NOVEMBER 1984 

Commission Decisions 

09-12-84 Carolina Stalite Company 

(previously unpublished) 

BARB 79-319-PM Pg. 2518 

11-08-84 MSHA/George Logan v. Bright Coal Co. KENT 81-162-D Pg. 2520 

Administrative Law Judge Decisions 

11-09-84 

11-02-84 

11-05-84 

11-09-84 

11-09-84 

11-14-84 

11-14-84 

11-14-84 

11-16-84 

11-16-84 

11-19-84 

11-20-84 

11-21-84 

11-26-84 

11-27-84 

11-27-84 

11-28-84 

11-29-84 

11-30-84 

11-30-84 

Incoal, Incorporated (Correction) KENT 83-171 

Peabody Coal Company WEST 83-73 

MSHA/Gregory Brown v. A&L Coal Co., Inc.· SE 84-51-D 

United States Steel Corporation LAKE 82-35-M 

Tri-City Paving Company LAKE 84-51-M 

Joseph B. Necessary VA 84-17 

MSHA/Chester Jenkins. v. Hecla-Day Mines WEST 81-323-DM 

St. Joe Resources Company YORK 82-18-M 

Albert Vigne v. Gall Silica Mining Co. SE 84-2-DM 

Zapata Coal Corporation WEVA 84-122 

MSHA/I.B. Acton v. Jim Walter Resources . SE 84-31-D 

Peabody Coal Company KENT 84-97-R 

Grundy Mining Company, Inc. SE 83-29 

Markey Mines, Inc. & Calvin Black Enter. WEST 80-376-M 

MSHA/Patricia Anderson v. Stafford Constr. WEST 80-155-DM 

Southern Ohio Coal Company WEVA 84-166 

Jim Walter Resources, Inc. SE 84-66 

S.M. Lorusso & Sons, Inc. YORK 84-5-M 

United States Steel Mining Co., Inc. PENN 84-49 

Rushton Mining Company PENN 85-44-R 

Pg. 2529 

Pg. 2530 

Pg. 2549 

Pg. 2561 

Pg. 2565 

Pg. 2567 

Pg. 2600 

Pg. 2602 

Pg. 2625 

Pg. 2639 

Pg. 2649 

Pg. 2651 

Pg. 2657 

Pg. 2659 

Pg. 2680 

Pg. 2685 

Pg. 2690 

Pg. 2691 

Pg. 2693 

Pg. 2699 

NOVEMBER 

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

Secretary of Labor on behalf of Robert Ribel v. Eastern Associated Coal 

Corporation, Docket No. WEVA 84-33-D. (Judge Koutras, September 24, 1984). 

United Mine Workers of America v. Westmoreland Coal Company, Docket No. 

WEVA 81-256-C. (Judge Steffey, September 24, 1984). 

Disciplinary Proceedings, based on Roger Hutchinson v. Ida Carbon Corp., 

Docket No. D 85-1 (KENT 84-120-D) (Judge Broderick, November 1, 1984). 

Secretary of Labor, MSHA v. Kitt Energy Corporation, Docket No. WEVA 83-

125-R. (Judge Fauver, October 4, 1984). 

United Mine Workers of America v. Greenwich Collieries, Docket No. 

PENN 84-158-C. (Judge Koutras, October 18, 1984). 

Secretary of Labor on behalf of 4 miners v. Jim Walter Resources, Docket 

Nos. SE 84-35-D, SE 84-45-D, SE 84-47-D, SE 84-52-D. (Judge Melick, 

October 15, 1984). 

Lonnie Jones v. D & R Contractors, Docket No. KENT 83-257-D(A). (Judge 

Melick, October 18, 1984). 

Secretary of Labor, MSHA v. Jim Walter Resources, Inc., Docket Nos. 

SE 84-66, SE 84-67. (Judge Kennedy, October 19, 1984) 

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

Secretary of Labor, MSHA v. U.S. Steel Mining Co., Docket No. SE 84-10. 

(Judge Koutras, October 1, 1984) 

Secretary of Labor, MSHA v. Montana Contract Mining, Docket No. 

WEST 83-83-M. (Judge Morris, October 1, 1984) 

Secretary of Labor, MSHA v. Bigelow-Liptak Corporation, Docket No. 

CENT 84-24-M. (Judge Moore, October 17, 1984) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CAROLINA STALITE COMPANY 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CAROLINA STALITE COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 12, 1984 

ORDER 

Docket Nos. BARB 79-319-PM 

SE 79-56-M 

SE 79-91-M 

SE 79-92-M 

SE 79-93-M 

SE 79-94-M 

SE 79-95-M 

SE 79-85-M 

SE 79-87-M 

SE 79-114-M 

SE 80-35-M 

SE 80-37-M 

SE 80-44-M 

Docket Nos. SE 80-21-M 

SE 80-61-M 

SE 80-73-M 

SE 80-79-M 

SE 81-6-M 

On May 15, 1984, the U.S. Court of Appeals for the District of Columbia 

Circuit issued its decision in Donovan v. Carolina Stalite Co., 734 F.2d 

1547, reversing the Commission's decisions in Carolina Stalite Co., 4 FMSHRC 

423 (March 1982)(Docket Nos. BARB 79-319-PM, etc.), and Carolina Stalite Co., 

4 FMSHRC 910 (May 1982)(ALJ)(Docket Nos. SE 80-21-M, etc.), and holding that 

Carolina Stalite's facility is a "mine" subject to the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 .!:!_~· (1982). The Court remanded 

the cases for further proceedings consistent with its opinion. The Court 

issued the certified copy of its judgment on August 22, 1984. 

In accordance with the Court's opinion, the administrative law judge's 

decision in Docket Nos. BARB 79-319-PM, etc., reported at 2 FMSHRC 3508 

(December 1980), assessing civil penalties totalling $14,542.00, is 

reinstated as the final order of the Commission. Docket Nos. SE 80-21-M, 

etc. are remanded to the administrative law judge originally assigned for 

further proceedings including the assessment of appropriate civil penalties. 

2518 
We additionally address an apparent misperception of Commission case 

law that is reflected in the Court's opinion. The Court stated, "The 

Commission construed the statute ••• to require a company actually to extract 

a mineral before being subject to Mine Act jurisdiction." 734 F.2d at 1551. 

We emphasize that no such restriction was intended by our decision in this 

matter. See Alexander Brothers, Inc., 4 FMSHRC 541, 543-44 & nn.8 & 9 

(April 1982), in which we held that a connection with the extractor was 

not required for a facility to be subject to the 1969 Coal Act. Such a 

connection is also not required for coverage under the Mine Act. I./ 

~chard V. Back~~~ ;;ft . r , ,e_~v .. (_~-&?\ .. / 

L. Clair Nelson, Commissioner 

1/ The terms of office of our former colleagues, Commissioners Frank F. 

Jestrab and A. E. Lawson, expired at the end of day on August 30, 1984. 

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we have 

designated ourselves as a panel of three members to exercise "all of 

the powers of the Commission," including the issuance of orders and 

decisions in proceedings before this Commission. 

2519 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 8, 1984 

on behalf of GEORGE ROY LOGAN Docket No. KENT 81-162-D 

v. 

BRIGHT COAL COMPANY, INC. and 

JACK COLLINS 

DECISION 

This proceeding involves a discrimination complaint brought by the 

Secretary of Labor on behalf of George Roy Logqn under section 105(c)(2) 

of the Federal Mine Safety and Health Act of 1977 (the "Mine Act"), 

30 U.S.C. § 815(c)(2). The Secretary alleges that Logan was unlawfully 

discharged by Bright Coal Company, Inc. ("Bright") and, individually, by 

his former supervisor, Jack Collins. The basic legal claim underlying 

the complaint is that on or about January 19, 1981, Logan engaged in 

safety activity protected by the Mine Act by refusing to set safety 

posts in an area of broken, unsupported, dangerous top, and that Logan 

was discharged by Collins for engaging in such activity. The administra-

·tive law judge held in favor of Bright and Collins, and dismissed the 

Secretary's complaint. 4 FMSHRC 1343 (July 1982)(ALJ). For the reasons 

that follow, we reverse and remand with instructions for further proceedings. 

I. 

The primary issue before us arose in the discovery phase of this 

litigation. Respondents Bright and Collins sought production from the 

Secretary of all statements given to the Secretary by Logan and others, 

as well as the Secretary's records relating to his investigation of the 

case. Respondents filed a motion to compel production of the documents 

on the grounds that they were essential to the preparation of respondents' 

defense, and that the Secretary had not shown that the information was 

protected from disclosure. 

The Secretary maintained that all statements made by Logan had been 

provided to respondents during the course of Logan's deposition. The 

Secretary declined to produce the other requested documents asserting 

that they "would reveal or tend to reveal the identity of informers who 

may have given information to the Secretary," and that such information 

2520 
was protected pursuant to the informer's privilege, the attorney work 

product privilege, and the executive privilege. 1/ The Secretary 

opposed respondents' motion to compel production-; stating that the 

motion was unsupported, inasmuch as respondents failed to demonstrate 

that the documents requested were essential to preparation of their 

case, the existence of extraordinary circumstances requiring disclosure, 

or their inability to obtain elsewhere the information sought. 

Respondents filed an amended motion to compel production stating 

that their need for the requested documents was "apparent," that the 

Secretary had made no showing that the documents were privileged, that 

certain of the documents bear upon the integrity of the investigation 

conducted by the Mine Safety and Health Administration ("MSHA"), and 

that the Secretary's fear of possible economic reprisal by the operator 

against miners who had given statements was moot because the operator 

had ceased operations. Respondents sought an order from the judge 

compelling the Secretary to comply with their amended request for 

production including, among other things, "all documents and witnesses, 

not expected to be introduced, which or who tend to disprove the allegations 

of the applicant." 

Such was the procedural and legal posture of the question of 

privilege as it was placed before the administrative law judge. The 

judge noted that the provisions of Commission Rule 59, 29 C.F.R. 

§ 2700.59, relating to disclosure of miner witnesses and informants, 

must be observed. ]:_/ The judge ruled that an "informer" is one who 

provides MSHA with information detrimental to an operator. According to 

the judge, a person who gives the Secretary information favorable to an 

operator is not an informer and that person's identity must be disclosed 

by the Secretary upon request. The judge also ruled that all statements 

in the Secretary's possession which tend to disprove the allegations of 

the discrimination complaint were to be disclosed. 

]:_/ It is apparent that the Secretary's underlying motive for invoking 

the executive and attorney work product privileges is to shield the 

identity of informers. Accordingly, this case is resolved straightforwardly by addressing the issue presented solely in the context of the 

informer's privilege. Should the Secretary determine that continued 

litigation of the claimed attorney work product privilege is necessary 

in this case, he may reassert and further support it before the administrative law judge below. The Secretary has declined to pursue on 

review the applicability of the executive privilege. 

]:_/ Rule 59 provides: 

Name of miner witnesses and informants. 

A Judge shall not, until 2 days before a hearing, disclose or 

order a person to disclose to an operator or his agent the name of 

a miner who is expected by the Judge to testify or whom a party 

expects to summon or· call as a witness. A Judge shall not, except 

in extraordinary circumstances, disclose or order a person to 

disclose to an operator or his agent the name of an informant who 

is a miner. 

2521 
The Secretary requested the judge to reconsider his ruling. The 

Secretary stressed that, through the depositions that had been taken, 

the respondents already had been supplied with the names of all persons 

having knowledge of the facts. The Secretary argued that the narrow 

definition of "informer" adopted by the judge defeated the underlying 

purpose of the informer's privilege. He maintained that if he were to 

comply with the judge's order, the respondents, being aware of all 

persons having knowledge of the facts, and being provided with the 

identities of those persons who made statements favorable to the 

respondents, could thereafter readily determine the identity of those 

persons who had made statements detrimental to their.position. 

The judge rejected the Secretary's arguments. He ruled that a 

person making a statement to the Secretary which tended to discredit 

Logan, or that would show that there was no discrimination, was not an 

informer and that such person's identity and statements were not 

privileged. According to the judge, if an individual gave information 

favorable to the respondents, but also reported a violation of the Mine 

Act, MSHA was to disclose the former information in such a way as to 

avoid revealing the latter. If individuals who made statements favorable to the respondents were called as witnesses, the judge directed 

that no questions be asked of them that would tend to reveal whether 

they had reported violations of the law. 

The Secretary declined to produce the documents in accordance with 

his policy of protecting confidential sources. The judge, in turn, 

issued an order listing a number of sanctions he would impose at the 

hearing should the Secretary refuse to comply with the particulars of 

his order. The judge also issued a subpoena duces tecum to the Secretary 

compelling him to bring to the hearing all documents tending to disprove 

the allegations of Logan, and the names of witnesses which these documents 

indicated would testify adversely to the Secretary's position. 

Respondents filed a motion to dismiss on the ground that the 

Secretary had failed to comply with the judge's orders. The Secretary 

did not oppose dismissal. The judge, however, denied the operator's 

motion for dismissal noting the absence of assent by the alleged 

discriminatee, Logan. Shortly before the hearing, the Secretary provided the judge and counsel for respondents with a copy of his investigative file, except for those items which the Secretary deemed to be 

privileged, and a list of all persons whose names appeared in his file, 

including those believed to have knowledge of relevant facts. 

II. 

The informer's privilege is the well-established right of the 

government to withhold from disclosure the identity of persons furnishing 

information of violations of the law to law enforcement officials. 

Roviaro v. United States, 353 U.S. 53, 59 (1957). See generally Annot., 

8 ALR Fed. 6 (1971). The purpose ~f the privilege is to protect the 

public interest by maintaining a free flow of information to the government 

2522 
concerning po.ssible violations of the law and to protect persons supplying 

such information from retaliation. Roviaro, 353 U.S. at 59; Hodgson v. 

Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 305 (5th 

Cir. 1972). The privilege is qualified, however, and where disclosure 

is es~ential to the fair determination of a case, the privilege must 

yield or the case may be dismissed. Roviaro, 353 U.S. at 60-61. 1../ 

Respondents contend that the Secretary improperly attempted to 

limit the scope of discovery based solely upon a bare assertion of 

privilege without proper support by affidavit or proof of the applicability of the privilege. The burden of proving facts necessary to 

support the existence of the informer's privilege rests with the 

Secretary. Secretary of Labor v. Stephenson Enterprises Inc., 2 BNA OSHC 

1080, 1082 (1974), 1973-74 CCR OSHD ,I 18, 277 at 22, 401, aff 'd, 578 F. 2d 

1021 (5th Cir. 1978). In the instant case, counsel for the Secretary 

asserted the privilege and resisted attempts by the respondents to 

obtain the disputed material. There is authority for the proposition 

that the privilege can be invoked only through the filing. of a formal 

claim of privilege and confidentiality by the head of the department 

with control over the matter, supported by affidavits attesting to facts 

sufficient to allow an independent judicial determination that the 

privilege exists. Fowler v. Wirtz, 34 F.R.D. 20 (S.D. Fla. 1963); Cf. 

Black v. Sheraton Corp. of America, 564 F.2d 531, 543 (D.C. Cir. 1977). 

The great weight of case law concerning the privilege, however, addresses 

and disposes of the issue without focusing on whether the privilege was 

"formally" raised. Here the claim of privilege was raised by the Secretary's 

trial attorney in response to the respondents' motions and the judge's 

orders. While the Secretary's claim of privilege may not have been 

raised in as formal and complete a fashion as possible, it was raised 

with sufficient formality to alert the judge and the opposing parties to 

the possibility of harm that could occur from disclosure of the statements. 

We therefore hold that the Secretary's method of raising the privilege 

was sufficient. We proceed with analysis of the general issue. 

1../ Before the question of privilege is reached, it must be determined 

whether the information sought through discovery is relevant to the 

subject matter of the proceeding. Wirtz v. Continental Finance and Loan 

Co., 326 F.2d 561, 563 (5th Cir. 1964). The scope of discovery in 

Commission proceedings is governed by Commission Procedural Rule 55(c), 

which provides: 

Parties may obtain discovery of any relevant matter, 

not privileged, that is admissible evidence or appears 

reasonably calculated to lead to the discovery of 

admissible evidence. 

29 C.F.R. § 2700.55(c). No one has disputed the relevancy of the information contained in the statements sought by respondents. Certainly, the 

judge appears to have considered the material to be relevant. Given the 

absence of objection, the judge's rulings, and the broad interpretation 

traditionally accorded r~ies governing discovery, we assume that the 

material subject to the judge's orders is relevant, and proceed to 

consider whether the informer's privilege applies. 

2523 
Although it is not absolutely clear from the record whether the 

Secretary is actually asserting the informer's privilege on behalf of 

non-miners as well as miners, the public interest in protecting persons 

who discuss alleged Mine Act violations with government officials is 

served regardless of the relationship of the informer to the alleged 

violator, i.e., whether the informer is an employee of the respondent or 

a non-employee. Courts have long recognized the obligation of all 

citizens to cooperate in law enforcement efforts and have encouraged and 

protected the communication of possible violations of law by shielding 

the informer's identity. Roviaro, 353 U.S. at 59. In addition, it has 

been held that the informer's privilege is applicable to any person 

furnishing information to government officials concerning violations of 

the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et~· 

Secretary of Labor v. Quality Stamping Products Co., 7 BNA OSHC 1285, 

1288 (1979), 1979 CCR OSHD ,I 23,520 at 28,504 (OSHRC). We believe that 

a similar conclusion is appropriate under the Mine Act. 

The Mine Act and its legislative history reflect congressional 

concern about the possibility of retaliation against miners who par~ 

ticipate in enforcement of the Act. Section 103(g)(l) provides miners 

with the right to obtain an immediate inspection of the mine upon the 

miner's notification to the Secretary of the existence of a violation or 

danger. 30 U.S.C. § 813(g)(l). This section further provides that ''the 

name of the person giving said notice and the names of individual miners 

referred to therein shall not" be provided to the operator. See S. 

Rep. No. 181, 95th Cong., 1st Sess. 29 (1977), reprinted in Senate 

Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d 

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

at 617 (1978) ("Legis. Hist."). Similarly, section 105 (c) (1) of the Act 

proscribes discrimination where, among other things, a miner has instituted 

or caused to be instituted any proceeding under or related to the Act, 

or has testified or is about to testify in any such proceeding. 30 U.S.C. 

§ 815(c)(l); Legis. Hist. at 623. We believe that these expressions of 

congressional concern for protecting the identity of miners who contact 

the Secretary regarding violations of the Act, and otherwise protecting 

miners who participate in enforcement of the Act, underscore the need 

for the recognition and proper application of the informer's privilege 

in Mine Act proceedings. Therefore, in order to maximize the lines of 

communication with the Secretary concerning violations of the Mine Act, 

we hold that a person's status as an informer is not dependent on 

whether that person is an employee of a mine operator. The presence of 

an employment relationship, however, with the greater opportunity for 

retaliati0n that it provides, is a relevant factor to be considered in 

conducting the balancing test, discussed infra, for determining whether 

the privilege must yield in a particular case. 

The crucial issue in the present case remains whether the substance 

of the :qn_formation furnished to the Secretary by an individual is 

determitjative of that person's status as an informer. Respondents 

contend that the administrative law judge properly ruled that persons 

who furnish the Secretary with information favorable to the operator are 

not infor~ers. The Secretary maintains that an informer is entitled to 

anonymity, regardless of the substance of the information he furnishes. 

2524 
We hold that the applicability of the informer's privilege to the 

Mine Act does not rise or fall based upon the substance of a person's 

communication with government officials concerning a violation of law. 

To hold otherwise would undermine the very purpose of that privilege. 

The informer's privilege is recognized at law in order to encourage all 

citizens to cooperate with government officials who are investigating 

possible violations of our nation's laws. To ensure that this public 

interest is fully served, it is essential that citizens who communicate 

with government officials in such investigations can be confident that 

their cooperation will not affect them adversely. This confidence would 

be seriously eroded, and the citizenry's desire to cooperate by communicating with government officials chilled, if the substance of a communication were held to control the disclosure or non-disclosure of the 

identity of the person giving the statement. 

The practical reasons underlying this conclusion are manifest. Not 

only could disclosure of the identities of persons giving favorable 

statements to MSHA lead, by process of deduction, to the identification 

of those persons giving adverse statements, but persons identified as 

giving favorable statements would be vulnerable to direct or subtle 

pressure to give even more favorable testimony. Cf. NLRB v. Robbins 

Tire and Rubber Co., 437 U.S. 214, 240 (1978). Furthermore, even though 

statements favorable to a party would not be resented by that party, 

other interested persons or parties might not hold as charitable a view 

of the "favorable" statements. Id. Finally, a disclosure test that 

turns on the "favorable" or "unfavorable" nature of the contents of a 

statement would place on the government an obligation difficult to 

discharge due to the inherent subjectivity of the judgment required. 

Therefore, we hold that the judge erred in ruling that the informer's 

privilege applies only to persons furnishing information detrimental to 

a party. Rather, an "informer" is a person who has furnished information 

to a government official relating to or assisting in the government's 

investigation of a possible violation of law, including a possible 

violation of the Mine Act. Because the judge applied an erroneous test 

in ruling that the Secretary was required to disclose information and 

thereafter imposed sanctions against the Secretary for his failure to 

make that disclosure, a remand to the judge for application of the 

proper test is necessary. 

Given the ~rocedural posture of this case, on remand the judge 

should order the Secretary to turn over the balance of the material 

withheld for an in camera inspection. In evaluating this material, the 

judge should first determine whether the information sought by the 

respondents is relevant and, therefore, discoverable. If he concludes 

that the material is discoverable, he should then determine whether the 

information is privileged. Application of the informer's privilege 

should be based upon the definition of "informer" adopted above. 

2525, 
Recognizing that the informer's privilege is qualified, if the 

judge concludes that the privilege is applicable, he should next conduct 

a balancing test to determine whether the respondents' need for the 

information is greater than the Secretary's need to maintain the privilege to protect the public interest. Drawing the proper balance 

conc~rning the need for disclosure will depend upon the particular circumstances of this case, taking into account the violation charged, the 

possible defenses, the possible significance of the informer's testimony, 

and other relevant factors. Among the relevant factors to be considered 

are the possibility for retaliation or harassment, and whether the 

information is available from sources other than the government. 

The burden of proving facts necessary to show that the information 

is essential to a fair determination rests with the party seeking 

disclosure. Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 

459 F.2d at 307. In this regard a demonstrated, specific need for 

material may prevail over a generalized assertion of pr"ivilege. Black v. 

Sheraton Corp. of America, 564 F.2d at 545. Some of the factors bearing 

upon the issue of need include whether the Secretary is in sole control 

of the requested material or whether the material which respondents seek 

is already within their control, and whether respondents had other 

avenues available from which to obtain the substantial equivalent of the 

requested material. Where the disclosure of the identity of an informer 

is essential to a fair determination of the case, the privilege must 

yield or the case may be dismissed. Roviaro, 353 U.S. at 59. 

If, on the one hand, the judge concludes that the Secretary's need 

to preserve the identity of his informers should prevail, he should deny 

the amended motion to compel production of documents, seal the material 

previously withheld as part of the record for use on any appeal, and 

proceed to decide the case on the merits without resort to the sanctions 

previously imposed due to the Secretary's nondisclosure of the statements. 

If, on the other hand, the judge concludes that the respondents' need 

for this information is essential for a fair determination of the case, 

and that the privilege must yield, he should order the Secretary to 

disclose the information. T~e judge may, at his discretion, conduct a 

limited hearing to afford the parties an opportunity to develop additional 

evidence based upon the disclosure. He should then proceed to decide 

the case solely on the basis of the supplemented record. Should the 

Secretary resist the judge's order to disclose, dismissal of the proceeding is the appropriate sanction with further review available in 

accordance with section 113(d)(2) of the Mine Act. 30 U.S.C. § 823(d)(2). 

In any event, the judge's decision must be supported by findings of fact 

and conclusions of law, and be grounded in the body of case law developed 

by the Commission in the areas of work refusal and discriminatory discharge. 

2526 
For the reasons set forth above, we reverse the decision of the 

administrative law judge and remand the case to him for further proceedings consistent with this decision. 

~~ Richard V. Backley, Acting Chairman J 

L. Clair Nelson, Commissioner 

252'7 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 9 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

INCOAL, INCORPORATED, 

Respondent 

Docket No. KENT 83-171 

A/O No. 15-02290-03508 

Docket No. KENT 83-240 

A.C. No. 15-02290-03512 

No. 11 Mine 

CORRECTION TO DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

A decision approving settlement was issued in the above 

cases on October 31, 1984. The wording of the decision 

should be corrected as follows: 

Page 2, paragraph 7, the first sentence 

should read as follows: 

Thus, the nine violations were originally 

assessed at a total amount of $64,000 • 

.t;ei-w .c; ,A-/!iz'.d;Y; t:f 

James A. Broderick 

Administrative Law Judge 

Distribution: 

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

Department of Labor, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

Robert I. Cusick, Esq., Wyatt, Tarrant & Combs, 

2600 Citizens Plaza, Louisville, KY 40202 (Certified Mail) 

/fb 

2528 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 NOV 2 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

Docket No. WEST 83-73 

A.C. No. 02-00533-03503 

Black Mesa Mine 

DECISION 

Appearances: Marshall P. Salzman, Esq., Office of th8 Solicitor, 

U.S. Department of Labor, San Francisco, 

California, 

Before: 

for Petitioner; 

Michael O. McKown, Esq., Peabody Coal Company, 

St. Louis, Missouri, 

for Respondent. 

Judge Morris 

This case, heard under provisions of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et~., (the "Act"), 

arose from an inspection of the Black Mesa surf ace coal mine 

operated by Peabody Coal Company. The Secretary of Labor seeks 

civil penalties because respondent allegedly violated two safety 

regulations adopted under the authority of the Act. 

Procedural History 

After notice to the parties, an expedited hearing was held 

in Phoenix, Arizona on December 13, 1983. The parties filed 

post-trial briefs and on March 6, 1984 the judge's decision was 

issued. On March 26, 1984 the judg~ received a motion for a 

rehearing filed by Peabody. The parties were advised by the 

judge that his jurisdiction had terminated. The motion was, 

accordingly, forwarded to the Commission. 

On April 4, 1984 the Commission directed the judge to 

consider and rule on the operator's motion and to take such 

further action as might be necessary or appropriate (Order, April 

4, 1984). 

2530 
On April 10, 1984 the judge granted the parties an 

opportunity to state their views concerning Peabody's motion. 

The judge further indicated that if the motion was granted he 

would take official notice of the trial transcript in El Paso 

Rock Quarries, Inc., 3 FMSHRC 35 (1981). 

After considering the response of the parties the judge 

granted Peabody's motion (Order, April 25, 1984). 

On September 11, 1984 a supplemental hearing was held in 

Denver, Colorado. The parties waived their right to file further 

briefs and they rested on their oral arguments. 

Citation 2006837 

In connection with this citation the Secretary of Labor 

seeks a civil penalty of $2,000 because Peabody failed to provide 

a berm on its elevated roadway, thereby violating the mandatory 

standard published at 30 C.F.R. § 77.1605(k), which provides: 

Ck) Berms or guards shall be provided on the 

outer bank of elevated roadways. 

Issues 

The issues are whether berms are to be provided at the edge 

of a bench in the working pit of a multiple seam surface coal 

mine. Further, a secondary issue is whether the diminution of 

safety doctrine is viable. 

Summary of the Evidence at the 

hearing in December, 1983 

The facts surrounding the death of dozer operator Cecil 

Yazzie are basically uncontroverted. 

Petitioner's evidence, in the main, addresses the details of 

the accident. Peabody's evidence generally addresses the 

operation of its surface coal mine. A sketch, Exhibit Pl, 

illustrates the location of the highwall, the coal seam, the path 

of Yazzie's dozer, the keyway and the spoil pile. 

William G. Denning testified for MSHA: In November 1982 MSHA 

Inspector Denning investigated a fatal accident that occurred in 

the Jl-N6 (hereafter J-1) pit at Peabody's Black Mesa coal mine 

(Tr. 7, 10, 11; Exhibit Pl). His investigation established that 

on November 5, 1982, at the commencement of the shift, at 4 p.m., 

dozer operator Cecil Yazzie met his supervisor, Moree, in the pit 

area. Moree drove Yazzie through the pit from the coal face on 

the Blue seam coal bench to Ramp c. Moree instructed Yazzie in 

his work. His duties included leveling the shot coal from the 

previous shifts, making ramps up the coal face, and building 

portions of Ramp C (Exhibit Pl). 

2531 
After leveling the shot coal Yazzie proceeded to Ramp C and 

began working at that location. At about 11:30 p.m. Yazzie, 

Moreo and Ralph Charlie (shooter/blaster) were located near the 

bottom of Ramp C. They were preparing to set off a coal shot on 

the Blue coal seam. Yazzie's dozer, parked on the ramp, was used 

as protection from the blast. After a delay the shot was set off. 

Moreo found no misfires and he left the coal bench. While he was 

leaving the pit Moreo passed Yazzie who was starting to tram his 

dozer from Ramp C through the pit to the carry-all bus at Ramp E. 

Moreo continued out of the pit and stopped for a few minutes to 

talk to the coal loader operators. He then proceeded to Ramp E. 

After arriving at Ramp E, Moreo became concerned because he could 

not find Yazzie. Moree then drove to the coal face on the Blue 

seam and, after a brief inspection, he observed Yazzie's upset 

dozer in the keyway near Ramp C. (Tr. 13; Exhibit Pl). Moreo, 

who was also an Emergency Medical Technician, and others could 

not revive the unconscious Yazzie (Exhibit Pl). 

The keyway, or ditch, was an area excavated by the dragline 

along the seam coal bench. It was 31 feet to the bottom of the 

keyway. At the time of the accident the keyway extended from 

Ramp C approximately 600 feet toward Ramp E. 

The inspector's investigation further established that, 

after leaving Ramp C, Yazzie's dozer traveled in a path at a 

slight angle away from the keyway. After traveling approximately 

75 feet Yazzie changed directions and went toward the keyway. He 

made another slight correction when 40 feet from it but he 

continued in the general direction of the keyway. After the 

second change in direction he traveled approximately 35 feet 

before toppling off the coal bench into the keyway. At that 

point his dozer was at the edge of the coal shot (Exhibit Pl). 

The dozer tread marks for the final 35 feet indicate the 

dozer was still tramming forward at the time of the accident. It 

appeared that the outer edge of the coal bench collapsed under 

the dozer, causing it to roll sideways off of the bench (Exhibit 

Pl). 

The dozer fell about 31 feet, impacting the top edge of the 

rollover protective structure. Yazzie remained inside the 

operator's cab; however, it appeared he was not wearing the seat 

belt that was provided (Exhibit Pl). 

After the coal shot and before this accident occurred the 

dragline had resumed operations. While digging, the dragline's 

lights illuminated the pit and accident area; however, as the 

2532 
dragline spoiled, it swung away from the pit, leaving the area 

relatively dark. This change from light to dark could have 

affected Yazzie's perception. Also while spoiling, the dragline 

created dust. in the pit that could have affected visibility 

(Exhibit pl). 

Yazzie was normally assigned to work at the J-7 pit area. 

He worked in this particular pit, J-1, only when needed. A 

keyway, as excavated in the J-1 pit, is sometimes, but not 

always, present in the J-7 pit. The unexplained changes in the 

direction of the dozer could have been made by Yazzie in order to 

tram the dozer around the shot coal. Since Yazzie was newly 

assigned to the ~-1 pit he may have forgotten about the keyway 

being adjacent to the shot coal and trammed the dozer into it 

(Exhibit Pl). 

As a result of its investigation MSHA concluded that the 

accident occurred due to the fact that Yazzie turned the dozer 

and trammed it toward the keyway. Since there was no berm along 

the outer edge of the elevated coal bench there was nothing to 

prevent the dozer from traveling into the keyway. MSHA could not 

determine the reason why Yazzie turned the dozer toward the 

keyway. In MSHA's opinion a contributing factor to the fatality 

was Yazzie's failure to wear the seat belt provided in the dozer 

CE xh i bit P 1 ) . 

MSHA's inspection manual contains guidelines construing the 

berm standard. The manual states: 

The requirements of Section 77.1605(k) apply to that 

part of an elevated haulage road where one bank is, 

or both banks are, unprotected by a natural barrier 

which will prevent vehicles or equipment from running 

off and rolling down the unprotected bank or banks. 

"Elevated roadways", as used in this requirement, are 

roadways of sufficient height above the adjacent terrain to create a hazard in the event mobile equipment 

ran (sic) off the roadway. 

"Berm" as used in this requirement means a pile or 

mount of material at least axle high to the largest 

piece of equipment using such roadway, and as wide at 

the base as the normal angle of repose provides. Where 

guard rails are used in lieu of berms, they shall be of 

substantial construction. 

The width of the haulage road does not preclude the 

need for berms or guard rails. 

(Exhibit P8). 

2533 
In December 1981, in response to questions concerning the 

berm standard, the administrator for coal mine safety and health 

issued MSHA's policy memorandum 81-40C .. The administrator, on 

behalf of MSHA, stated in part as follows: 

Section 77.1605(k), 30 CFR 77, is applicable to all 

elevated roadways on mine property, including roads 

used to transport coal, equipment, or personnel, and 

regardless of the size, location, or characterization 

of the roadways. Berms or guards are required on all 

exposed banks of elevated roadways. Thus, elevated 

roadways with two exposed banks are required to have 

berms or guards on both sides. 

(Exhibit P7). 

At the time of the accident the dragline had exposed the 

Blue coal seam. Two ramps were being used for access to the pit 

area (Tr. 12, 13; Exhibit Pl). 

In the inspector's opinion a berm should have been placed 

from the point where Ramp C intersected the Blue coal seam bench 

back towards Ramp E, a distance of about 600 feet (Tr. 22). The 

inspector considered the coal bench a roadway because the same 

type of equipment uses the coal bench and the haul roads (Tr. 

2 3) • 

Surface changes occur in the mine as mining progresses from 

one seam to another but there is always a bench in the coal pit 

used for a travelway (Tr. 23). 

The MSHA surface inspection manual (Exhibit P8 at pages 336, 

337) and the MSHA policy memorandum define an elevated roadway. 

These definitions, in the inspector's opinion, are applicable to 

Peabody's work place (Tr. 24-26, 61). The inspector relied on 

the policy memorandum in forming an interpretation of what 

constitutes a roadway (Tr. 43). A roadway is a travelway used to 

transport equipment, personnel and coal (Tr. 43, 44, 61). But 

the inspector would not consider a surge pile to be a roadway 

(Tr. 49, 50) . 

In the inspector's opinion there are some ''gray areas" as to 

what constitutes a roadway; in addition, an inspector has a 

degree of judgment as to the citations he can issue (Tr. 50, 51). 

The lack of a berm, as here, presented a hazard to a miner 

such as Yazzie (Tr. 26). A berm can either stop a vehicle, redirect it, or warn an operator that he is in close proximity to 

the edge (Tr. 27, 39, 40). 

2534 
In the inspector's opinion a berm would not be necessary if 

the dozer was cleaning the coal or pushing dirt off the edge of 

the bench (Tr. 50). 

Respondent's Evidence 

Buck Woodward, Tracy Northington, Alan Cook, Don Holt, Rick 

Contratto and Joe Johnson testified for respondent. 

At the Black Mesa mine Peabody uses a multiple seam mining 

process for its five seams of coal (Tr. 70-72). The company uses 

a color coding system to differentiate between its coal seams 

(Tr. 71). These seams are respectively designated, from the 

surface down, as green, blue, red, bottom red, and yellow (Tr. 

71; Exhibit F). 

The coal bench is the area where the dragline and other 

pieces of mining equipment are located. The highwall is the face 

left by the dragline and the stripping equipment (Tr. 71; for a 

cross section view see Exhibit B). 

Black Mesa uses a Marion 8750 dragline to first cut a keyway 

or ditch (Tr. 71-73). A drill crew then drills through the overburden to the first coal seam (Tr. 73). The dr~gline removes the 

drilled and shot overburden by depositing it in an area that has 

already been mined (for an illustration of the pit configuration 

see Exhibit C). 

The highwall in the pit results when the overburden is 

removed. The removal of the overburden exposes the coal seam 

which is, in turn, drilled and shot. Shovels and other equipment 

load the coal onto trucks (for an illustration of coal loading 

operation see Exhibit D). 

The mining sequence continues as the dragline removes the 

coal. Drilling, shooting, and loading activities follow behind 

the dragline (Tr. 74). The dragline, using the wide radius of 

its shovel, spoils the overburden and later the parting l; into a 

pit where the coal has already been removed (Tr. 74). -

In the J-1 pit the bench was 130 feet wide. Peabody tries 

to maintain that distance but it narrows slightly at the bottom 

coal seam (Tr. 15). 

ll Parting is the interburden between coal seams. 

2535 
As a re~ult of this citation MSHA requires a berm when the 

topmost (green) coal seam is eKposed. The berm must be installed 

prior to any .shooting. The berm is approximately six feet high 

and sixteen and one half feet wide at the base (Tr. 77). This 

berm must later be pushed off so the crews can shoot the coal 

beneath it. 

MSHA also requires a third berm on the parting between the 

second and third seams (blue and green seams). This berm must, 

in its turn, be pushed off so the drilling crews can fragment the 

area beneath it. The dragline, in turn, removes the parting (Tr. 

79). 

The construction and removal of the berms continues as the 

mining progresses. The progression is both downward as the coal 

seams are exposed and lateral as the dragline removes the coal or 

the parting (Tr. 79-80). In this mining progression the MSHA 

citation requires that 12 berms be constructed and removed (Tr. 

80). 

The pit, designated as J-1, is the working pit of an active 

surface coal mine. Haulage trucks and loader crews are actively 

engaged in the coal removal. The haulage trucks, 16 feet 8 

inches wide, primarily drive down the middle of the bench, or a 

bit to the highwall side (Tr. 82). In the pit there is one 

direction of traffic. Once the trucks reach the ramp they go out 

of the pit area until they reach a permanent haulage road. The 

trucks then travel to a preparation site (Tr. 88). 

In the opinion of Peabody's engineer an active pit area is 

not a roadway. One reason is that the area changes daily. Haul 

roads at mines are designed to certain specifications and they 

take into consideration the speed of vehicles using them. Also 

the drainage of a haul road is a factor to be considered (Tr. 82, 

83). 

Peabody uses track type and rubber-tired dozers to emplace 

its berms. When necessary dump trucks haul in material to 

construct the berms (Tr. 81). 

Berms, such as MSHA requires here, are not required at any 

other mine in the West (Tr. 84). 

In the opinion of Peabody's engineer a berm in place here 

would not have prevented the accident. Yazzie was entering the 

coal shot area and his duties would have required that he level 

the area (Tr. 84). 

Peabody's industrial engineer conducted a time and motion 

study relating to the installation and removal of berms (Tr. 97). 

A videotape (Exhibit U) shows the building of a berm with a Clark 

380 rubber-tired dozer (Tr. 98-100). The front portion of the 
dozer goes out over the edge of the bench when building and even 

more so when removing the berms (Tr. 98-102). In building a berm 

six feet high the average dozer cycle~/ is .47 minutes. 

Normally berms are built during the third shift, from 

midnight until 8 a.m. Northington has monitored over 4000 dozer 

cycles (Tr. 101). 

When berms must be built at the edge of parting seams then 

material must be hauled in to construct the berms since there is 

no loose material available. Peabody estimates, that on an 

annual basis, it has hauled in 150,000 yards of material or about 

2,000 truck loads, to build such berms (Tr. 104). 

In removing the.berms the dozer operator, whose vision is 

blocked by his equipment, goes right to the edge. Some operators 

have stated this was unsafe (Tr. 105). 

Trucks in the pit never operate closer than within 80 to 100 

feet of the edge of the bench (Tr. 106). 

Peabody submitted a time and motion study comparing the 

"before and after" exposure of its men and equipment in abating 

this citation. All calculations were keyed to an annual basis 

(Tr. 107; Exhibits V, W, X). 

Before the issuance of this citation Peabody's activities 

resulted in its miners and equipment being exposed to the hazard 

of being within 20 feet of the ditch edge for 1,085.8 hours. 

This exposure was primarily the time required to drill a 20 foot 

zone next to the edge of the ditch. This exposure is still 

incurred because it is still necessary to drill and remove the 

coal in the 20 foot zone (Tr. 108). But the exposure in this 

zone is now increased to 1,880.6 hours. This 73 percent increase 

results from the construction and removal of the berms now required by MSHA (Tr. 109; Exhibit X). 

Before the berms were required the only dozer exposure to 

the ditch edge occurred during the cleaning of the coal. This· 

was for 40.48 hours (Tr. 109; Exhibit W). As a result of abating 

the citation the exposure has increased to 831.5 hours, an increase of 1954 percent. 

~/ A cycle is the elapsed time from when the dozer starts 

forward, reverses its motion, and again starts forward (Tr. 99, 

100) . 

2537 
In removing the coal, Peabody's rubber-tired dozer cuts a 

14 foot swath and approaches the edge 7,619 times (Tr. 109; 

Exhibit V). Since Peabody is now required to build and remove 

berms there are 103,451 cycles to the ditch edge, an increase of 

1,612 percent (Tr. 109-110; Exhibit V). Peabody has constructed 

58 miles of berms to abate this citation (Tr. 115, 116). 

