i 

December 2022 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

12-20-22 CONSOL PENNSYLVANIA COAL 

COMPANY, LLC 

PENN 2019-0094 Page 691

COMMISSION ORDERS 

12-06-22 PERRY COUNTY RESOURCES, 

LLC 

KENT 2022-0024 Page 703

12-06-22 GREENBRIER MINERALS, LLC WEVA 2022-0403 Page 706

12-07-22 BLUESTONE OIL CORPORATION WEVA 2022-0176 Page 709

12-12-22 GENESIS ALKALI, LLC WEST 2022-0189 Page 713

12-15-22 RULON HARPER CONSTRUCTION, 

INC. 

WEST 2022-0249 Page 717

12-16-22 APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC 

WEVA 2022-0301 Page 721 

08-30-22 SEC. OF LABOR O/B/O ALVARO 

SALDIVAR v. GRIMES ROCK, INC. 

(previously unpublished) 

WEST 2021-0178-

DM 

Page 725

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-01-22 SEC. OF LABOR and JASON 

HARGIS v. VULCAN 

CONSTRUCTION MATERIALS, 

LLC 

SE 2022-0001 Page 733
ii 

12-05-22 CONSOL PENNSYLVANIA COAL 

COMPANY, LLC 

PENN 2021-0118 Page 767

12-13-22 SEC. OF LABOR O/B/O MOSES 

ORTIZ v. MARIO SINACOLA & 

SONS EXCAVATING INC. AND ITS 

SUCCESSORS 

CENT 2022-0028-DM Page 779

12-13-22 APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC, 

WEVA 2022-0301 Page 801

12-13-22 APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC 

WEVA 2022-0428 Page 816
iii 

Review Was Granted In The Following Cases During The Month Of 

December 2022 

Secretary of Labor v. Bluestone Oil Corporation, Docket Nos. WEVA 2022-0176, et al. 

(IR Judge Young, 10/31/2022) 

Secretary of Labor v. Perry County Resources, LLC, Docket No. KENT 2022-0024 

(PIR Judge Moran, 11/04/2022) 

Secretary of Labor v. Greenbrier Minerals, LLC, Docket No. WEVA 2022-0403 

(IR Judge Young, 11/22/2022) 

Secretary of Labor v. Genesis Alkali, LLC, Docket Nos. WEST 2022-0189, et al. 

(IR Judge Miller, 12/07/2022) 

Secretary of Labor v. Rulon Harper Construction, Inc., Docket Nos. 

WEST 2022-0249, et al. (IR Judge Miller, 12/12/2022) 

Review Was Denied In The Following Cases During The Month Of December 2022 

Secretary of Labor v. Appalachian Resource West Virginia, LLC, Docket Nos. 

WEVA 2022-0301, et al. (IR Judge Moran, 12/13/2022) 

Haskell Addington v. XMV, Inc., Docket No. WEVA 2022-0114 

(Judge Paez, 11/08/2022) 

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

December 20, 2022 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

 CONSOL PENNSYLVANIA 

COAL COMPANY, LLC 

Docket No. PENN 2019-0094 

 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

DECISION 

 

BY THE COMMISSION: 

This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018) (“Mine Act” or “Act”). At issue is whether the Administrative Law Judge 

erred in affirming a citation issued by the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) to Consol Pennsylvania Coal Company, LLC (“Consol”). 

The citation alleges that Consol failed to locate its emergency lifeline “in such a manner 

for miners to use effectively to escape,” in violation of 30 C.F.R. § 75.380(d)(7)(iv).1 Sec. Ex. 2 

(Citation No. 9076458). The citation further states that the lifeline was “located directly above 

[several hydraulic] hoses.” Id. The citation was designated as being significant and substantial 

(“S&S”).2

In affirming the citation, the Judge found that the evidence in the record established the 

violation under the language of section 75.380(d)(7)(iv) and Commission caselaw. 43 FMSHRC 

120 (Mar. 2021) (ALJ). The Judge also affirmed the S&S designation associated with the 

citation, reiterating several of the same facts supporting the existence of the violation. Id. at 133-

35. Consol filed a petition seeking discretionary review of the Judge’s decision, which the 

Commission granted. For reasons set forth below, we affirm the Judge’s decision. 

1

 Section 75.380(d)(7)(iv) states that “[e]ach escapeway shall be . . . [p]rovided with a 

continuous, durable directional lifeline or equivalent device that shall be . . . [l]ocated in such a 

manner for miners to use effectively to escape.” 30 C.F.R. § 75.380(d)(7)(iv). 

2

 The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), 

which distinguishes as more serious any violation that "could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard." 30 U.S.C. § 814(d)(1). 

44 FMSHRC Page 691
I.

Factual and Procedural Background 

A. Factual Background 

Consol operates the Harvey Mine, a bituminous coal mine located in Pennsylvania. On 

February 21, 2019, MSHA Inspector Joseph Vargo conducted his inspection at the mine. He 

traveled to the 5A longwall alternate escapeway, via the number two track entry. Id. at 122; 

Tr. 27, 32. The entry is the fastest route out of the section and is traversed daily by three shifts of 

miners traveling to and from the 5A longwall. Tr. 68-69. It contains a directional lifeline for 

miners to use in the event of an emergency. At the time of the citation, Vargo counted ten miners 

working in the area. Tr. 66-67. 

Vargo took issue with the fact that the lifeline was hung directly over nine hydraulic 

hoses, creating what he deemed to be a slipping and tripping hazard. Tr. 33, 39. The hydraulic 

hoses extended out of a pump car (through a manifold), which had been parked in the 47 1⁄2 

crosscut for eight days.3

 Tr. 33, 39, 69-71. 

According to Vargo, the hoses extended into the crosscut, blocking the route of the 

lifeline. Tr. 33, 40. The longest hose extended 43 inches laterally into the path of the escapeway. 

Sec. Ex. 2 (Vargo’s notes), at 3, 5-6; Tr. 43. He measured the heights of the hoses as ranging 

from 14 to 38 inches (more than three feet) above the mine floor. Consol’s witnesses did not 

dispute these measurements. Tr. 199. 

The witnesses all testified that the hydraulic hoses would eventually droop down towards 

the mine floor and that Consol would typically place either rock dust bags or a metal ramp, if not 

both, on top of the lowered hoses to level out the walking surface. Tr. 46-47, 94-95, 100, 102. In 

this scenario, however, only rock dust bags were used where the hoses met the mine floor. 

The lifeline was hung from the roof down the middle of the walkway. Tr. 167-68. The 

lifeline would be attached to roof bolts at various distances, using plastic art clips and zip ties, 

which would break away in an emergency. The flexible extensions were attached to the roof with 

an “S” hook. Tr. 168. When the lifeline was stored, it was held up about one foot from the roof 

by quick-release tension clips or zip ties. Tr. 54, 272. 

The lifeline could be pulled diagonally from clips on the roof, with slack that permitted it 

to stretch out to 54 inches, due to its nylon-based flexibility. Sec. Ex. 2, at 5; Tr. 55, 57-58. The 

extensions were similar to a “bungee cord” except that when the lifeline was not in use, it would 

coil up like an old phone cord. Tr. 168. When deployed, the flexibility of the system was 

intended to allow miners to navigate past and around the hydraulic hoses and the pump car. 

Tr. 54-55, 272. 

3

 The pump car was part of the longwall “mule train,” which is a series of track-mounted 

cars. Tr. 36-37. It provides the electrical, emulsion and rock dust needs of the longwall, which 

are essential to its operations. Tr. 177, 246-47. See also CP Ex. 8A-8D (photographs of the 

hydraulic hoses, taken by Consol after the lifeline was removed). 

44 FMSHRC Page 692
Vargo acknowledged that, in addition to the miners being able to extend 54 inches due to 

the lifeline’s flexibility, the length of the miners’ arms (approximately 18-24 inches) would 

afford them additional flexibility while still maintaining contact with the lifeline. Tr. 97. Troy 

Hellen, the mine’s Respirable Dust Coordinator, testified that, at the area where the citation was 

issued, miners “would never have to [let] go of the lifeline.” Vargo testified, however, that even 

with the lifeline’s extensions, there was still a slip, trip, and fall hazard underfoot from the hoses 

and the existence of uneven rock dust bags. Tr. 57-58, 100. 

Vargo issued the citation in question, which alleged that the lifeline’s location failed to 

allow miners to effectively escape in the event of an emergency.4 Tr. 34, 48. He noted that it was 

reasonably likely that a miner would trip and fall over the hoses, potentially creating a “domino 

effect” in which other miners behind would also fall, possibly dropping their self-rescuers or 

hitting other objects in the process. Tr. 59-60; 63. He believed that miners would be walking 

quickly and may not be able to see where they are going, particularly in the event of smoke. Tr. 

64. Vargo expressed specific concern about miners having difficulty maneuvering in a smokefilled environment because their headlamps, flashlights, and reflectors would not help with such 

limited visibility. Tr. 64. Both Hellen and Consol Safety Inspector Chase Shaffer acknowledged 

that such limited visibility would create difficulty seeing obstacles in the mine. Tr. 187; 222; 

250-51. Vargo concluded that a slip, trip, and fall hazard therefore existed, which was reasonably 

likely to cause injuries, including bruises, dislocations, sprains, lacerations, and contusions, with 

at least one person affected. Tr. 62-63. 

Hellen acknowledged that he had received internal injury reports at the mine stating that 

in two recent prior instances, a slip, trip, and fall hazard had occurred, which had led to a twisted 

ankle in one scenario and the need for three stitches in the other. Tr. 203-204. The mine’s history 

of assessed violations showed 230 violations in the 15-month period prior to the issuance of the 

citation. Sec. Ex. 4. The Judge characterized seven of those violations as involving a “similar 

standard.”5

 43 FMSHRC at 136. No other conditions were cited along the primary and secondary 

escapeways when the citation was issued. The mine was on a five-day spot inspection for 

methane. Tr. 25-27; 30 U.S.C. § 813(i). 

Vargo testified that the condition had existed for eight days prior to the citation. Tr. 70. 

He found that three shifts of miners would have traveled through the number two track entry up 

and back each day while the condition existed. Tr. 69. MSHA proposed a penalty of $768. 

 

4

 The citation alleged that “[t]he continuous durable directional lifeline located at 471⁄2 

crosscut No. 2 track entry in the 5A operating longwall section MMU 001-0 is not located in 

such a manner for miners to use effectively to escape.” Sec. Ex. 2. 

5

 The Judge did not define what was meant by the phrase “similar standard,” nor did the 

decision identify which violations might meet that criteria. The certified Violations History 

Report revealed that Consol was cited for one violation of 30 C.F.R. § 75.380(d)(7)(iv) (the same 

lifeline standard at issue here), as well as one violation of 30 C.F.R. § 75.380(d)(1) (requiring 

maintenance of the escapeway to avoid tripping hazards). Sec. Ex. 4. 

44 FMSHRC Page 693
B. The Judge’s Decision 

In affirming the violation, the Judge concluded that, despite the possible 54-inch 

extension in the lifeline, it was not “located in such a manner for miners to use effectively to 

escape.” The Judge credited Vargo’s testimony that under emergency circumstances and with 

limited visibility, the protruding hoses posed a tripping hazard that could cause injury. 

43 FMSHRC at 131-32. 

The Judge rejected Consol’s argument that MSHA cited the wrong standard. Id. at 132-

33. The Judge’s holding was limited to “conditions that specifically relate[d] to the lifeline and 

whether miners could have used it as an effective means of escape.” Id. at 132. 

The Judge also affirmed the S&S designation associated with the citation. Id. at 133-35. 

In doing so, he reiterated several of the same facts supporting the existence of the violation. He 

found that during an evacuation emergency with limited visibility, a slip, trip, and fall hazard 

was “particularly” likely. Id. at 134. The Judge relied on testimony from both Vargo and the 

Consol witnesses explaining the difficulty miners have in maneuvering under limited visibility 

conditions. Id. He found that the fall injuries from a tripping hazard were “reasonably likely,” 

citing to several examples of “strains, sprains, and fractures.” Id. at 134-35. The Judge also noted 

that “fallen miners or equipment dislodged during the fall could become obstacles to others 

attempting to escape, increasing the likelihood of an injury occurring.” Id. at 135. Finally, the 

Judge held that the trip-and-fall injuries would be reasonably likely to be serious, because of the 

fall itself, as well as it potentially delaying evacuation of other miners or creating a need for 

additional rescue efforts. Id. 

II.

Disposition 

A. We Affirm the Judge’s Finding of a Violation. 

The mandatory safety standard at 30 C.F.R. § 75.380(d)(7)(iv) requires lifelines to be 

“[l]ocated in such a manner for miners to use effectively to escape.” The Judge found that the 

lifeline was located directly above hydraulic hoses which protruded into the escapeway and, 

therefore, the location of the lifeline would prevent miners from effectively escaping. 

43 FMSHRC at 131-32. 

We affirm the Judge’s finding of a violation; the plain language of the standard prohibits 

locating the lifeline above hazards which impede effective escape. Where the language of a 

regulatory provision is clear, the terms of that provision must be enforced as they are written 

unless the regulator clearly intended the words to have a different meaning or unless such a 

 

44 FMSHRC Page 694
meaning would lead to absurd results.6 See Dynamic Energy, Inc., 32 FMSHRC 1168, 1171 

(Sept. 2010) (citations omitted). The Commission has noted that “[s]ection 75.380 contains 

extensive requirements as to the location and physical attributes of escapeways so that miners, 

including those disabled in a mine accident and needing assistance, can quickly and safely get 

from the start of the escapeway to the surface.”7 The American Coal Co., 29 FMSHRC 941, 948 

(Dec. 2007). 

The undisputed record evidence establishes that the lifeline was located directly above 

hydraulic hoses which extended out into the escapeway. 43 FMSHRC at 122-23, citing to 

Tr. 27, 33-43, 57-58 64, Sec. Ex. 2; CP Ex. 8A-8D (the photographs). The hoses extended out 

into the escapeway up to 43 inches laterally and up to 38 inches above the mine floor. The 

Judge found that the hoses were trip and fall hazards, which may cause injuries to miners or 

delay the evacuation of miners in an emergency situation. 43 FMSHRC at 122, 131-33, 135 

(crediting the testimony of Inspector Vargo). In an emergency situation the mine may be filled 

with smoke, limiting visibility. Accordingly, the Judge concluded the location of the lifeline 

over trip and fall hazards prevented miners from effectively escaping the mine. We affirm the 

Judge’s finding of a violation because it is supported by substantial evidence.8

 

 

6 MSHA promulgated the emergency mine evacuation safety standards at section 75.380 

as a final rule in December 2006. Emergency Mine Evacuation, 71 Fed. Reg. 71430 (2006). The 

rule was promulgated after Congress amended the Mine Act, enacting the Mine Improvement 

and New Emergency Response Act of 2006 (“MINER Act”), in response to three multiplefatality mine disasters. Pub. L. No. 109–236, 120 Stat. 493 (2006). The MINER Act, in part, 

required operators to provide flame resistant and directional lifelines in escapeways “to enable 

evacuation.” Pub. L. No. 109–236, 120 Stat. 493 (2006), codified at 30 U.S.C. § 

876(b)(2)(E)(iv). 

7

 In reaching his conclusion of a violation, the Judge referenced two Commission cases, 

Black Beauty Coal Co, 36 FMSHRC 1121 (May 2014) and American Coal Co., 29 FMSHRC 

941 (Dec. 2007). 43 FMSHRC at 132. Based on those cases, the Judge determined that the 

Commission has interpreted “effectively” to mean “quickly and safely” for purposes of section 

75.380(d)(7). Id. While these prior decisions reasonably suggest that safe and quick egress are 

appropriate considerations in the context of lifeline and other emergency provisions, 

Commission precedent has not narrowly defined “effective” to mean “quick and safe.” Nor do 

we find it necessary or appropriate to adopt such a narrow interpretation here. 

8 “Substantial evidence” only requires “such relevant evidence as a reasonable mind 

might accept as adequate to support [the Judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 

11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 

(1938). The Commission has long held that a Judge’s credibility determination is entitled to great 

weight and may not be overturned lightly. See Farmer v. Island Creek Coal Co., 14 FMSHRC 

1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981); Consol 

Pennsylvania Coal Co., LLC, 43 FMSHRC 145, 151 (Apr. 2021). 

44 FMSHRC Page 695
Consol’s arguments that the Judge erred in affirming a violation of the mandatory safety 

standard at section 75.380(d)(7)(iv) are unpersuasive. Consol asserts that the safety standard 

only requires the lifeline to be in an accessible location, e.g., accessible height, accessible 

position, etc.9 Consol contends that the standard’s requirements do not address hazards or 

obstructions. PDR at 14-18.10 

We reject Consol’s interpretation as it fails to account for the standard’s plain language 

directive to select an effective location. A lifeline located above hazards and obstructions 

impedes escape. 43 FMSHRC at 132 (“even if miners never lost contact with the lifeline, its 

position would have required escaping miners to identify the protruding hoses as an obstacle 

and maneuver around them in order to escape quickly and safely.”); see also Cumberland Coal 

Res., 33 FMSHRC 2357, 2361 (Oct. 2011), aff’d 717 F.3d 1020 (D.C. Cir 2013) (the 

“suspension of the lifelines by numerous J-hooks above cables and above track equipment did 

not comply with [the safety standard].”). Obstructions – whether necessary equipment or 

otherwise – must not impede effective use of the lifeline pursuant to section 75.380(d)(7)(iv). 

B. The Judge Properly Declined to Rely on any Abatement Considerations in Finding 

the Violation. 

To abate the citation, the lifeline was re-routed from the “walkway” side of the “mule 

train” to the “tight side” of the “mule train.” Consol argues that its original lifeline placement 

was appropriate as compared to what Consol states is the less-safe abatement method of hanging 

the lifeline on the “tight side” of the mule train.11 

Section 104(a) of the Act provides that inspectors issue citations for mandatory health 

and safety standards, and then separately notes that “the citation shall fix a reasonable time for 

the abatement of the violation.” 30 U.S.C. § 814(a). Whether or not abatement occurs has no 

bearing on the underlying violation, but rather on whether the operator is subsequently issued a 

failure to abate order under section 104(b). See Western Industrial, Inc., 25 FMSHRC 449, 453 

9 While Consol argues that miners would not lose contact with the lifeline due to its 

lowered height and “accessibility,” it concedes that this standard covers a lifeline’s “location.” 

Section 75.380(d)(7)(iv) is not solely limited to “height” and “accessibility.” 

10 Nor are we persuaded by Consol’s additional contentions that the Judge erred in 

affirming the citation because a different subsection of section 75.380 also may prohibit locating 

the lifeline near tripping hazards, and that the Judge’s finding of a violation is unsupported 

because the escapeway was clear enough that it could have passed a stretcher test. See PDR at 

20-22. Whether or not a different subsection of the standard would have also been applicable, 

has no bearing on whether the Secretary established a violation of section 75.380(d)(7)(iv) in this 

proceeding. Whether the escapeway met MSHA’s separate stretcher clearance standard under 30 

C.F.R. § 75.380(d) does not mean that it met the lifeline standard. 

11 While (as explained below) abatement and occurrence of a violation are distinct issues, 

we note that it is contrary to the fundamentals of safety for any abatement, regardless of who 

chose it or how it was implemented, to expose miners to a worse condition due to increased 

obstructions creating potential hazards. 

44 FMSHRC Page 696
(Aug. 2003) (holding the abatement method is irrelevant in determining whether violation 

occurred); Bluestone Coal Corp., 19 FMSHRC 1025, 1030 (Jun. 1997) (“We agree with the 

Secretary that the abatement requirements are irrelevant to the issue of whether the operating 

speed of Payne's truck violated the standard.”). Simply put, whether and how a violation is 

abated is irrelevant to whether a violation occurred in the first place.

 

C. The Judge Properly Found the Violation to be S&S. 

The “significant and substantial” terminology is taken from section 104(d) of the Mine 

Act, 30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if, based on 

the particular facts surrounding the violation, there exists a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of a reasonably serious nature. See 

Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 

FMSHRC 1, 3-4 (Jan. 1984), the Commission further explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, 

the Secretary of Labor must prove: (1) the underlying violation 

of a mandatory safety standard; (2) a discrete safety hazard -- 

that is, a measure of danger to safety -- contributed to by the 

violation; (3) a reasonable likelihood that the hazard contributed 

to will result in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious nature. 

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving 

Mathies criteria).

The Commission has emphasized that it is the contribution of a violation to the cause 

and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., 6 

FMSHRC 1834, 1836 (Aug. 1984). The application of step two of the Mathies test requires a 

determination of “whether [the] hazard was reasonably likely to occur given the particular 

facts surrounding this violation.” Newtown Energy, Inc., 38 FMSHRC 2033, 2041 (Aug. 

2016). Furthermore, the Commission has emphasized that in evacuation standards, the third 

and fourth steps of Mathies should be evaluated in the context of an emergency. Cumberland, 

33 FMSHRC at 2370, aff’d 717 F.3d 1020 (D.C. Cir. 2013). With respect to the third step, an 

evaluation of the reasonable likelihood of injury should be made assuming continued normal 

mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). 

Here, the lifeline was hung from the roof down the middle of the walkway, attached to 

roof bolts at various distances, allowing it to break away in an emergency. Nine hydraulic hoses 

extended out of a pump car through a manifold at the subject location. The lifeline was hung 

directly over those hoses with no ladders, stairways, ramps, or similar facilities present. While 

this condition existed, the testimony was that three shifts of miners would have traveled through 

the area up and back each day for a total of eight days. There was testimony that under 

emergency conditions, miners would be walking quickly and may not be able to see where they 

are going, particularly in the event of smoke. The Inspector testified to miners having difficulty 

44 FMSHRC Page 697
maneuvering in a smoke-filled environment since their headlamps, flashlights, and reflectors 

would not help with such limited visibility. Consol witnesses acknowledged that such limited 

visibility would create difficulty seeing obstacles in the mine. 

 As discussed, the first step of Mathies was met since substantial evidence plainly 

supports a violation—the location of the lifeline led miners directly to an unaddressed 

obstruction. 

Regarding the second step of Mathies, the obstruction created “a discrete safety 

hazard—that is, a measure of danger to safety—contributed to by the violation.” Mathies, 6 

FMSHRC at 3-4. Assuming an emergency evacuation, there was a likelihood that miners 

following the lifeline into the path of the hoses would be tripped up and impeded in efforts to 

evacuate the area, given the existence of the violation and continued normal mining operations. 

The Judge found that even if it were possible for miners to pull the lifeline around the hoses, 

miners would need to “identify the protruding hoses as an obstacle and maneuver around them.” 

43 FMSHRC at 132. Substantial evidence supports the ALJ’s conclusions regarding the cited 

violation’s contribution to a discrete safety hazard. 

 Having determined that the second step of Mathies was met, we now turn to the third 

step. In the third and fourth steps, the violation is no longer the explicit concern of the analysis; 

the question instead is whether the previously identified hazard is reasonably likely to result in a 

reasonably serious injury. See Cumberland Coal Res., LP, 33 FMSHRC 2357, 2365, 2370 (Oct. 

2011), aff'd, 717 F.3d 1020 (D.C. Cir. 2013) (citing Musser Eng'g, Inc. & PBS Coals, Inc., 32 

FMSHRC 1257, 1280-81 (Oct. 2010). Substantial evidence supports the ALJ’s finding of a 

reasonable likelihood that the hazard identified in the second step would have resulted in an 

injury of a reasonably serious nature, under the third and fourth step of Mathies. The Judge 

cited to other cases where injuries resulted from tripping and falling. 43 FMSHRC at 134-35.12

The Judge also found that any delay in escaping a mine during an emergency is likely to result 

in serious injury or death. 

 

Consol argues that not every emergency evacuation citation should be S&S. We 

certainly agree. Cumberland, 33 FMSHRC at 2369 (“Because the particular facts in a case may 

not establish that a violation of an evacuation standard contributes to a hazard which is 

reasonably likely to result in injury, not every violation of an evacuation standard will be 

S&S.”) citing Rushton Mining Co., 11 FMSHRC 1432, 1436 (Aug. 1989) (reasoning that the 

Secretary failed to establish that an escapeway violation contributed to the existence of a 

“discrete safety hazard” in an emergency situation requiring evacuation in view of the specific 

facts of the violation). In contending that the violation was not S&S, however, Consol does not 

argue that the Judge misapplied the law, but simply reiterates its argument that no violation 

12 References were made to Maple Creek Mining, Inc., 27 FMSHRC 555, 562-63 (Aug. 

2005) (affirming a Judge’s finding that a trip and fall in a mucky escapeway would lead to leg or 

back injuries); Buffalo Crushed Stone Inc., 19 FMSHRC 231, 238 n.9 (Feb. 1997) (finding that 

slipping on a walkway would reasonably result in head injuries or finger or wrist fractures); 

S. Ohio Coal Co., 13 FMSHRC 912, 918 (Jun. 1991) (affirming a Judge’s conclusion that a tripand-fall accident would result in injuries such as “sprains, strains, or fractures”). 

44 FMSHRC Page 698
occurred. For instance, Consol repeats its view that miners would “never lose contact with the 

lifeline,” that miners could use the lifeline to effectively escape and that rock dust bags 

mitigated the hazard the hoses posed. PDR at 30-32. Nevertheless, the path of the lifeline led 

directly to the hoses, not the rock dust bags. Miners would still be led directly to an obstruction, 

and not to the means to navigate that obstruction. 

 Consol claims that “the vast majority of falls cause no injuries,” arguing that gloves 

would protect miners. Whether or not that may be true as a statistical matter, this case turns 

upon the circumstances of miners attempting to escape during an emergency. See, e.g., Knox 

Creek Coal Corp., 36 FMSHRC 1128, 1133 (May 2014), aff’d, 811 F.3d 148 (4th Cir. 2016) 

(holding that the Secretary was not required to produce quantitative evidence of the frequency 

of hazardous malfunctions for S&S). No rationale is provided as to how gloves would protect 

miners from serious injuries to the hands (or the body, as a whole) when encountering 

obstructions during an emergency. 

 Finally, Consol claims that the Judge misstated the facts in asserting that “the location of 

the pump car constantly changes,” and that there is “simply no evidence of this in the record.” 

CP Reply. Br. at 13.13 Consol asserts that although the pump car retreats as the longwall 

retreats, the “basic setup does not change – the pump car is parked at a crosscut so the hydraulic 

lines can go through the crosscut.” Id. It claims that the “mule train and pump car are always in 

this position relative to the section.” Id. Based on this assertion, Consol claims that the trained 

miners would take appropriate precautions to avoid the protruding hoses, in the event of an 

emergency. 

 Commission precedent holds that miner precaution is not a relevant consideration under 

the Mathies test. Sec’y of Labor v. Consolidation Coal Co., 895 F.3d 113, 118 (D.C. Cir. 2018); 

Newtown Energy, Inc., 38 FMSHRC 2033, 2044 (Aug. 2016); Eagle Nest, Inc., 14 FMSHRC 

1119, 1123 (July 1992). Furthermore, while most of the miners had worked there consistently for 

a lengthy period, not all of them did – and of course additional turnover can always occur. Tr. 

261-62. There is also evidence that contractors may have been working in the section. Tr. 262. 

Any miners new to the section, or any of these contractors, would necessarily have had less 

experience with the environment of the section to know how to react when escaping the mine in 

 

13 Of record testimony, however, is Vargo’s disagreement with the assertion that the 

pump car always ends up in a crosscut. Tr. 102-03. 

