. Complainant reported to work on January 1, 1979. The 

attended a regular safety meeting prior to the beginning of the shift. 

Complainant aske<l his supervisor, Jack Servold if a heater had been put 

in the cab. When he was told that it had not been installed, 

Complainant told Servold he would not run it because of the cold 

weather. Complainant offered to take a heater from another crane that 

was not running and install it in the crane involved herein. The 

supervisor refused the offer and told Complainant to punch out and go 

home. 

10. In the evening of January 1, 1979, Complainant called 

Ed Ellis, Superintendent of the mine and told him what happened. 

Ellis told Complainant that if Servold told him to punch out and go 

home, that meant he was fired. 

lL After Complainant went home on January 1, 1979, the shovel was 

operated his assistant George Ross. Ross completed the shift and 

does not recall any safety problems related to the cold weather. 

12. At the time his employment was terminated, Complainant was 

earning $5.50 per hour with t.ime-and-one-half for all hours worked over 

40 in a week. He worke<l an average of 50 hours per week, and thus 

earned $302.50 per week. 

lJ. Respondent's records show that Complainant voluntarily quit 

work "because he did not want to run shovel without heater installed in 

it." 

14. The Arkansas Employment Security Division found with respect 

to Complainants claim for unemployment benefits that he quit his job 

"when he became dissatisfied with his job assignment" and denied 

unemployment benefits. 

15. Complainant filed a discrimination complaint with the Mine 

Safety and Health Administration on January 9, 1979. Respondent was 

notified of the claim and an investigation was conducted at the mine on 

January 10 and January 11, 1979. The ~·lSHA investigator spoke to 

Servold and Ellis in addition to other company officials. 

16. The Solicitor of Labor filed a complaint on behalf of 

Lenwar<l Wood with the Review Commission on :fay 7, 1981. 

2012 
17. Neither Servold nor Ellis was in Respondent's employ at the 

time of the hearing. Counsel for Respondent stated that Ellis died 

about 2 weeks prior to the hearing and Servold is presently living in 

Colorado. 

PROVISION 

Section lOS(c) of the Act provides in part as follows: 

(c)(l) No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal 

or other mine subject to this Act because such miner, 

representative of miners, or applicant for employment 

• • . has filed or made a complaint under or related to 

this Act, including a complaint notifying the operator 

or the operator'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 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. 

(2) Any miner or applicant for employment or representative of miners who believes that he has been discharged, interfered with, or otherwise discriminated 

against by any person in violation of this subsection 

may, within 60 days after such violation occurrs, file 

a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary 

shall forward a copy of the complaint to the respondent 

and shall cause such investigation to be made as he 

deems appropriate. Such investigation shall commence 

within 15 days of the Secretary's receipt of the complaint, and if the Secretary finds that such complaint 

was not frivolously brought, the Commission on an 

expedited basis upon application of the Secretary, shall 

order the immediate reinstatement of the miner pending 

final order on the complaint. If upon such investigation, 

the Secretary determines that the provisions of this 

subsection have been violated, he shall immediately file 

a complaint with the Commission, with service upon the 

alleged violator and the miner, applicant for employment, 

or representative of miners alleging such discrimination 

or interference and propose an order granting appropriate 

relief. The Commission shall afford an opportunity for a 
hearing (in accordance with section 554 of title 5, 

United States Code, but without regard to subsection 

(a)(3) of such section) and thereafter shall issue an 

order, based upon findings of fact, affirming, modifying, or vacat the Secretary's proposed order, or 

directing other appropriate relief. Such order shall 

become final 30 after its issuance. The Commission 

shall have authority in such proceedings to require a 

person committing a violation of this subsection to 

take such affirmative action to abate the violation as 

the Commission deems appropriate, including, but not 

limited to, the rehiring or reinstatement of the miner 

to his former position with back pay and interest. The 

complaining miner, applicant, or representative of 

miners may present additional evidence on his own 

behalf during any hearing held pursuant to his 

paragraph. 

(3) Within 90 days of the receipt of a complaint 

filed under aparagraph (2), the Secretary shall not 

in writing, the miner, applicant for employment, or 

representative of miners of his determination whether 

a violation has occurred. 

ISSUES 

1. Whether the complaint is barred by the statute of limitations 

or by laches. 

2. Whether Complainant was discharged or voluntarily left his 

employment with Respondent. 

3. Whether Complainant's refusal to work was protected under the 

Mine Act. 

4. If Complainant was discriminated against, what is the appropriate relief to which he is entitled. 

COdCLUSIONS OF LAW 

1. Complainant and Respondent were subject to the provisions of 

the Federal lline Safety Act at all times inent hereto, and the 

undersigned Administrative Law has jurisdiction over the parties 

and subject 

2. The complaint is not barred by the limitations contained in 

section lOS(c) of the Act or by laches. 

2014 
DISCUSSION 

The Complainant filed his complaint with MSHA within 10 days of the 

alleged discrimination. The Secretary forwarded a copy of the 

to Respondent upon its receipt and commenced an investigation within 

2 or 3 days of the filing of the complaint. It does not appear thac the 

Secretary notified Complainant in writing within 90 of the receipt 

of the complaint whether a violation occurred. There is no specific 

requirement in the Act that such notification be sent to the mine 

operator. The record does not indicate when the Secretary determined 

that a violation occurred, but he did not file a complaint with the 

Commission until May 7, 1981, more than 2 years after the discrimination and more than 2 years after the investigation was apparen 

completed. The only explanation for the in filins is that the 

case "was never entered into the computer system" of the Dallas 

Solicitor's Office and was overlooked because of the immense caseload in 

the Office from 1979 to 1981. 

It has been held that the statutory f 

jurisdictional. 

Corporation, 3 FHSHRC 

deadlines 

Coal Co., 1 FMSHRC 126 (1979); Local 5429 v. ion 

1 FHSHRC 1300 (1979); S. Rep. No. 95-181, 95th Cong., 1st Sess. 

reprinted in LEGISLATIVE HISTORY of the FEDERAL HINE SAFETY At\!D 

ACT OF 1977, Senate Subcommittee on Labor, Cor..mittee on Human Resources 

(July 1978) 624 (hereinafter LEG. HIST.) ("It should be emphasized, 

however, that these time-frames [in 105(c)] are not intended to be 

jurisdictional.") 

In considering whether the complaint is barred because of late 

filing, by analogy to. a statute of limitiations or principle of laches, 

it must be remembered that this proceeding is not brought solely to 

make the Co~plainant whole, but to vindicate a public right. The 

primary purpose of section lOS(c) as of the entire Act, is to promote 

health and safety in the nation's mines. 

The failure to file a timely complaint with the Commission in this 

case was the fault of the government, and not of the Complainant. The 

Senate Conunittee report states that "the Complainant should not be 

prejudiced because of the failure of the Government to meet its time 

obligations." The time obligation that the Secretary failed to meet 

in this case is the obligation under section 105(c)(2) to 11 immediately 

file a complaint with the Commission, with service upon the alleged 

violator ... "when the Secretary has determined that the provisions 

of the subsection have been violated. 

2015 
In a case brought by EEOC under Title VII of the Civil Rights Act 

of 1964 approximately 3 years after the complaint was filed with EEOC, 

the Supreme Court held that "the benchmark, for purposes of a statute of 

limitations, is not the last phase of the multistage scheme, but the 

commencement of the proceeding before the administrative body." 

Occidental Life Insurance Co. v. EEOC 432 U.S. 355, 372 (1977). Prompt 

notice to o iling a complaint should alert him to 

the possibility of a proceeding and give him an opportunity to gather 

and preserve evidence. If he can show prejudice, a court "may restrict 

or even deny backpay relief." ~·, at 373. 

The case of Marshall v. Intermountain Electric Inc. 

614 F.2d 260 (10th Cir. 80 , was a suit by the Secretary Labor to 

enjoin future violations of the prohibition under the Occupational 

and Health Act against d ing an employee for filing safety 

complaints. The Court held, following the Occidental Life Insurance 

case, that the State statute of limitations 

"When an action is brought by the government to enforce private as 

well as public rights, state statutes of limitations do not to bar 

the action even though no federal period of limitations is provided. 

However, unlike the rule relating to actions brought exclusively for the 

benefit of the federal government, the doctrine of laches may be applied 

in these hybrid cases to limit relief.'' (Emphasis added). 

614 F.2d at 263. 

Following these principles, I conclude that if prejudice has 

occurred, laches may be invoked, not to defeat the claim, but only to 

limit relief. The evidence of p udice in this record is the absence 

from the hearing of Ed Ellis, the Plant Superintendent who signed the 

document in which Complainant's employment termination was recorded and 

who allegedly told Complainant that he was fired, and witness, Jack 

Servold, who was Complainant's foreman. Counsel stated that Ellis died 

about 2 weeks prior to the hearing, and that Servold was out of State 

and unavailable to tes No showing was made of any effort by 

Respondent to preserve testimony or to obtain the testimony of Servold 

by deposition or otherwise. I conclude, however, that potential 

prejudice has been shown, and I will consider that conclusion in 

discussing relief. 

3. Complainant was discharged, actually or constructively, 

because of his refusal to perform certain work. 

DISCUSSION 

Complainant refused to operate the shovel unless a heater was 

installed, and he was told to punch out and zo home. Complainant states 

that he was fired; Respondent states that he quit. What the termination 

2016 
of emplo)'T'.lent is called is not important to this proceeding if it 

resulted from protected activity. 

4. Complainant's refusal to operate the shovel in question on 

January 1, 1979, was based on a good faith belief that it involved a 

safety hazard because of the extreme cold. 

DISCUSS IO::~ 

It is true that Complainant operated the shovel un prior occasions 

when the weather was more severe than it was on January 1, 1979. 

However, the partition referred to in Find of Fact No. 4 had not been 

installed on these occasions and more heat from the engine came into the 

cab. It is also true that another yee operated the shovel on 

January 1, 1979, without incident. Neither of these aforementioned 

facts persuades me that Complainant was act otherwise than in 

faith when he refused to operate the shovel on January 1. There is no 

other adequate explanation for his refusal. 

5. Complainant's refusal to onerate the shovel in question on 

January 1, 1979, was based on a reasonable belief that it involved a 

safety hazard because of the extreme cold. 

DISCUSSION 

:MSHA Special Investigator Hilcox, a mining engineer, stated. his.· 

opinion that it was a safety hazard to run a shovel such as the one in 

question in subfreezing temperatures without any heat. Others who 

testified with him, but I accept the testimony of Hilcox as 

establishing that Complainant's refusal to run the shovel was reasonable 

and was related to safety considerations. 

6. Complainant's refusal to operate the shovel in question on 

January 1, 1979, was activity protected under the "line Act. 

DISCUSSION 

Refusal to perform work is protected under section lOS(c)(l) 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 v. Consolidation Coal Co. 2 F~SHRC 2786 (1930), rev'd on 

other Coal Co v. Marshall 663 .2d 1211 

(3rd Cir. 1931); inette v. Unit Castle Coal Co., 

3 F'.1SllRC 803 (19 Co. 4 FHSHRC 982 (1982). 

7. Complainant's employment was terminated by Respondent because 

of his refusal to operate the shovel on January 1, 1979, referred to 

above. This constituted a violation of section 105 of the Act. 

201 11 
8. Because of the delay in f the complaint, I will not order 

Respondent to pay interest on the award of back wages. 

ORDER 

Based upon the above findings of fact and conclusions of law, 

Respondent is ORDERED to pay Complainant within 30 Jays of the date of 

this decision the sum of $605 for 2 weeks lost wages. 

~i 1; !£_~; A-13.:~:J i:1rz&L 

James A. Broderick 

Administrative Law Judge 

DistribQtion: By certified mail 

Richard Collier, Esq., Office of the Solicitor, U.S. Department of 

Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202 

William B. Miller, Esq. 9 APAC, Inc., Tower Place, 3340 Peachtree ::Zoad, 

N.W., Atlanta, GA 30326 

2018 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 N0\118 

MOUNTAIN DRIVE COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

DECISION 

Contest of Citation 

Docket No. KENT 81-110-R 

Citation No. 993137 

March 10, 1981 

No. 1 St Mine 

Appearances: Lloyd R. Edens, Esq., Middlesboro, , for Contestant; 

Darryl A. Stewart, Esq., Office of the Solicitor, U. S, 

Department of Labor, for Respondent. 

Before: Adr.iinistrative Law Judge Ste 

A hearing in the above-entitled was held on May 11 and 12, 

1982, in Barbourville, Kentucky, pursuant to section lOS(d), 30 u.s.c. § 

815(d), of the Federal Mine Safety and Health Act of 1977. After the 

parties had completed the introduction of evidence, counsel for the 

made closing arguments, and I rendered a bench decision. 

When the reporter failed to submit a trans of the hearing within 

a reasonable period of time, efforts to call him by were unsuccessful. A letter written to his post office box number was not answered. 

Finally, I wrote him a letter by certified mail on October 19, 1982. The 

letter was returned by the post office with a notation on .the front of the 

s 

envelope that the addressee had not claimed the te letter. A telephone call to the post office resulted in our that the reporter does still pick up his mail at that post office, but he would not 

claim the registered letter when he was three notices that a registered letter was being held for his signature. 

The only address I have for the reporter is a 

I assume that I could personally travel to Tazewell, , and ask 

enough questions to determine where the reporter lives and I probably 

could find his home and he might be willing to me, or sell me, the 

stenographic notes which he made of the I do not know, of course, 

whether his notes are legible or whether another could produce a 

transcript of the hearing from his notes. 

An alternative way to obtain a written would be for me to 

hold a second hearing, but I al'\ reluctant to burden the parties with a 

second hearing in view of the fact that 11 witnesses testified at the 

2019 
previous hearing. Even if they could all be assembled again for a 

second hearing, a period of more than 20 months has elapsed since the 

citation being contested was issued, and it is unlikely that they would 

recall the occurrences vividly enough to produce a satisfactory record. 

Fortunately, I retained all of the exhibits which were introduced 

at the hearing. The issue in this case dealt exclusively with whether 

contestant was providing sufficient illumination to provide safe working 

conditions at its surface mine. Twelve of the exhibits consisted of 

color photographs which contestant had had made of its mine and the 

pment used at the mine. Many of my findings of fact are based on 

contestant's color photographs. Although my bench decision resulted in 

an unfavorable decision for the Secretary of Labor, it is entirely possible that counsel for the Secretary will not believe that it is necessary to file a petition for discretionary review with the Commission because the decision is based almost entirely upon evidentiary facts. 

Therefore, my decision will have little precedential value for any 

operator other than the contestant in this proceeding. 

In view of the circumstances described above, I have decided to 

issue the bench decision in final forrl, If counsel for the Secretary 

of Labor should decide, after evaluating the decision, that it is necessary to file a petition for discretionary review, the case can be 

remanded to me so that I can either hold another hearing or try to 

obtain a transcript from the notes made by the reporter who appeared 

at the first hearing. 

The material which follows is the bench decision which was orally 

given on May 12, 1982, after counsel for the parties had completed their 

clos arguments. 

This proceerling involves a notice of contest filed on 

April 8, 1981, in Locket No. KENT 81-110-R by Mountain Drive 

Coal Company alleging that Citation No. 993137 issued on 

March 10, 1981, under section 104(a) of the Federal Mine 

Safety and Health Act of 1977 is invalid because the citation 

incorrec alleged that Mountain Drive had violated 30 C.F.R. 

§ 77.207. Section 77.207 reads as follows: 

Illunination 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. 

At the hearing MSRA presented its case through the testimony of one coal mine inspector supervisor and Mountain Drive 

supported its case through the testimony of 10 witnesses. Hy 

decision will be based on the following findings of fact: 

1. It was stipulated that Mountain Drive is subject to the 

jurisdiction of the Act, that Mountain Drive operates the No. 1 

Strip Mine here involved, that Mountain Drive is a large operator, 

2020 
that Mountain Drive has no history of having previously violated section 77.207, and that payment of penalties will not 

adversely affect Mountain Drive's ability to continue in 

business. 

2. As to the penalty criterion of contestant's goodfaith effort to achieve rapid compliance, MSHA agreed that 

Mountain Drive could continue to use the illuminating methods 

which were in operation when Citation No. 993137 was issued, 

pending; the rendering of a decision in this proceeding as to 

whether Mountain Drive's illumination method is a violation 

of section 77.207. 

3. It was further stipulated that Citation No. 993137 

was issued on March 10, 1981, alleging a violation of section. 

77.207 by Federal Coal Mine Inspector Supervisor Kenneth T. 

Howard who was accompanied by another inspector named H. M. 

Callihan. The stipulations are given in a two-page document 

which is Exhibit 1 in this proceeding. 

4. The inspector supervisor testified that he and 

another inspector went to Mountain Drive 1 s No. 1 Strip Mine 

on March 10, 1981, at about 5:30 to 6 p.m. and examined various areas of the mine for a period of about 4 or 5 hours. He 

was concerned ahout the adequacy of lighting in two different 

areas. 

5. The first area was at a dumping site in N Section 

where large trucks were <lumping overburden into a hollow about 

20 feet in depth. A dozer was leveling dumped materials and 

the inspector supervisor was told by Mountain Drive's safety 

director that the dozer was available for extra illumination 

or spotting if needed. The inspector supervisor said the 

dozer's lights, when he observed them, were shining toward the 

dump trucks so as to be in the truck drivers' eyes as the 

drivers approached the dumping site. The inspector supervisor 

was accompanied by Mountain Drive's safety director, Buddy 

Johnston, and the inspector supervisor asked Johnston to have 

the dozer turn so that its lights were shining on the dumping 

area rather than toward the approaching trucks coming in to 

dump overburden. 

6. The inspector supervisor would have accepted the 

dozer's lights as adequate supplemental illumination for the 

dumping area except for his belief that the dozer operator 

would normally be engaged in spreading overburden and could 

not be expected to shine his lights on the <lumping site every 

time a truck approached. Moreover, he believed that the dozer 

had been placed in a supplemental lighting position to impress 

upon him that adequate lighting was available at the dumping 

site. 

2021 
7. The inspector supervisor did not get out of his 

truck to discuss lighting with any truck driver or the dozer 

operator and did not actually examine the number of lights 

on the front of the truck or its rear, but he estimated that 

each truck had two lights on its front end and one back-up 

light on its rear end. The inspector supervisor concluded 

that the lighting was inadequate in the dumping area on 

the basis of the above-described examination. 

8. The second area which the inspector supervisor believed to be insufficiently illurlinated was a pit area known 

as the N-3 pit. He recalled the equipment he had observed 

in the N-3 pit as two dozers, but the citation was written 

over a year prior to the date of the hearing and the inspect or supervisor's memory was not sufficiently keen to enable 

him to say for certain whether he had observed two end-loading 

machines in the N-3 pit or two dozers or one of each in the 

N-3 The only aspect of the N-3 pit~s illumination as 

to which the inspector supervisor was certain was that while 

the light from the dozers or loaders was sufficient for the 

operators to see the material they were pushing~ the lighten the equiument was not bright enough to enable the 

equipment operators to see all the way to the of the 

highwall near which they had to work from time to time. 

9. It was the inspector supervisor's opinion that a 

highwall may become hazardous during any given 8-hour shift 

and that equipment operators must be able to observe the 

highwall all the way to the top to be certain that it does 

not develop cracks which may release loose material which 

may fall into the pit where the equipment is being used. 

In fact, the inspector supervisor indicated that a fatality 

had occurred at another mine not owned by Mountain Drive a 

short time before he wrote the citation here involved and 

that fatality occurred shortly after a new shift had begun 

to work following a preliminary inspection of a highwall. 

Therefore, the inspector supervisor concluded that supplemental lighting was needed in the N-3 pit. 

10. Base<l on the facts summarized in Finding Nos. 4 

through 9 above, the inspector supervisor and Inspector 

Callihan both signed Citation No. 993137. The condition or 

practice on that citation reads as follows: "Sufficient 

illumination to provide safe working conditions was not 

provided at dumping location in "N" section and the "N-311 

pit area. At the dumping locations only vehicle headlights 

and/or back-up lights were available and in the pit area, 

sections of the highwall where equipri.ent was required to 

work in close proximity were not illuminated." 

11. Charles Harren, a commercial photographer, was 

hired by Mountain Drive to take some color pictures showing 

the degree of illumination provided by the lights on Mountain 

2022 
Drive's equipment. The photographer did not provide any illumination in addition to that supplied by the existing lights on 

the equipnent. Exhibit A is an 8" x 10" photograph of lighting 

provided by an end loader like the one operating in the N-3 pit 

when the inspector supervisor cited the N-3 pit for insufficient lighting. Exhibits B through F. are 8" x 10" photographs 

of illumination provi<led by the Euclid 75 trucks being used in 

the dumping area cited by the inspector supervisor for insufficient lighting. Those photographs support a conclusion that 

the trucks and end loaders provided a great deal of light. 

12. Buddy Johnston, Mountain Drive's safety director, 

accompanied the tor supervisor and the other inspector 

on March 10, 1981. He introduced six 5" x 7" color photographs 

of one of the Euclid 75 trucks which was being used in the dumping area on March 10, 1981. Exhibit I is a close-up picture of 

the front of the truck. Johnston explained that the manufacturer 

installs four on the front and that lfuuntain Drive additionally installs four supplemental lights on the front of the 

truck, one on each end of the bumper and one on each side of 

the hood about even in with the last rung of the ladder 

used by the truck driver to climb up to the truck's cab. Exhibit H is a of the rear of the same Euclid truck 

showing the two sealed beam back-up lights which are standard 

equipment installed by the manufacturer and two supplemental 

lights which are installed by Hountain Drive to shine diagonally toward the left and right sides of the rear dual wheels. 

Exhibits F and G are two photos of the same Euclid truck showing a supplemental light which Mountain Drive adds just behind 

each front wheel so as to illuminate the area in front of the 

rear dual wheels. The actual illumination is illustrated by 

the 8" x 10" pho described in Finding No. 11 above. 

13. Johnston also introduced as Exhibits K and L two 

5" x 7" photographs of a 992 Caterpillar end loader like the 

two being used in the N-3 pit when the N-3 pit was cited for 

insufficient lighting. Johnston's Exhibits Kand 1 show that 

the manufacturer equips the loader with lights on the boom on 

each side near the lower part of the windshield and with one 

light on each side of the top of the cab. Hountain Drive 

supplements the manufacturer's cab lights with two lights between the two top cab 1 and the middle lights are 

directed upward so that the operator of the end loader may 

see the highwall above him. Johnston also testified that the 

inspector supervisor found the 1 on the end loaders to 

be insufficient only when they were being used in a position 

which was parallel to the highwall. 

14. James Courtney is an operator of a 992 Caterpillar 

end loader and he was operating it in the N-3 pit on March 10, 

1981, when Mountain Drive was cited for insufficient lighting. 

2023 
He testified that he had worked for another company, Pine 

Mountain Industries, at a time when that company had installed six portable power plants to provide lighting for a 

pit area as shown in Exhibit M, an<l that he was unable to 

work at all until the portable light plants were removed because they created an unacceptable amount of glare in his 

eyes by reflecting off of mirrors and by shining directly 

into his eyes. He insisted that he could see the entire 

highwall and that he could see it clearly enough to have 

known it if any hazardous conditions had developed on the 

highwall in N-3 pit. He said he nearly always approached the 

highwall at a 45° angle which enabled him to see to the top 

of the highwall and he further said that if he were to drive 

his end loader exactly parallel and close to the highwall, he 

would in that position be unable to see to the top of the hi8hwall because of the roof of his cab and not because he lacked 

sufficient light to see to the top of the highwall. 

15. George Brock was a truck driver on the day shift but 

he was fairly often asked to report for work at 3 a.m. and work 

to 1 p.m. During such shifts, he had worked when Mountain 

Drive had experimented with portable lighting units. No matter 

how those units were positioned, they blinded him so as to make 

his work more hazardous and difficult when they were used than 

when they were not used. 

16. Three other truck drivers supplemented Brock's ti~ 

mony. Their names were R. R. Wilson, R. Eugene Johnston, and 

Mike Polly. All of them testified that they were driving Euclid 

75's on March 10, 1981, when Citation No. 993137 was written and 

that they could see very well where they were dumping with the 

lights installed on the trucks as described in Finding Nos. 11 

through 13 above. All of them said they would come into the 

dumping area and make one pass around the dumping s'ite so as to 

choose the place where they wanted to dump. Then they would 

back up and dump their trucks by looking first into their top 

rear view mirror and then into the lower mirror, as those 

mirrors are shown on Exhibits F, G, I, and J and as the areas 

are illustrated in F.xhibits R, C, and D. 

17. Doug Hoskins has worked for Mountain Drive since 1970 

and he became the mine manager in January 1980. He was not 

available to testify in person at the hearing held on May 11, 

1982, but his deposition was taken on May 5, 1982, in Knoxville, 

Tennessee, at which time he was questioned by MSHA's counsel. 

It was agreed that his deposition could be received as evidence 

in this proceeding. According to pages 7 and 8 of that deposition, Mountain Drive expanded its overburden removal ability in 

1975 and the company experimented with portable lighting units 

for a few months to determine whether such units could be used 

to maximize safety and upgrade efficiency. After the lights in 

2024 
the portable units had been positioned both high and low without overcoming the equipment operators' objections to the 

glaring and blinding characteristics, they discontinued the 

use of the portable units and had operated for about 6 years 

without using any illumination other than the lights installed 

on the equipment as hereinbefore described. During that 6-

year period, Mountain Drive was not cited for having insufficient lighting until the citation involved in this case was 

written on March 10, 1981. 

18. After Citation No. 993137 was issued, Hoskins discussed the matter of illumination with other management personnel and management decided that their record of no equipment operators' complaints and their safety record free of 

disabling injuries justified their conclusion that their 

methods of illumination provided safe operating conditions 

and merited their filing a notice of contest with respect to 

the citation. 

Consideration of Parties' Arguments 

Counsel for Mountain Drive argued that his witnesses had 

carried their burden of showing that the supplemental li?hts 

installed by Mountain Drive on its trucks and end loaders provided sufficient light to satisfy the requirements of section 

77 .207, that is, i~.lumination sufficient to provide safe working conditions. 

I agree with Mountain Drive's counsel that the testimony 

of its witnesses and its exhibits support a finding that there 

was sufficient illumin~tion in the N dumping area and N-3 pit 

to provide safe working conditions. I also agree with Mountain 

Drive's-counsel that the testimony of the inspector supervisor 

lacked the certainty which is required for me to find that the 

inspector supervisor's testimony alleging insufficient lighting 

should be found to preponderate over the testimony of the truck 

drivers and end loader operators who said that they could see 

perfectly well. 

In his argument, counsel for the Secretary of Labor correctly stated that there is nothing in section 77.207 which 

specifically requires an operator to provide illuminating or 

self-generating plants. The Secretary's counsel also agreed 

that Mountain Drive's equipment operators are uniform in 

their dislike for lighting plants. 