Peabody places berms on its active haul roads where there is 

vehicular traffic traveling "at a good speed" (Tr. 125). 

In the opinion of mine superintendent Joe Johnson the 

standard does not apply to the working area of the pit. The 

company is constantly mining this area. MSHA has never 

previously cited the company for failure to have berms in an 

active pit area. But the company has been cited due to an eroded 

berm on a haul road (Tr. 151, 154, 155). 

Don Holt, Peabody's safety director for its mines in 

Kentucky and Ohio, is familiar with MSHA regulation§ 1605(k). 

In Holt's opinion the purpose of the regulation is to provide a 

guide on a haul road to keep vehicles within a confined area. 

Further, in Holt's opinion, the section does not apply to the 

working pit of surface mines (Tr. 132-134). 

In the mines in the eastern portions of the United States 

the working coal pits are 45 to 80 feet wide. It would 

practically shut down such mines if MSHA requires berms as it 

does here. MSHA does not now require berms in other active 

working pits (Tr. 136, 137). 

Summary of the Evidence adduced at the 

hearing in September 1984 

Peabody's Evidence 

Buck Woodward, Peabody's planning engineer, testified that 

on July 30, 1984 he toured the El Paso operations including the 

pit where Citation 159662 was issued for a violation of the berm 

standard. (Supplemental transcript at pages 7 and 8). 

El Paso mines limestone as an aggregate for concrete. In 

its mining process the company initially removes 30 feet of red 

rock. The rock has no commercial use CS. Tr. 10, 11). 

After the removal of the initial overburden El Paso shoots a 

10 foot by 10 foot pattern and removes the rock from two lifts. 

The blasting is done in a perpendicular direction towards the 

highwall (S. Tr. 11, 18). (Drill holes can be seen in Exhibit Y). 

2538 
On the other hand, at Peabody's Black Mesa surface coal mine, the 

overburden coal and parting is mined from the middle of the pit 

in a lateral direction CS. Tr. 18). 

On the day of Woodward's visit at El Paso the top bench was 

200 feet wide. As the rock is mined this bench will be reduced 

to a width of 60 feet CS. Tr. 12, 13). The citation issued to El 

Paso which evolved into the Commission decision, previously 

cited, alleges the El Paso bench was as narrow as 45 feet CS. Tr. 

28). The coal bench at Black Mesa cannot vary and it remains at 

a fairly constant width of 130 to 140 feet cs. Tr. 21). 

It takes one to two years to reduce the El Paso bench to a 

60 foot width from the 200 foot width. But at Black Mesa the 

dragline removes a 400 by 200 foot wide area in four and a half 

days CS. Tr. 18). El Paso does not have any large overburden 

stripping equipment CS. Tr. 19). 

While at El Paso Witness Woodward observed the company's 

vehicles operating at 20 to 25 mph. At Black Mesa the trucks and 

the coal removal equipment operate at 3 to 5 mph. The Black Mesa 

vehicles only attain the greater speeds when they reach the ramps 

(S. Tr. 17, 19, 20). 

On the day of Woodward's visit the El Paso berm was 40 feet 

from the edge of the lower lift face. There is a road to each 

side of the berm. The haulage road, towards the highwall side, 

is used for pit inspection and rock removal from the top lift. 

The road between the berm and the drop off is used for drilling 

and shooting equipment and supervisors' vehicles. It is also 

necessary to use the road between the berm and the edge to knock 

off whatever loose rock remains after a blast (S. Tr. 14-16). 

The El Paso berm in place in July, 1984 had been there for 

six months. It would likely be there another six months CS. Tr. 

14). On the other hand, the Black Mesa berms can be changed 

within three hours (S. Tr. 20, 22). 

The trucks at El Paso, according to Citation 159662, (issued 

in the El Pasd case) were being operated within 10 to 14 feet of 

the edge. On the other hand, at Black Mesa the Peabody haulage 

trucks get no closer than within 60 feet from the edge of the 

bench CS. Tr. 21, 29, 32, 33). 

There is more activity at a coal bench than at a rock quarry 

(S. Tr. 22). 

Witness Woodward concluded that substantial differences 

exist between a surface coal mine and a rock quarry. As a result 

it is suggested that the berm standard is not applicable to 
Peabody. These differences include the distances the vehicles 

are from the edge (60 feet versus 10 to 14 feet); the speed of 

the vehicles in the pit (3 to 5 mph versus 20 to 25 mph); the 

width of the pit (a constant 130 to 140 feet versus 200 reducing 

to 45 to 60 feet). The duration the berms must remain in place 

(3 hours versus one to two years) (S. Tr. 25, 28, 29, 31, 34). 

MSHA's Evidence 

Sidney R. Kirk, an MSHA supervisory inspector, issued 

Citation 159662 against El Paso Rock Quarries (S. Tr. 38, 39, 

48). 

Witness Kirk agreed that his testimony before Judge Moore in 

the El Paso case was more correct than his recollection at this 

hearing. When the El Paso citation was issued the quarry bench 

was 60 to 80 feet wide. Vehicles traveled within 10 to 12 feet 

of the edge (S. Tr. 49, 50; El Paso transcript at page 26). 

When he inspected the El Paso site Inspector Kirk learned 

the company had a speed limit of 5 to 8 mph. He also observed 

vehicles traveling at that speed CS. Tr. 41, 42). In his opinion 

the El Paso vehicles in the limited bench area could not attain 

speeds of 20 to 25 mph (Tr. 43). 

The inspector further indicated that the berm shown in the 

July 1984 photograph did not comply with the berm regulation, 30 

C.F.R. § 56.9-22. In his opinion the berm should have been 

located between the drill holes and the edge (S. Tr. 45). 

Inspector Kirk indicated he has not inspected a surf ace coal 

mine nor enforced any MSHA regulations concerning such a mine (S. 

Tr. 48, 53). 

In the inspector's view the length of time the El Paso berm 

remains in place depends on the demand for the product. At the 

time of his El Paso inspection the berm could have been removed 

almost every twenty-four hours (S. Tr. 44, 45). 

Discussion 

Credibility determinations arise in the case. Particularly, 

a conflict exists between the testimony of Witnesses Woodward and 

Kirk. I credit Kirk's version as to the speed of the El Paso 

trucks on the date he issued Citation 159662. Mr. Kirk was 

obviously at the El Paso site on that day. Mr. Woodward was not 

present. 

On the other hand, I credit Peabody's evidence as it relates 

to the operation of the Black Mesa Coal surface coal mine. 

2540 
Peabody's witnesses have the expertise derived from participating 

in the daily mining of coal at that location. 

The threshold issue presented here is whether the Commission 

decision in El Paso Rock Quarries, Inc., supra, is controlling 

precedent. In the initial decision of this case, 6 FMSHRC 612 

(March, 1984), this judge concluded he was bound by the decision. 

In El Paso the Commission considered whether a violation of the 

applicable berm standard occurred. The particular berm standard 

in El Paso applied to metal and non-metalic open pit mines but it 

has the same worqing as the standard in contest here. In El Paso 

the Commission held that a bench 3/ in a quarry is an "elevated 

roadway" within the meaning of the standard. The El Paso 

decision recited that the operator's trucks were operated 40 feet 

above a lower bench and the Commission held that "under the facts 

of this case, the quarry bench where the haulage trucks were 

driven is indeed an elevated roadway within the meaning of 

Section 56.9-22," 3 FMSHRC at 36. The El Paso decision itself 

does not state how close the El Paso vehicles operated to the 

edge of the bench. 

For the reason hereafter stated I find that the El Paso 

decision is not controlling. It now appears that there are 

substantial differences between the El Paso rock quarry and the 

Peabody multiple seam surface coal mine. In the El Paso scenario 

the trucks were operated within 10 to 12 feet of the edge of the 

bench. On the other hand, Black Mesa trucks do not operate 

closer than 60 feet from the edge of the fairly constant 120 to 

140 foot wide bench. Substantial differences also arise in the 

duration of time the berms are required to be in place and in the 

width of the bench. 

ll In El Paso the Commission, in a footnote, stated: 

The term "bench" is in part defined by A Dictionary of 

Mining, Mineral, and Related Terms, Department of the Interior 

(1968), as: 

A ledge, which, in open-pit mines and quarries, forms 

a single level of operation above which mineral or 

waste materials are excavated from a contiguous bank 

of bench face. The mineral or waste is removed in 

successive layers, each of which is a bench, several 

of which may be in operation simultaneously in 

different parts of, and at different elevations in an 

open-pit mine or quarry. 

2541 
Based on the foregoing factors I conclude that El Paso Rock 

Quarries, supra, is not a binding precedent. 

The secondary issue is whether Peabody violated the berm 

standard. For the reasons hereafter stated I conclude that no 

violation occurred. 

It is clear that berms are required on "elevated roadways." 

Further, a roadway is used to transport coal, equipment, and 

personnel. A similar dictionary definition recites that a road 

is an "open way for vehicles, persons, and animals", Webster's 

New Collegiate Dictionary (1979) at 993. 

I do not find on this record that any vehicles transported 

coal, equipment or personnel closer than within 60 feet of the 

edge of the Peabody bench. The difference between operating not 

closer than 60 feet of the edge and operating within 10 to 12 

feet of the edge is crucial. A distance of 60 feet is not 

insubstantial. An interstate highway lane measures 12 feet. If 

no vehicle is ever shown to have been operated within 5 such 

lanes of an edge, I cannot hold that the unused 60 foot portion 

can nevertheless be somehow denominated as a "roadway." 

In his post trial brief the Secretary asserts that in 

deciding whether the travelway in question here is a roadway the 

Commission should be guided by the principle that the Act and the 

regulations should be construed liberally and expansively to 

effectuate the Congressional purpose and promote the safety of 

the miner. Hanna Mining Company, 3 FMSHRC 2045, 2048 (1981), 

MSHA v. Westmoreland Coal Company 606 F. 2d 417, 420 (4th Cir. 

1979). 

I have no quarrel with the law cited by the Secretary. However, I find it inapplicable in this case. Peabody's uncontroverted evidence concerning the building and removal of berms 

shows some hazards are involved in the process. Based on this 

evidence I cannot conclude that the safety of the miners is promoted in the activities required to abate this citation. 

The Secretary further relies on his several policy memoranda 

interpreting this regulation (Exhibits P7 and P8). The difficulty with his memoranda is that it assumes facts not established 

on the record. In addition, the inspection manual and MSHA's 

policy memorandum (Exhibits P7 and P8) do not clarify the problem. 

The manual merely states that § 77.1605(k) applies to an "elevated haulage road"; further, such roadways are "roadways." The 

policy memoranda recites that § 77.1605(k) applies to "all 

elevated roadways" and berms are required on all exposed banks of 

"elevated roadways." 

2542 
This 60 foot portion of the bench cannot now automatically 

become a roadway because it has not been used to transport coal, 

equipment and personnel. True, dozer operator Yazzie was at the 

edge of the.bench but his duties included removing the coal. The 

coal itself was in a condition of upheaval as a result of the 

blasting. I decline to defer to the Secretary's interpretation 

of the regulation in these circumstances. 

In support of his position the Secretary also relies on 

Cleveland Cliffs Iron Company, 3 FMSHRC 291 (1981) and Rock 

Valley Cement Block and Tile 2 FMSHRC 1906, 1914-1916; MESA v. 

Peabody Coal Company, VINC 77-102-P. 

The foregoing cases are clearly distinguishable from the 

instant case. In each of these cited cases there was some use 

by vehicles, albeit minimal, of the travelway that the Secretary 

felt should be bermed. 

In Cleveland Cliffs the issue centered on whether certain 

use of a road constituted hauling. The Commission held that the 

term "hauling" includes conveying men, ore, supplies or materials 

along elevated roadways where the roadways are used in the normal 

mining routine, 3 FMSHRC at 293. As previously observed there 

was no hauling of any type closer than 60 feet from the edge of 

Black Mesa's bench. 

In Rock Valley Cement, Block and Tile Judge Koutras rejected 

the operator's argument that a roadway and the berm requirement 

can only exist in circumstances which clearly show that the mined 

materials are regularly hauled out of the mine along clearly 

defined haulage roadways designed and regularly used for such 

purposes. The cited decision is not controlling as there is no 

roadway use whatsoever of the 60 foot area under discussion in 

the instant case. 

In Mesa v. Peabody Coal Company, the arguments concerned 

whether the roadway in question was elevated and whether a 

distinction existed between an access road and a haulage road. 

The parties waived further briefs after the supplemental 

hearing but the oral arguments were entered on the record. 

The Secretary initially claims El Paso Rock Quarries, supra, 

is controlling since identical standards are involved. This 

point has been addressed and found to be without merit. 

The Secretary further argues that the differences between 

the El Paso case and this case are not crucial. Specifically, it 

is contended the distance the Peabody trucks operate from the 

edge of the bench relates to gravity and not to the fact of a 

violation. 

2543 
I am not persuaded. I refuse to apply the standard in a 

vacuum. The Secretary bears the obligation to prove that the 

activity he seeks to control is fairly within the terms of the 

regulation. 

The Secretary states that not requiring berms would lessen 

the safety of the miners. This issue has been reviewed and found 

to be without merit. 

In its post-trial brief filed after the initial hearing 

Peabody also raised certain issues. These require discussion. 

Peabody asserted it should prevail because the regulation is 

vague and lacks clarlty. Peabody further cites the failure of 

MSHA to previously enforce the regulation at this site and 

elsewhere as to coal seam benches. 

The foregoing position is basically a plea in estoppel. But 

it is established that estoppel does not apply against the 

federal government. Cf. King Knob Coal Company, 3 FMSHRC 1417, 

1421 (1981). 

Peabody also argues that its time study (Witness Northington) and its video tape (Exhibit U) are not offered to prove 

that MSHA's enforcement of § 77.1605(k) causes a greater hazard. 

But it argues that if MSHA interprets the regulation in such a 

way that dangers are increased then that interpretation is not 

correct. In short, Peabody agrees that berms on an elevated 

roadway increase safety. But a coal bench is not a roadway and 

if MSHA interprets it to be so then MSHA is wrong because there 

is a clear increase in danger. It is axiomatic that the greater 

the exposure to the hazard, the more likely an accident. 

Peabody's uncontroverted evidence establishes that the placement 

of berms can be hazardous (Tr. 143). Further, the type of berms 

MSHA requires here (some 58 miles) are transient. Their duration 

can be as short as three hours (Tr. 144). But a berm on a bona 

fide elevated roadway is not so transient (Tr. 83). 

While Peabody's video tape and support testimony were 

generally admissible it was basically a revisit to the diminution 

of safety, or, as it is sometimes called, the greater hazard 

doctrine. Peabody apparently anticipated an adverse ruling because it asserts that Penn Allegh, 3 FMSHRC 1392 (1981), is not 

controlling because the case dealt with explicit cabs and 

canopies regulations. But, in the instant case, the parties are 

arguing over a relatively vague standard. 

I disagree. Peabody seeks to invoke the diminution of 

safety, or the greater hazard doctrine. In Penn Allegh the 

2544 
Commission refused to approve such an attempt to short-circuit 

the Act. The Commission observed that when those situations 

exist where the application of the standard diminishes, rather 

than enhances, miners' safety the operator may petition the 

Secretary of Labor for relief from the application of the 

standard. The Act provides a set procedure for granting or 

denying the relief sought. Penn Allegh at 1397. In addition, 

there are detailed regulations governing the processing of such 

petitions, 30 C.F.R. Part 44. 

In sum, Peabody's evidence seeking to establish the 

diminution of safety, or greater hazard doctrine, is rejected. 

Peabody's further arguments are that MSHA failed to offer as 

a witness the inspector who wrote the citation and in addition 

failed to offer in evidence the citation itself. These arguments 

lack merit. Inspector Denning testified as to the issuance of 

the citation (Tr. 28). He further authored Exhibit Pl, an extensive report of this fatality. In Exhibit Pl MSHA entered its 

finding as follows: "A berm was not provided on the elevated 

outer back of the haulage road in pit 001-0 from Ramp C for a 

distance of about 600 feet along the Blue seam coal bench, a 

violation of Section 77.1605(k), 30 CFR." 

Peabody's claim that MSHA's interpretation would shut down 

the surface coal mine operations in the United States is 

rejected. 

Peabody has obviously not shut down this surface coal mine 

operation at the Black Mesa Mine in Navajo County, Arizona. 

Peabody's evidence and argument that the mines in the eastern 

part of the United States would be shut down must await the detailed evidence in such a case. In short, I decline to rule on a 

hypothetical situation particularly here, where I fail to find a 

violation. 

For the reasons stated herein I conclude that Citation 

2006837 and all penalties should be vacated. 

Citation 2006838 

In this citation the Secretary of Labor seeks a civil 

penalty of $241 because Peabody's employee Yazzie failed to wear 

a seat belt thereby violating the mandatory standard published at 

30 C.F.R. § 77.1710(i) which provides: 

Each employee working in a surf ace coal mine or 

in the surf ace work areas of an underground coal 

mine shall be required to wear protective clothing 

and devices as indicated below: 

(i) Seat belts in a vehicle where there is a danger 

of overturning and where roll protection is provided. 
Issue 

Did Peabody violate the seat belt regulation? 

Summary of the Evidence 

All of the evidence relating to this citation was heard at 

the initial hearing of the case in December, 1983. Neither party 

sought to offer evidence on this subject at the supplemental 

hearing. 

MSHA's evidence shows that Yazzie was not wearing a seat 

belt at the time of the accident (Tr. 28; Exhibit Pl). MSHA, in 

its written report, concluded the failure to wear the seat belt 

in the vehicle was a·contributing factor to Yazzie's death 

(Exhibit Pl). 

Peabody's mine superintendent indicated that the company requires that seat belts be worn. The workers are informed of this 

requirement through task training, annual retraining, individual 

contacts and general discussion (Tr. 153). 

If an employee is caught not wearing a seat belt he is given 

a warning. If it occurs again he receives a written warning (Tr. 

153). 

Peabody's safety manager and its pit boss confirmed the 

superintendent's testimony. Further, he indicated that the 

company reinstalls seat belts if they are damaged or removed (Tr. 

117, 120, 121, 129, 147). Equipment operators have been disciplined for failing to wear seat belts (Tr. 130, 148, 149). The 

discipline graduates to suspension or discharge C~r. 130). 

Discussion 

The Secretary, in his post trial brief, is aware of the 

Commission decision in Southwestern Illinois Coal Corporation, 5 

FMSHRC 1672, (October 1983). But the Secretary claims the 

majority decision violates the long line of strict liability 

cases imposed by the Act. Further, the Secretary argues that the 

minority view is more persuasive. 

The Secretary's contentions are rejected. I am obliged to 

follow the majority view in Southwestern Illinois Coal 

Corporation. 

The Secretary apparently anticipated this ruling and he 

argues that, in any event, Peabody has not satisfied the criteria 

of North American Coal Company, 3 IBMA 93, cited in Southwestern 

Illinois. The Secretary's argument is this: Pit boss Contratto 

had never given a written seat belt warning to anyone and he was 

unable to present actual examples of a warning. I agree the 

2546 
evidence shows that Contratto, personally, had never given an 

employee a written disciplinary notice for failing to wear a seat 

belt (Tr. 148, 149). But the Secretary miscontrues the evidence 

in the transcript at pages 149 and 150. Contratto testified that 

there there have been written disciplinary actions. But he 

hadn't brought such notices to the hearing (Tr. 148-150). 

On this record witnesses Contratto, Johnson and Cook 

establish that Peabody was diligent in the enforcement of its 

seat belt regulation (Tr. 120, 121, 129, 130, 153, 154). 

Southwestern Illinois criticized the operator because the wearing 

of belts was delegated to the discretion of each employee. This 

is not the situation here. The witnesses establish that Peabody 

was diligent in its enforcement of the seat belt regulation. 

I further note that no facts indicated that the company knew 

Yazzie had his seat belt off at the time of the accident; if, in 

fact, it was off (Tr. 29). 

I reject the Secretary's arguments. 

For the foregoing reasons Citation 2006838 and all penalties 

therefor should be vacated. 

Conclusions of Law 

Based on the entire record and the factual findings made in 

the narrative portions of this decision, the following conclusions of law are entered: 

1. The Commission has jurisdiction to decide this case. 

2. Peabody did not violate the mandatory standard published 

at 30 C.F.R. § 77.1605(k), and all proposed penalties therefor 

should be vacated. 

3. Peabody did not violate the mandatory standard published 

at 30 C.F.R. § 77.1710Ci), and all proposed penalties therefor 

should be vacated. 

ORDER 

Based on the foregoing facts and conclusions of law I enter 

the following order: 

1. Citation 2006837 and all proposed penalties therefor are 

VACATED. 

2547 
2. Citation 2006838 and all proposed penalties therefor are 

VACATED. 