44 FMSHRC Page 699
an emergency scenario—particularly when utilizing a lifeline leading directly to the obstruction 

of the protruding hoses. 

Accordingly, we affirm the Judge’s S&S determination.

III. 

Conclusion 

For the reasons stated above, we affirm the Judge’s finding that the operator violated the 

lifeline standard in 30 C.F.R. § 75.380(d)(7)(iv) and the S&S determination. 

 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

44 FMSHRC Page 700
Distribution: 

Winfield Wilson 

Division of Mine Safety and Health 

U.S. Department of Labor, Office of the Solicitor 

201 12th Street South – Suite 401 

Arlington, VA 22202-5450 

wilson.winfield@dol.gov 

James P. McHugh 

Hardy Pence PLLC 

P.O. Box 2548 

Charleston, WV 25329 

jmchugh@hardypence.com 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

U.S. Department of Labor 

Office of the Solicitor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Scott.Emily.T@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

U.S. Department of Labor 

Office of the Solicitor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Melanie Garris 

Civil Penalty Compliance Division Chief 

U.S. Department of Labor, Office of Assessments 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520 N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

44 FMSHRC Page 701
Administrative Law Judge John Lewis 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

7 Parkway Center 

875 Greentree Road, Suite 290 

Pittsburgh, PA 15220 

jlewis@fmshrc.gov 

44 FMSHRC Page 702
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

December 6, 2022 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 v. 

PERRY COUNTY RESOURCES, LLC 

Docket No. KENT 2022-0024 

 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

ORDER 

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2018). On October 5, 2022, a Commission Administrative Law Judge issued an 

order denying approval of a settlement motion filed by the Secretary of Labor and Perry County 

Resources, LLC in this proceeding. In that order the Judge also denied the Secretary’s alternative 

motion to certify for interlocutory review the Judge’s order denying settlement. On November 4, 

the Commission received the Secretary’s petition for interlocutory review. 

 Commission Procedural Rule 76(a) provides that interlocutory review is a matter of 

sound discretion of the Commission, and that the Commission may grant interlocutory review 

upon a determination that the Judge’s interlocutory ruling involves a controlling question of law 

and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. 

§ 2700.76(a). 

 Upon consideration of the Secretary’s petition, we hereby grant interlocutory review of 

the Judge’s order of October 5, 2022, and the issue of whether the Judge abused his discretion in 

denying approval of the settlement motion based on the Secretary’s refusal to provide a section 

104(b) order that was associated with a citation that was a subject of the motion to approve 

settlement. 

 

44 FMSHRC Page 703
The Secretary shall file an opening brief with the Commission within 30 days of this 

order. If the operator wishes to file a brief, it shall file that brief 30 days after the filing of the 

Secretary’s brief. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

44 FMSHRC Page 704
Distribution (email): 

Tracy E. Wolf, Esq. 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Wolf.tracy.e@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Scott.Emily.T@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Gregory Q. Jensen 

Perry County Resources, LLC 

P.O. Box 606 

Fishers, IN 46038 

GQJ@AmericanResourcesCorp.com 

Administrative Law Judge William Moran 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

wmoran@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@DOL.GOV 

44 FMSHRC Page 705
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

December 6, 2022 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 v. 

GREENBRIER MINERALS, LLC 

Docket No. WEVA 2022-0403 

 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

ORDER 

BY THE COMMISSION: 

 This proceeding, arising under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2018), is before us upon a Commission Administrative Law Judge’s 

November 22, 2022, certification of his order denying the Secretary of Labor’s motion to 

approve settlement. See 29 C.F.R. § 2700.76(a)(1)(i). The Judge denied the motion because he 

concluded that the Secretary had failed to provide sufficient information to support the removal 

of a “significant and substantial” (“S&S”) designation. 

 Commission Procedural Rule 76(a) provides that the Commission “may grant 

interlocutory review upon a determination that the Judge’s interlocutory ruling involves a 

controlling question of law and that immediate review may materially advance the final 

disposition of the proceeding.” 29 C.F.R. § 2700.76(a)(2). Rule 76 further provides that 

“[i]nterlocutory review by the Commission shall not be a matter of right but of the sound 

discretion of the Commission.” 29 C.F.R. § 2700.76(a). 

 Upon consideration of the Judge’s certification, we hereby grant interlocutory review of 

the Judge’s order denying approval of the settlement and the issue of whether the Secretary has 

unreviewable discretion to remove an S&S designation from a contested citation without the 

Commission’s approval under section 110(k) of the Mine Act, 30 U.S.C. § 820(k).1

 

1 As the Judge recognized in his November 22 order, the same controlling question of law 

is currently on review before the Commission in Knight Hawk Coal, LLC, Docket No. LAKE 

2021-0160. 

44 FMSHRC Page 706
The Secretary shall file an opening brief with the Commission within 30 days of this 

order. If the operator wishes to file a brief, it shall file that brief 30 days after the filing of the 

Secretary’s brief. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

44 FMSHRC Page 707
Distribution (email): 

Chervonti J. Jones, Esq. 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Jones.Chervonti.J@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Scott.Emily.T@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Lorna M. Waddell, Esq. 

Dinsmore & Shohl LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 25601 

Lorna.waddell@dinsmore.com 

Administrative Law Judge Michael Young 

Federal Mine Safety & Health Review Commission 

Office of the Chief Administrative Law Judge 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

myoung@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@DOL.GOV 

44 FMSHRC Page 708
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

December 7, 2022 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 v. 

BLUESTONE OIL CORPORATION 

Docket No. WEVA 2022-0176 

A.C. No. 46-09222-548471 

Docket No. WEVA 2022-0350 

A.C. No. 46-09222-548471 

 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

ORDER 

BY THE COMMISSION: 

 This proceeding, arising under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2018), is before us upon a Commission Administrative Law Judge’s 

October 31, 2022, certification of his order denying the Secretary of Labor’s motion to approve 

settlement. See 29 C.F.R. § 2700.76(a)(1)(i). The Judge denied the motion because he concluded 

that the Secretary had failed to provide factual support for the proposed removal of two citations’ 

“significant and substantial” (“S&S”) designations. 

 Commission Procedural Rule 76(a) provides that the Commission “may grant 

interlocutory review upon a determination that the Judge’s interlocutory ruling involves a 

controlling question of law and that immediate review may materially advance the final 

disposition of the proceeding.” 29 C.F.R. § 2700.76(a)(2). Rule 76 further provides that 

“[i]nterlocutory review by the Commission shall not be a matter of right but of the sound 

discretion of the Commission.” 29 C.F.R. § 2700.76(a). 

 Upon consideration of the Judge’s certification, we hereby grant interlocutory review of 

the Judge’s order denying approval of the settlement and the issue of whether the Secretary has 

unreviewable discretion to remove an S&S designation from a contested citation without the 

Commission’s approval under section 110(k) of the Mine Act, 30 U.S.C. § 820(k).1

 

1 As the Judge recognized in his October 31 order, the same controlling question of law is 

currently on review before the Commission in Knight Hawk Coal, LLC, Docket No. LAKE 

2021-0160. 

44 FMSHRC Page 709
The Secretary shall file an opening brief with the Commission within 30 days of this 

order. If the operator wishes to file a brief, it shall file that brief 30 days after the filing of the 

Secretary’s brief. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

44 FMSHRC Page 710
Distribution (email): 

Mohamed Seifeldein, Esq. 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

seifeldein.mohamed.e@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Scott.Emily.T@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor, Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Christopher D. Pence, Esq. 

Hardy Pence PLLC 

10 Hale Street, 4th Floor 

PO Box 2548 

Charleston WV 25329 

cpence@hardypence.com 

Wm. Scott Wickline, Esq. 

Hardy Pence PLLC 

10 Hale Street, 4th Floor 

PO Box 2548 

Charleston WV 25329 

scott@hardypence.com 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue NW, Suite 520N 

Washington DC 20004-1710 

gvoisin@fmshrc.gov 

44 FMSHRC Page 711
Administrative Law Judge Michael G. Young 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue NW, Suite 520N 

Washington DC 20004-1710 

myoung@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@DOL.GOV 

44 FMSHRC Page 712
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

December 12, 2022 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 v. 

GENESIS ALKALI, LLC 

Docket No. WEST 2022-0189 

A.C. No. 48-00152-548001 

Docket No. WEST 2022-0267 

A.C. No. 48-00152-550854 

Docket No. WEST 2022-0268 

A.C. No. 48-00152-550854 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

ORDER 

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018). On November 17, 2022, a Commission Administrative Law Judge issued two 

orders certifying for interlocutory review her denial of the Secretary of Labor’s amended 

motions to approve settlement in the captioned proceedings. On November 29, 2022, the parties 

submitted further amended motions to approve settlement.1 On December 7, 2022, the Judge 

issued an order denying those motions and certifying her denial for interlocutory review. See 29 

C.F.R. § 2700.76(a)(1)(i). 

The Judge denied the November 29, 2022, settlement motions because she concluded that 

the submitted facts could not support a finding that the settlement terms were fair, reasonable, 

appropriate under the facts, or protective of the public interest. See Am. Coal Co., 38 FMSHRC 

1972, 1976 (Aug. 2016). Regarding Docket No. WEST 2022-0189, the Judge particularly noted 

the Secretary’s failure to account for the seriousness of a violation or justify deletion of a 

significant and substantial designation. Regarding Docket Nos. WEST 2022-0267 and WEST 

2022-0268, the Judge noted that the parties provided no factual support in moving to preserve 

several citations and vacate the rest, and found that the Secretary had abused his authority to 

vacate citations. 

 Commission Procedural Rule 76(a) provides that interlocutory review is a matter of 

sound discretion of the Commission, and that the Commission may grant interlocutory review 

upon a determination that the Judge’s interlocutory ruling involves a controlling question of law 

1

 The Secretary of Labor submitted an amended motion to approve settlement for Docket 

No. WEST 2022-0189. As for Docket Nos. WEST 2022-0267 and WEST 2022-0268, the parties 

submitted a joint “Stipulation of Dismissal” in which Genesis Alkali stated it was withdrawing 

its contest of seven citations and the Secretary stated he was vacating the remaining eighteen 

citations. The Judge interpreted this filing as an amended motion to approve settlement. 

44 FMSHRC Page 713
and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. 

§ 2700.76(a). 

 In light of the parties’ subsequent filings, the Judge’s November 17, 2022, certifications 

for interlocutory review are moot. 

 Upon consideration by the Commission, the Judge’s December 7, 2022, certification for 

interlocutory review is accepted. The Commission hereby grants interlocutory review on the 

issue of whether the Judge abused her discretion in denying the November 29, 2022, motions to 

approve settlement. The Secretary shall file an opening brief with the Commission within 30 

days of this order. If the operator wishes to file a brief, it shall file that brief 30 days after the 

filing of the Secretary’s brief. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

44 FMSHRC Page 714
Distribution: 

Rebecca Mullins, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

mullins.rebecca.w@dol.gov 

Bruce H. Jakubauskas 

Mine Safety & Health Administration 

U.S. Department of Labor 

Thornhill Industrial Park 

178 Thorn Hill Road Suite 100 

Warrendale PA 15086 

Jakubauskas.bruce@dol.gov 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Scott.Emily.T@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

44 FMSHRC Page 715
Donna Pryor 

Husch Blackwell LLP 

1801 Wewatta Street Suite 1000 

Denver CO 80202 

Donna.pryor@huschblackwell.com 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue NW, Suite 520N 

Washington DC 20004-1710 

gvoisin@fmshrc.gov 

Administrative Law Judge Margaret A. Miller 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue NW, Suite 520N 

Washington DC 20004-1710 

mmiller@fmshrc.gov 

44 FMSHRC Page 716
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

December 15, 2022 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 v. 

RULON HARPER CONSTRUCTION, 

INC. 

Docket No. WEST 2022-0249 

 Docket No. WEST 2022-0250 

 A.C. No. 42-02078-554812 

 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

ORDER 

BY THE COMMISSION: 

 This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2018). On December 12, 2022, a Commission Administrative Law Judge issued an 

order certifying for interlocutory review her denial of the Secretary of Labor’s amended motions 

to approve settlement in the captioned proceedings. The Judge denied the settlement motions 

concluding that the submitted facts could not support a finding that the settlement terms were 

fair, reasonable, appropriate under the facts, or protective of the public interest. See Am. Coal 

Co., 38 FMSHRC 1972, 1976 (Aug. 2016). 

 Commission Procedural Rule 76(a) provides that interlocutory review is a matter of 

sound discretion of the Commission, and that the Commission may grant interlocutory review 

upon a determination that the Judge’s interlocutory ruling involves a controlling question of law 

and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. 

§ 2700.76(a). 

 Upon consideration by the Commission, the Judge’s December 12, 2022, certification for 

interlocutory review is accepted. The Commission hereby grants interlocutory review on the 

issue of whether the Judge abused her discretion in denying the motions to approve settlement.1

The Secretary shall file an opening brief with the Commission within 30 days of this order. If the 

 

1

 These proceedings also involve the same question currently on review before the 

Commission in Knight Hawk Coal, LLC, Docket No. LAKE 2021-0160, which we include in our 

review of these proceedings.

44 FMSHRC Page 717
operator wishes to file a brief, it shall file that brief 30 days after the filing of the Secretary’s 

brief. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

44 FMSHRC Page 718
Distribution: 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Scott.Emily.T@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Dennis Sortor 

Harper Companies 

P.O. Box 18549 

Salt Lake City, Utah 84118 

dsortor@harperscompaniesinc.com 

Bruce H. Jakubauskas 

U.S. Department of Labor 

Mine Safety and Health Administration 

Thornhill Industrial Park 

178 Thorn Hill Road, Suite 100 

Warrendale, PA 15086 

jakubauskas.bruce@dol.gov 

44 FMSHRC Page 719
Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Administrative Law Judge Margaret A. Miller 

Federal Mine Safety & Health Review Commission 

721 19th Street, Suite 443 

Denver, CO 80202-2500 

MMiller@fmshrc.gov 

44 FMSHRC Page 720
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

December 16, 2022 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

 v. 

APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC 

Docket Nos. WEVA 2022-0301 

 WEVA 2022-0428 

A.C. No. 46-08930-551112 

 

BEFORE: Jordan, Chair; Althen, Rajkovich, and Baker, Commissioners 

ORDER 

BY THE COMMISSION: 

 These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2018). On approximately October 14, 2022, the Secretary of Labor filed 

motions to approve settlement in these proceedings. On December 13, 2022, a Commission 

Administrative Law Judge issued orders certifying for interlocutory review the question of 

whether the Secretary is obligated, upon a Judge’s request, to supply orders issued pursuant to 

section 104(b) of the Act, 30 U.S.C. § 814(b), that are associated with citations in a docket 

before the Judge on a motion to approve settlement. 

 Commission Procedural Rule 76(a) provides that interlocutory review is a matter of 

sound discretion of the Commission, and that the Commission may grant interlocutory review 

upon a determination that the Judge’s interlocutory ruling involves a controlling question of law 

and immediate review will materially advance the final disposition of the proceeding. 29 C.F.R. 

§ 2700.76(a). 

 Upon consideration of the Judge’s December 13 orders and the case records, we conclude 

that, because the Judge has yet to rule on the Secretary’s motions to approve settlement, the 

Judge’s certification for interlocutory review is premature. See Cty Line Stone Co., 44 FMSHRC 

507, 508 (July 2022).1

 

 In Perry County Resources, LLC, 44 FMSHRC ___, No. KENT 2022-0024 (December 6, 

2022), the Commission granted interlocutory review on the issue of “whether the Judge abused 

his discretion in denying approval of the settlement motion based on the Secretary’s refusal to 

1

 The Commission granted the Secretary’s second petition for interlocutory review, filed 

after the Judge issued orders denying the Secretary’s renewed motions to approve settlement. Cty 

Line Stone Co., 44 FMSHRC 548, 549 (Aug. 2022). 

44 FMSHRC Page 721
provide a section 104(b) order that was associated with a citation that was a subject of the motion 

to approve settlement.” In contrast, in these proceedings, the Judge has yet to issue an order 

either granting or denying the Secretary’s motions to approve settlement. 

 For these reasons, we deny interlocutory review without prejudice. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

/s/ Timothy J. Baker 

Timothy J. Baker, Commissioner 

 

44 FMSHRC Page 722
Distribution: 

Emily Toler Scott, Esq. 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Scott.Emily.T@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Division of Mine Safety and Health 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Nelson.April@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

K. Brad Oakley, Esq., 

Jackson Kelly PLLC, 

100 W. Main Street, Suite 700 

Lexington, KY 40507 

kboakley@jacksonkelly.com 

David C. Trent 

Conference & Litigation Representative 

U.S. Department of Labor, MSHA 

4499 Appalachian Highway 

Pineville, WV 24874 

Trent.david@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

44 FMSHRC Page 723
Administrative Law Judge William B. Moran 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Ave. N.W., Suite 520N 

Washington, DC 20004-1710 

WMoran@fmshrc.gov 

44 FMSHRC Page 724
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

August 30, 2022 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

on behalf of ALVARO SALDIVAR 

 v. 

GRIMES ROCK, INC. 

Docket No. WEST 2021-0178-DM 

 

BEFORE: Traynor, Chair; Althen and Rajkovich, Commissioners 

 

ORDER 

BY THE COMMISSION: 

 

This proceeding arises under section 105(c)(2) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 815(c)(2) (2018) (“Mine Act”).1 On August 17, 2022, the Commission 

received from Grimes Rock, Incorporated (“Grimes Rock”) a motion to stay the Administrative 

Law Judge’s June 17, 2022 order enforcing the parties’ settlement agreement for temporary 

economic reinstatement of miner Alvaro Saldivar. For the reasons that follow, we deny the 

operator’s motion.2

 

1

 30 U.S.C. § 815(c)(2) provides in pertinent part: 

 

Any miner . . . 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 deems appropriate. Such 

investigation shall commence within 15 days of the Secretary’s 

receipt of the complaint, and if the Secretary finds that such 

complaint was not frivolously brought, the Commission, on an 

expedited basis upon application of the Secretary, shall order the 

immediate reinstatement of the miner pending final order on the 

complaint. 

2

 The Commission’s denial of the motion to stay does not constitute a decision upon the 

merits of the issues currently on appeal in the Temporary Reinstatement proceeding. 

44 FMSHRC Page 725
1. 

Factual and Procedural Background 

Miner Alvaro Saldivar was terminated from his job at Grimes Rock in January 2021. The 

Secretary brought a section 105(c)(2) action on his behalf and sought temporary reinstatement. 

A Commission Administrative Law Judge granted the temporary reinstatement. Sec’y of Labor 

on behalf of Saldivar v. Grimes Rock, Inc., 43 FMSHRC 287 (May 2021) (ALJ). Grimes Rock 

appealed, and the Commission affirmed the Judge’s order on June 11, 2021. Sec’y on behalf of 

Saldivar v. Grimes Rock, Inc., 43 FMSHRC 299, 307 (June 2021). While the appeal was 

pending, the parties agreed to temporary economic reinstatement, and the Judge approved the 

agreement on May 28, 2021. Under the agreement, because Saldivar had found work with 

another employer, Grimes was responsible for paying the difference between Saldivar’s earnings 

at his present job and his earnings at Grimes Rock. Unpublished Order at 1 (May 28, 2021). 

The agreement was silent on what would happen if Saldivar no longer had other employment to 

offset Grimes Rock’s payments. In July of 2021, the Secretary filed a complaint for 

discrimination on Saldivar’s behalf. 

While the parties awaited the Judge’s decision on the merits of Saldivar’s discrimination 

complaint, Saldivar was incarcerated and unavailable for work on two occasions. During these 

periods, Grimes Rock’s payments were tolled pursuant to Saldivar’s unavailability. After 

Saldivar’s first incarceration, Grimes filed a motion to toll or terminate temporary reinstatement, 

which the Judge denied. Grimes appealed the decision, and it is currently pending before the 

Commission. 

After Saldivar was first released, around November 2021, Grimes Rock resumed making 

payments, but there is dispute about what was owed pursuant to the temporary reinstatement. 

After the miner was released the second time in May 2022, Grimes Rock did not resume making 

payments. On May 27, 2022, the Secretary filed with the Judge a motion to enforce temporary 

reinstatement, which was granted on June 17, 2022. The Judge ordered Grimes Rock “to pay 

Saldivar the full wages as ordered in the Reinstatement Order during the periods of his 

availability to work between May 18, 2021 and June 17, 2022, offset by his wages earned from 

alternative employment during that period.” Sec’y of Labor on behalf of Saldivar v. Grimes 

Rock, Inc., 44 FMSHRC___, slip op. at 3, No. WEST 2021-0178, 2022 WL 2290543, (June 17, 

2022). Simultaneous with her order granting enforcement, the Judge issued her decision in the 

merits case finding that Grimes Rock did not violate the discrimination provisions of the Mine 

Act and terminating temporary reinstatement as of the date of the decision.3

Grimes appealed the Judge’s order granting the Secretary’s motion to enforce on July 13, 

2022, and the appeal is currently pending before this Commission. On August 15, 2022, MSHA 

issued a section 104(a) citation to Grimes for violating the Judge’s order to enforce temporary 

reinstatement. 30 U.S.C. § 814(a). On August 17, 2022, Grimes Rock filed for immediate stay 

of the Judge’s June 17 order granting enforcement. 

 

3

 Sec’y of Labor on behalf of Saldivar v. Grimes Rock, Inc., 44 FMSHRC___, slip op. at 

15, No. WEST 2021-0265, (June 17, 2022), 2022 WL 2290545. 

44 FMSHRC Page 726
II. 

Disposition 

 

Commission Procedural Rule 45(f) provides that, with respect to an order granting 

temporary reinstatement, “[t]he filing of a petition shall not stay the effect of the Judge’s order 

unless the Commission so directs; a motion for such a stay will be granted only under 

extraordinary circumstances.” 29 C.F.R. § 2700.45(f); Sec’y of Labor on behalf of Shaffer v. The 

Marion County Coal Co., 40 FMSHRC 39, 45 (Feb. 2018); Sec’y of Labor on behalf of Billings 

v. Proppant Specialists, LLC, 33 FMSHRC 2383, 2386 (Oct. 2011). 

In Secretary on behalf of Price and Vacha v. Jim Walter Resources, Inc., 9 FMSHRC 

1312 (Aug. 1987), the Commission held that a party seeking a stay pending review of a 

temporary reinstatement decision or order must make an adequate showing with respect to the 

four factors set forth in Virginia Petroleum Jobbers Association v. Federal Power Commission, 

259 F.2d 921 (D.C. Cir. 1958). These four factors are: (1) a likelihood that the moving party will 

prevail on the merits of its appeal; (2) irreparable harm to it if the stay is not granted; (3) no 

adverse effect on other interested parties; and (4) a showing that the stay is in the public interest. 

259 F.2d at 925; see also UMWA on behalf of Franks & Hoy v. Emerald Coal Res., LP, 35 

FMSHRC 2373, 2374 (Aug. 2013). The Commission made clear that a stay constitutes 

“extraordinary relief.” 35 FMSHRC at 2374; see also W.S. Frey Co., 16 FMSHRC 1591 (Aug. 

1994). The burden is on the movant to provide “sufficient substantiation” of the requirements 

for the stay. Stillwater Mining Co., 18 FMSHRC 1756, 1757 (Oct. 1996). 

We conclude that Grimes Rock has failed to demonstrate “extraordinary circumstances.” 

We, therefore, deny its motion to stay. 

A. Likelihood that Grimes Rock will prevail on appeal 

Grimes Rock argues that the Judge retroactively modified the parties’ settlement 

agreement by requiring the operator to pay the full reinstatement amount after Saldivar no longer 

had other employment, which was more than the agreed upon amount (the difference between 

Saldivar’s earnings at his present job and his earnings at Grimes Rock). GR Mot. to Stay. at 6. 

It asserts that the Judge improperly interpreted the agreement to include implied terms that 

should only have been considered upon the Secretary’s proper filing of a motion to modify the 

existing order. Id. at 6-7. 

The operator’s argument of retroactive modification is not sufficiently persuasive. This 

is especially so given the purpose of the temporary reinstatement provision, which is to put the 

miner, during the time he pursues his discrimination claim, in no worse a position than he was 

while working for the operator. See North Fork Coal Corp., 33 FMSHRC 589, 597-98 (Mar. 

2011). Grimes Rock provides state contract law in furtherance of its contention, but it neglects 

to discuss this state law in the context of the Mine Act’s temporary reinstatement provision. In 

fact, it completely fails to offer any support from the Mine Act or mine safety case law to 

support its argument. GR Mot. to Stay at 6-7. For purposes of this Motion to Stay, we conclude 

that it was not unreasonable for all involved to assume that in the event Saldivar were no longer 

44 FMSHRC Page 727
employed elsewhere, Grimes Rock’s payments would automatically revert to the full amount 

under the Judge’s Order, consistent with the purpose of temporary reinstatement. Thus, we 

conclude that the operator has not sufficiently substantiated its likelihood of prevailing. 

However, even if Grimes Rock were to prevail on its argument that the Judge erred by 

retroactively modifying the parties’ agreement, a stay is not warranted because Grimes Rock 

fails to establish the remaining three Virginia Petroleum factors. As the Commission has 

recognized, where a probability of success on the merits is established, an inadequate showing 

with regard to the other three factors nevertheless still prevents the grant of a stay pending 

review. See Sec’y of Labor on behalf of Rodriguez v. C.R. Meyer and Sons Co., 35 FMSHRC 

811, 812–13 (Apr. 2013) (citing Virginia Petroleum, 259 F.2d at 926). 

B. Irreparable harm to Grimes Rock if Stay is denied 

Grimes Rock argues that it will have no recourse to get its money back should it prevail 

on its appeals. GR Mot. at 7-8.4

 This argument too must fail. “It is . . . well settled that 

economic loss does not, in and of itself, constitute irreparable harm.” Wisconsin Gas Co. v. 

FERC, 758 F.2d 669, 674 (D.C. Cir. 1985); see also Virginia Petroleum, 259 F.2d at 925 (“Mere 

injuries, however substantial, in terms of money, time and energy necessarily expended in the 

absence of a stay, are not enough.”); Rodriguez, 35 FMSHRC at 813. Moreover, the fact that 

Grimes Rock ultimately prevailed in the discrimination proceeding does not change the outcome 

here. As we have previously stated, to accept this argument “would effectively nullify the 

temporary reinstatement provisions of the Mine Act.” North Fork, 33 FMSHRC at 597. 

Reinstated miners often are not ultimately successful on the merits of their discrimination claims, 

even when their claim is brought by the Secretary pursuant to section 105(c)(2). Id.; Baird v. 

PCS Phosphate Co., 33 FMSHRC 127, 129-30 (Feb. 2011). There is nothing in the Mine Act 

which contemplates that the miner would be expected to repay the amounts paid pursuant to the 

reinstatement order. North Fork, 33 FMSHRC at 597. Indeed, that would run counter to the 

intent of the provision, which is to provide immediate relief to a complaining miner while he or 

she waits for the case to be decided. Id. 

In this case, the operator chose to forego the services of the miner and opted for economic 

reinstatement instead. As the Secretary points out, had Saldivar been temporarily reinstated to 

his work at the mine, the operator would not have been able to recoup the wages paid for his 

labor. The result is the same for temporary economic reinstatement. Furthermore, we have held 

that “if the operator chooses to pay the miner while foregoing the miner’s labor, there is no right 

for the operator to seek reimbursement from the miner should the miner not eventually prevail on 

his or her discrimination claim.” Id. at 593. 