The Secretary's counsel was critical of Mountain Drive 

for its failure to present as a witness the operator of the 

dozer in the dumping area. I am not certain that the dozer 

operator could have contributed much useful information as 

to the sufficiency of the illumination provided by his dozer's 

202f) 
lights when it is considered that the inspector supervisor 

testified that the dozer's lights would have provided sufficient illumination to satisfy the provisions of section 

77.207, but the inspector supervisor rejected use of the 

dozer's lights as a consistent supplemental light source 

because the inspector supervisor was unwilling to accept 

the fact that the dozer operator would always be alert and 

willing to shine his dozer's lights on the dumping area at 

the time each truck was dumping. 

Also it must be recalled that the inspector supervisor 

criticized the use of the dozer for supplemental lighting because the dozer's lights, when the inspector supervisor came 

to the N-3 pit, were shining toward the oncoming trucks. 

The inspector supervisor said that, in his opinion, the 

dozer's lights were blinding the truck drivers rather than 

helping them to see. To that extent, the inspector supervisor was in complete agreement with the equipment operators' 

objections to lighting plants because the equipment operators 

said that the glare from the lighting units made it difficult 

for them to see where they were dUJTlping. While a dozer operator can move his dozer to his lights from shining into 

a truck ririver 1 s eyes, there is no way for a stationary lighting plant to vary its position so as to eliminate its glare 

from an equipment operator's eyes. Moreover, every truck 

driver was segregated prior to testifying but, without exception, each driver testified that the operator of the doze~ 

turned off the dozer's lights when the trucks were dumping 

so that the dozer's lights would not shine in their eyes. 

Therefore, I do not find that Mountain Drive's failure 

to add an eleventh witness to its list of witnesses is a:1 

evidentiary gap which would support a finding that Mountain 

Drive has failed to carry its burden of countervailing the 

testimony of the inspector supervisor. It is not my practice 

to cite shortcomings in testimony, but it is a fact that 

Inspector Callihan did jointly sign Citation No. 993137. I 

do not know what effect his testimony would have had on the 

outcome of this proceeding, but his failure to testify constitutes a larger gap in the Secretary's proof than the absence of the dozer operator's testimony creates in Mountain 

Drive's case. 

The Secretary's counsel also objects because I sustained 

objections of Mountain Drive's counsel to questions about how 

the truck drivers could see when they were in the N-3 pit 

area. The Secretary's counsel says that he relies on all the 

language in Citation No. 993137 as to the N-3 pit and that he 

was prevented by my ruling from developing his arguments in 

support of the citation. The total claim of insufficient 

light in the N-3 pit is "* * * in the pit area, sections of 

2026 
the highwall where equipment was required to work in close 

proximity were not illuminated". The violation of section 

77.207 as'to the N-3 pit depends exclusively on what the 

inspector supervisor used to support his conclusion that 

the highwall was not sufficiently illuminated. The inspector 

supervisor does not claim to have seen a single truck in the 

N-3 pit. He supported the violation in the N-3 pit exclusi~ely by saying that the operator of the dozer or end loader 

(he didn't know which it was) couldn't see the top of the 

highwall when the loader or dozer was in close proximity to 

the highwall o 

Assuming, arguendo, that the Secretary's counsel should 

have been allowed to develop the question of how much illumination trucks could have provided in the N-3 pit, the evidence 

is overwhelming that all of the lights on the trucks were directed to the ground so that the truck drivers could see where 

they were backing their trucks before dumping their overburden. 

Thus, it is certain that the lights on the trucks would not 

have illuminated the highwall and no amount of cross-examination of the truck drivers could have changed the basi.s for the 

inspector supervisor's claim that the highwall was not sufficiently illuminated to provide safe working conditionso 

In its decision issued in Capital Aggregates, Inc., 3 

FMSHRC 1388 (1981), the Commission considered two alleged 

violations of section 56.17-1 which reads the same as section 

77.207 involved in this.proceeding. The Commission stated on 

page 1388 that the question presented is what constitutes 

illumination sufficient to provide safe working conditions. 

The Commission then added that resolution of the question 

"* * * requires a factual deter111ination based on the working 

conditions in a cited area and the nature of the illumination 

provided". The Commission found a violation in that case because lights at a coke storage bin and adjacent walkways were 

not operable. The operator in that case argued that it had 

provided adequate illumination because it had provided electrical outlets for portable lighting equipment. The Commission then stated at page 1389, "[p]ortable lighting could 

satisfy the standard where such lighting is accessible, its 

use is feasible and safe, and it provides adequate light 

under the circumstances". The Commission stated that the 

operator in that case had presented no evidence to show that 

it had the portable equipment nor how much light it would 

provide even if it had been available. 

In this proceeding, Mountain Drive has gone far beyond 

the evidence considered in the Capital Aggregates case. 

Mountain Drive has presented a large number of witnesses who 

have used portable lighting in strip mining and those witnesses have shown without any equivocation that portable 

202'/ 
lighting, when use<l, failed to make conditions safer than 

the conditions were without such equipment. In short, 

portable lighting has been shown by Mountain Drive's evidence to be neither feasible nor safe. 

I believe that Mountain Drive has established by a preponderance of the evidence that the lights on its trucks and 

en<l loaders furnished sufficient illumination to provide safe 

working conditions iil the N dumping area and N-3 and that 

no violation of section 77.207 has been proven. 

Since I have found that no violation was proven, there is 

no need to consider the civil issues which were consolidated for consideration in this proceeding. 

WHEREFORE, it is ordered: 

The notice of contest filed on April 8, 1981, in Docket No. 

KENT 81-110-R by Mountain Drive Coa1 Company is sustained and 

Citation No. 993137 issued March 10, 1981, alleg a violation 

of section 77.207 is vacated. 

Distribution: 

~ C.<J3~ Richard C. Steffey 

Administrative Law JU:dge 

(Phone: 703-756-6225) 

Lloyd R. Edens, Esq., Attorney for Mountain Drive Coal Company, 

P. O. Rox 1562, Middlesboro, KY 40965 (Certified Mail) 

Darryl A. Stewart, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 280, U. s. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

2028 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

NOV 191982 5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MINING COMPAi'N, 

Respondent 

Civil Penalty Proceeding 

Docket No. KENT 81-141 

A. C. No. 15-04338-03044 F 

Brookside No. 3 Mine 

DECISION APPROVING SETTLEMENT 

When a hearing was convened on 13, 1982, in Barbourville, Ken-

' in the above-entitled proceeding, counsel for the Secretary of 

Labor stated that the parties had reached a settlement of the issues. 

The 1 s counsel then made an oral motion for approval of settlement. Under the settlement agreement~ respondent would pay reduced 

of $1,250 instead of the of $2,250 proposed by the 

Assessment Office for the two violations involved in this proceedSince the oral motion for settlement was made in the presence of a 

c~urt reporter, it is normal procedure to wait until a transcript of the 

is received from the reporter before acting upon the oral motion 

for approval of settlement. After the transcript.is received, the judge 

normally issues his decision on the basis of the motion which has been 

transcribed by the reporter. In this instance, the court reporter failed 

to submit a transcript of the hearing. We have been unable to talk to 

the by telephone to ask whether he ever intends to transcribe 

the , and he will not accept a letter sent by certified mail. 

Therefore, I am issuing this decision on the basis of the notes which I 

took at the hearing. 

Section llO(i) of the Federal Mine and Health Act of 1977 

lists six criteria which are required to be used in determining civil 

The six criteria were considered by the parties when they 

reached their settlement agreement. As to the criterion of the size of 

's business, the proposed assessment sheet in the official file 

shows that respondent produces over 2,000,000 tons of coal on an annual 

basis and that the Brookside No. 3 Mine involved in this proceeding produces over 200,000 tons of coal per year. Those figures support a finding that respondent is a large operator and that any civil penalties 

assessed in this proceeding should be in an upper range of magnitude insofar as they are determined under the criterion of the size of respondent's 

business. 

2029 
The parties have presented no evidence, and the official file contains 

no facts, pertaining to respondent's financial condition. The former Board 

of Mine Operations Appeals held in Buffalo Mining Co., 2 IBMA 226 (1973), 

and in Associated Drilling, Inc., 3 IBMA 164 (1974), that a judge may presume that an operator is able to pay civil penalties if the operator fails 

to present any evidence regarding its financial condition. In the absence 

of any statements by the Secretary's counsel or facts in the official file 

indicating that a contrary conclusion should be dr~'Wil, I find that payment 

of penalties will not cause respondent to discontinue in business. 

As to the criterion of respondent's,history of previous violations, 

counsel for the Secretary stated that during the 24 months preceding the 

writing of the two citations involved in this proceeding, respondent had 

been assessed for a total of 243 violations during 390 inspection days. 

Applicat1on of those figures to the assessment formula in 30 C.F.R. § 

100.3(c), which was in effect prior to May 21, 1982, when the penalties 

in this proceeding were proposed by the Assessment Office, shows that a 

total of nine penalty points should be assigned under the criterion of 

respondent's history of previous violations. I find that the settlement 

penalties are sufficiently large to allow for an appropriate amount to be 

included under the criterion of respondent's history of previous violations. 

The remaining three criteria of negligence, gravity, and the operator's good-faith effort to achieve rapid compliance will be considered in 

the ensuing discussion of the allegations contained in each citation. 

Citation No. 741492 alleged that respondent had violated 30 C.F.R. § 75. 

1725 by failing to remove from service a track vehicle which had a defective device for holding the trolley pole against the trolley wire which 

supplied the vehicle with electrical power. One of respondent's foremen 

used the track vehicle even though he knew that the trolley pole frequently came loose from the trolley wire. The foreman was el~ctrocuted when he 

tried to reattach the trolley pole to the source of power. The Assessment 

Office waived the normal penalty formula described in section 100.3 and 

proposed a penalty of $1,000 for the violation based on narrative findings 

of fact. 

A copy of the narrative findings is a part of the official file. 

Those findings show that the Assessment Office considered the violation 

to have been the result of negligence and to have been very serious. The 

Secretary's counsel stated that the parties had agreed to reduce the proposed penalty of $1,000 to $600 primarily because the facts do not warrant 

a finding that respondent was as negligent as the Assessment Office found 

it to be. A foreman had used the car with the defective power attachment 

device with knowledge that the track vehicle was not in safe operating 

condition. I believe that the Commission's decision in Nacco Mining Co., 

3 FMSHRC 848 (1981), can be cited as a precedent for allowing some reduction in the proposed penalty under the criterion of negligence. In the 

Nacco case, the Commission found that the operator was nonnegligent for a 

violation of section 75.200 in circumstances which showed that a foreman 

2030 
had gone out from under roof support for a distance of 10 to 12 feet in 

violation of the operator's roof-control plan. The foreman was killed 

when the roof fell on him. The facts showed that the foreman had received 

proper training and that he had shown good judgment on prior occasions 

with respect to following safety regulations, but on the day of the accident, he acted aberrantly and engaged in conduct which was wholly unforeseen. The foreman's action did not expose anyone else to harm or risk. 

The Conunission stated that finding an operator negligent in such circumstances would discourage pursuit of a high standard of care because, regardless of what an operator did to insure , a f of 

would always result. 

Using a track vehicle with a defective trolley wire attachment necessarily exposes the operator of such a vehicle to a hazardous condition, 

especially if he undertakes to reattach the trolley pole to the trolley 

wire without deenergizing the trolley wire, as the foreman did in this 

instance. Therefore, the Assessment Office correctly found that the violation was serious. 

The second civil penalty sought in this proceeding is based on Citation No. 741493 which alleged a violation of section 75.512 because a 

weekly examination of the track vehicle cited in the preceding discussion 

was not being made. The Assessment Office found the violation to have 

been serious, to have been the result of a high of negligence, and 

proposed a penalty of $1,250. The reason that the Assessment Office proposed a larger penalty for the alleged violation of section 75.512, than 

it had for the violation of section 75.1725 described above, is that the 

Assessment Office concluded that the cause of the foreman's death was respondent's failure to make the required weekly examination of electrical 

equipment and to repair such equipment when defects were found. 

Counsel for the Secretary stated that the had to a 

reduction of the proposed penalty from $1,250 to $650 because, if a hearing had been held, there was some doubt that a violation of section 75.512 

could have been proven. Also.the Secretary's counsel noted that there was 

a considerable amount of overlapping of the two alleged violations in that 

both the previous violation of section 75.1725 and the instant violation 

of section 75.512 depended to the same extent upon a failure to inspect 

and correct the defects in the device which was supposed to the trolpole attached to the trolley wire. 

As the Commission observed in Lone Star Industries, 3 FMSHRC 2526, 

2529 (1981), the occurrence of an accident or of a fatality does not by 

itself prove or disprove existence of a violation. Occurrence of an 

accident, however, may cause inspectors to notice violations which they 

may have overlooked on previous occasions. The doubt as to occurrence of 

the violation, coupled with the overlapping nature of the violations, 

warrants a reduction of the proposed penalty from $1,250 to $650. 

2031 
The only criterion which has not been discussed is the question of 

whether respondent demonstrated a good-faith effort to achieve rapid compliance. The Assessment Office found that respondent abated both alleged 

violations"*** within a reasonable period of time." The inspector observed the alleged violation of section 75.1725 at 7 a.m. and gave respondent an hour within which to terminate the violation. The subsequent action 

sheet terminating the citation indicates that the track vehicle was removed 

from the mine and taken completely away from the track by 9 a.m .. While 

respondent did not achieve abatement within the hour given by the inspector, 

it appears that abatement within a period of 2 hours is sufficiently close 

to the time allowed for abatement by the inspector to support a finding 

that respondent demonstrated a good-faith effort to achieve abatement so 

that no additional monetary amount should be assessed under the criterion 

of good-faith abatement. 

The subsequent action sheet terminating Citation No. 741493 was not 

written until November 20, 1980, or nearly 6 months after the citation was 

written. Sometimes the inspectors who initially write citations overlook 

the need to write subsequent action sheets to tern1inate the citations, 

Thereafter, another inspector will check the files in MSHA 1 s office and 

find that a given citation is still outstanding, He will then go to the 

mine and determine whether the citation should be abated. The termination 

sheet in this instance was written by a different inspector from the two 

inspectors who originally wrote the citation. Since abatement was achieved 

for Citation No. 741493 by taking out of service the same vehicle which was 

removed from service to abate Citation No. 741492, it is safe to conclude 

that there is no basis to make a finding of a lack of good faith in connection with the 6-month abatement period associated with Citation No. 741493. 

Therefore, no additional monetary amount should be assessed for the alleged 

violation of section 75.512 under the criterion of good-faith abatement. 

I believe that the foregoing discussion of the six criteria shows that 

the Secretary's counsel gave sufficient reasons to warrant the grant of his 

oral motion for approval of settlement. 

WHEREFORE, it is ordered: 

(A) The motion for approval of settlement made at the hearing on 

May 13, 1982, is granted and the settlement agreement is approved. 

(B) Pursuant to the settlement agreement, respondent, within 30 

days from the date of this decision, shall pay civil penalties totaling 

$1,250 which are allocated to the respective alleged violations as follows: 

2032 
Citation No. 741492 5/19/80 § 75.1725 .•...•.....•.•.. $ 

Citation No. 741493 5/19/80 § 75.512 .......•....•.•.. 

600.00 

650.00 

Total Settlement Penalties in This Proceeding .....•.. $1,250.00 

Distribution: 

~ C. r:J'.t~,,A Richard C. Steffey ·-i;--~ 

Administrative Law Judge 

(Phone: 703-756-6225) 

Darryl A. Stewart, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 280, U. S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Karl S. Forester, Esq., Attorney for Eastover Mining Co., Forester, 

Forester, Buttermore & Turner, Forester Building, First Street, 

Harlan, KY 40831 (Certified Mail) 

2033 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner Docket No. SE 81-50 

v. A. C. No. 40-02512-03009 W 

BILLY MOON TIPPLE, 

Respondent Moon Tipple No. 2 

DEFAULT DECISION 

Appearances: Darryl A. Stewart, Esq., Office of the Solicitor, 

U. S. Department of Labor, for Petitioner; 

No one appeared at the hearing on behalf of Respondent. 

Before: Administrative Law Judge Steffey 

When the hearing in the above-entitled proceeding was convened in 

Barbourville, Kentucky, on May 12, 1982, pursuant to written notice of 

hearing dated April 5, 1982, and received by respondent on April 7, 1982, 

counsel for the Secretary of Labor entered his appearance, but no one 

appeared at the hearing to represent respondent. 

Under the provisions of 29 C.F.R. § 2700.63(a), when a party fails 

to comply with an order of a judge, an order to show cause shall be directed to the party before the entry of any order of default. An order 

to show cause was sent to respondent on May 17, 1982, pursuant to section 

2700.63(a), requiring respondent to show cause why it should not be found 

to be in default for failure to appear at the hearing convened on May 12, 

1982. Since respondent had failed to reply to the prehearing order issued 

February 5, 1982, in this proceeding, the show-cause order also required 

respondent to explain why it should not be held in default for failure to 

provide the information requested in the prehearing order. A return receipt in the official file shows that respondent received the show-cause 

order on May 20, 1982. Respondent was required to answer the show-cause 

order by June 7, 1982, but no reply has been received. 

Respondent's owner, Mr. Billy Moon, called me at the motel in Barbourville about 7:30 p.m. on May 12, 1982, to explain why he had not been 

present at the hearing when it was convened about 1:30 p.m. on May 12, 

1982. The reason given by Mr. Moon for not appearing at the hearing was 

that he had left home in plenty of time to drive to Barbourville before 

the hearing was due to commence, but the steering mechanism on his truck 

ceased working and it was necessary for him to take his truck to a garage. 

Mr. Moon said that it first appeared that the steering could be repaired 

in time for him to drive to Barbourville before the hearing, but subsequently it became clear to the mechanic that the problem was too serious 

2034 
to be repaired until laLe in the afternoon. Mr. Moon told me that he had 

called the MSHA office in Barbourville when he found that his vehicle could 

not be repaired in time for him to be at the hearing, but he was advised 

that MSHA's counsel, the reporter, MSHA's witnesses, and the judge had already left the building where the hearing was to be held. 

The personnel in MSHA's Barbourville Office have always adviseJ me 

promptly in the past when I have received telephone calls. I waited over 

30 minutes after the scheduled hearing time for Mr. Moon to appear before 

the hearing was convened, and I did not leave the hearing room for over an 

hour after the hearing had been scheduled to begin. Therefore, it is difficult for me to understand how Mr. Moon could have called me as soon as 

it became clear that his truck could not be repaired in time for him to 

appear at the 

Mr. Moon stated in his phone call to me on the evening of May 12 that 

his defense in this proceeding was that new equipment was tested at 

the when the citations were issued and that no coal was being processed. All of the civil penalties sought in this proceeding are for 

violations of section 104(b) of the Act because, according to the orders 

of withdrawal, respondent continued to operate its tipple after the withdrawal orders had been issued. There is nothing in the official file to 

explain why respondent would have continued to operate its , even for 

testing purposes, after withdrawal orders had been issued. 

Moreover, the four withdrawal orders involved in this proceeding have 

little relationship, if any, to the mechanical operation of the 

The foregoing statement is based on the fact that the underlying citations 

were for (1) failure to replace a shattered windshield in an end loader, 

(2) failure to provide a certified person to make· examinations for hazardous conditions, (3) failure to submit a noise survey as to two employees, 

and (4) failure to record the results of examinations of electrical equipment. 

In any event, the show-cause order gave the operator an opportunity 

to why he failed to respond to the prehearing order, why he failed 

to prompt notice of the fact that his truck had broken down, and why 

his defense of new equipment would have been relevant for avoidance of penalties for continuing to operate after withdrawal orders had 

been issued. 

Inasmuch as no to the show-cause order has been submitted, I 

find respondent to be in default for failure to appear at the hearing convened on May 12, 1982, and for failure to reply to the prehearing order 

issued February 5, 1982. Section 2700.63(b) of the Commission's rules 

provides that "[w]hen the Judge finds the respondent in default in a civil 

penalty proceeding, the Judge shall also enter a summary order assessing 

the proposed penalties as final, and directing that such penalties be paid. 11 

2035 
WHEREFORE, it is ordered: 

Billy Moon Tipple, having been found in default, is ordered, within 

30 days from the date of this decision, to pay civil penalties totaling 

$705.00 which are allocated to the respective alleged violations as 

follows: 

Citation No. 979886 11/13/80 § 104(b) cited in Order No. 

986079 issued 9/19/80 •.••••••...••..•••••...•.•..•..... $ 130.00 

Citation No. 979887 11/13/80 § 104(b) cited in Order No. 

986080 issued 9/19/80 .•.•.••.•...••..•••.•..••...•.••.. 150.00 

Citation No. 979889 11/13/80 § 104(b) cited in Order No. 

979888 issued 11/13/80 .•••...•••...............•.•..... 125.00 

Citation No. 983862 11/13/80 § 104(b) cited in Order No. 

986077 issued 9/19/80 .••••..•.......•••..•.....•..•..•. 300.00 

Total Civil Penalties Proposed by Assessment Office .....• $ 705.00 

Distribution: 

~e.r.32W4r Richard C. Steffey 

Administrative Law Judge. 

(Phone: 703-756-6225) 

Darryl A. Stewart, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 280, U. S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Billy W. Moon, Owner, Billy Moon Tipple, Box 314, Monteagle, TN 

37356 (Certified Mail) 

2036 
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. 

SHAMROCK COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. KENT 81-228 

A.O. No. 15-07212-03016 

No. 21 Mine 

DECISION 

Appearances: Carole M. Fernandez, Attorney, U.S. Department of Labor, 

Nashville, Tennessee, for the petitioner; Neville Smith, 

Esquire, Manchester, Kentucky, for the respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

This proceeding concerns a proposal for assessment of civil penalties 

filed by the petitioner agains_t the respondent pursuant to section 110 (a) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), 

charging the respondent with one alleged violation issued pursuant 

to the Act and the implementing mandatory safety and health standards. 

Respondent filed a timely answer in the proceedings and a hearing was held 

on August 25, 1982, in London, Kentucky, and the parties appeared and 

participated fully therein. 

Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulation as alleged in the proposal for assessment of civil penalty 

filed in this proceeding, and, if so, (2) the appropriate civil penalty 

that should be assessed against the respondent for the alleged violation 

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

In determining the amount of civil penalty assessments, section llO(i) 

of the Act requires consideration of the following criteria: (1) the 

operator's history of previous violations, (2) the appropriateness of 

203'/ 
such penalty to the size of the business of the operator charged, (3) 

whether the operator was negligent, (4) the effect on the opeFator's 

ability to continue in business, (5) the gravity of the violations, and 

(6) the demonstrated good faith of the operator in attempting to achieve 

rapid compliance after notification of the violations. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164, 

30 u.s.c. § 801 ~~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et~· 

Stipulations 

The parties stipulated to the following (Tr. 3-5): 

1. The subject mine is subject to the jurisdiction of the Act. 

2. At the time the citation issued in 1981, the mine had an 

annual coal production of 200,000 tons. 

3. The citation in question was issued by a duly authorized 

representative of the Secretary of Labor. 

4. The proposed civil penalty will not adversely affect the 

respondent's ability to remain in business. 

5. Once the citation was issued, the respondent acted in good 

faith in rapidly abating the cited conditions. 

6. Respondent's history of prior violations is reflected in 

petitioner's exhibit G-1, a computer print-out listing 

such violations. 

MSHA's testimony and evidence 

MSHA Inspector Joe M. Burke confirmed that he issued the citation 

in question on April 8, 1981, because of the failure by the respondent 

to drill a test hole in the roof as required by its approved roof control 

plan dated January 7, 1980. He identified the applicable portion of 

the plan as section 9, page 7, and indicated that it required a test 

hole to be drilled to a depth of 12 inches above the anchorage horizon 

of the bolts being used during each production shift. The plan also 

required that such a test hole be left open, plugged with a readily 

removable plug, or painted with a distinctive paint to identify it as a 

test hole (Tr. 7-10). 

2038 
Mr. Burke stated that when he arrived at the mine for his inspection 

at 3:05 p.m., the first production shift had just ended. He determined 

that no work had been done on the second shift when he arrived at the 

section, and section foreman Corbett Caldwell told him that the roof 

bolting crew had not been in the place in question during the second shift. 

While examining some loose roof bolts with Mr. Caldwell, Mr. Burke started 

looking for a test hole, but could not find one. Mr. Caldwell informed 

him that the roof bolting work had been done on the previous first s~ift. 

The nearest test hole which could be found was 150 feet back from the 

face. Since a fresh cut had been taken out of the number 1 working 

place, a test hole should have been made in that area, and Mr. Burke 

indicated that he issued the citation for the first shift which had just 

completed its work. Had the work been done on the second shift he would 

not have issued any citation. He did so because he considered that the 

roof work had been done on the prior shift (Tr. 10-16). 

Mr. Burke believed that the respondent should have been aware of the 

violation in that the first shift foreman should have conducted an 

examination of the roof for the oncoming second shift. Mr. Burke 

indicated that he checked the preshift record book and it did not indicate 

that any test holes were being drilled and it did not indicate any problems 

or roof abnormalities (Tr. 17). 

Mr. Burke stated that during his inspection he detected that 24 out 

of 30 roof bolts were not properly torqued, and he determined that this 

was due to the roof bolting machine being out of adjustment (Tr. 18). 

On cross-examination, Mr. Burke confirmed that out of the 51 feet 

mined in the number one entry of the 001 section, a fresh cut of approximately 

20 feet taken out in the number one working place was not bolted as yet, 

but 31 feet of the roof was bolted (Tr. 22). He examined the 51 feet 

working area and found no evidence of any test hole being drilled, and 

Mr. Caldwell told him that all of the work had been done on the previous 

shift (Tr. 25). Had the first shift drilled a test hole, Mr. Caldwell 

would have the entire remainder of the second shift to drill a test hole 

based on the amount of coal he produced during his shift (Tr. 26). 

Mr. Burke stated that the respondent's normal practice is to leave 

the test holes open and that on prior inspections at the mine he has 

observed such test holes drilled in the roof (Tr. 27). The purpose 

of such test holes is to determine the adequacy of the anchorage roof 

strata where the roof bolts will be installed (Tr. 30). A test hole was 

drilled in the area which had been permanently bolted in order to abate 

the citation, and this was done some five to ten minutes after he issued 

the citation (Tr. 33). 

Respondent's testimony and evidence 

James Napier, testified that he was the first shift foreman on 

April 8, 1981, and he stated that the required test hole was drilled 

2039 
in the first cut of coal taken out of the number one working place 

that day. The location of the hole was approximately 40 to 45 feet from 

the face area, ~nd the hole was left open but was not marked (Tr. 38-39). 