. ~J.~ 

·~ ~ 

~~~nis~~~!: Law Judge 

Distribution: 

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

Department of Labor, 11071 Federal Building, Box 36017, 450 

Golden Gate Avenue, San Francisco, California 94102 

(Certified Mail) 

Michael o. McKown, Esq., Peabody Coal Company, P.O. Box 373, 

St. Louis, Missouri 63166 (Certified Mail) 

/blc 

2548 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

Docket No. SE 84-51-D 

MSHA Case No. BARB CD 84-14 

GREGORY BROWN, 

Complainant No. 1 Mine 

v. 

A & L COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Darryl A. Stewart, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Complainant; 

William R. Seale, Esq., Mitchell, Clarke, 

Pate, Anderson & Wimberly, Morristown, 

Tennessee, for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

In a complaint filed with the Secretary of Labor on 

January 27, 1984, Complainant Gregory Brown alleged that he 

was ~ea.sstgned from the position of cutting machine operator 

to.cutting machine helper on November 9,-1983, was transferred to the afternoon shift on November 21, 1983, and was 

discharged on December 21, 1983, all because of activity 

protected under the Federal Mine Safety and Health Act of 

1977. On April 2, 1984, the Secretary filed an application 

for temporary reinstatement on Brown's behalf. On April 3, 

1984, the Commission's Chief Administrative Law Judge issued 

an order directing Respondent to temporarily reinstate 

Complainant in the position from which he was terminated or 

in a comparable position with the same or equivalent work 

duties. Complainant was restored to the payroll and later 

returned to the job of cutting machine helper in accordance 

with the order. On April 20, 1984, Respondent filed a petition for hearing on the order of temporary reinstatement. 

Pursuant to notice, a hearing was held in Clinton, Tennessee 

2549 
on April 27, 1984. Following the hearing, I issued an order 

that the temporary reinstatement order should remain in 

effect based on my finding that the evidence failed to establish that Mr. Brown's complaint to the Secretary was 

frivolously brought. 

The Secretary filed his complaint with the Commission 

on May 4, 1984. Respondent filed its answer on May 21, 

1984. 

On May 18, 1984, Complainant left work because of conditions he alleged were unsafe. Respondent treated his leaving as a voluntary quit. At the hearing, the parties agreed 

that I should decide whether Complainant's leaving work on 

May 18, 1984, was for activity protected under the Act, and 

whether Respondent's refusal to put him back to work was 

violative of section 105(c). 

Pursuant to notice, the case was heard on June 12 and 

13, 1984, in Clinton, Tennessee. Gregory Brown, Don 

McDaniel, Henry W. Disney, Gary E. Lowe and Vernon Ray Hawn 

test~fied on behalf of Complainant; Oscar Phillips, Howard 

Goad, Jim Brubaker, Gary Phillips, and Arvil Daugherty 

testified on behalf of Respondent. Both parties have filed 

posthearing briefs. Based on the entire record, including 

the record made at the hearing on the temporary reinstatement order, and considering the contentions of the parties, 

I make the following decision. 

FINDINGS OF FACT ~/ 

1. At all times pertinent to this proceeding, 

Respondent was the operator of an underground coal mine in 

Morg.an~County, Tennessee, known as the N.o. 1 Mine. 

2. Complainant Gregory Brown was employed beginning in 

about 1979 by the B & D Coal Company, a predecessor to A & L 

Coal Company, as a cutting machine helper. In 1980 or 1981, 

he became a cutting machine operator. After a period of 

time off work, he was reemployed as a cutting machine operator beginning March 15, 1981. In 1983, A & L Coal Company, 

Inc., took over the mine from B & D. Complainant continued 

working for the new company as a cutting machine operator. 

1/ Separate transcripts were made of the hearing on the 

temporary reinstatement order and the hearing on the merits. 

Citations to the former transcript are designated herein as 

TR(A); the latter are designated TR. 

2550 
3. On about November 2, 1983, while operating the 

cutting machine at the subject mine, Complainant sustained 

electrical shocks from the frame of the machine which had 

become energized. Complainant told the mechanic Oscar 

Phillips and the foreman Carlos Lester that the machine was 

shocking him but they both apparently.refused to believe 

him. 

4. Arvil Daugherty, the principal owner of Respondent 

and the operator of the mine, knew on November 2 or 3 that 

the cutting machine "was getting hot," that is, it was 

shocking people {Tr. 336). 

5. The following day, November 3, Complainant noticed 

that the frame ground had been removed from the cutting 

machine. He told Oscar Phillips that it was against the law 

to run the machine with the ground removed. Phillips 

replied: "You can run it or be replaced" {Tr. 17). The 

machine, however, had been torn down to try to determine why 

it failed to shut off. It was not operated on November 3 on 

the qay shift. 

DISCUSSION 

There is some conflict and confusion in the record as 

to when the cutting machine frame became energized and when 

the ground wire was removed. I accept Complainant's testimony as to his being shocked when contacting the frame, and 

as to his complaints to Phillips and Lester. I accept 

Phillips' testimony that the machine was "torn down" to 

attempt to locate the problem on Thursday, November 3, 1983. 

~. -on November 3, 1983, after his_~hift, Complainant 

attempted to call the local MSHA off ice eo report the condition of the cutting machine, but it was closed. He asked 

his wife to call the following day. His wife called the 

MSHA office on November 4, 1983, and an inspector came to 

the mine the same day. 

DISCUSSION 

Respondent argues that Complainant's testimony that his 

wife called MSHA is hearsay and insufficient proof that such 

a call was made. There is no dispute that in fact a call 

was made, which resulted in an MSHA investigation. Since 

this is so, I accept Complainant's testimony that his wife 

made the call as probative evidence that she did so. 

Whether technically hearsay or not, the testimony is inherently trustworthy and is corraborated by other evidence. 

2551 
7. Don McDaniel, a Federal coal mine electrical inspector came to the subject mine on November 4, 1983, at about 

9:00 a.rn. Following an inspection he, issued an imminent_ 

danger withdrawal order under section 107Ca) of the Act, 

because of 11 temporary splices in the trailing cable of the 

cutting rnachirie, because the frame gr6und was removed from 

the frame of the machine and the ground wire had 300 volts 

of electricity corning from a short in the cable. The 

machine was energized but was not being operated at the time 

the order was issued. He also issued citations charging 

violations of 30 C.F.R. § 75.603 and 3o·c.F.R. § 75.701-3 

for the same conditions. When he arrived at the mine, the 

inspector told Daugherty that he was there on a complaint 

concerning the cutting machine. Daugherty asked him if it 

was a man or a woman who made the complaint. Complainant 

had previously told some of the miners that his wife called 

MSHA. 

8. The order and citations were terminated at 2:00 p.rn., 

on November 7, 1983, after a new trailing cable was installed 

on tAe cutting machine and the ground wire was attached to the 

machine. Respondent had ordered a new cable for the machine 

on the day before the inspection. 

9. During the period from January to November, 1983, 

Respondent on a number of occasions had to repair or replace 

the hydraulic pump on the cutting machine operated by 

Complainant. (The same machine was also operated by another 

employee on the second shift). On about November 8, 1983, 

the foreman Carlos Lester told the operator Arvil Daugherty 

that the pump had quit working because it was too hot. 

Daugherty ... decided to change Complainant to the job of 

cutt.ihg ... machine helper "to see if it was-.hirn or the machine" 

that was causing the pump problem (Tr. 323). He received 

the same rate of pay ($8 per hour) as a helper that he 

received as a machine operator. Th~ problems with the 

hydraulic pumps did not continue after Complainant ceased 

operating the cutting machine. 

10. After about a week and a half as a helper on the 

day shift, Complainant was transferred to the night shift as 

a cutting machine helper. The night shift had been opened 

about "the first of November" ••• "or October," 1983 CTR A 

340-341). The reason it was opened was to produce more 

coal, since Respondent had a contract to sell all the coal 

it could produce. 

2552 
11. Complainant was laid off December 20, 1983, along 

with three other miners, one of whom was Daugherty's son. 

Daugherty stated that the lay off was caused by having a 

stockpile of coal and "having extra men that we didn't need." 

He stated that Complainant was selected as one of those laid 

off because of the trouble with the cutting machine while he 

operated it. Complainant worked at a:coal mine for a Clint 

Johnson for 3 weeks and 2 days at a wage of $5 per hour 

after he was laid off by Respondent. 

12. On application of the Secretary, Complainant was 

ordered reinstated by an order issued April 3, 1984, and he 

was restored to the payroll and subsequently to the position 

of cutting machine helper. He was paid $8 per hour. 

13. Complainant continued working as a cutting machine 

helper until May 18, 1984. On that date (a Friday on the 

evening shift), four miners on the crew left the mine 

because of "the way he (Gary Phillips, the acting foreman) 

wanted to run the coal." The crew members thought it unsafe 

to cut in a certain sequence but Phillips said "Well, it 

doesn't matter, we're going to cut it to get the coal" (Tr. 

56). Neither Complainant nor the other miners told the boss 

why they were leaving the mine. Complainant also testified 

that he had become ill from the fumes of a gasoline powered 

chain saw which was used underground to cut timbers, but he 

did not mention this to anyone. 

14. On Monday, May 21, 1984, Complainant reported to 

the mine off ice. Mr. Daugherty told him "You Quit, you 

ain't got no job" (Tr. 58). Complainant did not tell 

Daugherty why he left work on the previous Friday, but left 

the premises. 

15. About a week or 10 days after leaving Respondent's 

mine, Complainant went to work part time (16 to 24 hours per 

week) in a junkyard at a wage of $4 per hour. 

STATUTORY PROVISION 

Section 105Cc) of the Act provides in part: 

Cc> Cl> 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 

2553 
because such miner, representative of miners 

or applicant for employment has filed or made 

a complaint under or related to this Act, 

including a complaint notifying the operator 

or the operator's agent, or the representative 

of the miners at the coal or other mine of an 

alleged danger or safety or health violation 

in a coal or other mine, or because such 

miner, representative of miners or applicant 

for employment is the subject of medical evaluations and potential transfer under a standard 

published pursuant to section 101 ur because 

such miner, representative of miners or applicant for employment has instituted or caused 

to be instituted any proceeding under or 

related to this Act or has testified or is 

about to testify in any such proceeding, or 

because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any 

statutory right afforded by this Act. 

(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 occurs, 

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 

d€ems 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 

2554 
miners alleging such discrimination or interference and propose an order granting appropriate relief. The Commission shall afford an 

opportunity for a hearing Cin 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 vacating the Secretary's 

proposed order, or directing other appropriate 

relief. Such order shall become final 30 days 

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 this paragraph. 

ISSUES 

1. Whether the demotion of Complainant in November, 

1983, or his lay off in December 1983, were caused by 

activity protected under the Mine Safety Act? 

2. Whether Complainant's leaving work in May 1984, and 

Respondent's refusal to take him back constituted a constructive discharge for activity protected under the Act? 

3. If either or both of the foregoing questions are 

answered in the affirmative, to what relief is Complainant 

entitled? 

CONCLUSIONS OF LAW 

1. Respondent was at all times pertinent hereto a mine 

operator. Complainant was in Respondent's employ as a miner. 

The parties are subject to the Act, and I have jurisdiction 

over the parties and subject matter of this proceeding. 

2. In order to establish a prima facie case of discrimination under section 105Cc) of the Mine Act, a Complainant 

bears the burden of production and proof to show Cl) that he 

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

2555 
against him was motivated in any part by the protected activity. Secretary on behalf of Pasula v. Consolidation Coal 

Co., 2 FMSHRC 2786 (October 1980), rev'd on other grounds 

sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 

(3rd Cir. 1981), and Secretary on behalf of Robinette v .-

United Castle Coal Co., 3 FMSHRC 803 (April 1981). 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. If 

an operator cannot rebut the prima facie case in this 

matter, it may nevertheless affirmatively defend by proving 

that Cl) 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. 

The operator bears a burden of proof with regard to the 

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

1935, 1937 (November 1982). The ultimate burden of persuasion that illegal discrimination has occurred does not shift 

from the Complainant. Secretary on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC at 818 n. 20. The Supreme 

Court approved the National Labor Relations Board's virtually 

identical analysis for discrimination cases arising under the 

National Labor Relations Act. NLRB v. Transportation 

Management Corp., 76 L.Ed. 2d 667 (1983). See also Boich v. 

FMSHRC, 719 F.2d 194 (6th Cir. 1983) (approving the 

Commission's Fasula-Robinette test). 

3. The November and December 1983 incidents 

PROTECTED ACTIVITY 

I have found (Finding of Fact No. 3) that Complainant 

Brown told the mechanic and the section foreman on 

Nove_Itlbet-2, 1983, that he was receiving __ shocks from the 

frame of the cutting machine. These statements are clearly 

safety complaints and constitute activity protected under 

the Act. The following day, Complainant told the mechanic 

that it was against the law to run the cutting machine with 

the ground wire removed. I conclude that this statement was 

protected even though it was made to the mechanic who was 

not technically a management employee. The telephone call 

to MSHA made by Complainant's wife at his request to report 

the condition of the machine was also protected activity 

(Finding of Fact No. 6). The telephone call resulted in an 

MSHA inspection, and the issuance of an imminent danger 

closure order and a citation. Insofar as Complainant 

initiated and was involved in these activities, he was 

involved in activities protected under the Mine Act. 

2556 
ADVERSE ACTION 

On November 9, 1983, Complainant's job was changed from 

cutting machine operator to cutting_machine helper. -

Respondent paid all its miners the same wage and thus 

Complainant did not suffer a reduction in pay when his job 

was changed. However, the job was less desirable and 

required less skill. I conclude that the job change constituted adverse action. On about November 18, 1983, 

Complainant was transferred from the day shift to the evening shift. He continued to work as a cutting machine helper. 

Although Complainant found the evening shift less desirable 

for personal reasons, I cannot conclude that the job change 

in any way downgraded his position. I therefore conclude 

that it did not constitute adverse action. On December 21, 

1983, complainant was laid off. This clearly constituted 

adverse action. 

CAUSAL CONNECTION 

Complainant Brown was downgraded on November 9, 1983, 

and laid off on December 21, 1983. Were either or both of 

these adverse actions motivated in any part by the protected 

activity described above? Respondent in the person of 

Daugherty was aware of the unsafe condition of the machine 

(Finding of Fact No. 4). Respondent in the person of section foreman Lester and mechanic Phillips knew that Gregory 

Brown was complaining about the unsafe condition of the 

machine. When the inspector came to the mine, Daugherty 

asked him whether "a man or a woman called him." Daugherty 

had no explanation for this rather odd question except 

"curiosity" (Tr. 339). I conclude (1) that Daugherty wanted 

to ~OQW..who made the complaint and (2) -~hat he thought an 

answer to his question (which was not given) would give him 

a clue. Although there is no direct evidence of this, I 

infer in part from Daugherty's evasive answers to the 

question at the hearing on the temporary reinstatement order 

as to whether· Daugherty inquired as to the source of the 

call to MSHA (Tr. A 74-75), that Daugherty believed Gregory 

Brown had the call made to MSHA. The withdrawal order was 

terminated November 7, and Complainant was demoted to helper 

on November 8, 1983. I conclude that one reason for the 

demotion was the protected activity referred to above. 

Complainant therefore has made out a prima f acie case of 

discrimination under the Mine Act for this demotion. On 

December 21, 1983, Complainant and three others were laid 

off Cone of them, Daugherty's son, was call back after the 

Christmas vacation) ostensibly because too much coal was 

2557 
being stockpiled. Respondent is a non-union mine and does 

not have any seniority rules. Daugherty's explanation of 

how he determined which employees to lay off is confusing 

and not entirely convincing. I conclude that here too_he 

was motivated in part to lay off Gregory Brown because of 

Brown's protected activity. 

The more difficult question in this case is whether the 

evidence shows that Respondent would have taken the adverse 

action against Complainant for unprotected activity alone. 

I have accepted as factual Respondent's contention that he 

had unusual problems with hydraulic pumps on the cutting 

machine while Complainant was operating it, and these 

problems disappeared after Complainant was taken off the 

machine. (Finding of Fact No. 9). Although Complainant was 

apparently regarded as a good worker by his foreman (who was 

not called as a witness by Respondent), it was reasonable 

for management to remove him as machine operator "to see if 

it was him or the machine" which caused the trouble. I conclude with respect to the removal of Complainant from his 

machine operator's job, Respondent would have taken this 

action for unprotected activity alone. What about the 

lay~of f? When asked why he laid off Complainant rather than 

some other employees, Daugherty answered "well, I had went 

almost trouble-free with the cutting machine for almost a 

month and maybe a little longer, was'nt having no more 

troubles. He had cost me a lot of money in the past" (Tr. 

326). There is some evidence attempting to show that 

Daugherty was also motivated in part because Complainant's 

sister was responsible for the jailing of Daugherty's son. 

I do not accept this latter evidence as showing motivation 

for the lay off. I do not believe Daugherty's rather 

evasive statement that it was a motive. However, the evidenGe-c~ncerning the problems with the-{)ump shows a reasonab~e and credible motivation, and I accept it as establishing 

that the lay off was motivated in part by Complainant's 

unprotected activities. Much more difficult to answer is the 

question whether the adverse action would have been taken for 

the unprotected activities alone. The burden of proving what 

is an affirmative defense is on Respondent. Considering the 

confusing and conflicting testimony of Daugherty, I conclude 

that it has not carried its burden. I conclude therefore, 

that the evidence establishes that Complainant was laid off 

on December 20, 1983, in violation of section 105(c) of the 

Act. 

2558 
4. The May 18, 1984, incident 

PROTECTED ACTIVITY 

Complainant's leaving work on May 18, 1984, resulted 

from a reasonable, good faith belief that continuing to work 

as directed would be unsafe. Theref0re, his leaving work 

was protected activity. Pasula, supra. However, an 

employee who leaves work for safety reasons is required to 

"communicate or at least attempt to communicate, to some 

representative of the operator his belief in the safety or 

health hazard at issue." Secretary/Duhmire and Estle v. 

Northern Coal Company, 4 FMSHRC 126, 133 (1982). In the 

case before me, the evidence shows that neither Complainant 

nor any of the other miners who walked off the job with him 

made any attempt to tell management of their safety concerns. 

Complainant had a pending case with the Commission at the 

time, was represented by the Solicitor of Labor, and had 

been reinstated to his job by a Commission order. He 

clearly cannot be heard to plead ignorance of his rights and 

responsibilities under the Act. 

ADVERSE ACTION 

When Complainant returned to the mine the following 

work day, he was told by the operator, Daugherty, that he 

had quit. This is adverse action. However, he again failed 

to make any reference to his safety complaints. I conclude 

that no violation of 105(c) of the Act was shown because of 

Complainant's failure to communicate his safety concerns 

either before leaving the mine or when the adverse action 

occurred. The complaint of discrimination based on the 

May 18-21 incidents must therefore be dismissed. 

RELIEF 

Based on the above findings of fact and conclusions 

of law, I conclude: (1) Respondent did not violate 

secton 105(c). of the Act by assigning Complainant to a different job on or about November 8, 1983; (2) Respondent violated section 105(c) of the Act in discriminating against 

Complainant by laying him off on December 20, 1983; 

(3) Respondent did not violate section 105(c) of the Act in 

treating Complainant's leaving the job on May 18, 1984, as a 

voluntary quit and refusing to rehire him on May 21, 1984. 

Complainant is entitled to back pay from December 21, 1983, 

to the date he was rehired pursuant to the order of temporary reinstatement with interest thereon based on the formula 

set out in the case of Secretary/Bailey v. Arkansas-Carbona, 
5 FMSHRC 2042 (1983). Any wages received during this period 

should be offset against his entitlement. 

ORDER 

Respondent is ORDERED to pay Complainant back wages 

from December 21, 1983 to the date of his reinstatement pursuant "to Commission order with interest thereon as set out 

above, less 'any interim wages received in other employment. 

Respondent is ORDERED·to expunge the employment records of 

Complainant of all references to his discharge on 

December 21, 1983. 

Counsel are directed to confer and attempt to agree on 

the amount due pursuant to the above order and notify me 

within 30 days of their agreement or inability to agree. 

This decision is not final until a supplementary order is 

issued on back pay and interest. 

The complaint of discrimination based on the May 18-21, 

1984, incidents is DISMISSED. 

J

(l-tAL£-£ .Yl3~ t' '-(~ !'/\_ 

James A. Broderick 

Administrative Law Judge 

Distribution: 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Wil,Liam R. Seale, Esq., Mitchell, Clar~e_, Pate, Anderson & 

Wimberly, P.O. Box 1066, Pless Professional Building, 

Morristown, TN 37814 (Certified Mail) 

/fb 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV~ 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

UNITED STATES STEEL 

CORPORATION, 

Respondent 

UNITED STATES STEEL 

CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

LOCAL UNION NO. 1938, 

DISTRICT 33, UNITED 

STEELWORKERS OF AMERICA, 

Representative of the Miners 

1984 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 82-35-M 

A.O. No. 21-00820-05031 V 

Minntac Mine 

CONTEST PROCEEDING 

Docket No. LAKE 82-6-RM 

Order No. 486720; 9/10/81 

Minntac Mine 

DECISION ON REMAND 

Before: Judge Broderick 

On August 30, 1984, the Commission reversed my finding 

that there had not been an intervening clean inspection of 

the subject mine between the issuance of the contested 

104(d) (2) order issued on September 10, 1981, and the prior 

104(d) (1) order issued on March 31, 1981. However, the 

Commission affirmed my finding that the operator violated th~ 

mandatory standard involved and remanded the case for modification of the order based on new findings concerning whether 

the violation was caused by the operator's unwarrantable 

failure to comply with the standard, and concerning whether 

the violation was significant and substantial. The Commission 

decision states (page 8, fn. 3) that the contested order 

2561 
issued under section 104(d) (2) should be modified to a 

section 104(d) (1) order, a 104(d) (1) citation or a 104(a) 

citation. However, as I read 104(d) (1) and 104(d) (2), a 

104(d) (1) withdrawal order (issued at this mine on 

March 31, 1981) can only be followed by a 104(d) (2) order 

(assuming no intervening clean inspection) , and not by a 

104(d) (1) order. Where a clean inspection has intervened 

as in this case under the Commission decision, a violation 

can only be cited as a 104(a) citation or a 104(d) (1) 

citation. 

Following remand, I issued a briefing schedule order 

on September 6, 1984. Both parties have filed briefs. 

Based on a reconsideration of the entire record, the 

Commissions decision on review, and the contentions of the 

parties, I make the following decision. 

THE VIOLATION 

The standard found to have been violated in this case 

requires that "safety belts and lines shall be worn when 

men work where there is danger of falling." Therefore, 

the violation ipso facto involves a safety hazard, namely 

the danger of falling. 

UNWARRANTABLE FAILURE 

My prior decision concluded that the violation was 

caused by the unwarrantable failure of the operator based 

on the fact that it was committed by a foreman who represented management. The Commission found my conclusion to 

be insufficiently explained for meaningful review by the 

Commission. 

The most complete discussion of the meaning of the 

term "unwarrantable failure" is contained in the Interior 

Board of Mine Operations Appeals decision in the case of 

Ziegler Coal Company, 7 IBMA 280 (1977). The Board said 

at pages 294-295: 

"Usually, where liability is dependent 

upon a determination of fault with regard to a 

person's knowledge, the fault typically concerns 

the person's knowledgeability as to matters of 

fact. Given the foregoing and inasmuch as the 

literal language of section 104(c) [of the Coal 

Act] implies that the fault encompassed in the 

'unwarrantable failure' requirement is of the 

typical kind, we are of the opinion that both 

2562 
the conferees and the House Managers were talking 

about an operator's failure to abate conditions 

or practices the operator knew or should have 

known existed and therefore should have abated 

prior to discovery by an inspector." [Emphasis 

in the original.] 

Applying this rather ponderous language to the facts of 

this case, the foreman did not wear a safety belt "where a 

danger of falling should have been recognized under the 

circumstances" (Commission Dec. p. 4). The foreman asserted 

that the practice was not dangerous. The violation by its 

very terms involved a danger. I found that it occurred and 

the Commission affirmed. The foreman knew of the exposure 

{he could have fallen 18 feet) . In the words of the Ziegler 

decision, this was a matter of fact. He should have known 

of the danger. Therefore, the foreman knew or should have 

known that the violative conditions or practices existed or 

occurred. 

Is the knowledge of the foreman imputable to the 

operator? 

In Pocahontas Fuel Co., 8 IBMA 136, 147-8 (1977), 

aff 'd Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 (1979), 

the Board found unwarrantable failure to comply on the 

basis that "the knowledge or constructive knowledge" of a 

preshift examiner was "properly imputable to Pocahontas." 

In the case of Secretary v. Ace Drilling Co., 2 FMSHRC 

790 (1980), the Commission stated (in a penalty case) at 

pages 790-1: "In determining liability for conduct regulated 

by the Act, the actions of the foreman cannot be separated 

from those of the operator. The foreman acts for the 

operator." 

I conclude that where a foreman knew or should have 

known .that he was engaging in a practice, which practice is 

found to be a violation of a mandatory standard, the operator 

can be found to have unwarrantably failed to comply with the 

standard. 

SIGNIFICANT AND SUBSTANTIAL 

rn my prior decision, I did not make findings on the 

question whether the violation was significant and substantial, because such findings are unnecessary in determining the propriety of a 104(d) (2) order. However, they 

are necessary in determining whether a 104(d) (1) citation 

or a 104(a) citation should have been issued. My decision 

2563 
found that when the foreman exited the cooler, there were 

two openings through which he could have fallen to a dump 

zone more than 18 feet below. I concluded that there was 

"a danger of falling." As I previously explained the 

violation by its terms implies that it could contribute 

to a hazard. The hazard (falling 18 feet) clearly is 

reasonably likely to result in serious injury. See 

Secretary v. Mathies: Coal· Company 6 FMSHRC 1 (1984). 

Therefore, I conclude that the violation was of such 

nature as could significantly and substantially contribute 

to the cause and effect of a mine safety or health hazard. 

ORDER 

Based upon the above findings and conclusions, IT IS 

ORDERED that Order No. 486720 is MODIFIED to a 104(d) (1) 

citation. The findings, conclusions and order related to 

the civil penalty proceeding in my decision of June 8, 1982, 

were not directed for review, and therefore are not part of 

the order of remand. 

Distribution: 

;/c~.5 ~IJ Y!Jbr ~j_ James A. Broderick 

Administrative Law Judge 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

Louise Q. Symons, Esq., United States Corporation, 

600 Grant Street, Room 1580, Pittsburgh, PA 15230 

(Certified Mail) 

Clifford Kesanen, Safety Chairman, Local Union 1938, United 

Steelworkers of America, 307 First Street North, Virginia, 

MN 55792 (Certified Mail) 

/fb 

2564 
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. 

TRI-CITY PAVING COMPANY, 

Respondent 

NOV 9 1984 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 84-51-M 

A.C. No. 21-02824-05501 

Cap's Pit 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On November 7, 1984, the Secretary filed a motion to 

dismiss and approve a settlement agreement involving the two 

alleged safety violations involved in this proceeding. 

The violations were originally assessed at $3,300 and 

the parties propose to settle for $2,150. 

The withdrawal order charging a violation of 30 C.F.R. 

§ 56.3-5, and the citation charging a violation of 30 C.F.R. 

§ 56.3-1 both were issued following an investigation of a 

fatal accident, in which a front-end loader operator was 

killed when the bank under which he was working caved 

engulfing him and the loader with material from the pit 

wall. The order charged Respondent with working under a 

loose and dangerous bank and was originally assessed at 

$3,000. The citation charged Respondent with failing to 

establish standards for the safe control of pit walls. It 

was originally assessed at $300. 

Respondent is a small operator and has had no history 

of violations in the 24-month period preceeding the order 

and citation herein involved. 

The motion states that the proposed penalty reductions 

(to $2,000 and $150) are justified because the Respondent's 

negligence was deemed moderate. The operator of the front-end 

loader had put himself in a dangerous position by working too 

2565 
close to the highwall. He had previously been advised at 

safety meetings not to move too close to the highwall. The 

violation of 30 C.F.R. § 56.3-1 was considered a technical 

violation and would not in itself contribute to a hazard. 

I accept the representations in the motion and conclude 

that the settlement is in the public interest. 

Therefore, the motion is GRANTED and Respondent IS 

ORDERED to pay the agreed amount, $2,150 within 30 days of 

the date of this order. 

J

(Uv/J_/- 3 J/Jr!l Jv/v--tf 

James A. Broderick 

· Administrative Law ,Judge 

Distribution: 

Miguel J. Carmona, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 South Dearborn Street, 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

Timothy H. Chirhart, Esq., Hollihan & Neils, Executive Plaza 

Building, 1011 ~econd Street North, Box 307, St. Cloud, MI 

56302 (Certified Mail) 

/fb 

2566 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 '-' 14 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

JOSEPH B. NECESSARY, 

Respondent 

DECISION 

Docket No. VA 84-17 

A.C. No. 44-00246-03502A-A-59 

J W L Construction Co., Inc., 

Pocahontas No. 1 Mine 

Appearances: Edward H. Fitch, Esq., Office of the Solicitor, 

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

for Petitioner; 

William B. Talty, Esq., Tazwell, Virginia, for 

Respondent. 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding brought by the petitioner 

against the respondent pursuant to § llO(c) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 820(c), charging the 

respondent an alleged "knowing" violation of mandatory safety 

standard 30 C.F.R. § 77.200. At the time of the alleged 

violation, the respondent was employed by the J W & L Construction 

Company, an independent contractor doing some repair work 

on a mine refuse storage bin located at a mine owned and 

operated by Island Creek Coal Company. Respondent was the site 

foreman in charge of the repair work. Following a structural 

collapse of the structure, resulting in the death of 

three miners, and following an investigation by MSHA, the 

contractor, mine operator, and the named respondent in this 

case were charged with violations. 

On November 9, 1982, a section 104(d) (1) citation, No. 2043640, 

was issued to both the mine operator and the indepepdent contractor. 

Both were charged with a violation of 30 C.F.R. § 77.200, and the 

condition or practice cited is described as follows: 

2567 
The mine refuse storage bin and supporting 

structure for the aerial tramway system 

was not maintained in good repair to prevent 

accidents and injuries. Repair and maintenance 

work performed by an independent contractor, 

J W & L Company, Inc., during miners' vacation 

(June 20 - July 11, 1982) resulted in the 

facility being left structurally unsound because 

two of the six bin support columns (stub columns) 

were not positioned during reinstallation to 

align with the main support columns. A resultant 

structural collapse of the facility occurred on 

August 24, 1982, fatally injuring three miners. 

James D. Lafon and Joe Necessary were the responsible 

officials for J W & L Company, Inc., during the 

repair work. Joe Shortt (plant foreman) and 

Mike Cole (Assistant maintenance foreman) were 

the responsible officials for the Virginia 

Pocahontas Preparation Plant facilities during 

the repair work. This citation is issued jointly 

to both the production operat6r.(Citation No. 

2043639 dated 11-9082) and the independent 

contractor (Citation No. 2043640 dated 11-9-82) 

for the violation described above. 

On or about January 16, 1984, pursuant to 30 C.F.R. Part 100, 

MSHA's Office of Assessments served the respondent with a 

proposed civil penalty assessment of $1,000 for the foregoing 

violation under section llO(c) of the Act. Respondent was charged 

with knowingly authorizing, ordering, or carrying out the 

independent contractorts violation of 30 C.F.R. § 77.200, as 

cited in the aforementioned citation. He contested the citation, 

and MSHA filed the instant proposal for assessment of civil penalty 

against him. 

According to the information furnished by MSHA's counsel 

during the hearing in this case, Island Creek Coal Company, 

the operator of the Pocahontas Mine, has paid a civil penalty 

assessment in the amount of $240, in satisfaction of the citation 

(Tr. 4). Counsel also advised that in a proceeding before 

Commission Judge Gary Melick, Docket VA 8~-47, the Judge on or 

about January 13, 1984~ approved a settlement calling for 

the contractor to pay "a civil penalty assessment of $9,000 

in satisfaction of the citation (Tr. 5, 25). 

Issues 

Whether respondent Joseph B. Necessary, acting as an agent 

of the contractor mine operator, knowingly authorized, ordered, or 

2568 
carried out the aforesaid violation under section llO(c) of 

the Act, and, if so, the appropriate civil penalty which should 

be assessed against him individually pursuant to section llO(a) 

of the Act. 

Additional issues raised by the parties are identified and 

discussed in the course of these decisions. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seq. 

2. Commission Rules, 20 C.F.R. § 2700.1 et seq. 

3. Sections llO(a) and llO(c) of the Act. Section llO(a) 

provides for assessment of civil penalties against mine operators 

for violations of any mandatory safety or health standards, 

and section llO(c) provides as follows: 

Whenever a corporate operator violates a mandatory 

health or safety standard or knowingly violates 

or fails or refuses to comply with any order 

issued under this Act or any order incorporated 

in a final decision issued under this Act, except 

an order incorporated in a decision issued under 

subsection (a) or section 1-0S(c), any director, 

officer, or agent of such corporation who knowingly 

authorized, ordered, or carried out such violation, 

failure, or refusal shall be subject to the same 

civil penalties, fines, and imprisonment that 

may be imposed upon a person under subsections (a) 

and (d) (emphasis added) . 

30 C.F.R. § 77.200, provides as follows: 

All mine structures, enclosures, or other facilitires 

(including custom coal preparation) shall be maintained in good repair to prevent accidents and 

injuries to employees. 

An "agent is defined in Section 3(e)! of the Act (30 U.S.C. 

§ 802(e)) to mean "any_person charged with responsibility for 

the operation of all dr part of a coal mine or other mine 

or the supervision of the miners in a coal mine or other mine." 

Stipulations 

The parties stipulated as to jurisdiction, and the fact that 

the respondent was employed by the independent contractor 

2569 
in question as a foreman during work performed by the contractor at the mine site in question in June and July 1982. 

They also agreed that the refuse bin structure in question 

collapsed on or about August 24, 1982, and that following an 

MSHA investigation, the respondent was cited for the violation 

which is the subject of this case (Tr. 6-7). 

The parties stipulated as to the authenticity of MSHA's 

official report.of investigation, exhibit P-1, and they agreed 

that the citation issued by MSHA Inspector Jerry Wiley in 

this case was the result of the investigation conducted by 

MSHA (Tr. 7). MSHA's counsel pointed out that the report 

(exhibit P-1), was issued on August 24, 1982, but that a final report 

was not released until March 2, 1983, after the citation issued. 

Counsel explained that the August 24, 1982, "preliminary report," 

including the date contained therein, formed the basis for 

the issuance of the citation by Mr. Wiley. Counsel also indicated 

that Mr. Wiley had no'independent knowledge of the facts 

leading to the collapse, other than the report of investigation, 

and the parties agreed not to call him as a witness in this 

proceeding since the author of the report, MSHA Inspector 

Dale Cavenaugh, would testify (Tr. 9-10). 

Petitioner's Testimony and Evidence 

Ernest M. Cole, Yard Foreman, Island Creek Coal Company, 

testified that at the time of the accident he was employed 

at the mine as the Assistant Outside Maintenance Foreman. During 

the miners' vacation period in 1982, he was responsible for 

maintenance and repair work at the preparation plant, and 

he confirmed that he occasionally observed the work being 

performed on the bin structure in question. He confirmed 

that he was aware of the fact that the top of the bin had been 

removed for repairs, and that during the removal process the 

crane used to lift it off collapsed. He also was aware of 

the fact that Mr. Necessary was the site foreman for the 

J W & L company performing the work on the bin (Tr. 33-37). 

Mr. Cole stated that he was concerned that the repair 

work would not be completed by the contractor by the time 

miners' vacation ended, and he indicate0 ·that once the bin 

was removed and on the ground, work was not progressing during 

the second week (Tr. 37). Mr. Cole confirmed that the bin 

stub columns were welded to the structure while it was on 

the grou~d, and he indicated that he was aware of no engineers 

from the contractor or Island Creek reviewing the work being 

performed by the contractor (Tr. 38). 

Mr. Cole stated that once the bin was replaced, he went 

to the top to make sure that the belt was operable so that 

2570 
the preparation.plant could operate. He did not believe that 

he had any responsibility to inspect the structural integrity 

of the work performed by the contractor, and his concern 

was that the belt at the top of the bin was operational. He 

confirmed that prior to the repair work, the bin had a large 

hole in it which caused some spillage of waste materials (Tr. 41). 

Mr. Cole identified exhibit P-1 as a copy of MSHA's 

accident investigation report, and he confirmed that he is 

the same Mike Cole ref erred to in the report. He described 

what he saw when the structure collapsed (Tr. 42-44). 

He confirmed that any knowledge he had that any of the bin 

support columns were misaligned came from his reading of MSHA's 

report (Tr. 45), and he had no prior personal knowledge that 

the support columns were misaligned (Tr. 46). 

On cross-examination, Mr. Cole described the hole in 

the bin, and he confirmed that spillage was cleaned up with 

an end loader. He also confirmed that there was a concrete 

pad at the base of the bin structure, and that it was not muddy, but 

it would be wet on occasions when the plant was washed down 

(Tr. 56). He stated that he was not aware of the condition 

of the bottom half of the bin structure prior to the repair 

work (Tr. 56-57). 

Mr. Cole indicated that the bin was used to store refuse 

such as rock and slate which had been removed from the coal. 

He explained the procedures used to process the coal through 

the preparation plant and into the bin (Tr. 58-60). He also 

explained that "filter cake," or the finer particles from 

the refuse, finds itself into the bin, and it is either wet 

or dry (Tr. 62). He stated that' he is not aware of any "proper 

procedure" for freeing up such material which may "hang in" 

the bin, and he confirmed that the only way he is aware of 

for freeing the material is to "beat on" the bin (Tr. 63). 

When this is done, the material falls through the bottom 

of the "cone shaped" end of the bin onto a feeder and into 

a hopper (Tr. 64). He confirmed that "beating on" the bin 

has been a long standing method for freeing such material 

from the bin (Tr. 64-65). 

Rufus W. Young, welder, J W & L Construction Company, 

testified that he and;Mr. Larry Stewart worked on the bin 

which is the subject of this case. He described the work 

performe~ in removing the top of the bin structure, and he 

indicated that each of the six stub columns were cut through 

with a welding torch in order to remove the top of the bin. 

He indicated that the top of the bin which was removed was 

cut off above the support columns at the top of the ring 

which is at the bottom cone portion of the bin. He stated that 

2571 
the main columns supporting the structure from the ground 

up to the location where the bin was cut off were large 

columns which did not continue up to support the top 

of the structure. The upper support columns were smaller 

four or five inch columns different from the bottom ones 

(Tr. 7 3) . 

Mr. Young stated that Mr. Necessary was supervising 

the work he and Mr. Stewart were performing. He also 

confirmed that this was the first time he had ever taken a 

top off a bin structure and replaced it after repairs, and 

he indicated that in· his past experience the entire bin 

structure was simply replaced. The job for Island Creek 

was the first time he had ever taken off the top of a bin 

above the funnel. He confirmed that the new portion of the 

bin which he worked on had been prefabricated in two pieces, 

and that he and Mr. Stewart simply welded them together 

while it was on the ground. They also added the stub columns 

which had been cut off the old bin. Mr. Young was not present 

when the old bin was lifted off and lowered to the ground 

(Tr . 7 4- 7 6) . 

Mr. Young explained how the six stub columns were welded 

to the bin structure while it was on the ground, and he 

indicated that measurements and "plumbing" were done to 

insure that they were on straight. This work was finished 

late in the second week of the vacation period. Once the 

columns were on, the crane lifted the bin in place on top 

of the structure, and once one of the columns was aligned, 

he and Mr. Stewart began the welding process from inside the 

bin, working their way around. He described the process 

as follows (Tr. 79-82): 

Q. When you put that bin in place with 

six columns, you assumed that the other 

five were in line because this one was 

in line? 

A. Yes, I would say that's what we done 

because there was no way of setting it and 

telling because it wasn't a perfect circle. 

We had to draw it in in places. In some 

places it would stick out, and in some places 

it wou~d be on the inside. 

Q. It did not quite fit; did it? 

A. No, not perfect. I have never put anything together like that that did [sic]. 

Q. I am sorry, I didn't get your last answer. 

2572 
JUDGE KOUTRAS: He said he has never 

known one to fit in perfect. He tried 

to align it the best he could. 

Is that what you said? 

A. Yes, sir. 

Q. How was the new bin marked for the 

columns to be put on? This is when it was 

down on the ground. 

A. We just got the center of one column and 

started with it and marked the rest of them 

as we went around, mark the centers. 

Q. Was the mark put on the bin for the center 

of the column or the edge of the column? 

A. Well, we got the center of the column 

and then we measured the thickness of the 

beam and marked the edges so we could see. 

If it had been the center, you wouldn't 

have able to put it on there right, so we 

marked it for the edges of the beams. 

Q. When you set the new bin on top of the 

old columns, you only lined up one column? 

A. Well, that's all we could line up at the 

time. 

Q. After it was put in place, lined up on that 

one column, did the crane disconnect from the 

bin and you started your welding process? 

A. No, sir. We left the crane hooked to it 

until we worked it around and got it all ·.the 

way around. 

Q. The crane was in place holding the bin 

while you did the weldino/ around the structure? 

A. O~ the inside. 

Q. On the inside? 

A. Yes, sir. 

Q. So you got inside the bin and you welded a 

circle around the bin where it joined with the 

cone? 

2573 
A. Yes, sir. 

Q. At that point you had not done anything with welding the columns; right? 

A. No, sir. 

Q. So the inside was fully beaded? 

A. Yes~ sir. 

Q. Did the crane go away then after you 

finished that? 

A. To the best of my recollection it did. 

Q. Is this one of the long days that you worked? 

A. That we welded? 

Q. Yes. 

A. Yes, sir. 

Q. Putting the bin in place. 

A. Yes, sir. 

Q. Is that the day you worked about 20 hours? 

A. Probably so. 

Q. You welded the whole inside? 

A. Yes. 

Q. Did you start welding the outside that day? 

A. No, sir. 

Q. You went home when you finished on the inside? 

A. Yes, sir, we went home when we got the inside 

made up and the belt put back on top and they started 

running rock through. They started it up. We did 

the work on the outside while they was running. 

Q. So the actual welding of the stub columns took 

place --

A. While they was running rock in the bin. 

Q. After miners' vacation? 

A. Yes. 

2574 
Mr. Young explained the work which was performed on 

the outside of the bin once the inside work was done, and 

his testimony is as follows (Tr. 83). 

Q. You did another weld on the outside 

of the bin all the way around? 

A. Yes. 

Q. How did you match up the columns, 

the stub columns? 

A. They were matched when they come 

around, all except one was a couple inches 

off. One of the two bins weren't the same 

size. When we drawed it around it was a 

slight bit larger, so it throwed one of the 

columns off a couple of inches, to the best 

of my remembrance. 

Q. Did you bring that to Mr. Necessary's 

attention? 

A. Yes, sir, later in that week we did. 

Q. Did you do the welding of that column before 

he knew about it? 

A. I don't recall. I am not sure. 

Mr. Young was shown a copy of a signed statement he 

gave to MSHA's special investigator on July 9, 1984, and he 

acknowledged that it is his statement (Tr. 84; exhibit P-2). 

A portion of the statement was read into the record, as follows 

below, and Mr. Young acknowledged that it was true (Tr. 85-86): 

We started welding on the top part of the 

bin and when we got all the way around to the 

last column, I, the other welder, Stewart and 

Gillespie and the foreman Joe Necessary noticed 

the top H-beam was off center about two inches. 

Mr. Young explained that he noticed the columns were 

out of line the week after the vacation period ended, and 

he explained further as follows (Tr. 86-89): 

Q. What I am trying to understand is when did 

you first notice that they were out of line? 

The week after the vacation was over? 

A. While we was working on the outsides of 

the bin, we noticed a bludge inside the bin. 

2575 
Q. In other words, by the time the 

miners' vacation was over this job had 

not been completed yet; is that right? 

You were still working on it, the miners 

were back and they were running material up 

this belt? 

A. Yes, they were running material up the 

belt while we were working. 

Q. You were working doing what around the 

outside of it? 

A. Welding around the outside. 

Q. Welding what? 

A. Welding the top part of the beam to the 

support ring and the column. 

Q. What was holding this bin up while they 

was dumping? 

MR. FITCH: Interweld. 

THE WITNESS: We made a complete weld on the 

inside all the way around. They started up, and 

we went on the outside and started to work on 

the outside of the bin. 

BY JUDGE KOUTRAS: 

Q. It was when you were doing this work on 

the outside to finish this job is when you saw 

that one of the H-beams --

A. Yes, sir, that's when we were out there. 

That's the only time we were in a position to 

see it. 

Q. That is the first tima you noticed it? 

A. Ye~; sir. 

Q. How does it come to pass that Mr. Stewart 

and Mr. Gillespie and Mr. Necessary were all there 