 

4

 Grimes Rock also contends that if there is no immediate stay, it will be subjected to 

every punishment and fine the Secretary can assert for non-compliance with an order that is 

before the Commission on appeal. GR Mot. to Stay at 7. However, the operator can properly 

challenge any citation or order before a Commission Administrative Law Judge in accordance 

with 30 U.S.C. § 815(a). 

44 FMSHRC Page 728
C. Adverse effect on Miner Saldivar 

Grimes Rock argues that the Commission should find that the minimal amount of time 

Saldivar will have to wait for the Commission to decide the pending appeals pales in comparison 

to the significant amount of money the operator stands to lose. GR Mot. to Stay at 8-9. 

However, the temporary reinstatement provision was intended to protect the miner not the 

operator. In enacting the Mine Act, Congress stated the essential reasoning behind the temporary 

reinstatement remedy: “The Committee feels that this temporary reinstatement is an essential 

protection for complaining miners who may not be in the financial position to suffer even a short 

period of unemployment or reduced income pending the resolution of the discrimination 

complaint.” S. Rep. No. 95-181, at 37 (1977), reprinted in Senate Subcomm. on Labor, Comm. 

on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 625 

(1978) (“Legis. Hist.”). 

Here, Mr. Saldivar was lawfully awarded temporary reinstatement by a Commission 

Judge under the Mine Act, while he awaited resolution of his discrimination complaint. As 

previously stated, the purpose of the temporary reinstatement provision is to put the miner, 

during the time he pursues his discrimination claim, in no worse a position than he was while 

working for the operator. See North Fork, 33 FMSHRC at 597-98. Because Saldivar has not 

received the full wages he would have received if he had still been working at Grimes Rock, as 

contemplated by the Mine Act, this Commission cannot conclude that he would not be adversely 

affected. 

D. Public interest 

Grimes Rock argues that no public interest will be served by forcing it to pay Saldivar 

additional wages when the Judge has already determined that the miner was properly discharged. 

It asserts that “[e]xtorting” $12,533 may be in the best interest of the miner but not in the interest 

of the public. GR Mot. to Stay at 9. 

First, the outcome of a discrimination proceeding has no bearing on the outcome of the 

temporary reinstatement proceeding. See Grimes Rock, 43 FMSHRC at 303 (“[T]he 

requirements for a full discrimination proceeding do not affect the ‘not frivolously brought’ 

standard in a temporary reinstatement case.”). This is so even after the discrimination case has 

been decided and the temporary reinstatement case remains ongoing pursuant to an order of 

temporary reinstatement issued prior to the dissolution of the merits case. 

Second, while the operator is correct that it is in the best interest of Saldivar to allow the 

enforcement order to proceed, we do not agree that such outcome is not also in the public’s 

interest. Congress “clearly intended that employers should bear a proportionately greater burden 

of the risk of an erroneous decision in a temporary reinstatement proceeding.” Jim Walter Res., 

Inc. v. FMSHRC, 920 F.2d 738, 748 n.11 (11th Cir. 1990). The legislative history of the Mine 

Act indicates that section 105(c)’s prohibition against discrimination is to be “construed 

expansively to assure that miners will not be inhibited in any way in exercising any rights 

afforded by the legislation.” S. Rep. No. 95-181, at 36, Legis. Hist. at 624. There is a clear 

public interest in protecting miners’ temporary reinstatement rights. See also Rodriguez, 35 

44 FMSHRC Page 729
FMSHRC at 814. We thus conclude that the public interest is best served by denying a stay of 

the temporary reinstatement order, as opposed to granting the stay, which would only serve 

Grimes Rock’s private interest. 

III. 

Conclusion 

Miner Saldivar’s ultimate failure to succeed in his discrimination case does not invalidate 

his previous award for temporary reinstatement, nor does it place him outside of the scope of 

miners contemplated by Congress in enacting the temporary reinstatement provision. Because 

Grimes Rock failed to demonstrate requisite extraordinary circumstances for the reasons 

discussed above, we deny the operator’s motion to stay. 

 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Chair 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Commissioner 

 

44 FMSHRC Page 730
Distribution: 

Peter Goldenring 

Pachowicz & Goldenring PLC 

6050 Seahawk Street 

Ventura, CA 93003 

peter@pglaw.law 

Mark R. Pachowicz 

Pachowicz & Goldenring PLC 

6050 Seahawk Street 

Ventura, CA 93003 

mark@pglaw.law 

Alvaro Saldivar 

1241 Lookout Drive 

Oxnard, CA 93035 

saldivarwelding@icloud.com 

Susannah M. Maltz, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

maltz.susannah.m@dol.gov 

Emily Toler Scott 

Counsel for Appellate Litigation 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

scott.emily.t@dol.gov 

April Nelson, Esq. 

Associate Solicitor 

Office of the Solicitor 

U.S. Department of Labor 

Mine Safety and Health Division 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Nelson.April@dol.gov 

44 FMSHRC Page 731
Karla Malagon 

U.S. Department of Labor 

Office of the Solicitor 

350 S. Figueroa Street, Suite 370 

Los Angeles, CA 90071 

malagon.karla@dol.gov 

Jessica M. Flores 

U.S. Department of Labor 

Office of the Solicitor 

350 S. Figueroa Street, Suite 370 

Los Ángeles, CA 90071 

Flores.Jessica@dol.gov 

Bruce L. Brown 

U.S. Department of Labor 

Office of the Solicitor 

350 S. Figueroa Street, Suite 370 

Los Ángeles, CA 90071 

Brown.Bruce.L@dol.gov 

Melanie Garris 

U.S. Department of Labor 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202-5452 

Garris.Melanie@dol.gov 

Administrative Law Judge Margaret Miller 

Federal Mine Safety Health Review Commission 

721 19th Street, Suite 443 

Denver, CO 80202-2500 

mmiller@fmshrc.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

1331 Pennsylvania Avenue, NW, Suite 520N 

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

44 FMSHRC Page 732
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202 434-9987 / FAX: 202 434-9949 

 

December 1, 2022 

DECISION AND ORDER AFTER HEARING 

Appearances: Christopher M. Smith, Esq., Office of the Solicitor, U.S. Department of Labor, 

 Nashville, Tennessee, for the Petitioner 

 Elaine M. Youngblood, Esq., Ortale Kelley, 

 Nashville, Tennessee, for the Complainant 

 Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC, 

 Washington, District of Columbia, for the Respondent 

William K. Doran, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, PC, 

 Washington, District of Columbia, for the Respondent 

Before: Judge Young 

 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 and JASON HARGIS, 

 Complainants, 

 v. 

VULCAN CONSTRUCTION 

 MATERIALS, LLC, 

 Respondent. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

VULCAN CONSTRUCTION 

 MATERIALS, LLC, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

 Docket No. SE 2022-0001 

 MSHA No. BARB-CD-2021-02 

 Mine ID. 40-00131 

 Mine: Wilson County Quarry 

 CIVIL PENALTY PROCEEDING 

 Docket No. SE 2022-0013 

 A.C. No. 40-00131-543032 

 Mine: Wilson County Quarry 

44 FMSHRC Page 733
SUMMARY 

Citation No. 9237452, 30 C.F.R. § 50.20(a): Failure to report an occupational injury 

as defined in 30 C.F.R. § 50.2(e). The Secretary alleges that the operator failed to report an 

injury that rendered the miner unable to perform all job duties on any day after the injury. 

Fact of violation Affirmed p. 15 (Slip Op.) 

Negligence High p. 18 

Penalty $300.00 p. 18 

Complaint BARB-CD-2021-02, 30 U.S.C. § 815(c)(1): Discrimination against miner 

for exercise of rights protected under the Mine Safety and Health Act of 1977, as amended 

(“The Mine Act” or “The Act.”). The Secretary alleges that Complainant was terminated for 

requesting to see a physician for treatment of an occupational injury, in violation of the Act. 

Fact of violation Dismissed p. 18 

INTRODUCTION 

The above-captioned dockets were heard in Nashville, TN, April 12–14, 2022.1

 The 

Secretary alleges that the operator had failed to report an occupational injury, in violation of 

Section 50.20(a) of Title 30 of the Code of Federal Regulations, and that the operator had 

discriminated against miner Jason Hargis (“Complainant”) for reporting his injury and requesting 

treatment by a physician, in violation of Section 105(c)(1) of the Mine Act. As explained below, 

I affirm the citation for failing to report an injury as required, but I hold that the operator did not 

discriminate against the Complainant under Section 105(c) of the Act. 

I. STANDARDS 

A. Burden of Proving Violation 

 The Secretary must prove the elements of an alleged violation by a preponderance of the 

evidence. See Jim Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006); RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000). 

B. Requirement to Report an “Occupational Injury” 

 The Secretary has defined an “occupational injury” as “any injury to a miner which 

occurs at a mine for which medical treatment is administered, or which results in death or loss of 

consciousness, inability to perform all job duties on any day after an injury, temporary 

reassignment to other duties, or transfer to another job.” 30 C.F.R. § 50.2(e) (2022). Operators 

1

 Mr. Hargis filed a timely complaint of discrimination on June 7, 2021. Compl. ¶ 8. The 

Secretary found that Mr. Hargis’ complaint for discrimination was not frivolously brought, and 

upon agreement of the parties, I entered an order temporarily economically reinstating him, 

effective July 27, 2021. Tr. 14:11–25. 

44 FMSHRC Page 734
“shall report each accident, occupational injury, or occupational illness at the mine.” 30 C.F.R. 

§ 50.20(a) (2022). 

C. Discrimination 

 To prove that an operator has discriminated against a miner in violation of the Act, the 

Commission has required the Secretary (or an individual miner or applicant, if proceeding under 

section 105(c)(3)) to establish that the miner engaged in protected activity; that the miner 

suffered an adverse job action; and that the adverse action was motivated, in whole or in part, by 

the protected activity. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786, 2799–80 (Oct. 1980), rev’d on other grounds sub nom., Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981); see also Cumberland River Coal Co. v. FMSHRC, 712 

F.3d 311, 317–18 (6th Cir. 2013) (citing Pendley v. FMSHRC, 601 F.3d 417, 423 (6th Cir. 2010) 

(applying Pasula-Robinette to cases within the Sixth Circuit).2

 If this prima facie case is 

established, the operator may affirmatively defend against the charge of discrimination by 

proving that it would have taken the adverse action regardless of the miner’s protected activity. 

Id. The miner may then rebut the defense by showing that it is pretextual. Id. The ultimate 

burden of proof does not shift under this analysis and remains with the Complainant. Turner v. 

Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1064–65 (May 2011). 

II. FACTS 

A. Background, Witnesses, and Evidence 

Respondent, Vulcan Construction Materials (“VCM” or “Respondent”), operates 

numerous aggregate and construction material mining, quarrying, and processing facilities 

throughout the United States. The mine at issue here is the Wilson Quarry, an aggregate facility 

in Wilson County, TN. Respondent’s operations in the area including the Wilson Quarry include 

seven quarries and a truck shop. Tr. 502:1–4. Complainant had been employed as a miner at the 

Wilson Quarry. 

The parties stipulated to all facts necessary to establish jurisdiction over this case and my 

authority to hear and decide it. S. Post Hr’g Br. at 3–4 (July 5, 2022). They also stipulated that 

Respondent discharged Complainant from employment on May 12, 2021. Id. at 4. 

 The Secretary called as witnesses Complainant, several of his co-workers at the mine, 

and two employees of the U.S. Department of Labor’s Mine Safety and Health Administration 

(“MSHA,” “the Secretary” or “the Agency”). Complainant also called Respondent’s safety 

director, Brandon Clemmons. Respondent’s witnesses included Vulcan’s area operations 

2

 The Ninth Circuit recently decided that Commission discrimination cases must apply 

the standard established by the U.S. Supreme Court in Gross v. FBL Financial Services, Inc., 

557 U.S. 167 (2009), and University of Texas Southwest Medical Center v. Nassar, 570 U.S. 338 

(2013). Thomas v. CalPortland Co., 993 F3d 1204, 1210–11 (9th Cir. 2021). It is unknown 

whether the Commission will apply the Gross-Nassar standard to all cases within its jurisdiction, 

or only to cases in mines within the Ninth Circuit. 

44 FMSHRC Page 735
manager for the area including the Wilson Quarry, Philip Ellis; Mr. Clemmons; the company’s 

human resources manager, Rex Lindsey; former plant manager, Anthony Humes; and current 

supervisor, Chris Williams. 

In addition to the miner witnesses who testified at hearing, Complainant introduced two 

statements made to MSHA Special Investigator Kenneth McClung. The witnesses, former 

miners Kenny Hurst and Pat Woods, were subpoenaed by the Secretary. See Tr. 474:8–488:20.3

 

The Secretary appears to have properly issued and served subpoenas for these witnesses 

but did not inform the Court that they were unavailable until the Solicitor sought to introduce 

their written statements as exhibits. The Solicitor said that efforts to reach the witnesses had been 

unsuccessful. These hearsay statements were admitted over Respondent’s objections. However, I 

noted that the unavailability of the witnesses could affect the weight I would give to the 

statements. Tr. 480:17–22, 482:6–9. 

I credit the statements only to the extent that they are corroborated by other evidence and 

are not cumulative. First, there is hearsay within hearsay in some of the material statements made 

by the declarants. Second, some of the persons quoted in those statements were witnesses at the 

hearing and available to be cross-examined, but neither the Solicitor nor the Complainant 

produced admissions from the operator witnesses, and even the use of leading questions did not 

produce full support for the Secretary’s theory from miner witnesses. 

Third, the statements chosen by the Secretary for emphasis in his post-hearing brief were 

not the focus of the somewhat limited questioning of Special Investigator McClung. This 

prevented the operator from effectively cross-examining the witness who was present about the 

statements. 

Finally, there was extensive discovery in this case. Uncorroborated statements purporting 

to show a general discouragement of reporting injuries or alleged targeting of Complainant, 

based largely on the subjective “personal belief,” speculation, or sweeping generalizations of Mr. 

Hurst and Mr. Woods, is insufficient to counter the weight of the evidence that was gathered 

beforehand and presented by actual witnesses at the hearing. 

Complainant was represented by an attorney from the Department of Labor’s Office of 

the Solicitor as well as his own attorney. The parties introduced numerous exhibits during the 

three-day hearing. I have carefully considered all the evidence admitted at the hearing in 

deciding the issues before me.4

3

 Mr. Hurst was personally served. Mr. Woods was served by certified mail. Id. at 

487:11–488:20. The return receipt was returned and included with the subpoena as an exhibit; 

however, the receipt was unsigned. Id. 

4

 Where necessary or appropriate, I have noted in my decision specific factors I 

considered in making credibility determinations or assigning weight to testimony or exhibits. 

The failure to do so for each witness or exhibit does not indicate that I did not fully weigh and 

evaluate all evidence in the record. 

44 FMSHRC Page 736
B. Complainant’s Employment, Injury, Protected Activity, and Termination 

1. Complainant’s Work and Disciplinary History 

Complainant was employed by VCM at the Wilson County Quarry from August 2018, 

until he was discharged on May 12, 2021. Compl. ¶ 3 (Oct. 1, 2021); Tr. 11:3–12. He mainly 

worked as a plant operator during the time relevant to this proceeding. Tr. 305:24–25. As plant 

operator, he controlled the operation of the plant, the crushing machinery used to break and size 

rocks mined at the quarry. Id. at 306:3–25. He was also responsible for cleaning and maintaining 

an area assigned to him under the company’s “zone” policy. Id. at 348:22–24. As part of his 

duties, he was responsible for lubricating, or “greasing” the bearings daily. Id. at 415:1–11. 

At hearing, miner witnesses praised Complainant’s performance, testifying that he “did a 

good job” running the plant and that he was a highly efficient plant operator. Tr. 60:21. Mr. Ellis, 

VCM’s area manager, agreed that Complainant operated the plant during its most productive 

period. Id. at 599:4–12. 

Witnesses also testified that Complainant had a pleasant personality. One witness called 

him “one of the nicest guys I’ve ever met.” Tr. 222:2–3. Another witness said he was a “normal, 

regular person,” who was “not threatening” and always pleasant. Id. at 144:13–17. A third 

witness described him as “a big teddy bear” and “a pretty cool guy.” Id. at 261:5–6. 

During his employment as plant operator, Complainant worked under two direct 

supervisors, Kyle “K.B.” Parr and Chris Williams, who worked as a fill-in supervisor following 

Mr. Parr’s resignation. As plant manager, Anthony Humes managed the plant supervisors and 

was himself supervised by Area Manager Philip Ellis. At hearing, Complainant testified that Mr. 

Parr was a poor supervisor and that the miners felt “targeted” by management 

(micromanagement and disagreement with miners’ complaints about it). Tr. 367:14–18. 

Miners also generally agreed with Complainant’s assessment of Mr. Parr as someone 

who did not know what he was doing. They testified that Mr. Parr was constantly urging 

Complainant to “run the plant hard,” and noted that Complainant’s discipline from Mr. Parr for 

failure to clean was imposed while the plant was old and in poor condition, causing constant 

leakage (although repairs were made to improve this). See Tr. 243:6–22 (testimony of Mr. 

Stultz). 

Complainant acknowledged that greasing the equipment daily, which took about 35 

minutes, was his job and that it was necessary to prevent damage to the equipment. Tr. 415:1–20. 

He said that he had been counseled about the need to clean more thoroughly, that he disagreed 

with Mr. Parr about this, and that he did not change what he was doing in response to Mr. Parr’s 

input. Id. at 408:18–409:17. 

44 FMSHRC Page 737
Complainant also testified about his employment record. He said that he had been given a 

pay raise in April of 2021, shortly before being terminated. Tr. 343:20–24.5

 He also testified 

about a previous injury. Complainant said he had been hurt on the job while operating a skid 

steer. He testified that Mr. Ellis and Mr. Clemmons were both personally concerned, investigated 

the incident, and put Complainant on light duty. Id. at 326:14–327:14.6

 

Mr. Clemmons said this was done because the plant was down for maintenance and not 

because Complainant could not perform his duties. Tr. 466:25–467:4, 739:22–740:7. 

Complainant also said that Mr. Clemmons had asked him what they could do to keep him from 

going to the doctor after the skid steer injury. Id. at 324:25–325:8. Mr. Clemmons denies saying 

this. Id. at 740:8–10. 

Before his discharge, Complainant had previously been disciplined under the company’s 

progressive discipline policy, under which employees were verbally warned, then given a written 

warning, followed by a second written warning and three-day suspension. Ex. GX-7, 8. The 

second written warning provides that the employee may be terminated for any subsequent 

violation of company policies. Ex. GX-8. 

Complainant’s disciplinary issues were not related to his primary duties as plant operator. 

Rather, they stemmed generally from failures to completely clean and grease areas and 

equipment for which he was responsible before leaving work. 

Complainant received his first written warning by Mr. Parr on Dec. 4, 2020. Tr. 347:8. 

He wrote on the warning notice, “I do not agree,” and testified that he had told Mr. Parr it was 

not possible to clean his area “spotless” every day. Id. at 348:2–349:11. He said that sometimes 

the power would be shut down, and cleaning could not be accomplished. He also noted that some 

areas were rarely travelled. Id. at 349:12–25. 

After he was cited by Mr. Parr, Complainant and others began taking photographs of their 

areas to document that they had been cleaned. Ex. GX-5; Tr. 207:11–25, 351:13–16. 

Complainant provided photographs at hearing. Ex. GX-5. He admitted, on cross-examination, 

that he did not take photographs of his area every day. Tr. 413:17–25.7

 Complainant testified that 

it was “obvious that [Mr. Parr] used this to start a paper trail to terminate me.” Id. at 355:15–17. 

 Complainant received his second written warning on Feb. 8, 2021, for leaving work 

before the end of the shift without permission on Feb. 1. Complainant and other witnesses who 

5

 Complainant’s raise was $0.53/hour, from $19.10 to $19.63. Ex. GX-11. Mr. Ellis 

testified that comments made in the review process should have led to a reduced rating, and that 

the raise was made in error. Tr. 559:13–561:6. The recommendation and pay raise decision 

predated the injury and protected activity in this case and have no bearing on the outcome. 

6

 Complainant had not requested to see a doctor for this incident. Tr. 443:16–25. 

7

 None of the photographs were taken on any of the days for which Complainant had 

been disciplined for failing to clean his area. 

44 FMSHRC Page 738
were on the crew testified that on that day, Mr. Williams had stopped to talk to them and had told 

them that they could leave once the graduation pad was cleaned. Id. at 365:15–23. Witnesses said 

that finishing the cleaning of the pad was a two-person job. Id. at 168:14. The truck used for this 

purpose employed a high-pressure water cannon, and miners in the area not handling the cannon 

or in the truck could be in danger of injury. Id. at 359:8–11. 

Complainant and Mr. Evans left before the crew completed its work cleaning the pad, and 

all four miners left before 4:30 p.m. Tr. 247:15–16. The miners who remained said that they 

completed the cleaning job. Id. at 249:16–17. Complainant was nevertheless given his final 

written warning and a three-day suspension. Id. at 356:24–357:2; Ex. GX-8. Complainant 

testified that there was no known policy requiring miners to leave together prior to February 2. 

Tr. 365:5–8. He said that he waved to Mr. Humes, his second-level supervisor, as he left. Id. at 

361:1–9.8

Mr. Humes acknowledged seeing Complainant leave and waving to him, but he said he 

did not know what Mr. Williams had told the crew and would have stopped him if he had known. 

Tr. 621:13–622:12. Clint Evans was also on the crew and was threatened with a verbal warning 

but disputed it, and it was withdrawn after he argued to Mr. Williams that nobody had told the 

crew there was a set schedule. Id. at 169:5–16.9

 Mr. Williams disputed the crew’s account of events and said they had not finished 

cleaning the area as he had instructed and that he had to clean it himself. Tr. 768:7-8, 769:4–14.10

8

 Complainant testified that Mr. Humes was on the phone when he waved to him. 

9

 The evidence as to whether Mr. Evans was disciplined or merely counseled is ambiguous. Mr. 

Evans said Mr. Williams called him to the office and told him he was getting a verbal warning 

for leaving work early. Mr. Williams’ testimony is unclear about whether Mr. Evans was 

disciplined, while Mr. Evans said that he argued that it was unfair to punish him. Tr. 170:16–25. 

He said that Mr. Williams relented, telling Mr. Evans not to worry about it, and that the 

discussion was “just us talking.” Id. at 189:1–4. Mr. Evans had no disciplinary history at the 

time. Id. at 185:7–10. I credit his account of the meeting, which is fairly detailed and consistent 

with his work history. I also infer from Mr. Evans’ account that Mr. Williams called him to the 

office with the intent to discipline him for leaving work early. Complainant had already been 

issued his second written warning and suspension when Mr. Evans met with Mr. Williams. Id. at 

180:11–14. 

10 It is difficult to assess Mr. Williams’ credibility as a witness. No witness had anything 

negative to say about his character, and in fact the miner and operator witnesses spoke very 

highly of his personal qualities and his ability as a supervisor. However, Mr. Williams was often 

a poor witness. His recall of events was uneven. His testimony contradicted itself at times. He 

was combative and argumentative over even minor points. His testimony disagreed with that of 

other witnesses who seemed credible and were generally disinterested. On the other hand, many 

of the important facts he testified to are either corroborated or unrebutted and consistent with 

other witnesses’ accounts. 

(continued...) 

44 FMSHRC Page 739
The next day, Mr. Williams told Mr. Humes that the miners had left early without cleaning the 

area and that Complainant had left work early, and he testified that he communicated his 

“frustration” to Mr. Humes. Id. at 769:18–23. 

Mr. Humes said Mr. Williams told him the crew had been told not to leave until 4:30. Tr. 

621:25–622:2. He said Mr. Williams was “kind of adamant” about wanting Complainant and Mr. 

Evans to be disciplined. Id. at 624:1–6. He insisted on meeting with human resources, and after 

he and Mr. Humes met with HR, the notice of suspension was prepared and overnighted to Mr. 

Humes, who gave it to Complainant the next day. Id. at 624:8–14. 

While Complainant disagreed with the disciplinary actions against him and his 

supervisors’ views on cleaning and greasing, Respondent produced evidence supporting its 

reasons for taking seriously the zone cleaning and greasing responsibilities assigned to 

Complainant. MSHA Special Investigator McClung acknowledged that a violation of the 

requirement to keep areas where miners work and travel clean and free from debris, codified as a 

mandatory safety and health standard, 30 C.F.R. § 56.20003 (2022),11 could result in an S&S 

citation to the operator. Tr. 490:7–491:5. 

Operator witnesses also testified about serious damage to the plant machinery caused by 

a failure to properly grease the equipment. There was a “catastrophic” failure of the rotor 

bearings in November 2020. Tr. 546:15–547:21. This required a “very costly” and extensive 

repair. Id. Inspection revealed that the bearings were “charred and smoked” due to a lack of 

grease. Id. at 547:17–21. Respondent attributed the failure to Complainant. Id. at 547:15–17, 

615:1–14. 

10 (...continued) 

I note that counsel for Respondent told the Court Mr. Williams would be late for the 

hearing on the day of his testimony because he had been essentially trapped on his property by 

trees that had fallen in the previous evening’s severe thunderstorms. There were in fact numerous 

downed trees in the local area following the storm, which was prolonged and powerful. When he 

arrived at the hearing, Mr. Williams was flushed, and his clothes were dirty and torn. He 

appeared to be highly agitated. He testified that he was uncomfortable as a witness adverse to his 

brother-in-law. I do not find that he was an untruthful or generally unreliable witness, but in 

some instances, I have not credited his testimony where it disagrees with others. 

11 The provisions of the standard relevant here require that: 

At all mining operations—(a) Workplaces, passageways, storerooms and service rooms 

shall be kept clean and orderly; (b) The floor of every workplace shall be maintained in a 

clean, and so far as possible, dry condition. Where wet processes are used, drainage shall 

be maintained, and false floors, platforms, mats, or other dry standing places shall be 

provided where practicable . . . . 

30 C.F.R. § 56.20003(a)–(b). 

44 FMSHRC Page 740
2. Management Issues at the Wilson Quarry 

Mr. Parr was the plant supervisor until he resigned from VCM. Mr. Humes was the plant 

manager during Complainant’s employment through his termination, until being terminated 

himself. Mr. Humes testified at the hearing, and Mr. Parr did not. 

Complainant complained about management generally, saying that Mr. Parr had “no 

clue” about plant operations, and that the miners generally felt “targeted” by micromanagement 

and disagreement with miners’ complaints about it. Tr. 367:14–18. Complainant, like other 

miners, said that Mr. Parr had threatened to replace him and testified about Mr. Humes 

threatening to fire and replace the entire crew. Id. at 368:4–5. 

The miner witnesses who testified also complained generally about Mr. Humes and Mr. 

Parr. Their testimony about Mr. Williams, who succeeded Mr. Parr at the Wilson Quarry after 

being temporarily reassigned there from another VCM operation, was generally positive. 

Miners criticized Mr. Parr’s ability as a manager. Andrew Tucker said Mr. Parr didn’t 

know what he was doing. Tr. 59:2–11. Mr. Dycus characterized him as a “write-up happy 

person” who would try to “write people up for anything and everything.” Id. at 207:3–8. Mr. 

Stultz said he was a “very bad man.” Id. at 241:23.12 Mr. Tucker said, “I think at one point in 

time, we all felt targeted” by Mr. Parr, id. at 65:14, and that he thought Mr. Parr was trying to 

create a “paper trail” against Complainant, id. at 64:24–25. He could not recall anything else that 

he would characterize as Respondent “targeting” Complainant. Id. at 65:16–19. 