Mr. Napier testified that the test hole complied with the roof 

control plan and that he personally observed it after Mr. Burke's 

inspection immediately the next morning. The hole was drilled approximately 

10 feet inby the last open crosscut approximately five to six feet from 

the right rib (Tr. 40). He stated that when he learned that the citation 

had issued he asked the roof bolter to show him where he had drilled 

the test hole, and he personally saw that hole as 'well as the one which 

was drilled to abate the citation (Tr. 41). 

Mr. Napier confirmed that when he saw Mr. Burke 

the after the citation issued he advised him that the test hole had 

been drilled on the first shift (Tr. 43). He also confirmed that he 

told Mr. Caldwell that the test hole was drilled (Tr. 45). 

Corbett Caldwell, second shift section foreman, testified that on 

the day of the inspection he and Mr. Burke looked for the test hole and 

could not find it. The test holes are normally drilled through the middle 

of the roof, and in this case the hole had been drilled to the side. 

He determined that the hole had in fact been drilled when Mr. Napier 

advised him of this the next evening. He went to the area and found 

the hole and he indicated that it was hard to see because of the way 

the coal was cut. He indicated that this was the reason why he and 

Mr. Burke had not seen the hole during the inspection (Tr. 49). 

On Mr. Caldwell confirmed that he found the test 

hole precisely where Mr. Napier said it was drilled, and he indicated 

that he and Mr. Burke missed it because they were not looking in that 

area. He could not recall whether he should Mr. Burke the test hole 

after he discovered it (Tr. 51). 

Inspector Burke was called in rebuttal and he confirmed that when 

he returned to the mine the day after he issued the citation, Mr. Napier 

mentioned the test hole to him and indicated that one had been drilled. 

However, he could not recall Mr. Caldwell mentioning the test hole, nor 

could he recall looking for it on that day (Tr. 58). 

Mr. Burke stated that even if he had found a test hole the next day 

there would be no way that he could determine when it was drilled. He 

indicated that at the time of his inspection, the person who would have 

drilled the hole and the shift foreman had already gone home (Tr. 62). 

He also conceded that the test hole could have drilled as stated by Mr. Napier, 

and had he gone back to look the next day he would not have vacated the 

citation because he found none during his inspection (Tr. 64). 

2040 
Findings and Conclusions 

The citation issued in this case charged the respondent with a 

failure to follow its roof control plan requirement that a test hole 

be drilled in the roof on a horizontal plane of 12 inches. In its 

answer to the charges the respondent maintained that under the roof 

control plan the respondent was only required to drill such a hole 

sometime during the shift, and that the inspector acted prematurely 

by issuing the citation before waiting for the end of the shift. In 

short, respondent initially argued that the test hole would have been 

drilled had the inspector not acted hastily and prematurely (Tr. 6-7). 

At the hearing respondent's counsel stated that during his investigation of the facts surrounding the citation in preparation for trial he 

discovered evidence that the required test hole had in fact been drilled 

on the first shift. This evidence was presented at the hearing by 

testimony by the first shift foreman James Napier. I find Mr. Napier 

to be a credible witness, and I accept his testimony as proof of the 

fact that the test hole was in fact drilled, and I take hote of Inspector 

Burke's testimony that it was possible that the hole was drilled as 

testified to by Mr. Napier. 

It seems clear to me that on the facts of this case the inspector 

issued the citation because he found no test hole had been drilled on 

the first shift. He and the second shift foreman looked for the hole 

in an area where it would normally have been drilled. They apparently 

did not look at the area where the first shift foreman stated it was 

located. 

The pertinent roof control provision, paragraph nine, exhibit P-2, 

requires that a test hole he drilled during each production shift. 

Since no production had taken place on the second shift at the time of 

the inspection conducted by Inspector Burke on April 8, 1981, his citation 

was issued because he found no evidence that the test hole had been 

drilled on the immediate preceding first shift which had just ended. 

The roof area which had been completed on that shift was fully bolted 

(TR. 35-37). 

Conclusion and Order 

After careful consideration of all of the testimony and evidence 

adduced in this case, I conclude and find that the respondent 

has established that the required roof control test hole was in fact 

drilled as required by its plan. Under the circumstances, IT IS ORDERED 

that Citation No. 990824, issued on April 8, 1981, charging a violation 

of mandatory safety standard 30 CFR 75.200, IS VACATED, and this matter 

IS DISMISSED. 

/jf, '{/1-f;;J~. ·~ Kou ((,' tlfi.-ri;vc.,,4-:>q D:,_~ Administrative Law Judge 

2041 
Distribution: 

Carole M. FernaHdez, Esq., U.S. Department of Labor, Office of the 

Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Neville Smith, Esq., Smith & Emmons, 110 Lawyer Street, Manchester, KY 

40962 (Certified Mail) 

2042 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

RICHARD E. BJES, 

Complainant 

Discrimination Complaint 

Docket No. PENN 82-26-D 

v. 

Laurel Hine 

CONSOLIDATION COAL COMPAl:\r, 

Respondent 

DECISION 

Appearances: Carson Bruening, UMWA District #2, Edensburg, Pennsylvania, 

for the complainant; Jerry E. Palmer, Esquire, Pit 

Pennsylvania, for the respondent. 

Before: Judge Koutras 

This proceeding concerns a complaint of discrimination filed by 

the complainant against the respondent pursuant to section 105(c) of the 

Federal Mine Safety and Health Act of 1977. The complaint was filed with 

the Commission after the complainant was advised by MSHA that its investigation 

of hiscomplaint did not disclsose any discrimination under the Act. 

The complaint filed by Mr. Bjes in this case states as follows: 

I was removed from the mine at 7:30 p.m. on July 30, 

1981, and informed that I was being suspended with 

intent to discharge effective immediately for refusing 

to run a shuttle car, that in the opinions of the mine 

safety committee, Federal Inspector Charles Burke and 

myself was a hazard to myself and members of my crew. 

The problem was caused by my size and the lack of room 

in the car. A safety grievance and a regular grievance 

were then filed which sent the case into arbitration, 

The arbitrator's decision was that I would be suspended for 

30 working days. I feel that my individual safety 

rights were violated and that I was disciplined illegally 

under Federal law protecting my right to a safe working 

place. 

Respondent filed a timely answer denying that it had discriminated 

against Mr. Bjes, and asserting that the action taken him was a 

result of insubordination because of his failure to comply with a direct 

management order to operate the shuttle car in question. 

2043 
A hearing was conducted in this matter in Pittsburgh, Pennsylvania, 

on April 6, 1982, and the parties appeared and part 

The parties filedpost-hearing briefs, and the arguments 

have been considered by me in the course of this decision. 

Issues 

The principal issue presented in this case is whether Mr. 

refusal to operate the shuttle car in question was protected act 

the Act, and whether respondent's disciplinary action taken 

therein. 

therein 

for this refusal is discriminatory under the Act. Additional issues 

raised by the parties are identified and discussed in the course of this 

decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301 

2. Sections 105 (c) (1), (2) and (3) of the Federal Mine 

Health Act of 1977, 30 U.S.C, §§ 815(c)(l), (2) and (3). 

3, Commission Rules, 29 CFR 2700.1 et 

Complainant's Testimonv and Evidence 

and 

Richard Bjes testified that on July 30, 1981 he was ordered to 

operate the number 9 shuttle car, but he found it uncomfortable and he 

was unabl2 to reach the brake pedal with his leg and he could not steer 

with his hand because his leg was in the way. He advised the shift 

boss of his difficulties, but was told to try and operate it anyway and he 

operated the machine for the remainder of the shift. However, the machine 

had to be shut down for repairs for two hours because he ripped off 

some motor hoses while trying to manuever the machine in the section. 

The car in question is a low profile machine and then he experienced 

difficul in reaching the controls so as to facilitate backing in and 

out of areas where pillar extraction was taking place. After the shift 

was over he discussed the matter with a safety committeeman and with 

mine foreman Hofrichter. After his discussion with Mr. Hofrichter, he 

was under the impression that someone else would be assigned to the low 

profile machine and that he (Bjes) would be assigned to a high profile 

car which had more room under the operator 1 s overhead canopy. 

After returning to work the next day, Mr. Bjes stated that he told 

the section boss that he was not going to operate the low profile car 

and that he was supposed to operate the high profile one instead. After 

checking with the office, his boss told him he was to operate the low 

profile machine, and when Mr. Bjes refused to operate it Hr. Hofrichter 

and the safety committeeman came to the section and Mr. Bjes demonstrated 

2044 
the problem he had operating the machine. They did not agree with him, 

and federal inspector Charles Burke was called to the scene to look at 

the machine with another safety committeeman, and Mr. Bjes claims they 

agreed with his position that he could not safely operate the low profile 

shuttle car. When he asked management to assign him to other duties pending 

a resolution of the dispute, he was informed that he was under suspension 

with intent to discharge and was sent home (Tr. 15-19). 

Mr. Bjes stated that after returning to work after his suspension, 

he was assigned to the same low profile shuttle car and attempted to 

operate it. He did so because he lost his arbitration case concerning 

his initial refusal to operate the machine. He ran the car for two hours 

but was injured when he struck his knee on the steering wheel while attempting 

to stop the machine while pulling in behind a continuous mining machine. 

He suffered a fractured knee cap and torn ligaments, underwent an operation, 

and was incapacitated for five months. Mr. Bjes stated further that 

Inspector Burke's accident report reflected that the injury was caused 

by his leg being positioned above the steering wheel, and instead of 

going outside the wheel when he attempted to stop the machine, his leg 

went inside, thereby causing his injuries (Tr. 20). 

On cross-examination, Mr. Bjes confirmed that he had worked for 

the respondent for some six years. He also identified the machine he refused 

to operate as a standard low profile shuttle car, and stated that there 

were two additional cars operating in the section at the same time, one a 

low profile machine and one a high profile machine. Prior to July 1981, 

he operated a scoop in the four east section, but would "fill in" as a 

shuttle car operator when the regular operator did not show up for work. 

He estimated that he operated a shuttle car on and off for six months 

prior to July 1981, but always on a "fill in" basis. His regular job 

classification was as a scoop operator and he operated a scoop 95 percent 

of the time and the shuttle car five percent of the time (Tr. 25). 

Mr. Bjes confirmed that prior to July 1981, he operated the other 

low profile number 10 car, and while he complained to management that 

the machine was too small, he did not invoke his safety rights. He also 

stated that he regularly operated the high profile number four machine 

until July 27 or 28 when the regular operator returned to work, and he 

(Bjes) was reassigned to the low profile car. Mr. Bjes confirmed that 

he understood that seniority on his crew dictated that he would be 

required to operate the number 9 shuttle car, but that he decided it 

was unsafe during the course of the shift and not when the regular 

operator (Wall) returned to work (Tr. 27-29). 

Mr. Bjes indicated that the number 9 machine was not defective, 

and he explained how he tore the hose off the machine on July 28th 

while operating it in the section. He reported the damage to section 

foreman Wayne Ross, and he stated that Mr. Ross told him to get off the 

machine because he could not steer it around the corner. Mr. Bjes also 

confirmed that when he met with Mr. Hofrichter, both he and safety 

committman John Adams were left with the impression that he could switch 

to the higher profile machine (Tr. 34). 

2045 
Mr. Bjes stated that he is six feet one and a half inches tall 

and weighs 195 pounds, and that he has observed shuttle car operator 

Richard Shaffer operate the low profile machine. Nr. Shaffer is six 

feet, three or four inches tall and weighs 200 pounds, and Mr. Bjes stated 

he has observed him operate the machine, but does not believe he can 

do it safely since he does not consider it safe "when you have to operate 

it with your knees under your chin" (Tr. 35). 

Mr. Bjes stated that at the time Mr. Ross removed him from the 

machine he did not tell him of his injury and that Mr. Ross assigned him 

to some belt work. Mr. Bjes walked to the belt and commenced shovelling 

work, but did not report his injury because "if we would report every 

little injury we get during the course of the shift we wouldn't get 

any work done" (Tr. 37). He indicated that at the time of his ury 

he thought he had simply !!twisted his knee up a little bit" and commented 

that this 1'happens all the time in the mines" . 3 7). 

On Mr. es stated that a "few people" had previously 

been removed shuttle cars because of their size and inability to 

operate the machines, and that there had never been any questions about 

it and no disciplinary action was ever taken t them. He confirmed 

that Consol did not contest his injury compensation claim, and that mine 

management found that the cause of the accident was that he was "injured 

while operating the shuttle car and my left knee struck the steering 

wheel" (Tr. 38-39). 

In response to bench questions, Mr. Bjes identified one Mike Wyatt 

as an operator taken off the same machine two years ago because.he c.ould 

not safely operate it. He also stated that "everybody that run that 

shuttle car complained that it was too small no matter what their size was" 

(Tr. 40). He also indicated that the problems with low profile shuttle 

cars has been discussed at union committee meetings and that he 

invoked "his individual safety rights and I got fired for it so I guess 

everybody is afraid to do anything" (Tr. 43). He also c_onfirmed that 

"nobody ever refused to run it because it was unsafe. Everybody just 

went ahead and said, I guess I'll just run it, to keep out of trouble" 

(Tr. 43). He described his actions after he was injured as follows 

(Tr. 44-46): 

JUDGE KOUTRAS: And then you went ahead---

THE WITNESS: I went home. 

JUDGE KOUTRAS: No, what was the---

THE WITNESS: They carried me out on a stretcher. 

JUDGE KOUTRAS: Let me see if I can---you hit your 

knee on the shuttle car and you got off. And were you 

assigned to shovel coal then? 

204f) 
THE ~ITNESS: I couldn't do it, that's why I was only 

there for such a short time and I was looking for the boss 

and couldn't find him so I went and sat by the pole until he 

came back. 

JUDGE KOUTRAS: Okay, so you weren't assigned to shovel 

coal for any extended period of time? 

THE WITNESS: No. 

JUDGE KOUTRAS: Okay. 

THE WITNESS: I didn't even finish what I was supposed to 

do. 

JUDGE KOUTRAS: And then you were carried out of the mine 

on a stretcher? 

THE WITNESS: Yes, sir. To the hospital. 

JUDGE KOUTRAS: And you were diagnosed as having a fractured 

knee cap? 

THE WITNESS: At the emergency room diagnosed it as a 

possible fracture and torn ligaments with sprain or something. 

JUDGE KOUTRAS: It wasn't actually torn ligaments of 

fracture, just possible but, in any event you were incapacitated, 

right? 

THE WITNESS: Right. 

JUDGE KOUTRAS: How long were you off work? 

THE WITNESS: Five and a half months I think it was. 

JUDGE KOUTRAS: Due to that ury? 

THE WITNESS: Yes, sir. I ended up getting operated on and 

the recovery after that. 

Mr. Bjes stated that his salary as a scoop operator was the same as 

that of a shuttle car operator. He also indicated that he volunteered 

to accept other work after refusing to run the shuttle car, and that he 

would also accept a lower paying job or take alternate work while his 

dispute was being resolved (Tr. 52). 

204'7 
Richard Borella, testified that he is employed by the respondent 

and also serves as chairman of the mine safety committee. He confirmed 

that prior to the instant litigation, Ray Siefert was taken off the 

shuttle car because he could not operate the car safely and efficiently 

due to his size and he was not disciplined for this. Mr. Borella confirmed 

that he was present on July 30, 1981, in the section in question with 

Federal inspector Charles Burke and Mr. Bjes. Mr. Bjes demonstrated 

the problem he was having with the shuttle car in question. Mr. Bjes 

had great difficulty in reaching the brake, and when he did so his left 

foot would get above the steering wheel itself which in turn created 

a problem in steering the machine. Mr. Borella stated that Inspector 

Burke indicated to him that because of his (Borella's) size, he couldn't 

run the machine safely. Mr. Borella indicated that Mr. Burke sat in 

the machine and also took some measurements, and commented that it was 

possible to make some modifications to the machine to alleviate the 

size problems (Tr. 54-56). 

Mr. Borella confirmed that after Mr. Burke looked at the machine, 

he (Borella) advised Mr. Bjes that he agreed with his conclusion that 

he could not operate the car , and that he did so on the assumption 

that the machine could be modified to permit Mr. Bjes to operate it safely. 

Mr. Borella also indicated that he made his recommendations concerning 

machine modifications to Mr. Hofrichter. When Mr. Hofrichter rejected 

his recommendations as invalid, he (Borella) advised Mr. Bjes that he 

should not operate the machine and indicated that "we will go through 

whatever actions being necessary to alleviate this problem" (Tr. 57). 

Mr. Borella confirmed that he was not disciplined for advising Mr. Bjes 

not to operate the machine, and he believed that he acted withi~ hi~ 

jurisdiction as a safety CPJJ:mitteermn in advising Mr. Bjes not to operate 

the machine (Tr. 59). He also confirmed that he specifically suggested 

to Mr. Hofrichter that Mr. Bjes be taken off the machine, reassign 

him to another machine, or ass him other work (Tr. 60). However, 

management believed they had the right to ass him to the same machine, 

and he confirmed that the arbitrator denied Mr. Bjes' relief because 

the arbitrator did not believe that his operation of the machine 

constituted an imminent danger (Tr. 62). 

Mr. Borella confirmed that he was aware of the fact that Mr. Bjes 

was injured upon his return to work, but does not have a copy of the 

accident report. He also confirmed that some modifications were made 

to the machines but that operators still complained with operational 

problems while running them. Management took the position that they 

could purchase any equipment they desired, and the union's position 

was that the men would operate the machines if they can do so 

(Tr. 63). He believed that Mr. Bjes had a legitimate reason for refusing 

to operate the machine even though the arbitrator did not believe that 

an imminent danger existed under the contract, and he believed "it was 

just foolish to even consider to make somebody do something that they 

feel is unsafe when there is a way that can be alleviated (Tr. 65). 

On cross-examination, Mr. Borella stated that it was not necessary 

to purchase low profile shuttle cars for the four east section. The 

2048 
mine has two low profile cars and they both operate in that section, and 

have been continuously operating in the section since July 1981 (Tr. 66). 

The low profile.cars in question have been the subject of. discussions 

at union meetings and "just about everybody that run them has some problems 

because of their size. But, Rich's was getting to the point that it was 

unsafe, totally unsafe" (Tr. 67). Some of the operator's are smaller 

in stature that Mr. Bjes, and some are larger, and he conceded that none 

of the other operators have invoked their safety rights (Tr. 68). 

He believed Mr. Bjes acted in good faith in asserting his rights, and he 

described some of the problems in operating the low profile car (Tr. 69-71). 

He conceded that Mr. Bjes' complaint about the car in question seems 

to be peculiar to him and that no one else complained to the point where 

they intended to shut the machine down and invoke their individual 

safety rights (Tr. 74). He concurred in Mr. Bjes' judgment that he 

could not operate the machine (Tr. 74). He confirmed that Mr. Seifert 

is six feet five inches tall and weighs 260 pounds and is significantly 

larger that Mr. Bjes . 75). 

Respondent's Testimony and Evidence 

section foreman, testified that Mr. Bjes was first 

assigned to his crew on Monday, July 27 1981, and that the next day the 

crew was working in the four east section on retreat mining work. He 

identified a scale map of the section (exhibit R-1), and testified as 

to where mining work was taking place, including the areas where the 

shuttle cars were operating (Tr. 114-119). Mr. Ross indicated that three 

shuttle cars were operating on the section at that time, and he identified 

them as car numbers four, nine, and ten. The number four car is the 

high profile off-standard car, the number nine is a low profile standard 

car, and the number ten is a low profile off standard car. On July 28th, 

cars four and nine were used and the mine operator purchased the two low 

profile cars because of the height of the coal. Mr. Bjes was operating 

the number nine car on July 28th, and Tim Peterman was operating the 

number four car, and he did not make the initial car assignments. The 

senior operator has his choice of cars (Tr. 119-121). 

Mr. Ross testified that during the shift on July 28, Mr. Bjes advised 

him that he was running his machine only in low gear, and Mr. Ross believed 

that it was due to a bad trammer. He observed nothing out of the ordinary 

with regard to the manner in which Mr. Bjes was operating the machine and 

he observed him make two or three trips prior to his making the statement 

concerning low gear. Mr. es also stated to him that he "could not 

understand why the company buys junk", and when afternoon shift foreman 

Bill Ross visited the section that day he discussed Mr. Bjes' comments 

with him (Tr. 124). Mr. Wayne Ross confirmed that the machine was down 

during the shift, and a report he identified reflected tttat it was down 

for 45 minutes because of a damaged hydraulic hose on the torque converter, 

and he explained that the damage occurred when the machine ran over a large 

lump of coal 011 the tram road (exhibit R-2; Tr. 125). Mr. Ross identified 

a schematic dJ~·awing of the shuttle car, explained where the damage was 

sustained, and indicated that it was not caused by the car running into 

the coal rib (exhibit R-3; Tr. 127). 

2048 
Mr. Ross testified that his crew worked again on July 29th in the 

four east section and before the shift began he discu.ssed Mr. Bj es' 

comments made the day before with Mr. Hofrichter and Mr. Hofrichter responded 

"we will just have to see how it goes" (Tr. 128). When the shuttle cars 

did not show up, Mr. Ross went to locate them and found Mr. Bjes and 

Mr. Peterman engaged in a conversation. At that time Mr. Bjes advised 

him that he was not going to operate the number nine car because it 

was unsafe and this was the first time Mr. Bjes had made that claim to 

him. When he asked Mr. Bjes to explain, Mr. Bjes told him that he was 

having trouble working the pedals, and he refused to operate the machine 

and advised Mr. Ross that he was invoking his individual safety rights. 

Mr. Peterman then refused to operate machine number nine and stated that 

"if Bjes didn't have to run number nine car he didn't have to run it 

either" (Tr. 129). However, Mr. Peterman agreed to operate the machine 

after Mr. Ross advised him he was going to find out what was going on. 

Mr. Ross stated that his crew worked again on Thursday, July 30, 

and that he discussed Mr. Bjes 1 refusal to operate his machine with Mr. Hofrichter, 

and the three of them had a meeting that same day. Mr. Bjes was assigned 

alternate work, and during the rest of the day meetings were held between 

representatives of the safety committee, mine management, and a federal 

inspector. At no time did Mr. Ross hear Mr. Bjes offer to operate the 

number 10 shuttle car. Mr. Ross expressed an opinion that Mr. Bjes 

operated the number four car safely during the entire shift of July 28, 

and he saw no problems with Mr. Bjes operating the car. Another operator, 

larger than Mr. Bjes, operated the number nine car without any problems 

for two or three months in the section and he identified him as Dave Monteith. 

Mr. Ross stated that Mr. Bjes returned to work on September 14, 1981 

and was assigned to his crew on the same four east section operating the 

number nine shuttle car. Mr. Peterman was operating the number four car 

at this time. After a couple of trips, the miner operator (Cecil Wall) 

asked him to take Mr. Bjes off the car because he (Wall) thought that 

Mr. Bjes was not trying to operate it safely during the retreat mining 

which was going on. He immediately removed Mr. Bjes from the machine 

and explained to him that Mr. Wall had complained that he wasn't trying 

to operate it safely, and Mr. Ross agreed with Mr. Wall that this was 

the case (Tr. 133). Mr. Ross then reassigned Mr. Bjes to labor work 

shovelling the belt, and Mr. Bjes did not inform him about any injuries 

at that time (Tr. 134). 

Mr. Ross stated that after assigning Mr. Bjes to belt work, he 

observed him walking toward the belt area and that he was "walking fine". 

About an hour later when he discovered that the belt was not running, he 

went to see why and observed Mr. Bjes sitting by the power center. 

Mr. Bjes advised him that he had injured his knee and Mr. Ross summoned 

shift foreman Bill Ross to come to the area and take Mr. Bjes away. 

Mr. Bjes was taken away on a stretcher and Mr. Wayne Ross could not explain 

how Mr. Bjes was injured, but he did not believe he was injured on the 

steering wheel of the car because Mr. Bjes had complained that his knee 

was positioned above the steering wheel (Tr. 135). Mr. Wayne Ross confirmed 

that Bill Ross is his brother (Tr. ·137). 

2050 
Mr. Ross confirmed that Mr. Bjes had never 

to run equipment or to do what was expected of him 

during the time·that he worked for him. He also denied that mine 

had rever warned him to "watch out" for Mr. Bjes (Tr. 138). In 

Mr. Wall's complaints about the manner in which Mr. Bjes 

machine, Mr. Ross stated as follows (Tr. 141-142): 

JUDGE KOUTRAS: Mr. Wall was running a continuous 

mining machine? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Mr. Bjes was running a shuttle car? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS 

loading process? 

And the two work in tandum? The 

THE WITNESS: Yes, sir. Once Mr. Bjes got three 

loaded he put on a show, crawled out of the buggy--

JUDGE KOUTRAS: Now, wait a minute, don't characterize hirr: 

as a b show just tell me what he did. 

THE WITNESS: Okay, he took his time changing around positions 

in the seat. 

JUDGE KOUTRAS: Okay. 

THE WITNESS: Mr. Wall felt that it was unsafe. He didn't 

want to do it that way. 

JUDGE KOUTRAS: Do what? Change seats? 

THE WITNESS: No, the way he was doing it. 

JUDGE KOUTRAS: And how was that? 

THE WITNESS: You can't turn around and you can turn around 

quick, which is the way you have to do it. But, Mr. Bjes didn't 

want to do it quick. He wanted to take his time. 

Mr. Ross confirmed that Mr. Peterman was not disciplined for initially 

refusing to run his machine because he gave him a second opportunity, 

as he did Mr. Bjes, and he ran it (Tr. 143). He confirmed that in retreat 

mining the continuous miner operator wants the shuttle car to get out 

as quickly as possible because all the coal is gone and it will cave in, 

and the fact that one car operator is not as swift as another is cause 

to take him off the car. When asked to explain why Mr. Bjes could not 

move in and out as quickly as other operators, Mr. Ross stated that it 

was his opinion that Mr. es did not want to because he did not want 

to run the number nine car and Mr. Ross believed he was "sluffing off" 

and wanted to make an issue over it. However, he could not explain why 

Mr. Bjes had not done this earlier (Tr. 145-146). 

2051 
Mr. Ross did not dispute the fact that when Mr. Bjes operated the 

number four shuttle car, his knee was up in his face, but he disputed 

Mr. Bjes' claim that he had difficulty in reaching the brake pedal 

(Tr. 150). Mr. Ross also confirmed that he looked at Mr. es' knee 

when he claimed he had been injured, observed a red mark but nothing unuslial, 

and noticed no swell (Tr. 151). Mr. Ross did not follow up on Mr. es' 

condition after he was taken away on a stretcher, and he subsequently 

learned that he had fractured his knee cap (Tr. 151). Regarding 

Mr. Peterman 1 s reluctance to operate the shuttle car, Mr. Ross stated as 

follows (Tr. 152-153): 

JUDGE KOUTRAS: Okay, this conversation with Mr. 

Peterman now, I take it since Mr. Peterman had seniority 

on Mr. es, that he would have the selection of which 

machine to operate, correct? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And when Mr. Bj es suggested that 

he wasn 1 t going to operate the number nine machine, 

you wanted to get on with your production, you wanted 

to the matter resolved, you wanted to go ahead, 

you suggested that Mr. Peterman make a switch for the 

time being, is that the way it was? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And Mr. Peterman did not object? 