and noticed it too? 

A. We were just working there and we talked 

about it, we noticed it 

Q. About two inches? 

2576 
Q. One column? 

A. To the best of my memory, one column about two 

inches. 

Q. Then the statement goes on to say: "We discussed 

the condition with Necessary and he told us ~o 

put a plate to help support the bin. We put the 

plate on after they had already started putting 

rock in the bin. Necessary was the only one I saw" 

What is that next word? 

MR. FITCH: Inspect. 

BY JUDGE KOUTRAS: 

Q. "Inspect the bin after the work was completed." 

So after you noticed that it was two inches off, 

this one column, what is this business about a plate? 

Q. Well, we would have had to put a plate in anyway 

because where we burnt we had to straighten it up. 

There would have been a gap between the two beams. 

We would have had to put the plate in there anyway. 

Q. What you said in this statement to the man who 

took it from you on July 9th, is as you remember 

it back when you finished the job; is that correct? 

A. Yes. 

Mr. Young explained how he welded half-inch plates under 

the column which was two inches off center, and he referred 

to Drawing 4, which appears at page 12 of MSHA's accident 

report to explain how the plates were welded to the column. He 

also testified as to certain "scrapes" which appear on the 

pictures shown on page 13 of the report, as well as the seams 

and bolt holes which appear in the photographs (Tr. 98-100). 

Mr. Young could not recall whether plates were welded on all 

six support columns, "or just the ones that had the gap in 

it where we couldn't weld it" (Tr. 102). However, he conceded 

that "it was possible" that more than oti~ plate was welded 

on (Tr. 104). 

Mr. Young stated that to the best of his recollection 

only one of the stub columns was off two inches, and since 

it was already welded onto the bin, there was nothing that 

could have been done to move it over (Tr. 109). The column 

was left in that position when the plates were welded on 

(Tr. 117). The plates simply filled the gap under the column, 

and had nothing to do with it being two inches off center 

(Tr. 118) . 

2577 
Mr. Young stated that during the course of his welding 

work on the bin structure, he did not do any bolting work, 

and he reitereated that at no time were any of the stub 

columns off center by eight inches (Tr. 126). He conceded 

that when the repair work was completed, the one column was 

still two inches off center (Tr. 126). 

On cross-examination, Mr. Young stated that at no time 

during his work on the bin structure was he ever rushed or 

pushed to work faster, and he believed he had adequate time 

to do the work as he believed he should do it (Tr. 128). 

He stated that during the time he was performing work on the 

structure, some of the concrete footers at the base of the 

structure were under water. He also indicated that he did 

not notice whether all of the "X" cross or lateral support 

beams at the base of the structure were in place (Tr. 129). 

Larry S. Stewart, testified that he is employed by J W & L 

Construction Company as a welder, and he confirmed that he 

participated in the repairs made to the bin in question in 

this case. He confirmed that he welded the old stubs which 

had been taken off the old bin to the new bin while it was 

on the ground. He stated that he and Mr. Young measured 

the old beams while the bin was on the ground, and that 

Mr. Necessary was present and observed how these measurements 

were made. He described how this was done and confirmed 

that once the columns were welded to the new bin, he helped 

install it to the structure and helped nline it up" (Tr. 131-133). 

He described what he did as follows (Tr. 135-145): 

A. Well, we was -- a couple of us like was 

on one side and maybe two or three on the other 

side and we sort of tried to get them all lined 

as we set it down. Then we started at that one 

and got it real close and as best, you know, 

in line and then worked our way around, drawed 

the bin in, because part of it would be bulged 

out a little bit because where you welded it 

it would give a little. 

Q. It was not a precise fit wpen you put it 

back? 

A. No. 

Q. As you welded it it bulged around? 

A. What I was talking about is when they put 

the stub columns on the ground it might have 

drawed in a little bit. That is the reason 

we had to pull it on in to make it fit. 

2578 
* * * * 

Q. When you say "draw it in," can you 

explain what you mean by draw it in. 

A. We had had a ring, you know the ring, 

part of it was sticking over just a little 

bit so we had to make something to put on 

it and then tack it and draw it in so it 

would fit flush and worked our way around. 

Q. So the bin was too big, but not by much 

or what? I am trying to understand what you 

are trying to tell me and I am not quite 

clear. It wasn't a simple easy bead around. 

You had to make it fit? 

A. Yes, had to sort of 

in. 

you had to draw it · 

Q. What kind of equipment did you use to 

draw it in? 

A. We had some big 12-inch C-clamps. You 

know, you could draw the metal down. We cut part 

of it off and made a foot and put it at the 

bottom and we tied to the part that was like 

this, out, and then drawed it, you know, just 

kept screwing. We had like three or four drawing 

it into a fit and then we would tack it, then 

we would go back and weld. 

Q. When you finished that process, how many of 

the outside stub columns had been welded to the 

other columns; do you know? 

A. I know one had for sure. 

Q. How many did you actually weld? 

A. I can't remember. Maybe two or three. I 

don't remember if I welded al~ of them. 

Q. Do you remember coming across a stub column 

that was not lined up with the column above it? 

A. Yes, that was two or three days after we had 

done put it up. They was running refuse in the 

bin. 

Q. Tell me what happened that day; what did you see? 
A. It wasn't directly over top of it. I 

thought it was -- by looking, you know, I 

thought it was like a couple inches off. 

Q. Did you talk to anybody about that? 

A. I didn't, no. 

Q. Who did? 

A. Mostly I worked with Rufus. He usually 

talked to Joe and then he would tell us 

everything to do. 

Q. That was Joe Necessary and Rufus Young? 

A. Right. 

Q. Mr. Necessary would tell you what to do --

or he would tell --

A. Mr. Young would tell us, you know, what we 

would be doing, you know. 

Q. Did you do the welding for the column that 

you say did not line up? 

A. I don't remember. I can't remember. 

Q. You do not remember putting a plate in and --

A. Yes, I remember we put plates in. We 

put the plates in. I am not for sure -- we was 

in a basket when we was putting them back. 

* * * * 

Q. I have told you and you have heard in the 

testimony today the investigation indicated with 

respect to Drawing Number 3 that Columns Number 

4 and 5 were offset 8-1/2 and ,8 inches, respectively, 

and tho.t is a drawing to give a representation of 

how the stqb column did not align directly with 

the main column. 

A. They didn't line up, but to the best of my 

knowledge, I don't think it was off no eight 

inches. Which when they came and talked to me 

a year ago, the first time, they only said one 

2580 
column. Now you all say there was two. I 

told them then that I thought it was just 

off like a couple inches. I didn't think 

this drawing was right. 

Q. Well does that drawing look like the work 

you did? 

A. Yes, we put plates in here. We did put 

plates. 

Q. And you beaded those plates to the lower 

column and you beaded them to the stub column 

and you beaded them to the bin? 

A. We welded all the way around this ring, 

see. This is a separate one. There were two 

going to the top of that. See, because when 

I cut it loose, there was one coming up 

that stopped here, and there was an old plate 

in there to start with, then that stub column 

set on it. 

See, this ring, it wasn't one solid made ring. 

It came on both sides of this main support beam. 

Then there was a plate. I know some of them 

was over top of it. 

Q. The stub column was welded to the plate? 

A. Welded to the plate and that is the way 

we welded them back. The reason we had -- so.me 

of them had like a thicker gap -- some of the 

beams was more cut out when it was tooken down --

Well, I cut most of them out and then some of 

them I went back and cu~ again because like one 

of them come loose. That is the reason why we 

had a couple plates in some of them. 

* * * * 

Q. Is that diagram and the p~evious diagram, 

which is Page 11, Drawing Number 3 that shows 

the offset:and in Drawing Number 2 on Page 10 

which shows how it should have been -- Do 

you recall welding those two stub columns, 

Column 4 and Column 5, at an offset without 

having the beam directly centered on the stub 

column? 

A. I can remember welding on them, yes. I 

know of one being off, but I don't think it was 

off no eight inches. 

2581 
Q.. You never measured it; did you? 

A. No, 

tell by 

I would 

a half. 

I didn't measure but I could almost 

looking it wasn't no eight inches. 

call it about two inches or two and 

Eight inches would be that (indicating). 

Q. Do you recall that that occurred on one 

or two columns? 

A. I just recall it on just one, to the best 

of my knowledge. 

Q. You indicated that you and Mr. Young were 

the people that did the welding on the outside 

and you were hanging in a basket doing this 

work; right? 

A. Yes,-part of it you could get out and walk. 

We had a scaffold built you know, on the outside. 

Part of it we got on the platform and welded and 

part of it we got in the basket and worked around. 

Q. Mr. Stewart, are you aware of whether or not 

Mr. Necessary saw that column that you maintain 

was misaligned? 

A. He came out while we was working on it, you 

know, and was talking to us and telling us what 

to do -- like I say, mostly he talked to Rufus, 

like, you know, tell him what to do. But I 

am almost sure that he saw it off. 

Q. Did he get in the basket? Was he on the 

scaffold? 

A. You could come up the bin, you could climb 

down, you could go walk around it. You know, 

you could go around it. 

Q. On the scaffold? 

A. Yes. 

Q. You saw him in the presence of that one 

column that you recall? 

A. I believe, I can't really swear to it, you 

know, that positively that I know he saw it. 

2582 
Q. Did you receive any instructions from 

Mr. Young or Mr. Necessary as to how to weld 

the column that you recall was not aligned? 

A. We were told, you know, to put our plates 

in there to bridge that gap, which like I 

told the guy when he came and talked to me that 

you would have had to fill that gap and you 

would have had to put a plate in there. 

On cross-examination, Mr. Stewart stated that the reason 

the new bin was "slightly off" when it was replaced was that the 

entire bin and cone were not replaced. He indicated that the 

cone was "eat up," and he believed it should have been replaced. 

He described how the old bin top was cut off the structure, 

and he indicated that the newly repaired portion of the bin 

was welded to the cone on the inside. He also indicated 

that the old bin cone ring had been "·riveted on" and "stiched 

on," and that the rivets are similar-to bolts spaced a foot 

apart. He also indicated that the ring was not a solid 

weld where it fit to the cone, and that the rivets make holes 

in the side of the bin (Tr. 145-150). 

Mr. Stewart stated that he did not feel "rushed" during 

the time he worked on the bin, and he confirmed that some 

of the structure concrete footers were under water (~r. 155). 

He also indicated that the structure had X-braces and lateral 

supports, and he could not recall whether any of them were 

missing (Tr. 156). He was not present when the structure 

collapsed (Tr. 157). 

In response to questions ;from the bench, Mr. Stewart 

testified as follows (Tr. 158-165): 

Q. When you welded the new bin onto the 

pressure ring, the idea is to get the stub 

column directly over the existing I-beam that 

is under it; right, so that one will support 

the other; is that right? 

A. Yes. 

l 

Q. To the ~est of your knowledge, did you 

achieve that objective, did you get all that 

lined up to where you thought it should be 

lined up? 

A. No, we didn't -- there was one like I --

Q. The one that was two inches off? 

A. I think it was about two. 

2583 
* * * * 

Q. How many of the stub columns had you 

welded? I understand you put the first one 

in, but how many had you welded after you came 

back after the Sunday and they were operating 

and they were pouring material into that bin; 

do you recall? 

A. At least four. Well, ! know positively 

we welded one on Sunday, the one we started from. 

Q. Did you ever perform any welding work from 

the scaffold while they were pouring material 

into that bin? 

A. Yes. 

Q. Did tb~t concern you at all? 

A. It was no problem to me. 

Q. I see this scenerio, you and some o;t; your 

fellow working welders up there on the scaffolding 

and only one column is in place and you are in the 

process of welding the rest of them and they are 

pouring all this material in the bin; weren't you 

concerned that the outside support columns, stub 

columns, were not in place yet? 

A. After we welded up on the inside, they 

was pretty well in line then. They was over the 

top of the other one and the bin was set in the 

tank. Well, I say the tank, it was on the ring 

real -- setting on it good and I didn't think 

it was going to come off. 

Q. Now, the theory of the Government's case 

here is after you fellows completed your job, 

there were two columns that were off eight inches 

and within a week or two after you finished --

MR.. ;FITCH: Five weeks. 

BY JUDGE KOUTRAS: 

Q. -- five weeks after you finished something 

happened to cause this thing to collapse. My 

curiosity is aroused as to if it took five 

weeks for it to collapse after all the stub 

2584 
columns were in place, why did it not 

collapse when only one was in place and 

you fellows were working on it and they 

were pouring material into it? Do you 

have any explanation for that or any opinion 

or anything? 

A. Well, that's what I thought, it looks 

like -- with those columns we didn't even 

have welded, it looks like it would give 

then. The way I feel about it, I think 

they got it too full and all that weight 

come down. I believe that cone come loose from 

the bottom it tore loose from that ring and 

it shoved out. I thought about it before, you 

know, like if that cone give out because, see, 

they didn't replace that cone. It was eat up and 

you had all that weight coming down in that 

thing. I either feel that one of them bottom 

main support beams either gave down then it 

peeled off, it would have to peel off, or either 

that cone come out from under the bottom. 

* * * * 

A. I believe the bottom gave down and it turned 

over. I thought that they should have replaced 

that bottom part. The coal company I thought 

Island Creek should have replaced the whole thing. 

Q. Aside from that, the Government's theory 

here seems to be that the thing gave way because 

two beams were misaligned. Be that as it may. 

You were not concerned when you were up there 

and they were dumping all that stuff. 

A. I didn't think it would -- what we would 

have done would have give away, no. But I 

thought about that bottom part coming out, which 

I talked about, you know·, to Mr. Young. 

Q. Who is Mr. Young? 

A. Rufus Young, the one that was working with 

me. I told him that bottom -- I thought it might 

shuck out if it got full. 

Q. When was that? When did you talk to him 

about that? 

A. When he was working, doing the job. 

2585 
Q. Did you mention that to anybody else? 

A. I mentioned it to -- not until after it fell. 

Q. Who did you mention it to after it fell? 

A. The investigators when they came about a year 

or so -- I didn't even know anybody had got killed. 

* * * * 

Q. Had you ever done any of this kind of work 

before? 

A. Yes, I have. 

Q. Cutting the top off of a bin like this? 

A. Yes, I have welded up water tanks we have set 

them up, I have welded lugs on, we have picked 

them up with a crane and set them and welded all 

kinds of belt structures, stock piled coal. 

Q. So what you are saying, if you had to do this 

all over again if you were the man that wrote 

the work order, you would have taken the whole 

contraption down and put a new one up there; is 

that right, rather than cutting it off? 

A. Yes, I would. I would have replaced that cone 

and all. I asked the inspectors about that water 

hole. I was wondering if they might have put --

there 1 s a settling pond there. I was wondering 

if it was put in after that bin. I thought maybe 

they might have put it in after it and undermined 

one of those footers, too. That run in my mind, 

if maybe one of them gave down and come over. 

Dale R. Cavenaugh, Mechanical Engineer, MSHA Coal Mine 

Safety Division, Arlington, Virginia, testified as to his 

background and experience. He identified exhibit P-1, as 

the report of investigation which he and others published 

after the completion uf the accident investigation in question. 

He stated that upon inspection of the storage bin parts which 

had been inventoried and marked by the respondents personnel, 

it was concluded that the bin columns had been misaligned, 

and the conclusion reached by MSHA in this regard was the 

result of the examination of these parts (Tr. 166-169). He 

2586 
confirmed that all of the bin stub columns were still attached 

to the bin sides, and that the cone section was attached to 

the insides on all locations that were used to determine 

what caused the bin to collapse. He also confirmed that 

measurements were made to support the conclusion that the 

stub columns shown in photographic exhibits C-4 and C-5 

were misaligned, and he described how this was done (Tr. 170). 

Mr. Cavenaugh stated that there was no doubt that two 

of the stub columns were misaligned by eight or eight and a 

half inches, and he explained how he made this determination, 

including a review of the blueprints of the structure supplied 

by the company who originally designed, manufactured, and 

installed the bin sometime in 1968, and interviews with 

representatives of that company (Tr. 171-172). Mr. Cavenaugh 

also explained how the misaligned columns affected the bin 

load capacity and weight distribution (Tr. 173-174). 

Mr. Cavenaugh stated that his investigation did consider 

the possibility that the bin footings and the complete failure 

of the cone may have contributed to the collapse of the bin, 

but that these theories were discounted, and the cone was 

still attached to the bin sides on most of the pieces which 

were examined (Tr. 175-176). Be also indicated that his 

engineering calculations, which were based on the misalighed 

columns, indicated that the structure could not support a 

fully loaded bin (Tr. 176). He believed that a reasonably 

prudent person would have insured that the misaligned 

columns were removed and reattached to the bottom columns 

so as to transfer the weight load to the support column, 

and that the failure to take this corrective action caused 

the collapse of the structure (Tr. 1771. 

Mr. Cavenaugh confirmed that MSHA's investigation 

determined that the crane accident did not affect the stability 

of the structure, and he concluded that anyone with knowledge 

of the way the bin was supported, and the fact that the 

columns were misaligned, should have known that "something was 

wrong" (Tr. 179). 

On cross-examination, Mr. cavenaugh confirmed that he is 

a trained mechanical engineer rather than a. civil engineer. 

He conceded that it was possible that the original installation 

of the structure may not have been exactly how it is depicted 

in the blueprints which he examined (Tr. 187). He confirmed 

that his investigation did not disclose that any alterations 

were made to the structure after it was constructed (Tr. 188). 

He explained the function of the bin bolt holes as follows 

(Tr. 188-191) : 

2587 
A. There were bolts going through the column 

through the bin side pieces that would align 

those segments during construction so welding could 

be done. The bolts were through those holes 

and through the column when it was built and the 

way the one in VP-2 is built also, which there is 

a picture of it. 

Q. What did you take the purpose of those bolt 

holes? 

A. I felt that they were to help support the 

bin in place while the welding was to be done 

and also to keep the column close to the side of 

the bin to help facilitate welding. 

Q. Did you inspect for bolt holes or, I guess 

they could be rivet holes as well, underneath 

or in the area of the four stub columns other than 

the two that you decided were misaligned? 

A. Yes, we did. 

Q. What did you find in regard to those holes? 

A. They were aligned. They were aligned with 

the stub column as in the top picture. 

Q. Would bolting the bin to the main support 

column be the only way of securing the bin to the 

main support column? 

A. I am not sure what you mean. 

Q. Could the bin be welded to the main support 

column as well as bolted? 

MR. FITCH: Point of clarification. His testimony 

was it was welded after the bolts were put in. 

THE WITNESS: The weld was ho:kding the bin, not 

the bolts. Of course, the bolts would help it. 

They are not near strong enough to hold that bin 

up. 

BY MR. TALTY: 

Q. It was primarily the weld? 

2588 
A. Right. 

Q. Would it be possible that when the 

structure was originally erected that there 

was a slight misalignment at that time such 

that the bolt holes in the bin did not line up 

with the bolt holes in the main support column 

so that they were not used, that they were 

simply a weld put in but no bolt? 

A. I looked at the support column in all 

six. Unless that column was cut where it had 

originally been cut, in other words, the cut 

was in an identical place, there was no other 

cut welds on either piece, the stub column 

or the main support column. So, if that had 

happened, then they had cut the stub column 

off in the exact place that it had been cut 

before. 

Q. I am not sure I follow your answer. It 

may have been a good answer, but it was not 

clear to me. Is there any reason to think 

that one or more of those pairs of bolt holes 

were not used, that they were just simply holes 

in the side of the bin? · 

A. No, we didn't find any evidence whatsoever 

to support that. 

Q. I am not asking if you found evidence to 

support that, I am asking you if it could have 

been. Was it possible? Do you have evidence 

that every bolt hole lined up with a main 

support column, physical evidence? 

A. The last time the bin was patnted there was 

a support CQlumn lining up those holes because 

right below those holes they needed paint. 

Sir, that is about as much evidence as I have. 

Mr. Cavenaugh al~o indicated that contrary to the blueprints, which indica~ed continuous support columns from the 

bottom of the structure to the top, the investigation revealed 

that the support columns were cut and that plates were inserted 

to form the stub column (Tr. 192-197). He confirmed that 

transit checks were made on the footings, and that there 

was no way to determine how many cross braces may have been 

2589 
present prior to the accident. He conceded that to some 

extent, the removal of lateral and cross supports would 

affect the structural stability and strength of the bin 

structure, and that it was possible that there could have 

been a failure of a leg (Tr. 201). 

In response to further questions, Mr. Cavenaugh stated 

that the load capacity of the bin was 300 tons, and he estimated 

that at the time of the collapse there was approximately 250 

tons of material in the bin (Tr. 205). He confirmed that 

his mathematical calculations took into account the two support 

beams misaligned by inches, and a load by 300 tons. He 

confirmed that while welds were made on the two support 

columns in question, the top support columns were not directly 

over the bottom ones (Tr. 206) • He concluded that the structure 

did not collapse earlier then it did because it was strong 

enough to support 250 tons, and the work which was done on 

the welds was "good work." However, he believed that the 

material breaking loose inside the cone initiated the collapse 

(Tr. 207, 209). In his opinion, the bin was close to collapse 

when one of the victims began banging on the cone with a sledgehammer to free the clogged materials, and that the falling 

material "probably" initiated the collapse (Tr. 210). 

Mr. Cavenaugh stated that in his opinion, even if the 

bin structure had not collapsed, it was still not maintained 

in good repair in compliance with mandatory safety standard 

section 77.200 (Tr. 216-217). 

Respondent's Testimony and Evidence 

Joseph B. Necessary, testified that he is 61 years of 

age, and he confirmed that he has been in mine construction 

work, including work as a welder, for approximately 45 years. 

He testified as to his experience and background, including 

the operation of his own mine construction business (Tr. 241-

245) . 

Mr. Necessary stated that since August 1982, he has 

been employed for approximately four weeks, and that since 

that time he has done odd jobs such as "carpenter work, 

pouring concrete" (Tr. 245). He descri~ed his present financial 

condition as "Low. ;From one day to the next," and he indicated 

that his financial ooiigations include mortgage and car payments, 

and utility costs. He also indicated that he has had to rely 

on his son for financial assistance CTr. 246). 

Mr. Necessary confirmed that he was in charge of the 

dismantling of the top of the bin in question, as well as 

25BO 
the repairs that were made to that structure. He described 

how the work was performed and how the old bin was cut off 

and removed, and how it was replaced after the welding work 

was completed (Tr. 247-253). He also described the procedures 

used to cut the old bin portion away from the structure, 

including the cutting of the stub columns in question 

(Tr . 2 5 4- 2 5 8 ) . 

Mr. Necessary described that the loading of refuse into 

the bin began after the interior welds were completed, but 

before the outside work had been completed (Tr. 261). He 

confirmed that Mr. Young and Mr. Stewart did the work 

connected with the welding of the stub columns, and he confirmed 

that he was called up to look at the work, and that he was 

informed of the fact that one of the columns was "out of line" 

for a distance of two inches, and that he confirmed this 

by measuring it with a tape (Tr. 262-263).. He denied that 

any of the stub columns were misaligned by eight inches or 

more (Tr. 265). 

Mr. Necessary testified that he observed water around 

the bin structure footers at the No. 5 and 6 columns 

next to the catwalk (Tr. 269). He conceded that the. newly 

repaired bin may have been "out of round" when it was reinstalled, 

and that it was "drawn in" to correct this problem, and he 

indicated that the new bin was of the correct size (Tr. 271). 

Mr. Necessary expressed an opinion that the collapse 

of the structure in question was caused by the "bridging 

of material," which entailed the filling of the bottom of 

the bin cone with "filter cake" material, and he explained 

his theory as to what may have caused the collapse of the structure 

(Tr. 2 71-2 7 5) . 

On cross-examination, Mr. Necessary confirmed that upon 

examination of the ;repair work, he observed only one column 

which had been welded on two inches off center (Tr. 278). 

When asked about the bolt holes which are present under the 

columns depicted in MSH~'s report at location C-4, Mr. Necessary 

stated that he could not recall observing any bolt holes 

at the time the work was performed (Tr. 282). He confirmed 

that at no time did he ever view the bin after it collapsed, 

and that he has never spoken with anyone who worked around 

the bin when it collapsed (Tr. 284). 

Mr._ Necessary stated that at the time the repair work 

was performed, he looked at the bin and found that five of 

the stub columns were aligned properly, but that one was 

misaligned by two inches (Tr. 288-289). He could not recall 

2591 
discussing the matter with Mr. Young or Mr. Stewart, and he 

indicated that he did not consider it "that much of a hazard" 

(Tr. 293). He also did not dispute Mr. Cavenaugh's testimony 

that the holes in the columns were used to align them, 

but he indicated that he had no knowledge of any such holes 

and has never heard of them being used for that purpose 

(Tr. 295-296). 

Inspector Cavenaugh was recalled for additional testimony, 

and he indicated that "impact loads" caused by a "pyramiding" 

and sudden falling of filter cake materials in a bin cone 

are common occurrences. He pointed out that the bins are 

specifically designed to withstand such loads, and he concluded 

that there has to be something wrong with a structure of this 

kind to allow it to collapse (Tr. 315). He reiterated that 

it was his opinion that the collapse of the bin in question 

was caused by the misaligned stub columns, and that his 

opinion that the columns were misaligned by as much as eight 

inches was based on his examination of the physical evidence 

which remained after the collapse, and the fact that two 

placement holes were off center (Tr. 315-316). 

Procedural Motion 

At the conclusion of the petitioner's case, respondent's 

counsel made a motion to dismiss the proposal for assessment 

of civil penalty filed against Mr. Necessary on the ground 

that petitioner presented no evidence to support its assertion 

that he had any knowledge that two bin columns were misaligned 

by eight inches. Conceding that the evidence presented by 

petitioner may establish that Mr. Necessary was aware of 

the fact that one column was misaligned by two inches, and 

conceding further that petitioner's evidence and testimony 

may support a conclusion that the bin was not in good repair, 

and therefore in violation of section 77.200, respondent's 

counsel asserted that there is no evidence to support a 

"knowing" violation against Mr. Necessary (Tr. 227-228). 

Petitioner's counsel argued in opposition to the motion 

to dismiss, and in support of his case asserted that the 

evidence presented by the testimony of the two welders and 

Mr. Cavenaugh show without a doubt that two of the columns 

were misaligned, that this caused the structure to collapse, 

and that as the on-site foreman, Mr. Necessary should have 

known that the structure was unsound (Tr. 227-239). 

After further consideration of the oral arguments in 

support of and in opposition to the motion to dismiss, it was 

denied (Tr. 240). 

2592 
Findings and Conclusions 

The interpretation and application of the term "knowingly" 

as used in the Act has been the subject of litigation before 

this Commission. MSHA v. Everett Propst and Robert Stemple, 

3 FMSHRC 304 (1981-)-.-In MSHA v. Kenny Richardson, 1 FMSHRC 

87 4 (July 197 9; ALJ M±chels) , 3 FMSHRC 8 (_January 1981) , 

the Commission held that the term "knowingly" means "knowing 

or having reason to know·," and it rejected the assertion 

that the term requires a show±ng of actual knowledge and willfullness to violate a mandatory standard. In this regard, the 

Commission adopted the following test as set forth ±n U.S. v. 

Sweet Briar, Inc., 92 F. Supp. 777 (p.s.c. 1950): 

'[K]nowingly,' as used in the Act, does 

not have any meaning of bad faith or evil 

purpose or criminal intent. Its meaning 

is rather that used in contract law, 

where it means knowing or having reason 

to know. A person has reason to know when 

he has such information as would lead a 

person exercising reasonable care to acquire 

knowledge of the fact in question or to inf er 

its existence. 

In Richardson, the Commission held that its interpretation 

of the term "knowingly" was consistent with both the statutOry 

language and the remedial intent of the Act, and it expressly 

stated that "if a person in a position to protect employee 

safety and health fails to act on the basis of information 

that gives him knowledge or reason to know of the existence 

of a violative cond±tion, he has acted knowingly and in a manner 

contrary to the remedial nature of the statute." On appeal 

to the Sixth Circuit, the Court affirmed the Commission's 

decision, Richardson v. Secretary of Labor, FMSHRC, 689 F.2d 

623 (6th Cir. 1982), cert denied, 77 L. Ed. 2d (_1983). 

In MSHA v. Roy Glenn, 6 FMSHRC 1583 (July 1984), the 

Commission applied its holding in the Richardson case to a 

factual situation where the violation of a mandatory standard 

did not exist at the time of the alleged failure of the 

corporate agent to act. The Commission stated as follows 

at 6 FMSHRC 1586: 

* * * we hold that a corporate agent in a 

position to protect employee safety and health 

has acted "knowingly" in violation of section 

llO(c) when, based upon facts available to 

him, he either knew or had reason to know that 

2593 
a violative condition or conduct would occur, 

but he failed to take appropriate preventive 

steps. To knowingly ignore that work will be 

performed in violation of an applicable standard 

would be to reward a see-no-evil approach to 

mine safety, contrary to the structures of 

the Mine Act. 

Given the parameters of the Commission's application of 

the term "knowingly" in the Richardson case, and the refinement 

of that term in the Glenn case, the question presented is 

whether, given the facts presented in this case, Mr. Necessary 

"knew or had reason to know" of the violative conditions, 

but failed to act. In this regard, the commission observed 

as follows in its Glenn decision, at 6 FMSHRC 1587: 

* * * the Commission held in Kenny Richardson 

that a supervisor's blind acquiescence in 

unsafe working conditions would not be tolerated. 

Onsite supervisors were put on notice by our 

decision that they could not close their eyes 

to violations, and then assert lack of responsibility 

for those violations because of self-induced 

ignorance. Our decision here today is buttressed 

by the same concerns and principles. 

Although the respondent in this case conceded that MSHA's 

evidence establishes that the existence of one or more misaligned 

support columns may support a conclusion that the bin structure 

was not in good repair as required by the cited mandatory 

section 77.200, it nonetheless attempted to establish that 

other circumstances may have caused the collapse o;f the structure. 

Respondent's testimony is that the existence of standing 

water at the base of the structure at the ;footings, and the 

possible lack of enough cross-braces at the base of the 

structure may have precipitated the collapse. However, upon 

review of the testimony, I conclude that respondent's assertions 

in this regard fail to rise above unsupported opinions and 

speculations. On the other band, Mr. Cavenaugh testified 

that he considered these factors in his analysis and determination 

of what caused the collapse, and discounted them. I accept 

Mr. Cavenaugh's explanations as credible, and I conclude and 

find that respondent has not established that the standing 

water or any missing braces caused the structure to collapse, 

or otherwise contributed tQ that incident. 

During the hearing, the respondent raised the inference 

that the structure may have been damaged when it was struck 

by a crane while lifting the bin from the top of the structure. 

However, the testimony establishes that it was the respondent's 

crane, and that examination of the bin structure at the time 

of that event did not detect any damage. Accordingly, respondent's 

assertion is totally unsupported, and it is rejected. 

2594 
Although Mr. Necessary was of the opinion that the collapse 

of the structure was caused by material "bridging" in the cone 

portion of the bin, and then suddenly being loosened, · 

Mr. Cavenaugh discounted this theory and testified that such 

"bridging" is not an unusual occurrence and that a properly 

constructed bin should withstand such sudden releases of 

materials. 

Finally, the respondent argued that because of the complete 

collapse and massive accumulation of bits and pieces of the 

structure after it collapsed, it is impossible to reconstruct 

the incident with any degree of certainty. In this regard, 

I take note of the fact that the respondent failed to call 

any engineering or construction experts to support its 

conclusions in this regard. On the other hand, MSHA presented 

the testimony of Mr. Cavenaugh, a mechanical engineer who 

participated in the post-accident investigation, and who was 

in large measure responsible for authoring the August 24, 

1982, report which is part of the record in this case (exhibit 

P-1). Further, the record establishes that after the collapse 

of the structure, all of the remaining parts were secured, 

inventoried, and lableed by the mine operator, and MSHA's 

reconstruction of the event, including its conclusions as 

to what caused the collapse of the structure, was made 

after careful anaylsis a.nd evaluation of all of this material. 

Accordingly, after careful review of Mr. Cavenaugh's testimony, 

I conclude and find that the petitioner has established by a 

preponderance of all of the credible evidence adduced in 

this case that the proximate cause of the collapse of the 

structure was the fact that two of the stub support columns 

were not aligned with the main support columns, and that this 

misalighment affected the structural integrity of the bin 

structure in that it reduced its load supporting capability. 

The thrust of petitioner's case is that MSHA's investigation 

of the accident established that two of the bin support stub 

columns which were replaced after the welding work completed 

by the welders under Mr. Necessary's direct supervision were 

misaligned and were not welded in place directly over the 

structure's main support columns. ·Petitioner asserts that 

MSHA's ~Ost-accident investigation established that the two 

stub columns in question were out of litie by as much as eight 

inches, and because of this, the bin structure was structurally 

unsound, and the misffiignment ultimately caused the 

structure to collapse. 

During the hearing, petitioner's counsel pointed out 

that Mr. Necessary was in a position where he should have 

known that at least two of the stub columns were misaligned, 

2595 
that one of the welders gave him an opportunity to observe 

it closely, and that Mr. Necessary clearly remembered that 

at least one of the support columns was misaligned by at 

least two inches, and that he personally made the measurement 

that confirmed this fact (Tr. 322). 

Mr. Necessary admitted that after the construction work 

was completed on the bin, it may have been "out of round" 

when it was rewelded to the bin structure, and that this 

necessitated that it be "drawn in" by the welders. It seems 

obvious to me that at this point in time, Mr. Necessary 

should have been aware o;f; the fact that the newly constructed 

and installed bin did not exactly fit in place when the welders 

ccmnenced their work of reattaching it. Further, Mr. Necessary 

admitted that when he examined the work done by the welders, 

he recognized the fact that at least one of the stub columns 

had been welded in place two inches off center, and he conceded 

that the stub support column which he observed was misaligned 

by at least two inches. A,lthough he testified that he did 

not consider this misalignment to pose "that much of a hazard," 

this candid admission on his part supports a conclusion that 

he at least recognized that the misalignment did in fact pose 

a hazard. 

While there is a dispute in the testimony on the question 

of whether or not two stub columns were misaligned by as 

much as eight inches, I cannot conclude that this detracts 

from the fact that the testimony of at least four witnesses 

who were either directly involved in the construction of the 

bin, or participated in the post accident investigation, 

establishes that one or more support stub columns were 

misaligned. 

I conclude and ;f;ind that the petitioner has established 

through the credible testimony of Mr. Cavenaugh, that any 

misalignment in the support columns affected the structural 

integrity of the bin structure, thereby causing, or significantly 

contributing to, its collapse. Under the circumstances, I 

conclude and find that the petitioner has established by a 

preponderance of the evidence adduced in this case, that the 

bin structure in question was not maint~ined in good repair 

to prevent accidents and injuries, and that this constitutes 

a violation of section 77.200. 

With regard to the evidence establishing Mr. Necessary's 

accountability for the violation, Mr. Young, one of the welders 

who helped do the work, admitted that while he was welding the 

outside of the bin at a time when material was being dumped 

into it, he observed one column which was misaligned by at 

2596 
least two inches, and that it was not lined up with the 

support column. Mr. Young confirmed the accuracy of a prior 

statement he made to an MSHA investigator where he confirmed 

that the misaligned stub column was discussed with Mr. Necessary, 

and that Mr. Necessary inspected the work. 

Mr. Stewart, the second welder who was working with 

Mr. Young, also confirmed that two or three days after the bin 

was in place on the structure, and while material was "being 

run" into the bin, he observed one stub column misaligned by 

two inches, and he indicated that it was not directly over 

the companion support column. Further, when asked about the 

number four and five columns which petitioner claims were 

misaligned by 8 inches, Mr. Stewart responded that while 

"they didn't line up," he disputed the fact that they were 

misaligned by 8 inches, and his recollection was that only 

one column was misaligned. He also stated that he was sure 

that Mr. Necessary saw the one misaligned column while 

he was on an outside scaffold instructing him and Mr. Young 

as to how to weld some plates to fill gaps under the column. 

The evidence adduced in this case establishes that 

Mr. Necessary was an experienced welder and construction man. 

He alluded to 45 years of experience in the business, including 

the operation of his own construction company. Given this 

background, I believe one can reasonably conclude that he 

knew or should have known that the misaligned stub support 

column in question posed a serious potential safety problem 

which he should have addressed immediately by ordering his 

welding crew to make the necessary corrections. 

I conclude that the facts presented ~n this case 

establish that Mr. Necessary was aware of the fact that one, 

and possibly two, support stub columns had been welded in place 

in a misaligned position, and not directly above the remaining 

support column or columns. Further, in view of the fact 

that Mr. Necessary was supervising the work, the fact that 

the condition was called to his attention by at least one 

of the welders, and the fact that he readily admitted he 

knew that at least one of the columns was misaligned, I conclude 

that he knew, or with the exercise of reasonable diligence, 

should have known of the hazardous condttion presented by 

the misalignment of the stub columns in question. Given these 

facts, I further conclude and find that Mr. Necessary should 

have taken the necessary corrective action to insure that the 

stub coiumns were properly aligned, and that his failure to 

do so constituted a_ knowing violation of the cited mandatory 

safety standard in issue in this case. 

2597 
Civil Penalty Assessment 

Although given ample time to file post-hearing briefs, 

or proposed findings and conclusions, the parties declined 

to do so. However, I have considered the oral arguments made 

by counsel during the course of the hearing in this matter. 

With regard to the six statutory civil penalty criteria found 

in section llO(i) of the Act, petitioner's counsel agreed 

that the factors of gravity, negligence, and the respondent's 

financial ability to pay a civil penalty for the violation 

in question are relevant, but that the factors concerning 

any history of prior violations, size of operation, and good 

faith abatement do not lend themselves for application in this 

case (Tr. 320-321). 

Negligence 

I find no circumstances presented in this case which 

may mitigate Mr. Necessary's riegligence with respect to the 

violation. The evidence establishes that he knew or should 

have known of the conditions constituting a violation of 

section 77.200, and that this constitutes a high degree of 

negligence on his part. 

Gravity 

The collapse of the bin structure resulted in the death 

of three miners, and I conclude that the violation was extremely 

serious. 

Respondent's Ability to Pay a Civil Penalty 

As previously noted, respondent's employer paid a civil 

penalty in the amount of $9,000, for a violation of section 

77.200, and the mine operator paid a civil penalty assessment 

in the amount of $240. 

Mr. Necessary's unrebutted testimony is that since 

August 1982, he has been employed for about four weeks, and 

he alluded to certain financial obligations which he has, 

including mortgage and utility payments, He also indicated 

that he has had to rely on his son for financial assistance. 

Petitioner has asked for a civil penalty assessment in 

the amount of $1,000, and its counsel suggested that if this 

amount were assessed by me for the violation, the respondent 

could possibly work out a payment schedule with MSHA for the 

payment of the penalty (_Tr. 321). 

2598 
Although on the facts of this case, a substantial civil 

penalty assessment would otherwise be in order, I take note 

of the fact that Mr. Necessary is 61 years of age, has no 

steady employment, and has financial obligations which 

he must meet. Further, given the passage of time since the 

violation occurred, the fact that Mr. Necessary and others 

may have been the subject of possible criminal proceedings, 

and the fact that he has obviously incurred legal expenses 

in connection with these matters, I am not convinced that 

a substantial civil penalty is warranted. Accordingly, I 

conclude that a civil penalty in the amount of $500 is appropriate 

in this case. 

ORDER 

Respondent Joseph B. Necessary IS ORDERED to pay a civil 

penalty in the amount of $500, for the violation which has 

been affirmed in this case, and payment is to be made to 

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

decision and order. 

~~.4l!f::~ Administrative Law Judge 

Distribution: 

Edward H. Fitch, Esq., U.S. Department of Labor, Office of 

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

(Certified Mail) 

William B. Talty, Esq., 106 East Main St., P.O. Box 581, 

Tazwell, VA 24651 (Certified Mail) 

/slk 

2599 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 NOV 14 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

CHESTER JENKINS, 

Complainant 

v. 

HECLA-DAY MINES CORPORATION, 

Respondent 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEST 81-323-DM 

Republic Unit 

DECISION APPROVING SETTLEMENT 

AFTER REMAND 

Before: Judge Morris 

This case involves a complaint of discrimination filed by 

the Secretary of Labor pursuant to the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. The complaint 

alleged that the operator violated section 105(c)(l) of the Mine 

Act, 30 U.S.C. § 815(c)(l), in connection with three incidents 

involving complainant. 

The case was heard by Virgil E. Vail, an administrative law 

judge of the Commission. The decisi.on of the judge was 

thereafter reversed, in part, by the Commission because of its 

finding that complainant had been suspended without pay in 

violation of the Mine Act. 

Inasmuch as Judge Vail had left the Commission, the case was 

reassigned to the undersigned judge for an appropriate and expeditious back pay award. 

Subsequently, the judge set the case for a hearing in 

Spokane, Washington. Prior to hearing the parties advised the 

judge that the case had been settled. They filed a stipulation 

and agreed that pursuant to the Commission decision there is due 

and owing to Chester (Sam) Jenkins the sum of four hundred 

fifty-two dollars and six cents ($452.06) to be paid by Hecla-Day 

Mines Corporation. 

2600 
,Based on the stipulation of the parties, I enter the 

following: 

ORDER 

1. Respondent is ordered to pay to the complainant the sum 

of four hundred fifty-two dollars and six cents ($452.06). 

2. Respondent is further ordered to pay said amount within 

ten days of the date of the decision. 

Admini~~~~e 

'o~hn J- *-~ Law Judge 

Distribution: 

Rochelle Kleinberg, Esq., Office of the Solicitor, U.S. 

Department of Labor, 8003 Federal Building, Seattle, Washington 

98174 (Certified Mail) 

Michael B. White, Esq., Hecla-Day Mine Inc., P.O. Box 320, 

Wallace, Idaho 83873 (Certified Mail) 

/blc 

2601 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 NOV 14 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ST. JOE RESOURCES COMPANY, 

Respondent 

DECISION 

Docket No. YORK 82-18-M 

A.C. No. 30-01185-05024 

Balmat Mine No. 4 and Mill 

Appearances: William M. Gonzalez, Esq., Office of the Solicitor, 

U.S. Department of Labor, New York, New York, 

for Petitioner; 

Sanders D. Heller, Esq., Gouverneur, New York, 

for Respondent. 

Before: Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding filed by the petitioner 

against the respondent pursuant to section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a) seeking 

a civil penalty assessment in the amount of $160 for an alleged 

violation of mandatory safety standard 30 C.F.R. § 57.18-25, 

as noted in a section 104(a) Citation No. 201695, served on 

the respondent by an MSHA inspector on April 29, 1981. The 

respondent contested the proposed assessment and the case 

was heard in Watertown, New York. The parties were afforded 

an opportunity to file post-hearing proposed findings and 

conclusions, and the arguments presented therein have been 

considered by me in the course of this decision. 

Issues 

The principal issue presented in this proceeding is (1) 

whether the respondent has violated the provisions of the 

Act and implementing regulations as alleged in the proposal 

for assessment of civil penalty filed, 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. Additional issues raised 

are identified and disposed of where appropriate in the course 

of this decision. 

2S02 
In determining the amount of a civil penalty assessment, 

section llO(i) of the Act requires consideration of the 

following criteria: (1) the operator's history of previous 

violations, (2) the appropriateness of such penalty to the 

size of the business of the operator, (3) whether the operator 

was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and 

(6) the demonstrated good faith of the operator in attempting 

to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

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

Pub. L. 95-164, 30 U.S.C. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 

4. Mandatory safety standard 30 C.F.R. § 57.18-25. 

Discussion 

The condition or practice cited as a violation in this 

case is as follows: 

The Stope miner in the 2100 F-16 stope was 

allowed to perform work alone in an area on 4-27-81 