Mr. Dycus also testified that it “seemed” like Mr. Parr was targeting Complainant. Tr. 

242:18–20. But he also said, “I believe that during that time period, every person was targeted by 

Anthony Humes.” Id. at 256:13–15. 

Mr. Tucker also testified that Mr. Parr had asked him to falsify a document, Tr. 61:3–

12,13 and that he believed Mr. Parr falsified the document himself, and witnesses generally 

believed he had resigned after the company opened an investigation into the incident. Id. at 

113:19–114:7. Mr. Tucker discussed the incident in detail with Mr. Ellis, who said Mr. Parr 

resigned, and that he assumed that Mr. Tucker’s complaint had been accurate. Id. at 570:17–

571:19. 

After Mr. Parr resigned, Anthony Humes assumed his duties. Miners were unhappy with 

him as well. Mr. Tucker said he first reported Mr. Parr’s request to falsify the examination report 

to Mr. Clemmons because he said he did not trust Mr. Humes to act on them. Tr. 75:5–24. 

However, he also said his disagreements with Mr. Humes were never about safety, and that Mr. 

Humes never asked him to do anything unsafe. Id. at 101:8–13. 

12 Mr. Stultz backtracked from this assessment, somewhat. Tr. 242:3–9. 

13 Subsequent testimony made clear that he was referring to a safety examination report 

concerning some guards that had not been repaired. Tr. 72:16–73:14. 

44 FMSHRC Page 741
Mr. Tucker and several other miner witnesses cited an incident in which Mr. Humes told 

the workforce that he would “fire everybody and start over himself.” Tr. 64:1–21. He was 

characterized by Mr. Ellis and Mr. Lindsey as not being a good fit for the company. Mr. Ellis 

cited the company’s desire to move to more “positive, coaching style” of management, and that 

Mr. Humes’ focus on criticizing miners and style of communicating was “not appropriate.” Id. at 

566:1–14. He also cited input received directly from Mr. Stultz, in particular, about Mr. Humes’ 

management. Id. at 567:20–25. Mr Ellis also testified about an incident in which Mr. Humes had 

said something inappropriate over the company radio. Id. at 568:7–11. 

Mr. Ellis also cited several calls from miners and from Mr. Lindsey after Mr. Humes 

threatened to fire the whole workforce. Tr. 569:1–570:15. Mr. Humes was counseled and 

apologized for those remarks. Id. at 570:10–15. After Mr. Ellis was told about the radio incident, 

Mr. Ellis consulted with Mr. Lindsey and others in the company and made the decision to 

terminate Mr. Humes in July of 2021. Id. at 565:1–22. 

While miners criticized Mr. Humes, they did not all agree that he was “targeting 

Complainant.” See Tr. 85:24–86:5, 111:10–14 (testimony of Mr. Tucker); id. at 125:32–136:4 

(testimony of Caleb Walker that Mr. Humes was reportedly out to fire him and Mr. Tucker). But 

Mr. Dycus testified that Mr. Humes had told him, while Complainant was on medical leave, that 

he would be replacing Complainant as plant operator. Id. at 208:17–24. 

Mr. Dycus said his experience with Mr. Humes was “horrible.” Tr. 219:15. Mr. Stultz 

said of Mr. Humes, “To be quite frank, he was a jerk.” Id. at 257:22–25. He said he had felt 

personally targeted by Mr. Humes and had complained about him to senior management. Id. at 

258:1–4. 

Other miners were apparently comfortable complaining to management about their 

supervisors. Mr. Tucker said he contacted the company’s HR manager and Mr. Ellis after Mr. 

Humes threatened to fire everybody. Tr. 148:12–22. Mr. Tucker complained to Mr. Clemmons 

and Mr. Ellis about Mr. Parr’s pressuring him to falsify an examination report. 

Mr. Williams was brought to the Wilson Quarry and assumed supervisory responsibility 

over the plant. Miners were “not happy” with the “zone” policy holding them accountable for a 

particular area, Tr. 102:25–103:13, but they generally respected and got along with him. See id.

at 103:5–7 (testimony of Mr. Tucker). Miners agreed that he was trying to improve housekeeping 

and plant maintenance. See id. at 104:11–105:24. Mr. Dycus said Mr. Williams was a “great 

supervisor.” Id. at 219:14–23. Mr. Stultz was also complimentary. Id. at 259:5–8. 

Mr. Ellis also praised Mr. Williams. When asked what he thought about Mr. Williams as 

a supervisor, Mr. Ellis testified: 

I think Chris Williams is a great person. He -- he cares about the people that work 

for him. He likes to help people out. His style is leading by example. He -- in some 

instances, he's probably too involved. He gets into every issue and -- but I think 

 

44 FMSHRC Page 742
Chris to be in a lot of ways a manager like I am suggesting Vulcan wants to 

encourage 

Tr. 572:3–15. 

While they were critical of their supervisors, the miner witnesses generally testified that 

Respondent was a safety-conscious operator. See Tr. 79:13–16 (testimony of Mr. Tucker saying 

the company’s “biggest goal is to work safe and stay safe,” and that the company did not have 

any major injuries during his seven years at the quarry). This included Complainant, who agreed 

that the “company, as a whole, if you brought up anything safety-wise that was dangerous, they 

would address them [sic] as quickly as they could.” Id. at 397:25–398:2. 

No evidence was introduced from which one could infer that any miner had ever been 

disciplined by Respondent for anything related to safety. On the contrary, Mr. Dycus said that 

Mr. Parr and Mr. Humes spread rumors about him having called MSHA to “stir up trouble,” but 

that he was never disciplined for anything, although he did leave his job at the Wilson Quarry. 

Tr. 195:15–199:15. 

Miner witnesses speculated that miners were put on light duty or sent to the break room 

to avoid reporting injuries. See Tr. 199:22–200:5 (testimony of Mr. Dycus); id. at 117:3–16 

(testimony of Mr. Tucker). But there was testimony that this was used to see if the injury would 

get better, and that it was assumed that a miner would see a doctor if it did not. See id. at 130:23–

131:8 (testimony of Mr. Walker). 

3. Complainant’s Injury, Request to See a Physician, and Discharge 

Complainant testified that he was injured on Saturday, April 10, when passing liner plates 

to a co-worker, Andrew Tucker, who was working inside the crusher. Tr. 314:4–19. The plates 

weighed 35–50 pounds each, and Complainant had to reach, lean, and twist to pick up the plates 

and pass them into the crusher for installation. Id. at 315:3–16. 

After completing his work with the crusher plates, Complainant said he mentioned to 

Chris Williams, his direct supervisor,14 and Mr. Tucker that “something really hurt” in his back, 

but he did not immediately report an injury. He said that the injury, when it occurred, was “not 

immediately debilitating,” and that he did not think it was serious at first. Tr. 314:14–316:6, 

425:6–9. 

 Complainant said that he reported to Mr. Williams on Monday, April 12, that his injury 

was more serious than he thought, and that it was not responding to heat and ice. Tr. 316:11–25. 

He said he told Mr. Williams at this time that he needed to see a doctor, and that Mr. Williams 

told Complainant he “would get it turned in” to upper management. Id. at 317:6–20. 

Complainant further testified that Mr. Williams instructed him to “run the plant and do nothing 

else” that afternoon. Id. at. 317:22–24. 

14 Mr. Williams is also Complainant’s brother-in-law. He said their relationship is not 

strained but that they are not close. Tr. 431:7-13. 

44 FMSHRC Page 743
On April 14, his last day of work before medical leave for his cardiac procedure, 

Complainant had a text message exchange with Mr. Clemmons. Mr. Clemmons asked about 

Complainant’s condition, and Complainant replied that his back still hurt, and that Mr. Williams 

had told him to only run the plant and to do nothing else. Ex. GX-9. Mr. Clemmons 

acknowledged Complainant’s response. Id. Complainant testified that his injury made running 

the plant uncomfortable and that other tasks, such as cleaning and greasing, were “very painful” 

to “unbearable.” Tr. 323:2–12. 

 On direct examination, Complainant testified that the operator was striving for “zero 

[reportable] incidents,” and that there was a general sense that reporting injuries was 

discouraged. Tr. 328:4–14. He said that miners “were discouraged from reporting any type of 

injury” short of profuse bleeding or broken bones. Id. at 324:8–17. 

 In contrast, Mr. Clemmons testified about a number of documented cases in which a 

miner had been injured and had requested to see a doctor after that proved ineffective. See 

generally Tr. 732–737; Ex. R-P. The accidents were reported to MSHA. Id. None of the miners 

involved were disciplined for requesting to see a physician. Id.

 While still feeling the effects of his injury, Complainant took medical leave for an 

unrelated cardiac catheterization procedure. Tr. 380:1–2. He was on leave for two weeks, 

beginning on April 15, before returning to work on May 4. Id. at 379:19–24. Complainant was 

thus only at work for two days before a two-week absence for his cardiac procedure and the 

recovery prescribed by his cardiologist. 

 While Complainant did not see a physician for his back injury, he did seek treatment 

while on medical leave from a chiropractor, who recommended he see a doctor. Tr. 385:7–17. 

Complainant said the chiropractor took x-rays and told him he had a muscular injury to his 

thoracic spine. Id. 

After returning from medical leave on May 4, Complainant said he recalls reporting to 

Mr. Williams and Mr. Humes that the pain from his injury was still interfering with his job duties 

but does not recall talking with Mr. Ellis. Tr. 382:5–12. Complainant said the operator took no 

further action to address the effects of his workplace injury. Id. at 382:14–25. 

He routinely saw Mr. Williams and Mr. Humes in the company’s morning meetings. Tr. 

331:1–19. As part of those meetings, employees were encouraged, but not required, to stretch 

their major muscle groups before working. Id. at 330:6–8. Complainant’s injuries prevented him 

from participating. Id. at 330:17–25. 

Complainant testified that he told Mr. Williams, Mr. Humes, and his co-workers that he 

was still unable to fully perform all his duties without pain, and that Mr. Williams and Mr. 

Tucker helped the cleaning and lifting parts of his job. Tr. 382:8–383:9. However, in his 

Complaint to MSHA, Complainant said that he did not often ask for help because he could get 

most of the cleaning done with a water hose. Id. at 433:3–13; Ex. R-T. 

44 FMSHRC Page 744
 He also testified that he told Mr. Clemmons, while the plant was shut down due to a 

vandalism incident on May 8, that his back was still hurting. Tr. 383:16–384:2. When Mr. 

Clemmons asked if it was from April, Complainant said that it was, and that he wanted to see a 

doctor, id. at 384:2–5; “[a]t which point, he did not respond to me at all. He just drove away.” Id.

at 384:5–6.15 Mr. Clemmons denies that Complainant ever told him he needed to see a doctor. Id.

at 748:9–21. 

 Mr. Williams and Mr. Humes testified that Complainant was not completing his assigned 

duties as required. Mr. Humes testified that Complainant and Mr. Walker were not cleaning their 

zones fully and were leaving hazards behind for the next morning. Tr. 612:15–613:14. This was 

discussed in “toolbox talks” and then with the miners one-on-one. Id. 

Mr. Humes said Mr. Williams recommended Complainant be terminated for not cleaning 

his area and greasing the plant, and for leaving work without telling anyone these tasks had not 

been completed, on May 10 and 11. Mr. Humes said Mr. Williams reported the conditions to him 

on both days, that Mr. Williams cleaned the area and greased the plant on the morning of May 

10, and that Mr. Humes personally went to the area to inspect on May 11, after Mr. Williams told 

him Complainant had again not cleaned the area. Id. at 630:17–631:3. 

Mr. Humes called Mr. Ellis and explained the issue to him on the morning of May 11. He 

recommended Complainant be terminated because of failure to improve his cleaning and 

greasing performance. Tr. 631:9–14. 

Complainant testified that he finally told Mr. Williams, after the morning meeting on 

May 12, “I’ve put up with this as long as I am going to. I need to see a doctor today.” Tr. 332:1–

3.16 He said Mr. Williams’ response was, “I will let them know.” Id. at 332:8–9. After the 

morning meeting, Mr. Williams called Mr. Humes and told him Complainant had requested to 

see a doctor, and Mr. Humes relayed this to Mr. Ellis. Id. at 632:23–633:5. 

Respondent’s witnesses testified about its plans to terminate Complainant on May 12, 

based on Mr. Humes’ recommendation the previous day. Tr. 508:20–509:17. In anticipation of 

the meeting, Mr. Ellis prepared written notes, which he intended to use as a script for the 

15 Neither party questioned Complainant further on this exchange, and there was no 

testimony about any subsequent actions by the company or Complainant based on the alleged 

request. 

16 There was some confusion about the nature of Complainant’s injury. Mr. Ellis said he 

thought Complainant had injured his ribs. Tr. 512:13–21. Complainant said he never claims his 

ribs had been “broken,” and that the injury was the same back injury he had reported on April 12. 

Id. at 384:7–385:6. Mr. Williams’ testimony on this point was confusing and ambiguous. He 

testified that he thought Complainant’s ribs were injured, and his notes say that Complainant told 

him he had three broken ribs, but he acknowledged this was the same injury Complainant 

reported in April. I find that the injury reported on May 12 was the same muscular injury to 

Complainant’s thoracic spine which had been reported on April 12. This confusion is not 

material to the matters in dispute here. 

44 FMSHRC Page 745
termination meeting, and contacted Mr. Lindsey, who also prepared for the meeting. Id. at 

520:7–21. They intended for Mr. Williams to bring Complainant to the office after the morning 

meeting so they could tell him he was being discharged. 

However, when Complainant asked to see a physician, Mr. Williams instead allowed 

Complainant to go to the plant to begin his shift. He then contacted Mr. Ellis and told him 

Complainant had requested to see a doctor. Mr. Lindsey said that Mr. Williams had to “pivot” 

from the original plan, and that he and Mr. Ellis decided to discuss the situation with risk 

management, which handles workers’ compensation and liability issues for VCM. Tr. 671:13–

672:11. 

Mr. Ellis and Mr. Lindsey discussed the situation and contacted Mr. Clemmons and Andi 

Romano, Respondent’s risk management officer. Tr. 682:22–683:14. After conferring, they 

decided to proceed with the termination, but to also provide Complainant with a list of 

physicians, as required by Tennessee workers’ compensation law. Id.17

Mr. Ellis said he did not know Complainant had requested to see a doctor for his injury 

until the morning he was to be terminated, after the decision had been made. Tr. 509:23–25. He 

assumed that the request was for a new injury. Id. at 512:24–513:2. 

 Mr. Ellis also said that Respondent requested law enforcement officers be present during 

the termination. He said this decision was made based on input from Mr. Williams and Mr. 

Humes about Complainant possibly having a history of violence and gun possession and his 

reaction to previous discipline. Tr. 526:5–527:13.18 Mr. Humes testified that Mr. Williams told 

him Complainant “normally had a gun on him.” 

Complainant said that Mr. Humes called him later that morning and said the company 

was trying to get him a doctor in Lebanon. Tr. 333:15–20. He said that he also spoke with Mr. 

Williams, who told him he was bringing a replacement to operate the plant so Complainant could 

go to the doctor. Id. at 334:8–15. Instead, Complainant was taken to the area outside of the 

17 Tennessee’s workers’ compensation law requires the employer to provide the 

employee with a group of three or more independent reputable physicians, surgeons, 

chiropractors, or specialty practice groups in the injured employee’s community, or, if no such 

providers are available in the community, within a one hundred (100) mile radius of the 

employee’s community. Tr. 716:11–14; see also TENN. CODE ANN. § 50-6-204 (2022). The 

exhibit introduced included three physician practice groups. 

18 Mr. Williams testified he had seen Complainant carry a gun “at times,” but never at 

work. Tr. 814:2–21. Neither Mr. Williams nor Mr. Humes said anything about Complainant 

having a history of violence. I note that such a characterization would be inconsistent with the 

testimony of Complainant’s co-workers and the demeanor I observed during the hearing. It is 

difficult to fault an employer for being concerned about a possible workplace violence issue, and 

it appears Mr. Ellis may have drawn an inference about Mr. Hargis from the way the information 

may have been reported to him, but the way the termination was carried out was unfortunately 

embarrassing and should not be taken as a reflection on Mr. Hargis’ character. 

44 FMSHRC Page 746
mine’s offices, where Mr. Ellis, Mr. Humes, and two Wilson County deputy sheriffs were 

waiting. Id. at 335:24–336:4. The group summoned him, and Complainant was informed that he 

was being terminated “due to a couple of previous write-ups and poor performance.” Id. at 

336:12–15. 

 Rex Lindsey, the company’s area human resources director, was on the phone during the 

meeting. Tr. 337:9–14. He informed complainant of the “finer points” relating to his termination, 

including Complainant’s last-chance notice. Id. at 337:21–338:5. Mr. Ellis did give complainant 

a list of doctors that he could see for his injury. Id. at 338:19–25. The form, Ex. GX-6, indicated 

that complainant had suffered an occupational injury. Respondent did not report the injury to 

MSHA until after it had been cited for failing to do so. See id. at 446:10–15, 468:24–469:1. 

III. Disposition 

A. Respondent Failed to Timely Report an “Occupational Injury” to MSHA. 

1. Finding of Violation 

Complainant was injured while performing maintenance on the operator’s crushing plant. 

I credit his testimony that he felt pain while handing 35–50-pound liner plates to Mr. Tucker, 

who was working to install the plates inside the machine. Tr. 314:4–19. While Mr. Tucker 

testified that he does not recall Complainant saying that day that he had injured himself, 

Complainant claims that he told Mr. Williams about the injury in passing that day and reported it 

to him again on Monday, April 12. Id. at 315:14–316:3. 

The nature of the injury and the operating environment do not support a finding that 

Complainant clearly reported an injury on Saturday, April 10. However, I find that he did tell 

Mr. Williams the following Monday, April 12, that his injury was worse than he had thought, 

and that he wanted to see a doctor.19

Complainant’s ongoing pain after April 12, and Respondent’s knowledge of and response 

to his complaints, show an awareness of an occupational injury at least as early as April 14, 

2021. On that date, Complainant had a text message exchange with Mr. Clemmons. Ex. GX-9. In 

that exchange, Mr. Clemmons asked Complainant how his back was, and whether he was “still 

taking it easy?” Id. Complainant replied that he was, and that his supervisor, Mr. Williams, had 

19 My finding that Complainant requested to see a doctor at this point is based largely on 

the fact that Mr. Williams did not clearly contradict him but only said he did not recall 

Complainant ever requesting to see a doctor until the day he was terminated. Tr. 774:18–20. 

However, as discussed below, I do find it unusual that there was no apparent effort to elevate this 

initial request. I also do not find this request, by itself, to have produced any negative response 

from any of Respondent’s agents, including Mr. Williams. None of the other witnesses 

acknowledged hearing about this initial request, and Mr. Williams placed Complainant on light 

duty and arranged for other miners to clean and grease Complainant’s zone after he reported the 

injury. 

44 FMSHRC Page 747
told him to “run the plant and do nothing else.” Id. Mr. Clemmons acknowledged this message. 

Id. 

First, I find that Complainant suffered an “occupational injury” as the agency has 

reasonably defined that term. He was injured while working in a mine. The Agency’s general 

definition of “occupational injury” has been affirmed by the Commission and the D.C. Circuit 

Court of Appeals. See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 464 (D.C. Cir. 1994) 

(noting approval of definition of “occupational injury” and affirming finding that accident was 

reportable even if injury occurred while miner was at mine but not working when injured). 

The only possible issue is whether Complainant’s injury was serious enough to require 

reporting. The definition includes a requirement to report an injury that gives rise to an “inability 

to perform all job duties on any day after an injury.” 30 C.F.R. § 50.2(e) (emphasis added). 

Respondent claims that it limited Complainant’s work out of “kindness,” Tr. 539:5–10, 

but the record establishes that Complainant was in fact placed on light duty. The operator 

admitted as much in its answer. Ans. ¶ 5. Mr. Humes testified that Complainant had been placed 

on light duty. Tr. 628:5–14. This was a decision made by his supervisor, and VCM’s safety 

manager was aware of the decision. See Ex. GX-9. 

It is well-established by the record that Complainant’s job duties included more than 

running the plant. Indeed, the record establishes that he was highly efficient as plant operator but 

was disciplined for his alleged failure to perform other duties adequately, including cleaning his 

area. Thus, an inability to clean his area supports a finding of occupational injury. 

Complainant testified that his ability to perform several of his required tasks was 

impaired by his injury. Climbing stairs was “painful,” using a hose to clean his area was “very 

painful,” and “[s]hoveling was just basically unbearable.” Tr. 323:8–12. On at least three days, 

his supervisor, Chris Williams, did the cleaning for him. Id. at 323:20–22. As noted above, Mr. 

Williams told Complainant to “run the plant and do nothing else,” and Mr. Clemmons was aware 

of this directive. I therefore find that Complainant was unable to perform all of his required tasks 

due to his injury, and that his employer’s management was aware of this disability. 

As safety director for Respondent, Mr. Clemmons was also aware of MSHA’s injury 

reporting requirements. See Tr. 732–40, Ex. R-P (discussing reports of occupational injury and 

illness and admitting exhibit containing those reports). I hold that he must have at least been 

constructively aware of the definition of “occupational injury” used by the agency to require 

reporting of such injuries. 

The evidence shows that Respondent took pride in its safety record and spotlighted its 

favorable history of occupational injuries to shareholders. See Ex. GX-4. The evidence also 

shows that the operator knew of its duty to report occupational injuries and had a program for 

recording and reporting them. After Complainant contacted the MSHA District Office about his 

injury, the office apparently contacted someone at the plant, who admitted that Complainant had 

44 FMSHRC Page 748
been injured on the job. Tr. 284:18–285:23. Yet it did not file an MSHA Form 7000-1. Id. at 

284:23–24.20

Finally, the evidence shows that the operator had a policy of seeking to treat minor 

ailments with the so-called “RICE” method—rest, ice, compression, and elevation. There is 

nothing wrong with this, in and of itself. But at least in this instance, it appears that an overreliance on the “RICE” concept seemed to have been used as an alternative and not an adjunct to 

the operator’s duty to investigate and report accidents and occupational injuries.21

While the incident resulting in Complainant’s injury does not meet the definition of 

“accident” for immediate reporting purposes under Section 50.2(h), the Mine Act uses a broader 

definition of the term “accident,” and the statutory definition includes an “injury to . . . any 

person.” 30 U.S.C. § 802(k) (2022). This is significant because the operator is required to 

investigate, record, and report all accidents. 30 U.S.C. § 813(d) (2022). Because Congress took 

care to define “accident” in the Act, I find the statutory definition controls this responsibility. 

Respondent was obviously aware of this duty because Mr. Clemmons and Mr. Ellis had 

in fact conscientiously investigated a previous minor injury to Complainant, involving a skid 

steer he had been driving. Tr. 327:11–14. It is thus inconceivable that Mr. Clemmons would not 

have known of his duty to investigate, record, and report the accident and occupational injury to 

the Complainant in this case. 

Yet Respondent did not report the occupational injury in this case within 10 days of April 

14—a date on which the evidence conclusively establishes Mr. Clemmons’ knowledge of the 

occupational injury that prevented Complainant from performing all his duties on that date. I 

impute that knowledge to Respondent. 

20 The inspector testifying, Otis Carroll, did not speak to Complainant or anyone at the 

quarry but was advised by the District office to cite the operator for failing to report the injury. 

Although this was hearsay testimony, it is corroborated by other facts and was unrebutted by the 

operator. I find Inspector Carroll’s testimony to be credible and that it is reasonable to believe 

that someone in a management position at the quarry acknowledged Complainant had been 

injured on the job and admitted that no MSHA Form 7000-1 had been filed. 

21 “RICE” was cited repeatedly by Mr. Clemmons in his testimony. However, there is no 

evidence that Complainant was provided with the means for compressing the site of his injury or 

that he was ever assisted in elevating the injury. Due to its location (the thoracic spine), elevation 

could either be considered to have occurred naturally while he was standing, or not to have 

occurred because there is a therapeutic means for doing so that was not used. I thus conclude that 

the operator’s approach consisted at most of merely providing ice that the complainant could use 

himself and limiting his activities while he was recuperating. In other words, he was only 

provided with rest and ice, and reciting “RICE” as a mantra is singularly unpersuasive. At some 

point, when this approach proved ineffective, the operator was duty-bound to treat Complainant 

as having suffered an occupational injury. 

44 FMSHRC Page 749
Indeed, it does not appear that the operator ever reported the injury, even after it provided 

a physician referral to complainant on the day he was terminated. When the operator did finally 

report the injury to abate the citation, the report appears to be incomplete and inaccurate. See Ex. 

GX-3.22 This is inexcusable. MSHA takes seriously the duty to report occupational injuries, as 

well as the potential that such injuries will be under-reported. That is why the agency audits 

operators to ensure their reports are accurate. See generally Big Ridge, Inc., 34 FMSHRC 1003, 

1011–22 (May 2012), aff’d, 715 F.3d 631 (7th Cir. 2013). However, the agency cannot audit 

every operator, and must generally rely on self-reporting of accidents, occupational injuries, and 

illnesses. 

I do not find that the operator generally suppressed reporting of accidents and injuries, as 

suggested by the Complainant. Nor do I find sufficient evidence that the operator engaged in a 

pattern of under-reporting occupational injuries. But the evidence in this case does at least give 

rise to an inference that the operator may have diverted a miner to “RICE” to forestall medical 

treatment of a minor injury, and that in this case—at least—it did not fulfill its duty to report a 

relatively minor injury once it became aware that the injury affected the miner’s ability to 

perform all his duties.23 Though the injury was minor, it could carry the same statistical weight in 

the operator’s record as a more serious lost-time injury. 

2. Penalty

Several of the statutory penalty factors have been stipulated to, including the size of the 

operator, its record of previous violations, and the effect of the proposed penalty on the 

operator’s ability to remain in business. The gravity of this violation is not such that it would 

result in an injury to any miners. However, it is a serious violation. The Act requires mine 

operators to assume primary responsibility to prevent unsafe conditions and practices. 30 U.S.C. 

§ 801(e) (2022). Where the Secretary has expressly required the operator’s assistance in this 

effort, by requiring occupational injuries to be recorded and reported, the failure to do so affects 

the integrity of the enforcement program. 

I agree with the inspector’s characterization of the negligence as “high.” Tr. 288:8–21. 

However, I note that the operator was contacted by MSHA and admitted to not having filed the 

form prior to the citation being issued but did not file the form until after it received the citation. 

I therefore find that the operator should not be credited with rapid compliance after the fact for 

an affirmative duty it ignored until its failure had been cited. Instead, I find that the penalty 

22 The MSHA Form 7000-1 report of accident does not reflect any attempt to investigate 

the accident and gives the return-to-work date as April 14, even though Complainant continued 

to complain about his injury after this date, and Mr. Clemmons was aware of the complaints of 

injury and that Complainant’s supervisor had placed him on limited duty. 

23 I have considered Respondent’s difficulty in evaluating Complainant’s condition. He 

was on the job for only three days after his injury and was then absent for two weeks on medical 

leave for an unrelated condition. But before the medical leave, VCM was aware that 

Complainant’s supervisor had placed him on restricted duty due to his injury, giving rise to the 

duty to report it. 

44 FMSHRC Page 750
proposed does not adequately reflect the aggravated lack of care in failing to report the injury 

when it knew of it, and I assess a penalty of $300.00. 