THE WITNESS: At first he did, yes. 

JUDGE KOUTRAS: And that's when he made the comment, 

well, if he doesn't have to run it, why do I? 

THE WITNESS: Right. 

JUDGE KOUTRAS: And his reluctance to run it would 

be on what, do you have any idea as to why Mr. Peterman 

made that statement? Did he independently believe 

that he would be unsafe? Or is it simply that how come 

you are treating him different than me? 

THE WITNESS: I feel that it was like, you know, why 

should he get special treatment. If he doesn't have to 

run it why should I? There was no question of safety with 

Mr. Peterman at all. 

JUDGE KOUTRAS: And so, he made the agreement to make 

the switch? 

THE WITNESS: Yes, he did. 

2052 
William A. Ross, shift foreman, testified that he has known Mr. Bjes 

for six years and that Mr. Bjes worked for him from time to time as a 

general laborer during weekend "dead work". He confirmed that he went 

to four east section on July 28, 1981, spoke with section foreman Wayne Ross, and 

observed Mr. Bjes operate the shuttle car. He observed nothing unusual while 

observing him load three shuttle cars and watching him unload the cars 

at the dumping point. He then flagged him down and inquired about the 

!!problems" he was having with the car and Mr. Bjes explained that he 

couldn't run the car in second gear. When Mr. Bjes began to show him 

by moving his feet, Mr. Ross was called to the phone and left the area 

(Tr. 160). He next returned to the section on July 30, in the company 

of Inspector Burke and safety committeeman Borella. He heard Mr. Burke 

comment that he observed no imminent danger and that he (Burke) saw no 

reason why Mr. Bjes or anyone else could not operate the car safely. He 

has observed other men bigger than Mr. Bjes operate the number nine car 

with no problems, and he never heard Mr. Bjes volunteer to operate the 

number ten car (Tr. 161). 

On cross-examination, Mr. Ross explained that "running the car in 

second gear" means that the car is operated in a faster mode. Mr. Ross 

stated further than when Mr. Bjes told him he was not going to run the 

car in second gear, he said nothing to him and had no time to evaluate 

the situation. However, he did recall Mr. Bjes explain that he could 

not reach the machine brake pedals while driving the machine faster 

(Tr. 166-167). 

Thomas Hofrichter testified that in July 1981, he was the mine 

foreman and acting superintendent at the mine in question, and that he 

is still serving as acting superintendent. He confirmed that he suspended 

Mr. Bjes in July 1981, with intent to discharge him, and he identified 

letters given to Mr. Bjes concerning the suspension and discharge (Exhs. 

R-4, R-5). He also confirmed that Mr. Bjes was discharged for insubordination 

for refusing to operate the number nine shuttle car in the four east 

section. Mr. Hofrichter also identified a copy of the "'employee conduct 

rules" which are posted at the mine (Exh. R-6), and indicated that rule 

No. 4 covers insubordination for refusal to perform work assigned or to 

comply with a supervisor's direction (Tr. 168-170). 

Mr. Hofrichter confirmed that Mr. Bjes filed a grievance concerning 

his suspension and that it went to arbitration. He indicated that Mr. Bjes 

received a thirty-day suspension rather than being discharged, and that 

the arbitrator issued this penalty because it was a first time offense, no 

previous bad work record by Mr. Bjes, and the arbitrator's "confusion" 

as to whether the case before him was a safety grievance or an arbitration 

case (Tr. 171). 

Mr. Hofrichter testified that he first learned of any potential 

problem with the shuttle car in question on Wednesday, July 29, 1981, 

when Mr. Wayne Ross advised him that Mr. Bjes was having a problem with 

the car. Mr. es came to see him in the company of safety committeeman 

205;3 
John Adams and advised him that he was having problems operating the 

number nine car and asked if there was something he could do to aleviate 

the problem. During the ensuing discussions, problems concerning the 

machine seat location and canopy heights were discussed, as well as 

whether or not Mr. Bjes could be switched to another car. Mr. Hofrichter 

advised Mr. Bjes that he would look at possible solutions, including to 

switch Mr. Peterman, but indicated that Mr. Peterman was the senior man 

and would have the choice as to which car to operate (Tr. 173). The next 

day, Mr. Ross advised him that Mr. Bjes refused to run the car and had 

indicated that Mr. Hofrichter told him that he did not have to because 

he would switch to another car. Mr. Hofrichter advised Mr. Ross that 

this was not the case, and that he told Mr. Bjes that he was to operate 

the car until a solution to the problem was reached. Another meeting was 

held that day with Mr. Bjes, and union and management people were present. 

Mr. Bjes again stated that he would not run the car because he did not 

believe it was safe, and Mr. Hofrichter advised him that his intent was 

not to effect an immediate switch, and that Mr. Bjes was to the 

car until the problem was solved. Mr. Bjes then informed him that he 

was invoking his safety rights and refused to operate the machine (Tr. 174-175). 

Mr. Hofrichter stated that after the aforementioned meeting, the 

union representatives advised him that they would summon Federal Inspector 

Burke to the mine to look at the machine. Later that , he entered 

the mine with the union safety committeemen and, a company maintenance 

foreman, and Mr. Bjes was summoned to the face area_ where the number 

nine shuttle car was parked. The operator pulled it back into the roadway 

and Mr. Bjes sat in the car and demonstrated his problem with operating 

the machine. Mr. Bjes sat in the seat facing inby, and operateq the_brake 

pedal, the tram, and ehe steering wheel. He then sat in the seat facing 

the opposite direction (outby) and did the same thing. However, at that 

point Mr. Bjes advised him that he had no problem in that position, but 

that his problem was in sitting facing inby, and in that position he 

expe~ienced a problem in turning the seat and that he couldn't stand 

the canopy when he turned. Safety committeeman Adams was asked whether 

he saw any imminent danger connected with the problems demonstrated by 

Mr. Bjes and replied "no". Mr. Hofrichter then climbed into the car and 

had no problems with it and he stated that he "really didn't understand 

the problem" (Tr. 177-178). 

Mr. Hofrichter stated that when Inspector Burke arrived to 1 ook 

at the car in question, he announced that he was there to determine whether 

an imminent danger existed and he proceeded to climb into the car and 

take measurements. He also asked Mr. Bjes to demonstrate any problems, 

and Mr. Burke then concluded that no imminent danger existed, and advised 

Mr. Bjes that it was safe for him or anyone else to run the machine 

(Tr. 179). Safety committeeman Borella also agreed that no imminent 

danger existed, but Mr. Hofrichter conceded that both Mr. Borella and 

Mr. Burke did comment that some "hazards" and "problems" did exist with 

the operation of the machine. He explained that these problems were in 

connection with the canopy height, the seat location, and the possible 

relocation of the machine brake pedals, but that Mr. Burke advised him 

there was nothing he could do about these items and that it was "between 

you and the men as far as what solutions you come up with" (Tr. 180). 

Mr. Hofrichter explained what transpired next, as follows (Tr. 181-182): 

2054 
We went through the discussion and we really couldn't 

resolve th~ problems at hand, there wasn't anything 

that since Rich had run the car before that there was anything that was abnormally hazardous to him in operating 

that car. And he could continue to that car until 

such a time that we could look at the possibility of making 

it more comfortable for him by making these changes. 

At that time I had made the decision that it's safe 

for Rick Bjes to run that car and he was in turn going to. 

There was still more discussion among all the people there 

because, as I say, there were 

I tried to communicate with all the people that were 

there at the time. So then Ross came up to me and asked 

well, what are we going to do? I said, as far as I'm 

concerned we've been through it all and Rich is going to 

run that shuttle car. 

In the mean time Rick Borella, John Adams had walked 

down the track and I went over to Rich and said, you know we 

have been through this all now, it's time to get on the 

shuttle car and go. 

He said, no, I'm not that shuttle car, 

it's not safe for me to run. He left, he went down the 

track and got Rick Borella and John Adams, they came back 

up and asked me are you suspending Rick with the intent to 

discharge. I said, yes, I am. Because we've been through 

the full gambit, I've done everything that I thought was 

physically and practical at the time and it's been resolved 

and Rich is to get back on the car. 

Rick said that as a member of the committee 

that he was recommending that Rich not run that car. Now, 

is a good time to tell him that I had made the 

decision that Rich was going out of the mine and so we proceeded out of the mine then. 

Mr. Hofrichter indicated that the number nine and ten shuttle cars were 

practically identical, and that at no time did Mr. Bjes offer to operate 

the number ten car, and his refusal to operate one car was the same as 

not operating the other one (Tr. 183). Mr. Hofrichter believed that Mr. Bjes 

would have encountered no hazards in operating either car, and he indicated 

that people of his size have both cars on a regular basis with 

no problems (Tr. 186-187). When asked whether he believed that Mr. es 

was acting in good faith when he refused to operate the car, Mr. Hofrichter 

(Tr. 187): 

2055 
A. No, not at all. 

Q. What is the basis for your opinion? 

A. It was right at the time that Wayne Ross was the 

new section foreman, Rich Bjes was just in the process of 

just being bumped back from the number four shuttle car to 

the number nine shuttle car. 

He saw the potential of operating number nine car 

until he was able to bid off. And there reaily that 

many bids available, there weren't any bids available at 

the time and he could see himself positioned in four east, 

in a retreat section, under Wayne Ross operating number 

nine. And it was not something that he totally chose to 

do and this was his only way out. 

On cross-examination, Mr. Hofrichter testified as to the dimensions 

of the machine, and he confirmed that at the time of the meetings underground with the union representatives, safety cornmitteman Borella did 

recommend that Mr. Bjes be removed from the machine in question in accordance 

with the contract terms (Tr. 193-201). When asked to explain why some 

machine operators were permitted to be taken off their cars, while others 

were not, Mr. Hofrichter responded as follows (Tr. 204): 

A. It's a simple fact that the eyes of managers 

same as all the other foremen at that mine to make the 

decisions as far as what is safe and what is not safe, 

what is practical, what is efficient for the operation 

of the mine. You see a guy operate and say yes, he 

can run a machine or no, he can't run a machine. That's 

managements decision to make that determination. And in 

the case with the other ones it was decided that they weren't 

capable of running the machine, so they were taken off. 

Joseph Grosholz, section foreman, testified that Mr. Bjes worked 

under his supervision from October 1980 to July 1981, in the four east 

section. He was initially classified as a scoop operator but operated 

a shuttle car on and off filling in for the regular operator. Sometime 

in January 1981, Mr. Bjes asked to be assigned to the number four shuttle 

car since he had seniority over the operator at that time. Mr. Hofrichter 

approved the switch and Mr. Bjes was assigned as a shuttle car operator. 

He operated the number ten car at times, and it too was a low profile car. 

The number ten and nine cars were originally in the section, but after 

the number four car was purchased, it replaced the number ten car which 

was taken out of service to use as a spare. Mr. Bjes operated the number 

ten car without any problem and never claimed it was unsafe (Tr. 229-234). 

Mr. Grosholz indicated that there is no basic difference between the 

operating parameters of the number nine and ten shuttle cars other than the 

fact that one is a standard car and the other an off-standard (Tr. 235). 

2056 
Discussion 

As indicated earlier, the issue presented in this proceeding is whether 

Complainant Bjes' refusal to run the No. 9 shuttle car at the Laurel Mine 

on Thursday, July 30, 1981, is protected by § 105(c) of the Act. Refusal 

to perform work is protected under section 105(c)(l) 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/Fasula 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 

(3rd Cir. 1981);-8e~tary of Labor/Robinette v. United Castle Coal Co., 

3 FMSHRC 803, 2 BNA MSHC 1213 (1981); Bradley v. Belva Coal Co., 4 FMSHRC 

982 (1982). Further, 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 considering the effect of a previous arbitration decision which 

had denied Fasula's claims of discrimination, the Court, at 663 F.2d 

1219, made the following observation: 

In this case, the considerations underlying the 

standards of gravity of injury in the Wage Agreement 

and in the statute are different. The Wage Agreement 

requires the arbitrator to determine whether the 

hazard was abnormal and whether there was imminent 

danger likely to cause death or serious physical harm. 

The underlying concern of the Mine Act, however, is 

not only the question of how dangerous the condition 

is, but also the general policy of anti-retaliation 

(against the employee by the employer). Because this 

is a major concern of the Mine Act, it requires proof 

merely that the miner reasonably believed that he 

confronted a threat to his safety or health. Those who 

honestly believe that they are encountering a ·danger to 

their health are thereby assured protect~on from 

retaliation by the employer even if the evidence 

ultimately shows that the conditions were not as serious 

or as hazardous as believed. Questions of imminence and 

degree of injury bear more directly on the sincerity 

and reasonableness of the miner's belief. (emphasis 

added) 

In a detailed footnote at 663 F.2d 1216-1217, the Fasula Court discussed 

the right of the miner to refuse work, and although the Court did not 

state any specifics, it did agree that there was such a right in general 

when it stated: 

Thus, although we need not address the extent 

of such a right, the statutory scheme, in conjunction 

2057 
with the legislative history of the 1977 Mine 

Act, supports a right to refuse work in the event 

that the miner possesses a reasonable, good faith 

belief that specific working conditions or practices 

threaten his safety or health. 

Id. at 1217 n. 6. 

In Pasula the Commission established in general terms the right 

of a miner to refuse work under the Act, but it did not attempt to define 

the specific contours of the right. In several decisions following Fasula, 

the Commission discussed, refined, and gave further consideration to questions 

concerning the burdens of proof in discrimination cases, "mixed-motivation 

discharges", and "work refusal" by a miner based on an asserted 

hazard. See: MSHA ex rel. v. 

VA 79-141-D, April 3, 1981, ~!SHA ex rel. Johnnv 

Co WEST 79-349-DM, November 13, 1981. 

In the Commission ruled that any work refusal by an 

employee on safety grounds must be bona fide and made in good faith. 

"Good faith' 1 is interpreted as an "honest belief that a hazard exists", 

and acts of deception, fraud, lying, and deliberately causing a hazard 

are outside the "good faith 11 definition enunciated by the Commission. 

In addition, the Commission held that "good faith also implies an accompanying 

rule requiring validation of reasonable belief", but that "unreasonable, 

irrational or completely unfounded work refusals do not commend themselves 

as candidates for statutory protection' 1 • 

In fashioning a test for application of a "good faith" work refusal, 

the Commission rejected the "objective, ascertainable evidence 11 test laid 

down in Gateway Coal Co. v. Mine Workers 414 U.S. 368 (1973), and instead 

adopted a '1reasonable belief rule, which is explained as follows at 3 

FMSHRC 812, April 3, 1981: 

More consistent with the Mine Act's purposes 

and legislative history is a simple requirement that 

the miner's honest perception be a reasonable one under 

the circumstances. Reasonableness can be established 

at the minimum through the miner's own testimony as 

to the conditions responded to. That testimony can be 

evaluated for its detail, inherent logic, and overall 

credibility. Nothing in this approach precludes the 

Secretary or miner from introducing corroborative physical, 

testimonial, or expert evidence. The operator may 

respond in kind. The judge's decision will be made 

on the basis of all the evidence. This standard does 

not require complicated rules of evidence in its 

application. We are confident that such an approach 

will encourage miners to act reasonably without 

unnecessarily inhibiting exercise of the right itself. 

* * * * * 

2058 

* 
In sum, we adopt a good faith and reasonableness 

rule that can be simply stated and applied: the miner 

must have a good faith, reasonable belief in a hazardous 

condition, and if the work refusal extends to affirmative 

self-help, the miner 1 s reaction must be reasonable as well. 

In MSHA ex rel. Michael J. Dunmire and James Estle v. 

Coal Company, WEST 80-313-D and WEST 80-367-D, February 5, 1982, the 

Commission defined further the scope of the to refuse work under 

the Act by adding a requirement that a statement ~f a healt~ or safety 

complaint must be made the complaining miner, and adopted the following 

requirement: 

Where reasonab possible, a miner refusing work 

should ordinarily communicate, or at least attempt to 

communicate, to some representative of the operator 

his belief in the safety or health hazard at issue. 

"Reasonable possibility" may be lacking where, for 

example, a representative of the operator is not present, 

or exigent circumstances require swift reaction. We 

also have used the word rdinarily" in our formulation 

to indicate that even where such communication is 

reasonably possible, unusual circumstances--such as 

futility--may excuse a failure to communicate. If 

possible, the communication should ordinarily be made 

before the work refusal, but, depending on circumstances, 

may also be made reasonably soon after the refusal. 

Complainant's arguments 

In his post-hearing arguments, complainant's representative argues 

that Mr. Bjes opted to invoke his individual safety rights and refused 

to operate the shuttle car in question after encountering conditions 

on the shuttle car which severely limited his ability to operate it. 

After several near accidents, Mr. Bjes felt strongly that to operate this 

piece of equipment would in all probability lead to a serious ury 

or death to himself or to another member of his crew. In support of this 

conclusion, complainant's representative points to the fact that upon 

his return to work following his 30-day suspension Mr. Bjes suffered 

a serious knee injury as a result of operating the shuttle car in question. 

Complainant suggests that Mr. Bjes' refusal to operate the shuttle car 

is protected by Section lOS(c) of the Act, as well as Article III, 

Section (i) of the National Bituminous Coal Wage Agreement of 1981. 

In further support of his case, complainant 1 s representative argues 

that respondent Consolidation Coal Company, as well as the arbitrator 

who heard Mr. Bjes 1 grievance, misinterpreted the aforementioned contract 

provision by concluding that an employee has to be exposed to an "imminent 

2059 
danger" before he can invoke his individual safety rights and refuse 

to operate a piece of equipment that he believes is hazardous. 

With regard to the testimony by several Consol witnesses at the 

hearing that they operated the shuttle car in question without invoking 

their individual safety rights, complainant's representative asserts that 

individual safety rights are dependent on what an individual miner believes 

may be dangerous, and not what a collective group of miners believe. 

Further, the representative points to the fact that since two employees 

were removed from the shuttle car in question upon request, while Mr. es' 

request was denied, this raises an inference that "the company had a 

vendetta on Hr. Bjes". The representative suggests that the only reason 

other employees declined to exercise their individual safety rights was 

out of fear of "the exact repercussions experienced by Mr. Bjes". 

Finally, complainant's representative points out that two other 

employees had approached and complained to Richard Borella, Chairman of 

the Mine Safety Committee, about the operation of the shuttle car in 

question, and that even though MSHA Inspector Charles Burke had observed 

that the car presented "a potentially dangerous situation", and made 

certain corrective recommendations, Mine Foreman Hofrichter ignored them, 

even after Chief Mechanic Bill Young stated that any repairs would be 

minor. 

Complainant's representative seeks the following remedies: 

1. Reimbursement of all lost wages incurred as a result of 

Mr. Bjes' suspension. 

2. All record of discipline involving this matter be removed 

from Mr. Bjes' file. 

3. Mr. Bjes not be required to operate this piece pf equipment 

in the future. 

Respondent's arguments 

Respondent argues that in order to determine whether Mr. Bjes validily 

exercised his right under section 105(c) of the Act on Thursday, July 30, 

1981, by refusing to operate the No. 9 shuttle car, it must first be 

determined whether he was acting in good faith, and if so, whether he 

had a reasonable belief that his operation of the shuttle car posed a 

hazard. 

Respondent submits that upon an analysis of the testimony and 

documentary evidence in this case, it seems clear that Mr. Bjes was not 

acting in good faith on Thursday, July 30, 1981, and the preceding two 

days, and that he has failed to present substantial evidence to prove 

that he was acting in good faith when he refused to operate the No. 9 

shuttle car. Although he asserted at the hearing that he was sincere 

in his belief that operating the car posed a hazard, respondent submits 

that Mr. Bjes cannot point to other evidence that would lend support to his 

2060 
assertion of good faith, and that the very nature of the inquiry, i.e., 

whether an individual acted in good faith, requires the Judge to look 

to circumstantial evidence and possible motives to account for why an 

individual acted as he did. In this case, respondent asserts that the 

circumstantial evidence and motivation behind Mr. Bjes' refusal to 

operate the machine prove that he was in bad faith. 

In support of its position in this matter, respondent states that 

on the surface, this case may appear similar to the case of Pasula v. 

2 MSHC 1001 Commission 1980 In 

that case, the operator of continuous machine refused to 

operate the after running it for an hour and a half. The 

machine had been damaged in a roof fall and had been repaired wherein 

several gears had been replaced, and the operator complained that it was 

making excessive noise which was hurting his ears and giving him a 

headache. He made this complaint immediately to his section foreman, and 

the Commission held that this >..as a valid exercise of his right to refuse 

to do work pos a hazard beyond the hazards normally encountered in 

underground 

maintains that the instant case is distinquishable from 

the Fasula case, in that in Fasula there was never a question about the 

sincerity of the operator 1 s motivation, whereas in this case the motivation 

of Mr. Bjes is subject to question. Mr. Bjes argues that he 

was motivated out of concern for his and the safety of his fellow 

miners, respondent says Mr. Bjes invoked his right because having 

found the No. 9 car to be uncomfortable, he realized he would have to 

operate it until he could bid to another job. 

In support of its conclusions that Mr. es' motivation is suspect, 

respondent to the uncontroverted evidence that Mr. Bjes operated 

the No. 10 shuttle car on numerous occasions, and that Safety Committeeman 

Borella conceded that his investigation disclosed Mr. Bjes' operation 

of the No. 10 car prior to July of 1981. Respondent also points to the 

testimony of one of Mr. Bjes' former supervisors, Joseph Grosholz, that 

Mr. Bjes the No. 10 car for him when the No. 9 car was down. 

With to Mr. Bjes' contention that the No. 9 and 10 cars, 

even though they are both low profile cars, are different because one is 

a standard car and the other an off-standard and that the tram pedals 

and st wheels are in different positions, respondent asserts that 

its witnesses were of the opinion that there was no difference between 

operating the No. 9 and 10 cars, and that this testimony is supported 

by Exhibit No. 9, comparing the various dimensions of the respective 

compartments and the distances between the on the two shuttle 

cars. 

In response to Mr. Bjes' attempt to prove his good faith by showing 

that he in fact offered to operate the No. 10 car instead of the No. 9 car, 

2061 
respondent points to the fact that Mr. Bjes did not initially testify 

on this point but did so in rebuttal after Mr. Borella testified, and 

that Mr. Bjes admitted that he did not direct this offer to any member 

of mine management. Respondent submits "that it is incredible that 

Mr. Bjes would make such an offer and not press mine management for an 

answer in this situation and it is questionable why Mr. Bjes waited until 

Thursday, July 30, 1981, to make such an offer if he ever did. 11 

Respondent suggests that consideration be given to Mr. Bjes' timing 

in invoking his rights under section 105(c) of the Act. In this regard, 

respondent states that Mr. Wall, who was the mineF operator, returned 

to work the week of July 28, 1981, and consequently, every member of the 

crew was bumped back. Mr. Bjes was bumped from the senior shuttle car 

operator to the junior one. His senior, Mr. Peterman, chose the No. 4 

car that Mr. Bjes had operated since January so Mr. Bjes was forced to 

operate the low-profile cars. Since the No. 10 car was the older one, 

the No. 9 car was used, and Mr. Bjes realized that he would be forced 

to operate the No. 9 car which by his own admission (with which Mr. Peterman 

apparently concurred) was more uncomfortable than the No. 4 car until 

he was able to bid to another job. Thus, respondent concludes that his 

right to refuse unsafe work afforded him with an opportunity to remove 

himself from an uncomfortable situation. 

Further, respondent contends that Mr. Bjes failed to exercise his 

right immediately. On Tuesday, July 28, 1981, when he was first assigned 

to the No. 9 car, he operated it for the entire shift, and did not tell 

his immediate supervisor, Wayne Ross, that he believed it was unsafe for 

him to operate the machine. Mr. Bjes merely stated that he would not 

run the car in second gear. Although he did show the shift foreman,-· 

William Ross, that he was having a problem with the pedals, he did not 

state that it was unsafe for him to operate the machine, and both of his 

supervisors observed him operating the machine and did not believe that 

he was running it unsafely. In these circumstances, respondent questions 

Mr. Bjes' sincerity. 

Summarizing its defense in this case, respondent maintains that the 

record does not demonstrate that Mr. Bjes was exercising his right in 

good faith, and that given the fact that he operated the No. 10 car and 

the timing of his exercise of his rights, his motivation in this case is 

very suspect. Even assuming that one can find that Mr. Bjes was sincere 

in his belief, respondent submits that it was not a reasonable one in 

that he operated the No. 10 car in the past and never complained about 

that car even though the weight of the evidence is that the No. 9 and 10 

cars are similar. Further, respondent points to the fact that miners 

larger than Mr. Bjes operated the No. 9 without alleging that their size 

prevented them from operating the car safely, and Mr. Bjes did not 

testify that he had a physical limitation that limited the flexibility 

and use of his legs that would distinguish him from those other miners. 

Finally, the respondent submits that little weight should be given 

to the injury Mr. Bjes received on September 14, 1981. Respondent maintains 

2062 
that Mr. Bjes' failure to tell Wayne Ross of the incident when Mr. Ross 

removed him from the No. 9 car and his ability to walk to the belt line 

raise serious questions regarding Mr. Bjes' story about how and when that 

accident occurred. Respondent suggests that Mr. es could very well have 

stumbled on a lump of coal and found it convenient in 1 t of his complaint 

with MSHA to claim that his knee bumped the steering wheel of the shuttle 

car, and that his version of what happened is subject to further ion 

when one considers that his alleged problem with the No. 9 car 

was that his knee was above the steering wheel. 

Findings and Conclusions 

As indicated earlier, the critical issue in this case is whether 

Mr. Bjes' refusal to operate the Number 9 Shuttle Car when ordered to 

do so was protected activity under the Act. Mr. Bjes claims that he 

could not operate the shuttle car safely, and that management's insistence 

that it could be operated safely and that he should operate it, 

himself and his fellow crew members to possible injuries. On the other hand, 

the respondent maintains that the shuttle car could be 

by Mr. Bjes, that he operated a similar car in the past with 

that other miners of comparable size and weight operated the car in question 

with no safety complaints, and that Mr. Bjes complaint resulted 

from his displeasure over having to operate a low-profile machine which 

he found uncomfortable. Under these circumstances, and in view of the 

set down in the discrimination decisions previously discussed, 

it is necessary to explore the following issues: 

1. Whether Mr. Bjes registered and communicated any 

complaints with the operation of the shuttle car in question. 

2. Whether Mr. Bjes' safety concerns connected with his 

requires to operate the shuttle car in question were made in 

good faith. 

3. Whether the refusal by Mr. Bjes to operate the shuttle car 

in question was reasonable, and if so, whether the work 

refusal is protected activity under the Act. 

4. Whether respondent has carried its burden of showing that 

Mr. Bjes' suspension for insubordination was motivated by 

unprotected activities and that he would have been disc 

anyway for refusal to operate his shuttle car. 