where his cries for help could not be heard and 

he could not be seen by the employee assigned 

to check on him when a chunk of loose material 

fell from the back while scaling causing injury 

to employee at 8:30 a.m. 

The cited mandatory safety standard, 30 C.F.R. § 57.18-25 

states as follows: 

No employee shall be assigned, or allowed, or 

be required to perform work alone in any area 

where hazardous conditions exist that would 

endanger his safety unless his cries for help 

can be heard or he can be seen. 

Stipulations 

The parties stipulated that the respondent is in the 

business of mining zinc, and that at the time the citation 

issued its annual production was 454,080 tons, and its annual 

manhour production was 2,649,998. The parties also stipulated 

2603 
that for the period August 18, 1971 to approximately 

August 17, 1981, respondent was assessed for 50 citations 

which it paid. They also agreed that the proposed civil 

penalty of $160 will not adversely affect the respondent's 

ability to continue in business, that the violation in question 

was rapidly abated by the respondent, and that the presiding 

Judge has jurisdiction to hear and decide the case (Tr. 5-6). 

Petitioner's Testimony and Evidence 

Earl S. Swem testified that he is employed by the respondent 

as a production miner, and he testified as to his experience 

and training. He confirmed that he worked at the mine in 

question on April 27, 1981, and he described the stope where 

he worked as 25 feet wide, 100 feet long, and that the roof 

height ranged from 40 to 60 feet (Tr. 16). He stated that 

on Friday, April 24, 1981, he had fired one shot consisting of 

six to nine holes, and that he did so to remove some hanging 

material. He next returned to work on Monday, April 27, 1981, 

and began scaling in the stope area so that he could determine 

where it was safe to begin work. He began scaling from the 

left side because "the hanging looked pretty good" (Tr. 19). 

He then proceeded scaling to the right side, and while moving 

back across the area he was struck on the head and his hard 

hat by a piece of rock. He continued scaling, but then 

"felt kind of wheezy," and he decided to go to an adjacent 

stope where two other miners were working to tell them what 

had happened. His neck began to bother him, and he was pale, 

and it was decided that he should leave the area. He was 

taken to the mine surf ace and subsequently went to a chiropractor 

who sent him to the hospital to have his neck x-rayed. The 

x-rays proved negative, and after some treatment by the doctor, 

he went home and returned to work the next day on April 28, 1981 

(Tr. 2 0) • 

Mr. Swem stated that he was standing on the muck pile 

scaling when the rock struck him, and that he was approximately 

a foot to three feet from the roof. He did not see what 

struck him because he was struck from the rear, and he did 

not examine the area to determine what struck him because 

he was dizzy and didn't want to take the chance of something 

else hitting him. He confirmed that he examined the area 

before beginning th~.scaling work, and he described what 

the area looked like (Tr. 25). He also confirmed that prior 

to the incident, he had asked many times that a second person 

work wi-th him in the area (Tr. 25). He stated that he has 

asked his boss or the checker for different helpers because 

"the hanging was in there, it wasn't the best to stay around 

by yourself, a lot of times" (Tr. 25). 

2604 
Mr. Swem explained that there are usually four or five 

miners working in the stope areas, and an additional miner 

works as a "roving checker" to look in on the miners who 

are working. If a miner asks for additional help, the checker 

will assist him if he is in the area. If not, the miner 

must work alone or wait for additional help (Tr. 26-27). 

Mr. Swem stated that he has worked alone in areas performing 

scaling work, and that he considered some areas safe and 

others not. He explained that if he has to spend one or two 

days scaling an area "that ain't a good place to be all by 

yourself" (Tr. 27). 

Mr. Swem stated that when he returned to work the day 

after the incident, scaling began in the area where he was 

and the hanging material was scaled down and was on the floor. 

Later that day Federal inspectors came to the area to inquire 

as to what was going on, and the next day they came back 

with company and union representatives to check the area out, 

and tests were conducted by placing someone in another stope 

area to determine "if they can holler and scream and if they 

can hear anybody" (Tr. 29). 

Mr. Swem described some of the roof area the day after 

the incident as "drummy," and he stated that he and another 

miner spent most of the first day and the second day scaling, 

and that the area was then pinned and screened. He estimated 

that six to eight tons of material was scaled down, but he 

was not sure (Tr. 30-31). He confirmed that on the day he 

was struck he had scaled for about an hour before the rock 

hit him (Tr. 34). 

On cross-examination, Mr. Swem confirmed that sometime 

in January 1981, he left the stope area in question and went 

home because of the presence of hanging material. He informed 

several mine officials that he was leaving because some of 

the hanging material fell and that he was scared, and he lost 

pay for that part of the day (Tr. 35). He stated that he 

did not know that he could leave any work area which he 

believed was not safe, but that the company allowed him to 

leave and he was not criticized, suspended, or otherwise 

disciplined for doing so (Tr. 36) 

Mr. Swem described the work he performed on the Monday 

after he had fired the shot, and he confirmed that the area 

was screened and pinned and that he had worked the stope for 

two months after the pinning and screening had taken place. 

He also confirmed that pinning and screening is a constant 

procedure, and he explained how this is done (Tr. 38-40). 

He also indicated that he used the muck pile to stand on so 

2605 
that he could reach the hanging material, and without the 

muck pile he could not reach the material. Once pinned, the 

muck is removed from the area. He confirmed that prior to 

being struck he was scaling from the muck pile and was also 

checking the roof to make sure it was safe. He tested the 

hanging roof area behind him and to his left, and was in the 

process of checking the area in front of him and to his right, 

and was testing it as he went in (Tr. 46). He stated that 

he was "comfortable" when he first went into the area to 

begin work, and he confirmed that what he was doing was the 

normal procedure for testing and making the area safe (Tr. 47). 

He believed that the rock which struck him had to have fallen 

from directly over his head and that his head was a foot to 

three feet from the hanging material when he was struck, 

and that he had tested the area (Tr. 48). He confirmed 

that during the drilling and scaling process, the hanging 

material will "work" and care must be taken to check all work 

areas (Tr. 49-50). 

Mr. Swem stated that on the day he was struc~ Mr. Cortland 

Bridge was serving as the "circulating miner," or "babysitter," 

and that he is supposed to periodically check on all miners 

working in the stopes and to help them scale as needed. 

He identified Mr. Bridge as the person who brought him out 

of the mine after he was struck. Mr. Swem stated that the next 

stope from where he was working was some 200 to 300 feet 

away. He described his own stope, and explained the work 

he had performed on the previous Friday (Tr. 52-55). When 

he returned to the area on Monday, he performed his usually 

routine safety checks, and since he was struck early in the 

shift, he stated that "I didn't get much time to really do a 

lot of checking and scaling" (Tr. 55). He confirmed that he 

had no pinning to do that morning, but that the men on 

stope did. He also described the hard hat he was wearing 

and stated that it was not damaged by the rock, but that it 

was scratched (Tr. 57). 

Mr. Swem described the general condition of the stope 

roof areas before and after the rock struck him, and he also 

detailed how he goes about his pinning and safety checks, 

and how he scales the area to make it safe (Tr. 60-71). 

David LaPlatney, testified that he was been employed 

by the respondent fa~ 19 years. He was employed at the mine 

in question on April 28, 1981, and also served as president 

of the miner's union and chairman of the safety committee. 

He confirmed that when he learned of the accident concerning 

Mr. Swem, he requested that the company and the union go to 

the stope area in question to inspect it in order to determine 

what had happened, and they did so on the morning of April 28 

(Tr. 79). 

2606 
Mr. LaPlatney testified as to his observations of the 

stope area on April 29, and he believed that it would have been 

difficult for anyone to safely scale down the materials which 

he observed. He testified as follows (Tr. 81-84): 

JUDGE KOUTRAS: Yes, but the point is: did 

he scale down some hanging material that was 

loose? 

THE WITNESS: I'm saying for anybody to get in 

a position, is what I felt, to get in a position 

to do any kind of decent scaling, he was on the 

verge of being in an area that he shouldn't be 

in. 

It was a narrow-type area and it appeared to be 

so much loose stuff 

JUDGE. KOUTRAS: Are you suggesting that he 

shouldn't have been where he was at when he was 

scaling the roof, to make it safe? 

THE WITNESS: I'm saying it was very difficult, 

even to be close to being safe. 

Okay. When you first started into the area, 

beyond from where he fired, or before you get to 

where he fired, yes, it was pinned right there, 

but you start stepping out into the area where 

he had fired and he had apparently taken some 

out of the hanging. I don't know, three or four 

holes in the hanging, whatever it was. 

JUDGE KOUTRAS: Are you suggesting that he put himself in a precarious position to do the scaling? 

THE WITNESS: I'm saying anybody trying to. 

JUDGE KOUTRAS: I'm talking about the gentleman 

who just testified, what he did to make the area 

safe for himself. Are you suggesting to me now 

that when you saw it on a Tu~sday that he probably 

shouldn't have been where he was at when he was 

scaling. ; 

THE WITNESS: Well, apparently he got it so he 

shouldn't have been there, but --

JUDGE KOUTRAS: No, wait a minute. Are you 

suggesting that he was in an area where he shouldn't 

have been, when he was scaling, because it was 

unsafe? 

2607 
THE WITNESS: No. I'm saying I felt, when I 

see it, what chunks I seen down and still on the 

sidewalls, and it's drummy, just a few feet beyond 

where he said he got hurt it was still drummy --

in other words, you sounded it out and it was 

still a little bit drummy, where you had to pin or 

whatever. 

JUDGE KOUTRAS: Could one conclude that, had the 

rock not fallen and struck him, that he would have 

gotten to that area and scaled it down and that's 

what was left when he was interrupted by the striking? 

THE WITNESS: It's hard to determine because it was 

in such a way, the way the roof was arched -- okay? 

and then up near the top, the center of the arch, 

you had these slips that were going up out of it. 

Okay. You scale a chunk off the left side, say. 

That could very well and probably was what was 

holding this drummy area; see what I'm saying? 

So it would be very difficult for anyone -- in other 

words I'm saying it was an exceptional area, really, 

to try to scale it. 

JUDGE KOUTRAS: What would be your suggestion, then? 

As to how to scale it and bring that unusual, 

exceptional roof area down? 

THE WITNESS: I don't know. I figured that was 

probably up to management to 

JUDGE KOUTRAS: Well, no, you're the chairman of 

the safety committee. You go in there with a couple 

of safety people and I assume some people that were 

concerned; how would you --

THE WITNESS: Quite possibly -- they had their 

scraper bucket there. Nobody has mentioned that. 

What they were doing is, at times after he had 

fired they would have to scrape the top of the muck 

pile out, ~n order to get it down low enough so 

that they'could rock bolt. 

Okay. So you had that problem, too, in that one 

section, one side. You know, the muck was too close 

to the hanging for them ever to put a rock bolt in. 

They had to strip it down a little bit to get the 

right distance. 

2608 
So you had -- well, you just had what I 

considered a dangerous area to try and do anything 

in, really. In my experiences. 

Mr. LaPlatney also described the condition of the room area 

away from the stope area where Mr. Swem had been working, 

and he stated that he observed some roof cracks and some 

hanging material (Tr. 102-106). Mr. LaPlatney stated that 

he was disturbed over the fact that the shift boss was making 

determinations as to whether or not a particular miner needed 

the helper without first examining or viewing the stope areas 

where they were working. He also alluded to the fact that 

the shift boss stated that the helper was not there to do 

the work of the miners, and that the helper was expected to 

make his rounds every hour (Tr. 107). Mr. LaPlatney was 

of the opinion that the area was unsafe because Mr. Swem 

was not within hearing distance of anyone, and that this was 

a hazardous situation (Tr. 107). Based on his observations, 

even if the rock had not struck Mr. Swem, Mr. LaPlatney would 

still be of the view that he probably should have had a 

second person present with him when he was working in the 

stope area in question (Tr. 127). 

On cross-examination, Mr. LaPlatney asserted that his 

reasons for requesting an MSHA inspection was based on his 

opinion that the company should have provided a second helper 

to Mr. Swem, and had this been done there would have been 

no need for an MSHA inspection (Tr. 129). Mr. LaPlatney 

confirmed that under a provision in the union/management 

agreement, when an employ~e observes an unsafe condition he 

should immediately notify his foreman, and that the foreman 

will take corrective action, which may include assigning the 

employee to other work (Tr. 129). Mr. LaPlatney confirmed 

that no citations for loose, hazardous materials were issued 

by MSHA with regard to the stope in question (Tr. 145}. 

Raymond F. Drake, stated that he is an MSHA metal and 

nonmettalic mine safety inspector, and that he has been so 

employed for six years. He testified as to his mining background and experience, and he confirmed that he participated 

in the investigation of the incident concerning Mr. Swem 

on April 28, 1981 (Tr. 158). He confir~ed that former Inspector Paro 

issued the citation in question in this case along with him, 

and he confirmed tha~ Mr. Paro is no longer employed by MSHA 

(Tr. 160) . 

Mr~ Drake confirmed that he and Mr. Paro were assigned 

the task of conducting an investigation into the incident 

concerning the rock striking Mr. Swem, and he confirmed that 

the investigation was prompted by Mr. LaPlatney's telephone 

call to MSHA (Tr. 162). Mr. Drake confirmed that he arrived 

at the mine on Tuesday, April 28, and went underground that 

afternoon with company and union representatives. He and 

2609 
the group stopped by the stope area adjacent to the area 

where Mr. Swem was working, and they then proceeded to 

the stope area where Mr. Swem had been working on the previous 

day, which he believed to be approximately 300 feet away. When 

he arrived at the stope, Mr. Swem was present, and Mr. Swem 

confirmed to Mr. Drake that the area was safe (Tr. 165). 

After speaking with Mr. Swem about the incident on the prior 

day, Mr. Drake stated that he observed the area, and he 

stated that "there was definitely questionable ground in 

the area" (Tr. 167). 

Mr. Drake stated that when he observed the stope area 

where the rock struck Mr. Swem, he stood on the muck pile 

back away from the immediate location, but that he did 

observe "several cracks, slips, in the immediate area, you 

know, in front of us, where Mr. Swem had been roofing" (Tr. 169). 

Mr. Drake was not sure as to whether anyone else physically 

examined the area, and he confirmed that he simply "eyeballed it" 

(Tr. 171). He did confirm that when he arrived on the scene 

Mr. Swem and another miner had been scaling the accident area 

down for at least three to four hours (Tr. 173-174). Mr. Swem 

pointed out the material which had been mucked down (Tr. 185). 

Mr. Drake confirmed that the inspection party conducted 

a "holler test" and took measurements, and he indicated that 

this was done by someone going to the adjacent stope and 

yelling as loud as they could to see whether they could be 

heard from the stope area where Mr. Swem was working at the 

time of the accident (Tr. 187). The shouts could not be heard 

(Tr. 18 7) . 

Mr. Drake confirmed that when he and the inspection party 

viewed the accident scene, scaling was taking place by two 

men and since the conditions were being taken care of, no 

citations could have been issued because of the presence 

of any hazardous materials (Tr. 197). Mr. Drake stated that 

he could not recall speaking to any mine management personnel 

to determine whether the stope where Mr. Swem was working 

at the time of the accident had been previously inspected. 

He also confirmed that he did not review any mine inspection 

records, but he did recall asking Mr. Swem, and that Mr. Swem 

informed him that no one had inspected the area (Tr. 209) .. 

Mr. Drake confirmed that during the close out conference 

held after the inspection party left the stope area, he and 

Inspect:or Paro determined that the violation should be issued, 

and that he (Drake) believed that Mr. Swem had worked in a 

hazardous area, that his cries could not be heard, and that 

he could not be seen. Since these facts fit all of the criteria, 

2610 
he decided that a citation should issue (Tr. 213-214). His 

determination that the area where Mr. Swem had worked was 

hazardous, was based on the considerable scaling which had 

been done before he was struck, and the fact that "there was 

other loose in the immediate area" (Tr. 214-216). He also 

considered the fact that the area had been extensively 

pinned and scaled, and that led him to believe that "there's 

a problem there to begin with" (Tr. 216-220). 

On cross-examination, Mr. Drake testified as to his 

MSHA and mining training (Tr. 253-257). He confirmed that 

his determination as to whether any mine area is "hazardous" 

is made by observation and testing (Tr. 259). He also 

confirmed that he believed that Mr. Swem was scaling material 

from about 7:45 a.m. to 8:30 a.m. (Tr. 261). He also confirmed 

that he took Mr. Swem's word for the fact that when he asked 

him whether the area where he was working was "safe," Mr. Swem 

responded that "he felt he wasn't in a hazardous area when 

he started scaling" (Tr. 263). 

When asked whether the fact that the area where Mr. Swem 

was working had been previously pinned influenced his decision 

that it was hazardous, Mr. Drake replied "No, it didn't" 

(Tr. 264). He further explained as follows (Tr. 265-266): 

A. You can have a considerable amount of 

loose, but it could be flaky stuff, and 

everybody here knows what I'm talking about, 

about flaky stuff. But you can have a 

considerable amount of loose, pieces as big 

as this table, and that's .a different 

situation. 

Q. Now, you said there were big pieces 

barred down from the roof that you saw? 

A. No, sir. I said they were two and half 

feet long. 

Q. Those aren't big? 

A. That's what I said. You asked me what I said. 

Q. Two and a half feet long. They were barred 

down from the roof; is that right? 

A. That's correct. 

Q. Do you know if any of those followed the 

bar down to the miner's arm or hand? 

A. No, I don't. 

2611 
Mr·. Drake conceded that during the time a company 

person was assigned and in the stope area, the company would 

be in compliance with the standard in question (Tr. 270). 

He also conceded that the individual miner has to check 

out his own stope area, and he confirmed that there is no 

mandatory standard that requires mine management to inspect 

the workplace before a miner is allowed, required, or 

assigned to perform work there (Tr. 272-273). He also 

conceded that there was no reason for the respondent to 

prevent Mr. Swem from going to his stope work area at the 

beginning of his work shift (Tr. 273). He also conceded 

that within 30 hours after the accident, Mr. Swem told him 

that he did not believe the stope was hazardous when he went 

in the area to work on Monday morning (Tr. 274). 

Mr. Drake confirmed that he did not sign the citation form 

issued in this case (Tr. 275), and he confirmed that he and Mr. Paro 

decided on Wednesday afternoon, April 29, that the violation of 

§ 57.18-25, had occurred on Tuesday, April 28 (Tr. 275). 

He also confirmed that Mr. Paro called his supervisor during 

the time they were discussing the citation, but Mr. Drake 

denied that they discussed the question as to whether a citation 

should be issued (Tr. 276). Mr. Drake also confirmed that 

his notes do not state that he actually made a determination 

as to the stope being a hazardous area (Tr. 279), and he conceded 

that a miner is free to make his own determination in this 

regard (Tr. 280-281). 

Respondent's Testimony and Evidence 

Cecil J. Howard, confirmed that he is employed in the 

respondent's safety department and that he investigated the 

incident concerning Mr. Swem. He described what he observed 

at 8:30 a.m. on Tuesday, April 28, 1981, during his visit to 

the stope area, and he was of the opinion that no hazardous 

conditions existed. In support of this conclusion, he testified 

as follows (Tr. 299-301): 

A. I base that on the soundness of the 

hanging with the scaling bar. If it's good 

hanging and that chunk, I agree with you 

that it was way up because Earl had fired 

six ten-foot holes -- right? It was ten 

foot long. The chunk was partially in the 

hanging and in the face and you just couldn't 

get ahold of it and scale it down. Otherwise the hanging was all right. 

Q. Was the chunk hazardous? 

2612 
A. _No, the chunk was no hazard because if 

Eurl didn't have help he could have stayed away 

from the chunk, he could have worked on the 

lefthand side, and, as it was, the stope 

was about 15 foot wide and nine foot in the 

center and then it parts down and it was pinned 

and everything back there, and Earl was firing 

on the lefthand side. 

He fired this shot ahead and then he was going 

to go back and fire the lefthand side through, 

so he could have come back and started 

drilling, or he could have went out, got on 

the phone which was in the area, called up Lance 

Richards and said, I believe I have a problem 

down here; would you come down and look at this 

stope; maybe I'll need some help. 

Q. What about the cracks in the hanging and 

the seams? 

A. Oh, you always have cracks and seams, 

especially in that area where you get layers 

upon layers of grounding, but once you sound 

them and you can't scale them down there is no 

hazard, as long as they're not drummy. 

Q. Did you find anything that was drummy that 

day? 

A. That one chunk, near the face. 

Q. Other than that? 

A. No, just a few small pieces I scaled down, 

which you can always get. 

Q. And you had an opinion that day as to whether 

or not that area was hazardous? 

A. That's right. 

Q. And your opinion, which you have already 

stated -- ,· 

A. I've already stated. 

Q. -- was that it was not hazardous? 

A. I didn't say it was hazardous, no. 

2613 
Mr. Howard stated that on the morning and afternoon of 

April 28, he sounded and observed the stope in question and 

found that it was not hazardous. He confirmed that he was 

present when Inspector Paro questioned Mr. Swem about the 

rock falling. Mr. Howard estimated the distance between the 

stope where Mr. Swem was working, and the adjacent stope 

where John Macrntosh was working as "probably between two 

and three hundred feet" (Tr. 305). 

On cross-examination, Mr. Howard confirmed that he made 

notes of the results of his investigation of the rock falling 

incident concerning Mr. Swem, and he made them available 

to MSHA's counsel for his examination (Tr. 305-306). He 

confirmed that he did not go to the stope the day of the 

accident, but went there the next morning. When he arrived, 

Mr. Swem and his helper Mr. Cortland Bridge were scaling 

(Tr. 308). Mr. Howard stated that after his arrival at 

the stope on Tuesday, after Mr. Bridge left, he (Howard) 

checked the stope area by scaling it and he indicated that 

"we took down a few small pieces but it was good" (Tr. 309). 

Mr. Howard stated that the previous Friday, Mr. Swem 

had fired six ten foot holes and advanced the stope by some 

ten feet. A "chunk" of material left in a corner of the 

stope was then shot down after Mr. Howard sounded it and 

discussed it with Mr. Swem (Tr. 311-312). Mr. Howard 

indicated that anytime anyone cannot scale alone, they are 

free to seek help (Tr. 313). He denied any knowledge of any 

prior hazardous roof conditions in the stope, and he indicated 

that everytime he visited the stope it was being pinned in 

preparation for "taking bottom." He also indicated that 

Mr. Swem always controlled his stopes by scaling, pinning, 

and screening (Tr. 324). At no time on Tuesday did he 

believe the stope was hazardous (Tr. 325). 

Lance Richards, testified that on April 27, 1981, he 

was the mine foreman, and was Mr. Swem's supervisor. He 

stated that on that day Mr. Cortland Bridge was assigned to 

check on three men working in stopes which were about 300 

feet apart, and that Mr. Swem was one of them. After Mr. Swem 

was struck, he (Richards) did not go to the stope because 

he wanted to first contact Mr. Howard and the union representative 

(Tr . 3 2 5-3 2 7) . 

Mr. Richards stated that he visited the stope on Tuesday, 

April 28, with Mr. Howard and Mr. LaPlateny. They discussed 

some material that was "hanging" on the left side of the stope, 

and they also tried to determine what had fallen and struck 

Mr. Swem. Since precautions were being taken in the stope, no 

2614. 
one believed that it was hazardous (Tr. 330). 

muck pile material in the stopes served as an 

platform" for Mr. Swem to work from, and some 

area was screened (Tr. 333). 

The loose 

"elevated 

of the stope 

Mr. Richards stated that Mr. Bridge was assigned 

to assist the three stope men, and that his assistance to 

them filled both a safety need and sometimes made their 

work go faster (Tr. 336). Mr. Bridge was not given specific 

instructions, and Mr. Richards indicated that he likes to give 

him a little freedom in dealing with the stope men (Tr. 336). 

Mr. Richards identified exhibit R-1 as the accident report 

that he prepared concerning Mr. Swem's injury (Tr. 337). 

Mr. Richards was of the opinion that "the hanging" he 

observed in the stope on Tuesday and Wednesday after the 

accident was not hazardous (Tr. 340). In support of this 

opinion, he cited the fact that the hanging was within reach 

and could be controlled (Tr. 342). 

On cross-examination, Mr. Richards confirmed that he 

did not know how Mr. Swem was scaling the stope prior to 

the accident, but he had no reason to believe that Mr. Swem 

was doing anything incorrectly. However, if Mr. Swem knowingly 

worked ~nder loose material, then that would be a hazard 

(Tr. 346). When asked about the "loose" he observed, Mr. Richards 

testified as follows (Tr. 349-351): 

Q. When you looked at that stope, did you 

determine that that stope was hazardous, that 

that chunk was hazardous? 

A. That chunk? 

Q. Yes. 

A. If you were standing underneath it and it 

fell on you, it would be hazardous. 

Q. You recognized that it was hazardous, based 

on your observations? 

A. He didn't have to be in that particular section 

of that stope. We knew it was hazardous and we --

we knew it was loose and we've taken care of the 

problem. 

Q. Okay. Would you describe it for me? What 

did the loose look like? 

A. It's a piece of loose rock, unconsolidated 

rock. When you hit it with the scaling bar, the 

,2615 
sound waves, when they travel through the 

rock, are broken, and it gives a dull sound. 

Q. Is that what you used to determine it 

was hazardous, that chunk? 

A. That the chunk was loose. 

Q. Just that, the sound of it? 

A. The sound, yes. That's how you do it. 

You use a scaling bar. 

Q. Okay. Now, you didn't go into the area 

on the -- on Monday the 27th; is that correct? 

A. No, I didn't go there. 

Q. The first time you went into the area was 

on Tuesday morning the 28th? 

A. Right. 

* * * * 

Q. What did you see Cortland Bridge and Earl Swem 

do? 

A. What did I see them do? 

Q. Yes, if anything. 

A. I didn't see them doing anything. 

when I got up there, I talked to John 

showed me that one chunk and Cortland 

tried it. 

Q. Right. 

Like I said, 

and then John 

and I both 

A. I wanted to see for myself if two bars would 

bring it down. Of course, they wouldn't. 

In response to further questions, Mr. Richards stated 

that when miners ask for a second man to be present in situations 

where hazardous conditions may be encountered, a second man 

is provided (Tr. 360). He did not believe that the stope 

was unsafe for Mr. Swem to be working alone on either Monday 

or Tuesday (Tr. 368). 

2616 
Larry Streeter, assistant mine superintendent at the 

time of Mr. Swem's injury, confirmed that fie first visited 

the stope in question on Tuesday afternoon, the day after the 

accident, and that he was with the inspection party at that 

time (Tr. 370) . Mr. Streeter stated that he observed "routine 

scaling" that was to be done that day, and that the distance 

between Mr. Swem's stope and Mr. Macintosh's stope was a minute 

and ten seconds by walking (Tr. 371). He and Mr. Bridge 

went to the adj~cent stopes as part of a "holler test," 

and he stated that "apparently it wasn't heard" (Tr. 371). 

Mr. Streeter stated that he heard Mr. Swem tell one 

of the inspectors that he was not working under loose ground 

and that "he thought he had it secured above his head" (Tr. 371). 

He also testified that he heard Mr. Swem state that prior 

to the accident, he was scaling on the right side of the 

stope and continued to scale out into the stope in front of 

the pinned area at the time he was hit (Tr. 372). 

On cross-examination, Mr. Streeter reitereated that 

he did not believe the stope area was h3zardous when he was 

there Qn Tuesday following the accident, and he was of the 

opinion that Mr. Swem had the opportunity to do his job 

safely because a portion of the stope was pinned and screened, 

and he could sound the roof and advance and scale from under 

the pinned area, sounding as he went (Tr. 380). 

Mr. Streeter indicated that if a miner complained about 

an unsafe condition and there was no other person available 

to be assigned to help him, the miner would be assigned other 

work (Tr. 388). 

Arguments Presented by the Parties 

In his arguments made during the course of the hearing, 

petitioner's counsel recognized the fact that the incident 

prompting the issuance of the violation in question took 

place over three years ago. However, counsel relies on the 

testimony of the inspector and Mr. Swem to support his arguments 

that he has established that the cited a~ea was in fact hazardous 

(Tr. 2 9 3) • 

In its post-hearing brief, petitioner submits that the 

factual ~ecord in this case has established, by a preponderance 

of the evidence, respondent's violation of section 57.18-25. 

Petitioner maintains that the testimony describing the stop~ 

area where Mr. Swem was struck supports a conclusion that a 

hazardous condition existed, and that Mr. Swem was working 

alone in the stope where he could not be seen nor heard. 

2617 
Petitioner maintains that Mr. Swem's failure, if any, 

to recognize the hazardous conditions in the stope does not 

relieve the respondent of its obligation to comply with the 

requirements of sect'ion 57 ... 18-25. In support of this argument, 

the petitioner asserts that the Act establishes a standard 

of strict liability for violations of mandatory safety standards, 

without regard to fault or negligence, and that the legislative 

history of the Act reflects that Congress was particularly 

concerned over the high number of mining injuries and fatalities 

resulting from inadequate supervision and hazardous workplace 

conditions reasonably within the power of management to prevent. 

During the course of the hearing, respondent's counsel 

argued that unless MSHA establishes that the cited stope area 

in question was hazardous, it may not insist that another person 

be at or near the stope so as to hear or see him (Tr. 289). 

Counsel pointed out that in this case Mr. Swem told the 

inspector that he did not believe that the stope area where 

h~ was working was hazardous (Tr. 290), and that the inspector's 

testimony concerning the amount of material which he claims 

was scaled down should be given little weight because the 

scaled material resulted from the work of two miners well 

after the rock fall incident in question (~r. 2911. rn short, 

respondent's counsel is of the view that MSHA has failed 

to establish that the cited area was hazardous, and until 

that is established MSHA cannot require the presence of another 

person pursuant to the cited standard (Tr. 291). 

Respondent's counsel conceded that the incident concerning 

the rock which fell and struck Mr. Swem on his hard hat may 

be classified as an "accident. 11 Notwithstanding the fact 

that the incident was not the type of accident which had to 

formally reported to MSHA, counsel asserted that the fact 

that it happened does not per se establish that the area where 

Mr. Swem was working was "hazardous." Given the fact that 

Inspector DRake conceded that had the incident not occurred, 

no citation would have been issued, counsel maintains that 

the asserted violation may not be su?tained simply because 

Mr. Swem was struck by some falling material. Counsel concludes 

that the occurrance of such an incident does not establish 

that the respondent knew that a hazardou.s condition existed, 

and decided to assign Mr. Swem there anyway (Tr. 292). 

In its post-hearing brief, respondent points to the 

fact that Mr. Swem told Inspector Drake that he knew he 

was responsible for his own safety, and that ~espondent's 

safety representative, the mine foreman, and the assistant 

mine superintendent, all experienced miners, testified that 

in their opinion, the stope area where Mr. Swem was working 

was not hazardous. · 

2618 
The respondent emphasizes the fact that the day following 

the accident, Mr. Swem and a co-worker scaled the same stope 

before Mr. LaPlatney, the mine superintendent, and Inspector Drake 

appeared on the scene, and that no one except Mr. Swem had 

an opportunity to observe the conditions that existed at 

the time that the rock fell·· and struck his hard hat. At 

this time, the condition of the stope had changed, both by 

time and by the work done in the immediate area, and the 

fact materials had been scaled down is not indicative of 

any hazardous condition. 

The respondent further points out that the scaling work 

conducted by Mr. Swem and the checker assigned to that area 

on the morning following the incident in question was for 

the purpose of "making the stope safe," and that they were 

following their first job requirement to check and secure 

their work area in order to "make it safe" before any further 

work is done. When Inspector Drake arrived on the scene, 

he accepted Mr. Swem's statement that the stope area was 

safe to work in, yet he did not accept Mr. Swem's prior 

decision the day before that the area was not hazardous. 

Respondent maintains that the one person who was in 

the best position to testify as to the amount of scaling 

done in the stope at the time of the accident was Mr. Swem, 

and that his testimony indicated that he did not think that 

the area was hazardous. Further, although Mr. Swem conceded 

that he could have asked for additional help while he was 

in the stope prior to the time he was struck if he thought 

the area was hazardous, he did not do so. 

Respondent points out that normal mining practice calls 

for the scaling and barring down of materials after a shot 

is fired, and miners are instructed to find a safe way in, 

a safe place to stand, and to start scaling to make additional 

areas safe. On the facts of this case, respondent asserts 

that when Mr. Swem went to his stope work area on Monday, 

April 27, 1981, after having last fired his shot on his 

previous work shift on Friday, April 24, 1981, he determined 

that he had a safe way in, that he had a safe place to stand, 

and then began to scale~ In short, since he was the miner 

on the scene, he made the determination that it was safe 

to attend to his work. 

Respondent argues that it had no reasonable opportunity 

to inspect the stope prior to the time Mr. Swem started his 

work in the stope on Monday, April 27, 1981. Even so, 

respondent maintains that its supervisory officials would not 

have made any prior determination any differently than that 

made by Mr. Swem on the scene, and that they would have 

relied on his determination that he had a safe place to work. 

2619 
With regard to union representative LaPlatney's testimony, 

respondent asserts that his motivation in reporting the 

incident concerning Mr. Swem to MSHA, was an attempt to force 

the respondent to provide two men for each job performed in 

the stope. Respondent maintains that Mr. LaPlatney's testimony 

reflects that had the respondent provided a second man for 

each stope miner, or agreed to future discussions in this 

regard, he would not have notified MSHA. Respondent concludes 

that MSHA was responding to a union attempt to increase 

the working force, and not to a safety hazard. 

Respondent further points out that Mr. LaPlatney could 

not affirmatively state that the stope area was hazardous, 

and that he admittedly failed to follow the agreed upon labormanagement procedure requiring the union to call the respondent's 

attention to any alleged hazardous condition. 

Findings and Conclusions 

In this case the respondent is charged with permitting 

Mr. Swem to work alone in a hazardous area where he could 

not be seen• or heard in the event of an emergency situation 

jeopardizing his safety. Since the petitioner has the burden 

of proof, it must establish that the stope area where Mr. Swem 

was assigned to work was hazardous, and that notwithstanding 

this fact, it nonetheless permitted him to work there, thereby 

exposing him to the hazard of being struck by falling material. 

In my view, the cr1tical issue here is whether or not the 

respondent could reasonably be expected to know that the stope 

area in question was in fact hazardous, and whether or not 

it took reasonable steps to preclude the type of "accident" 

which occurred in this case. The condition precedent to any 

finding of a violation lies in the clear language of the 

standard which requires an initial showing that hazardous 

conditions existed at the time a miner is "assigned, or 

allowed, or required to perform work alone." 

There is no dispute here that Mr. Swem was working alone 

at the time he was struck on Monday, April 27, 1981. Further, 

there is no dispute that the tests conducted during the 

investigation of this incident established that anyone working 

in the stope could not be seen or heard by other miners working 

in the adjacent stopes in the event he cried out for help. 

Petitioner relies on the testimony of Mr. Swem to support 

its conqlusions th~t the stope area where he was working on 

Monday, April 27, 1981, was hazardous, and that since his 

cries could not be heard, a second miner should have been 

assigned to work with him. Notwithstanding the fact that 

2620 
Mr. Swem readily conceded that he believed he was safe and 

did not consider his immediate work area to be hazardous, 

petitioner relies on his testimony that the roof area where 

he was struck was in a "bad condition" and had some "cracks 

and slips" in it. Petitioner also cites Mr. Swem's testimony 

that following the accident, and beginning on Tuesday, April 28, 

1981, Mr. Swem and miner helper Bridge continued to scale 

the stope area in order to "make the stope safe," and that 

Mr. Swem observed that the roof area contained some "hanging" 

material that sounded "drummy." 

There is a conflict in the testimony and evidence as 

to whether or not the stope area where Mr. Swem was working 

on Monday, Apfil 27, 1981 was hazardous. Mr. Swem, the 

miner who was struck by a rock or other falling material, 

testified that he believed the area where he was working in 

was safe, and he indicated that after testing the roof areas 

and following his normal scaling procedures:: in order to make 

his work area safe, he felt comfortable in the stope. 

The record in this case establishes that the stope area 

in question was fired during thE last shift worked by Mr. Swem 

on Friday, April 24, 1981, before he next returned to work on 

Monday, April 27, 1981. Since he was the first miner on the 

scene and would necessarily be more closely concerned with 

his own safety, his candid admission that he believed the 

area was safe to work in is, in the circumstances, the best 

evidence as to whether or not the stope conditions were 

hazardous. This is particularly true here where the alleged 

violation occurred over three years ago. In the circumstances, I 

have accorded substantial weight to Mr. Swem's testimony 

in this regard. 

Respondent's unreb~tted testimony is that it had assigned 

Mr. Cortland Bridge as an extra helper to assist the three 

stope miners who were working on Monday, April 27, 1981, and 

Mr. Swem conceded that Mr. Bridge was serving as a "circulating 

miner" and was available to check out the stope miners and 

tc\ help them scale as needed. :Further, three company officials, 

all of whom are experienced miners, visited the stope area 

in question the day following the accident and testified 

that they believed the area was not hazardous. The union 

representative who also visited the same area that same day 

with the inspection party could not state with any degree · 

of certainty whether or not the area was hazardous. Mr. Swem, 

who had .been scaling the area with Mr. Bridge during that day, 

told the inspector that the area was then safe and not hazardous. 

Faced with all of these facts, Inspector Drake chose to 

believe Mr. Swem's evaluation that the area was then safe and 

2621 
not hazardous., but apparently chose not to believe his candid 

admissions that the conditions the day before were not 

hazardous and that he felt "comfortable" and safe working 

in the stope. M'.Jre suprisingly, petitioner relies on the 

scaling work done by Mr. Swem and Mr. Bridge the day after 

the incident in question to support a theory that the 

existence of this material prior to its being scaled down 

establishes that the area was hazardous the day before. I 

find petitioner's position in support of its case to be 

contradictory. 

Petitioner also relies on Inspector Drake's after-the-fact 

evaluation of the stope to support its assertion that the 

stope was hazardous when Mr. Swem initially reported there 

to begin his work. After careful review and consideration 

of Mr. Drake's testimony, I conclude that it is contradictory 

and equivocal and does not support petitioner's arguments 

that it has proven its case by a preponderance of the evidence. 

My reasons in support of this conclusion follow below. 

Inspector Drake's direct testimony that he considered 

the stope area in question to be hazardous because prior 

scaling and pinning in the area led him to believe that 

there had been a preexisting "problem," is contradictory. 

On cross-examination, he denied that the previous pinning 

influenced his decision that the area was hazardous. 

In view of Inspector Drake's recognition of the fact 

that a miner is free to make his own determination as to 

whether or not his work area is hazardous, I find it 

rather strange that he would accept Mr. Swem's determination 

on the day following the accident that the stope was at 

that time not hazardous and safe, yet reject or ignore that 

very same determination made by Mr. Swem the day before 

when he was working in the same stope. Inspector Drake 

conceded that Mr. Swem told him that he did not believe the 

stope was hazardous when he went to work on Monday morning, 

yet Inspector Drake concluded that at the time of the accident 

the area was hazardous. He did so after he and fellow Inspector Paro 

discussed the matter further during a close-out conference 

held after the inspection party left the stope area at the 

conclusion of the accident inspection. /Since Inspector Paro 

is no longer employed by MSHA and did not testify in this 

case, any observations that he may have made at the time he 

signed and issued the citation are not available. 

I take note of Inspector Drake's candid admissions that 

during his discussions with Inspector Paro prior to the 

2622 
issuance of the citation, Mr. Paro telephoned their supervisor. 

Although Mr.· Drake denied that they discussed the question 

as to whether a citation should be issued, I cannot believe 

that this call was totally unrelated to the accident inspection 

conducted by Mr. Drake and Mr. Paro. I also take note of 

Inspector Drake's testimony that his contemporaneous notes 

made at the time of his inspection do not reflect that he 

made any determination that the stope area in question was 

hazardous. 

I take particular note of Inspector Drake's testimony 

that he cited section 57 .18-25, because no other standard was 

appficable to the facts presented. It seems to me that absent 

any facts to support the contention that the area was in 

fact hazardous, and that the respondent somehow permitted 

Mr. Swem to enter a work area which endangered his safety, an 

inspector should not rely on after-the-fact speculative 

conclusions simply to justify or support a violation which 

he may feel compelled to issue in response to a complaint 

for an accident inspection or investigation. 

Petitioner's arguments imply that the respondent should 

have made a determination that the stope area where Mr. Swem 

was working on Monday morning was hazardous, and that recognizing 

this fact, respondent had an obligation to assign a second 

miner to work with Mr. Swem. This argument is not well taken. 

Aside from the fact that Inspector Drake admitted that he 

did not review any mine inspection records, and could not 

recall whether he asked mine management whether the stope 

had been inspected before Mr. Swem arrived there Monday morning, 

he conceded that there is no mandatory standard requiring 

management to inspect the workplace ·before a miner is allowed, 

required, or assigned to perform any work. It seems to me 

that if MSHA wishes to impose such a requirement on a mine 

operator, then it should seriously consider promulgating a 

standard to cover just such a situation. 

I also take particular note of Inspector Drake's testimony 

in explanation as to why he felt compelled to cite section 

57.18-25. At page 390 of the hearing transcript, he stated 

that "There wasn't any other violation, as far as I'm concerned. 

The man was there taking down the loose/ That's all you 

could reasonably expect a man to do. He was working at the 

situation at the tim~~ (Tr. 290). In my view, this is the 

essence of this case. Mr. Swem was working in a stope which 

he cons~dered safe and not hazardous, and was going about 

his business making the area safe by scaling so that he could 

continue his work. It is unfortunate that the unexpected 

event occurred, and fortunate that he was not seriously injured. 

However, on the facts of this case, I cannot conclude that 

the respondent's failure to comply with the cited standard 

was the proximate cause of this incident. 

2623 
I reject the petitioner's reliance on Mr. Swem's 

testimony as to the conditions of the roof area in the stope 

to support the notion that the area was "hazardous," thereby 

requiring the presence of a second miner. Mr. Swem was obviously 

aware of these conditions and that it is precisely why he 

was following his normal precautionary procedures to test 

and scale as he went about his work. lt seems to me that if 

he was really concerned about these conditions to the point 

where he felt he needed assistance and a second miner present, 

he had ample opportunity to summon such assistance. However, 

on the record here, he admitted that he felt safe and comfortable 

in the stope. Had he believed otherwise, he was free to leave 

work as he had done in the past when he felt exposed to hazardous 

conditions. 

In view of the foregoing findings and conclusions, I 

conclude and find that the petitioner has failed to establish 

by a preponderance of any credible evidence that the stope area 

where Mr. Swem was working on Monday, April 27, 1981, was a 

hazardous area known to the respondent, and that the fact 

that Mr. Swem was working there alone does not establish 

a violation of section 57.18-25, by the respondent. Accordingly, 

section 104(a) Citation No. 201695, served on the respondent 

on April 29, 1981, IS VACATED, and this case IS DISMISSED. 

Distribution: 

/L~Koutras ti 4.~ Administrative Law Judge 

William M. Gonzalez, Esq., U.S. Department of Labor, Office of 

the Solicitor, 1515 Broadway, New )'.'ork, NY 10036 (_Certified Mail) 

Sanders D. Heller, Esq., 23 Main Street, Gouverneur, NY 

13642 (Certified Mail) 

/slk 

2624 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ALBERT VIGNE, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 NOV 16 1984 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. SE 84-2-DM 

MD 83-51 

GALL SILICA MINING COMPANY, 

Respondent 

No. 2 Mine and Plant 

Appearances: 

Before: 

DECISION 

Albert Vigne, Lake Wales, Florida, pro se; 

Michael D. Malfitano, Esq., Macfarlane,"E'erguson, 

Allison & Kelly, Tampa, Florida, for Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed 

by the complainant Albert Vigne against the respondent pursuant 

to section 105(c) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. Mr. Vigne filed his initial 

complaint on June 8, 1983, with the Secretary of Labor, Mine 

Safety and Health Administration (MSHA), claiming that his 

discharge on or about April 29, 1983, as a supervisor of 

the drying plant was discriminatory in that it was based on 

"my concern for safety there and my cooperation with MSHA 

representatives." Following an investigation of his complaint, 

MSHA determined that a violation of section 105(c) had not 

occurred, and Mr. Vigne filed his pro se complaint with this 

Commission. 

Although both parties were provided with an opportunity 

to file post-hearing arguments, only the respondent did so. 

However, Mr. Vigne did file certain information concerning 

his contested unemployment compensation claim with the State of 

Florida, including copies of the findings of a State appeals 

referee whc upheld his claim. 

Issue 

The critical issue in this case is whether Mr. Vigne's 

discharge was in any way prompted by his engaging in any 

protected activity under section 105(c) of the Act, or whether 