B. Complainant Was Not Terminated Because of His Protected Activity. 

Complainant’s discrimination complaint fails because the evidence at trial did not 

establish discrimination under the Pasula-Robinette or Gross-Nassar standards.24 As noted 

above, the Commission has thus far only required that Gross-Nassar be employed in mines 

within the Ninth Circuit, but the Commission or other circuit courts may determine that the test 

must be employed. In the interest of judicial economy, I have considered both standards in 

reaching my conclusion. 

Under either standard, the Secretary and the Complainant must prove by a preponderance 

of the evidence that Complainant engaged in protected activity, that he suffered an adverse 

employment consequence, and that there was a causal connection between his exercise of 

protected activity and the adverse action. 

As explained below, I find that Complainant failed to meet his burden of proving a 

violation under Pasula-Robinette. While I do find that the bare minimum standard for a prima 

facie case has been met, the inference drawn for causation cannot withstand Respondent’s wellsupported explanation for its decision to discharge Complainant, and Complainant failed to 

demonstrate that the operator’s cited performance issues were pretextual. 

24 A Gross-Nassar analysis requires the movant to establish that the impermissible 

motivation was a “but for” cause of the adverse employment action, i.e., the action would not 

have been taken but for a complainant’s protected activity. Under Pasula-Robinette, the 

complainant must carry the burden of persuasion on the prima facie case of protected activity, 

discrimination, and a causal nexus between them. But then the burden of persuasion supposedly 

“shifts” to the operator, who may prove that it would have taken the adverse action for 

unprotected reasons alone. 

While the Commission has continued to rely on Pasula, generally, citing the legislative 

history of the Act, see Sec’y of Labor on behalf of Riordan v. Knox Creek Coal Corp., 38 

FMSHRC 1914 (Aug. 2016), Riordan also noted that the Judge’s correct application of Pasula

was effectively a “but for” test. 38 FMSHRC at 1921, n.10; see also Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211, 1222 (Sloviter, J., dissenting) (expressing opinion that Commission 

had effectively applied the “now accepted ‘but for’ rule in mixed-motivation cases.”). 

There may not be much of a practical distinction between the supposed burden-shifting 

under Pasula and the natural effect of evidence introduced in the normal course of a hearing. The 

Commission noted that the result would have been the same under either standard in Riordan, 

and the ALJ on remand in Thomas v. CalPortland Co. rather easily harmonized Commission 

precedent with the Ninth Circuit’s decision. 43 FMSHRC 531, 540–41 (Dec. 2021) (ALJ) (citing 

Sec’y of Labor on behalf of Thomas Robinette, 3 FMSHRC 803, 818, n.20 (Apr. 1981) (“The 

‘ultimate burden of persuasion’ on the question of discrimination rests with the Complainant and 

never ‘shifts.’”)). 

44 FMSHRC Page 751
Considering the evidence under Gross-Nassar, I conclude Complainant was not 

terminated because of any consideration by the operator of any protected activity. I find that he 

did engage in protected activity, that the operator was aware of this activity, and that he was 

terminated from employment. However, there is no proof that would support a reasonable 

inference that his protected activity was a “but-for” cause of his termination. 

As the Supreme Court has explained, “but-for” causation may be determined by isolating 

the possible rationales offered for an adverse employment action and determining how the 

outcome may be affected. See Bostock v. Clayton Cty., Ga., 140 S. Ct. 1731, 1739 (2020). (“[A] 

but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we 

have found a but-for cause.”) In the present case, the possible reasons Complainant was 

separated from his employment include the disciplinary and performance issues cited by the 

operator, and Complainant’s request to see a physician, which he claims is an activity protected 

against discrimination under the Act. 

There is no evidence that Complainant’s request for medical care played any role in a 

termination that was already underway when the persons making the termination decision 

learned about the request. There is thus no causal connection, and the analysis under the GrossNassar standard would produce the same result as under Pasula-Robinette. 

1. Complainant’s request to see a doctor for an occupational injury is protected 

activity under the Act.25

The Act protects miners against discrimination or interference because of their exercise 

of their statutory rights, including those enumerated in Section 105(c)(1) as well as “any [other] 

statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1) (2022). Thus, whether the Act affords 

miners the right to request medical treatment for an occupational injury is a threshold question in 

this case. 

The Commission has apparently not held that a request to see a physician, standing alone, 

qualifies as protected activity. However, it has found that the reporting of injuries is protected 

against discrimination, even if there is no safety complaint associated with the report. Swift v. 

Consolidation Coal Co., 16 FMSHRC 201, 205 (Feb. 1994). 

25 The Complaint in this matter cites only the request to see a doctor as protected activity. 

See GX-1. A miner may introduce evidence of other protected activity outside the scope of his 

complaint only if the evidence was investigated by MSHA. Hatfield v. Colquest Energy, Inc., 13 

FMSHRC 544, 546 (Apr.1991); see also Thomas v. CalPortland Co., 42 FMSHRC 43, 51 (Jan. 

2020) (declining to modify Hatfield). Complainant did not produce other evidence of protected 

activity in this case. The scope of my decision is thus constrained by the report of protected 

activity cited in the Complaint—the request to see a physician—but I do consider each of 

Complainant’s alleged requests, and not merely the May 12 request on which the Complaint 

appears to rest, because such requests arising from the same injury at issue would naturally be 

within the scope of inquiry by a competent investigator. 

44 FMSHRC Page 752
I find that the Act does protect requests for medical care, even if the injury did not result 

from an unsafe condition or practice or was not made in conjunction with a miner’s report of an 

alleged danger or safety and health violation. In addition to the reasoning in Swift, I rely on the 

text, structure, and purpose of the Act’s anti-discrimination provisions. 

As noted previously, Section 103(d) of the Act requires operators to investigate all

accidents. 30 U.S.C. § 813(d). If the report of an occupational injury is the event which gives rise 

to this duty, it would thwart the clear and express intent of the statute to permit mine operators to 

suppress the recording and avoid the investigation of accidents by discouraging or punishing the 

report of occupational injuries. 

Extending the Act’s protection to requests for medical care is consonant with the 

protection of other rights under the Act. When a miner requests to see a physician, the report 

may affect the operator’s safety record, either because the complainant will require and receive 

medical treatment (as opposed to evaluation) or because the treating physician may proscribe 

activities necessary for the miner’s job. 

The Mine Act is a remedial statute, and its terms must be understood broadly to 

effectuate Congress’ purpose—to eliminate unsafe and unhealthful conditions and practices in 

mines, relying primarily on the active involvement of operators in the prevention of such 

conditions and practices. 30 U.S.C. § 801(d)–(e); see also Sec’y of Labor on behalf of Riordan v. 

Knox Creek Coal Corp., 38 FMSHRC 1914 (Aug. 2016). The Commission’s embrace of 

activities beyond those enumerated in the Act has been consistently and broadly inclusive. See 

Emery Mining Corp., 10 FMSHRC 276, 283, 293 (Mar. 1988) (permitting walkaround 

inspection participation under Section 103(f)); So. Ohio Coal Co., 5 FMSHRC 729, 759 (Apr. 

1983) (ALJ) (permitting post-inspection conference participation under Section 103(f)); Sec’y of 

Labor on behalf of Bennett v. Emery Mining Corp., 3 FMSHRC 2648, 2657 (Nov. 1981) (ALJ) 

(requiring operator-provided training under Section 115). 

Further, the D.C. Circuit has consistently (and recently) relied on the intent to achieve the 

goals of the Mine Act in affirming miner’s rights. In Marshall County Coal Co. v. FMSHRC, the 

court recognized a miner’s Section 103(g) rights—enabling the raising of anonymous 

complaints—as a basis for a protected activity in an interference claim. 923 F.3d 192, 195, 201 

(D.C. Cir. 2019). The operator activity complained of there was a requirement to report 

complaints to management. Id. at 197. 

In Harrison County Coal Co. v. FMSHRC, the court denied the operator’s petition for 

review because there was substantial evidence of six protected activities—mostly regarding 

reporting health, safety, and discrimination complaints. 790 Fed. Appx. 210, 212, 213 (D.C. Cir. 

2019). The court reiterated that reporting is a right bolstered by its importance to achieving the 

Act’s purpose: 

Since the participation of miners in reporting unsafe working conditions is essential 

to the effectiveness of the Mine Act, Congress explained miners “must be protected 

against any possible discrimination which they might suffer as a result of their 

participation.” 

44 FMSHRC Page 753
Id. at 212 (quoting S. Rep. No. 95-181, at 35, reprinted in Senate Subcomm. on Labor, 

Committee on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 626 (1978)). This is in line with the Commission’s reliance, in Swift, on 

the command of Section 2(e) that “the operators of such mines with the assistance of the miners 

have the primary responsibility to prevent the existence of such conditions and practices in such 

miners.” 30 U.S.C. § 801(e). 

Consistent with Commission and court precedent and Congress’ clearly expressed intent, 

I find that a mine operator may not discourage, interfere with, or discriminate because of a 

miner’s request to see a doctor because he was injured at the mine. 

2. The Operator was aware of Complainant’s protected activity. 

I credit Complainant’s testimony that he twice communicated a request to see a doctor to 

his supervisor, Chris Williams. His testimony regarding his requests is discussed more 

thoroughly below, but he at least made the requests on April 12, the Monday after he was 

injured, and on May 12, the day he was terminated. Mr. Williams, an agent of Respondent, was 

aware of both requests. The managers who made the decision to terminate Complainant were 

aware of the request he made on May 12. 

3. Complainant suffered an adverse employment consequence in this case. 

Complainant’s employment was terminated. Discharge from employment is expressly 

prohibited by Section 105(c) of the Mine Act and is the classic example of an adverse 

employment action. 30 U.S.C. § 815(c)(1). 

4. The evidence is insufficient to support an inference that Complainant was 

terminated because of his request to see a physician. 

The burden of producing sufficient evidence to support a prima facie case of 

discrimination is not especially great in the abstract. A complainant may provide direct evidence 

that the adverse employment action was discriminatory. But if such evidence is unavailable, as is 

usually the case, the Complainant is only required to demonstrate that the available 

circumstantial evidence could support an inference of discriminatory treatment. Turner, 33 

FMSHRC at 1065–66. 

I find that the Complaint for discrimination fails because there is no direct evidence of 

discriminatory intent and no reasonable basis for inferring that his discharge from employment 

could have been causally related to Complainant’s protected activity. This is true under either 

legal standard the Commission might apply to his discrimination claim. 

a. There is no direct evidence of discriminatory intent or motivation. 

The operator has denied that Complainant was discharged because of his protected 

activity. The Secretary and the Complainant must show at the prima facie stage that the protected 

44 FMSHRC Page 754
activity could have motivated his discharge, and then carry the burden of proving by a 

preponderance of the evidence that his discharge was so motivated. 

Complainant could not provide any direct evidence of discriminatory motive. However, 

the absence of direct evidence is not fatal to Complainant’s case. “‘[D]irect evidence of actual 

discriminatory motive is rare. Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent.’” Con-Ag, Inc. v. Sec’y of Labor, 

897 F.3d 693, 700 (6th Cir. 2018) (quoting Sec’y of Labor on behalf of Howard v. Cumberland 

River Coal Co., 34 FMSHRC 1396, 1397 (June 2012)). 

 Therefore, I must consider whether inferences reasonably drawn from the evidence in the 

case may be used to support Complainant’s contention that he was fired because he engaged in 

protected activity. Such inference may be supported by the following factors: 

(1) [T]he operator’s knowledge of the protected activity; (2) the mine operator’s 

hostility or ‘animus’ towards the protected activity; (3) the timing of the adverse 

action in relation to the protected activity; and (4) the mine operator’s disparate 

treatment of the miner. 

Id. (quoting Cumberland River Coal Co., 712 F.3d at 319; Sec’y of Labor on behalf of Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508, 2510–12 (Nov. 1981), rev’d on other grounds, 709 F.2d 

86 (D.C. Cir. 1983)). 

b. The record does not support an inference that Complainant was 

discriminated against because of his protected activity. 

1. There is scant evidence of disparate treatment of the 

Complainant. 

The record in this case is replete with complaints by miner witnesses of unfair, arbitrary, 

and harsh treatment by lower-level supervisors. However, this was a burden borne by the entire 

workforce. There is little evidence that Complainant was an especial target of abuse, and no 

evidence that any protected activity may have motivated Respondent’s agents. 

On the contrary, miner witnesses testified that everyone in the workforce felt targeted by 

poor supervisors who did not know their jobs well. Some miners did testify that Complainant’s 

supervisors had “targeted” him for termination, but the bases for their assertions are grounded in 

actions that predated any protected activity in this case. 

When questioned about the operator’s management, the miner witnesses complained 

about generally arbitrary and unfair supervision of employees by Mr. Parr and Mr. Humes. In 

fact, Complainant and several other witnesses noted that at one point Mr. Humes threatened to 

fire and replace the entire workforce. 

It was clear that none of the miners felt genuinely intimidated by these threats. After Mr. 

Humes’ tirade, witnesses noted that “every employee called [human resources] that day;” Tr. 86, 

44 FMSHRC Page 755
and Mr. Ellis noted that he had discussed the situation with several miners and the company’s 

human resources department, and he required Mr. Humes to apologize. 

There is some evidence that Complainant was treated less favorably than other miners. 

However, he himself testified this began under Mr. Parr—who was separated from his 

employment before claimant requested to see a physician. On cross-examination, Complainant 

admitted that he had been verbally counseled by Mr. Parr for failing to thoroughly clean his area. 

Mr. Parr subsequently issued a written warning to Complainant for the same issue. 

Complainant testified that he believed Mr. Parr was trying to make a “paper trail” to 

terminate him. Even if this were true, however, any motivation Mr. Parr might have had to harass 

or oppress Complainant could not have been related to protected activity that had yet to occur. It 

is thus not logically possible to infer that Mr. Parr targeted claimant because of his protected 

activity. 

Complainant subsequently was formally disciplined again, by a different supervisor, 

before his termination. However, the second written warning and suspension also took place 

before his injury and subsequent protected activity. When Complainant was injured, he was 

therefore already on a “last chance” letter, having been suspended by the operator and told, in 

writing, that any future violation of policies or failure on his part could lead to termination. 

I have considered the possibility that Complainant was the only miner disciplined for 

leaving work early when he was suspended. At least one other miner, Mr. Evans, left at the same 

time as Complainant, and all four miners on Complainant’s crew left without completing the 

cleaning tasks assigned to them, according to Mr. Williams. But this suspension also occurred 

well before the injury upon which Complainant’s claim of protected activity rests, and 

Complainant’s discipline here was thus entirely unrelated to his request to see a doctor for an 

injury that had not yet occurred. 

Furthermore, while Mr. Evans may not have been formally disciplined, it appears that 

Mr. Williams at least intended to do so. Mr. Evans was summoned to the office, where Mr. 

Williams told him that he was going to be issued a verbal warning. Because Mr. Evans had no 

prior disciplinary history, his treatment under the company’s progressive disciplinary policy was 

equivalent to Complainant’s. While he may have talked his way out of formal discipline, Mr. 

Williams did not ignore the actions of the other employee whose actions were the same as 

Complainant’s. 

Additionally, Complainant’s discipline does not appear to be inconsistent with that 

assessed to other miners for similar conduct. Mr. Walker had a similar disciplinary history and 

had also received a second written warning and three-day suspension for the same alleged 

failures that led to Complainant’s suspension. Tr. 548:24–549:10; Ex. R-L. There was no 

evidence that Mr. Walker had ever engaged in protected activity before his suspension. 

In summary, there is insufficient evidence to support the contention that Complainant 

was treated more harshly than other miners, and no evidence at all for inferring that any actions 

of his supervisors had anything to do with mine safety or health. There is thus no basis for me to 

44 FMSHRC Page 756
impute an improper motive for any of the predicate disciplinary actions on which Complainant’s 

termination was grounded. 

In fact, this hypothesis is refuted by Respondent’s treatment of Complainant before and 

after he engaged in protected activity—which might be a more appropriate consideration than 

alleged disparate treatment of Complainant and other similarly situated miners. See Riordan, 38 

FMSHRC at 1927 (finding of pretext upheld where written record of miner’s performance was 

inconsistent with reasons given for termination). 

Before his protected activity, Complainant was formally disciplined three times, by or at 

the insistence of three different supervisors, for failure to complete cleaning and greasing tasks 

that Respondent had assigned to him as part of his job. After his injury and earliest request to see 

a physician, Complainant was discharged for the same conduct that he had been disciplined for at 

least three times prior to his injury and protected activity. 

The discharge was consistent with company policy, and Complainant had been warned 

when he was suspended that he could be discharged for any future failing or violation of 

company policy. He himself admitted that he had not fully cleaned his area or greased the plant 

on May 9 and 10, and he does not know whether anyone else did so. Tr. 422:13–22.26

My decision is mindful of the Commission’s admonition that operator justifications in 

discrimination cases should not “be examined superficially or be approved automatically when 

offered,” but that my careful analysis may not “substitute [my] business judgment or sense of 

‘industrial justice’ for that of the operator.” Cumberland River Coal Co., 712 F.3d at 320 

(quoting Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982)). 

In this case especially, I note the performance issues cited by the operator may be vital to 

its safe and efficient operation. Special Investigator McClung testified that a violation could be 

cited as an S&S violation of MSHA’s housekeeping standards. Tr. 490:7–491:5. It would be 

contrary to the Act’s purpose and text to punish an operator for holding miners accountable for 

compliance with a mandatory safety and health standard. And the operator provided credible 

testimony about the severe costs and inconvenience produced by a failure to grease the plant 

bearings and other equipment, which is a daily requirement. 

His disciplinary history left Complainant in a precarious position, where any subsequent 

violation of company policies would result in his termination. As noted, acts predating the 

protected activity cited in this case could not have been motivated by that activity. Complainant 

nevertheless could have established a basis for inferring a nexus between his protected activity 

and his discharge but was unable to prove that the operator’s termination decision—which was 

26 Complainant also testified fellow employees, including Mr. Williams, helped him to 

clean his area after he returned to work on May 4. Even if true, this cannot be reasonably related 

in any way to a hostility toward his protected activity. Although one might question whether it 

would be fair in a general sense to discharge an employee who had been led to believe others 

would help him clean his area, Complainant did not report to his supervisor that he had been 

unable to clean or grease on May 9 or 10. 

44 FMSHRC Page 757
consistent with its policies and Complainant’s work history—was ever treated differently 

because of activity protected under the Act. 

2. The record does not support an inference of animus toward the 

Complainant because of safety or health related issues or general 

animus toward safety and health concerns. 

While the record does not support an inference that he was treated differently because of 

his protected activity, Complainant could have provided a reasonable basis for inferring his 

termination was motivated by improper animus against safety and health generally, or against 

him for his involvement in or advocacy on safety and health issues. There is not a basis in the 

record for this inference, either. 

First, there is no evidence at all that Complainant ever engaged in any advocacy on safety 

and health issues.27 Nor does he appear to have had any specific, material involvement in those 

issues during his employment. 

There is also no evidence that Respondent harbored any animus against safety and health 

generally. On the contrary, witnesses almost without exception testified that the company tried to 

operate safely and to correct hazardous conditions that were brought to its attention. Complainant 

himself provided such testimony. See Tr. 397:25–398:2. 

I also note the weight of circumstantial evidence undermining any inference of hostility 

to safety and health. Respondent held “morning stretch” sessions for employees, which 

testimony acknowledged as having a safety purpose. Tr. 147:3–5. Employees apparently felt 

comfortable calling human resources and senior managers to complain about their supervisors. 

When Mr. Humes supposedly posted a new policy requiring workers to leave the jobsite at the 

same time at the end of their shift, an employee removed the message so that he could bring it to 

the morning meeting for discussion. 

Testimony by other miners also refutes any notion that Respondent was hostile to safety 

and health complaints. Mr. Dycus testified that it was generally known that he had made a 

complaint to MSHA, and yet was never disciplined by the company for anything. Even more 

telling is the incident where Mr. Parr allegedly tried to persuade Mr. Walker to falsify an 

examination report before an inspection, Mr. Walker’s refusal, and his reporting the incident to 

Respondent’s management. VCM opened an investigation. Mr. Parr then resigned. The 

inescapable inference is that miners believed they could report safety matters to management, 

and that when they did so, those matters would be properly addressed. 

Nor is there any evidence that the Company showed any hostility toward Complainant 

because of his request to see a doctor. As noted, every prior disciplinary action occurred before 

27 While not advocacy per se, Complainant did testify about reporting safety issues to his 

supervisors and management. However, he acknowledged that Respondent’s agents were 

responsive to those reports, and there was no evidence of any hostility to them. 

44 FMSHRC Page 758
his injury and protected activity. When Complainant requested to see a doctor, there was no 

adverse response to the request from anyone in mine management. 

At worst, Complainant’s request for medical care was ignored. If Complainant’s previous 

requests had any effect, it was to have him placed on limited duty due to his injury. Mr. Williams 

and Mr. Clemmons both inquired about Complainant’s injury after that. There is no conduct 

from which I could infer any hostility arising from his injury. 

Complainant’s request for medical care on May 12 certainly had no effect on a 

termination decision that was well underway before the decisionmakers were aware of it. Mr. 

Ellis testified that he made the decision to terminate Complainant, with input from Mr. Humes 

and Mr. Lindsey. They had intended for Mr. Williams to bring Complainant to the office after 

the morning meeting so that they could communicate the decision to him. 

Mr. Ellis prepared notes in anticipation of that action. While Mr. Ellis testified that Mr. 

Williams was not involved in the termination decision, his notes suggest otherwise.28 His 

unrebutted testimony shows that he took those notes before he learned of the request to see a 

physician in preparation for the meeting at which Complainant was to be terminated, the next 

day. The context and the content of the notes together clearly support his testimony. 

There is no evidence that Mr. Ellis was aware that Complainant requested to see a doctor 

before making the decision to terminate his employment, or that he discussed any previous 

requests with Mr. Humes, Mr. Williams, or Mr. Clemmons. Nor is there any evidence that any of 

the other individuals involved in the decision to discharge Complainant ever evinced anything 

worse than indifference in response to his request to see a doctor. 

This evidence supports Respondent’s contention that it took seriously safety and health 

issues brought to its attention. I thus find that there is no evidence in the record from which one 

could reasonably infer any hostility to protected activity, including Complainant’s request to see 

a doctor. 

3. Coincidence in time between Complainant’s request to see a 

doctor and his termination raises a superficial inference of 

potential discriminatory intent that does not survive evidence 

raised in response to his prima facie case. 

Coincidence in time between protected activity and an adverse employment action justly 

creates suspicion that there may be a relationship between the two. A miner may establish a 

28 The Secretary has suggested that this should detract from Mr. Ellis’ credibility. S. Post 

Hr’g Br. at 20. However, the wording of the question, the answer, and Mr. Ellis’ notes leaves 

open the possibility that Mr. Humes told Mr. Ellis he had discussed the issue with Mr. Williams. 

See Tr. at 517:17–22 (testimony of Mr. Ellis, stating that information was given to him “by Chris 

through Anthony”). Whether and to what extent Mr. Williams was involved in the decision is not 

material because there is no evidence suggesting that Mr. Williams, or any of Respondent’s other 

agents, may have been motivated by Complainant’s protected activity. 

44 FMSHRC Page 759
prima facie case where the adverse employment action is imposed soon after the exercise of 

protected activity. See Turner, 33 FMSHRC at 1066 (citing King v. Rumsfeld, 328 F.3d 145, 

150–51 (4th Cir. 2003) (reversing trial court’s conclusion that plaintiff failed to make out a prima 

facie case of retaliatory discharge based on evidence proffered by the plaintiff that “his 

termination came so close upon his filing of [an EEOC] complaint giv[ing] rise to a sufficient 

inference of causation to satisfy the prima facie requirement”)). 

The Commission has held that coincidence in time, combined with knowledge of a 

miner’s protected activity, may establish discriminatory motivation. Sec’y of Labor on behalf of 

Knotts v. Tanglewood Energy, Inc., 19 FMSHRC 833, 837 (May1997); Bradley v. Belva Coal 

Co., 4 FMSHRC 982 (June 1982). I credit Complainant’s testimony that he requested to see a 

physician on May 12, the morning he was terminated. It is undisputed that all of those involved 

in the decision to terminate Complainant were aware of the protected activity on May 12. 

Mr. Williams, who provided input to Mr. Humes in support of the latter’s termination 

recommendation, testified about the request to see a physician. Mr. Humes, who made the 

recommendation to terminate Complainant, was also aware of the request before the termination 

was carried out. Mr. Ellis and Mr. Lindsey, who made the decision to terminate Complainant, 

also knew of the request because Mr. Williams reported it to them. 

Here, as in Knotts, the Complainant was terminated soon after his protected activity. 

Indeed, he was discharged almost immediately after requesting to see a physician on May 12. 

This close proximity in time is sufficient to establish a prima facie case of discrimination, 

because in the absence of other evidence, a causal relationship is strongly suggested by the 

timing of the two events. 

While Complainant has provided sufficient proof for a prima facie case, the analogy to 

Knotts cannot survive close scrutiny. In Knotts, the miner/complainant had an extensive 

conversation with a representative of the mine’s owner. 19 FMSHRC at 834. Subjects of the 

conversation included safety, equipment and production problems, morale, mine policy, and 

other subjects. Id. The mine’s vice president was working underground and listened to the 

conversation by phone. Id.

The next day, Mr. Knotts was discharged. 19 FMSHRC at 835. Knotts said the vice 

president told him that the company had suspected that Mr. Knotts had been talking to the mine 

owners for some time. Id. The vice president’s own testimony indicated he was upset that Mr. 

Knotts had criticized mine management in the conversation. Id. While the company argued that 

Mr. Knotts was fired for engaging in a lengthy conversation instead of doing his job, the ALJ 

found otherwise. Id.

In affirming the ALJ’s rejection of the operator’s affirmative defense, the Commission 

noted that there was no evidence of past discipline or performance issues in Mr. Knotts’ work 

record. 19 FMSHRC 838. In fact, the company admitted he was “one of the best employees.” Id.

That is practically the inverse of the situation in the present case. Here, Complainant’s 

disciplinary record placed him on a “last chance” agreement before he was injured or engaged in 

44 FMSHRC Page 760
any protected activity. The disciplinary record was based on his alleged failure to clean and 

grease his zone and his alleged early departure from work on February 1, 2020, for which he was 

suspended. 

Even if the previous disciplinary actions were questionable, there is no evidence that they 

were motivated in any part by any activity cognizable under the Act. To the extent safety was 

implicated at all, even MSHA’s investigator acknowledged that the failure to clean areas where 

miners work or travel could lead to S&S violations. 

Complainant nonetheless could have shown that the final action taken by the operator, 

ending his employment with Respondent, was motivated by his protected activity. However, the 

coincidence in time turns out to be just that—a coincidence—and is insufficient to overcome the 

operator’s explanation for Complainant’s discharge. It appears that the request to see a physician 

did not influence, but rather interrupted, the execution of the termination decision. 

4. Respondent acted consistent with its business practices, and the record 

does not support a finding that its explanation was pretextual. 

The Commission has held that “pretext may be found . . . where the asserted justification 

is weak, implausible, or out of line with the operator's normal business practices.” Sec’y of Labor 

on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990) (citing Haro v. 

Magma Copper Co., 4 FMSHRC at 1937–38). In this case, Respondent’s evidence explains the 

coincidence in time, and the termination process was consistent with VCM’s progressive 

disciplinary policy and its maintenance and housekeeping policies. 