The record in this case establishes that as early as July 28, 1981, 

Mr. Bjes had complained to his section foreman Ross that he was having 

difficulty operating the low profile No. 9 shuttle car. That initial 

2063 
complaint was not specifically framed in terms of any safety difficulties, 

but rather, had to do with Mr. Bjes' claim that he could only run the 

car in low gear because of his claimed difficulties in reaching or 

manipulating some of the controls. These complaints carried over to 

the next day when Mr. Ross and mine superintendent Hofrichter discussed 

the matter further. These compalints blossomed into a full-blown safety 

complaint on July 30, when Mr. Hofrichter, Mr. Bjes, safety chairman 

Borella, MSHA Inspector Burke, and possibly a few others had a meeting 

or get-together to explore the difficulties that Mr. Bjes claims he 

was having with the operation of the shuttle car in question. At that 

meeting Mr. Bjes decided to invoke his individual safety rights and 

specifically advised mine management that his refusal to continue to 

operate the No. 9 shuttle car was based on the fact that he (Bjes) 

did not believe he could operate it safely. 

In view of the foregoing, I conclude and find that the record in 

this case supports a conclusion that Mr. Bjes communicated his belief 

about the safety hazard presented in his operation of the shuttle car 

to his section foreman and to the acting mine superintendent prior to 

his proposed discharge and subsequent suspension. 

Respondent suggests that Mr. es' complaint was motivated by 

his desire to avoid operating a low profile machine which he found to 

be uncomfortable while awaiting a successful bid on another job. Further, 

respondent suggests that Mr. Bjes' complaint is a sham, that he .concpcted 

a story of safety concerns, and that the injury which he suffered after 

his return to duty after serving his 30-day suspension was the result of 

his striking his knee on something other than a shuttle car. Respondent 

also points to the fact that Mr. Bjes' claimed willingness to operate 

the No. 10 shuttle car was made for the first time in rebuttal during 

the course of the hearing, and only after the subject was brought up by 

his witness Borella. 

Having viewed Mr. Bjes on the stand during the course of the hearing 

in this case, I find him to be a straightforward and credible witness. 

I believe that he was sincere when he initially complained about the 

cramped shuttle car kitchen and the fact that he had problems reaching 

some of the controls. I am not persuaded by the fact that other shuttle 

car operators may have found no difficulties when they operated the 

machine. The issue is whether Mr. Bjes' difficulties were reasonably 

related to any real safety concerns, and whether he was sincere in 

articulating those concerns. Although it may be true that Mr. Bjes' 

purported offer to operate the No. 10 shuttle car may have been made 

belatedly during the course of the hearing, well after the fact, it 

seems clear to me that Mr. Bjes' decision on July 30, not to operate 

the car was influenced to a great degree by some input from MSHA Burke 

after his examination of the car in question, as well as by safety committeeman 

2064 
Borella who advised or implied to Mr. Bjes that he had an absolute right 

to invoke his individual safety rights and could refuse to operate the 

machine in ques~ion. Given all of these circumstances, I conclude and 

find that the safety complaint made by Mr. Bjes was made in good faith, 

and was not made to avoid operating the shuttle car to which he was 

assigned until something better could come along. 

The Reasonableness of Mr. Bjes' Refusal to Operate the Shuttle Car 

The record in this case reflects that at the .time of his discharge 

Mr. Bjes had worked for the respondent for some six years. There is 

nothing to suggest that prior to the incident over the shuttle car that 

Mr. es was other than a good worker, that he was a chronic complainer, 

or that he had ever refused a work assignment. 

In addition to the testimony by Mr. es with to the 

difficulties he was experiencing in operating the shuttle car in second 

gear (fast mode), there is the testimony by safety committeeman Borella 

that after Mr. Bjes demonstrated his difficulties in operating the machine 

on July 30, in the presence of MSHA Inspector Burke, he (Borella) 

with Mr. Bjes' assessment that his continued operation of the shuttle car 

in question presented a safety hazard. Mr. Borella communicated his 

agreement directly to Mr. Bjes and advised him that he could invoke his 

individual safety rights and refuse to operate the machine. Mine Superintendent 

Hofrichter confirmed that Inspector Burke sat in the machine in question, 

took some measurements, and advised him that "it could be hazardous 11 and 

that he should address the problems dealing with the machine seats, pedals, 

and the overhead canopy. 

Prior to July 30, Mr. Bjes advised shift foreman William Ross that 

he has having a problem operating the No. 9 shuttle car. Although Mr. Ross 

indicated that he saw nothing unsual about the manner in which Mr. Bjes 

was running the car on July 28, he confirmed that when he flagged Mr. Bjes 

down to inquire about any problems Mr. Bjes did tell him.chat he 

could not operate the car in second gear because he could not reach the 

brake pedal. Just as Mr. Bjes was about to demonstrate his difficulties, 

Mr. Ross was called away to the telephone and left the area, and did not 

return until the July 30 meeting in the section. 

Section foreman Wayne Ross confirmed that as early as July 28, 

Mr. Bjes would only run the machine in low gear. He also confirmed that 

continuous mining machine operator Wall had complained about Mr. Bjes 

"taking his time" while changing his seat position in his car during the 

loading process while in retreat mining, and that Mr. Wall considered 

this to be unsafe since he wanted the shuttle cars to come in and out 

quickly during the loading process. Although Mr. Ross indicated that 

Mro Wall complained about the manner in which Mr. Bjes operated the 

shuttle car, and attributed certain statements in this regard to Mr. Wall, 

Mr. Wall was not called as a witness and did not testify. Under the 

circumstances, I have given little weight to Mr. Wall's purported 

2065 
characterizations as the difficulties encountered by Mr. Bjes in 

operating the car on that day, and I accept Mr. Bjes' testimony that the 

configuration of the machine, coupled with its operational limitations 

restricted his movements while seated at the controls, thereby contributing 

significantly to his inability to reach the brake pedals. 

In view of the foregoing, I conclude and find that Mr. Bjes' 

safety concerns over his inability to operate the number 9 shuttle car 

safely were reasonable. Under all of these circumstances, I conclude 

that Mr. Bjes had a good faith reasonable belief that if he were forced 

to continue to operate the shuttle car in question on July 30, this would 

have presented a serious safety hazard to himself and to at least the 

miner operator in the section, and possibly to other miners who may 

have been working on the section in close proximity to where he was 

required to operate the machine. Although the injury which he suffered 

to his knee came after he served his suspension and returned to work, 

it does bolster his argument that requiring him to operate the shuttle 

car while he was cramped into the operator's kitchen with his knees 

in his face presented a real safety hazard. Although respondent believes 

that the injury may have been caused by Mr. Bjes falling and striking 

his knee on a piece of coal, the fact is that his testimony that he struck 

it on the steering wheel of the machine remains unrebutted, and respondent 1 s 

own accident report, exhibit C-3, reflects that the knee injury occurred 

when Mr. Bjes attempted to stop the car while making a turn and struck his 

knee on the steering wheel. The report also reflects that the car struck 

the coal rib when the brakes were applied. 

Respondent's defense 

Respondent's defense in this case rests on an assertion that Mr. Bjes' 

refusal to operate the shuttle car was based on his dislike for a machine 

which he found to be uncomfortable. In support of this theory of its case, 

respondent maintains that Mr. Bjes deliberately went out of his way to 

conjure up excuses for not operating the machine, including a suggestion 

or inference that his fractured knee-cap was self-inflicted. Respondent 

also attempted to show that the No. 9 car was similar to another car which 

Mr. Bjes may have operated without any difficulty, that other miners of 

comparable size operated the same or similar shuttle without any difficulty 

and without filing any safety complaints, and that Mr. Bjes was observed 

operating the very same car without any difficulty before he made his 

safety complaint. 

As indicated earlier in this decision, the issue presented in this 

case is whether Mr. Bjes reasonably and in good faith believed that the 

operation of the shuttle car in question presented a safety hazard to him, 

The fact that other miners of similar size and weight may have had no 

problems with the car in question is not that critical. While this factor 

may weigh on the reasonableness of Mr. Bjes' safety concerns, I have found 

that these concerns were reasonable. Further, I rejected the "laundry list 11 

of miners who respondent claimed were able to safely operate the car 

(exhibit 0-1), and I note that none of these miners were called to 

testify. 

2066 
With regard to the operational differences in the two low profile 

shuttle cars, no·. 9 and no. 10, respondent takes the position that the 

two machines are so similar, that there are no differences in the two 

from an operator's point of view. The testimony and evidence adduced 

by the respondent on this issue consists of by Mr. Hofrichter 

and section Grosholz, as well as the diagrams and measurements of the 

three shuttle cars being used in the section (exhibits 0-3, 0-7, and 0-9). 

Neither Mr. Hofrichter nor Mr. Grosholz were offered as expert witnesses, 

and their is no testimony or evidence that they the shuttle 

car in question. Further, while the measurements of the No. 9 and No. 10 

machines are close, there are some differences in the brake distances 

from the operator's seat, as well as in the of the operator 1 s 

seat. In addition, one car is a standard car, and the other one is an 

off-standard car. Thus, to this extent their are some operational differences, 

and I accept as credible Mr. Bjes' assertions that he was 

difficulties in operating the No. 9 car, and ect the respondent 1 s 

assertion that since the cars are so similar Mr. es cannot be believed. 

Conclusion 

On the basis of the foregoing findings and conclusions, 

a preponderance of all of the credible evidence and tes of record 

in this proceeding, I conclude and find that Mr. Bjes has satisfac 

established that requiring him to operate the No. 9 shuttle car in question 

under the circumstances here presented constituted a hazard to 

himself, and possibly to his fellow miners. I further conclude and find 

that Mr. Bjes promptly made his safety concerns in this known to 

mine management, that his complaints in this regard were reasonable and 

made in good faith, and that his refusal to operate the car in question 

was protected activity under section 105(c) of the Act. Under the 

circumstances, I further find and conclude that his initial 

subsequently reduced to a 30-day suspension, constituted unlawful 

discrimination under the Act, and his complaint of filed 

with this Commission IS SUSTAINED. 

Remedies 

The record in this case reflects that Mr. Bjes' initial 

from his job was modified after it went to arbitration and the arbitrator 

reduced the penalty to a 30-day suspension (exhibit C-4). After 

his suspension, Mr. Bjes returned to work until the September accident 

in which he injured his knee. He was incapacitated and did not work 

for four or five months. Upon his return to work after 

from his injuries, he was not required to again resume operation of the 

No. 9 shuttle car. Further, as of the date of the hearing in this case, 

counsel stated that the mine has been out of production and everyone 

working there has been laid off. Assuming that Mr, Bjes is called back 

to work, he indicated that because of his seniority he probably would 

not be again assigned to operate that low profile machine and that he would 

be entitled to bid on a better job (Tr. 258-259). 

206'/ 
The parties were in agreement that the relief requested by Mr. Bjes 

in this case is the reimbursement of his lost wages during his 30-day 

suspension period, and an assurance from mine management that he not be 

required to operate the same shuttle car which prompted his instant 

discrimination complaint (Tr. 259). In his post-hearing arguments, 

Mr. Bjes' representative requested the following remedies: 

1. Reimbursement of all lost wages incurred as a result 

of Mr. Bjes' suspension. 

2. All record of discipline involving this matter be 

removed from Mr. Bjes' file. 

3. And most importantly, Mr. Bjes not be required to 

operate this piece of equipment in the future. 

ORDER 

1. Respondent IS ORDERED to compensate Mr. Bjes for the 

period of his thirty-day suspension by paying him in 

full the salary which he would have received had he not 

been disciplined. Payment is to be made for the thirty 

working days Mr. Bjes was off respondent's payroll, 

commencing on July 30, 1981, and ending on September 14, 

1981. The rate of pay should be at the rate of pay 

Mr. Bjes was earning at the time of the suspension, and 

counsel for the respondent and Mr. Bjes' representative 

are directed to confer with each other for the purpose 

of calculat the amount due Mr. Bjes and the manner 

in which payment shall be made, 

2. Respondent IS FURTHER ORDERED to remove all references 

of Mr. Bjes' disciplinary action in this case from ~is 

official mine and company personnel records. 

Full compliance with this Order is to be made within thirty (30) 

days of the date of this decision. 

Complainant's request that I order the respondent not to require 

Mr. Bjes to operate the No. 9 Shuttle Car at any time in the future IS DENIED. 

~/(Knd,;j:;;;'~_,; Administrative Law Judge 

Distribution: 

Jerry F. Palmer, ., Consolidation Coal Co., Consol Plaza, Pittsburgh, 

PA 15241 (Certified Mail) 

Carson Bruening, 521 W. Homer St., Ebensburg, PA (Certified Mail) 

Richard E. Bjes, 1134 Boyde Ave., Johnstown, PA 15905 (Certified Mail) 

2068 
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-Respondent 

v. 

WEST FREEDOM MINING CORPORATION, 

Contestant-Respondent 

DECISIONS 

Civil Penalty Proceeding 

Docket·No. PENN 82-176 

A.O. No. 36-01048-03009 

Contest of Citation 

Docket No. PENN 82-62-R 

Citation No. 1143078; 12/29/81 

West Freedom Strip 

Appearances: James Crawford, Attorney, U.S. Department of Labor, 

Arlington, Virginia, for the Petitioner-Respondent; 

Bruno A. Muscatello, Attorney, Butler, Pennsylvania, 

for the Contestant-Respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated cases were heard on the merits in Pittsburgh, 

Pennsylvania, on September 15, 1982. Docket No. PENN 82-176, concerns 

a proposal for assessment of civil penalties filed by the Secretary 

pursuant to Section llO(a) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. 820(a), seeking civil penalties for two alleged 

violations of certain mandatory safety standards found in Part 77, 

Title 30, Code of Federal Regulations. Docket PENN 82-62-R is the contest 

filed by West Freedom Mining Corporation challenging one of the 

citations issued in the civil penalty case. 

Issues 

The principal issues presented in these proceedings are (1) 

whether respondent violated the provisions of the Act and implementing 

regulations as alleged in the proposals for assessment of civil penalties 

filed in these proceedings, and, if so, (2) the appropriate civil 

penalties that should be assessed against the respondent for the alleged 

violations based upon the criteria set forth in section llO(i) of the 

Act. Additional issues raised by the parties are identified and disposed 

of in the course of these decisions. 

2069 
In determining the amount of 

section llO(i) of the Act 

criteria: (1) the operator's 

the appropriateness of such 

a civil penalty assessment, 

consideration of the following 

of previous violations, (2) 

to the size of the business of the 

operator, (3) whether the 

the operator's ability to 

of the violation, and (6) 

operator in attempting to 

of the violation. 

was negligent, (4) the effect on 

continue in business, (5) the gravity 

the demonstrated good faith of the 

achieve rapid compliance after notification 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine 

95-164, 30 u.s.c. § 801 

and Health Act of 1977, Pub. L. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

Section 104(a) Citation No. 1143078, was issued on December 29, 

1981, at 11:00 a.m., and it a violation of mandatory safety 

standard 30 CFR 77.410. The condition or practice cited by the tor 

is described as follows on the face of the citation: 

The automatic warning device which shall give 

an audible alarm when such equipment is put 

in reverse for 980 High life operating at 

023-0 pit was not operative. 

The inspector fixed the abatement time as 2:00 p.m., December 29, 

1981, and the termination notice reflects that the cited condition 

was abated at 12:40 p.m., December 29, 1981. 

Section 104(a) Citation No. 1143079, was issued on December 30, 

1981, at 8:55 a.m., and it alleges a violation of mandatory safety 

standard 30 CFR 77.410. The condition or practice cited by the 

inspector is described as follows on the face of the citation: 

The automatic warning device which shall 

give an audible alarm when such equipment 

is put in reverse for 41 B Bulldozer 

(serial number 7553268) was inoperative 

operating 023.0 

The inspector fixed the abatement time as 1:00 p.m., December 30, 

1981, and the termination notice issued by the inspector reflects 

that he terminated the citation at 8:00 a.m., December 31, 1981, 

after the cited inoperative alarm was repaired. 
During the course of the hearing, West Freedom's counsel asserted 

that he contested the citations because the mine operator had initially 

indicated that rto coal was being mined at the subject West Freedom 

Strip Mine. Counsel stated further that he was led to believe that the 

mine was a gravel pit mining operation, and since the citations alleged 

that the violations occurred while the operator was mining coal, he 

believed that there was no legal basis for MSHA's issuance of the citations. 

Subsequently, in preparation for the hearing, counsel learned for the 

first time from the operator that coal was in face being mined at the 

mine in question. Under these circumstances, counsel stated that he 

has no defense to the citations and agreed that they were properly 

issued and that the conditions or practices cited by the inspector 

as violations did in face occur. 

West Freedom's counsel indicated that while his original contest 

asserted that the inspector made findings that the citations were 11significant and substantial", he agreed that this assertion was in error and 

he conceded that the inspector made no such findings (Tr. 5-12). 

Findings and Conclusions 

Fact of Violations 

West Freedom Mining Company does not now contest the fact of 

violations in these proceedings and admits that the conditions or practices 

cited by the inspector in the section 104(a) citations constitute violations 

of mandatory safety standard 30 CFR 77.410 (Tr. 10, 13-14). Accordingly, 

the citations are AFFIRMED. 

History of Prior Violations 

Respondent's history of prior violations is reflected in a computer 

print-out offered by the petitioner during the hearing (Exhibit P-1). 

That print -out reflects a total of 44 paid violations by the respondent 

during an 11-year period beginning on January 1, 1970, and ending December 28, 

1981. While there are 11 prior citations of section 77.410, three were 

issued during the 24-month period prior to the issuance of the citations 

at issue in this case. On the basis of this information, I conclude 

and find that the respondent has a satisfactory compliance record and I 

cannot conclude that any additional increases in the civil penalties 

assessed in this case are warranted. 

Size of Business and Effect of Civil Penalties on the Respondent's Ability 

to Remain in Business 

Petitioner asserted that the respondent is a medium sized mine 

operator employing approximately 30 employees with a daily production 

of 400 tons (Tr. 18). I adopt this as my finding on this issue, and I 

also find and conclude that the payment of the penalties assessed in 

these proceedings will not adversely affect the respondent's ability to 

remain in business. 

2071 
Negligence 

The record reflects that the automatic back-up alarms were on the 

two vehicles in questions but were simply inoperative. A preshift or 

on-shift examination would have discovered the conditions, and it is 

altogether possible that the alarms were rendered inoperative after 

the equipment was put in operation. In any event, I conclude that the 

respondent failed to exercise reasonable care and that this constitutes 

ordinary negligence as to both citations. 

Good Faith Compliance 

The record here reflects that citation 1143078 was abated approximately 

an hour or so after it was issued and prior to the time fixed by the 

inspector. I find this was compliance. Citation 1143079 was 

timely abated and I find that as to both citations, the respondent exercised 

good faith compliance. 

Gravity 

The information provided by the petitioner reflects that people 

were working in the pit area where the cited was operating 

but that the closest person around the equipment was 300 feet away (Tr. 26). 

Respondent's counsel pointed out that in connection with citation 

no. 1143079, the "inspector's statement" reflects that the area was 

being back-filled, that no one was in the area when the violation 

was observed, and that the tor believed that any accident was 

"improbable" (Tr. 27). No information was forthcoming regarding the. 

other citation. 

Although it is true that no one was in close proximity to at least 

one of the pieces of equipment cited, it is also true that the equipment 

could seriously injure someone if it were to back over them. This is 

precisely what the standard is designed to prevent. I conclude and find 

that the conditions cited were serious (Tr. 28). 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, and 

into account the requirements of section llO(i) of the Act, I conclude 

and find that the civil penalties assessed and proposed by MSHA in these 

proceedings are reasonable, and they are AFFIRMED. 

ORDER 

Respondent IS ORDERED to pay the following civil penalties within 

thirty (30) days of the date of this decision and order, and upon t 

of payment by MSHA, this case is dismissed: 

2072 
Citation No. 

1143078 

1143079 

Date 

12/29/81 

12/30/81 

30 CFR Section 

77.410 

77.410 

Assessment 

$38 

$36 

$74 

In view of my disposition of the civil penalty case, West Freedom's 

Contest filed in Docket PENN 82-62-R, is DISMISSED. 

Distribution: 

James Crawford, Esq., U.S. Department of Labor, Office of the Solicitor, 

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

Bruno A. Muscatello, Esq., Stepanian & Muscatello, 228 South Main St,, 

Butler, PA 16001 (Certified Mail) 

2073 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MOV 23 

SECRETARY OF LABOR, 

MINE SAFETY Ai\l'D HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NEW RIVER FUEL, INC., 

Respondent 

Civil Penalty Proceedings 

Docket No. WEVA 82-250 

A.O. No. 46-05490-03007V 

No. 25 Kelly Hatfield Mine 

Docket No. WEVA 82-251 

A.O. No. 46-05490-03008V 

No. 26 Kelly H::i.tfieid Mine 

DECISIONS 

Appearances: Howard , Attorney, U.S. Department of Labor, 

Office of the Solicitor, Philadelphia, Pennsylvania, 

for the petitioner. 

Before: Judge Koutras 

These proceedings concern proposals for assessment of civil penalties 

filed by the petitioner t the respondent pursuant to section llO(a) 

of the Federal Mine and Health Act of 1977, 30 U.S.C. 820(a), 

charging the respondent with a total of four alleged violations of certain 

mandatory safety standards promulgated pursuant to the Act. Respondent 

contested the citations and a hearing. A consolidated hearing 

was convened pursuant to notice in Charleston, West Virginia, on November 4, 

1982. In view of a proposed settlement of the cases, arguments in support 

of the settlement were heard on the record and a bench decision was issued 

approving the settlements. 

Discussion 

The citations issued in these cases are as follows: 

Docket WEVA 82-250 

Section 104(d)(l) Citation No. 906335, November 17, 1981, cites a 

violation of mandat(;ry safety standard 30 CFR 75.603, and the condition 

or practice cited jg as follows: 
Two temporary splices were found in the trailing 

cable supplying power to the cutting machine 

being operated in the 001-0 section. 

Section 104(d)(l) Order No. 906338, November 19, 1981, cites a 

violation of 30 CFR 77.506, and the condition or practice cited is as 

follows: 

Two 25 amp fuses protecting the breaker box located 

in the lamp house and supplying power to' the heater 

and the stationary grinding machine were bridged 

out with wire. Also, the four fuse holders for the 

2 heaters contained welding rods instead of fuses. 

Section 104(d)(2) Order No. 906339, November 19 1981, cites a 

violation of mandatory safety standard 30 CFR 77.700, and the condition 

or practice cited is as follows: 

The stationary grinding machine located in front 

of the lamp house was not frame grounded. 

Docket No. WEVA 82-251 

Section 104(d)(2) Order No. 907002, February 12, 1982, cites a 

violation of mandatory safety standard 30 CFR 77.1605(b), and the condition 

or practice cited is as follows: 

The foot brake on the Michigan endloader would 

not stop said endloader when brake was tested. 

The citations, assessments, and proposed settlements are as follows: 

Docket No. WEVA 82-250 

Citation No. Date 30 CFR Section Assessment Set 

906335 11/17/81 75.603 $ 300 $ 250 

906338 11/19/81 77. 506 750 500 

906339 11/19/81 77. 700 500 400 

$1550 1150 

Docket No. WEVA 82-251 

Citation No. Date Assessment lernent 

907002 2/12/82 77.1605(b) $ 750 $ 500 

The arguments advanced by the petitioner in support of the proposed 

settlements follow below. 

2075 
335 

In support.of the proposed settlement of this citation by a 

of $250, petitioner's counsel asserted that the inspector first believed 

that the respondent had permitted the machine to operate for a 

month with two temporary splices. However, the respondent maintains 

that the splices in question were in fact permanent cold splices and not 

ones. Further, counsel states that when the inspector. first 

observed the two splices he conceded that they adequately covered the 

cable areas which were spliced. 

With to the respondent's , petitioner's counsel 

stated that the cited conditions should have been known to mine management. 

As for the gravity connected with the citation, counsel asserted that 

there was a potential shock hazard present, but only if the had 

been ected to further deterioration. 

With regard to the proposed settlement of this citation by a 

of $500, petitioner's counsel stated that the respondent maintained that 

the tor first believed that the mine operator himself 

the breaker box in question. However, during his discussions with 

, counsel stated that the respondent's defense is that a 

guard working the night shift made the fuse box changes after 

fuses blew out, and that he did so to provide heat for the 

lamp house where he was located. maintains that he had no 

knowledge that this had been done and also maintained that the 

house was not an area that was required to be preshifted. 

Petitioner's counsel stated that the respondent exhibited good faith 

by immediately removing the bridging devices and ins 

proper fuses. Counsel also believed that the respondent should have known 

about the conditions, and that the was "probable" in that the bridgedout fuses would over-ride the normal protection provided by regular fuses. 

In support of the proposed settlement of this citation by the payment 

of $400, petitioner's counsel stated that the respondentts defense is 

that he had no prior knowledge of the cited condition because the 

house was not required to be While counsel believed that the 

of the cited condition was such as to present the "probability" 

of an accident, he also indicated that the respondent promptly removed 

the machine from service when the condition was called to his 

attention. Counsel also believed that the respondent should have been 

aware of the cited condition. 

2076 
Citation No. 907002 

The parties proposed a settlement payment of $500 for Citation No. 

907002. In support of this proposal, petitioner's counsel asserted that 

his investigation of the facts and circumstances surrounding the endloader 

brake conditions reflects that the inspector observed it operat some 

fifteen minutes before the brakes were tested, but at that time it was 

sitting unattended at the side of the work site. Counsel also indicated 

that the respondent's defense is that the endloader was parked and taken 

out of service. While it was not "tagged-out", the respondent takes 

the position that this was not necessary since his operation is so small 

that he would know that the endloader was taken out of service. 

Petitioner's counsel stated further that the respondent demonstrated 

good faith abatement in that the endloader was immediately removed from 

service and a broken airline was replaced. With regard to the question 

of negligence, counsel asserted that the respondent should have been 

aware of the brake conditions, and that there was a potential present 

for an accident had the equipment been used further. 

iness 

Petitioner's counsel stated that the respondent is a smal~ mine 

operator who owns and operates the one mine in question in this case. 

As of April 20, 1982, annual mine production was 50,000 tons. However, 

respondent indicated that current mine production is approximately 300 

tons daily, and that the mine operates five days a week employing 25 

miners. Since respondent has agreed to pay the proposed settlement 

amounts, petitioner asserted that the payment of same will not adversely 

affect the respondent's ability to continue in business. 

History~rior violations 

Petitioner's counsel stated that the respondent's m_ine is a new 

mine with no record of any previous vio~_ations. However, counsel asserted 

that the respondent previously operated another mine and that for a twoyear period the mine had a history of 14 paid civil penalty assessments, 

none of which were for violations of any of the mandatory safety standards 

in issue in these proceedings. 