it resulted from differences with his superior regarding his 

work responsibilities. 

2625 
Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 301 et seq. 

2. Sections lOS(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815(c) (1), (2) 

and ( 3) . 

3. Commission Rules, 29 C.F.R. § 27001., et seq. 

Testimony Presented by the Complainant 

Albert Vigne testified that approximately six or seven 

months before his termination in April 1982, MSHA Inspector 

Gene Weaver made a "courtesy" inspection of the mine, and 

issued several memorandum "citations" regarding the lack of 

guards around several belts and chains. Mr. Vigne stated 

that he wrote up some work orders to correct the conditions 

pointed out by Inspector Weaver, and that he also advised 

Mr. Tony Haire, the plant supervisor, about the conditions 

in question (Tr. 8-13). 

Mr. Vigne stated that he continued writing work 

orders for a period of five months, and that he wrote up 

five or six of them in an effort to correct the conditions 

brought to his attention by Inspector Weaver (Tr. 13). 

After Mr. Weaver's visit, MSHA Inspector Richardson visited 

the mine, and after finding that the conditions had not been 

corrected, he issued citations for a lack of guards on certain 

belts on the bagging machine belts and conveyors, and the 

belt en the second floor sand hopper (Tr. 17-18). The citations 

were not served on Mr. Vigne, and he did not know who they 

were served on. However, he believed that fines were served 

on the respondent as a result of the citations (Tr. 19). 

Mr. Vigne stated that shortly after the citations were 

issued, Mr. Haire came to his work area and indicated that 

a large hopper outside the dry plant building needed painting. 

Mr. Vigne assigned some men to paint the hopper, but the 

next day, Mr. Haire returned to the area and informed Mr. Vigne 

that he wanted him to paint it. Mr. Vigne stated that he 

informed Mr. Haire that he was a supervisor and was not 

required to do manual labor. Mr. Haire informed him to 

"think it over" and left. The next day, Mr. Vigne informed 

Mr. Haire that he still objected to painting the hopper, and 

Mr. Haire put him on notice that he would be terminated in 

one week. When asked why Mr. Haire terminated him, Mr .. Vigne 

replied as follows (Tr. 22-23): 

2626 
Q. · When Mr. Haire told you that he was going 

to give you one week's notice, is that the way 

he put it? 

A. I'm going to give you one week's notice. 

Q. Did you have any discussion with him as to 

the whys and the wherefores, or did you simply 

accept what he told you? 

A. No, I knew that he wanted to get rid of me. 

That was evident. 

Q. What made you believe that he wanted to get 

rid of you? 

A. Just his attitude toward me. 

Q. That day? 

A. Not only that day, but other days also. 

Q. What was his attitude toward you on other days? 

A. Like he didn't really have any -- didn't have 

any confidence in me, or just -- I would say 

contemptuous attitude almost. 

Mr. Vigne testified that at the time he was terminated, 

Mr. Haire made no mention of the MSHA inspections, and Mr. Vigne 

did not mention them (Tr. 25). Mr. Vigne also stated that 

he had never complained to any MSHA or state mine inspectors 

about any safety matters, and that he never complained to 

respondent's safety department (Tr. 26). He also confirmed 

that he never discussed such matters with Mr. Haire (Tr. 26). 

Mr. Vigne stated that at the time of his discharge he 

was employed by the respondent as the drying plant supervisor, 

and that he was first hired in October 1977. His salary was 

$235 a week, plus a company hospitalization plan to which 

he contributed, paid vacations, and a gqs allowance (Tr. 28). 

No overtime pay was provided, and since his termination he 

has worked as a maintenance person in a mobile home park 

and for the Procter and Gamble Company (_Tr. 29). 

Mr. Vigne stated that he was not given any written 

termination notice and that Mr. Haire simply told him that 

"everybody is going to work" (Tr. 29}. Mr. Vigne also confirmed 

that after a contest with the State of Florida, he received 

unemployment benefits (Tr. 30), and that he was currently 

employed at a mobile home park (_Tr. 31). 

2627 
When asked why he believed he was discriminated against, 

Mr. Vigne replied as follows (Tr. 32; 35~36): 

A. Well, I think that after Mr. Richardson came, 

I feel that I talked to him about some things that 

were going on around there other than, you know, 

the things that he wrote up. I feel that because 

of my conversation with him he was able to see 

other discrepancies, and I think Tony Haire realized 

this. 

* * * 

Q. Okay. Now, as a result of that conversation, 

what did Mr. Richardson do, or what could he 

have done that --

A. Well, I think that --

Q. Mr. Vigne, let me finish. 

A. I'm sorry. 

Q. That's okay. What could he do or what could 

he have done that would have caused some problems 

with mine management, which in turn would have 

caused some problems for you? 

A. Well, I think he could have gone and looked 

in certain areas and caught things that he might 

not have caught before, and I'm sure that the 

people involved -- through that, somebody had put 

a bug in his ear, so to speak. 

Q. Did he do that, do you know? 

A. I think he did. I mean, I didn't follow him 

around, but that's the impression that I got from 

comments that I heard. 

Q. Would Mr. Haire have beer, -- would Mr. Haire 

have been aware of your conversations? 

A. He would have been probably the first one that 

was aware of it at the time, I would imagine. 

Q. Why would that be? 

A. Well, Mr. Haire ~s a very intelligent man, and 

I would say that Mr. Haire stays on top of everything. 

He and his people keep him informed about everything 

or else they don't remain his people. 

2628 
Q. Well, let me ask you this, though. What 

specifically could Mr. Richardson have done that 

would have involved Mr. Haire as far as you were 

concerned? 

A. Well, he could have gone -- he could have came 

in at inopportune times. In other words, you 

know, you can pretty well say well, it's been six 

months since MSHA has been here, you know, we're 

going to kind of start looking for him. But let's 

say they were here yesterday and then they came 

back a week-and-a-half later, and that would surprise 

everybody. 

Q. Did that happen, do you know? 

A. I heard that it did after l left. 

In response to questions from respondent's counsel, 

Mr. Vigne testified as to his duties as the dry plant supervisory 

foreman, and he confirmed that he has had no contact with 

MSHA Inspector Richardson since his termination (Tr. 40-44). 

He also confirmed that he did not inform Mr. Haire or Mr. Dibble 

about any of his conversations with Inspector Richardson (Tr. 44). 

Mr. Vigne stated that Inspector Richardson would have 

issued the citations evern if he (Vigne) had not discussed 

the work orders with him (Tr. 52). Regarding his own responsibility 

for the conditions which were cited by the inspector, Mr. Vigne 

testified as follows (Tr. 53-54): 

Q. Were you with him during the inspect.ion? 

A. Yes. 

Q. Did he point things out to you during the 

inspection that were violations of safety? 

A. Yes. We had to move a ladder that was on 

the wrong side of the hopper or something. 

Q. Now, as the foreman of the dry plant, and the 

person who;~s in complete charge 6£ the plant, 

as you testified, were you aware of these violations 

before Mr. Richardson came in? 

A. No, not all of them, because when you have two 

different inspectors, one inspector may look at 

something and not consider it unsafe, where another 

inspector would look at it and consider it unsafe. 

2629 
I remember one time in the past there was 

a railing that stopped at the end of a catwalk 

and had been there for years, and nobody had 

ever said anything about it, but I don't remember 

which inspector it was, it might have been 

Richardson, but we had to have another piece on 

that railing. And that's dangerous, but nobody 

had ever said it was dangerous to me before. 

Q. Did you consider it dangerous? 

A. It would possibly be, you know. 

Q. Did you ever make any effort to do anything 

about it'? 

A. Well, I never noticed it in that light until 

he called it to my attention; let's put it that 

way. 

Q. But as a supervisor, you are in complete 

charge of safety for the dry plant; is that correct, 

or were --

A. Well, I would say as a supervisor, I think 

each supervisor is more or less responsible for 

safety in his own department. 

Mr. Vigne conceded that his superior had criticized 

his work in the past, but he denied that he had ever been 

formally disciplined about his work (Tr. 59). He confirmed 

that he voluntarily left the respondent's employ for about 

two years, beginning in June 1979, but was asked to come back 

(Tr. 58-60) . 

Mr. Vigne stated that while Mr. Dibble mentioned a job 

in the scale house to him after he was terminated, he was 

not formally offered the job, and he conceded that he was 

not interested in the position. He denied that Mr. Haire 

ever mentioned that job to him, and he also denied that he 

turned down Mr. Haire's offer to work i~ the scale house (Tr. 63). 

Testimony Presented by the Respondent 

Anthony T. Haire, respondent's General Mine Superintendent, 

testified that he assumed supervisory authority over the dry 

plant on February 19, 1983, and that he discussed several problems 

with the plant operations with Mr. Vigne. These problems included 

closer supervision over the men, updating and cleaning the plant, 

and a desire to increase production. Mr. Haire stated he told 

Mr. Vigne that he should spend less time in his office and more 

time supervising and being with his men (Tr. 65-68). 

2630 
Mr. Haire stated that after his conversations with Mr. Vigne, 

his work performance did not improve, and production did not 

increase significantly. He had further discussions with Mr. Vigne, 

and when he visited the plant Mr. Haire found that men were 

engaging in horseplay, and that the plant was not kept clean, 

and broken bags of material were "strung around the plant" 

(Tr. 70). When asked about Mr. Vigne's reactions to his 

instructions, Mr. Haire stated as follows (Tr. 70-72}: 

A. Well, the favorite thing was that I'm not 

going to do any manual work. He said he was hired 

as a supervisor and I tried to explain to him, 

which I did several times, that Gall is a small 

operation, and that everybody works. I work with 

any department that needs me, if I got to get out 

there, and whatever it takes to get something done, 

I do it. 

Q. You do physical labor? 

A. Yes, I do. 

Q. Do any of the other department foremen do 

physical labor? 

A. Yes, they do. 

* * * 

Q. When you had these early conversations with 

Mr. Vigne right after you.took over, did you 

explain to him that you wanted him to be a working 

foreman like your other foremen? 

A. I didn't actually tell him to get over there 

and get with it, you know, I mean if the manpower 

is there to do the job, if all his help is there 

in a day's time, then there is no need for him to 

actually get over there and do bodily labor, no. 

But I expected him to be there, you know, walk 

through every once in a while and check and make 

sure that work is being done properly. 

Q. And he wasn't doing that? 

A. No, he was -- he would go over there, yes, but 

once or twice a day. And that's quite a long time 

when you got production to get out. 

2631 
Q. And he wasn't doing that? 

A. No, he was -- he would go over there, 

yes, but once or twice a day. And that's 

quite a long time when you got production to 

get out. 

Q. Okay. 

A. But if men would not show up we would have 

a tardy -- I'm shorthanded, I can't get much today, 

which that was no good for production because like 

I way, we're small people. If need be, I can try 

to pull a person from another department to fill 

in if I can, but I can't always do that. 

Q. So if Mr. Vigne was shorthanded he didn't 

pitch in and help? 

A. No, sir. 

Q. Did production suffer as a result of that? 

A. Yes, sir, it did. 

Mr. Haire confirmed that he asked Mr. Vigne to paint the 

legs of the hopper silo, and that he did so after finding 

him on numerous occasions sitting in his office reading books 

(Tr. 75). Mr. Haire stated that Mr. Vigne refused to do any 

painting because "he figured he was above it" (Tr. 75). 

Mr. Haire stated that Mr. Vigne's refusal to paint was not 

the cause for his termination, and that he was terminated 

because of low production, his inability to get his men to 

work and get the work done (Tr. 75). 

Mr. Hai~e stated that Mr. Vigne's prior supervisor, 

Charlie Meadows, disciplined him for poor supervision. Mr. Haire 

identified exhibit R-l, as a May 29, 1979, document which was 

placed in Mr. Vigne's personnel file, and he indicated 

that it instructed Mr. Vigne as to how to perform his job 

"step-by-step" (Tr. 76). 

Mr. Haire confi~med that MSHA conducted an inspection 

at the dry plant, beginning on March 2, 1983, and that 12 out 

of 13 total citations concerned conditions in the dry plant. 

Two citations were guarding citations for which civil penalties 

were assessed. Mr. Haire indicated that he shut.the operation 

down, and that all of the citations were abated within eight 

hours (Tr. 86-87). 

2632 
Mr. Haire confirmed that Mr. Vigne had submitted "work 

orders" for the two guarding citations, but that he had not 

submitted any for the conditions cited in the other 10 citations, 

nor had he brought these conditions to his attention, or to the 

attention of anyone else (Tr. 88). Mr. Haire stated that 

Mr. Vigne was not required to submit any work orders to 

correct the conditions cited as guarding violations, and 

that he had the authority to get a welder to do the work 

(Tr. 89-90). Mr. Haire denied that Mr. Vigne was terminated 

because he issued wor~ orders pertaining to the guards, 

or because he informed Inspector Richardson of this fact 

(Tr. 90-91). He also denied that the inspection had anything 

to do with Mr. Vigne's termination (Tr. 91). 

Mr. Haire stated that after he informed Mr. Vigne that 

he was to be terminated, he offered him a job in the scale 

house, but Mr. Vigne refused it. Mr. Haire also indicated 

that he tried to get him a job in a hardware store operated 

by the respondent, but there were no openings (Tr. 93). 

Mr. Haire stated that he has never met Inspector Weaver, 

but that he does know Inspector Richardson (Tr. ~120). He 

confirmed that when he terminated Mr. Vigne he did not discuss 

the MSHA citations with him, nor did he mention that he was 

displeased with the fact that the citations may have resulted 

from Mr. Vigne's shortcomings (Tr. 125). 

Mr. Haire confirmed that Mr. Vigne did not contact 

Inspector Richardson to come to the plant to conduct an 

inspection (Tr. 127). Mr. Haire also confirmed that he was 

with Inspector Richardson at the time the citations issued, 

and that Mr. Vigne was also present (Tr. 129). 

Mr. Haire stated that Mr. Vigne was not given any written 

notice of termination, and that the off er made to him for 

the scale house job would not have been a significant reduction 

in pay (Tr. 133-134). 

Donald R. Bridges, respondent's Dry Plant Foreman, 

testified as to his duties and responsibilities, and he 

stated that when he was operating the scales two truck drivers 

complained to him that there was not enough sand ready for 

loading and that this was Mr. Vigne's responsibility (Tr. 137-

141). He also indicated that when he was the dry plant foreman, 

he had the authority to fix any equipment which posed a safety 

problem without writing a work.order (Tr. 141). 

On cross-examination, Mr. Bridges conceded that there 

were times when Mr. Vigne requested a loader that he had 

2633 
to wait at least 40 minutes for this service (Tr. 143). 

Mr. Bridges denied that he ever threatened Mr. Vigne with 

harm if he complained to Mr. Dibble about the lack of a 

loader (Tr. 143-144). 

Mr. Vigne was recalled as the Court's witness, and he 

confirmed that Mr. Haire never held him personally accountable 

for the citations which were issued by Inspector Richardson 

and that he (Vigne) never complained to Mr. Richardson, 

but simply showed him the work orders which he had submitted 

for the abatement work to be done (Tr. 149). He also 

confirmed that at no time did he contact MSHA to complain 

about any of the conditions which resulted in the issuance 

of the citations (Tr. 150). 

Mr. Vigne examined his "Personnel Envelope File" which 

was produced by the respondent's counsel, and he confirmed 

that it was in fact his personnel file maintained 

by the respondent. He confirmed that in connection with 

an unemployment compensation claim which he filed when he 

left the respondent's employ in 1979, he indicated that he 

quit his job because of a salary dispute with his supervisor, 

and that this was true (Tr. 150-152). 

With regard to his unemployment compensation claim 

which he filed in connection with his May 6, 1983, termination, 

Mr. Vigne confirmed the accuracy of a statement on a form 

completed by the respondent that he was discharged because 

of a "disagreement over job duties" with his "new supervisor." 

He also confirmed that the disagreement concerned Mr. Haire's 

desire that he perform "labor tasks" and his (Vigne's) disagreement 

over this issue (Tr. 154). Mr. Vigne also confirmed the 

accuracy of the following statement which was included on 

the form submitted by the respondent in connection with his 

unemployment compensation claim (Tr. 155): 

While under new supervision, Mr. Vigne was 

instructed on the new routine to be maintained 

at the drying processing plant. He failed to 

comply with these instructions and would not 

work as a laborer, since he was hired as the 

foreman. After this conversation he was asked 

to termina.t:e his employment. 

Mr .. Vigne confirmed that the aforesaid characterization 

of the circumstances under which he was terminated were 

accurate (Tr. 157), and he reiterated that he did not believe 

that Mr. Haire was aware of the fact that he had spoken to 

Inspector Richardson about the citations which he issued 

(Tr. 172) . 
The information provided by Mr. Vigne in connection 

with his unemployment claim, reflects an initial determination 

made by a claims adjudicator on May 27, 1983, in which it 

was found that Mr. Vigne was discharged "for failure to 

comply with supervisory instructions." The adjudicator 

concluded that this amounted to "misconduct connected with 

work," which disqualified Mr. Vigne from receiving unemployment 

benefits. 

On appeal of the adjudicator's decision, the refere~ 

reversed the adjudicator's determination, and ruled that 

Mr. Vigne's refusal to do manual work, as directed to by 

his supervisor, was justified. The referee found that since 

Mr. Vigne had been doing supervisory work in the past, it 

was unreasonable to expect him to do manual labor at hourly 

wages, and that since this was tantamount to a "demotion," 

Mr. Vigne had good cause to refuse his supervisor. Accordingly, 

while the referee found that Mr. Vigne had in fact been 

discharged, he ruled that the discharge was not "for misconduct 

connected with his work," and he reversed the adjudicator's 

conclusion in this regard. 

Respondent produced copies of two documents filed in 

connection with unemployment compensation claims filed by 

Mr. Vigne while employed with the respondent. One document 

is the form completed at the time Mr. Vigne applied for 

benefits when he was terminated in May 1983 (Tr. 154-155). 

The form contains a statement by Mr. Vigne that he was 

discharged because "new supervisor and I had disagreement 

over job duties." The second document is a State of Florida 

Notice of Claims Determination, dated June 28, 1979, which 

advises Mr. Vigne that he is disqualified for certain 

unemployment because he quit his job because of a conflict 

with his supervisor, and that his quitting was without good 

cause attributable to his employer. 

Findings and Conclusions 

In order to establish a prima f acie case of discrimination 

under section 105(c) of the Mine Act, a. complaining miner 

bears the burden of production and proo"f to establish (1) that 

he engaged in protec~ed activity and (2) that the adverse 

action complain'ed of' was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Co. v. 

Marshall, 2 FMSHRC 2786, 2799-2800 (October 1980), rev'd on 

other grounds sub nom. Consolidation Coal Co. v .. Marshall, 

663 F.2d 1211 (3d Cir. 1981); and Secretary on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 

(April 1981). The operator may rebut the prima facie case by 
showing either that no protected activity occurred or that 

the adverse action was in no way motivated by protected 

activity. If an operator cannot rebut the prima facie case 

in this matter it may nevertheless affirmatively defend by 

proving that (1) it was also motivated by the miner's 

unprotected activities, and (2) it would have taken.t~e. 

adverse action in any event for the unprotected activities 

alone. The operator bears the burden of proof with regard 

to the affirmative defense. Haro v. Maga Copper Co. 

4 FMSHRC 1935 1937 (November 1982). The ultimate burden ' . . of persuasion does not shift from the complainant. Robinette, 

3 FMSHRC at 818 n. 20. See also Boich v. FMSHRC, 7l~ ___ F_~2d __ l94 

·(6th Cir. 1983); and Donovan---V:-Stafford Construction Co., 

Nos. 83-1566, D.C. Cir. (April 20, 1984) (specifically 

approving the Conunission's Pasula-~obinette test) •. The 

Supreme Court has appro~ed the Nat~onal La~or ~e~ati~ns 

Board's virtually identical analysis for discrimination cases 

arising under the National Labor Relations Act. NLRB v. 

Transportation Management Corp., U.S. , 76 L. Ed. 2d 

667 (1983). 

On the facts presented in this proceeding, I cannot conclude 

that there is any credible evidence to suggest or support 

any theory that Mr. Vigne 1 s discharge was in any way connected 

with any protected activity on his part. There is no evidence 

of any protected work refusals or retaliation for such activity, 

nor is there any evidence that Mr. Vigne made any safety 

complaints to mine management, to MSHA, or to any state or 

local mining authorities. The thrust of Mr. Vigne's case 

seems to be that when an MSHA inspector inspected the mine 

following a previous "courtesy visit" by another inspector, 

Mr. Vigne "cooperated" with the inspector, and pointed out 

certain safety infractions to him. In addition, Mr. Vigne 

asserted that when questioned by the inspector as to why 

the cited conditions had not been corrected, Mr. Vigne 

advised him that he had submitted certain "work orders" to 

correct the conditions, but had been unsuccessful. After 

the inspector issued certain citations charging the respondent 

with several violations, Mr. Vigne suggests that Mr. Haire 

was somehow offended, and retaliated by firing him. 

Mr. Vigne conceded that at the tim~ he was informed that 

he was going to be fired, there were no discussions about 

any MSHA inspections/. and Mr. Haire never mentioned them. 

Mr. Vigne also conceded that even if he had not mentioned 

the work_ orders, Inspector Richardson would have issued the 

citations anyway. Given the fact that the conditions which 

prompted the citations issued by Inspector Richardson were 

2636 
initially discovered by Inspector Weaver and called to 

Mr. Vigne's attention, I cannot conclude that Mr. Vigne 

was cast in the role as the one who initiated the inspection 

or that his complaints prompted the issuance of the citations. 

Since Mr. Vigne was the supervisor responsible for the area 

where some of the conditions were cited, I believe it was 

only natural for him to attempt to mitigate his own 

responsibility for the conditions by bringing the work orders 

to the attention of the Inspector. Mr. Haire testified that 

he was aware of only two work orders concerning equipment 

guards, and he denied any knowledge of other work orders 

submitted by Mr. Vigne, and indicated that Mr. Vigne never 

discussed them with him. Mr. Vigne admitted that he never 

mentioned any of his conversations with Inspector Richardson 

to Mr. Haire or others in mine management, and he admitted 

that as a supervisor, he had a responsibility for safety 

conditions in those area under his supervision. 

The record in this case strongly suggests that Mr. Vigne 

and certain individuals in mine management did not get along 

too well. Mr. Vigne conceded that his work had been the 

subject of past criticism by a superior, and while he indicated 

that he left the respondent's employ voluntarily on a previous 

occasion and was then asked to return, the fact is that he 

was gone for approximately two years and that his departure 

came after some conflict with his supervisor. 

With regard to Mr. Vigne's termination in April 1983, I 

find nothing here to support a conclusion that Mr. Vigne 

was fired for exercising .any protected safety rights. Having 

viewed Mr. Vigne and Mr. Haire during the course of their 

testimony in this case, including their demeanor and temperment, 

I am clearly convinced that they have a personal dislike 

for each other. I am also convinced that Mr. Haire was not 

too enchanted with Mr. Vigne's work performance and attitude 

toward his work when he assumed supervisory responsibilities 

over him. I am also convinced that Mr. Vigne resented 

Mr. Haire's supervisory authority, and resisted efforts 

by Mr. Haire to assign work to him which Mr. Vigne found 

demeaning to his status as a supervisor. Although Mr. Vigne 

may have been justified in resisting Mr. Haire's attempts 

to assign him other work, that is a mat'ter best left 

to mine management .. since Mr. Vigne was a supervisor 

and part of mine man'agement, and absent any evidence that 

any protected rights under the Mine Act have been violated, 

I believe that any difficulties encountered by Mr. Vigne 

with an upper echelon supervisor of this rather small company 

is a private matter best left for resolution by those parties. 

2837 
I take particular note of Mr. Vigne's testimony concerning 

the circumstances surrounding the discharge in issue in 

this case. In a statement attributed to Mr. Vigne which 

appears on a state unemployment compensation form, he purportedly 

stated that "new supervisor and I had disagreement over job 

duties," and that this was the reason he gave for his discharge. 

During the hearing, Mr. Vigne acknowledged the accuracy of 

this statement, as well as another statement indicating 

that his discharge resulted from his failure to comply with 

instructions from his supervisor over work assignments. In 

both instances, Mr. Vigne admitted that the supervisor in 

question was Mr. Haire. Under the circumstances, these 

admissions by Mr. Vigne, made shortly after his discharge, 

strongly support the conclusion that his discharge was 

prompted by his inability to get along with Mr. Haire, and 

his failure to follow Mr. Haire's instructions and orders 

concerning his work. 

The fact that Mr. Vigne ultimately prevailed on his claim 

for unemployment compensation before the State of Florida 

is not relevant in this case before me. Although the unemployment 

referee concluded that Mr. Vigne's refusal to follow Mr. Haire's 

instructions concerning his work did not amount to "misconduct" 

for purposes of disqualifying him for benefits, his conclusion 

in this regard is not controlling to the facts presented in 

the case before me. The issue before me is whether Mr. Vigne's 

discharge was in any way connected with or prompted by, the 

exercise of any protected safety rights he had under the 

Federal mine safety and health law. I have concluded that 

it was not. 

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 

complainant here was failed to establish a prima f acie case 

of discrimination on the part of the respondent. Accordingly, 

the complaint IS DISMISSED, and the complainant's claims for 

relief ARE DENIED. 

Distribution: 

~~,,<-~,~ 'tf~t'rge /](. Koutras 

Administrative Law-Judge 

Mr. Albert Vigne, 436 Acacia Walk, Lake Wales, FL 33583 

(Certified Mail) 

Michael D. Malfitano, Esq., Macfarlane, Ferguson, Allison & Kelly, 

Box 1531, Tampa, FL 33601 (Certified Mail) 

/slk 

2638 
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. 

ZAPATA COAL CORPORATION, 

Respondent 

ZAPATA COAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

NOV 16 1984 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 84-122 

A.C. No. 46-03138-03513 

Docket No. WEVA 84-123 

A.C. No. 46-03138-03514 

Docket No. WEVA 84-149 

A.C. No. 46-03138-03515 

Monclo Prep. Plant 

Boone No. 2 Prep. Plant 

CONTEST PROCEEDINGS 

Docket No. WEVA 84-17-R 

Citation No. 2139599; 10/17/83 

Docket No. WEVA 84-18-R 

Citation No. 2139587; 10/6/83 

Docket No. WEVA 84-19-R 

Citation No. 2139593; 10/11/83 

: Docket No. WEVA 84-20-R 

Citation No. 2139597; 10/12/83 

2639 

Docket No. WEVA 84-21-R 

Citation No. 2271717; 10/12/83 

Docket No. WEVA 84-22-R 

Citation No. 2139563; 10/18/ff3 

Docket No. WEVA 84-23-R 

Citation No. 2139600; 10/18/83 

Docket No. WEVA 84-24-R 

Citation No. 2139561; 10/18/83 

Docket No. WEVA 84-25-R 

Citation No. 2271718; 10/19/83 
Appearances: 

Before: 

Docket No. WEVA 84-26-R 

Citation No. 2271719; 10/19/83 

Docket No. WEVA 84-27-R 

Citation No. 2271720; 10/19/83 

Docket No. WEVA 84-28-R 

Citation No. 2271722; 10/19/83 

Docket No. WEVA 84-29-R 

Citation No. 2271726; 10/20/83 

Docket No. WEVA 84-36-R 

Citation No. 2139562; 10/18/83 

Docket No. WEVA 84-37-R 

Citation No. 2271724; 10/20/83 

Monclo Prep. Plant 

Boone No. 2 Prep. Plant 

DECISION 

Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of ,Labor, Philadelphia, 

Pennsylvania, for Petitioner/Respondent; 

Laura E. Beverage, Esq., Jackson, Kelly, Holt 

and O'Farrell, Charleston, West Virginia, for 

Respondent/Contestant. 

Judge Broderick 

STATEMENT OF THE CASE 

The mine operator (Zapata) filed proceedings contesting 

the validity of citations issued by MSHA. The Secretary has 

filed penalty proposals for the violations of mandatory 

standards alleged in the contested citations. The proceedings were consolidated by Order of May 11, 1984, for the 

purposes of hearing and decision. With respect to certain 

of the violations, the parties submitted prior to the hearing 

and at the hearing-, settlement proposals. Pursuant to notice, 

the consolidated cases were heard on the merits in Charleston, 

West Virginia, on September 18 and 19, 1984. Federal Mine 

Inspectors Ernest Thompson and Clinton Lewis testified on 

behalf of MSHA. J. Richard Dillon, Monty Boytek, and Hershel 

Aylshire testified on behalf of Zapata. The parties waived 

their rights to file posthearing briefs. Based on the entire 

record, and considering the contentions of the parties, I 

make the following decision. 

2640 
FINDINGS AND CONCLUSIONS APPLICABLE TO ALL CITATIONS 

1. At all times pertinent to these proceedings, Zapata 

Coal Corporation, also known as Dal-Tex Coal Corporation, was 

the owner of mining facilities in Logan County, West Virginia, 

known as the Monclo Prep. Plant, also known as Boone No. 2 

Prep. Plant. 

2. At the time of the alleged violations contested in 

these proceedings, the annual production of the subject mine 

was 557,122 tons of coal. The operator is therefore of 

moderate size. 

3. In the 24-months prior to the alleged violations 

contested herein, the operator had a history of 66 violations 

of mandatory standards. This is a relatively favorable 

history. 

4. The imposition of penalties in these proceedings 

will not affect the operator's ability to continue in business. 

5. All of the violations involved herein were abated 

promptly and in good faith. 

6. The operator herein is subject to the provisions of 

the Federal Mine Safety and Health Act of 1977 in the operation of the subject mine, and I have jurisdiction over the 

parties and subject matter of this proceeding. 

SETTLEMENT MOTION 

The Secretary proposed to settle certain of the alleged 

violations contained in the above dockets. Written motions 

were filed on July 2, 1984, and August 27, 1984, and were 

amended by statements made on the record on September 19, 

1984. The following citations were included in the motions: 

Docket No. WEVA 84-122 

Citation No. 2271720 

This citation charged a violation of 30 C.F.R. 

§ 77.400(b) because of the absence of a guard on a walkway 

under. the conveyor belt. The hazard was deemed minimal and 

the operator's negligence moderate. The violation was 

originally assessed at $20 and the parties proposed to 

settle for $40. I approved the settlement agreement. 

2641 
Citation No. 2271722 

This citation charged a violation of 30 C.F.R. § 77.204 

because handrails and toeboards were inadequate or were 

missing under the rotary dump, on the bottom floor transfer 

building, and around the second floor of the shaker. The 

hazard was deemed moderate as was the operator's negligence. 

The violation was originally assessed at $136, and the 

parties proposed to settle for $136. I approved the 

settlement agreement. 

Docket No. WEVA 84-123 

Citation No. 2139561 

This citation charged a violation of 30 C.F.R. § 77.204 

because of openings caused by deteriorated metal on the 

first floor of the preparation plant. The hazard was deemed 

moderate as was the operator's negligence. The violation 

was originally assessed at $105 and the parties proposed to 

settle for $105. I approved the settlement agreement. 

Citation No. 2139562 

This citation charged a violation of 30 C.F.R. 

§ 77.1607(c) because the unguarqed walkway along the belt 

conveyor was not equipped with emergency stop devices or 

cords. The hazard was deemed unlikely to occur, but the 

operator's negligence was deemed moderate. The violation 

was originally assessed at $20, and the parties proposed 

to settle for $40. I approved the settlement agreement. 

Citation No. 2271726 

This citation charged a violation of 30 C.F.R. § 77.400 

because the equipment guard for the V-belt pulley was 

inadequate. The gravity of the hazard was deemed moderate, 

but the operator's negligence was deemed low. The violation 

was originally assessed at $105, and the parties proposed 

to settle for $90. I approved the settlement agreement. 

Docket No. WEVA 84-149 

pocket No. 2139587 

This citation charged a violation of 30 C.F.R. § 71.805 

because a noise survey showed excessive noise in the environment of one miner. The gravity of the violation was deemed 

low and the operator's negligence minimal. The violation 

was originally assessed at $98 and the parties proposed to 

settle for $69. I approved the settlement agreement. 

2642 
Citation No. 2139593 

This citation charged a violation of 30 C.F.R. § 77.1104 

because of an accumulation of combustible material along a 

portion of the mine floor. The condition had recently 

occurred, consisted of wet material and was not a serious 

hazard. The violation was originally assessed at $20, and 

the parties proposed to settle for $40. I approved the 

settlement agreement. 

Citation No. 213~563 

This citation charged a violation of 30 C.F.R. § 77.207 

because of insufficient illumination along a number of 

walkways. No miners worked in the area, however, and the 

operator's negligence was deemed low. The violation was 

originally assessed at $105 and the parties proposed to 

settle for $69. I approved the settlement agreement. 

THE CONTESTED CITATIONS 

Docket No. WEVA 84-122 

Citation No. 2139597 

This citation charged a violation of 30 C.F.R. § 77.207 

because of inadequate illumination along a walkway which 

constituted a secondary escapeway. There were lights on the 

primary escapeway, on the landing, and flood lights on the 

hill at the stockpile about 50 feet from the secondary 

escapeway. The operator's safety superintendent testified 

that all of these lights provided illumination to the 

secondary escapeway. The citation was written in the daytime, although the inspector testified that he had previously 

been in the area at night. The operator's safety superintendent testified that he frequently walked the secondary 

escapeway, and in his opinion it was adequately illuminated. 

There was debris along the walkway. 

'I conclude that 

of establishing that 

notice of contest is 

the penalty proposal 

the Secretary has not 

a violation occurred. 

granted, the citation 

for this violation is 

Citation No. 2271717 

carried his 

Therefore, 

is VACATED, 

DISMISSED. 

burden 

the 

and 

This citation charged a violation of 30 C.F.R. § 77.202 

because of an accumulation of float coal dust on the surface 

structure of a coal truck dump, on the inside of the frame of 

an electric heater and in the electrical control boxes 

2643 
and switch boxes. Sources of ignition were present in the 

electrical connections and in the cable from the pump which 

lacked proper bushing. The pump and heaters were not in 

operation at the time the citation was issued. 

The inspector and the operator's plant superintendent 

disagreed as to whether the dust on the facilities described 

above was float coal dust. I accept the inspector's testimony on this is~ue and conclude that float dust was present 

in the amounts described by the inspector. The amount of 

dust was such that it would have taken more than one shift 

to accumulate. With an ignition source present, there was 

a substantial fire or explosion hazard. I find that coal 

dust in a dangerous amount was permitted to accumulate. 

Therefore, the cited condition was a violation of the 

standard in 30 C.F.R. § 77.202. It was a significant and 

substantial violation, was serious and was caused by the 

operator's negligence. I conclude that $250 is an appropriate penalty for the violation. 

Citation No. 213·9600 

This citation charged a violation of 30 C.F.R. 

§ 77.400(c) because of an inadequate guard at the No. 9 belt 

conveyor flight discharge head. The inspector stated that 

a miner could reach in behind the guard and catch himself 

between the belt and the pulley. There were no miners working at the drive at the time the citation was issued, but 

the belt was regularly cleaned and serviced while the belt 

was in operation. The guard was only about 48 inches high. 

The distance from the top portion of the guard to the pinch 

point was 31 to 36 inches. It would have been somewhat 

difficult but not impossible for a person to reach the pinch 

point from behind the guard. The standard requires that 

guards shall extend a distance sufficient to prevent a 

person from reaching behind the guard and becoming caught 

between the belt and the pulley. The Commission recently 

held that this standard "imports the concepts of reasonable 

possiblity of contact and injury; including contact stemming 

from inadvertent stumbling or falling, momentary inattention, 

or ordinary human carelessness." Secretary v. Thompson 

Brothers, 5 FMSHRC· (September 24, 1984), slip. op. page 4. 

I conclude that a violation of the standard was established. 

Howev~r, I further conclude that an injury was unlikely 

because of the location of the pinch point. The violation 

was not significant and substantial and was not serious. The 

condition was or should have been obvious to the operator and 

therefore, resulted from the operator's negligence. I conclude that an appropriate penalty for the violation is $75. 

2644 
Citation No. 2271718 

This citation charged a violation of 30 C.F.R. 

§ 77.400(a) because of inadequate mechanical equipment 

guards at the rotary breaker and at 4 V-belts at the pulley 

drive shaker. There was an opening about 18 inches wide in 

the screen guard at the rotary breaker which was from 6 to 

7 feet high. The pinch point was about 26 inches in from 

the guard. The guards on the 4 V-belts did not come down 

to the end of the motor, leaving the belts and pinch points 

exposed. The area of exposure was about 4 inches high and 

4 inches wide. The pinch point was 18 to 20 inches in from 

the guard, and about 5-1/2 feet high. The area was cleaned 

weekly and serviced occasionally. 

I conclude that a violation of the standard (requiring 

· that exposed moving machinery parts which may be contacted 

by persons and may cause injury to persons shall be guarded) 

was shown. See discussion of prior citation, above. I 

conclude that the violation was reasonably likely to cause 

serious injury; that therefore, it was significant and substantial. The conditions should have been known to the 

operator. I conclude that an appropriate penalty for the 

violation is $150. 

Docket No. WEVA 84-·123 

Citation No. 2139599 

This citation charged a violation of 30 C.F.R. 

77.1608(b) because of dumping of coal approximately 30 feet 

beyond the edge of a high wall and directly above a surge 

bin; and also because an end loader was trammed above the 

surge bin to scatter coal dumped by trucks. The standard 

requires that where the ground at a dumping point may fail 

to support the weight of a loaded dump truck, trucks shall 

be dumped a safe distance back from the edge of the bank. 

The evidence is conflicting as to whether the ground was 

such that it could support the weight of a loaded truck. 

There was considerable dispute as to the effect (and location) of the surge bin. I accept the judgment of the 

inspectors that the ground at the dumping point in question 

might fail to support the weight of a loaded truck. I 

furth~r accept their testimony as to the evidence that trucks 

had backed on to such ground. The trucks belonged to and 

were operated by independent trucking companies. But the 

2645 
operator here controlled the dumping area, and was responsible for controlling the dumping of the coal. I conclude 

that the operator was properly cited for violations of the 

standard committed by the truckers. Therefore, I conclude 

that a violation was established. I further conclude, as 

the Secretary concedes, that the end loader's travel on to 

the coal pile was not a violation of the standard cited. 

I further conclude that the trucks did not go out over the 

surge bin, although they did go beyond the edge of the 

highwall. Respondent did not take adequate steps to prevent this occurrence and was therefore negligent in permitting the violation. I conclude that the violation was 

reasonably likely to result in serious injury. It was 

therefore properly cited as significant and substantial. I 

conclude that an appropriate penalty for the violation is 

$150. 

Citation No. 2271719 

This citation charged a violation of 30 C.F.R. § 77.202 

because of float coal dust accumulations to a depth of 

4 inches on the frame and structure of the speed reducer in 

the Transfer Building. The speed reducer contains an 

electrical motor and belt drive. The motor was energized 

and the belt was in operation at the time the citation was 

issued. The amount of dust was such that it would have 

taken more than one shift to accumulate. The electric motor 

and speed reducer do not generally get hot but run warm while 

in operation. The building was enclosed on three sides and 

open on the fourth. The only miners normally entering the 

area would be those assigned to grease the bearings and' 

clean up the area. I conclude that the accumulation of 

float coal dust was a violation of the standard cited. I 

further conclude that since ignition sources were present, it 

was reasonably likely to contribute to a fire or explosion 

hazard which could result in serious injury to miners, and 

that it resulted from the operator's negligence. I conclude 

that an appropriate penalty for the violation is $135. 

Citation No. 2271724 

This citation charged a violation of 30 C.F.R. § 77.512 

because of covers not being properly secured on three 

breaker boxes serving the centrifugal dryers. The boxes 

have 480 volts of power. The power was on and the tipple 

in operation. The only people authorized to enter the area 

are certified electricians and foremen. A danger sign was 

present on the door warning of 480 volts of electricity. The 

screw locks were loose and the doors open about 2 to 3 inches. 

I conclude that a violation was established. The condition 

2646 
should have been known to the operator and corrected before 

the citation was issued. The exposure to hazard was minimal 

and the likelihood of injury slight. The violation was not 

significant and substantial. I conclude that an appropriate 

penalty for the violation is $75. 

ORDER 

1. The following contested citation is ORDERED VACATED: 

Citation No. 2139597 issued October 12, 1983 

2. The following contested citations are ORDERED 

AFFIRMED, but MODIFIED to remove the significant and 

substantial designation: 

Citation No. 2139600 issued October 18, 1983 

Citation No. 2271724 issued October 20, 1983 

3. The following contested citations are AFFIRMED 

issued: 

Citation No. 2271717 issued October 12, 1983 

Citation No. 2271718 issued October 19, 1983 

Citation No. 2139599 issued October 17, 1983 

Citation No. 2271719 issued October 19, 1983 

as 

4. As part of the settlement, the operator seeks to 

have withdrawn its notices of contest with respect to the 

following citations and the contests are ORDERED WITHDRAWN 

and the proceedings DISMISSED: 

Citation No. 2271720 issued October 19, 1983 

Citation No. 2271722 issued October 19, 1983 

Citation No. 2139561 issued October 18, 1983 

Citation No. 2139562 issued October 18, 1983 

Citation No. 2271726 issued October 20, 1983 

Citation No. 2139587 issued October 6, 1983 

Citation No. 2139563 issued October 18, 1983 

Citation No. 2139593 issued October 11, 1983 

5. Within 30 days of the date of this decision the 

operator is ORDERED to pay the following civil penalties 

for v~olations of mandatory standards: 

CITATION 

2271720 

2271722 

2139561 

2139562 

2271726 

2647 

PENALTY 

$ 40 

136 

105 

40 

90 
2139587 

2139593 

2139563 

2139597 

2271717 

2139600 

2271718 

2139599 

2271719 

2271724 

Distribution: 

Total 

69 

40 

69 

0 

250 

75 

150 

150 

135 

75 

$1,424 

~f A/3vvdu.~6i James A. Broderick 

Administrative Law Judge 

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

Department of Labor, Room 14480 Gateway Building, 

3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

Laura E. Beverage, Esq., Jackson, Kelly, Holt and O'Farrell, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

/fb 

2648 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 .191984 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

I. B. ACTON 

GRADY ADERHOLT 

FREEi'-iAN BUTLER 

JAMES L. CAMPBELL 

W. D. FRANKLIN 

BILLY R. GLOVER 

TERRY PEOPLES 

WILLIAM REID 

CHARLES W. RICKER 

TERRY SHUBERT 

THEODORE TAYLOR 

MARVIN WISE 

ROBERT BURLESON 

Complainants 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Intervenor 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

DECISION 

Docket No. SE 84-31-D 

SE 84-32-D 

SE 84-33-D 

SE 84-34-D 

SE 84-36-D 

SE 84-37-D 

SE 84-39-D 

SE 84-40-D 

SE 84-41-D 

SE 84-42-D 

SE 84-43-D 

SE 84-44-D 

MSHl'i Case No. BARB CD 83-18 

Nebo Mine 

Docket No. SE 84-46-D 

MSHA Case No. BARB CD 83-28 

No. 7 Mine 

Appearances: Frederick W. Moncrief, Esq., Office of the ~ 

Solicitor, U.S. Department of Labor, Arlington, 

Virginia, for Complainants; 

Before: 

Mary Lu Jordan, Esq., Washington, D.C., for 

Intervenor; 

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

& Gale, P.C., Birmingham, Alabama, and Robert W. 

Pollard, Esq., Jim Walter Resources, Inc., 

Birmingham, Alabama, for Respondent. 

Judge Melick 

2649 
A. Final· Disposition of Discrimination Proceedings: 

By decision dated October 15, 1984, any claim for interest 

and attorney's fees in these cases was to be submitted to the 

undersigned within 20 days thereof. No such claim has been 

filed and no extension of time requested. Accordingly the 

Complainants are awarded only the training expenses and 

comparable wages set forth in that decision. Jim Walter 

Resources, Inc., is hereby ordered to pay the noted amounts 

to the following miners within 10 days of the date of this 

decision: 

Name of .Miner 

I. B. Acton 

Grady Aderholt 

R. Burleson 

F. Butler 

J. L. Campbell 

W. D. Franklin 

R. B. Glover 

T. Peoples 

W. C. Reid 

C. W. Ricker 

T. Shubert 

T. Taylor 

M. Wise 

Total Due 

$523.48 

485.54 

528.74 

418.40 

493.88 

437.54 

429.86 

436.54 

425.86 

500.00 

420.14 

439.74 

404.86 

B. Final Disposition of Civil Penalty Proceedings: 

In accordance with the decision in these cases dated 

October 15, 1984, Jim Walter Resources, Inc., is hereby 

ordered to pay within 10 days of the dat of this decision 

a civil penalty of $650 ($50 in each of e captioned cases). 

l I 

Judge 

Frederick W. Moncrief, Esq., Offi e of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

St., N.W., Washington, D.C. 20005 (Certified Mail) 

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

1200 Watts Bldg., Birmingham, AL 35202 (Certified Mail) 

Robert W. Pol-lard, Esq., Jim Walter Resources, Inc., P.O. Box C-79, 

Birmingham, AL 35283 (Certified Mail) 

/ejp 2650 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

PEABODY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

2651 

CONTEST PROCEEDINGS 

Docket No. KENT 84-97-R 

: Citation No. 2338145; 1/16/84 

: Docket No. KENT 84-98-R 

Citation No. 2338146; 1/16/84 

: Docket No. KENT 84-99-R 

: Citation No. 2338147; 1/16/84 

. 

. 

Docket No. KENT 84-100-R 

Citation No. 2338148; 1/20/84 

Docket No. KENT 84-101-R 

Citation No. 2338151; 1/20/84 

: Docket No. KENT 84-102-R 

: Citation No. 2338153; 1/20/84 

: Docket No. KENT 84-104-R 

: Citation No. 2338156; 1/23/84 

. . 

. . 

. . 

Docket No. KENT 84-105-R 

Citation No. 2338157; 1/23/84 

Docket No. KENT 84-106-R 

Citation No. 2338158; 1/25/84 

Docket No. KENT 84-107-R 

Citation No. 2338703; 1/30/84 

Docket No. KENT 84-117-R 

Citation No. 2338710; 2/03/84 

Docket No. KENT 84-118-R 

: Order No. 2338111; 2/03/84 

Docket No. KENT 84-119-R 

: Order No. 2338712; 2/03/84 . . 

. . 

. . Camp No. 2 Underground Mine 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 83-133 

A.C. No. 15-02705-03537 

Docket No. KENT 84-149 

A.C. No. 15-02705-03539 

Docket No. KENT 84-223 

A.C. No. 15-02705-03544 

Camp No. 2 Mine 

DECISION 

Appearances: 

Before: 

Michael O. McKown, Esq., St. Louis, Missouri, 

for Contestant/Respondent; 

Deborah A. Persico, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, 

Virginia, for Respondent/Petitioner. 

Judge Melick 

These consolidated cases are before me pursuant to sections 105(a) and 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et~., the "Act," to 

contest citations and withdrawal orders issued to the Peabody Coal Company (Peabody) and for review of civil penalties proposed by the Mine Safety and Health Administration 

CMSHA), for the violations alleged therein. At hearing, 

Peabody admitted the existence of the violations and the 

special unwarrantable failure findings (as alleged in the 

two orders before me) and challenged only the "significant 

and substantial" findings made by MSHA. 

In order to establish that a violation of a mandatory 

safety standard is "significant and substantial" the Secretary must prove: Cl) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a 

measure of danger to safety contributed to by the violations; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature. Secretary v. Mathies Coal Company, 6 FMSHRC 

1 (198"4). 