The operator’s witnesses gave consistent, credible accounts of the termination and their 

consideration of Complainant’s request to see a physician. The plan to terminate Complainant 

was already in motion when the key management players learned of Complainant’s request to 

see a physician. Termination was the logical next step under Respondent’s progressive 

disciplinary policy. 

In accordance with its internal procedures, the operator had choreographed an elaborate, 

scripted plan for carrying out the termination. But when they heard that Complainant had 

requested to see a doctor, VCM’s management paused to consider its plan and decided to provide 

a list of physicians to the Complainant in addition to proceeding with the planned termination. 

Respondent did not fire Complainant “because” he had asked to see a doctor. Rather, its 

management continued with an already-formulated plan to terminate him, but made a slight 

modification to that plan, providing him with a list of physicians he might see about his injury. 

Thus, instead of summoning Complainant from the morning meeting, the operator made a 

“pivot” after Mr. Williams told them he had requested to see a doctor. This request on May 12 

could not have motivated a plan that was already under way, based on a decision that was made 

the previous day. 

I have also considered that Complainant’s first request could have motivated a 

discriminatory response by Respondent. See Riordan, 38 FMSHRC at 1924 (citing Gorzynski v. 

44 FMSHRC Page 761
JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010); Pero v. Cyprus Plateau Mining Corp., 

22 FMSHRC 1361, 1365 (Dec. 2000) (holding a gap of several months between protected 

activity and discharge to be probative of animus)). But nothing in the record suggests that it did. 

The first request to see a doctor was made to Mr. Williams, who was an agent of 

Respondent. But there is no evidence that Mr. Williams told anybody else about that request, or 

that any of the persons involved in the termination decision—Mr. Ellis, Mr. Lindsey, or Mr. 

Humes—were otherwise aware of the request.29

Mr. Williams himself did not respond adversely to Complainant’s protected activity. 

After Complainant had requested to see a doctor, but before he was terminated, Mr. Williams 

asked about Complainant’s back nearly every day. Tr. 430:23–431:2. 

This case is thus unlike Riordan. As the Commission noted, the complainant/miner in 

that case was disciplined immediately after his most recent protected activity, and then 

terminated months later. Riordan, 38 FMSHRC at 1927 (“Taken together, these two incidents 

raise an inference that Riordan’s termination was not coincidental.”) (emphasis added). There are 

no corroborating facts to support such an inference in this case. 

 

Complainant testified that he made his request on two other occasions. While 

Complainant only cited as protected activity his May 12 request to see a physician, Ex. G-1; Tr. 

439:21–440:2, any previous requests would have been within the scope of MSHA’s 

investigation. 

Furthermore, credible testimony about previous requests could be used to establish 

knowledge and might be a basis for finding that the operator’s business justification was 

pretextual. I have therefore considered Complainant’s testimony that he told Mr. Clemmons on 

May 8, and that he told Mr. Humes, on a day he could not recall, over the radio.30

 

Complainant’s recollection of these requests is oddly vague and does not reflect a 

progression or escalation of his concern with the company’s failure to refer him to a doctor for 

an injury serious enough to affect his work. He also testified that his pain from the injury was so 

serious that he could not sleep and that it was “affecting everything about [his] daily life.” Tr. 

332:4–7. Yet he does not appear to have followed through or complained about the operator’s 

alleged inaction on his request until May 12. 

29 Despite having the opportunity to depose witnesses in discovery and subpoena and 

question witnesses at the hearing, Complainant produced no evidence that Mr. Williams had ever 

discussed his initial request or any subsequent conversations about his need for medical attention 

with anybody else in the company. 

30 Complainant also says that after he returned to work in early May, following his April 

15 cardiac procedure, he told Mr. Williams, Mr. Humes, and his co-workers in passing that his 

back was still hurt and that he could not complete all his tasks. Tr. 382:3–25. 

44 FMSHRC Page 762
I do not credit Complainant’s testimony that he told Mr. Clemmons he needed to see a 

doctor on May 8. Mr. Clemmons allegedly asked if this was due to his injury in April, and when 

Complainant said it was, Complainant said Mr. Clemmons drove away without responding. Tr. 

384:2–6. 

This testimony is inconsistent with other facts in the record, as well as human nature and 

common sense. Complainant said that his injury was serious enough to have affected him 

profoundly for more than a month. He knew Mr. Clemmons was aware of the injury. Mr. 

Clemmons had previously investigated an incident in which Complainant was injured. Mr. 

Clemmons had also inquired about Complainant’s condition while he was recovering from the 

injury at issue in this case. Yet there was no follow-through with Mr. Clemmons, or anyone else, 

until the day he was discharged. 

Perhaps realizing the weakness of his case, Complainant also claimed Mr. Clemmons had 

previously asked what could be done to keep him from going to the doctor after the skid steer 

injury. Mr. Clemmons denied this, and Complainant’s testimony is at odds with his own 

testimony about the investigation into the incident, which characterized the investigation as 

careful and thorough. 

Furthermore, the comment seems out of character with Mr. Clemmons’ text messages to 

Complainant, evincing what appeared to be genuine concern about his injury. In that context, I 

credit Mr. Clemmons’ denial, in part because the record includes incidents where other miners 

had requested to see a doctor and had their requests granted. See Ex. R-P. Some of these requests 

were for relatively minor injuries, contrary to Complainant’s claim that the reporting of anything 

short of “profuse bleeding or broken bones” was discouraged. 

Complainant also claims to have told Mr. Humes over the radio that he wanted to see a 

doctor. I am skeptical of this for several reasons. 

First, Mr. Humes denied that Complainant ever told him he wanted to see a doctor. Tr. 

625:1–4. I found Mr. Humes to be a disinterested witness who was forthright and candid about 

his own shortcomings, and I credit his testimony here because it is more consistent and 

reasonable than Complainant’s version of events 

Second, Complainant says he cannot remember how Mr. Humes responded to the 

request, and there is again no linkage made between this request and other requests that were 

allegedly made. He did not testify that he had told Mr. Humes about his earlier request to Mr. 

Williams, shortly after his injury. As with the requests allegedly made to Mr. Clemmons and Mr. 

Williams, the testimony relates a solitary statement that the operator’s management allegedly 

ignored, and Complainant did not testify about any effort to follow up on or escalate his requests. 

Finally, the record establishes that comments made over the radio could be heard by other 

persons generally. Mr. Humes was discharged from employment in part because of something 

offensive he said over the radio that was heard by employees. Yet none of the other miner 

witnesses testified that Complainant ever made a request to see a physician over the radio. 

44 FMSHRC Page 763
There is also no testimony about or basis for inferring a correlation between the alleged 

previous requests and any consideration of them by Respondent’s management when it decided 

to discharge Complainant from employment. As the party with the burden of proof, it is 

incumbent on the Complainant to not only suggest an inference, but to support it with credible 

evidence. Even accepting that all his requests to see a doctor were made as stated, there is no 

evidence that anyone might have considered them when Respondent made the decision to 

terminate him.31

The operator relied on input from Mr. Williams and Mr. Humes in making that decision. I 

have credited Complainant’s testimony that he had previously told Mr. Williams on April 12 that 

his injury was not improving and that he needed to see a doctor. But even Complainant did not 

testify that Mr. Williams reacted adversely to this request, or that he attempted to discourage or 

interfere with his pursuit of medical treatment. 

Mr. Williams claims not to have made a recommendation to fire Complainant, and Mr. 

Humes claims responsibility for the recommendation. But the termination decision was the last 

in a chain of disciplinary actions, undertaken by or with input from three different supervisors. 

Each of the previous disciplinary actions preceded Complainant’s request to see a physician, and 

there was no protected activity or evidence of any other relevant health and safety activities or 

views that could have influenced those decisions. 

It therefore appears that Complainant was discharged for the same type of performance 

issues that contributed to his adverse disciplinary record. He himself acknowledged that he failed 

to clean or grease the plant on May 9 or 10, as reported by Mr. Williams to Mr. Humes. He said 

that the company had obtained a new grease gun for him to use. Tr. 435:13–436:2. Although 

Complainant said that grease gun had the “wrong” tip and could not be used, he acknowledged 

that other grease guns were available. Id.

Greasing the plant was part of Complainant’s job and was an important, daily 

responsibility. Mr. Williams notes—in a statement of some significance—that Complainant did 

not tell him that the plant had not been greased at the end of his shift, and that this is something 

that he believed Complainant should have told him, because it was vital that the plant be greased 

every day. Tr. 785:2–4. 

Given the costs and inconvenience created by the catastrophic damage to the plant 

bearings after a previous such failure, I credit Respondent’s proffered justification for its 

decision to terminate Complainant as reasonable. Complainant produced no evidence that 

suggests the operator’s justification is pretextual. Instead, it appears that the suggested 

31 I also find it odd that Complainant was under the care of physicians for a cardiac 

procedure unrelated to his employment but testified he did not discuss his occupational injury 

with his treating physicians. While he was seen by a cardiologist for a specialized procedure, any 

person who has been provided with medical care is aware of the general requirement to provide a 

detailed medical history before receiving that care. It is not necessary to my decision that I take 

administrative notice of this common imposition, but this is another instance where the absence 

of evidence is not helpful to Complainant’s credibility. 

44 FMSHRC Page 764
connection between the final request to see a physician and the discharge from employment is 

not a causal nexus but merely a post hoc, ergo propter hoc fallacy. 

CONCLUSION

The evidence in this case leaves open the possibility that Complainant may have been 

treated unfairly by his employer prior to his protected activity. Accepting as true his account of 

events, he received a written warning, which he disputed, from a supervisor who was widely 

disliked and who eventually resigned under unfavorable circumstances. Complainant was then 

suspended when other workers who engaged in similar conduct were not disciplined. He was 

fired for not performing some of his duties during a time when he was injured, and when there 

appeared to be at least some understanding that other people would assist him with those tasks 

while he recovered. 

However, there is no evidence that improper discriminatory motivation played any role in 

any of these disciplinary actions. I therefore find that Respondent did not discriminate against the 

Complainant in violation of Section 105(c)(1) of the Act, and his complaint is DISMISSED.

The order of temporary reinstatement entered July 27, 2021, is hereby DISSOLVED.

Citation No. 9237452 is AFFIRMED. Respondent is ORDERED TO PAY the 

Secretary of Labor $300.00 within 30 days of the date of this decision.32

 /s/ Michael G. Young 

 Michael G. Young 

 Administrative Law Judge 

32 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check of money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box. 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers. 

44 FMSHRC Page 765
Distribution (First Class Mail and email): 

Christopher M. Smith, Esq., Office of the Solicitor, U.S. Dep’t of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219, smith.christopher.m@dol.gov; nash.fedcourt@dol.gov 

Elaine M. Youngblood, Esq., Ortale Kelley, 330 Commerce Street, Suite 110, Nashville, TN 

37201, eyoungblood@ortalekelley.com 

Margaret S. Lopez, Esq., & William K. Doran, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, 

PC, 1901 K Street NW, Suite 1000, Washington, DC 20006, margaret.lopez@ogletree.com 

william.doran@ogletree.com 

44 FMSHRC Page 766
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949 

December 5, 2022 

 

DECISION AND ORDER 

Appearances: Ryan M. Kooi, Esq., Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the Petitioner, 

Kenneth J. Polka, CLR, U.S. Department of Labor, MSHA, Mt. Pleasant, 

Pennsylvania, for the Petitioner,1

James P. McHugh, Esq., Hardy Pence LLC, Charleston, West Virginia, for 

the Respondent. 

Before: Judge Sullivan 

I. INTRODUCTION

This case is before me upon a Petition for the Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”), on behalf of the Mine Safety and Health Administration 

(“MSHA”), against CONSOL Pennsylvania Coal Company, LLC (“CONSOL” or 

“Respondent”), pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 

(“Mine Act”), 30 U.S.C. § 815(d). After my August 25, 2022 Decision Approving Settlement of 

three of the four penalties in this docket, at issue remains a citation alleging a violation of 30 

C.F.R. § 77.205(b), for which the Secretary seeks a civil penalty of $791.00. 

The parties presented testimony and documentary evidence for the single citation during 

a hearing on August 17, 2022, in Pittsburgh, PA. MSHA Inspector Robert W. Swope testified on 

1

 On July 13, 2022, I issued an Order Granting Request to Practice for Mr. Polka, a 

Conference and Litigation Representative (“CLR”). With this Order, Mr. Polka was permitted to 

conduct this hearing with the understanding that Mr. Kooi would accompany him per the longstanding practice of the U.S. Department of Labor. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

CONSOL PENNSYLVANIA COAL 

 COMPANY, LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

 Docket No. PENN 2021-0118 

 A.C. No. 36-07230-541358 

 

 

 Mine: Bailey Mine 

44 FMSHRC Page 767
behalf of the Secretary and CONSOL Compliance Supervisor Keith Woncheck testified on 

behalf of the Respondent. Both parties subsequently filed post-hearing briefs on October 24, 

2022.2

II. GENERAL FACTUAL AND PROCEDURAL BACKGROUND

CONSOL owns and operates the Bailey Mine, which is located in Greene and 

Washington Counties in Pennsylvania and crosses into Marshall County, West Virginia. The 

Bailey Mine includes a large prep plant, divided into five “subplants” with up to nine floors, 

some with half floors in between. On July 28, 2021, Inspector Swope conducted part of MSHA’s 

quarterly EO1 regular inspection of the prep plant. Tr. 30-31. 

During his inspection that day, Inspector Swope issued two citations. The first and only 

citation that is relevant to this proceeding, Citation No. 9204511, was issued because a 38-inchwide walkway located in the coal preparation plant was covered with a combination of wet coal 

slurry and fine magnetite. Tr. 41. Sec’y Ex. P-1. This alleged violation of 30 C.F.R. § 77.205(b) 

was designated as significant and substantial (S&S). To terminate the citation, CONSOL 

“cleaned all of the extraneous material from the walkway[] and replaced the missing overhead 

light to improve the illumination of [the] area.” Sec’y Ex. P-1, at 001. At issue here is that 

alleged violation and its associated findings, including whether the violation was S&S, and if the 

violation is upheld, the penalty to be assessed. 

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

A. Citation No. 9204511 for Alleged Violation of Section 77.205(b) 

1. Fact of Violation 

Before beginning his inspection that day, Inspector Swope notified the Safety Director’s 

Office of his presence and offered for someone to travel with him throughout the facility. 

CONSOL Compliance Supervisor Woncheck accompanied Inspector Swope during his review of 

the plant and facility. Tr. 31-32. Inspector Swope began his inspection on the sixth floor and 

moved on to the fifth and a half floor before proceeding down a set of stairs to the fifth floor of 

the 2C subplant. Tr. 89, 161. 

Attached hereto as Appendix A is Resp’t Ex. R-C.1, a map showing the main details of 

the fifth floor of the plant, as annotated by Woncheck at hearing. The annotations include the 

route that the two men took on the floor to reach the 2A subplant. Tr. 164, 167. As is shown, 

when arriving on the fifth floor, Inspector Swope, followed by Woncheck, walked past four coal 

screens, made a right past two more coal screens and three feeders, and proceeded to make a 

quick left before turning right onto the right-side concrete walkway of the platform for two other 

coal screens, identified as A1 and A2. Tr. 167-69; Resp’t Ex. R-C.1. 

2

 In this decision, the joint stipulations, transcript, Secretary’s exhibits, and Respondent’s 

exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Sec’y Ex. #,” and “Resp’t Ex. #” respectively.

44 FMSHRC Page 768
At the end of the walkway, Inspector Swope and Woncheck turned 90 degrees to the left 

and stepped up onto the 15- to 18-foot long metal-grated catwalk that ran across the front of the 

A1 and A2 coal screens. Tr. 91-93, 101, 169-70. The A1 and A2 coal screens were surrounded 

by catwalks and concrete on all sides. Tr. 91. On the right side of the coal screens was a step up 

onto the catwalk, and on the left side of the coal screens (or at the opposite end of the catwalk) 

was a step down. The catwalk provided access to the front of the A1 and A2 raw coal screens 

and the catwalk could only be accessed from the rear, via the right or left side pathways. Resp’t 

Ex. R-C.1. 

Before continuing down the catwalk in the direction towards the downward step, both 

men noticed a “material” that was “raining down” like a “shower” from above, and because 

“slurry was built up” on the surface underneath, they did not proceed further. Tr. 45, 171. 

Woncheck stated that he called to have the problem—a plugged pipe that was leaking—fixed. 

Tr. 170. 

Once the pipe was fixed from the floor above, which took about 20 minutes, the men 

went around to the other (left) side of the coal screens to view the accumulation. With his cap 

lamp, Inspector Swope was able to see that the slurry had “started out about ten feet.” Tr. 45, 

170. 

According to Inspector Swope, given the angle of the walkway on that (left) side, the 

slurry had “built up just about to the top of the metal walkway in front . . . to the point where it 

was either running out somewhere else or running over top of the toe boards of the expanded 

metal,” approximately five to six inches deep. Tr. 45-57. Inspector Swope also noted that the 

handrails which would guide a miner downwards were also covered with “a lot of slop.” Tr. 44. 

At hearing, Inspector Swope described the material as “very wet slurry.” Tr. 55. 

Woncheck described the slurry as a combination of magnetite, water, and ultrafine coal 

material, that was “real wet,” having the consistency of a “milkshake,” and “soup,” and not 

slippery but gritty “like sandpaper.” Tr. 198-99. Woncheck disagreed with Inspector Swope on 

how deep the slurry accumulation was, stating that it was not built to the top of the toe boards but 

rather “a good inch or two below” that point. He measured it to be four-and-a-half inches. Tr. 

209-11; Resp’t Ex. B-3, B-5, B-6.3 At hearing, Woncheck circled on the map where the step on 

the left side of the catwalk was located, to indicate where the material had built up. Tr. 171-72; 

Resp’t Ex. R-C.1. 

In addition to the accumulation, Inspector Swope noted that an overhead light in the area 

was missing, which he believed made it even harder to see the accumulated material and 

necessitated his use of a camera flash to produce clear photographs of the area. Tr. 44, 56, 123; 

Sec’y Ex. P-2, at 005 & 009. Woncheck acknowledged the missing overhead light but stated that 

“there was plenty of light,” he could see the spillage “just fine,” and he did not need to utilize the 

flash feature on his camera when taking photos of the area. Tr. 179. 

3

 After Inspector Swope had taken photos and completed his inspection, Woncheck 

“wanted to do his own investigation” and took additional photos, which were admitted at hearing 

as Resp’t Ex. B-1 to B-6. 

44 FMSHRC Page 769
Inspector Swope subsequently issued Citation No. 9204511 alleging that CONSOL 

violated section 77.205(b), in that: 

The 38[-]inch[-]wide concrete travelway on the left side of the Plant 2A raw coal 

screen was not being kept clear of all extraneous material and other stumbling, 

slipping, or tripping hazards. A combination of extremely wet coal slurry and very 

fine magnetite was covering the entire width of the walkway (38 inches wide), and 

8 [to] 10 feet long. The mixture of materials was built up to the top of the toeboards 

(6 inches high) at the end of the left side walkway. There is a 6 [to] 7 inch step up 

to the expanded metal walkway that runs across in front of the elevated metal 

walkway. The overhead light, directly above the affected (sic) was missing, which 

significantly reduced the illumination and visibility at the turn and step down in the 

walkway. There was also a significant overhead leak of water, coal slurry, and 

magnetite directly in the walkway. Standard 77.205(b) was cited 15 times in two 

years at mine 3607230 (10 to the operator, 5 to a contractor). 

Sec’y Ex. P-1, at 002.4

In designating the citation as S&S, Inspector Swope indicated that the presence of 

accumulated material was reasonably likely to cause an injury that could be reasonably expected 

to result in lost workdays or restricted duty of one miner. Sec’y Ex. P-1, at 002. Moreover, 

Inspector Swope categorized the violation as resulting from CONSOL’s moderate negligence. Id.

2. Analysis 

Section 205, titled “Travelways at surface installations,” provides in pertinent part that: 

(a) Safe means of access shall be provided and maintained to all working places. 

(b) Travelways and platforms or other means of access to areas where persons are 

required to travel or work, shall be kept clear of all extraneous material and 

other stumbling or tripping hazards. 

30 C.F.R. § 205(a)-(b). There is no dispute that the cited area – the catwalk that provided access 

to the front of the two raw coal screens and the adjoining pathways to that catwalk – constituted 

a “[t]ravelway” or “platform” that provided a “means of access to areas where persons are 

required to work or travel.” 

As for whether the mixture that was falling from the overhead pipe and accumulating on 

the travelway and platform below should be considered “extraneous material,” that term is not 

defined in the regulations, so its ordinary meaning applies in this instance. Peabody Twentymile 

Mining Co. v. Sec’y of Labor, 931 F.3d 992, 997 (10th Cir. 2019) (holding that in “[t]he absence 

of a definition in the standard . . . . we apply the ordinary or dictionary definitions of the terms.”)

“Extraneous” is defined as “1. Not constituting a vital element or part. . . . 3. Coming from the 

outside. . . .” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 629 (4th ed. 

4

 At hearing, the inspector explained that he meant the material had built up to bottom of 

the metal grating of the catwalk. Tr. 117. 

44 FMSHRC Page 770
2009). In the context of the cited area and the purpose it served at the plant, the material in 

question was clearly “extraneous,” so, at a minimum, a technical violation has been established 

in this instance. 

In its post-hearing brief, CONSOL admits as much and thus now concedes a violation. 

Resp’t Br. at 8. In challenging the S&S designation, however, CONSOL otherwise takes issue 

with the inspector’s description of the violation. CONSOL does not agree that the extraneous 

material in this instance posed any stumbling, tripping, or slipping hazard. Id. at 8-10. 

Consequently, before determining whether the violation was S&S, I address the extent to which 

the Secretary established the scope of the alleged violation of section 77.205(b).5 My findings are 

as follows. 

As discussed, the two witnesses differed markedly on whether the conditions posed a 

stumbling or slipping hazard to miners. I note at the outset, as will be discussed further herein, 

that between the two men, Wonchek was substantially clearer on the details of how the 

inspection of the raw coal screen area unfolded. With respect to the extent of the violation, 

however, the tangible evidence of the cited area’s actual conditions at the time of the inspection 

is of more probative value. 

At hearing, each man relied on the photographs he had taken of the conditions during the 

inspection and soon afterwards. Having reviewed all of those photographs, I conclude that, 

although the photographs may not substantiate all the details of the citation, they supply 

sufficient support for Inspector Swope’s fear that, given the nature and amount of the fallen 

material and where it had accumulated, in theory a miner traveling across the catwalk from right 

to left might not perceive that there was a step down while making a turn onto the adjoining 

concrete pathway, and lose his footing upon stepping down unexpectantly. The gray, watery 

nature of the accumulated material and its tendency, if viewed from close range in the reduced 

lighting, to blend in with the left side edge of the catwalk, would have largely if not totally 

obscured the step down. This can be seen most clearly in Sec’y Ex. P-2, at 004 & 013, as well as 

Resp’t Ex. B-2 & B-3. 

It is true that the photographs taken from farther away, down the adjoining concrete 

pathway, tend to show that the difference in height between the catwalk and the pathway 

remained perceptible. Sec’y Ex. P-2, at 007, 010, & 011; Resp’t Ex. B-1. However, as Inspector 

Swope explained, the risk the conditions posed was not to a miner coming from the direction that 

those photographs were taken, because a miner coming from that direction would have noticed 

the accumulated material. Tr. 75. Rather, at risk was any miner coming across the catwalk from 

its other end to round the corner onto the concrete, who would have a significantly worse 

5

 In an enforcement action before the Commission, the Secretary bears the burden of 

proving any alleged violation.” Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987); 

Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992). The Commission has defined the 

Secretary’s burden as a preponderance of the evidence, “which simply requires the trier of fact 

‘to believe that the existence of a fact is more probable than its nonexistence.’” RAG 

Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas Co., 

11 FMSHRC 2148, 2152 (Nov. 1989). 

44 FMSHRC Page 771
vantage point to appreciate how the fallen material had obscured the step down. Tr. 51-52, 56, 

75.6

Again, however, the foregoing establishes little more than a technical violation in this 

instance, for the record shows that it was unlikely a miner would have traveled across the 

catwalk to get to the point where he would turn the corner and take the step down. That is 

because, as the citation states and Swope testified, there was an ongoing “significant overhead 

leak of water, coal slurry, and magnetite” that caused the cited conditions. Sec’y Ex. P-1, at 001; 

Tr. 45-46, 103-04. There is no evidence that either of the two men considered walking through 

the material that was falling at such a rate that Wonchek compared it to a “shower” that was 

“raining down.” Tr. 171, 180. Indeed, the evidence is that both men circled back and walked 

around to access the catwalk at its other end even after the leaking pipe was addressed from a 

floor above, and the material had stopped falling. Tr. 59, 70, 171-72, 195, 232-33. Swope 

testified that he did not consider it advisable to walk into the material from either direction. Tr. 

56-57, 75-76, 86, 105, 141, 143. 

Reading the citation in light of Swope’s description of the conditions as he found them, it 

is possible he may have been concerned that, at some point, the leak might have ceased on its 

own prior to the discovery of the conditions, and a miner would travel across the catwalk and 

thus have to navigate the step down at its end through the accumulated material. In such 

circumstances, remote as they may have been, I find that in addition to the material at issue being 

“extraneous” in this instance, it posed the stumbling hazard which the inspector was reasonably 

concerned about.7

6

 CONSOL argues that the design of the handrails running along both sides of the turn 

from the catwalk to the pathway provided an independent indication that a downward step 

existed. Resp’t Br. at 9. Given the conditions, particularly the reduced illumination resulting 

from the missing light, I conclude that it would have been too much to expect a miner traveling 

across the catwalk to necessarily pick up and quickly process that the handrail design indicated 

that there was a step down onto the catwalk. 

7

 I note that at hearing, Swope did not at all acknowledge that the material ceased falling 

from above before he issued the citation. While Wonchek explained that the leaking pipe was 

repaired from the floor above, and that repairs were completed before the two men proceeded 

further to examine the conditions in the raw coal screen area (Tr. 170-71), Swope’s telling 

included no such sequence of events. Rather, in response to my questioning on his view of the 

steps necessary to abate the cited violation, he recounted that, upon issuing the citation, he left 

the area, expecting it to be first cleaned up, at which point only then the leak (and, afterwards, 

the missing light) could be addressed. Tr. 70-71, 85. In my view, Wonchek’s version in which 

the leaking pipe was repaired earlier makes much more sense. This is particularly so considering 

the citation identifies the “Action[s] to Terminate” as only cleanup of the material and 

replacement of the overhead light, thus entirely omitting mention of stopping the overhead leak 

described earlier in the citation. Sec’y Ex. P-2, at 001. This contradicts Swope’s testimony on his 

abatement expectations, thereby providing further support for Wonchek’s version of events. 

44 FMSHRC Page 772
3. S&S and Gravity of the Violation 

A violation is S&S if, “based upon the particular facts surrounding the violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (citing Cement 

Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981)). In Mathies, the four elements or 

steps required for an S&S finding were expressed as follows: 

 

(1) the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard -- that is, a measure of danger to safety -- contributed to by the violation; (3) 

a reasonable likelihood that the hazard contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury in question will be of a reasonably serious 

nature. 