Conclusion 

After careful review and consideration of the arguments advanced 

by the petitioner in support of the proposed settlements, I conclude 

and find that the settlements are reasonable and in the public interest. 

Accordingly, pursuant to 29 CFR 2700.30, they are APPROVED. 

207'1 
ORDER 

Respondent IS ORDERED to pay civil penalties in the settlement 

amounts shown above in satisfaction of the citations in question within 

thirty (30) days of the date of this decision and order, and upon receipt 

of payment by the petitioner, this proceeding is DISMISSED. 

Distribution: 

Howard Agran, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

Roger Younce, Vice President, New River Fuel, Inco, PoOo Box 550, 

Whitesburg, KY 41858 (Certified Mail) 

2078 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

MELVIN L. CASS, 

Complainant 

v. 

TREW CORPORATION, 

Respondent 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complaint of Discrimination 

Docket No. YORK 82-22-DM 

East Deerfield Quarry & Mill 

DECISION 

Appearances: Melvin L. Cass, Buckland, Massachusetts, pro se; 

Lewis A. Whtnet, Jr., Esquire, Easthampton, :Massachusetts, 

for the respondent 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed by the 

complainant with the Commission on March 19, 1982, pursuant to Section 

105(c) of the Federal Mine Safety and Health Act of 1977. The complaint 

was filed pro se after the complainant was advised by MSHA on February 17, 

1982, that its investigation of his complaint disclosed,no discrimination 

against him by the respondent. 

Respondent filed an answer to the complaint on April 15, 1982, 

denying any discrimination, and the case was docketed for hearing 

in Springfield, Massachusetts, on August 3, 1982. The parties were 

afforded an opportunity to file post-hearing arguments. 

Issues 

The critical issue presented for adjudication in this case is 

whether the termination of Mr. Cass from his employment with the respondent 

was in fact prompted by protected activity under section 105(c)(l) of 

the Act. Specifically, the crux of the case is whether the refusal by 

Mr. Cass to perform certain asserted unsafe drilling duties without the 

assistance of a helper insulated him from termination from his job. 

Additional issues raised by the parties are identified and discussed 

in the course of this decision. 

2078 
Applicable Statutory and Regulatory Provisions 

1. The Feaeral Mine Safety and Health Act of 1977, 30 U.S.C. § 301 

~· 

2. Sections 105(c)(l), (2) and (3) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3). 

3. Commission Rules, 29 CFR 2700.1, et s 

The Complaint 

In his initial complaint filed with MSHA on June 1, 1981, Mr. Cass 

asserted that on May 20, 1981, he was drilling on a 68 foot face to complete a shot, and that he had several more holes to drill. He was 

assisted by a helper. Quarry superintendent Paul Warner reassigned his 

helper to other duties and instructed him not to help Mr. Cass further. 

At this time, Mr. Cass had three more holes to drill about three feet 

from the face, and four "B" holes (Back up holes) to finish. Mr. Cass 

informed Mr. Warner that it was not safe to drill alone. He then 

shut down and went to the office. Mr. Warner advised him that he 

was to drill alone and did not need a helper. Since it was quit 

time, Mr. Cass went home. 

The complaint states further that when Mr. Cass returned to work 

on May 21, 1981, and informed Mr. Warner that he was not going to drill 

alone because he did not believe it was safe, Mr. Warner informed him 

that if he did not drill alone he was fired, and Mr. Warner gave him 

until May 28, 1981, to make up his mind. Mr. Cass has not been back to 

work at the quarry since this time. 

Complainant's testimony 

Melvin L. Cass testified that since July 26, 1982, he has been 

employed by the Pine Rest Plantation, a trailer park, do general 

construction work. He confirmed that he left the employ of the respondent 

Trew Corporation on May 21, 1981, and at that time he was employed as a 

driller, and his salary was approximately $9.00 per hour, and that he 

worked a 40-hour week. The mine was a union mine represented by 

Operat Engineers Local No. 98. He also confirmed that since his 

termination on May 21, 1981, he has been self-employed as a carpenter 

restoring an investment home which he purchased, and that he has also 

"cut wood" for a living. 

Mr. Cass testified that he was employed with the respondent for 

approximately 8-1/2 years as a crushed rock driller. He identified a 

copy of the written complaint he filed with MSHA on June 1, 1981. 

He also confirmed that on May 20, 1981, he refused to continue his work 

as a driller on one of the pit working faces after mine management 

superintendent Paul Warner informed him that his helper would no longer 

2080 
be assigned to assist him in his driller work. Mr. Cass stated that he 

believed he could not safely perform his duties without a helper. 

Mr. Cass indicated that his drilling work was being performed at the top 

of a 68 foot pit face, which was at a slight angle, and that the helper 

would stand by the side of the drilling truck and assist him in the 

handling of the 65 pound steel drilling devices stored on a rack on the 

truck. He would position himself two to three feet from the edge of the 

face while inserting the steel drill on the truck, and during the actual 

drilli~g process he would position himself to the side and in back of 

the truck away from the drill hammer. Without the aid of a helper he 

would have to do all of the work himself, and he believed that this 

exposed him to the danger of slipping over the edge of the face (Tr. 7-17). 

Mr. Cass stated that he had worked for a week on the drilling project 

in question, and that he had drilled some 55 to 60 holes on the "shot" 

project. He had also drilled some 25 holes at the top of the face during 

the week, and all of this work was accomplished with the assistance of 

a helper. The helper was shared with the blasting crew, and at the time 

his helper was taken away from him he had six more holes to drill to 

complete his project (Tr. 18-19). 

Mr. Cass confirmed that on previous occasions when he did not have 

a helper assigned to him he performed his drilling duties without the 

helper even though "it wasn't really safe". He did so because "he had 

to work" and believed that he would be fired if he didn't perform his 

drilling duties by himself (Tr. 22). He stated that he complained to 

the pit foreman about having to drill alone, but did not complain to his 

union representative (Tr. 24). 

Mr. Cass confirmed that while he had performed his drilling duties 

for 8-1/2 years without the assistance of a helper, on May 20 he was 

drilling in an area where he was out of sight of the shovel operator and 

the haul truck drivers, and since he was working alone he was concerned 

that in the event of an emergency no one would be able to see him and 

come to his assistance (Tr. 25). He believed that if he·had a helper, 

the helper could go and surrnnon assistance (Tr. 26). 

Mr. Cass confirmed that when he returned to the mine on May 21, 

he and Mr. Warner visited the drill site and Mr. Cass still refused to 

work alone. At that point, Mr. Warner advised him that it was not unsafe, 

that he had being doing the work for 8-1/2 years, and that a week before 

when he drilled 25 holes, he did not always have a helper. Mr. Warner 

then told him that he would have a week "to cool off or I was fired" 

(Tr. 28). Mr. Cass then informed Mr. Warner that he was going to contact 

MSHA and file a safety complaint (Tr. 26). After Mr. Cass left work, the 

drilling work was completed by Mr. Spooner, and later by Mr. Kenny Lemclair 

(Tr. 35). 

Mr. Cass confirmed that he never received an actual notice of discharge 

or termination from the respondent. He assumed that since he did not 

go back to work after the week he was given to "cool off", that he was fired. 

2081 
Even though he was aware of his union grievance rights, he opted to 

file a complaint with MSHA, and filed no grievance (Tr. 42). Mr. Cass 

stated that he expected MSHA to come to the mine and tell the respondent 

that he needed a helper for safety reasons. He conceded that MSHA 

investigated his complaint, issued no violations, and found that he had 

not been discriminated against (Tr. 43-66; 49). 

Mr. Cass explained the operation of the drill rig he was operating, stated 

that it was equipped with a drill rack which he designed, and he confirmed 

that he and Mr. Warner had some prior problems over gloves and 

raingear three years prior to the instant complaint, but that those 

encounters were resolved to his satisfaction (Tr. 54). Mr. Cass also 

indicated that even if he were to be furnished with a safety belt for 

use around the drilling rig in question, he would not use it because 

it would get in the way and restrict his movements around the drill 

He would prefer a helper (Tr. 55). 

On cross-examination, Mr. Cass identified a photograph (exhibit R-1) 

as the drill rig in question, and he confirmed that for most of his 

employment period with the respondent for more than eight years he has 

worked as a driller, but that he has done some driving, welding, and 

mechanic's work. He explained that his drilling work involves the 

preparation for blasting trap rock out of the quarry, and he identified 

a photograph (exhibit R-2) as a fair picture of what the quarry looks 

like (Tr. 56-58). Mr. Cass indicated that on the day in question in this 

case he was working in the area marked "A" on the photograph, and the 

shovel was digging on top of the face shown as 11B" on the photograph. He 

also identified a roadway shown in the photograph as the haul road used 

by trucks. He also indicated that on May 20, there were two trucks operating 

on the haul road with a reasonable degree of regularity every seven to 

eight minutes, and that the shovel operator was on duty all the time 

while he was drilling (Tr. 62). 

Mr. Cass testified that during his drilling operations for Mr. Warner, 

it was customary for him (Cass) to ask for a helper if he needed one 

and that "most of the time" over an eight-year period he received one 

"if I complained enough" (Tr. 62). Mr. Cass confirmed that on May 20, 

Mr. Warner did not order him to leave work. Since his work shift was at 

an end, he simply went home. When he returned the next morning, he and 

Mr. Warner went to the work site and at that time Mr. Warner told him 

he was to either drill or he wasn't going to work. Mr. Cass made no 

offers to return to work during the following week because he was in the 

process of contacting MSHA, and he made no further contacts with Mr. Warner 

(Tr. 64). He indicated that he filed no formal complaints with his union, 

although he did have a conversation with the local's business agent, 

and he had never previously complained to MSHA (Tr. 67). He confirmed 

that the drill rig had been cited in the past by MSHA during an inspection, 

and they resulted from his moving the machine while the boom was in an 

unsafe position and his failure to insure that a safety chain was 

connected to the machine air hose (Tr. 68). 

2082 
Mr. Cass explained the procedure for drilling and preparing a shot 

to be fired, and he indicated that the drilling work he was engaged in 

at the time in question was over a four or five day period. During that 

time Mr. Teddy Lemclaire was his helper, but he did not have the use of 

his help during the first part of those days. Even though he needed a 

helper during this early stage of the drilling, he drilled without 

Mr. Lemclaire and did not ask for any help (Tr. 74). With regard to 

his relationship with Mr. Haas, the driller, Mr. Cass testified as 

follows (Tr. 76-78): 

Q. There never was any question raised by Mr. 

Warner about whether you were cooperating with Mr. Haas? 

A. There wasn't a question. I told Paul I 

wouldn't help Mr. Haas on shots. 

Q. You told him you wouldn't help him? 

A. Yes. 

Q. That, you feel, was a cooperative attitude? 

A. That was just the way it was. 

Q. You didn't find it too easy to work together 

with Mr. Haas? 

A. No. 

Q. I am correct, you did not find it easy to work 

with him? 

A. Correct. 

Q. For how long a period did you have this feeling that 

you couldn't work with him? 

A. About the first day he was there. 

Q. The first day he was there? 

A. Yes. 

Q. How long was Mr. Haas there, up until the time you 

left? Do you know? 

A. Two years -- three years? 

Q. Two years? 

A. Two years, I believe. 

2083 
Q. He was the blaster and you were the driller. 

A. Yes. 

Q. During that period of time, you found you couldn't 

work cooperatively with Mr. Hass, no matter whose fault it 

was? 

A. Right. 

Q. Is the answer yes? 

A. Yes. 

Q. And was that true, pret 

year period? 

much, throughout that twoA. Well, we never had -- Mr. Warner had us working apart, 

so we never had much call to together. 

Q. Except with respect to and blasting? 

A. No. I usually drilled the holes and he shot them. 

Q. If there was any difference as to where holes were 

to be drilled or the pattern to be drilled, you found it 

difficult to cooperate with Mr. Haas? 

A. No. They marked them and I drilled them. They 

had another blaster up from Boston. He went and marked a 

bunch of holes and I drilled them. 

Q. Was there anyboc1.y else in the quarry crew that you 

couldn't get along with? 

A. No. 

Mr. Cass testified that during his tenure as the quarry driller 

he used the same drill rig. For the first two years, it was without a 

drill rack, but he fabricated a rack at company expense in the shop 

with the respondent's consent and he conceded that this was done to help 

him in his work (Tr. 85). Mr. Cass took the position that he should 

be the one to determine whether he needs a helper for safety purposes, 

and even if mine management assessed the situation and found otherwise, 

he would still not drill alone. He indicated that drillers working on 

similar union jobs in construction work outside the quarry are required 

by OSHA regulations to provide a helper or chuck tender for the driller 

for reasons (Tr. 89-91). 

Mr. Cass conceded that there were times when he drilled alone without 

a helper, and indicated that this was true 80 percent of the time (Tr. 93). 

2084 
His concern on the day his helper was taken away from him stemmed 

from the fact that he did not believe he would be within sight of the 

shovel operator working away from his area. As for the truck drivers 

going by, he conceded that they could observe him for the time it took 

them to come and go, but assumed they would be paying attention to their 

driving. He also indicated that there was no radio on the drill rig, 

but that he did take a coffee break at 10:30 a.m. in the shop, and then 

would return to the drill rig to work until lunch. Usually no one would 

come by to visit the work site unless there was a problem or an inquiry 

as to how long drilling would take (Tr. 96). He believed he needed a 

helper to keep him under observation, to go for help in an emergency, and 

to help him with the drill steel (Tr. 97). He also alluded to annual 

safety meetings, and conceded that he never brought up the need for an 

observer while he was drilling (Tr. 100). He further explained his 

need for a helper as follows (Tr. 101-102): 

THE WITNESS: And when you are drilling close 

to the face, you should have a helper. 

JUDGE KOUTRAS: Then, that would be the safety 

consideration. When you are drilling near the face, 

you need a helper. 

THE WITNESS: Yes. 

JUDGE KOUTRAS: But when you are drilling away 

from the face, when I asked you the hypothetical, you 

seemed to think that you needed one anyway because in 

case you got hurt doing something. 

THE WITNESS: If nobody could see you. 

JUDGE KOUTRAS: If no could see you. 

THE WITNESS: You're up, you know, by yourself. 

JUDGE KOUTRAS: But if someone had you within 

their vision --

THE WITNESS: (Interrupting.) Within close, yes. 

Where they could get to you, like the shovel down underneath you or something like that. 

JUDGE KOUTRAS: So I take it if your were at the top 

of this high wall, up the top of this face, drilling away 

from the face, a couple of feet let's say; and there is 

a dozer or a shovel or something working down the pit; 

and the guy has line of sight vision -- he can observe 

you; and he is standing there doing all his things that 

he has to do with his shovel; and occasionally, if he looks 

2085 
up there, he will see you working the drill, away 

from the face, you have no problem with that. 

THE WITNESS: Yes. Right. 

JUDGE KOUTRAS: You have no problem? 

THE WITNESS: Not as long as I am in visual 

contact. 

JUDGE KOUTRAS: With him? 

THE WITNESS: Or with somebody. 

JUDGE KOUTRAS: Is this some kind of company rule, 

policy, or what? 

THE WITNESS: I don't know. About what, taking 

a helper away or what? 

JUDGE KOUTRAS: No, working in an isolated area 

or being out of s t of someone. 

THE WITNESS: No. This is the first time it ever 

happened on this shot. Usually, I am within sight of 

somebody or there is somebody working right beside me, 

close by. This was the first. 

Respondent's testimony 

Paul H. Warner, respondent's materials superintendent and president 

testified that his job responsibilities include the complete control 

and operation of the quarry in question. He has worked at the quarry 

since 1972 and was placed in charge of the operation in 1975. Mr. Warner 

stated that on May 20, 1981, he directed Tom Haas, a blaster, to go to 

the area where Mr. Cass was working and to ask him when his drilling 

work would be completed so that blasting operations could begin. Mr. Haas 

reported that Mr. Cass would not speak to him and wouldn't "give him 

the time of day". Mr. Warner indicated further that Mr. Haas and Mr. Cass 

had not gotten along for two years, that they both had a "communications 

problem", and that this situation had caused him some management problems. 

To alleviate the problem he attempted to keep them physically separated 

in order "to keep the peace". However, since blaster3 and drillers 

normally work as a team, Mr. Warner indicated that maintaining such 

separation was not always possible (Tr. 103-106). 

Mr. Warner testified that on the afternoon of May 20, he personally 

went to the area where Mr. Cass was working and asked him why he did 

not respond to Mr. Haas after he (Warner) had sent him there to inquire 

2086 
as to when the drilling work would be completed. Mr. Cass informed 

him that he did.not speak to Mr. Haas, and in effect told him that 

the shot would be ready when he finished drilling the remaining holes 

(Tr. 108). After observing the work that was required at the drill site, 

Mr. Warner decided that Mr. Cass did not need the helper who was with 

him and instructed the helper (Mr. Lemclair) to get into his pickup truck 

so that he could transport him away from the drill site (Tr. 107). 

Mr. Warner stated that he told Mr. Cass that he saw no reason why he 

needed1a helper and that 11 this was the last time we were going to be 

playing games" (Tr. 109). Mr. Warner explained that Mr. Haas and Mr. Cass 

had been at odds with each other over their respective duties and 

responsibilities, that Mr. Cass had previously indicated a desire to 

work as a truck driver rather than a driller, that he once threatened 

to quit over a misunderstanding about the company supplying him with some 

work gloves, and that while he considered Mr. Cass to be a good driller, 

he repeatedly caused him problems over his lack of cooperation with Mr. Haas 

and his refusal to to him . 110-111). Mr. Warner was also 

concerned about disparaging remarks made Mr. Cass about Mr. Haas to 

other employees when Mr. Haas was not present (Tr. 113), and he explained 

his problems with Mr. Cass as follows (Tr. 117-118): 

A. I had many problems with the blaster, Tom Haas, 

to me and saying that the driller would not work 

with him. To give you the particular days 

on would be a bit difficult, but it was a repeated 

they just would not work tegether. Or he would not 

work with the blaster, I should say. 

Q. Is it true that the continued over most of 

the two year period? 

A. Yes. In fact, that is why we went to marking 

the holes, because at the point where we were marking them, 

we were using an experimental blasting machine· well, 

experimental to us -- and the fellow that was operating 

it explained to us that it was particularly critical 

in that instance to drill precisely where the holes were 

supposed to be drilled, so we mark the holes at that time. 

Q. You couldn't get a communication go between 

Mr. Haas and Mr. Cass with respect to the location of the 

holes, so you had to have them painted on the rock? 

A. Yes. 

Mr. Warner testified that on the morning of May 21, the day after 

his conversation with Mr. Cass at the drill site, he told Mr. Cass that 11we were a little hot-headed" the previous day and that he wanted to go 

with him to the drill site so that Mr. Cass could clarify why he believed 

he needed a helper. Mr. Cass advised him that he would need a helper 

208'/ 
"every place in.the f ... ing quarry from now on", and that Mr. Cass 

alluded to the fact that the union contract required this. Mr. Warner 

indicated that Mr. Cass was confused and that the contract does not 

require such a helper (Tr. 115). Mr. Warner then stated as follows 

(Tr. 115-116): 

The conversation did not last too long when 

I heard that. I told him, at that point, that he 

in effect had pulled my jock long enough and that 

until he got his head back on his shoulders, squared 

away where it belonged, and could start working with 

the blaster like he should, that he was all done as 

far as I was concerned; and I don't remember if it 

was then or if it was down as he was leaving, but I 

told him that he had a week from Friday -- he had 

until the twenty-ninth to think it over and let me 

know. 

Q. Did you require him not to work in that 

ensuing week, or was that discussed? 

A. Nothing was discussed. He left very upset, 

demanding I give him the phone number of the local 

MSHA authorities, which I did. He said he would 

contact them and he would be talking to the Union, 

and that was the last I saw of him. 

Q. That was after you told him that he had 

until the twenty-ninth to get his act together? 

A. Yes, sir, 

Q. Now, as a consequence of his request,' you 

gave him the local number of MSHA? 

A. Yes, sir. 

And, at Tr. 118: 

Q. At any time between the twenty-first and the 

twenty-ninth of May, did Mr. Cass come to you and ask 

for his job back? 

A. No. 

Q. At any time during that period, did he communicate 

with you in any effort to resolve the problem? 

A. Directly? 

Q. Yes. 

A. No. 

2088 
Mr. Warner confirmed that MSHA conducted an investigation at 

the quarry in response to the complaint filed by Mr. Cass, and that he 

and other workers were interviewed. MSHA's inquiry and observations 

at the quarry lasted some three days, but no citations for safety 

infractions were issued (Tr. 116-117). 

In response to further questions, Mr. Warner indicated that 

drilling near the face of the wall takes place for every shot, and 

that Mr. Cass had never been concerned about drilling near the face. 

Mr. Warner indicated that a helper would not be necessary at this 

location because the driller would be visible (Tr: 128). Mr. Warner 

also confirmed that Mr. Cass may have been disgruntled over the fact 

that he wanted to drive a truck, but he also indicated that Mr. Cass 

never asked to be assigned as a truck driver (Tr. 130-132). 

Mr. Warner testified that Mr. Cass had never filed any safety 

complaints because of the lack of any helper, and he also confirmed 

that the respondent has published safety and regulations 

(Tr. 135). However, he indicated that there is no policy concerning 

employees being t under observation while performing work and he 

indicated that there are ten persons working at the quarry (Tr. 136-137). 

Mr. Warner confirmed that the mine is a union mine, but that it does 

not have a committee. However, he did indicate that there is an 

employee at the mine and he identified him as Alonzo Spooner. 

Mr. Spooner would walkaround with MSHA inspectors and Mr. Warner assumed 

that employees would report safety problems to Mr. Spooner (Tr. 138). 

He is not aware of any complaints ever filed by Mr. Spooner with MSHA 

on behalf of Mr. Cass (Tr. 139), and Mr. Warner indicated that he has 

never fired, suspended, or disciplined any employees during his tenure 

as quarry superintendent, and if he did so an employee could file a 

grievance (Tr. 140-141). 

In response to questions as to whether Mr. Cass was. actually discharged, 

Mr. Warner responded as follows (Tr. 141-142): 

JUDGE KOUTRAS: Now, when he opted not to 

come back after you told him to cool off a little 

bit, did you, in fact, fire him? Was he terminated? 

What do you consider -- how would you classify what 

happened? Would you consider him to be fired --

discharged; and if so, for what reason? 

THE WITNESS: I guess I 1m not certain what 

the word would be. The way it was in my mind, 

I like to feel like I bend over backwards to try 

to get with people. 

I felt like I bent over backwards too many 

times, and that's why I told him to stop pulling 

2089 
my jock and everything, to get his head squared 

away, ·and when he could do that, to come back 

to work. 

JUDGE KOUTRAS: Apparently, he has never 

done that? 

THE WITNESS: He never communicated anything 

other than to go to the Mine Safety and .to the Union. 

JUDGE KOUTRAS: How did you separate him from 

the payroll? Is there a record someplace of his 

personnel folder? What if I were an employer now, 

and I come to you for a reference. What would you tell 

me; he was fired, he quit, resigned? 

THE WITNESS: I guess he fired himself is what 

he did. He refused to work. He left. 

JUDGE KOUTRAS: Is refusal to work grounds for 

discharging any of your employees out there? 

THE WITNESS: Well 

JUDGE KOUTRAS: Have you ever had this happen 

before? 

THE WITNESS: No, sir, I have not had this happen 

before. 

Alonzo Spooner, employed by the respondent as a truck driver, 

confirmed that on May 20, 1981, he was the union safety representative 

at the quarry. He stated that at that time Mr. Cass told him that he 

had to have a helper, and when he advised him that the union contract 

did not provide for a helper, Mr. Cass indicated that he would contact 

the local union representative. Mr. Spooner stated that when he was 

employed as quarry foreman helpers were assigned to Mr. Cass when he 

needed them. He also indicated that helpers were assigned to assist 

drillers, but when they were not needed the driller would work alone 

and would be paid more money (Tr. 148-151). 

Mr. Spooner testified that Mr. Cass had never complained to him 

that the lack of a helper presented a safety problem, and that his 

concern was whether a helper was required under the union contract 

(Tr. 151). Mr. Spooner stated that he did not agree that Mr. Cass 

needed a helper and that when Mr. Cass left he (Spooner) was assigned 

to finish the drilling work. He finished it alone without a helper and 

did not believe it presented any safety hazards. He had no problem in 

finishing the drilling and did not believe he was in jeopardy (Tr. 152-153). 

2090 
As indicated earlier, the issue in this case is whether complainant 

Cass' refusal to perform his assigned drilling duties on May 21, 1981, 

is protected by section lOS(c) of the Act. Refusal to perform work is 

protected under section 105(c)(l) of the Act if it results from a good 

faith belief that the work involves hazards, if the belief is 

a reasonable one, and if the reason for the refusal to work is communicated 

to the mine operator. Secretary of Labor/Pasula v. Coal Co. 