With the exception of Citation No. 2338155 which had 

been the subject of a settlement and final disposition prior 

to the filing by the Secretary of the civil penalty proceedings now before me (Docket No. KENT 84-149), all of the citations and orders at issue involve a violation of the permissibility requirements set forth in the standard at 30 C.F.R. 

2652 
§ 75.503. The admitted violations all concern openings in 

excess of .004 of an inch between plain flange cover plates 

and electrical enclosures on electrical face equipment taken 

or used inby the last open crosscut. Several of the citations/orders allege, in addition, other electrical hazards 

charging independent violations of the cited standard. The 

corresponding citations and orders are noted in the discussion that follows. 

In determining whether the violations are "significant 

and substantial" several factors are relevant to all of the 

alleged violations. In this regard it is not disputed that 

each of the cited pieces of equipment was being used, or 

would have been used in the near future, inby the last open 

crosscut and in close proximity to working faces. In 

addition, within the cited electrical compartments sparking 

and arcing were frequent and sufficient to ignite a methane 

concentration in the atmosphere of between 3 percent and 15 

percent. Further, that during the time the violations were 

cited ventilation in excess of that required by the operator's ventilation plan and an amount deemed adequate by MSHA 

was ventilating relevant face areas; that there had been 

adequate rock dusting in relevant areas; that in many of the 

units in which the citations were issued no methane was detected and in none of the units was more than .8 percent 

methane found; and that methane checks were made at least 

every 20 minutes. 

According to MSHA Inspector George Dupree, the violations were "significant and substantial" because of the danger of fire and explosion which could be triggered by concentrations of methane between 3 percent and 15 percent entering electrical compartments in which sparking and arcing 

occurs. While conceding that there had been little or no 

evidence of methane and recognizing the apparent adequacy of 

the ventilation, rock dusting and methane testing at the 

time of these violations, Dupree nevertheless noted that 

methane in explosive concentrations can be liberated at any 

time and indeed at the mine cited in this case, he observed 

significant fluctuations in methane liberation. The exhibits in evidence depicting variations in methane liberation 

at the Camp No. 2 Mine support the inspector's testimony in 

this regard. In further support of his estimation of the 

hazacd presented, Dupree cited MSHA records of fatal methane 

exploslons in mines with no history of methane •. 

In addition, in light of the large number of similar 

violations and, indeed, of the continuing violations after 

warnings from the MSHA inspector, it is reasonable to infer 

that, in the normal course of events, the cited conditions 

would not have been corrected. Within this framework of 

2653 
evidence, it is apparent that the violations are indeed "significant and substantial." See Secretary v. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866 {1984) affirming similar "significant and substantial" violations of the permissibility 

standards. The violations were in any event also "significant and substantial" based on the uncontested evidence that 

electrical shock and electrocution were reasonably likely 

from water seepage into the cited electrical compartments 

and the resulting short circuiting. 

While there is also evidence that some of the equipment 

was furnished with methane monitors which, if properly functioning, will trigger a warning light at a 1 percent concentration of methane and cut off power to the equipment upon 

the presence of 2 percent methane, it is not disputed that 

these monitors can and do malfunction. Explosive concentrations of methane could also reach the exposed electrical 

compartments before reaching the methane monitor. Under the 

circumstances, I do not find the existence of methane monitors to be sufficient to negate the "significant and substantial" findings made herein. 

According to Inspector Dupree, the large number of permissibility violations at the Camp No. 2 Mine was quite unusual and reflected a totally inadequate maintenance program. 

Indeed, Dupree found that 70 percent of the violations were 

the result of loose bolts on the cover plates. Moreover, 

even after several perm~ssibility violations were cited on 

the first day of his inspection, thereby giving notice to 

the mine operator of this deficiency, the violations nevertheless continued. I agree with Dupree's evaluation and I 

conclude that these factors warrant a finding of significant 

negligence. In addition, with respect to Citation Nos. 

2338143, 2338144, 2338145, 2338147, 2338151, 2338153, 

2338156, 2338157, 2338703, and 2338710, and Order No. 

2338711, the undisputed evidence is that the bolts and lock 

washers holding the cover plates onto the electrical compartments were loose, protruding, and clearly visible. It could 

reasonably be inferred from these obvious conditions that 

the cover plates were also loose, unsafe, and in violation 

of the cited standard. Accordingly, for this additional 

reason, I find that the noted violations were the result of 

significant negligence. 

In addition, with respect to Citation No. 2338146, it 

is undisputed that the cover plate over the electrical compartment had rusted to such an extent that the cover had to 

be replaced. It is further undisputed that the amount of 

rust observed could have accumulated only after a lapse of 

3 or 4 months. Accordingly, the deteriorated condition 

should have been detected during the weekly electrical inspections. Therefore it may reasonably be inferred that 

2654 
those electrical inspections were not being adequately performed. The violation was thus the result of significant 

negligence. 

Finally, with respect to Order No. 2338712, it is undisputed that, in addition to the cited loose cover plate, the 

conduit and cable had been torn out of the resistor panel, 

thereby creating an independent hazard. The condition was 

readily visible, since the light was inoperative, and was 

therefore the result of gross negligence. 

Further negligence is attributable to the operator in 

those cases cited after January 16, 1984, since the mine 

operator was forewarned on that date of the recurrent problem of these permissibility violations. It is apparent that 

even after these warnings management took no effective corrective action. Accordingly, I am assessing a greater penalty for the corresponding citations amd orders. 

In determining the amount of penalties to be assessed 

in these cases, I have also considered that the operator is 

large in size and has a substantial history of violations 

including a number of violations of the standard cited herein. The violations were all abated in a timely and good 

faith manner. 

ORDER 

Citation No. 2338155 having been previously withdrawn 

before the filing of the instant civil penalty proceeding is 

hereby severed from these cases. The contest proceedings, 

Dockets No. KENT 84-97-R, KENT 84-98-R, KENT 84-99-R, KENT 

84-100-R, KENT 84-101-R, KENT 84-102-R, KENT 84-104-R, KENT 

84-105-R, KENT 84-106-R, KENT 84-107-R, KENT 84-117-R, KENT 

84-118-R, and KENT 84-119-R are dismissed. 

The Peabody Coal Company is ordered to pay the following 

civil penalties within 30 days of the date of this decision: 

Citation No. 2338142 $ 100 

Citation No. 2338143 100 

Citation No. 2338144 100 

Citation No. 2338145 500 

Citation No. 2338146 500 

Citation No. 2338147 300 

Citation No. 2338151 300 

Citation No. 2338153 300 

Citation No. 2338156 300 

Citation No. 2338157 300 

Citation No. 2338158 300 

2655 
Citation No. 2338703 300 

Citation No. 2338710 300 

Order No. 2338711 400 

Order No. 2338712 750 

Total $4,850 

f Administrative Law Judge 

Distribution: 

Michael O. McKown, Esq., Peabody Coal Company, P.O. Box 373, 

St. Louis, MO 63166 (Certified Mail) 

Deborah A. Persico, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

/nw 

2656 
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. 

GRUNDY MINING COMPANY, INC., 

Respondent 

and 

GRUNDY MINING COMPANY, INC. 

Contestant 

v. 

SECRETARY OF LABOR, et al 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No: SE 83-29 

A/O No: 40-00524-03508 

No. 2l Mine 

NOTICES OF CONTEST 

Docket No: SE 82-36-R 

Citation No: 757821; 2/24/82 

Docket No: SE 82-37-R 

Citation No: 757822; 2/24/82 

Docket No: SE 82-38-R 

Citation No: 757823; 2/24/82 

Docket No: SE 82-39-R 

Citation No: 757824; 2/24/82 

Docket No: SE 82-40-R 

Citation No: 757825; 2/24/82 

DECISION APPROVING SETTLEMENT . 

Before: Judge Moore 

The proposed assessment issued by the assessment off ice 

in the above-captioned civil penalty proceedings is $30,272.00 

and the parties are seeking approval to settle for $27,000. 

MSHA has submitted with its moving papers its position 

with regard to the statutory criteria, and after examining 

those papers I find no reason to challenge MSHA's position. 

I therefore accept the reasons given by MSHA for 

2657 
agreeing to a settlement and incorporate them herein by 

reference. 

The settlement motion is GRANTED and respondent is 

ORDERED to pay to MSHA, within 30 days, a civil penalty of 

$27,000. 

Charles 

~C~' c. Moore, Jr. 

Administrative Law Judge 

Distribution: 

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

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

Robert I. Cusick, Jr. Esq,m 

Citizens Plaza, Louisville, 

Wyatt, Tarrant and Combs, 

KY 40202 (Certified Mail) 

Thomas S. Kale, Esq., Spears, Moore, Rebman and Williams, 

Blue Cross Building, 8th Floor, Chattanooga, TN 37402 

(Certified Mail) 

Paul D. Kelly~ Jr. Esq., 

and Graham, P.O. Box 488, 

Mail) 

/db 

~elly, Leiderman, Cameron Kelly, 

Jasper, TN 37347 (Certified 

2658 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINiSTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

I

, ,...., \I 2 !'"'• , .. '• 11 'i u .; . o V::!<::5't 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MARKEY MINES, INCORPORATED, 

Respondent 

and 

CALVIN BLACK ENTERPRISES, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 80-376-M 

A.C. No. 42-00784-05003 

Docket No. WEST 80-416-M 

A.C. No. 42-00784-05004 

Docket No. WEST 80-487-M 

A.C. No. 42-00784-05005 

Docket No. WEST 81-76-M 

A.C. No. 42-00784-05006 

Docket No. WEST 82-182-M 

: A.C. No. 42-00784-05007 

. . 

Markey Mines 

Docket No. WEST 81-392-M 

A.C. No. 42-00550-05002 

Blue Lizzard Mine 

DECISION 

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

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

for Petitioner; 

Mr. Calvin Black, President, Markey Mines, Inc., 

Blanding, Utah, pro se. 

Before: Judge Morris 

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

Health Administration, charges respondents with violating various 

safety regulations promulgated under the Federal Mine Safety and 

Health Administration Act, 30 U.S.C. § 801 et seg., (the "Act"). 

After notice to the parties, a hearing on the merits was 

held on August 21, 1984, in Monticello, Utah. 

The Secretary did not file a post-trial brief. Respondent, 

Markey Mines, filed a brief relating to certain threshold issues 

and was granted an opportunity to file a further brief on the 

merits of the alleged violations (Order, September 17, 1984). No 

further brief was filed. 

2659 
Issues 

Two threshold issues are presented: they concern whether the 

citations should be vacated because they were issued to the incorrect operator. Further, an issue concerns whether respondent 

is bound by the acts of its independent contractor. An additional issue is whether respondent is bound by certain evidence 

offered by a deposition. 

Secondary issues are whether respondent violated the 

regulations. If a violation occurred, what penalty is 

appropriate. 

Stipulation 

In assessing any penalties the parties agreed that Markey 

Mines is a small mine; further, it has no adverse history for the 

24 months prior to the issuance of the citations in these cases. 

(Tr. 145, 146). 

WEST 80-376-M 

Citation 336689 

This citation alleges a violation of Title 30, Code of 

Federal Regulations, Section 57.18-6 which provides as follows: 

57.18-6 Mandatory. New employees shall be indoctrinated in safety rules and safe work procedures. 

Summary of the Evidence 

MSHA's evidence: Ronald L. Beason, an MSHA inspector, issued 

this citation because two survey helpers, Boyd Donaldson, age 28, 

and Scott Sanders, age 19, were not trained in safety rules (Tr. 

14-17). 

The miners, employees of Sanders Exploration Company, were 

surveying old workings. There were five employees of Markey 

Mines observed in the drift where the two surveyors were located 

(Tr. 17, 18). 

The citation, an alleged S&S violation, was served on 

Wendell Jones and Hanson Bayless, Markey representatives who were 

present. The citation was issued because the two surveyors were 

untrained in the use of self-rescue equipment. Jones claimed the 

men were employees of Sanders Exploration Company and, therefore, 

respondent had no obligation to train them. In the inspector's 

opinion the men should also have been instructed in ground 

control, radiation, dust, evacuation, electricity and bulkheads. 

The surveyors responded to the orders of Jones and Bayless (Tr. 

18-27, 40). Inspector Beason ordered the surveyors to leave the 

mine. He further instructed the men in the use of self-rescue 

equipment. The company was directed to complete their training 

within three days (Tr. 153-156). 

2660 
Petitioner's evidence includes the decision of Commission 

Judge Virgil Vail in Secretary v. Calvin Black Enterprises, 5 

FMSHRC 1440 ·(Tr. 9, 10; Exhibit P-1). 

Calvin Black, Hanson Bayless, and Wendell Jones testified 

for respondent. 

Calvin Black indicated that Calvin Black Enterprises 

(hereafter "CBE") is a sole proprietorship owned by himself. 

CBE owns the capital stock in Markey Mines and the lease on the 

minerals rights. CBE contracted with Markey Mines to operate the 

mine. Markey Mines owns the mining equipment. 

CBE also contracted with Sanders Exploration to survey the 

mine. Sanders had general authority to enter the mine. But, in 

fact, on the day of this inspection, Donaldson and Sanders were 

underground without respondent's permission. The company later 

precluded such action by keeping its gates locked (Tr. 70, 74, 

80). 

Hanson.Bayless and Wendell Jones both indicated that when 

they arrived at the mine at 8:00 a.m. on the day of the inspection the surveyors had already gone underground. In 

addition, Bayless, in his 30 years' experience, had never seen 

the need for self-rescue equipment in this mine. This condition 

may have been a hazard in some mines but not in the Markey Mines 

(Tr. 99-100, 123-125). 

Wendell Jones claimed the inspector's instructions to the 

surveyors concerning self-rescue equipment took only 15 minutes. 

He further denied that the inspector directed him to give 

additional training to Donaldson and Sanders (Tr. 157). 

Discussion 

Respondent raises two threshold issues. Initially, it is 

asserted that the cases are fatally defective because the 

citations name the operator as "Calvin Black Enterprises." But 

the proposal for penalty was filed in five of the cases against 

"Markey Mines, Incorporated" namely, in WEST 80-376~M, WEST 

80-416-M, WEST 80-487-M, WEST 81-76-M and WEST 82-182-M. 

The second contention is that the two surveyors were 

employees of Sanders Exploration Company, an independent contractor. Therefore, respondent urges it cannot be held liable 

for the acts of an independent contractor. 

Concerning the initial issue, it is correct that the 

citations in the above docketed cases show the operator as 

"Calvin Black Enterprises." The citations further identify the 

mine site as the "Markey Mines." 

2661 
I find the fact~ concerning th~ interlocking ownership of 

CBE and Markey Mines to be as related by Mr. Black in his 

testimony. · In short, Markey Mines was the operator. Although 

the citations were issued showing CBE as the operator, the same 

citations also identified the site as Markey Mines. 'CBE and 

Markey were fully apprised of the situation and the record fails 

to disclose that CBE or Markey were prejudiced. Section 104(a) 

of the Act, now 30 U.S.C. § 814(a), requires the Secretary to 

issue his citation to the operator. But on the facts here, I 

conclude that whatever errors occurred in the issuance of the 

citations were cured by the Proposals for Penalty filed in these 

cases. The proposals filed named Markey Mines as respondent. In 

its answer Markey admits it is the operator, admits that its 

products affect commerce, and admits the issuance of the 

citations. In short, the Secretary amended the citations when he 

filed his proposals to assess penalties. 

For the foregoing reasons I deny the motion to dismiss. 

The second threshold issue concerns the status of Sanders 

Exploration Company as an independent contractor. It is asserted 

that its employees (Donaldson and Sanders) would likewise be 

independent contractors. Hence, it is argued that the production 

operator would not be responsible for the training of such 

individuals. 

The latest Commission decision involving the independent 

contractor doctrine was issued on August 29, 1984 in Cathedral 

Bluffs Shale Oil Company, 8 FMSHRC 1871. In the decision the 

Commission considered the effect of the Secretary's formally 

adopted policy regarding the issuance of citations to an operator 

for violations of the Act committed by an independent contractor. 

The citation in the instant case was issued before the 

Secretary's policy took effect. But, the production operator 

(Markey Mines), would be liable under the law applicable before 

the adoption of the Secretary's policy and it would also be 

liable under the Secretary's later policy. The liability arises 

from the fact that a part of the determination of liability includes an evaluation of whether the production operator's miners 

were exposed to the hazard created by the independent contractor. 

Old Ben Coal Co., 1 FMSHRC 1480 aff'd., No. 79-2367 (D.C. Cir. 

January 6, 1981); Cyprus Industrial Minerals Company, 3 FMSHRC 1 

(January 1981), aff'd. 664 F.2d 1116 (9th Cir. 1981). 

The evidence here establishes that when the two Sanders 

employees were underground at least five employees of Markey 

Mines were in the drift where the surveyors were located (Tr. 17, 

18). 

The five Markey employees were thus exposed to any hazard 

the new inexperienced employees might generate due to their lack 

of training in safety and safe work procedures. 

2662 
Accordingly, the independent contractor d-~fense 

vail in this factual setting. 

cannot ~ 

preDuring the trial the Secretary offered the decision of Judge 

Vail in the case of Secretary v. Calvin Black Enterprises, cited 

supra. The Secretary offered the case to invoke the doctrine of 

res judicata. It is claimed that respondent is bound by Judge 

Vail's decision since that case involved Sanders Exploration 

Company, self-rescue equipment, and the independent contractor 

issue. 

Jn support of his position the Secretary has cited United 

States v. Stauffer Chemical Company, 104 s. Ct. 575 (1984)(Tr. 8, 

9). I disagree with the Secretary. The cited case is not 

controlling because the doctrine of defensive collateral estoppel 

does not apply unless the issue was litigated in another case involving "virtually identical facts." It is not shown that the 

facts in the instant case are identical with Judge Vail's case. 

I, accordingly, reject the Secretary's motion to invoke the 

doctrine. 

As to the violative condition itself the evidence 

establishes that two men, who were only employees for two days, 

were untrained in many areas of safety. Violations of safety 

rules and procedures by these workers could endanger themselves 

and the five Markey Mine employees on the site. It is the 

operator's duty to control the independent contractor's workers 

and their activities, as they generally affect the respondent's 

employees in the mine. 

Respondent further claims that the Sanders employees went 

underground before the operator's supervisors arrived on the job 

site that morning and that they did so without permission. It is 

argued they were trespassers. 

I reject this contention. Sanders Exploration, according to 

Mr. Black, had general authority to enter the mine. With such 

general authority they did not have to secure permission to enter 

on a daily basis. 

The citation should be affirmed. 

Citation 336810 

This citation alleges a violation of 30 C.F.R. 

§ 57.ll-51Cb), which provides: 

57.11-51 Mandatory. Escape routes shall be: 

Cb) Marked with conspicuous and easily read direction 

signs that clearly indicate the ways of escape. 

Summary of the Evidence 

MSHA Inspector Ronald Beason asked Wendell Jones to go into 

the return air haulageway. Jones identified this area as his 

2663 
escape route. The inspection p2rty became lost and backtracked 

four times {Tr. 27-29). 

The hazard, caused by a lack of signs, is that miners could 

be trapped because they would not have time to backtrack and 

search for an escape route during an evacuation (Tr. 29-30). 

Respondent's evidence through witnesses Black, Bayless and 

Jones shows the new haulageway was completed in the week before 

the inspection. In addition, the company was in the process of 

installing large fans, airlines, and was cleaning up. At the 

time of the inspection there were no signs up. The old drift was 

without signs and it had never had any. The inspectors had never 

told the company that signs were necessary (Tr. 102-104, 123-135, 

179). 

Witness Wendell Jones indicated he did not get lost in the 

escapeway. Actually, he was looking for a jeep but he was 

neutral as to whether or not the inspection party found it (Tr. 

129, 130). 

MSHA's rebuttal evidence indicated that Calvin Black 

Enterprises was issued a notice under MESA (MSHA's predecessor) 

for failure to have a second escapeway on September 11, 1974. 

The condition was abated in April, 1976 (Tr. 148, 149; Exhibit 

P-2). 

Bayless testified that MESA approved a refuge area as a 

second escapeway. Everyone who worked at the Markey Mine had 

been instructed where the area was located. The mine had five 

miners and a superintendent (Tr. 102-104, 123-135, 179). 

Discussion 

MSHA's evidence establishes the escape route was not marked 

in any fashion to indicate it was an escape route. Respondent's 

evidence confirms the violation. 

The evidence is conflicting as to whether the escapeway was 

completed within the week before the inspection or in April, 

1976. I credit respondent's evidence that the parallel haulageway was completed within a week before the inspection. The 

citation should be affirmed on the uncontroverted evidence that 

the escapeway was unsigned. But the short time since the opening 

relates to respondent's negligence, an issue to be considered in 

connection with the assessment of a penalty. 

WEST 80-416-M 

Citation 336866 

This citation alleges a violation of 30 C.F.R. § 57.12-20, 

which provides: 

57.12-20 Mandatory. Dry wooden platforms, insulating 

mats, or other electrically nonconductive material 

2664 
shall b~ J:ept in place at all switchboards and powercontrol switches where shock hazards exist. However, 

metal plates on which a person normally would stand 

and which are kept at the same potential as the grounded, 

metal, non-current-carrying parts of the power switches 

to be operated may be used. 

Summary of the Evidence 

Federal Mine Inspector Roy Maki, a person trained in the 

hazards of electricity, issued this citation (Tr. 160-162). 

He wrote the citation at the entrance to a flank drift in a 

new development. A switch box was not grounded. Further, there 

was no insulating material for protection. The switch box 

controlled the fan, which was running. The fan provided air to 

the drift (Tr. 162-166). 

The area around the 440-volt fan was dry. Anyone activating 

the fan would be exposed to the hazard of being injured if the 

ground fault system failed. In addition, a fire would be 

possible if a bearing on the fan burned out (Tr. 163-164, 169). 

Inspector Maki had previously discussed this fan with 

Wendell Jones. At that time he noticed it lacked a ground. A 

worker could be burned or killed by this hazard. Inspector Maki 

issued this citation as an S&S violation. He still considered it 

to be such at the time of the trial (Tr. 163-168). 

A dry wood platform, such as the standard requires, prevents 

a person from being shocked. Rubber boots, such as those used by 

miners, are also a good insulator. If a miner was standing on 

dry rock, or sand, the electrical charge would not go any further 

to ground. However, if a miner's boots were wet or if the miner 

was standing on a dry board, an electrical charge would go to 

ground (Tr. 162, 169, 170). 

If a mat had been present and there had been a ground, n9 

citation would have been issued (Tr. 172, 173). 

Witness Bayless, testifying for respondent, indicated that 

no one had ever been injured or shocked from turning on this fan. 

There is wet drilling at the face but Bayless had never seen a 

miner, who might have been wet, turn on the blower. The blower 

was equipped with fuses (Tr. 189-192). 

Discussion 

The regulation requires that the fan and switch have a frame 

ground. There was no such ground here and the inspector wrote 

the citation to that effect (Tr. 162). The dry wooden platform 

and the requirements for an insulating mat would be in lieu of a 

ground (Tr. 162). 

2665 
The factual situation establishes a violation of the 

regulation. 

Respondent's evidence does not present a defense. The 

citation should be affirmed. 

WEST 80-487-M 

Citation 337161 

This citation alleges a violation of 30 C.F.R. § 57.3-22, 

which provides: 

57.3-22 Mandatory. Miners shall examine and test 

the back, face, and rib of their working places at 

the beginning of each shift and frequently thereafter. 

Supervisors shall examine the ground conditions during 

daily visits to insure that proper testing and ground 

control practices are being followed. Loose ground 

shall be taken down or adequately supported before 

any other work is done. Ground conditions along 

haulageways and travelways shall be examined periodically and scaled or supported as necessary. 

Summary of the Evidence 

Larry Day, an MSHA inspector, has extensive experience 

concerning loose ground (Tr. 193-195). He issued this citation 

because there was a loose slab hanging onto a rib in a travelway. 

The slab was on the side of a pillar. Miners were walking by the 

slab and vehicles were hauling muck out of the pillar area (Tr. 

195). 

The drift was 10 foot high and 15 to 20 feet wide. The slab 

was 9 feet high and 15 feet long. The ground was very heavy and 

there was blasting in the area (Tr. 196)0 Pillars in the area 

were cracked and many were broken up; there were signs of stress 

on the roof. This particular slab had a four inch gap 24 inches 

long along the top and on both sides. The only place where the 

slab was holding was along its bottom portion (Tr. 196). The 

slab had come away from the wall at least four inches at the 

widest place (Tro 197). 

In the inspector's view the slab, which had moved, could 

either slide down the pillar and tip over or it could tip over 

and cover the drift (Tr. 197). 

From the size of this rock a miner could be disabled or 

killed (Tr. 197). Falling rock is the primary cause of 

fatalities in underground mines. 

Day agreed that Wendell Jones had told him that the slab 

could not tip over. As they watched, the slab did not slide 

towards the haulageway. It was resting on its base. 

2666 
Respondent's witneEs hendell Jo·1~s, ~ith over 30 years' 

experience in mining, testified that this particular slab was 

already loose and resting on the sill (Tr. 203). It would not 

have come loose from this position because it would have to slide 

5 or 10 feet all at once (Tr. 204). 

Jones intended to take down the slab but under the 

circumstances here no one could be injured. It would not tip 

over because there were 3 to 4 bars holding it CTr. 201). 

After the citation was issued Jones shot the slab with a 

couple of sticks of powder (Tr. 202). 

Discussion 

I credit MSHA's evidence on this citation. Inspector Day 

describes the condition of a very large loose slab. The 

inspector correctly ordered the removal of the slab since it was 

in close proximity to the miners who were working nearby. 

Respondent's evidence is not persuasive. Even though the 

slab was resting on a sill, its stability was suspect. It could 

be affected by the ground behind it, by the blasting, or by the 

work being carried on in close proximity. I, accordingly, reject 

respondent's premise that the condition presented no hazard. Cf. 

Homestake Mining Company, 4 FMSHRC 146, 150 (1982). 

The citation should be affirmed. 

WEST 81-76-M 

Citations 576708, 576709, 576710 

A portion of MSHA's proof of tne alleged violations in this 

case arises from the deposition of George Rendon taken June 30, 

1983 in Salt Lake City, Utah (Exhibit P-3). 

Respondent strenuously objected to the use of the deposition 

of George Rendon on the grounds that Francis J. Nielson, Esq., 

was not authorized to represent respondent at the deposition. 

Accordingly, respondent asserts the deposition had no evidentiary 

value. 

The judge admitted the deposition of witness Rendon and 

overruled respondent's objections (Tr. 207-223). At this point 

it is necessary to review the relevant factors concerning the 

deposition. 

As an initial matter I note that Francis J. Nielsen, Esq., 

appears as attorney of record for respondent in WEST 80-376-M, 

WEST 80-416-M, WEST 80-487-M, and WEST 81-76-M (the instant case). 

Mr. Nielsen has never sought to withdraw. 

2667 
The deposition of witness George Rendon was taken on June 

30, 1983 to preserve his testimony since Rendon was leaving the 

country for Indonesia the following week (Deposition transcript, 

Exhibit P-3 at 6). At the deposition petitioner was represented 

by Phyllis K. Caldwell, Esq., and Francis J. Nielson, Esq., appeared for respondent. A reading of the deposition indicates 

that Mr. Nielsen was present and took part in the examination of 

witness Rendon. It is also true that Mr. Nielsen left the 

deposition before it was completed (see deposition page 21). He 

did not state his reason for leaving, but he entered a number of 

objections on the record. Most of the objections relate to the 

competency of witness Rendon to render an expert opinion on 

electrical matters. ~/ 

A factor further bearing on this issue is that a hearing in 

the Markey Mine cases was scheduled on November 15, 1983. At 

that hearing respondent's request for a continuance was granted. 

The record of the proceeding at that hearing reflects some 

discussion of the status of attorney Nielsen (Tr. of November 15, 

1983 at pages 10, 19, 20, 22-23). There is however, no indication that attorney Nielsen's services had been terminated as 

of November, 1983. I, accordingly, conclude Mr. Nielsen had the 

authority to represent respondent at the Rendon deposition in 

June, 1983. 

The deposition was proper evidence under the Commission's 

Rules of Procedure, Rule 56, 29 C.F.R. § 2700.56 and under the 

Federal Rules of Civil Procedure, Fed. R. Civ. P., Rule 26. 

Citation 576708 

This citation alleges a violation of 30 C.F.R. § 57.12-13, 

which provides: 

57.12-13 Mandatory. Permanent splices and repairs made 

in power cables, including the ground conductor where 

provided, shall be: (a) Mechanically strong with 

electrical conductivity as near as possible to that of 

1/ The judge did not have an opportunity to rule on the 

objections at the hearing. But, having read the deposition, 

I conclude that a number of them are well taken. Those 

objections, relating to the competency of witness Rendon to 

render an expert opinion pertaining to electricity, as stated in 

Exhibit P-3, on pages 16, 17, and 22 are sustained. The answers 

of the witness are, accordingly, stricken. The balance of 

respondent's objections are overruled. 

2668 
the ori9inal; (b) In~~ulated to a degree at least equal 

to that of the original, and sealed to exclude moisture; 

and, (c) Provided with damage protection as near as 

possible to that of the original, including good bonding 

to the outer jacket. 

Suminary of the Evidence 

MSHA's evidc~ce: George Rendon testified by deposition and 

Preston Hunt appeared in person. 

George Rendon issued citations in 1981 and 1982 at 

respondent's uranium mine. The company mines by using a drift 

and room process (Exhibit P-3 at 7). Employment at the mine has 

ranged from a high of eleven to a low of three. In 1980 and 1981 

they were mining at the site {P-3 at 8). 

Rendon, who was not experienced in electricity, issued 

Citation 576708 on August 7, 1980 because a splice in a 

distribution cable was not adequately grounded. The citation was 

issued for a violation of § 57.12-13, now docketed in case WEST 

81-76-M {P-3 at 9, 10, 13; deposition Exhibit 1). 

Wendell Jones and·Preston Hunt accompanied Rendon. The 

original assessed penalty 2/ was $34 and at a conference it was 

reduced to $28.00 {P-3 at 10). 

The citation arose when the inspection party stopped to see 

if a fan was grounded. The inspector noticed the cable was 

three-quarters of an inch thick CP-3 at 10, 11). 

Jones said he didn't know if there was adequate insulation 

under the splice. As they walked towards the working face they 

saw two other places where the splice was smaller than the 

original cable. On unwrapping it they found there was no 

insulation. It consisted of bare wire and the connector CP-3 at 

12). The cable was being used to power a fan CP-3 at 12-13). 

The three splices in the main airway were not mechanically strong 

and could not exclude moisture {P-3 at 16, 24). The cable was 

hung on hooks about every 20 feet (P-3 at 16). In the immediate 

vicinity of the cable there were three miners removing ore. 

Equipment operating in this eight-foot drift could hit the cable, 

2/ The petition for assessments shows the original assessed 

penalty was $28.00. 

2669 
or the equipment could hool: it c.r,c) pJ 11 i '- ape.rt. TtH:: rr,i r1~,r :-.. 

~~re in close proximity to this con6ilio~ CP-3 at 18-20). ~11e 

equipment in the drift was 15 feet long by 5 feet wide CP-3 at 

19) • 

If an accident occurred it would affect the entire mine. 

The condition was corrected within the time specified by the 

citation CP-3 at 24). 

Rebuttal Witness Preston Hunt testified that he has been an 

electrician for 49 years. He possesses considerable electrical 

experience (Tr~ 262-264). 

Rendon issued this citation because Witness Hunt, at the 

time, was not a duly authorized representative of the Secretary 

(Tr. 264). 

The outside diarn~ter of the cable was 1 and 1/2 inches and 

the splices were of lesser thickness. The smallest diameter was 

three-quarters of an inch {Tr. 2661 Exhibit P-4). 

Bayless had used SCOTCHGUARD, a pliable taping material, to 

fill in a proper splice (Tr. 267). 

Bayless, at Jones' request, took the splice apart and found 

there was insufficient insulation. A minimal impact could 

penetrate the wires and cause a short or a ground (Tr. 268). 

The conductors in the cable were three No. 8 wires protected 

by a neoprene cover. It was 600 volts phase to phase. These 

·splices would not be acceptable to a certified electrician. Here 

there was a loss of mechanical protection. With the loss of such 

protection the splices can pull apart (Tr. 270). 

Respondent's evidence consisted of witnesses Hanson Bayless 

and Wendell Jones. The splices, in Bayless' opinion, were not 

defective. Initially, a split bolt connector is used to hold the 

two wires together. Insulating compound then covered the wires. 

Each wire is wrapped with electrical tape and all three wires are 

taped together. After wrapping the electrical wires in the 

splice the cable would be thinner than the original cable because 

the fiber cords had been cut away. Jones had seen qualified 

electricians make splices in this fashion (Tr. 223-227, 236, 

237). 

A dispute exists as to who unwrapped the splice. Hunt 

claimed that Bayless unwrapped it. But Bayless specifically 

denied that he did so {Tr. 282, 286). 

Discussion 

On this citation I credit the testimony of MSHA witness Hunt. 

He has 49 years of extensive experience as an electrician. It is 

2670 
clear that the splices here were not as mechanically strong as 

nearly as possible because the original fibers had been cut away. 

Exhibit P-4, an illustrative drawing, shows the deterioration of 

the mine distribution cables. 

Bayless testified that the splice was not defective; 

further, he had seen experienced electricians splice in this 

fashion. I am not persuaded. A splice made by an experienced 

electrician is not necessarily mechanically strong, insulated and 

provided with damage protection as near as possible to that of 

the original. Respondent's witnesses are not as experienced nor 

as expert as petitioner's witness Preston Hunt. Jones indicated 

the cable splice was a matter Bayless should handle (Tr. 237). 

Bayless, at best, had a minimal background in electricity (Tr. 

224). 

The citation should be affirmed. 

Citation 576709 

This citation alleges a violation of 30 C.F.R. § 57.12-25, 

which provides: 

57.12-25 Mandatory. All metal enclosing or encasing 

electrical circuits shall be grounded or provided 

with equivalent protection. This requirement does not 

apply to battery-operated equipment. 

Summary of the Evidence 

Inspector George Rendon issued this citation on August 7, 

1980 for an alleged violation of § 57.12-25 CP-3 at 24, 25; deposition Exhibit 2). 

They were inspecting an emergency escapeway when they 

observed that a ground wire was not connected to a switch box. 

The inspector did not find any other ground. The ground wire, 

which was hanging loose, was about eight feet from the switch box 

(P-3 at 25, 26-28). 

The main power source and ground wire came through a bore 

hole which had been drilled from the surface into the tunnel. 

The casing was ungrounded. Further, it was not protected by 

equivalent grounding protection CP-3 at 26). The 440-volt switch 

box, hanging on a rib, measured 24 inches wide and 36 to 40 

inches long CP-3 at 26, 30). The company was aware of the 

grounding requirement because other switch boxes were properly 

grounded CP-3 at 30). 

2671 
A lightning s~orrn could cause a short. There ~2S water in 

the drift. 

A contractor does respondent's electrical work (P-3 at 28). 

This citation was abated within the time specified (P-3 at 

32) . 

The original assessment was $34 and at a co~ference it was 

reduced to $14. The notice of assessment proposes a penalty of 

$14 for this citation (P-3 at 25). 

Hunt, MSHA's rebuttal witness, confirmed Rendon's testimony. 

Hunt observed that the messenger wire, which was loose, could 

have returned the fault current to the source of its generation. 

But the messenger wire was not attached to the metal portion of 

the switch gear to provide a path for the fault current to be 

returned. Hunt had prepared an illustrative drawing showing the 

2/0 A.W.G. cable. 

If a person touched the box he could be shocked even though 

the area was not damp. The absence ·of a dry platform increased 

the hazard. A dry floor has a measure of conductivity (Tr. 

274-285; Exhibit P-5). 

Respondent's witness Jones stated he didn't remember too 

much about this condition. They thought it had been properly 

grounded (Tr. 237). 

According to Jones, no miner had ever been shocked at Markey 

Mines (Tr. 238, 241). 

Discussion 

The standard requires that all metal encasing electrical 

circuits shall be grounded or provided with equivalent protection. 

The uncontroverted evidence shows the main metal switch box was 

not so protected. 

The fact that no miner has ever been shocked at the Markey 

Mines is not a defense. A prime purpose of the Act is to prevent 

the first accident. 

The citation should be affirmed. 

Citation 576710 

This citation alleges a violation of 30 C.F.R. § 57.12-20, 

which provides: 

57.12-20 Mandatory. Dry wooden platforms, insulating 

mats, or other electrically nonconductive material 

2672 
shall b~ kept in place at all switchboards and powercontrol switches where shock hazards exist. However, 

metal plates on which a person normally would stand 

and which are kept at the same potential as the grounded, metal, non-current-carrying parts of the power 

switches to be operated may be used. 

Summary of the Evidence 

MSHA Inspector Rendon wrote this citation for a violation of 

§ 57.12-20. At the ~ain power control switch box (discussed in 

the prior citation) there was no insulating mat or dry wooden 

platform for a person to stand on when activating the switch. 

Shock hazards exist at this location. There was no metal plate 

kept at the same potential as the grounded metal non-carrying 

parts of the power switch. The hazard includes possible 

electrocution. Mats were supplied in front of similar switches 

and motors. The dangers are inherent in this situation as were 

discussed in connection with Citation 576709 CP-3 at 32, 33i 

deposition Exhibit 3). 

This hazard was abated in the time specified. 

MSHA's witness Hunt confirmed there was no mat. Further, 

there was water caused by a leaking water line approximately 50 

feet from the switch (Tr. 279-281). 

Wendell Jones testified he did not believe there was a 

hazard because a miner would be protected by his rubber boots (Tr. 

243). 

The parties stipulated that the evidence already in the 

record concerning hazards could be considered in connection with 

this citation (Tr. 244). 

Discussion 

No credibility issue is presented. Petitioner establishetl a 

violation and respondent confirms it. 

The citation should be affirmed. 

WEST 82-182-M 

Citation 584354 

This citation, relating to ground conditions, alleges a 

violation of 30 C.F.R. § 57.3-22. The standard was cited in WEST 

80-487-M, supra. 

2673 
Surr1.mary of the evidence 

Inspector Rendon issued this citation on October 27, 1981. 

Walking down the main drift, the inspector observed loose slabs 

one to two inches from the roof. The slabs were two to three 

feet wide and four to six inches thick (P-3 at 35, 38; deposition 

Exhibit 4). The loose slabs were at three different locations in 

the middle of the back of the main haulageway (P-3 at 35). One 

was on the straightaway of the main drift, one was on the right 

side, and one was close to where they were doing the mining. 

This was a location where supervisors are to check daily. 

Further, in this area miners are to test the ground at the 

beginning of each shift (P-3 at 36). 

The ground was not adequately supported. Work was not being 

done in this area but miners had to pass here to reach their 

work stations CP-3 at 37). In the inspector's opinion the slabs 

had been loose for more than a day or two. Blasting vibrations 

could have caused such a condition. A miner could be killed if 

the slab fell when he came under it CP-3 at 38). 

Some ground control devices, such as rock bolts and 

chainlink wire, were in an area near one of the loose slabs. 

Foreman Bayless told the inspector that they had failed to see 

the loose. Further, they were working on another area and didn't 

have enough bolts to finish it. Three miners and a foreman 

working in the mine were exposed to this condition CP-3 at 40). 

The original assessment on Citation 584354 was not reduced 

at conference and it remained at $14 (P-3 at 35). 

Witness Wendell Jones testified that the condition for which 

the company was cited is called "feathered ground" (Tr. 247). 

The slabs are about as stated, namely two feet wide and three 

feet long and four to six inches thick (Tr. 247). As they go 

back they get a little thicker. They are periodically barred 

down (Tr. 247). When Jones tested the slabs they couldn't bar 

them down so roof bolts were used (Tr. 248). If they barred down 

the area periodically, none of the slabs would come down (Tr. 

250). 

Discussion 

The recollection of witness Jones concerning this event is 

somewhat hazy. But the regulation requires loose ground to be 

either barred down or adequately supported. Since neither action 

took place before this citation was issued I conclude that a 

violation of the regulation occurred. 

The citation should be affirmed. 

Citation 584356 

This citation alleges a violation of 30 C.F.R. § 49.4, 

which provides, in part, as follows: 

2674 
(b) An application for alternative mine rescue 

capability shall be submitted to the District 

Manager for the district in which the mine is 

located for review and approval. 

Inspector Rendon issued this citation because Mr. Bayless 

indicated to him that the mine rescue plan had not been mailed to 

the MSHA District Manager (P-3 at 41; deposition Exhibit 5). The 

mine did not have a mine rescue plan (P-3 at 43). 

The witnes~ had also reviewed the MSHA records in Moab, Utah 

and called the Denver District off ice prior to inspecting the 

mine. There was no evidence that the application had been submitted by Markey Mines (P-3 at 44, 45). Rendon had no knowledge 

that Markey Mines ever submitted an application under § 49.3 to 

qualify as a small and remote mine (P-3 at 45). The mine abated 

this condition by submitting a plan (P-3 at 46). 

Mr. Black testified that the mining operation was winding 

down immediately before this citation was issued. He also requested a waiver from MSHA but never received a reply. The 

parties stipulated that respondent could supplement the record 

with a copy of Mr. Black's letter requesting a waiver. A copy of 

the request was filed~/ and marked as Exhibit R-1 (Tr. 253). 

Witness Bayless indicated that he was told the company could 

get a waiver of the mine rescue plan. In October, 1981, there 

were either three or five employees at the mine. 

Discussion 

Mr. Black's letter, dated a month before this citation, 

requested a waiver of this regulation. 

MSHA cannot issue a waiver for Title 30, Code of Federal 

Regulations, Part 49, relating to Mine Rescue Teams. But there 

is a provision permitting MSHA to approve alternative mine rescue 

capability for small and remote mines. Markey Mines fits that 

category (§ 49.3). 

Respondent is charged with violating § 49.4. The regulation 

requires, in part, that an alternative rescue capability plan 

shall be submitted to MSHA's District Manager. On the facts 

ll There was no stipulation by the parties concerning MSHA's 

purported reply letter to Mr. Black and it is not evidence in the 

case. 

2675 
there was a technical violation but respondent's good faith and 

minimal negligence are established by his letter to MSHA written 

a month before the citation was issued. But these matters relate 

to the imposition of a penalty and not to whether a violation 

occurred. 

WEST 81-392-M 

Citation 583991 

Respondent: Calvin Black Enterprises 

This citation alleges a violation of 30 C.F.R. § 57.5-39, 

which provides: 

57.5-39 Mandatory. Except as provided by standard 

57.5-5, persons shall not be exposed to air containing 

concentrations of radon daughters exceeding 1.0 WL 

in active workings. 

Since petitioner offered no evidence to support this 

citation an order vacating the citation is proper (Tr. 246). 

Citation 583992 

This citation alleges a violation of the radon daughter 

regulation, § 57.5-39, cited, supra. 

In this case since petitioner offered no evidence, an order 

vacating the citation is proper (Tr. 246). 

CLOSING REMARKS BY 

CALVIN BLACK 

At the conclusion of the hearing Mr. Black made a closing 

statement (Tr. 294-297). I indicated at the conclusion of his 

remarks that they should be addressed to a forum having 

legislative power and not one who has adjudicative authority CTr. 

298). 

However, portions of Mr. Black's remarks do require a reply 

by the judge. 

Mr. Black stated in his remarks that he did not secure 

certain information he requested under the Freedom of Information 

Act (Tr. 296). I note that Mr. Black had not requested any 

information under the Commission's discovery rules. Such a 

suggestion was made by the judge to Mr. Black on December 15, 

1983. (Tr. 11-12, hearing of December 15, 1983). 

Mr. Black's remaining statements in his closing argument are 

not relevant to these proceedings and his allegations as to MSHA 

are not substantiated on the record. 

2676 
Cl Vl L FI l~l.LTIES 

The six criteria for assessing a civil penalty are set forth 

in 30 u.s.c. § 820{i). 

Following the statutory directives I find the following 

facts: in accordance with the stipulation respondent has no adverse history of prior violations for a period of two years. The 

mine is small but so are the proposed penalties. Hence, I feel 

they are generally appropriate. The operator was moderately 

negligent as the violative conditions could have been readily 

corrected. As previously indicated the negligence of the 

operator in connection with Citation 336810 (unsigned escapeway) 

has been overstated. The operator has discontinued its mining 

operations; accordingly, the imposition of a penalty cannot 

affect its ability to continue in business. The gravity of each 

violation is apparent on the facts. Respondent's statutory good 

faith is established by its actions in abating the violative 

conditions. As previously discussed, respondent's good faith has 

been understated in connection with Citation 584356 {rescue 

plan). 

In the following cases, wherein the respondent is Markey 

Mines Incorporated, the following penalties should be assessed: 

Citation No. 

336689 

336810 

336866 

337161 

576708 

576709 

576710 

584354 

584356 

\ 

WEST 80-376-M 

Proposed 

Penalty 

$26 

36 

WEST 

$38 

WEST 

$90 

WEST 

$28 

14 

28 

WEST 

$14 

12 

Disposition 

$26 

18 

80-416 

$38 

80-487 

$90 

81-76-M 

$28 

14 

28 

82-182-M 

$14 

6 

267? 
ID the f ollo~ing cas~ Calvin Black Enterprises is the 

responoent·and all penalties should be vacated. 

Citation Ko. 

:,83991 

583992 

Case No. WEST 81-392-M 

Proposed 

Penalty 

$38 

32 

Disposition 

Vacate 

Vacate 

Bosed on the foregoing findings of fact and conclusions of 

law I 8nter the following: 

ORDER 

1. In WEST 80-376-M the following citations are affirmed 

and penalties assessed therefor: 

Citation No. 

336689 

336810 

Penalty 

$26 

18 

2. In WEST 80-416-M the following citation is affirmed and 

a penalty assessed therefor: 

Citation No. 

336866 

Penalty 

$38 

3. In WEST 80-487-M the following citation is affirmed and 

a penalty assessed therefor: 

Citation No. 

337161 

Penalty 

$90 

4. In WEST 81-76-M the following citations are affirmed and 

penalties assessed therefor: 

Citation No. 

576708 

576709 

576710 

Penalty 

$28 

14 

28 

5. In WEST 82-182-M the following citations are affirmed 

and penalties assessed therefor: 

Citation No. 

584354 

584356 

·2678 

Penalty 

$14 

6 
6. In ~"'EST 81-392-g, ·dier,:::ir1 Cc .. l\'i:-i Bl<:: .. c)~ :Sntcrj.r:i.::...:os is 

the respondent, the following citationB and all proposeo 

penalties therefor are vacated: 

Distribution: 

Citation No. 

583991 

583992 