Id. at 3-4 (footnote omitted). More recently, the Commission restated Mathies Step 2 in terms of 

finding that “the violation was reasonably likely to cause the occurrence of the discrete safety 

hazard against which the standard is directed.” Newtown Energy, Inc., 38 FMSHRC 2033, 2037 

(Aug. 2016).8

a. Mathies Step 1 & Step 2 

Step 1 of the Commission’s S&S analysis is satisfied above, as noted in my conclusion 

that the basic elements of a section 75.205(b) violation were conceded by CONSOL and the 

evidence further established at least a theoretical stumbling hazard as set forth in the citation. 

To satisfy Step 2, the Secretary must establish that there was at least a reasonable 

likelihood that a miner would step into the accumulated material, not realizing there was a step 

down to the concrete pathway and be subject to the stumbling hazard against which the standard 

is directed. Importantly, an S&S determination is based upon the particular facts surrounding the 

violation, existing at the time of the citation issuance, and, in general, assumes normal mining 

operations will continue. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984); Northshore 

Mining Co., 38 FMSHRC 753, 757 (Apr. 2016) (ALJ). It is thus to be made “without any 

assumptions as to abatement.” Mach Mining, LLC, 40 FMSHRC 1, 6 aff’d, 748 Fed. Appx. 347, 

2019 WL 275718 (D.C. Cir. 2019). 

 

The Secretary argues that if the conditions were “permitted to exist unabated under 

continued normal mining, it is reasonably likely that a miner would have walked into the area 

and stumbled or slipped on the walkway.” Sec’y Br. at 10. Tellingly, the Secretary’s analysis 

wholly omits a very significant fact that the inspector included in the citation: the “significant 

leak” of material from above. As previously discussed, that made it very much unlikely any 

miner would have attempted to cross the catwalk while the material continued to rain down in 

such an obvious manner. 

8

 Here it makes no difference which version of Step 2 is applied. See Consol Pa. Coal 

Co., 43 FMSHRC 145, 148-49 & n.6 (Apr. 2021). 

44 FMSHRC Page 773
As with the violation, and because he did not directly address the issue in his testimony, I 

am again left to infer that the inspector may have presumed that there was a possibility that at 

some point the material could have ceased falling without any action by CONSOL. This would 

have raised the risk that, prior to discovery of the accumulated material, its clean up, and repair 

of the light, a miner would cross the catwalk and step onto the pathway without realizing there 

was a step down. 

Such a theoretical possibility, while it may be acceptable in the context of determining 

whether the alleged violation has been established, does next to nothing to advance the notion 

that there was a “reasonable likelihood” under Step 2 of Mathies of it coming to fruition and 

occurring. That is particularly true here, where the Secretary offered no evidence on the 

possibility that the leak could have ceased without action by CONSOL. 

Instead, the Secretary solely focused on establishing the reason why a miner may have 

had to cross the catwalk to the lower pathway. The inspector offered an array of reasons for a 

miner to have done so. 

The inspector first cited what appeared to be his overriding concern: the likelihood of the 

catwalk being used simply due to the large number of employees working throughout all parts of 

the plant, including the contractor employees who he described as subject to high turnover rates, 

given the unpleasant working conditions. Tr. 46-51, 78, 85, 146-47. As can be seen in Appendix 

A, however, the A1 and A2 raw coal screens and surrounding catwalk and concrete pathways 

were in large part set off on their own platform area, and the inspector eventually agreed that it 

was an area that would only be accessed if there was a specific task or tasks to be done there. Tr. 

91, 94, 134, 136-38; Resp’t Ex. R-C.1. 

As for what those tasks could be, the inspector’s initial explanation was that a miner 

might go to “check” on the overhead leak. Tr. 47, 52. If such a “significant” leak was ongoing, 

however, it was unlikely a miner would cross the catwalk underneath it, much less go entirely 

across it to reach the step down onto the pathway. Moreover, because the leak was fixed from the 

floor above, there was no need to cross the catwalk for that reason either. Tr. 170-171. 

The inspector was on more solid footing when describing the potential for a miner to 

have to go to the area to service the raw coal screens, such as, for instance, when dust is thrown 

off the drive motors onto the screens, resulting in plug ups, or for the periodic need to adjust the 

skirting around the screens. Tr. 47, 52, 69, 85.9 Lastly, Inspector Swope discussed the possibility 

that the missing light might be noticed from outside the area, and perhaps a miner would go, or 

be sent, to repair the light via the catwalk without appreciating that the material had covered the 

step down. Tr. 52, 69, 72, 85, 129-31. 

9 In response, Wonchek explained how some of these tasks could be accomplished 

without necessarily having to set foot on the catwalk, such as the maintenance done on screens 

from the concrete pathways on either side of the platform. Tr. 175-76; Resp’t Ex. R-C.1. He 

further explained that access to the raw coal screens via the catwalk in front of them was only 

necessary when an electrician had to reset a “tilt switch” upon an indication of material buildup 

on a screen. Such would occur “once every two, three months, maybe, depending on conditions.” 

Tr. 172-74.

44 FMSHRC Page 774
However, I need not reach a conclusion with respect to the respective evidence on the 

likelihood of a miner having a reason to cross the catwalk and be subject to a stumbling hazard 

upon missing the obscured step down to the pathway. Any evidence that a miner may have had a 

reason to cross the catwalk to begin with is simply too greatly outweighed by the evidence that 

the falling material would have deterred that miner from making it to the end of the catwalk. 

That latter evidence prevents the Secretary from establishing Mathies Step 2 in this instance.10

b. Mathies Step 3 & Step 4

Inspector Swope testified that if a miner were to turn the corner leaving the catwalk and 

step onto the pathway without realizing there was a six- or so inch step down, the miner’s 

resulting loss in balance could cause knee or ankle injuries or injuries stemming from falling into 

a handrail. Inspector Swope characterized these injuries as reasonably serious and could result in 

lost workdays or restricted duty. Tr. 56, 77-78. Given the conditions, I agree with the inspector 

on this, and find that Mathies Steps 3 and 4 have been satisfied by the Secretary in this instance. 

See also Wolf Run Mining Co., 36 FMSHRC 1951, 1958-59 (Aug. 2014) (“not[ing] that an 

inspector’s judgment is an important element in an S&S determination” as part of Mathies Step 3 

and under Step 4 crediting inspector’s testimony regarding the severity of injuries that had 

resulted to miner). 

Due to not satisfying Mathies Step 2, I conclude that the Secretary has failed to establish 

that the violation of section 77.205(b) was S&S. I further conclude that an injury in this instance 

was unlikely, and that any injury would result in lost workdays or restricted duty. 

4. Negligence 

The Commission “may evaluate negligence from the starting point of a traditional 

negligence analysis.” Brody Mining, 37 FMSHRC at 1702. This analysis asks whether an 

operator has met “the requisite standard of care—a standard of care that is high under the Mine 

Act.” Id. Considerations include “what actions would have been taken under the same 

circumstances by a reasonably prudent person familiar with the mining industry, the relevant 

facts, and the protective purpose of the regulations.” Id.; see also A.H. Smith Stone Co., 

5 FMSHRC 13, 15 (Jan. 1983). The Commission has explained that an ALJ “is not limited to an 

evaluation of allegedly ‘mitigating’ circumstances” and should consider the “totality of the 

circumstances holistically.” Id.; see also 30 C.F.R. § 100.3(d) (stating that operators must be “on 

the alert for conditions and practices in the mine that affect the safety or health of miners and to 

take steps necessary to correct or prevent hazardous conditions or practices.”). 

10 Importantly, the Secretary does not argue that it would only be through the exercise of 

caution that a miner would avoid walking through the falling material. The possibility that a 

miner would take precautions is an impermissible consideration in determining S&S. See, e.g., 

Newtown, 36 FHSHRC at 2044; Eagle Nest, Inc., 14 FMSHRC 1119 (July 1992). Rather, the 

evidence, including that introduced by the Secretary, is that all it took was basic common sense 

to not walk through the falling material. 

44 FMSHRC Page 775
Here, CONSOL is not challenging Inspector Swope’s assessment of moderate 

negligence. In determining that CONSOL was moderately negligent, Inspector Swope testified 

that he had recently seen an increase in section 77.205(b) violations, specifically that “the same 

standard was cited 15 times in less than two years at the plant.” Tr. 78-79; Sec’y Ex. P-1 at 001. 

Additionally, Inspector Swope noted that spills occurred “everywhere through the plant” and had 

been “getting worse ... over the last several years.” Tr. 118. These conditions, in conjunction 

with Inspector Swope’s understanding that individuals go through and look at the plant “on all 

three shifts” support his determination of moderate negligence. Tr. 47, 79, 85. Woncheck himself 

stated that in his role as compliance supervisor, he travels every area of the plant every day. Tr. 

158-59, 220-21. Thus, I credit the inspector’s explanation and affirm the negligence finding. 

IV. PENALTY 

Commission administrative law judges have the authority to assess civil penalties de novo

for violations of the Mine Act. Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983). The 

Act requires that the ALJ shall consider six statutory penalty criteria in assessing civil monetary 

penalties: 

(1) the operator’s history of previous violations, (2) the appropriateness of such 

penalty to the size of the business of the operator charged, (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 person 

charged in attempting to achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i). 

In the fifteen months preceding the issuance of Citation No. 9204511, MSHA issued 13 

violations of section 77.205(b) to the Bailey Mine (seven to operator, four to contractors). See 

MSHA, Mine Data Retrieval System, https://www.msha.gov/mine-data-retrieval-system (last 

visited November 25, 2022). CONSOL agreed in conjunction with the Secretary that the 

proposed penalty would not affect its ability to continue in business. Jt. Stip. 6. 

For Citation No. 9204511, the Secretary proposed a penalty of $791.00. I determined 

CONSOL’s negligence to be moderate. See discussion supra Part III.A.4. I also determined the 

gravity of the violation to be non-S&S, that an injury in this instance was unlikely, and that if an 

injury did occur, it would result in lost workdays/restricted duty to one person. See discussion 

supra Part III.A.3. Moreover, CONSOL demonstrated good faith by fixing the leaking pipe and 

cleaning up the area promptly. Tr. 83, 149-50, 170. Considering the six criteria set forth under 

section 110(i) of the Mine Act in conjunction with the relevant facts, I hereby assess a penalty of 

$375.00 for Citation No. 9204511. 

V. CONCLUSION AND ORDER

It is hereby ORDERED that Citation No. 9204511 is MODIFIED to reduce the gravity 

from “reasonably likely” to “unlikely” and to remove the S&S designation. Respondent 

44 FMSHRC Page 776
CONSOL is hereby ORDERED to pay a penalty of $375.00 within 30 days of the date of this 

decision.11 Accordingly, this case is DISMISSED. 

 /s/ John T. Sullivan 

John T. Sullivan 

 Administrative Law Judge 

Distribution (First Class Mail and E-mail): 

 

Ryan M. Kooi, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 

1835 Market Street, Mailstop SOL/22, Philadelphia, PA 19103 (kooi.ryan.m@dol.gov) 

Kenneth J. Polka, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

Paladin Professional Center, 631 Excel Drive, Suite 100, Mt. Pleasant, PA 15666 

(polka.kenneth@dol.gov) 

James P. McHugh, Esq., Hardy Pence PLLC, 10 Hale Street, 4th Floor, Charleston, WV 25301 

(jmchugh@hardypence.com) 

Attachments: 

Appendix A: Respondent’s Exhibit R-C.1 

11 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers. 

44 FMSHRC Page 777
APPENDIX A 

44 FMSHRC Page 778
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th Street, Suite 443 

Denver, CO 80202-2536 

303-844-3577/FAX 303-844-5268 

December 13, 2022 

 

DECISION 

Appearances: Lacee Caitlyn Eakins, Esq. and Jennifer Johnson, Esq., Office of the 

Solicitor, U.S. Department of Labor, Dallas, Texas for Complainant, 

Harold Jones, Esq., Polsinelli PC, Dallas, Texas for Respondent. 

Before: Judge Manning 

This case is before me upon a complaint of discrimination brought by the Secretary of 

Labor on behalf of Moses Ortiz under section 105(c) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 815(c) (the “Mine Act”) against Mario Sinacola & Sons Excavating Inc. 

and its successors (“Sinacola”) pursuant to sections 105 and 110 of the Mine Act. 30 U.S.C. §§ 

815 and 820. A hearing was held in Fort Worth, Texas. The parties presented testimony and 

documentary evidence and filed post-hearing briefs. For reasons set forth below, the complaint 

of discrimination brought by the Secretary of Labor on behalf of Moses Ortiz is DENIED and 

this proceeding is DISMISSED. Although I have not included a detailed summary of all the 

evidence or each argument raised, I have fully considered all the evidence and arguments. 

I. STATEMENT OF THE CASE 

 On April 20, 2021, Ortiz filed a complaint of discrimination under section 105(c) of the 

Mine Act. Following an investigation, the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) filed a complaint with the Commission on Ortiz’s behalf. This case 

was assigned to me after Sinacola filed its answer to the complaint.1

1

 On July 20, 2021, the Secretary filed an application for temporary reinstatement in 

Docket No. CENT 2021-0184-DM. On August 24, 2021, I granted the parties’ joint motion to 

approve the settlement in that case and ordered Sinacola to provide temporary economic 

reinstatement. As of this date, my order of temporary reinstatement is still in effect. 

SECRETARY OF LABOR, MSHA on 

behalf of MOSES ORTIZ, 

 Complainant 

 v. 

MARIO SINACOLA & SONS 

EXCAVATING INC. AND ITS 

SUCCESSORS, 

 Respondent 

 DISCRIMINATION PROCEEDING 

Docket No. CENT 2022-0028-DM 

MSHA Case No. SC-MD-2021-06 

Mine: Midlothian Quarry & Plant 

Mine ID: 41-00071 J348 

44 FMSHRC Page 779
Ortiz, in his complaint, alleges Sinacola discriminated against him when he was 

terminated in retaliation for making safety complaints and asserting his right to contact MSHA 

with safety concerns. 

II. SUMMARY OF THE EVIDENCE

A. Background

Sinacola is a construction company that conducted mining operations at the Midlothian 

Quarry and Plant. Ex. C5 p. 40. 2 In May 2010 Sinacola hired Ortiz as a laborer at its Frisco 

construction site.3 Tr. 18, 28. In 2012, at Ortiz’s request, Sinacola transferred Ortiz to the 

Midlothian Quarry and Plant (the “mine).4

 Tr. 28. Harry Bonds supervised Ortiz at the mine.5 Tr. 

18-19, 28, 160.

Ortiz and Bonds had a contentious relationship at times. Ortiz testified he did not like the 

way Bonds spoke to him and felt Bonds assigned him unfavorable tasks and harbored ill will 

2

 For purposes of this decision, the page numbers referenced in exhibits C3, C4 and C5 

correspond to the page number included on the bottom right-hand side of each page in the format 

“SINACOLA_00000[page number]”. 

3

 At hearing, much was made about the veracity of an answer to a question on Ortiz’s job 

application to work for Sinacola. Ortiz testified he applied for the job at Sinacola over the phone 

and never filled out or reviewed an application document. Tr. 34, 36, 71-72. The written 

Application for Employment asks, “[h]ave you ever been convicted of a felony?” Ex. C4 p. 21. 

“NO” is selected on Ortiz’s application. Id. There is no dispute Ortiz had a criminal history that 

included three felonies. Tr. 77-79. Sinacola asks the court to infer that Ortiz was untruthful on 

his application and that this untruthfulness is indicative of Ortiz’s general lack of credibility. I 

decline to make this inference. Rather, I find Ortiz’s testimony on this particular issue to be 

credible. Ortiz did not recall being asked during the call if he had been convicted of a felony. Tr. 

71, 81. Moreover, he denied that the signature at the bottom of page two of the application form 

was his. Ex. C4 p. 22, 25; Tr. 39, 70-73. Although expert witnesses are often needed to properly 

compare signatures, in the court’s opinion the signature at the bottom of page two of the 

application form is entirely different from the signature Ortiz identified as his own on other 

Sinacola documents. Id. 

4

 Ortiz initially drove a truck at the mine but became a loader operator in 2018. Tr. 18, 

161. 

5

 Bonds had a reputation with mine management as a safety minded individual with a 

good leadership style and history of avoiding injuries and lost workdays. Tr. 97-98, 104, 106-

107, 152. Bonds has over 53 years’ experience in the construction industry and testified he was 

tough on safety because he had seen people hurt and killed. Tr. 162. 

44 FMSHRC Page 780
toward him because of Ortiz’s criminal past.6

 Tr. 24, 41-42. According to Ortiz, there were times 

Bonds yelled and saliva would end up on Ortiz’s face. Tr. 42. 

Bonds testified that, although he tried to work with Ortiz7, Ortiz did not like the way 

Bonds supervised him. Tr. 163. According to Bonds, Ortiz did not respect Bonds’ supervisory 

authority and instead thought Bonds “was just another hand.” Tr. 163. Bonds described Ortiz as a 

“decent” loader operator who was hard on the equipment and struggled to follow proper 

procedure. Tr. 167-168. Bonds testified it was difficult to know what Ortiz wanted and noted that 

although Ortiz initially wanted to operate a loader, Ortiz later complained and expressed his 

desire to be “off the loader.” Tr. 165. 

 Ortiz testified that in approximately 2016 Bonds refused to look at a doctor’s note that 

placed work restrictions on Ortiz because of a hernia he suffered. Tr. 21, 27, 44. According to 

Ortiz, when presented with the doctor’s note, Bonds instructed Ortiz to talk to a member of 

Sinacola’s safety department, which he did, and was then “made” to do labor despite the note. 

Tr. 21. 

Ortiz described another incident in 2020 where Bonds allegedly berated Ortiz for not 

picking up his phone when Bonds attempted to call him. Tr. 21-22, 27. According to Ortiz, 

although Sinacola had a policy that employees were not to use their phones when operating 

machinery, Bonds stated that he did not care if it was company policy and ordered Ortiz to have 

his phone accessible. Tr. 21-22. Ortiz testified that he complained to one of the mine’s 

superintendents about the conduct. Tr. 22. 

Both Ortiz and Bonds testified about an incident in which Ortiz struck a rock with a 

loader he was operating, causing damage to the loader. Tr. 24, 58, 59, 168. Their accounts of the 

incident differ, with Ortiz alleging that Bonds purposefully placed the rock in such a way as to 

cause the damage, and Bonds denying as much and blaming Ortiz for not keeping the area 

around the loader clear. 

During his time at the mine, Ortiz was formally disciplined two times. First, in 2014 Ortiz 

was involved in a physical fight at the mine. Tr. 50. Bonds, who had the power to terminate Ortiz 

and intended to do so following the fight, ended up only suspending Ortiz for a week and issuing 

a written disciplinary warning after speaking with the mine superintendent and human resources 

personnel. Tr. 164-165. Bonds testified that the fight was the only incident that caused him to 

consider terminating Ortiz. Tr. 164. Second, in approximately 2020 Ortiz was issued a 

disciplinary warning after he struck Bonds’ truck with a loader. Tr. 74. Ortiz testified that at the 

time of the incident he was not sure he hit the truck, but acknowledged the bumper was offset 

6

 Bonds testified he knew Ortiz had been “locked up” but did not know any specifics. Tr. 

168-170. At the hearing, Ortiz admitted that he was convicted of three serious, violent felonies 

between 1992 and 1995 for which he was incarcerated. Tr. 78-79. 

 7

 Bonds testified he talked to Ortiz about his family, gave Ortiz time off and extended 

breaks when needed, and allowed Ortiz and other loader operators the opportunity to reassign 

work duties among themselves. 166-167. 

44 FMSHRC Page 781
and contacted Bonds as a result. Tr. 74. According to Ortiz, Randy Werbig, Sinacola’s head of 

safety, investigated the incident and thanked Ortiz for his honesty. Tr. 82. 

Eric Kain, Sinacola’s mine division manager,8 testified that he was aware of friction 

between Ortiz and Bonds. Kain knew Ortiz felt that Bonds picked on Ortiz and was holding 

Ortiz back from getting raises and career development opportunities at the mine. Tr. 99-100. 

However, Kain also knew how much Ortiz was getting paid and testified that Ortiz received 

normal raises and was never prevented from getting a raise. Tr. 100-101. According to Kain, 

Ortiz never seemed satisfied with his job. Tr. 110. When asked about the incident where Ortiz 

struck Bonds’ truck with loader, Kain testified he probably should have terminated Ortiz at that 

point but decided not to do so after Bonds “praised” Ortiz for reporting it. Tr. 103-104. 

Tony Phillips, the vice president of human resources for Sinacola since 2019, testified 

that Ortiz “had a reputation of being a loudmouth, a troublemaker” and had allegedly circulated a 

petition with other coworkers to “get rid of” Bonds.9 Tr. 144, 149. Phillips testified Ortiz’s 

grievances were not about safety, but rather about other things like pay and what equipment he 

was required to operate. Tr. 149-150. Phillips testified that Ortiz’s pay during the time he worked 

at the mine was “right in line general increases . . . [which are] looked at annually.” Tr. 150. 

Phillips attributed the trouble caused and complaints lodged by Ortiz as being at least partially a 

result of a “personality difference[].” Tr. 149-150. 

B. Conciliation Meeting 

At some point in early 2021 Ortiz’s growing frustration with Bonds prompted Ortiz to 

call Werbig to complain about Bonds threatening to fire Ortiz on several occasions and failing to 

wear a seatbelt at times.10 Tr. 23-24, 27, 65. In response to the call, Werbig proposed a 

conciliation meeting.11 Tr. 23-24. 

8

 Kain has worked for Sinacola since 2004 and has been the mine division manager for 

over a decade. Tr. 85-86. As mine division manager he, among other things, oversaw the mine, 

supervised Bonds, and indirectly supervised Ortiz. Tr. 86. 

9

 On cross-examination Ortiz denied the existence of the petition. Tr. 32. However, Kain 

confirmed he also had heard about Ortiz attempting to garner support from other miners for a 

petition to have Bonds removed from the mine. Tr. 102, 119. 

10 Ortiz testified he complained to management more than once about Bonds not wearing 

his seatbelt. Tr. 22, 27. Although Ortiz claimed that he saw Bonds not wearing a seatbelt at 

times, he also opined that Bonds was not wearing a seatbelt at other times based on Ortiz hearing 

a “ding” sound while on the radio with Bonds. Tr. 22, 68. 

11 Werbig brought the idea of the conciliation meeting to Phillips. Tr. 149. According to Phillips, 

Werbig indicated Ortiz was causing trouble at the mine and Werbig believed the meeting could 

be an opportunity to “build a bridge” and get an understanding of Ortiz’s complaints and figure 

out a way for Ortiz and Bonds to “work harmoniously.” Tr. 149, 157. Despite the unusual 

(continued...) 

44 FMSHRC Page 782
On February 1, 2021, Ortiz, Bonds, Kain and Werbig met to discuss issues Ortiz was 

having with Bonds. Tr. 23, 91. Ortiz testified that during the meeting he voiced concerns about 

Bonds threatening to fire him, Bonds driving without a seatbelt, his belief that Bonds had 

purposefully caused damage to Ortiz’s loader and blaming it on Ortiz, and Bonds forcing him to 

work with a hernia despite work restrictions. Tr. 23-24, 44, 65. During the meeting, Ortiz 

acknowledged that Bonds had never asked him to operate unsafe equipment or equipment he was 

not adequately trained on. Tr. 43. According to Ortiz, Bonds was given an opportunity to speak, 

after which Werbig and Kain left the room so that Ortiz and Bonds could forgive each other. Tr. 

24-25. Ultimately, Ortiz and Bonds shook hands and embraced. Tr. 24-25. In addition to 

agreeing to improve their communications with each other, Ortiz affirmatively stated Bonds was 

his boss and had authority over him. Tr. 61. 

Kain, who was present during the meeting in his role as a facilitator, did not recall a 

discussion of any safety complaints.12 Tr. 92, 100; Ex. C1 pp. 5-12. He viewed the meeting as a 

means to address discord between Bonds and Ortiz that stemmed from Ortiz’s perception that he 

was not being paid appropriately or given advancement opportunities. Tr. 100. Despite 

participating in the meeting, Kain believed Ortiz was someone who could not be satisfied and, as 

a result, was not optimistic that the agreement reached by Bonds and Ortiz would last. Tr. 101. 

At the end of the meeting the parties agreed to take specific steps going forward, 

including having open communication channels and Ortiz affirmatively recognizing Bonds’ 

supervisory authority over him. Tr. 159, Ex. C1 p. 11-12. 

C. Events of April 20, 2021 

According to Ortiz, while riding with Bonds in a truck on or about April 20, 2021, Bonds 

raised his voice, was hostile toward Ortiz, and criticized Ortiz for improper machine operation 

and not “keeping the grade.” Tr. 20, 62-63. At some point Ortiz told Bonds to stop the truck so 

Ortiz could exit and walk. Tr. 20. Ortiz believed getting out of the truck was the best way to 

“diffuse the confrontation.” Tr. 49. Instead, according to Ortiz, Bonds accelerated until the truck 

was moving too fast for Ortiz to get out. Tr. 20. 

Following the incident in the truck, Ortiz called Kain to complain about Bonds. Tr 25. 

Ortiz and Kain offered conflicting accounts of what was said on the call. Ortiz testified he called 

11 (...continued) 

request, Phillips was optimistic that the meeting could be beneficial and allowed Werbig to 

proceed. Tr. 157-158. 

12 Although Kain did not recall a discussion of any safety complaints, Werbig’s notes 

from the meeting, which were entered into evidence at the hearing, include a brief mention of a 

statement made by Ortiz that “[s]ometimes when [Bonds] calls [Ortiz] on the radio [he] know[s 

Bonds] doesn’t have his seatbelt on because [Ortiz] can hear it beeping when [Bonds is] in his 

truck.” Ex. C1 p. 9. The notes include a response from “R,” presumably Randy Werbig, stating 

“[c]ompany policy and MSHA regs. we all know if we are operating vehicles or equipment w/o 

seatbelts this is not acceptable. Anything else?” To which Ortiz responded “No.” Id. 

44 FMSHRC Page 783
Kain to complain about the truck incident involving Bonds, but never got to explain what 

happened. Tr. 19-21. According to Ortiz, at some point during the call Kain cut off Ortiz and 

said something to the effect of “how do we know that you’re not a problem, how do we know it’s 

Harry, Harry Bonds, and not you.” Tr. 19, 49. To which Ortiz allegedly responded, “if I would 

have been a problem I would have called MSHA a long time ago.” Tr. 19. At hearing, Ortiz 

agreed that he was telling Kain that “[he] believed that [he] had good excuses to call MSHA in 

the past and . . . [he] didn’t” try to contact MSHA. According to Ortiz, Kain did not ask what 

Ortiz could have contacted MSHA about, and instead again cut off Ortiz, said he would not be 

threatened and terminated Ortiz. Tr. 19, 23. 

Kain offered a different account of the phone call. Kain testified that Ortiz called to 

complain about Bonds’ refusal to stop a truck so Ortiz could exit the truck and walk back to the 

yard along the road.13 Tr. 89-90. Kain testified it would have been “completely unsafe” for 

Bonds to let Ortiz walk along the road given all the equipment traveling there. Tr. 89. In 

response to Ortiz’s statement, Kain offered Ortiz the opportunity to transfer to another job within 

the company where Ortiz would have a different supervisor.14 Tr. 90, 111. However, Ortiz 

immediately refused the offer and instead demanded that Kain remove Bonds from the mine. Tr. 