2 FMSHRC 2786, 2 BNA MSHC 1001 (1980), rev'd on other grounds sub_nom 

Marshall 663 F.2d 1211 (3d Cir. 1981); 

Co. 3 FMSHRC 803 -=.::::.::::...::..=:.._::..=.=-=-=-=---'-'-'=--'-::_;_' 

FMSHRC 982 (1982); 

~~~~~~~~~ 

Co. 4 FMSHRC 126 

It seems clear to me in this case that Mr. Cass was not fired or 

suspended from his job for exercising any protected safety I 

believe that his frustration over his inability to get 

blaster, Mr. Haas, coupled with a possible ection by Mr. Warner of 

his efforts to become a truck driver, led Mr. Cass on a course of 

confrontation with Mr. Warner, the quarry Mr. Warner 

was obviously pushed to the brink, his patience had worn thin, and 

when Mr. Cass made the remark that he would need a helper everywhere 

on the mine site, Mr. Warner made the management decision that he no 

longer would have a helper. When Mr. Cass would not accept this decision, 

he was given the opportunity to think it over, and Mr. Warner left the 

door open for Mr. Cass to return to work. However, rather than returning 

tQ his job, Mr. Cass opted to pursue his complaint over the lack of a 

helper with MSHA. In these circumstances, I conclude and find that 

Mr. Cass abandoned his job voluntarily and that this was of his own do 

Having viewed all of the witnesses on the stand during the course 

of the hearing, I conclude that mine management, in the person of quarry 

superintendent Warner, treated Mr. Cass fairly and that Mr. Warner tried 

to mediate the differences between Mr. Haas and Mr. Cass. Further, 

Mr. Warner considered Mr. Cass to be a good worker and driller, accomodated 

him on more than one occasion when he requested certain equipment, 

allowed him to modify his drilling rig at company expense in order to 

make his job easier, and on at least one occasion Mr. Warner talked 

Mr. Cass out of quitting his job. 

Mr. Cass conceded that prior to his leaving his job, he filed no 

complaints with MSHA or with his union safety representative over any 

safety hazards connected with his drilling without a helper. Here, 

his concern was over his assertion that the location where he was required 

to drill isolated him from others working in the pit, and that they would 

be unable to come to his assistance in the event of an emergency. However, 

his testimony establishes that trucks passed by his drilling location on 

a regular and routine basis, and that his regular routine included a coffee 

2091 
break in the morning and time out for lunch. Although one would expect 

the drivers to pay attention to their driving, Mr. Cass conceded that 

they would have-him in sight as they drove by his drill rig. Given all 

of these circumstances, I doubt very much that Mr. Cass would not be 

seen by anyone in the event of an emergency during the time he was expected 

to drill the remaining six holes to complete his work project. 

The record in this case reflects that Mr. Cass had performed similar 

drilling duties for some eight years, most of the time without the 

assistance of a helper. Further, respondent has established that during 

this period of time, mine management accomodated Mr. Cass with a helper 

whenever one could be spared from other assignments. As a matter of fact, 

Mr. Cass was provided with a helper for most of the week leading up to 

the day he decided to leave his job, and at that time he had six holes 

left to drill to the project. 

I reject the assertion by Mr. Cass that he needed a helper for 

safety reasons and that the lack of such a helper placed him in such a 

hazardous situation that he could not safely do his job. I accept 

Mr. Warner 1 s testimony that the lack of a helper was not a safety hazard. 

His testimony, which I find credible, is supported the testimony of 

union sa representative Spooner. He finished the project left 

undone when Mr. Cass left his job, and he did it without a helper 

and with no exposure to any safety hazards. 

I also believe that Mr. Cass' insistence on a helper stemmed from 

an erroneous assumption on his part that the union contract required 

the assignment of a helper. In addition, I believe that he was also 

influenced some OSHA regulation which he claimed required that an 

observer or helper be assigned to a driller on general construction projects. 

All of these assumptions, which proved to be inapplicable in this case, 

obviously contributed to Mr. Cass' belief that he was entitled to a helper 

simply because he wanted one, regardless of any management decisions 

to the contrary. 

Conclusion and Order 

In view of the foregoing findings and conclusions, and after careful 

consideration of all of the evidence and testimony adduced in this case, 

I conclude and find that the respondent did not discriminate against 

Mr. Cass, and that his rights under the Act have not been violated. 

Accordingly, his discrimination complaint IS DISMISSED. 

~rp-Koutq;t:~ Administrative Law Judge 

Distribution: 

Melvin L. Cass, P.O. Box 14, Buckland, MA 91338 (Certified Mail) 

Lewis A. Whitney, Jr., Esq., One Campus Ln., E. Hampton, MA 01027 (Certified Mail) 

2092 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 24, 1982 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Contest of Cit 

Docket No. PENN 82-203-R 

Citation No. 11~6664; 3/1 82 

Docket No. PENN 82-204-R 

Citation No. 1146668; 3/15/82 

Renton Mine 

Civil Penalty Proceeding 

Docket No. PENN 82-217 

A.C. No. 36-00807-03118 

Renton 

Appearances: Robert M. Vukas ,· Esq. , Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Contestant/Respondent, Consolidation Coal 

Company; 

Before: 

Agnes M. Johnson-Wilson, Esq., of the 

Solicitor, u. s. Department of Labor, 

Philadelphia, Pennsylvania, for Respondent/ 

Petitioner, MSHA. 

Judge Merlin 

Statement of the Case 

The first two docket numbers captioned above are notices 

of contest filed by Consolidation Coal Company under section 

lOS(d) of the Act to challenge the validity of two citations 

issued by an inspector of the Mine Safety and Health Administration for alleged violations 30 C.F.R. § 75.1100-3. 

The third docket number is a petition for the assessment of 

civil penalties filed by the Secretary of Labor under 

section llO(a) of the Act for violations alleged in the 

citations. 

2093 
The hearing was held as scheduled on September 8, 1982. 

Documentary exhibits and oral testimony were received from 

both parties. The cases were consolidated for hearing and 

decision with the consent of the parties {Tr. 4). At the 

conclusion of the hearing, I directed the filing of written 

brie simultaneously by both parties within 21 days of 

receipt of the transcript (Tr. 148). 

The Mandatory Standard 

Section 75.1100-3 of the mandatory standards, 30 C.F.R. 

§ 75.1100-3, provides as follows: 

§ 75.1100-3 Condition and examination of firefighting equipment. 

All firefighting equipment shall be maintained in a usable and operative condition. 

Chemical extinguishers shall be examined every 6 

months and the date of the examination shall be 

written on a permanent tag attached to the 

extinguisher. 

The Cited Conditions or Practices 

Citation No. 1146664 (PENN 82-203-R) cites a violation 

of 30 C.F.R. § 75.1100-3 for the following condition: 

The chemical fire extinguisher located in the 

car shop was not maintained in an operable condition in that the gauge indicated that the 

extinguisher needed recharged [sic] . 

Citation No. 1146668 (PENN 82-204-R) cites a violation 

of 30 C.F.R. § 75.1100-3 for the following condition: 

The chemical fire extinguisher on the trackmens 

motor #18 was not maintained in a usable and 

operative condition in that the gauge indicated 

the extinguisher needed recharged [sic]. The 

motor was being operated along the empty track to 

the North Mains. 

2094 
Stipulations 

At the hearing, the parties agreed to the following 

stipulations which were accepted (Tr. 5): 

1. Consolidation Coal Company is the owner and 

operator the Renton Mine. 

2. The and the Renton Mine are subject 

to jurisdiction of the Federal Mine 

Safety and Health Act of 1977. 

3. The presiding administrative law judge has 

jurisdiction over this proceeding. 

4. The who issued the subject citations 

was a duly authorized representative of the 

Secretary. 

5. A true and correct copy of each of the 

tations was properly served upon 

6. All witnesses are accepted generally as 

experts in coal mine health and safety. 

7. Imposition of any penalties in this proceeding will not feet the operator's 

ability to continue in business. 

8. The violations were abated in good faith. 

9. The history of prior violations is noncontributory with respect to determining 

the amount of the civil penalties. 

10. The operator is large in size. 

11. The conditions set forth in the citations 

constituted violations of the cited 

mandatory standards. 

2095 
Discussion and Analysis 

As appears from the stipulations set forth above, the 

operator does not contest the finding that the two extinguishers which needed to be recharged were in violation of 

the Act as alleged. 

The issue presented for resolution is whether the 

subject violations were significant and substantial. I 

conclude first that a finding that a condition is "significant and substantial" properly may be included in a 

section 104(a) citation. Judge Broderick so held in 

National Gypsum Company 1 1 FMSHRC 2115 (1979) and this 

holding was not disturbed by the Commission on appeal. 

National Gypsum Company, 3 FMSHRC 822 {1981). 

In National Gypsum the Commission considered at length 

what would constitute a violation which "could significantly 

and substantially contribute to the cause and effect of a 

coal or other mine safety or health hazard." The Commission 

held that a violation was of such a nature as could significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard if, based upon the 

particular facts surrounding that violation, there existed a 

reasonable likelihood that the hazard contributed to would 

result in an injury or illness·of a reasonably serious 

nature. 3 FMSHRC at 825. In addition, the Commission 

expressed its understanding that the word 11 hazard 11 denoted a 

measure of danger to safety or health, and that a violation 

significantly and substantially contributed to the cause and 

effect of a hazard if the violation could be a major cause 

of danger to safety or health. 3 FMSHRC at 827. 

The record contains a great deal of testimony describing 

the areas where the two deficient fire extinguishers were 

located. The first fire extinguisher was in the car shop 

where there was oil and grease on the floor and some other 

combustible materials. The car shop itself had a concrete 

floor and concrete walls and its two entrances had metal 

doors. The second extinguisher was on the trackmen's motor 

which was covered with grease, oil and coal dust. In 

addition, power was ·going into the motor since the trolley 

pole was attached to a live wire. Welding and torching 

routinely occur at both locations. The repair of mine cars 

in the car shop requires welding which is done with acetylene 

torches. The trackmen's motor is used to carry equipment 

for repairing and rejoining rail tracks and cutting rails 

and bolts all of which is done· Y1ith torches. Gas bottles 

and cutting torches were on the motor at the time. 

2096 
After a review of the I have concluded that 

both violations were significant and substantial within the 

criteria set forth by the Commission. Both deficient 

extinguishers were present at locations where welding and 

torching were routinely out. The danger of f is 

inherent and ever present i~ the performance of these 

activities. Also to be noted the presence of some 

combustible materials in vicinity of the extinguishers 

and live power sources on the trackmen's motor. Injury or 

illness of a reasonably nature becomes a 

likelihood when firefighting equipment such as extinguishers 

not in working condition in such an environment. 

Accordingly, I determine that the particular circumstances 

presented here raise the of hazard in the ci 

violations to the level ficant and substantial. 

I have not overlooked operator's evidence regarding 

the presence of other f extinguishers within 50 to 100 

feet from the extingui Nor have I overlooked 

regarding the existence of rock dust. Assuming acceptance 

of this evidence, a of significant and substantial 

11 would be appropriate of the entire record. 

An MSHA electrical expert testified that when confronted 

with a fire, miners often panic, may not do the logical 

thing and may follow an unexpected course of action. I find 

the electrical expert's testimony persuasive and indeed, 

compelling and I accept it. Therefore, even if other f 

extinguishers and rock dust were where the operator al 

they were (and overlooking the absence of any evidence 

showing those extinguishers were in working order) , 

would be no guarantee that in the event of a fire a miner 

would go to the next nearest extinguisher or rock dust. As 

the electrical expert testified, a miner might run in the 

other direction and the f couple of minutes in any f 

critical with smoke the major problem. 

With respect to the amount of penalty to be assessed in 

accordance with the six statutory criteria set forth in 

section llO(i) of the Act, I conclude in accordance with the 

analysis set forth herein that violations were serious. 

Based on the evidence I next cone there was ordinary 

negligence. Stipulations 7-10 set forth above cover the 

remaining statutory criteria. 

I have reviewed the briefs. To the extent they are 

inconsistent with this decision they are rejected. 

209'( 
ORDER 

In light of the foregoing, it is Ordered that the 

operator's notices of contest be DISMISSED. 

It is further Ordered that a penalty of $200 be assessed 

for Citation 1146664 and that a penalty of $200 be assessed 

for Citation 1146668. 

It is further Ordered that the operator pay $400 within 

30 days from the date of this decisiono 

Paul Merlin 

Chief Administrative 

Distribution: Certified Mail 

Robert M. Vukas, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 

Agnes M. Johnson-Wilson, Esq., Office of the Solicitor, 

U. s. Department of Labor, Rm. 14480-Gateway Building, 

3535 Market Street, Philadelphia, PA 19104 

2098 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 24, 1982 

MATHIES COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MATHIES COAL COMPANY, 

Respondent 

DECISION 

Contest of Citation 

Docket No. PENN 82-209-R 

Citation No. 1145237; 3/30/82 

Mathies Mine 

Civil Penalty Proceeding 

Docket No. PENN 82-260 

A.C. No. 36-00963-03201 

Mathies Mine 

Appearances: Robert M. Vukas, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for 

Contestant/Respondent, Mathies Coal Company; 

Agnes M. Johnson-Wilson, Esq., Office of the 

Solicitor, U. S. Department of Labor, 

Philadelphia, Pennsylvania, for Respondent/ 

Petitioner, MSHA. 

Before: Judge Merlin 

Statement of the Case 

The first docket number captioned above is a notice of 

contest filed by Mathies Coal Company under section 105(d) 

of the Act to challenge the validity of a citation issued by 

an inspector of the Mine Safety and Health Administration 

for an alleged violation of 30 C.F.R. § 75.200. The second 

docket number is a petition for the assessment of a civil 

penalty filed by the Secretary of Labor under section llO(a) 

of the Act for the violation alleged in the citation. 

2099 
The hearing was held as scheduled on September 8, 1982. 

Documentary exhibits and oral testimony were received from 

both parties. The cases were consolidated for hearing and 

decision with the consent of the parties (Tr. 4). At the 

conclusion of the hearing, I directed the filing of written 

briefs simultaneously by both parties within 21 days after 

receipt of the transcript (Tr. 102). 

The Mandatory Standard 

Section 75.200 of the mandatory standards, 30 C.F.R. 

§ 75.200 provides as follows: 

§ 75.200 Roof control programs and plans. 

Each operator shall undertake to carry out on a 

continuing basis a program to improve the roof 

control system of each coal mine and the means and 

measures to accomplish such system. The roof and 

ribs all active underground roadways, travelways, and working places shall be supported or 

otherwise controlled adequately to protect persons 

from falls of the roof or ribs. A roof control 

plan and revisions thereof suitable to the roof 

conditions and mining system of each coal mine and 

approved by the Secretary ·shall be adopted and set 

out in printed form on or before May 29, 1970. 

The plan shall show the type of support and 

spacing approved by the Secretary. Such plan 

shall be reviewed periodically, at least every 

6 months by the Secretary, taking into consideration 

any falls of roof or ribs or inadequacy of support 

of roof or ribs. No person shall proceed beyond 

the last permanent support unless adequate temporary 

support is provided or unless such temporary 

support is not required under the approved roof 

control plan and the absence of such support will 

not pose a hazard to the miners. A copy of the 

plan shall be furnished to the Secretary or his 

authorized representative and shall be available 

to the miners and their representatives. 

2100 
The Cited Condition or Practice 

Citation No. 1145237 cites a violation of 30 C.F.R. 

§ 75.200 for the following condition: 

There was loose drawn roof at intersection 

in No. 2 track haulage entry surveyor spad 

No. 29+721 which measured approximately 80 ft. 

[in length] 16 ft. in width and was drawn 

approximately 2 inches across crosscut. 

Section foreman Martin Nogy. 

Stipulations 

At the hearing, the parties agreed to the following 

stipulations which were accepted (Tr. 5): 

1. Mathies Coal Company is the owner and operator 

of the Mathies Mine. 

2. The operator and the Mathies Mine are subject 

to the jurisdiction of the Federal Mine Safety 

and Health Act of 1977. 

3. The presiding administrative law judge has 

jurisdiction over this proceeding. 

4. The inspector who issued the subject citation 

was a duly authorized representative of the 

Secretary. 

5. A true and correct copy of the subject 

citation was properly served upon the 

operator. 

6. All witnesses are accepted generally as 

experts in coal mine health and safety. 

7. Imposition of any penalty in this proceeding 

will not affect the operator's ability to 

continue in business. 

8. The alleged violation was abated in good faith. 

9. The history of prior violations is noncontributory with respect to the amount of 

any civil penalty that may be assessed. 

10. The operator is large in size. 

2101 
The inspector testified that on the track haulageway 

there was loose or deteriorated roof, described as a cutter, 

for 80 feet near the the rib on the tight side and along the 

wide side for 40 feet. He also testified that there was a 

2-inch wide crack in the roof in the intersection extending 

across the 16-foot haulageway from the center to one side. 

According to the inspector the crack was in a clay vein and 

a clay vein is an indication most of the time of a deteriorated 

roof. Wedges were missing from two posts on the tight side 

outby the intersection. In addition, the inspector noted 

sloughage of the coal on the tight side which was being 

cleaned up at the time he saw the condition. The sloughage 

appeared to him to be of recent origin and in his opinion 

was an indication of pressure. Based upon what he saw the 

inspector believed that there was a reasonable likelihood of 

a roof fall which could result in death or crushing injury. 

The shift foreman told him that the operator knew of the 

condition and intended to install steel beams. The inspector 

felt he could not wait for the beams to be installed. The 

inspector admitted that there were eight to ten posts 

installed along the tight side of the entry outby the intersection and that the operator had done far more bolting than 

was required or necessary in the intersection. The inspector 

did not know the length of the bolts installed and did not 

ask because when he saw the separation in the roof and the 

stress he figured that whatever bolting had been done was 

not enough. The inspector also did not know if the crack 

along the clay vein had been present before the additional 

roofbolting had been done and he did not know if the crack 

had opened up more after the rebolting. He expressed the 

view that the sloughage indicated stress although he could 

not say whether the sloughing occurred before the additional 

bolts were put in. He had not seen the roof condition 

before he cited it or he did not recall seeing it. 

The operator's shift foreman testified that about 20 to 

22 days before the citation was issued this area had been 

mined through and the clay vein had been noticed indicating 

to him abnormal roof conditions which needed additional 

support. About a week after the original mining the operator 

installed 35 to 40 additional 12-foot roof bolts in the 

intersection and along the cutter on the rib for a distance 

of 120 feet. According to the shi foreman, after rebolting 

and until the citation was issued there was no change in the 

2102 
condition of the roof. In particular, the 2-inch gap along 

the clay vein was present at the time of rebolting and 

remained unchanged thereafter with no widening. Also the 

deteriorated roof along both ribs had been present at the 

time of rebolting and he did not see any change in this from 

the day of rebolting until the citation was issued. The 

shift foreman went through the area twice a week or more. 

With respect to the future installation of steel beams, the 

shift foreman testified that the operator was going to put a 

ramp in the next intersection inby this area which would 

necessitate taking more off the corner and thereby taking 

some support from the subject area. Steel beams were going 

to be installed for this reason and not because the 

subnormal nature the roof. The shift foreman admitted 

that he did not tell the inspector this was the reason steel 

beams were going to be installed. The shift foreman did not 

know exactly when the sloughing occurred, but he stated that 

at the time of rebolting there already was some sloughage 

from the ribs and that rebolting itself had caused some 

more. The sloughage had not been cleaned up at the time of 

rebolting. 

The operator's assistant supervisor who was the walkaround 

accompanying the inspector on the day the citation was 

issued, corroborated the shift foreman's testimony. He also 

stated that right after the area was mined through, a 

determination was made to install extra roof supports and 

this was done on March 13. The assistant supervisor agreed 

with the shift foreman that there was no change whatsoever 

in the roof along the cutter or in the crack, from the time 

of rebolting until the citation was issued. He further 

testified that he made it a specific point to go to the area 

and recheck it, that he went at least twice a week and that 

after the rebolting there was no additional sloughage. The 

assistant supervisor explained that the men whom the inspector 

saw cleaning up were removing sloughage which had been there 

from the time of rebolting. According to the assistant 

supervisor this was not a totally abnormal time for sloughage 

to be left. 

Finally, the operator's underground mine foreman 

testified that he had ordered the additional rebolting and 

he agreed with the statements of the shift foreman and the 

assistant supervisor about the rebolting. He also agreed 

that the roof including the gap in the clay vein had not 

changed after rebolting. He stated that some of the sloughage 

had been present before rebolting and some had been caused 

by the rebolting itself. 

2103 
The citation alleges a violation of 30 C.F.R. § 75.200 

which requires, inter alia, that the roof and ribs of all 

active underground roadways, travelways and working places 

be supported or controlled adequately to protect a person 

from falls of the roof or ribs. There is no contention that 

the operator failed to comply with its roof control plan. 

No dispute exists as to the condition of the roof when 

the inspector cited it. Therefore, I accept the inspector's 

description of the roof at that time. The issue presented 

is whether these conditions demonstrated that the roof was 

not adequately supported. I conclude they did not. The 

inspector knew additional bolting had been done but he did 

not believe the roof was adequately supported because of the 

sloughage, cutters and clay vein. He did not however, know 

the chronological sequence of relevant events affecting the 

nature and status of the roof. In particular, he did not 

know when the sloughing, clay vein and cutters occurred in 

relation to the rebolting. His conclusion that the roof was 

subject to stress and needed support was based upon the 

assumption that the sloughing and other conditions happened 

after the installation of additional roof supports. This 

assumption is shown to be wrong by the operator's evidence 

which demonstrates that there had been no change in the 

condition of the roof after rebolting and that the sloughage 

being cleaned up when the citation was issued was not of 

recent origin. The testimony of the operator's witnesses is 

consistent on this crucial point. Moreover, the operator's 

witnesses had been in the area from the time it was first 

mined until the citation was issued, whereas the inspector 

testified that he had not seen the intersection prior to his 

issuance of the citation or that at the very least he did 

not recall seeing it previously. 

I find the operator's evidence regarding the condition 

of the roof before and after rebolting persuasive and I 

accept it. Based upon this evidence I conclude the additional 

bolting was sufficient to support the roof and that there 

had not been further deterioration after rebolting. The 

fact that the inspector was mistaken in believing that the 

steel beams were going to be installed because of the 

condition of the roof may not have been his fault, but this 

circumstance cannot alter the fact that the evidence convincingly demonstrates the roof was adequately supported by 

the rebolting. 

I have reviewed the briefs. To the extent they are 

inconsistent with this decision they are rejected. 

2104 
ORDER 

In light of the foregoing, it is Ordered that the 

operator's notice of contest be Granted. 

It is further Ordered that the petition for the assessment 

of a civil penalty be Dismissed. 

-- \~ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: Certified Mail. 

Robert M. Vukas, Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 

Agnes M. Johnson-Wilson, Esq., Office of the Solicitor, 

U. S. Department of Labor, Rm. 14480-Gateway Building, 

3535 Market Street, Philadelphia, PA 19104 

2105 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

,r. l '. ·~ / .' ... ~·,· l\ ~,· ... t.~.~.:..-.·.l.·~-·.-.~ .. ·.~.:.:.~.·· ... ~~·,l \f···~~j, ~· ~ -~~ ~~ 

COH:!O::.'WEALTH }'11NING CO., INC., 

Applicant 

Notice of Contest 

v. 

SECRETARY OF LABOR, 

Responde::t 

DECISION 

Docket Nos. KENT 81-96-~ 

KENT 81-97-f\ 

No. 1 Surface Mine 

Appearances: Mr. Michael Templeman, for Applicant 

Carole M. Fernandez, Esq., for Respondent 

Before: Judge Fauver 

These proceedings were brought by Commonwealth .Mining Company, Inc. 

("Commonwealth")to review and have vacated two citations issued under the 

Federal :line Safety and Health Act of 1977, 30 U.S.C. § 801, ~seq. 

The cases were consolidated and heard in Louisville, Kentucky. 

Having considered the contentions of the parties and the record as 

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

substantial evidence establishes the following: 

FINDINGS OF FACT 

1. Commonwealth is the operator of No. 1 Surface Mine 'in Pike County, 

Kentucky, which produces coal for sale or use in or substantially affecting 

interstate commerce. 

2. On December 31, 1980, Mine Safety and Health Administration (HSHA) 

Inspector E.G. Cure issued a citation to the operator for failure to provide 

berms or guards along the entire length of the elevated roadway and pit area. 

According to the citation, the distance of roadway concerned was about 3/4's 

of a mile beginning at the entrance of the roadway and running to the end 

of the 001-0 pit area. 

3. At the time t.he citation was ~ssued the operator had built or was in the 

process of building a roadway along a .oal seam, at an elevation higher than 

the existing public road, which ran in o a creek bed. Berms were not adequately 

provided along this new roadway and el:ewhere, including along the top of the 

pit area. 

2106 
4. On January 9, 1981, Inspector Cure issued a citation to the mine 

operator for failure to maintain an accurate up-to-date mine map. The 

"relocated 11 roadway was not shown on the map, and a projected roadway 

was shown but had not been built. 

5. By letter of February 23, 1981, Commonwealth filed a notice of 

contest of the citations, which states that it had placed berms on the 

roadway that has not been designated a public road and that the map 

presented at the time the citation was issued meets all the requirements 

of 30 CFR § 75.1200. Further, the operator states that it was upgrad 

the road before mining operations bean. 

6. When the mine inspector arrived at the mine on December 31, 1980, 

he observed the operator building an elevated roadway along a coal seam, 

7. The operator admits that the road was built for the purpose o 

mining coal, as an access and haulage road. 

8. Commonwealth was under an agreement with the surface owner, Arnold 

Thacker, to remove the coal seam where the road was being built and to 

ve it to Thacker. Commonwealth had in fact al broken up so:ne of the 

coal and delivered it to Thacker. 

9. At the time the citation regarding the berms was issued, Commonwealth 

intended to remove the coal at the road construction site. 

DISCUSSION- WITH FURTHER FINDINGS 

Berms 

The operator is required by 30 CFR §. 77 .1605(k) to provide berms or 

guards on the outer bank of elevated roadways. In his testimony the inspector 

identified several locations where there were missing or inadequate berms 

beginning along the top of the pit down to and including th~ roadway, 

marked number one on the mine map, which the operator had constructed 

along the coal seam. 

Commonwealth does not deny that the berms were inadequte in the pit area" 

There is, therefore, no question that there was a violation of the regulation 

in that area. However, Commonwealth contends that it was not required to 

provide berms on the elevated roadway marked number one on the map because 

the roadway was a public road. 

The Act defines a "coal or other mine" to include not just the area of 

land from which the minerals are extracted but also "private ways and roads 

appurtenant to such area." In determining what will be considered a !!private" 

road as opposed to a "public" road for purposes of the Act, the fact that 

the County Judge (in letters introduced by Commonwealth) has declared the 

road to be a public road is not the determining factor. Nor is the Department 

of Interior's exercise of jurisdiction over roads determinative in this case. 

210 1

/ 
The jurisdiction of the Act extends over counties and other political 

subdivisions. In Secretary v. Salt Lake County Road Dept., WEST 79-365-M 

(Nov. 25, 1980), where a governmental entity was operating a gravel pit, 

the pit was found to be subject to MSHA regulation on the basis that the 

operation of a gravel pit is not an integral government function. 

If a county operates a mine and builds a road for the sole purpose of 

operating that mine, the road should not be considered a public road because 

the county built it; therefore, a road built by a private mine operator for 

the sole purpose of access to a mine and haulage should not be considered a 

public road for the purposes of the Act, merely because a county official 

has declared it "public" for county purposes. 

Several factors should be considered in determining the nature of the 

roadway involved in this case. 

First, the operator built the road. There was no evidence that the 

county had requested the construction or paid for it. The operator built 

the road for its own purpose, not for the county 1 s purposeso 

Second, the letters from the County Judge submitted in evidence by 