~~~~inistrative ktJ6:~ Law Judge 

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

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

Mr. Calvin Black, President, Markey Mines Inc., P.O. Box 906, 

Blanding, Utah 84511 (Certified Mail) 

/blc 

267.9 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

NOV 2 '7 1984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

PATRICIA ANDERSON, 

Complainant 

v. 

STAFFORD CONSTRUCTION COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 80-155-DM 

MD 79-267 

Cotter Mill 

DECISION AFTER REMAND 

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

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

for Complainant: 

Mrs. Jackie Stafford, Stafford Construction Company, 

Grand Junction, Colorado, pro ~· 

Before: Judge Morris 

This case involves a complaint of discrimination filed by 

the Secretary of Labor on behalf of Patricia Anderson pursuant to 

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

et seg. Complainant Patricia Anderson alleged the operator 

discriminated against her and thereby violated section 105(c} of 

the Mine Act, 30 u.s.c. § 815(c). 

The case was heard by the undersigned judge who entered an 

order dismissing the complaint, 3 FMSHRC 2177 (1981). The 

Commission subsequently affirmed the judge, 5 FMSHRC 618 (April 

1983). 

Thereafter, on April 20, 1984, the U.S. Court of Appeals for 

the District of Columbia Circuit entered its decision in the 

matter, 732 F.2d 954 CD.C. Cir. 1984). The Court reversed the 

Commission's decision and concluded that Stafford Construction 

Company's discharge of Patricia Anderson violated section lOSCc) 

of the Mine Act, 30 u.s.c. § 815Cc). The Court further remanded 

the case to the Commission "for the award of back pay and other 

remedies, if warranted", 732 F.2d at 962. A certified copy of 

the Court's judgment, in lieu of a mandate, was received by the 

Commission on July 26, 1984. 

2680. 
On August 9, 1984 the Commission remanded the case to the 

judge fol. further proceedings consistent with the Court's 

opinion. 

The judge set the case for a hearing in Canon City, Colorado 

on September 13, 1984. Respondent requested a continuance and 

the hearing on Lhe merits was rescheduled and took place on 

October 11, 1984. 

The parties waived the filing of post trial briefs. 

Issues 

The issues concern whether back pay is due Patricia 

Anderson, and, if so, the amount of the back pay. A secondary 

issue concerns the assessment of a civil penalty against 

respondent. 

Summary of the Evidence 

At this hearing complainant Patricia Anderson reaffirmed her 

previous testimony and indicated she had been terminated by 

respondent on February 9, 1979. Her rate of pay at that time was 

$1,050 per month. She found employment again on June 7, 1979. 

(Transcript at pages 29 and 30, hearing of October 11, 1984). 

Complainant received unemployment compensation of $110 per 

week for 14 weeks from the State of Colorado. Complainant 

further submitted exhibits calculating the back pay and interest. 

These calculations were summarized as follows: 

1st 

2nd 

Backpay Interest Quarter 

Due to 9/13/84 Total 

Qtr 1979 $1,696.10 $1,182.82 $2,878.92 

Qtr 1979 2l277.62 lf 554.22 3!831.84 

Totals $3,973.72 $2,737.04 $6,710.76 

Interest at the current rate of 11% per annum 

C.0003055 daily) will continue to accrue on 

$6,710.76 after 9/13/84 at the rate of $2.05 per day. 

(Exhibit P-A). 

Jackie Stafford, formerly the Secretary/Treasurer for 

respondent, testified that respondent is now defunct, no longer 

exists, and has no officers (Tr. 10, 17). Respondent's 1981 

income tax return shows a negative balance CTr. 22; Exhibit R-C). 

There was a $50,000 cash bond posted at the time of 

company's liquidation. According to Mrs. Stafford, both Tom 

Smith ~nd Steve Smith (complainants whose cases were heard with 

the Patricia Anderson case), received their back pay from that 

bond (Tr. 8-9). 

2681 
Mrs. Stafford further indicated that respondent had a 

$453,000 letter of credit. Rippy Construction Company was 

apparently awarded that asset. Mr. Rippy told Mrs. Stafford that 

any wages due to Patricia Anderson would be paid (Tr. 10, 18). 

The Internal Revenue Service cleared respondent after an 

audit and a criminal investigation (Tr. 13). 

Respondent's exhibits included calculations showing unpaid 

bills totaling $111,732.83. Further, respondent submitted a copy 

of a judg·ment against it and in favor of Rippy Construction in 

the amount of $1,313,561.35. In addition, respondent offered a 

copy of its 1981 Corporation Income Tax return (Exhibits R-A, R-B 

and R-C). 

Discussion 

Respondent's evidence establishes that it is insolvent. 

However, bankruptcy and insolvency of a respondent are insufficient reaso~s to stay proceedings under the Act. Secretary on 

behalf of George w. Heiney et al v. Leon's Coal Company et al, 4 

FMSHRC 572, 574 (1982). 

In connection with an award of back pay, a credibility issue 

arises as to whether Ed Rippy of Rippy Construction paid Patricia 

Anderson her back wages. Mrs. Stafford claims that Rippy stated 

that Patricia Anderson's wages would be "taken care of" (Tr. 18). 

On the other hand, Mrs. Anderson denied that Rippy paid her any 

money. In fact, she had "never heard of that" (Tr. 31). 

I credit Mrs. Anderson's testimony. 

third party paid her. Respondent's claim 

unsupported hearsay. 

She would know if a 

is, at best, based on 

In the presentation of respondent's evidence Mrs. Stafford 

also sought to offer the records that would support respondent's 

reasons for discharging Patricia Anderson. The judge ruled that 

this evidence was not relevant because that issue had been 

decided by the Court of Appeals when it ruled that respondent had 

discriminated against complainant CTr. 24-26). 

Based on the record, complainant is entitled to back wages 

and interest in the total amount of $6,852.21. The interest is 

calculated to the date of the issuance of this decision after 

remand, namely November 21, 1984 (Exhibit P-A). Complainant's 

interest calculations are in accordance with the Commission 

decision of Secretary on behalf of Milton Bailey v. ArkansasCarbona Company and Walker, 5 FMSHRC 2042 (December, 1983). 

2682 
Complainant receiv~d unemployment compensation from the 

State of Colorado for 14 weeks in the am6unt of $110 per week, or 

a total of $1,540. The total award to complainant in this case 

includes said amount but the applicable Colorado statute requires 

complainant to reimburse the State for said amount, section 

8-2-119 C.R.S. 1973. Complainant is, accordingly, directed to 

reimburse the State of Colorado upon collection of the back pay 

due her. 

CIVIL PENALTIES 

The mandate of the Appellate Court encompasses the assessment of a civil penalty against respondent. 

The statutory criteria to be followed in assessing such a 

penalty is contained in section llOCi) of the Act, now 30 u.s.c. 

§ 820(i). It provides, in part, as follows: 

The Commission shall have authority to assess all 

civil penalties provided in this Act. In assessing 

civil monetary penalties, the Commission shall consider 

the operator's history of previous violations, the appropriateness of such penalty to the size of the business 

of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue 

in business, the gravity of the violation, and the 

demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification 

of a violation. 

In considering these factors, I find that the operator has 

no prior adverse history except for the fact that Tom Smith and 

Stephen Smith were discharged in violation of the Act before 

Patricia Anderson was unlawfully discharged. The Secretary 

proposes a civil penalty of $8,000 and while respondent was insolvent at the time of the hearing it had gross receipts in 

excess of four million dollars in 1981 (Tr. 47, 48). Accordingly, the proposed penalty appears appropriate in relation to the 

size of the business of the operator. The operator's negligence 

is not a factor on this record. The assessment of a penalty will 

not affect the operator's ability to continue in business because 

it has already terminated its activities and discontinued 

operations. The gravity of the violation is exceedingly high. 

Patricia Anderson was retaliated against because she refused to 

lie to MSHA investigators. Miners need to know they are 

protected and here the actions by respondent struck at the heart 

of the enforcement of the discrimination provisions of the Act. 

The final factor, statutory good faith, is not an element herein. 

2683 
Considering all of the Etatutory criteria, I consider that a 

civil penalty in the amount of $8,000 is appropriate. 

Based on the entire record, I enter the following: 

ORDER 

1. Complainant Patricia Anderson is awarded and respondent 

is ordered to pay to her the following amounts: 

Back Pay 

Interest 

Total 

$3,973.72 

2,878.49 

$6,852'.21 

2. The interest awarded herein is to the date of the 

issuance of this decision after remand. 

3. Upon collection of the back pay provided in paragraph 1, 

complainant is ordered to reimburse the State of Colorado for the 

unemployment compensation she receiv.ed from the State between the 

time of her discharge on February 9, 1979 and her subsequent 

employment on June 7, 1979. 

4. A civil penalty of $8,000 is assessed against 

respondent. 

Law Judge 

Distribution: 

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

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 (Certified Mail) 

Mrs. Jackie Stafford, Stafford Construction Company, P.O. Box 

1148, Grand Junction, Colorado 81502 CCer~ified Mail) 

/blc 

2£84 
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 CMSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

SOUTHERN OHIO COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

DECISION 

NOV 2 7 1984 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 84-166 

A.C. No. 46-03805-03570 

Docket No. WEVA 84-325 

A.C. No. 46-03805-03585 

CONTEST PROCEEDINGS 

Docket No. WEVA 84-94-R 

Citation No. 2260722; 11/30/83 

Docket No. WEVA 84-96-R 

Order No. 2260729; 12/7/83 

Martinka No. 1 Mine 

Appearances: William M. Connor, Esq. and Mark v. Swirsky, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the Secretary of 

Labor; 

Before: 

David A. Laing, Esq., Alexander, Ebinger, Fisher, 

McAlister and Lawrence, Columbus, Ohio, for the 

Southern Ohio Coal Company. 

Judge Melick 

These consolidated cases are before me pursuant to section 

105(d} of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801, et seq., the "Act", to contest citations and orders 

issued to the Southern Ohio Coal Company CSOCCO) and for review 

of civil penalties proposed by the Mine Safety and Health Administration CMSHA), for the violations charged therein. 

A motion for approval of a settlement agreement was considered at hearing with respect to Docket No. WEVA 84-325. A reduction in penalty from $800 to $700 was proposed for the violation 

charged in Order No. 2260729--a violation of the standard at 30 

C.F.R. § 75.400 for alleged accumulations of loose, dry coal in 

the return air course of the North Main Section. Accumulations 

were found by the MSHA inspector in three different locations and 

2685 
each was eight feet in length, twelve feet in width, and five 

feet high. It is stipulated that in view of the location and 

size of the accumulations, the section foreman should have known 

of their existence and had them removed. Ten employees were considered exposed to the explosion and fire hazard created by the 

accumulations. The Secretary suggested that the small reduction 

in penalty was appropriate in light of the absence of any ignition sources within the cited areas. The nearest source was alleged to have been cables approximately three hundred feet inby. 

Considering the size of the operator, its prior history of violations, and the good faith abatement of the cited condition, I 

conclude that the proposed penalty of $700 is appropriate. I 

therefore approve the settlement proposal. The request of the 

mine operator to withdraw the corresponding contest proceeding, 

Docket No. WEVA 84-96-R, is also approved. 29 C.F.R. § 2700.11. 

The remaining citation at issue, Citation No. 2260722, alleges a violation, under the standard at 30 C.F.R. § 75.1403, of 

a safeguard notice issued at the Martinka No. 1 Mine on September 

14, 1978. The safeguard notice required that all conveyor belts 

in the mine have at least twenty four inches of clearance on both 

sides of the belt. The citation alleged that a clear travelway 

of twenty four inches was not provided along the 1-1 east conveyor belt for a distance of fifteen feet because of water lying ten 

inches deep from rib to rib at the No. 7 stopping. 

The evidence is not disputed that a pool of water fifteen 

feet long did in fact lie in the travelway at the No. 7 stopping. 

According to Inspector Harry Markley, Jr., the water was ten 

inches deep at the one location where he measured it with a steel 

tape and that the ground beneath the water presented a serious 

slipping and stumbling hazard. He observed that the area under 

water was slippery from rockdust and muck and that rock could be 

expected to fall into the walkway. Because of the close proximity of the conveyor belt and its exposed rollers he thought that 

injuries were likely to people traveling through the cited area. 

The belt and its moving rollers were not guarded and preshift 

examiners, belt maintenance men, shift foremen, inspectors, and 

any member of the belt crew carrying supplies were exposed to the 

hazard. Markley opined that the water came from seepage over a 

period of days and he observed that some water had already been 

pumped out of the travelway. 

Joseph Pastorial, chairman of the Union Safety Committee 

accompanied Inspector Markley on his November 30, 1983, inspection. He testified that the water in the pool came within one 

inch of entering his twelve inch high boots. According to 

Pastorial, the water extended from rib to rib for a distance of 

fifteen feet. He observed that the wet f ireclay bottom at that 

2686 
location was very slippery and created a particular hazard because of its location adjacent to the belt structure and rollers. 

Jon T. Merrifield, Safety Director for the Martinka No. 1 

Mine, did not directly contradict the government witnesses. 

Rather he testified only that in the areas he tested, the bottom 

of the pool of water was smooth, firm and not slippery and that 

in the area he measured, the water was not deeper than seven 

inches. It was Merrifield's opinion that even if someone did 

slip in the water it would be unlikely for him to fall into the 

belt because the momentum of the fall would cause him to fall 

forward into the water and not sideways into the belt. Under the 

circumstances, however, it is clear that the terms of the safeguard notice were violated. 

The mine operator nevertheless argues that the citation was 

erroneously issued because conveyor belts carrying coal are not 

within the purview of the safeguard notice provisions of the standard at 30 C.F.R. § 75.1403. The standard provides as follows: 

"[o]ther safeguards, adequate, in the judgment of an authorized 

representative of the Secretary, to minimize hazards with respect 

to transportation of men and material shall be provided." SOCCO 

argues that coal is not a "material" within the scope of the 

cited standard and that accordingly the safeguard notice herein 

was issued without a proper legal foundation. In furtherance of 

its position it cites the decision of Commission Judge Koutras in 

Monterey Coal Company v. Secretary, 6 FMSHRC 424 (1984). 

Whether or not coal is a "material" is in any event irrelevant since it is clear that the safeguard standard applies as 

well to minimizing hazards associated with the transportation of 

men and materials by foot, in this case miners traveling along 

the walkway adjacent to the moving conveyor belt. Accordingly 

the safeguard notice was within the statutory and regulatory authorization under 30 C.F.R. § 75.1403. 

SOCCO argues, secondly, that even if the condition cited 

herein was hazardous it did not come within the safeguard notice 

alleged to have been violated. The safeguard provides as 

follows: 

A clear travelway at least 24 inches along the no. 1 

conveyor belt was not provided at three (3) locations, 

in that there were fallen rock and cement blocks. 

All conveyor belts in this mine shall have at least 

24 inches of clearance on both sides of the conveyor 

belt. 

2687 
This is a notice to provide safeguards. 

It maintains that the safeguard should be strictly construed and 

that accordingly should be held to apply only to "tripping and 

stumbling" hazards and not to the slipping hazard allegedly presented by the cited pool of water. However even assuming that 

safeguards are to be strictly construed there is ample credible 

evidence in this case that the cited pool of water presented a 

tripping and stumbling as well as a slipping hazard. Even though 

"fallen rock", "cement block", and other similar debris may not 

have been found in the water, it may reasonably be inferred from 

the evidence that such debris could very well come to rest under 

the water from the adjacent ribs. 

SOCCO also argues that the safeguard requires only "24 

inches of clearance" and that such clearance was provided in this 

case in spite of the presence of water. As the Secretary points 

out, however, the essence of the safeguard is that a "clear travelway [of] at least 24 inches" must be provided. The travelway 

cited herein was not clear in that it was obstructed by a pool of 

water some 10 inches deep, 15 feet long, and extending from rib 

to rib. SOCCO's arguments are accordingly rejected and the citation is upheld. 

I find, moreover, based on the undisputed facts that a serious falling hazard existed as a result of the cited conditions 

and that with only a 24-inch clearance between the rib and walkway and the exposed rollers on the adjacent conveyor there was an 

added grave hazard from pinch points. Serious injuries and even 

fatalities were reasonably likely and under the circumstances the 

violation was also "significant and substantial". Secretary v. 

Mathies Coal Company, 6 FMSHRC 1 (1984). From the undisputed 

evidence, I also find that this serious hazard was the result of 

operator negligence in failing to correct conditions that were 

undoubtedly known but which in any event should have been observed during the required preshift examination. In determining 

the amount of penalty herein, I have also considered that the 

operator is large in size and abated the cited violation within 

the prescribed time. The operator has a considerable history of 

violations and indeed had previously been cited for the same violation as charged herein based on similar circumstances. 

Order 

Citation No. 2260722 and Order No. 2260729 with their attendant findings are upheld. The Southern Ohio Coal Company is 

Ordered to pay the following civil penalties within 30 days of 

the date of this decision: 

2688 
Docket No. WEVA 84-166 (Citation No. 2260722) $300 

Docket No. WEVA 84-325 (Order No. 22 0729) 700 

Contest Proceedings Dockets No. and WEVA 

84-96-R are Dismissed. 

! 'I 

i ' / 

'- . .--· 

dge 

Distribution: 

Mark v. Swirsky, Esq., Office of the Solicitor, U.S. Department 

of Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

David A. Laing, Esq., Alexander, Ebinger, Fisher, McAlister & 

Lawrence, 17 South High Street, Columbus, OH 43215 (Certified 

Mail) 

/nw 

2689 
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. 

JIM WALTER RESOURCES, INC., 

Respondent 

NOV 2 8 1984 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 84-66 

A.C. No. 01-01247-03585 

Docket No. SE 84-67 

A.C. No. 01-01247-03586 

ORDER AFTER REMAND 

The captioned matter has been remanded for consideration 

of the operator's request that the trial judge's decision 

approving settlement be corrected so as to reflect the fact 

that the motion to approve settlement related only to Docket 

No. 84-66. 

Accordingly, it is ORDERED that the decision of October 19, 

1984, approving settlement of the captioned matters be, and 

hereby is, AMENDED to show that only in the case of Docket No. SE 

86-66 was settlement approved. It is FURTHER ORDERED that the 

decision approving settlement in Docket No. 84-66 be, and 

hereby is, CONFIRMED and that the operator pay the amount of 

the settlement agreed upon, $150, on or before Friday, 

December 14, 1984. Finally, it is ORDERED that pursuant to 

the parties stipulation to waive a hearing and submit Docket No. 

SE 84-67 for determination on the basis of the facts stipulated, 

said docket be, and hereby is, and jurisdiction retained 

to decide the matter de novo. 

Distribution: 

Joseph B. Kennedy 

Administrative Law 

George D. Palmer, Esq., Office of the Solicitor, U.S. Department of Labor, 1929 Ninth Avenue South, Birmingham, AL 35256 

(Certified Mail) 

R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. Box 

C-79, Birmingham, AL 35283 (Certified Mail) 

/ejp 

2690 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

NO\/ 29 1\984 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

S. M. LORUSSO & SONS, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 84-5-M 

A.C. No. 19-00076-05502 

West Roxbury Crushed Stone 

DECISION APPROVING SETTLEMENT 

Before: Judge Merlin 

The Solicitor has filed a motion to approve settlements 

for the two violations involved in this matter. The 

originally assessed amounts totalled $196 and the proposed 

settlements are for $150. 

One citation was issued for failure to guard a tail 

pulley. The Solicitor proposed a settlement for the 

original amount of $98. I find this settlement satisfies 

the statutory criteria. 

The second citation was issued for failure to wear 

protective footwear. The Solicitor has explained why the 

operator's negligence was less than originally thought. 

The original assessment was for $98 and the proposed settlement is for $52. I accept the Solicitor's explanation and 

approve the settlement, but the operator should realize it has 

the responsibility to implement its safety policies, including where appropriate, disciplining employees who defy them. 

The operator is ordered to pay $150 within 30 days of 

the date of this decision. 

~c...l Paul Merlin 

Chief Administrative Law Judge 

2691 
Distribution: 

David L. Baskin, Esq., Office of the Solicitor, U.S. 

Department of Labor, John F. Kennedy Federal Building 

Government Center, Boston, MA 02230 (Certified Mail) 

Malcolm Dawson, S. M. Lorusso & Sons, Inc., 331 West Street, 

Walpole, MA 02081 (Certified Mail) 

/fb 

' 2892 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 30, 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 84-49 

A. C. No. 36-00970-03537 

v. 

Maple Creek No. 1 Mine 

UNITED STATES STEEL MINING 

COMPANY, INC., 

Respondent 

DECISION 

Appearances: Thomas Brown, Esq., Office of the Solicitor, 

U. S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Before: 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for U. S. Steel Mining Company, Inc., 

Respondent. 

Judge Merlin 

This case is a petition for the assessment of civil 

penalties filed under section llO(a) of the Act by the Secretary of Labor against U. S. Steel Mining Company, Inc., for two 

alleged violations of the mandatory safety standards. 

The hearino was held as scheduled and documentary exhibits 

and oral testim~ny were received from both parties. At the conclusion of the hearina, the parties were directed to file written 

briefs simultaneously within 21 days of receipt of the transcript. 

The briefs were filed and have been reviewed together with the 

transcript. 

The mandatory standard involved in each violation is section 

302(a) of the Act, 30 U.S.C. § 862(a), 30 C.F.k. § 75.200 

which orovides as follows: 

Each operator shall undertake to carry out on 

a continuin9 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 of all active underoround 

roadways, travelways, and working places 

shall be supported or otherwise controlled 

adequately to protect persons from falls of 

2693 
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. 

Citation No. 2104531 

Citation No. 2104531, dated May 24, 1983 sets forth the 

alleged violative condition or practice as follows: 

During the course of a fatal roof fall accident investigation it was revealed that 

there was a violation of safety precaution 

No. 3 of the operator's approved roof control pl~n dated 2/10/83. The violation occurred 

in the face area of No. 6 room and No. 20 

split intersection. Two mining surveyors 

were approximately 26 inches and 36 inches 

inby permanent root supports on the 20 split 

side and approximately 11' 311 and 6 1 911 on 

the 6 room side, under unsupported roof. The 

roof control plan requires that only those 

persons engaged in installing temporary supports shall be allowed to proceed beyond the 

last row of permanent supports until temporary supports are installed. The violation 

occurred in 7 flat Broom right 006 section. 

Note - this citation will not be terminated 

until the area involved is permanently supported and all employees (underground) are 

reinstructed in No. 3 safety precaution of 

the approved plan. 

2694 
Mr. Glenn Ward and Mr. Nathan Klinaensmith were engineers or 

underground plan coordinators who insta~l~d spads and s~te lines 

so that entries and crosscuts would be driven straight and at 

oroper angles (Tr. 9). Mr. Klingensmith was Mr. Ward's assistant 

(Tr. 23-24). On the morning in question the mine foreman, 

Mr. Earl Walters, assigned them to install site spads at various 

locations in the mine includina the No. 20 split at the 

intersection of the No. 7 room-(Tr. 16, 30, 34). 

When Mr. Ward and Mr. Klinaensmith arrived on the section 

they saw the section foreman, M~. Walter Franczyk who was 011 the 

telephone at the time (Tr. 30-31, 34). They said hello to the 

section foreman but kept on qoing and did not stop (Tr. 36-37, 

53). However, instead of going to the intersection of the 

20 split and No. 7 room, they went to the intersection cf the 

20 split and No. 6 room (Tr. 26). None of the witnesses could 

explain why the engineers went where they did (Tr. 26, 29). When 

the engineers arrived at the 20 split and 6 room intersection, 

the continuous miner operator helper told them the root was bad 

(Tr. 31). Mr. Klingensmith replied but his response was 

unintelligible (Tr. 31). Mr. Klingensmith then went beyond the 

last row of roof bolts and out under unsupported roof where he 

installed site spads (Tr. 31-32). He was under unsupported roof 

for five to ten minutes (Tr. 10-11, 31). The continuous miner 

machine was then repositioned and some loose coal was cleaned up 

(Tr. 31). Mr. Ward asked that the machine be left where it was 

at the face (Tr. 32). He then went out under unsupported roof 

and climbed up on the machine. Mr. Klinqensmith also went out 

under the unsupported roof and was ~ither beside the machine or 

climbing up on it when the roof fell killing both men (Tr. 32). 

The operator does not dispute that both men were under unsupported roof when they were killed and that their actions 

violated the roof control plan which prohibits anyone fro~ proceeding beyond the last row of permanent roof supports except for 

the purpose of installing temporary supports. Nor is there any 

dispute that the decedents were negligent in going beyond 

supported roof in violation of the roof control plan. 

At issue is whether under the circumstances presented the 

operator also should be found nealiaent for the actions of its 

employees. In determining the a~ou~t of civil penalty to be asses~ed against an operaior, consideration of a foreman's action 

is proper. Even where non-supervisory employees are involved, 

the operator is not necessarily shielded from imputations of 

negligence. AH Smith Stone Co., 5 FMSHRC 13 (1983). In such a 

case it is necessary to look to such considerations as the 

foreseeability of the miner's conduct, the risks involved, and 

the operator's supervision, training and discipline of its 

employees to prevent violation of the standard in issue. 

2695 
In this ·case the section foreman knew that the decedents 

were on his section. Indeed, he saw them when they arrived. He 

was on the telephone and they said hello to him. He did not however, stoo them to ask where they were qoina and what they were 

doing. I accept the testimony of the MSHA inspector that the 

section foreman is responsible for the safety of everyone en his 

section (Tr. 15, 24-25, 38). The section foreman himself 

specifically admitted this (Tr. 58). This being so, the section 

foreman was negligent in not stopping the decedents to find 

out their destination and what they were goino to do. People 

cannot come and go as they please in an underground mine. It is 

simply too dangerous. It was espRcially Jangerous here where the 

foreman, continuous miner operator and mine helper all knew the 

roof in the area was bad. The section foreman has the authority 

and responsibility to control what is happening on his section. 

He must exercise that authority and meet that responsibility. If 

he does not, he is negligent, as he was in this case. Under such 

circumstances the section foreman's negligence is attributable to 

the operator. The violation was very serious since it bore a 

direct causal relationship to the two fatalities. 

A penalty of $7,500 is assessed. 

Citation 2104532 

Citation No. 2104532, dated 5/24/83, sets forth the alle9ed 

violative condition or practice as follows: 

During the course of a fatal roof fall accident investigation it was revealed that 

there was a violation of drawing No. 1 of the 

operator's approved roof control plan dated 

2/10/83. The violation occurred during 

mining of the face of No. 6 room from No. 20 

split, 7 to 6 room in 7 flat right 8 room 

right (006) section. After completion of 

mining sequence No. 3 a second temporary roof 

support was not installed on the canvas side 

(left side) as required by the approved roof 

control plan. 

Drawing No. 1 of the operator's roof control plan entitled 

"Temporary Support During Mining" sets forth the mining sequence 

and the installation of temporary roof supports. The record is 

uncontradicted that the second temporary roof support was not 

installed when it should have been in the mining sequence (Tr. 

68, 111-112). This constituted a violation of Drawing No. 1 of 

2696 
the plan and therefore a violation ot the mandatory standard. 

ThE ooerator 1 s argument that Drawing No. 1 shodld not be applied 

to this case must be rejected. I recoanize that the intersection 

was open so that ther~ were not two soiid walls of coal on the 

sides of the No. 6 room. However, I tind persuasive the MSHA 

ins;:>ector 1 s testimony that the row of permanent supports ( 11 c 11 on 

Operator's Exhibit No. 3) is analogous to or takes the place of a 

rib such as is indicated on Drawinq No. l (Tr. 102-103). Moreover, I am not willing to adopt an- interpretation of the roof 

control plan that would leave no guidelines or requirements for 

the routine drivinq of an intersection such as occurred here. Finally~ the fact ihat the first roof support was installed in 

accordance with,Drawing No. 1 shows that the miners themselves 

believed that Drawing No. 1 was applicable. Drawing No. 23, 

referred to by the operator is irrelevant because it is based 

upon methods of ventilation advancement and gas testing which 

everyone agreed were not present here (Tr. 79, 122). 

The roof control plan is the operator's plan. If the 

operator believes it does not specifically cover a particular 

situation, especially a common one like this case, it can amend 

its plan and seek approval from MSHA. Here, the conclusion is 

unescapable that both the operator and MSHA believed Drawing 

No. 1 applied but that after the fatality occurred, the operator 

attempted to argue that nothing applied. This position is not 

persuasive. Moreover, ad hoc revisions of a plan by an 

Administrative Law Judgeona case-by-case basis should be 

avoided. In light ot the foregoing, I tonclude that a violation 

existed. 

I accept the evidence which shows that the missing jack was 

designed for roof support. The absence of such a jack in an area 

of poor roof was serious and, meets the criteria adopted by the 

Commission for the finding of a significa~t and substantial 

violation. U. S. Steel Mininq Co., Inc., 8 FMSHRC 1834 (1984); 

U • S • S t e e 1 i"I i n i n q C o • , I n c • , 8 f I'll S H R C 1 8 6 6 ( 1 9 8 4 ) • T h e 

Secretary's proof however, falls short of showing a causal link 

between the absent bolt and the fall that occurred since the 

inspector would only say, with visible reluctance, that it was 11 possible 11 that the additional bolt wodld have prevf.nted the 

actual fall (Tr. 110-111). The inspector believed such a link 

was speculative (Tr. 110). The bolt would have been at the edoe 

of the fall area which is where the fall should have been - expected to break oft even if a bolt had been installed 

(Tr. 111-112). 

2697 
The inspector testified that the operator was negligent in 

not having the approved roof control plan followed (Tr. 70-71). 

As set forth above, the Commission has held that the fact that a 

violation was committed by a non-supervisory emplovee does not 

necessarily shield an operator from being deemed negligent. In 

such a case, the Commission has said that consideration must be 

aiven to the foreseeability of the miner's conduct, the risks 

involved, and the operator's supervising, training, and 

disciplining of its employees to prevent violations of the 

standard in issue. A. H. Smith Stone Company, supra. The 

Solicitor did not address himself to any ofthese issues and the 

record is silent as to them. Old Dominion Power Company, 

8 FMSHRC 1866, 1895-6 (1984). The Solicitor has failed to meet 

his burden on these factors. Accordinqly, I find the operator 

not negligent. 

A penalty of $350 is assessed. 

ORDER 

Citations 2104531 and 2104532 are both AFFIRMED. 

In liaht of the foregoing, the operator is hereby ORDERED to 

pay $7,850-within 30 days from the date of this decision. 

- Paul Merl in 

Chief Administrative Law Judge 

Distribution: 

Catherine Oliver-Murphy, Esq., Oftice of the Solicitor, U. S. 

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

Street, Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., United States Steel Mining Company, 600 

Grant Street, Room, 1580, Pittsburgh, PA 16230 (Certified Mail) 

/gl 

2698 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 2204i 

RUSHTON MINING COMPANY 

Contestant 

CONTEST PROCEEDING 

NOV 30 84 

v. 

Docket No: PENN 85-44-R 

Order No: 2255375; 11/1/84 

Rushton Mine 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

Appearances: Joseph T. Kosek, Esq., Rushton Mining 

Company, Ebensburg, Pennsylvania for 

Contestant 

Before: 

Robert A. Cohen, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for Respondent 

Judge Moore 

This case was heard on an expedited basis because of 

Rushton's allegation that the way MSHA was requiring it 

to comply with its self-contained self-rescue device 

storage plan created a serious hazard to the miners. 

The case involves differences of opinion and interpretation 

rather than disputed facts. 

Contestant's self-contained self-rescue device storage 

plan (Respondent's exhibit 4, consisting of eight letters) 

requires, among other things, that: 

"the storage area for sections shall be in 

the designated intake escapeway or in intake 

air adjacent to and connected to the 

designated intake escapeway". 

(See letter of July 6, 1982). Respondent interprets that 

provision as allowing it to designate as the storage area 

the inby end of the track in the trolley haulage entry which 

2699 
is on intake air and which is a designated escapeway. MSHA 

interprets the provision as requiring storage in the No. 5 

entry which it argues is the main intake air entry and designated 

escapeway or in the No. 4 entry which is also intake air and 

adjacent to a designated escapeway. 

Operator's exhibits 2 and 3 and Respondent's exhibit 5 

are all maps of the section in question and the face area 

is at the tops of the maps. The No. 1 entry to the left is 

return air. The No. 2 entry is the trolley haulage entry for 

men and supplies and is also on intake air and is a designated 

escapeway. No. 3 entry is the belt haulage entry which is also 

on intake air. No. 4 and 5 entries are intake air, No. 5 

being the other designated escapeway. 

The mine consists of five sections and the company's 

method of complying with its plan is to designate the 

trolley haulage (or track entry) as an escapeway, arrange 

to have it on intake air and store the self-contained 

self-rescue devices in the portabus at the inby end of 

the track. The five sections are not identical as to 

which entry is the track entry, and which is the belt entry, 

etc. They are the same to the extent that no matter what 

section a miner is working in he knows that the self-contained 

self-rescue devices are located at the inby end of the 

track entry, the entry by which he reached the face at 

the beginning of his shift. Under MSHA's interpretation of 

the plan Rushton can continue to use the portabus at the inby 

end of the track as a storage area in three of the sections 

but in two of the sections including the S-3 2nd south mains, 

Section No. 3, the section at which the citation was issued, the 

storage area would have to be in a different place. The 

operator contends that this would cause confusion among 

the miners in an emergency and that removing the self-rescue 

self-contained device from the portabus and transporting 

them to the newly designated storage areas increase the 

chance of damaging and rendering useless these self-contained 

self-rescue devices. There is a red button on the device, 

which if hit will open it and start the gas flowing. At the 

end of an hour it would be useless. 

-Tlie self-contained self-rescue devices involved herein, 

unlike the ordinary self-rescue device, is not small. It 

is bigger than a football and weighs about eight pounds. 

The coal seam is 39" high and in order to comply with the 

citation the miner would have to take his device off of 

the portabus and either have it transported by a tractor 

or carry or drag it several hundred feet. The only factual 

dispute that arose during the trial, was that the superintendent 

said that the inspector required that the storage location 

be in the second break outby the face, whereas the inspector 

himself said that it could be anywhere in entry No. 4 within 

2700 
a thousand feet from the face. In any event, transportation 

of the self-rescuing devices would be required twice on 

every shift. !_/. 

Mine Superintendent Roeder, who has a B.S. in mining, 

testified that damage to the self-contained self-rescue 

device was more likely if it had to be removed from the 

portabus arid transported for a certain distance in 39" coal. 

He testified that he would expect the men in an emergency 

to come out the track entry since they knew it so well 

and the track escapeway was clearly marked. Also, there 

is a telephone in that entry. Mine safety inspector Crane 

said the inspector made him put the storage area in the 

No. 4 entry near the face and that miners sometimes at 

quitting time forgot to go into that entry to pick them 

up but headed straight for the portabus. 

Mr. Hollen was a roof bolter operator. He was 

chairman of the United Mine Workers of America mine safety 

and health committee and had been so for four years. He 

had 21 years experience in mines and approved the operator's 

original storage area in the portabus for the self-contained 

self-rescue devices. The new location required for 

termination of the Order No. 2255375 caused confusion, he 

said. In handling the device, if you bumped the red spot, 

the device would come open and would be no good thereafter. 

He also said that in the face area there was no safe place 

to store them where a scoop or tractor might not run over 

them. He also said that as an escapeway, he would prefer 

the track entry. Another member of the United Mine Workers 

of America was Mr. Davidson, a belt examiner. He had 14 

years experience in mining and was vice-president of the 

local union and chairman of the mine committee. He did 

not agree with the MSHA order and thought that the less you 

moved the self-contained self-rescue device the better. 

Mr. Baker, another union member, was a motorman with 12 

years experience in the mines. He preferred the former 

storage area in the portabus. He said that miners were 

concerned and confused by the storage area required by MSHA. 

They want to do down to the dinner hole, which is in the 

track entry, and escapeway but are afraid that in an 

emergency they will forget to go to No. 4 entry to pick up 

their self-contained self-rescue devices. Mr. Jury, a 

roof-bolter helper, has 12 years experience in the mines. 

He is a member of the mine safety and health committee, 

and he does not agree with MSHA's directions in this case. 

1/ The self-contained self-rescue device costs about $500 

and if the operator had been willing to supply two selfcontained self-rescue devices for every miner, one device 

could remain on the portabus, and one could remain in the. 

storage area so as to avoid transportation twice on each 

shift. MSHA has not suggested that the operator should be 

required to buy two such devices for each miner. 

2701 
He said the action taken to terminate the order caused 

too much handling of the devices and confusion as to their 

location. He saw no benefit in keeping the devices closer 

to the face. Near the close of the hearing, the inspector 

was recalled to the stand and disagreed with the concerns 

expressed by the various miners and other witnesses for 

the company. 

Section 75.1704 of Title 30 of the Code of Federal 

Regulations requires that a mine contain at least two separate 

escapeways one of which must be on intake air. Section 

75.1707 of Title 30 CFR requires that in any working section 

opened after March 30, 1970, the escapeway that is required 

to be on intake air shall be separated from the belt and 

trolley haulage entries. As I interpret these sections, 

if one of the two required escapeways was on return air, 

then the escapeway on intake air could not be either a 

haulage track or belt haulage entry. From this., MSHA 

apparently, and it was not too clear at the trial, concludes 

that the escapeway which is not on a track entry or a belt 

entry, but is on intake air, is the "main" escapeway. 

There is no doubt that the MSHA off ice intended that the 

term "designated intake escapeway" in the July 6, 1982 

letter mean an intake escapeway other than a track entry 

or a belt entry. But nevertheless item No. 2 in the 

July 6, 198s letter, states, and I will repeat "the 

storage area for sections shall be in the designated intake 

escapeway or in intake adjacent to and connected to the 

designated intake escapeway". In this case both designated 

escapeways were on intake air, and I hold that the storage 

area could have been in either designated intake escapeway 

or in intake air adjacent to and connected to a designated 

intake escapeway. 

As to the safety of the storage area required by MSHA, 

it is also a matter of opinion. Four experienced miners 

and two experienced supervisors testified as to the 

preference, from a safety standpoint, for having the devices 

in the portabus at the end of the track in the track entry. 

All stated that they thought that any handling of the devices 

increased the chance of their being rendered inoperative. 

Inspector Klemick thought their fears were unfounded and he 

is also an experienced inspector. The miners carried normal 

(not self-contained} self-rescue devices at all times and these 

would protect them for up to one hour and would certainly 

last for the ten to fifteen minutes it would take to get to 

the portabus where the self-contained self-rescue devices 

were stored. There is no way of knowing who has the correct 

opinion, but when six experienced miners testified that a.certain 

way aaf. doing some.thing is hazardous and another way of doing 

2702 
it is safe, I have to go along with them and hold that the 

storing of self-contained self-rescue devices in the portabus 

in the track entry is safer than storing them in a different 

entry in two of the five sections. 

The ORDER is VACATED and the case is DISMISSED. '?:J. 

Distribution: 

~e CJn~ti, Charles c. Moore, Jr. 

Administrative Law Judge 

Joseph T. Kosek, Esq., Rushton Mining Company, P.O.B. 367, 

Ebensburg, PA l5931 (Certified Mail) 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 (Certified Mail) 

Mr. Lemuel Hollen, Chairman-UMWA Safety Committee, Local 1520, 

c/o Rushton Mining Company, P.O.B. 589, Philipsburg, PA l6866 

(Certified Mail) 

2/ I reject the company's argument that an order can 

not be modified after termination. I respectfully disagree 

with Judge Sweeney's opinion to the contrary. 

/db 

2703