the operator indicate that the county considered the new roadway to be a 

public road in the sense that the county has required the company to 

comply with its standards in constructing the road. The county placed the 

burden on the operator to maintain the road. No evidence was presented that 

the county would not allow berms ·to be constructed on the roadway. 

Third, we should consider the "public" that will be making use of the 

road. The surface owner is Thacker. The portion of the road that was 

built by the operator and that the mine inspector considered to be in 

violation begins at the last dwelling house. There is no dwelling located 

on the new road. Except for Commonwealth's mining operations, the only 

persons who would normally use the road would be Lhe surface owner and 

his family and, if necessary, those seeking access to the gas well on 

the property. 

Commonwealth has not presented a letter from the county stating that 

Commonwealth cannot limit access to the road. Instead, it has presented 

letters from the private surface owner and his family stating that 

Commonwealth cannot deny them access to their property. 

The record indicates that Commonwealth had to obtain Thacker's 

permission to build the road on his property. There is no evidence of a 

public condemnation or a public easement. Rather, Commonwealth pays 

"royalities" to the Thackers to mine the coal, so there is a financial 

arrangement with regard to the coal whereby the surface owner profits 

from the mining operation. 

2108 
An issue similar to the one involved here arose in Harmon Mining 

Corporation v. Secretary of Labor, Docket No. VA 80-94-R, where a mine 

operator argued that the area on which N & W Railroad tracks were located 

was not part of the mine. Employees of the railroad company were on 

the property where the tracks were located on a daily basis. There was 

a fatal railroad haulage accident involving a railroad employee. In charging 

the mine operator, MSHA argued that a deed and agreement between the operator 

and the railroad granted an easement or license to the railroad for "the 

purpose of providing a mutually beneficial and convenient method of 

transporting coal off mine property." The mining company could not have 

operated without the services of N & W. The judge found that the railroad 

track was an "integral and indispensable part of contestant's mining operations" 

and rejected the attempt to divorce the track from the normal mining operations 

based on what he termed "a somewhat artificial and semantical interpretation" 

of the old deed and agreement "entered into by the contestant and the 

railroad for their mutual benefit." 

The analysis used in Harmon should be applied here, with the 

concept of private as opposed to governmental function in the Salt Lake 

County case. In the instant case, the coal operator could not use 

existing county road to haul coal, so it built a new road along a coal 

seam, for the sole purpose of access and haulage. The county required 

it to maintain the road to county_ standards. The road is located on land 

owned by Thacker, the surface owner who is under a contractual agreement 

with Commonwealth whereby the surface owner obtains a direct finanicial 

benefit from the mining of the- coal. The road under these circumstances 

if a private-purpose road and should therefore be considered a part of 

Commonwealth's mining operation, subject to the Act. 

The Citation Concerning the Mine Map 

Section 77.1200,30 CFR, requires a mine operator to "maintain an 

accurate and up-to-date map of the mine," and lists items that the map should 

include. Among these are "the location of railroad tracks and public highways 

leading to the mine." A reading of the list indicates that it is not an 

exclusive list. The fact that it mentions only public roads and railroad 

tracks does not mean that the location of roads within the mine are not 

required to be shown. 

The evidence establishes inaccuracies in the mine map as cited. As to 

one of these -- the failure to show a roadway -- Commonwealth contends that 

a hollow fill is shown on the map and that, where one sees a hollow fill one 

knows that there are "going to be roads all over" (Tr. 72, 106). The fact 

that one may assume that there will be roads does not mean that the location 

of the road actually used was properly shown on the map. 

2109 
MSHA regulations require that an accurate, up-tn-date map be available. 

Although Commonwealth argues that this is a difficult 1requirement, the 

testimony indicates that an engineer or surveyor had apparently already 

prepared an amendment for submission to the State Department of Reclamation, 

but there is no reason why the map provided at the mine could not 

have been changed or amended at the same time. 

If the mine operator had amended the map there was no evidence that 

the amendment was available at or near the mine to meet the requirements 

of § 77.1200. No amendment was provided to the mine inspector. Although 

30 CFR § 77.1201 that mine maps be made by a registered engineer 

or surveyor, this does not guarantee that a map that is accurate when made 

will remain accurate and up-to-date 

ORDER 

WHEREFORE IT IS ORDERED that Citations 953348 and 953357 are AFFI&~ED 

and the above proc are DISMISSED. 

CL.)·111. ..(...-~~ ~ t ?tAAV~ 

WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

Carole M. Fernandez, Esq., US Department of Labor, Office of the 

Solicitor, 280 US Courthouse, 801 Broadway, Nashville, TN 37203 

Michael lemen, President, Commomrealth Mining Co., I.nc., PO 

Box 2497, Pikeville, KY 41501 

2110 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

U.S. STEEL CORPORATION, 

Applicant 

v. 

SECRETARY OF LABOR, 

Respondent 

Vo 

SECRETARY OF LABOR, 

Petitioner 

v. 

U.S. STEEL CORPORATION, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DECISION 

Contest of Citation 

Docket No. PENN 81-207-R 

Cumberland Mine 

Civil Penalty Proceedi~g 

Docket No. PENN 81-221 

AC No. 36-05018-03089V 

Cumberland Hine 

Apppearances: Louise Q. Symons, Esq., U.S. Steel Corporation, Pittsburgh, PA 

for U.S. Steel Corporation 

Robert Cohen, Esqi, US rtment of Labor, Office of th~" 

Solicitor, Arlington, VA for Secretary of Labor 

Before: Judge Fauver 

These proceedings involve the same citation. Th= Secretary seeks a 

civil penalty and the operator seeks review and vacating of the citation, 

under the Federal Mine Sa and Health Act of 1977, 30 U.S.C. § 801, 

et seq. The cases were cons.olidated and heard at Morgantown, West V a. 

Having considered the contentions of the parties and the record as a 

whole, I find that the proponderance of the reliable, probative, and 

substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, U.S. Steel operated an underground mine known 

as Cumberland Mine, which produced coal for sale or use in or substantially 

affecting interstate commerce. 

2. On June 19, 1981, MSHA Inspector Robert Newhouse inspected the South 

Right section of the mine and found accumulations of loose coal and float coal 

dust in the center of the roadways and along the ribs in the areas and distances 

designated by spiraled lines on Govt. Exhibit No. 1. 

2111 
3. The accumulations were about five feet in width in the center of the 

roadways, smaller widths along the ribs, and ranged in depth from zero to four 

inches. The accumu-lations were black and had been run over by vehicles, 

accounting for the float coal dust. 

4. The mine liberates substantial quantities of methane. 

5. Based on his f , Inspector Newhouse issued a citation under 

section 104(d) of the Act, charging a violation of 75 CFR § 75.400. 

6. The areas cited were traveled by men and vehicles. 

7. There were sources of ignition in the cited areas. 

DISCUSSION WITH FI'.:-JDINGS 

The Secretary has charged U.S. Steel with a violation of 75 CFR § 75.400, 

which provides: 

Coal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other 

combustible materials, shall be cleaned up and not 

be permitted to accumulate in active workings, or on 

electric equipment therein. 

U.S. Steel contends that the.re was an accumulation of loose coai in 'only 

one of the cited areas, not in the rest cited by the inspector. This accumulation was described by a U.S. S~eel witness as being about ten feet 

two feet wide, an inch or two deep, and caused by spillage from a vehicle 

at the tion of No. 3 Entry and No. 94 Crosscut. It also contends 

that its dust samples taken in all the areas cited showed adequate ro~k-dust 

except in the one area in which it concedes tnere was an accumulation. 

I find that the inspector's testimony and his firsthand notes of his 

observations as to the accumulations are credible, and more reliable 

than the testimony of U.S. Steel's witnesses on these points. I also find 

that the dust samples introduced by U.S. Steel are not reliable because 

of a change of conditions in at least some of the areas and the likelihood of change in the others, between cne time the citation was issued 

and the time the dust samples were taKen. I credit the inspector's 

testimony as to color and approximate dimensions and quantities of loose 

coal and float coal dust in each of the cited areas. 

The accumulations constituted a serious violation because of the hazard 

of a methane or float coal dust explosion and its propogation by substantial 

quantities of combustible material accumulated over large areas. I also find 

that the accumulations could have been prevented by the exercise of reasonable 

care. The violation was an unwarranted failure to comply with the cited 

standard, due to the operator's negligence. 

2112 
CONCLUSIONS OF LAW 

1. The Commission has jurisdiction over the parties and subject 

matter of these proceedings. 

2. U.S. Steel violated 75 CFR § 75.400 as charged in Citatiou 

No. 843779. Based upon the statutory criteria for assess 

a civil penalty for a violation of a safety standard, U.S. Steel is 

assessed a penalty of $800 for this violation. 

Proposed findings or conclusions inconsistent with the above are 

rejected. 

ORDER 

WHEREFORE IT IS ORDERED: 

1. U.S. Steel shall pay the Secretary of Labor the above-assessed 

penalty of §800.00 within 30 from the date of this decision. 

2. Citation No. 843779 is A_FFIRHED, and the proceeding in Dock7t No:'. 

PENN 81-207-R is DIS~HSSED. 

U1/_iv~~v~ WILLIAM FAUVER,/JUDGE 

Distribution Certified Hail: 

Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant Street, Room 

1583, Pittsburgh, PA 15230 

Robert Cohen, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Boulevard, Arlington, VA 22203 

2113 
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 ANDHEALTH ADMINISTRATION 

on behalf of George Mateleska, 

Applicant 

v. 

SHANNOPIN MINING COMPANY, 

Respondent 

DECISION 

Application for Review of 

Discrimination 

Docket No. PENN 81-209-D 

MSHA CASE No. PITT CD 81-10 

Shannopin Mine 

Sol No. 12874 

Appearances: Covette Rooney, Esq., for Applicant 

Jane A. Lewis, Esq., for Respondent 

Before: Judge William Fauver 

This proceeding was brought by the Secretary of Labor on behalf of George 

Mateleska, under section lOS(c) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801, ~~· The Secretary charges a violation of that 

section, concerning Respondent's action in suspending Mateleska for five days 

without pay in March, 1981, and seeks back pay and other relief. 

The case was heard in Pittsburgh, Pennsylvania. 

Having considered the contentions of the parties and the record as a whole, 

I find that the preponderance of the reliable, probative, and substantial evidence 

establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent operated an underground coal 

mine known as Shannopin Mine, which produced coal for sale or use in 

or substantially affecting interstate commerce. 

2. George Mateleska, a miner at Shannopin Mine, was a member of the miners' 

Safety Committee from January 1980 until May 1981. 

3. On March 4, 1981, when Mateleska reported for work on the midnight 

shift, he was informed that, because of a water problem, the crew would be 

reassigned to another section of the mine. 

211 11 
4. I credit Mat~leska's testimony as to the events that followed,. including 

the following part of the transcript of his (Tr. pp. 10-16): 

Q. Could you describe for us the events that occurred when you reported 

for work on that shift? 

A. At 12:01, we was notified by foreman Jess Fox, that we wasn't to 

go to our job areas, and the crew in 213 Section was to be idle, 

due to the water at 11 Butt, and that we were supposed to go down the 

cage, and go to this waiting room, for job assignments. 

Q. Did you go to that area? 

A. Yes, ma'am, we did. 

Q. And what happened at that point? 

A. At that point~ there was approximately seven to eight guys in that wai 

room, and Jess Fox told us that we were back to 6 Flat A Section to 

retrieve 7200 cable. 

At this time, Jess Fox told Ed Martin and myself, to get two motors, and a 

flat car and proceed back, and that Don Deal's and Floyd Hornick would be 

back to 13 Butt to the pump, and Tommy Kurilko was the shift foreman, 

or the foreman on the section with these other foremen, he was to 

proceed with the jeep with these other men back to the section. 

Well Art Vernon was in the waiting room, he asked Jess Fox how he was 

going to these men back into A section, he told him that there 

was a water problem at 6 Flat 13 butt, and he wanted to know how 

he would the men around the water, and Jess asked him if there 

was any kind of transportation on the other side of the water, and 

Art told him yes, that his little eight ton motor was on the other 

side, that they could walk them around, and put them three or four 

at a time on the motor, and take them back to the section. 

Q. Let me ask you this, were you present when that conversation took place? 

A. Yes, man'am. 

Q. Okay. 

A. So Mr. Martin and I left, and everybody else left, the fire boss left, and 

Mr. Hornick left with Don Deal and Tommy Kurilko, and the rest of the men. 

So we went up to the dispatcher shanty, where we called the dispatcher to 

find out where our motors were located, we picked our motors up, and 

our flat car, and we proceeded on 4 Main, and then we crossed over 

to 3 Main, and down to the mouth of 6 Flat, and we called the dispatcher 

and got the of way on back to 6 Flat 13 Butt, where we met 

with Art Vernon around 4 Butt, 6 Flat, and we had to wait for Art 

to move out of our way, so that we could proceed on down to our jobsite. 

2115 
So we got down to 6 Butt, 13 or 6 Flat 13 Butt, and Floyd Hornick was 

present, Ed.Martin, the foreman Don Deal and myself. 

Tom Kurilko and the rest of the crew had already switched their jeep out 

the switch and had already proceeded back to retrieving the 7200 cable. 

So upon arrival at 6 Flat 13 butt, I asked Don Deal how these men got 

around the water, and he pointed to the left side, and wire side, of the 

section, so I went over and took a look, went over one block, and 

down, and there was no possible way for these men to get around this 

way, because there was a fall back there, so I come back out, and 

I talked with Floyd Hornick, in the pop house, and I come back out, 

and 1 told Don Deal, 1 says, I don't think that these men should 

be back in this area, due to the water problem, and I just feel that I 

should go out and get consultation with Danny Barzanti, because he is the 

Chairman of the Safety Committee, and 1 can't take it upon myself 

to do anything, so I asked him to stop my time, and I was going out 

on union business. 

Don said I think you are wrong George, but he said okay~ he said go ahead, 

but call the first phone, you call Jess Fox, the shift foreman, so I did 

that, and he told me to take the motor and go ahead out, so I took 

the motor and went in to the phone, and called Jess Fox, and told 

him the situation that I was coming out on union business, he okayed 

it, called the dispatcher back, he told me to proceed to the Mouth 

of 6 Flat, and to get further clearance from there. 

So as I proceeded up the haulage Art Vernon was there in my road, he was 

checking the pumps and whatever his job assignment was, but I would also 

like to state that Art Vernon was not fire bossing that night in 

that area, that he was on other assigned job somewhere else in the 

mine, but he was to check that pump or something. 

So I proceeded to mouth 6 Flat, where Art Vernon had switched out, and I 

called the dispatcher again, and he told me that Jess Fox had called him 

back, and for me to get in touch with Jess again, so he give me 

this number to call, and I called, at the mouth of 6 Flat, I kept 

calling, couldn't get through, and finally, I did get through to Jess, 

and he asked me, he told me rather, that he called Al Smalara, the 

superintendent of mines, and Al wanted to know if I was going to 

use my individual safety rights, I said, no, sir, and he said if 

you were, he said, I will have to assign you to another worksite, 

to another area of that mine, I said no, sir, it doesn't prevail 

here, I just want to talk with the chairman of the safety committee, 

and discuss this problem, I had already told Don Deal, and Jess Fox 

on the phone, that I wanted my time stopped, I was coming out on 

union business, and I proceeded out from the mouth of 6 Flat, I called 

Dan Barzanti, once I hit topside, and told him the situation, he came 

to the mine, and the next morning --

2116 
Q. Okay, before we go into the next morning, back to when you were at the 

location where the water was, you said that you went to the left of the 

water? 

A. 1Yes, man' am. 

Q. And you felt that the men could not get around that water, did you ever 

go to the right of the water? 

A. No, I didn't. 

Q. And for what reason? 

A. Because the foreman informed me that the men went to the left. 

Q. What hazard, or what problem did you see with the presence of the water 

in the section? 

A. The problems was it was so deep and so long, it was approximately three 

hundred feet long, and approximately eleven to thirteen inches deep~ and 

considering that they was going back there to retrieve 7200 cables 

how would we get this cable out, and if one of the men would get 

hurt back on that section, how would we get them back out of the 

mine, around that water, we would have to carry them a long distance, 

I didn't know if there was communications back there on the section, 

which I didn't go back to the section, I only went to the water at 6 

Flat, 13 Butt, and I just felt that the men shouldn 1 t be back in 

that area, as that part of the mine hasn't been worked for approximately two and one half years, and what was the big hurry, for the 

7200 cable that evening, to be retrieved. 

5. The section to wbich Mateleska and the rest of the crew were 

reassigned on March 4, i.e., 6 Flat A Section, was an inactive area that 

had not been an active working section for about 2 1/2 years. 

6. Art Verna, union fireboss, asked Jess Fox, shift foreman, how miners 

would get back into A section, because he had examined the area the day 

before and there was a water problem at 6 Flat 13 Butt. Fox asked 

him if there were any kind of transportation on the other side of 

the water. Verna informed him that an 8-ton motor vehicle, which 

could hold 3-4 men at a time, was available on the other side of 

the water but the men would have to walk around the water. 

7. Verna felt that the limitation of one vehicle which could hold 

only 3-4 men presented a danger. Additionally, he was concerned 

because the phone in the assigned area was inoperative (he had checked 

the phone the day before), and there was no radio on the motor. If an 

accident had occurred, the miners would have been isolated in the area 

without any communication. 

211'/ 
8. Metelaska had no means of contacting Barzanti while on the section. 

Mateleska did not attempt to stop any other miners from working, nor 

did he disrupt the work force when he left the area. 

9. There was another safety committeeman, Joe Varna, working on the midnight shift at 5 Face. Mateleska did not want to consult with him because 

this would have required Varna to leave his section and travel a long distance 

to get to t1ateleska's assigned section. If Varna left his section there would 

have been a disruption of production. 

10 • Mateleska's safety concern was that, in the event of an emergency, 

there might be serious difficulty in getting men out of the assigned 

area and around an accumulation of water 300 feet long and 11-13 inches 

deep. An injured man would have had to be carried a long distance, and 

Mateleksa did not know whether there was any communication back there. 

11. When Mateleska called Barzanti, he told him about the water, and he 

also told him about some other conditions that he considered hazardous. 

Mateleska had observed these other conditions on his way out of the mine. 

He had not stopped to record them or to make an examination of mine saf~ty 

conditions. 

12. Barzanti took notes of the water problem and the other safety problems 

Mateleska had mentioned, and compiled these into a list. 

13. When Smalara arrived at the mine on the morning of March 4, Meteleska, 

Barzanti and two mine committee members, Art Verna and Andy Wanto, met'with 

him. Meteleska's action and the safety items he raised were discussed with 

Smalara. 

14. As a result of that meeting, Barzanti, Mateleska, Verna, and Wanto 

understood that Smalara would take care of the listed safety items and that 

the matter of Mateleska having left his job site would be forgotten. 

15. About 4:45 p.m. on the same day, Mateleska received a phone call 

from Smalara, who informed him he had consulted with the president of the 

company, Dominic Esposto, and it was decided that Mateleska would be given 

a 5-day suspension without pay. 

16. On March 5 and 6, 1981, Mateleska filed a Mine Grievance Form and 

a Safety Grievance Form, after having consulted with his union representatives. 

Both grievances have gone through the first two grievance steps and are 

being held in abeyance pending the outcome of this case. 

17, On March 6, 1981 after his suspension, Mateleska submitted 

a 103(g) complaint to MSHA. An MSHA inspection on March 9, 1981 produced 

negative findings. 

18. On March 12, 1981, the union Safety Committee made a safety 

run of the area, to inspect the matters listed by Harzanti and to 

inspect the safety of the mine at specified locations. This indicated 

that only one item on Barzanti's list had been corrected. 

2118 
19. On April 6, 1981, Mateleska filed another section 103(g) complaint, 

this time alleging that a pre-shift examination had not been made of the A 

section before his shift on March 4. On April 8, 1981, MSl:L~ investigated 

the complaint and issued a 104(a) citation because the pre-shift examination 

had taken place 3 1/2 hours prior to the beginning of the shift. 

20. On a previous occasion, Mateleska had participated in a fatality 

investigation at the mine and Dominic to remarked that Mateleska 

was too harsh during the investigation and he wanted to see Mateleska off 

the committee. Later, in March 1981, at a meeting between the Mine 

Committees and management concerning Mateleska•s suspension, 

Esposto stated that, if Mateleska had invoked Article III of the 

contract, he would have "had him." When he came out of one meeting 

Mateleska's 5-day suspension and the list of safety items, Esposto stated to 

another management official, "I told you I was going to get him (Mateleska) 

off the Safety Committee." 

21. Floyd Hornick, Ed Martin and Art Verna, all miners on the March 4 

shift, felt that the water presented a potential safety hazard, 

but they did not refuse to work on the section. 

DISCUSSION WITH FURTHER FINDINGS 

On March 4, 1981, George Mateleska was given a 5-day suspension without 

pay for the following purported reasons: 1) abandoning his job duties and 

alleging to go out of the mine on union business, 2) resorting to 

instead of using the procedures of Article III (i) and (p) of the labor- -

management contract, and 3) acting as a "safety committee" in a 

list of alleged unsafe conditions in violation of Article III (d)(4) of the 

contract. 

On the midnight shift on March 4, Ma teleska was advised o;= a water 

em at 6 Flat A section, an area that had not been worked.iL for 

over 2-1/2 years. He and other members of his crew were assigned to work 

inby the water. The water readily accessible transportation into 

and out of the area. In the event of an emergency or injury, only three or 

four men could be transported at a time in the small motor vehicle available 

inby the water and once the motor reached the water the men would have to 

walk a long distance around it. At the time, Mateleska had a bona fide, 

reasonable belief that there were dangers involved in having the men work 

inby the body of water with limited transportation and possibly no communication 

in that area. He was a member of the Sa Committee and wanted to consult 

the chairman of committee in order to determine whether action by the committee 

should be taken. He asked his foreman, Deal, whether Deal would take him off 

the clock (i.e., stop his pay) so that he could leave the mine on union business 

to call the Safety Committee chairman, Barzanti. His foreman said he thought 

he was wrong about the safety problem, but gave him permission to leave the 

section on union business, and said he should call Jesse Fox, the next higher 

foreman, on his way out of the mine. Mateleska complied, and called Fox, 

who told him to call him back at a later point in his travel out of the mine. 

2119 
Mateleska did so. Fox then said he had talked to Smarlara, the mine 

superintendent, who wanted to know whether Mateleska was exercising his 

individual safety rights under the contract. Mateleska said, "No," that he 

was going out on union business. Fox said that, if Mateleska was exercising 

his individual safety rights, he would be assigned to other duties, meaning 

that during the time the safety matter was being investigated Mateleska could 

be assigned other duties. Mateleska repeated that he was not exercising such 

rights, b.ut was going out on union business to discuss the safety matter with 

the chairman of the Safety Committee. Fox said, "Okay," and gave him 

clearance to leave the mine. 

Mateleska's time was stopped as he requested, and the union paid 

for his time from the time he left the section with Deal's permission. 

At no time did Deal or Fox refuse Mateleska permission to leave the mine 

on union business. Mateleska did not disobey any order from amanagernent. 

In addition, there was a custom and practice, including a history with the 

predecessor owner of the mine, of permitt union committee 

members to leave the mine on union business. 

The miners' Safety Committee is an important link in the discovery 

and transmission of safety problems and complaints to MSHA, and it has 

the authority, as representative of the miners, to initiate section 

103(g) investigations by MSHA. The importance of this link is evident 

from section lOS(c) of the Act, which states in part: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged 

or cause discrimination against or otherwise 

interfere with the exercise of the statutory 

rights of any miner, representative of miners 

or applicant for employment in any coal or 

other mine subject to this Act because such 

miner, representative of miners or applicant 

for employment has filed or made a complaint 

under or related to this Act, including a 

complaint notifying the operator or the 

operator's agent, or the representative of 

the miners at the coal or other mine of an 

alleged danger or safety or health violation 

* * * 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. *** 

Mateleska was acting as a member of the Safety Committee~ in behalf 

of other miners and himself, in bringing a bona fide safety concern to the 

attention of his supervisors and in requesting and obtaining permission to 

leave the mine to discuss this concern with the chairman of the Safety 

Committee. These actions were protected activities within the meaning of 

section lOS(c) of the Act. 
Concerning the first ground for management's disciplinary action, 

I find that the attempt to deny management's previous permission to 

Mateleska to pursue the safety matter as union business outside the mine, 

on union time, was not in good faith and was in controversion of the clear 

facts. The facts showed, further, management animus toward Mateleska because 

of his safety work on the Safety Committee and a discriminatory intent by 

Esposto, the owner of Respondent, to get him off the Committee. 

Bad faith and a discriminatory intent on the part of management are also 

shown by the second ground for the discipline of Mateleska. The allegation 

that Mateleska resorted to "self help11 and should have exercised his rights 

under Article III(i) and (p) cannot be sustained. The contractual 

rights of section lll(i) are limited to a narrow class of hazards, those 

that are "abnormally and immediately dangerous ••• beyond the normal 

hazards inherent in the operation which could reasonably be expected to 

cause death or serious physical harm before such condition or practice can 

be abated." This was not Mateleska's situation. Mateleska felt the 

condition was abnormal but he was not sure that it presented an imminent or 

immediate danger. That is why he wanted to discuss the matter with the 

chairman of the Safety Committee. Section III(i) of the contract does not 

override the complaint rights guaranteed by section lOS(c) of the Act. 

An attempt to discipline a miner for failure to rely on the narrower scope 

of complaint rights under section III(i) contravenes the purpose of section 

lOS(c) of the Act. Nor could section III(p) be used to lessen Mateleska's 

rights under the Act. This contract section provides a procedure for 

settlement of health and safety disputes, which includes the filing of a 

grievance within 24 hours. That right exists under the contract, but it 

cannot override the greater protection of section lOS(c) of the Act. 

Management cannot discipline a miner because he chooses other means of 

calling safety problems to the attention of his supervisors, his union, 

or MSHA. 

Finally, the third ground for management's discipline of Mateleska shows 

discrimination and bad faith. Mateleska did not compile the list of safety 

problems or attempt to conduct a Safety Committee investigation in violation of 

section III(d)(4) of the contract. The list of safety problems was drawn up and 

presented by Barzanti, the chairman of the Safety Committee, who wrote down 

the conditions Mateleska had observed in going out of the mine. If management 

were in good faith in alleging this list and its presentation to be a violation 

of section III(d)(4), it would have charged Barzanti as well as Mateleska. 

Its action against Mateleska alone showed a discriminatory intent directed at 

him. Moreover, all miners are statutorily guaranteed the right to make complaints 

to their employers concerning alleged safety or health hazards or violations. 

An attempt to discipline a Safety Committee member for presenting hazards 

to management contravenes the μrevisions and purpose of section lOS(c) of the 

Act. 

The preponderance of the evidence shows that management discriminated t 

Mateleska because of safety-complaint activities that were protected by the Act. 

2121 
CONCLUSIONS OF LAW 

1. The Commission has jurisdiction over the parties and subject matter 

of this proceeding. 

2. On March 4, 1981, Respondent violated section 105(c) of the Act by 

suspending George Mateleska for five days without pay, as found above. 

Proposed findings or conclusions inconsistent with the above are rejected. 

PENDING A FINAL ORDER 

The Secretary shall have ten days from the date of this decision to submit 

a proposed order granting relief for the violation found above, with service of 

a copy on Respondent. Respondent shall have ten days from receipt thereof to 

reply to the proposed order. 

Disbribution Certified Mail: 

Covette Rooney, Esq., US Department of Labor, Office of the Solicitor, 3535 

Market St., Philadelphia, PA 19104 

Jane A. Lewis, Esq., Thorp., Reed & Armstrong, 2900 Grant Building, Pittsburgh, 

PA 15219 

*U.S. GOVERNMEll'I' PIU~!NGaFFIOE : 1982 0-,81-6,8/4377 2122