90, 102-103, 112. Ortiz then stated he could have contacted MSHA in the past but did not state 

what exactly he could have contacted MSHA about. Tr. 88, 102, 123. Kain responded by saying 

Ortiz had the right to contact MSHA at any time and Kain was not going to “be coerced into 

moving Harry Bonds off the mine site[.]” Tr. 91. Kain, who understood Ortiz’s rejection of the 

transfer offer to be final, terminated Ortiz over the phone. Tr. 86-87, 91, 102-103. According to 

Kain, he never asked what Ortiz could have contacted MSHA about. Tr 88. 

Notably, during direct examination, Ortiz did not mention Kain’s offer to transfer Ortiz to 

another of Sinacola’s worksites. Tr. 31. However, on cross-examination, Ortiz acknowledged an 

offer was made.15 On cross-examination Ortiz also denied that he ever made a statement that he 

wanted Bonds removed from the mine. Tr. 67. Following the telephone call with Kain, Ortiz 

immediately contacted MSHA. Tr. 21, 26. 

D. Proffered Reasons for Termination and Additional Background 

Kain testified he had no plans to terminate Ortiz prior to the April 20 call, but he 

considered Ortiz’s demand to remove Bonds from the mine an act of insubordination and agreed 

it was violation of the conciliation agreement which required Ortiz to follow the directions of his 

13 When asked at hearing if Kain spoke with Bonds about the events in the truck, Kain 

stated that he did not, but said that the previous day Bonds had mentioned that Ortiz was upset 

about the loader he was operating and that Ortiz wanted to be trained to operate a dozer. Tr. 90. 

14 Phillips testified that Sinacola needed equipment operators and transfers were not 

unusual. Tr. 151. Had Ortiz accepted Kain’s transfer offer, Phillips would have signed off on it. 

Tr. 151. According to Kain, on April 19 he spoke to a superintendent about the possibility of 

transferring Ortiz to another location. Tr. 122. 

15 Ortiz testified he could not work at the alternate location for personal reasons because 

of the longer commute. Tr. 31, 32, 49. 

44 FMSHRC Page 784
supervisor. Tr. 109, 122. Kain testified he had never had an employee demand that the 

employee’s supervisor be terminated. Tr. 109. It was Kain’s opinion that Ortiz could not work at 

the mine if he could not accept that Bonds was his boss. Tr. 110. Although Kain agreed 

insubordination was a longstanding issue with Ortiz and that Ortiz could have been written up in 

the past, he acknowledged that Ortiz had never been written up for insubordination. Tr. 118. 

Phillips testified it was his understanding Kain terminated Ortiz because Ortiz demanded 

that Kain terminate Bonds. Tr. 147. He explained that such a demand is unacceptable because if 

employees can threaten supervisors, then management has no control over the business. Tr. 147-

148. 

 It was never clear to Phillips what exactly Ortiz’s statement regarding MSHA was about. 

Tr. 148. According to Phillips and Kain, it is “extremely easy” for a Sinacola miner to make a 

complaint. Tr. 99. Information on how to contact MSHA is posted on the bulletin board at the 

mine office, and miners are trained when they are hired and throughout their employment. Tr. 

99, 148-149. Additionally, Sinacola employees have access to a complaint hotline and can speak 

directly with their safety representative. Tr. 148-149.

Phillips testified that Ortiz was a problem from a human resources standpoint given his 

history. Tr. 152. Phillips, who did not join Sinacola until 2019, opined that had he been with 

Sinacola in 2014 when Ortiz got into the fight or when Ortiz hit Bonds’ truck with the loader, 

Ortiz would not have been employed with Sinacola after those incidents. Tr. 152 

Ortiz testified generally that he was trained to only contact MSHA as a “very last resort.” 

Tr. 83. However, he conceded Sinacola trained him on miners’ rights, how to make a complaint 

to MSHA, and was not discouraged from going to MSHA or making a complaint. Tr. 34, 47, 83. 

Moreover, Ortiz acknowledged he could have gone to MSHA in the past but chose not to do so. 

Tr. 83. 

 

At hearing, Mark Shearer, MSHA’s special investigator assigned to investigate the case, 

testified that Ortiz claimed to have made multiple safety complaints and was ultimately 

terminated after telling Kain he would have called MSHA if he wanted to start trouble. Tr. 127-

128. Based on his investigation, Shearer determined Ortiz was fired for asserting his right to 

contact MSHA. 131. On cross-examination Shearer agreed that context matters when conducting 

an investigation and that it takes more than a mere mention of the word “MSHA” for a statement 

to be considered protected activity. Tr. 132, 138. Nevertheless, he acknowledged that during his 

investigation he did not speak to anyone with Sinacola and relied entirely on Sinacola’s position 

statement for context. Tr. 132-133, 142. According to Shearer, he believed Ortiz was credible 

because Shearer did not “catch[] him in any . . . lies or any mistruth” during the investigation. Tr. 

141. 

44 FMSHRC Page 785
III. DISCUSSION AND ANALYSIS OF THE ISSUES 

A. Credibility and Resolution of Critical Disputes of Fact 

 My decision in this matter hinges to a large degree on credibility determinations and 

resolution of critical disputes of fact. My findings of fact are based on the record as a whole and 

the court’s careful observation of the witnesses during their testimony. In resolving any conflicts 

in the testimony, the court has taken into consideration the interests of the witnesses, or lack 

thereof, and consistencies, or inconsistencies, in each witness’s testimony and between the 

testimony of the witnesses. In evaluating the testimony of each witness, I have also relied upon 

the witness’s demeanor. Any failure to provide detail as to each witness's testimony is not to be 

deemed a failure on the undersigned's part to have fully considered it. The fact that some 

evidence is not discussed does not indicate that it was not considered. See Craig v. Apfel, 212 

F.3d 433, 436 (8th Cir. 2000). 

 As an initial matter, I find both Kain and Bonds to be credible witnesses. Both Kain and 

Bonds had knowledge of key facts and provided testimony that was internally consistent as well 

as consistent with other credible testimony. Moreover, both displayed a sincere and forthright 

demeanor when testifying. Consequently, as a general matter, I find that the veracity of their 

testimony is not in question. 

Sinacola attacked Ortiz’s credibility for a number of reasons but relied heavily upon his 

alleged failure to disclose his extensive criminal background on his employment application and 

his lack of candor and inconsistencies when discussing this background at the deposition and the 

hearing. Although I find that Ortiz’s testimony concerning his prior felonies was inconsistent, I 

primarily reach my conclusion that Ortiz lacks credibility for the reasons discussed below. 

 Ortiz’s testimony regarding what occurred during the April 20 call defies logic and is 

self-serving. At hearing, Ortiz claimed he called Kain to complain about Bonds speaking in a 

hostile voice while criticizing Ortiz and then preventing Ortiz from getting out of a moving 

truck. Although Ortiz testified the intent of his call was to discuss this incident, he also claimed 

he never had an opportunity to do so before Kain terminated him. Moreover, Ortiz claimed that 

during the call he did not make a demand that Bonds be terminated. Nevertheless, Ortiz asserted 

Kain made a comment during the call along the lines of “how do we know that you’re not the 

problem, how do we know its Harry, Harry Bonds, and not you.” Tr. 19. It is unlikely that Kain 

would make a comment like this if Ortiz had not described the incident and/or made a demand 

that Bonds be removed from the mine. In addition, Ortiz’s recollection of the call on direct 

examination included no mention of Kain offering a potential transfer to another Sinacola site, 

and instead characterized the call as one in which Kain repeatedly cut-off Ortiz before 

immediately firing Ortiz after he made a comment about contacting MSHA. However, on crossexamination Ortiz conceded a transfer offer was made. I find that Ortiz’s evasiveness on the 

issue of the transfer offer, and illogical recollection of what was said on the call, significantly 

damages his credibility. 

Conversely, I find Kain’s testimony regarding what occurred on the call consistent, 

logical, and credible. Kain testified Ortiz called to complain about the incident in the truck and 

44 FMSHRC Page 786
described the incident to Kain. In response, Kain offered to transfer Ortiz to another job within 

Sinacola. Ortiz declined the transfer offer, demanded that Bonds be removed from the mine, and 

said he could have previously contacted MSHA. In response, Kain told Ortiz he could call 

MSHA at any time and that he would not be coerced into removing Bonds. Kain then terminated 

Ortiz. 

I credit Kain’s testimony regarding what was discussed on the April 20 call. Specifically, 

I find that Ortiz called to complain about the incident in the truck and that Ortiz described the 

incident to Kain. I further find that Kain, in an effort to diffuse the personality conflict between 

Ortiz and Bonds, offered Ortiz the opportunity to transfer to another Sinacola site. Furthermore, I 

find that Ortiz declined the offer and instead demanded that Bonds be removed from the mine. 

Finally, I find that although Ortiz did state he could have16 called MSHA in the past, the 

statement was not made in isolation and cannot be analyzed that way. Rather the statement was 

inextricably tied to Ortiz’s demand that Bonds be removed from the mine. The statement and 

demand, when looked at together, were an attempt to leverage a veiled threat about contacting 

MSHA to achieve Ortiz’s goal of having Bonds removed. This finding is critical to my analysis 

of the issues below. I further find that Kain perceived the MSHA statement and demand to 

remove Bonds the same way as I have, i.e., a veiled threat unrelated to safety but one Ortiz 

believed, or at least hoped, could manipulate management into removing Bonds from the mine.

 In addition to his testimony surrounding the events of April 20, I also find that Ortiz’s 

testimony regarding Sinacola discouraging miners from contacting MSHA is not credible. On 

one hand, Ortiz testified that Sinacola trained him to only contact MSHA as a “last resort.” 

However, almost immediately after that testimony, Ortiz conceded that no one discouraged him 

from going to MSHA. Moreover, he acknowledged that he was trained multiple times on miner’s 

rights and how to make a complaint and had in the past made his own choice to not contact 

MSHA about potential safety complaints. Although Ortiz attempted to paint a picture that 

Sinacola was averse to MSHA involvement in safety matters and miner’s rights, his own 

testimony, as well as the testimony of Kain and Phillips, painted a different picture. Given these 

inconsistencies, I decline to credit Ortiz’s testimony on this issue.

B. Discrimination Claim 

Section 105(c) of the Mine Act prohibits discrimination against a miner for exercising a 

right established under the Mine Act. 30 U.S.C. § 815(c)(1). In order to establish a prima facie 

case of discrimination the Complainant must prove by a preponderance of the evidence that (1) 

16 At hearing and in the briefs, much was made about whether Ortiz said he “could have” 

contacted MSHA, or “would have” contacted MSHA. Ortiz testified that he stated, “if I would 

have been a problem I would have called MSHA a long time ago.” Counsel and other witnesses 

used the phrase “could have” in place of “would have.” In stating that he “would have” called 

MSHA if he wanted to be a problem, one can infer that Ortiz’s mindset was that he was not a 

problem but, rather, Bonds was the problem. Although I decline to read too much into the choice 

of words, it is clear Ortiz saw himself as a victim of unfair treatment in the 

supervisor/subordinate relationship with Bonds. 

44 FMSHRC Page 787
he engaged in a protected activity and (2) that the adverse action was motivated in any part by 

the protected activity.17 Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 

FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). 

The operator may rebut the prima facie case by showing either that no protected activity 

occurred or that the adverse action was not motivated in any part by the protected activity. 

Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328-29 (Apr. 1998); Robinette at 818 n. 20. 

In addition, the operator may defend affirmatively by proving that the adverse action was in part 

motivated by unprotected activity and that it would have taken the adverse action based on the 

unprotected activity alone. Driessen, 20 FMSHRC at 328-29. 

For Ortiz to succeed in establishing a prima facie case, he must prove by a preponderance 

of the evidence that he engaged in protected activity and that his termination was motived in any 

part by the protected activity. For reasons set forth below, I find that Ortiz failed to prove by a 

preponderance of the evidence that he engaged in protected activity. Moreover, assuming 

arguendo that Ortiz engaged in protected activity, I would nevertheless dismiss his claim because 

Sinacola succeeded in proving its affirmative defense. 

i. Protected Activity 

What is the alleged protected activity at issue? 

 

 The parties disagree what should be considered protected activity for purposes of 

establishing a prima facie case in this matter. On one hand, the Secretary, in his brief, asserts 

Ortiz engaged in protected activity when he complained to management about multiple incidents 

involving Bonds, as well as when Ortiz asserted his right to contact MSHA during the call on 

which he was terminated. Sec’y Br. 6-8. On the other hand, Sinacola asserts “Ortiz’s statement 

that he ‘could have called MSHA a long time ago’ if he were a problem – is the only alleged 

protected activity at issue.” Sinacola Reply Br. 4 (emphasis removed). In making its argument, 

Sinacola asserts the Secretary is bound by a stipulation limiting the time in which alleged 

potential protected activities occurred. I agree with Sinacola about the stipulation but my 

decision in this case would be the same if the stipulation had not been offered by the Secretary. 

 There is no dispute that during Ortiz’s deposition the Secretary stipulated that “[f]or the 

purposes of this proceeding, the Secretary is not seeking redress for anything more than 60 days 

prior to the date Mr. Ortiz complained to MSHA.” Sec’y Reply Br. 1; Sinacola Reply Br. 3. 

Although the Secretary qualified the stipulation by stating that additional alleged instances of 

17 Sinacola argues that the court should apply the “but-for causation” standard recently 

endorsed by the Court of Appeals for the Ninth Circuit in Thomas v. CalPortland, 993 F.3d 1204 

(9th Cir. 2021). However, because Sinacola’s operation is not located within the Ninth Circuit, 

that standard is not binding on the Commission. Accordingly, I have applied the Commission’s 

longstanding Pasula-Robinette test. Nevertheless, I find that applying the “but-for causation” 

standard would lead to the same conclusion. 

44 FMSHRC Page 788
protected activity could be considered for “background purposes,” it is clear the Secretary 

represented to Respondent that only those activities that occurred within 60 days prior to Ortiz’s 

complaint to MSHA were to be considered for purposes of establishing that protected activity 

occurred which could have motivated Ortiz’s termination. 

Ortiz filed his complaint with MSHA on April 20, 2021, i.e., the same day he was 

terminated. February 19, 2021, marks 60 days prior to April 20, 2021. Accordingly, I will not 

consider whether activities occurring before February 19, 2021, amounted to protected activity, 

except to provide context to the events that followed.18 

The only potential protected activity in the subject time period was Ortiz’s April 20 

comment to Kain about contacting MSHA. All other potential protected activity referenced in the 

Secretary’s brief occurred prior to February 19, 2021.19 

 Did Ortiz engage in protected activity? 

 The Secretary asserts Ortiz engaged in protected activity by asserting his right to contact 

MSHA during the April 20 call with Kain. As support, the Secretary cites multiple decisions, 

including one of this court, in which Commission judges found that asserting one’s right to 

contact MSHA was protected activity. Conversely, Sinacola argues Ortiz’s comment did not 

constitute protected activity. Sinacola asserts Congress intended the discrimination provisions of 

the Mine Act to encourage miner participation in enforcement, and courts should limit the 

definition of protected activity to protect only those employees who act in furtherance of 

MSHA’s purpose. Here, protected activity cannot be expanded “to include every alleged safety 

violation that Ortiz ‘could have’ reported.” Sinacola Br. 15. By saying that he “could have” 

contacted MSHA, but did not, Ortiz was doing the opposite of what Congress intended and was 

not participating in enforcement. 

18 Sinacola, in its reply brief, understandably stated that it relied on the Secretary’s 

stipulation “during Ortiz’s deposition, in preparation for hearing, during the hearing, and in” 

Sinacola’s post hearing brief. Sinacola Reply Br. 5. I agree with Sinacola that it would be 

“wholly unfair” to allow the Secretary to renege on the stipulation. Id. 

19 Even if I were to consider events that occurred before the stipulated time period, I find 

that the Secretary did not establish that those events were protected or that they played any role 

in Ortiz’s termination. First, Ortiz's complaint about having to work with a hernia occurred too 

far back in time to be relevant. Second, the Secretary failed to establish that Ortiz's alleged 

complaint that Bonds required Ortiz to keep his cell phone on was related to the safe operation of 

the loader. Finally, although Ortiz did briefly raise the seatbelt issue at the conciliation meeting, I 

find that the Secretary failed to establish that Ortiz raised the issue at any other time. Ortiz's 

testimony regarding alleged other instances he raised the seatbelt issue was not clear regarding 

when those complaints were made or to whom they were made. Moreover, even if I were to 

consider Ortiz raising the seatbelt issue at the conciliation meeting, I would find that it played no 

role in his termination. Specifically, and as set forth more fully below, I find that Kain did not 

recall and, in turn, did not consider any mention of the seatbelt issue during the conciliation 

meeting when deciding whether to terminate Ortiz. 

44 FMSHRC Page 789
Section 105(c)(1) does not include the term “protected activity,” but it does identify 

certain activities that are protected.20 Although asserting one’s right to contact MSHA is not 

explicitly listed among those activities, this court and others have determined that certain threats 

to contact MSHA are protected activity. 21 Had Ortiz’s statement that he “could have” contacted 

MSHA been made in a vacuum, an argument could be made that the statement was protected 

activity. However, as discussed above, Ortiz’s statement was not made in a vacuum. Rather, the 

statement that he “could have” contacted MSHA was coupled with a demand that Bonds be 

removed from the mine. 

In Collins v. FMSHRC, 42 F.3d 1388, 1994 WL 683938 at *5 (6th Cir. 1994) 

(unpublished per curiam decision), the Sixth Circuit held that although Congress intended courts 

to interpret “protected activity” broadly, the term should not be interpreted “in a way which 

would foil the [Mine] Act’s aim.” In Collins a miner kept a record of safety hazards for the sole 

purpose of protecting his job. There the court, in finding that the miner had not engaged in 

20 A miner engages in protected activity if (1) he “has filed or made a complaint under or 

related to this Act, including a complaint ... of an alleged danger or safety or health violation[;]”, 

(2) he “is the subject of medical evaluations and potential transfer under a standard published 

pursuant to section 101[;]”, (3) he “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 (4) he 

has exercised “on behalf of himself or others ... any statutory right afforded by this Act.” 30 

U.S.C. § 815(c)(1). 

21 The Secretary, in his brief, cites four Commission ALJ decisions and argues that 

asserting one’s right to contact MSHA is a protected activity. However, I find the facts of those 

cases distinguishable from the case at hand. In each of those cases the miner was asserting their 

right to contact MSHA in the future about allegedly unsafe conditions. In Sec’y of Labor on 

behalf of Coffee v. Txoma Mining, LLC, 40 FMSHRC 615 (Mar. 2018) (ALJ), I found, in the 

context of a temporary reinstatement proceeding, that a miner had alleged that they engaged in 

protected activity when they threatened to contact MSHA because mine management refused to 

purchase needed safety equipment. In Sec’y of Labor on behalf of Williamson v. CAM Mining,

LLC, 33 FMSHRC 1980 (Aug. 2011) (ALJ), Judge Paez found that a miner engaged in protected 

activity when the miner made a statement that was “tantamount to stating he was going to make 

a safety complaint” to MSHA. In Metz v. Wimpey Minerals and Tarmac America, Inc., 18 

FMSHRC 1087 (June. 1996) (ALJ), former Judge Melick found that a miner engaged protected 

activity when he stated he would contact MSHA if certain allegedly unsafe equipment was 

allowed to continue to operate. Finally, in Adams v. J.L. Owens III, Contracting a/k/a J.L. Owens 

III, a/k/a Eastern Aggregates, Inc., 7 FMSHRC 299 (Feb. 1985 (ALJ), former Chief Judge 

Merlin found that a miner engaged in protected activity when the miner threatened to call MSHA 

about unsafe electrical wiring. Here, unlike those cases, Ortiz’s comment was not a threat to 

contact MSHA in the future, but rather a veiled threat that he “could have” contacted MSHA 

about past safety complaints. Moreover, although each of the cases cited by the Secretary 

involves a situation in which the miner threatened to contact MSHA because the miner had 

safety concerns that were not being addressed, I have already found that the intent of Ortiz’s 

comment had nothing to do with safety and, rather, was an attempt to leverage a veiled threat in 

order to have Bonds removed from the mine. 

44 FMSHRC Page 790
protected activity, stated that Congress intended the discrimination provision to “encourage 

miner participation in the enforcement of the Act” and that “[t]he congressional objective of 

eliminating unsafe mining practices is hardly promoted by rewarding a miner for committing and 

then recording safety violations that he neither reports nor intends to report.” 1994 WL 683938 at 

*4. 

As the court in Collins made clear, context matters when analyzing whether something is 

protected activity.22 Shearer, the MSHA special investigator who investigated Ortiz’s complaint, 

confirmed as much during his testimony when he implied that it takes more than a mere mention 

of “MSHA” for a statement to be considered protected activity. Here, the context of Ortiz’s 

statement that he could have contacted MSHA was that it was made in conjunction with a 

demand to have Bonds removed from the mine. Ortiz acknowledged that he could have gone to 

MSHA in the past about safety complaints but chose not to do so. Instead, Ortiz sat on those 

potential complaints until he believed they could benefit him in the form of leverage to get 

Bonds removed from the mine. Moreover, Kain credibly testified he had no idea what the MSHA 

comment was in reference to and he immediately told Ortiz could contact MSHA any time Ortiz 

wanted to do so. 23 Ortiz’s desire to remove Bonds from the mine had nothing to do with safety 

and everything to do with the conflicting personalities and styles of work. 

If Ortiz believed that his alleged safety complaints were being ignored by management, 

he should have complained to MSHA. Rewarding Ortiz for sitting on potential safety complaints 

until those complaints could be used as leverage to have Bonds removed from the mine would 

frustrate the purpose of the Act’s discrimination provision, which is meant to encourage miner 

participation in enforcement. Accordingly, like the court in Collins, which found that a miner did 

not engage in protected activity when he maintained a record of safety hazards for the sole 

purpose of protecting his job, I find that Ortiz did not engage in protected activity when he made 

22 While Sinacola’s operation is not located in the Sixth Circuit where Collins was 

decided, I find the court’s reasoning persuasive. 

23 Based on the record evidence, I find Kain’s testimony on this point both reasonable and 

credible. Although Werbig’s notes from the conciliation meeting briefly mention Ortiz’s concern 

about Bonds not wearing his seatbelt, I credit Kain’s testimony that he did not recall a discussion 

of any safety complaints. In reaching this conclusion, I am particularly mindful of the conclusory 

nature of Ortiz’s statement on the seatbelt issue during the meeting, as well as the cursory and 

superficial way in which the issue was raised. Ortiz’s statement was not that he had witnessed 

Bonds failing to wear a seatbelt, but rather that when speaking to Bonds over the radio Ortiz 

could hear a beeping sound, which indicated to Ortiz that Bonds was not wearing a seatbelt. Ex. 

C1 p. 9. Moreover, the issue was only very briefly mentioned during the meeting, as evidenced 

by only a short exchange between Ortiz and Werbig in the meeting notes. Kain’s testimony, as 

well as the notes, confirm that the purpose of the meeting was to diffuse the ongoing personality 

conflicts between Ortiz and Bonds. Absent other credible evidence and, given Kain’s 

demonstrated credibility, I decline to infer that Kain had knowledge of any of the safety 

complaints allegedly raised by Ortiz. Accordingly, I find that the Secretary failed to establish 

that Kain, who made the decision to terminate Ortiz, had knowledge of, or considered, any safety 

complaints when making that decision. 

44 FMSHRC Page 791
a veiled threat that he could have contacted MSHA for the sole purpose of creating leverage to 

have Bonds removed from the mine. 

 I conclude that Ortiz did not engage in protected activity. As a result, a prima facie case 

of discrimination was not established. Consequently, I find that Ortiz’s discrimination complaint 

must be denied. Nevertheless, for the sake of completeness, and assuming arguendo that Ortiz’s 

claimed statement to Kain that “if [he] would have been a problem [he] would have called 

MSHA a long time ago[,]” was protected activity, I have also analyzed whether his termination 

was motivated by that statement in any part. 

ii. Adverse Action and Motivation 

The Commission has recognized that although direct evidence of discriminatory intent or 

motivation is rarely available, a nexus between the protected activity and adverse action may be 

inferred where indicia of discriminatory intent exists, including (1) knowledge of protected 

activity; (2) hostility or animus toward the protected activity; (3) coincidence in time between the 

protected activity and the adverse action; and (4) disparate treatment of the miner. Sec’y of Labor 

on behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009); see 

also Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 

(Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983). 

Here, the Secretary asserts that both direct and circumstantial evidence establish that 

Ortiz’s termination was motivated by his protected activity. First the Secretary argues that direct 

evidence of discriminatory motive exists because, even if Sinacola’s version of events is 

accepted, “Ortiz’s assertion to contact MSHA prompted the termination.” Sec’y Br. 8. Second, 

the Secretary argues discriminatory intent can be inferred because Sinacola had knowledge of 

Ortiz’s protected activity, Sinacola management demonstrated animus toward Ortiz, there was a 

temporal nexus because Ortiz was terminated immediately after making the comment about 

contacting MSHA, and Ortiz suffered disparate treatment since he was the only employee 

disciplined or terminated for his alleged involvement in the petition to have Bonds removed. 

If I assume for the sake of this analysis that Ortiz’s statements were protected activity, I 

must determine whether his termination was motivated in some part by that protected activity. 

For the reasons set forth below, I find that the Secretary did not establish by a preponderance of 

the evidence that Ortiz’s termination was motivated in any part by protected activity. 

Direct Evidence of Discriminatory Intent 

The Secretary argues that Kain’s and Phillip’s characterization of Ortiz’s MSHA 

comment as a “threat” are direct evidence of discriminatory intent. I disagree. Although both 

individuals referenced a threat in their respective testimony, I find that the Secretary 

misinterprets their testimony. It is clear from the testimony that those individuals did not 

consider Ortiz’s comment about contacting MSHA as the threat. Rather, a review of their 

testimony reveals that Kain and Phillips saw the “threat” not as a complaint about safety at the 

mine but as a tactic that Ortiz was trying to use to demand that Bonds be removed from the mine. 

44 FMSHRC Page 792
First, the Secretary cites Kain’s testimony on page 122 of the hearing transcript as 

support. The pertinent part of that page includes the following exchange: 

Q: Mr. Kain, you said it wasn’t the mere mention of MSHA that was 

threatening. What was the threatening coercive part of that 

conversation for you? 

A: He – I felt like Moses was using, I’m going to call it MHSA or 

else. He’s free to call MSHA any time he’d like. 

Tr. 122. 

Although the Secretary focuses on the “MSHA” part of the statement as being the threat 

that prompted the termination, he does so at the expense of ignoring the “or else” portion. Here, 

when looked at in the context of Kain’s other testimony, I interpret the phrase “or else” to be in 

reference to the demand to remove Bonds from the mine.24 As discussed above, the statement 

and demand must be considered together. Here, I find that Kain perceived the demand, and not 

the statement about contacting MSHA, as the coercive and threatening part of the conversation 

with Bonds. 

Second, the Secretary cites Phillip’s testimony on page 159 of the hearing transcript as 

support. The pertinent part of that page includes the following exchange: 

Q: Is – what part of that conciliation agreement is the part where he 

was going against? 

A: Well, I think that he was supposed to recognize the authority and 

supervision of – of Harry Bonds. And – and I—and there was also 

one of those points to really open up the communication channels, 

and it does not seem to – you know, his – his call to Eric Kain and 

making a threat is not – it seems to fly in the face of that. 

Tr. 159. Even though Phillips used the term “threat,” it is clear that the threat he referenced was 

not Ortiz’s comment about contacting MSHA. Rather, Phillips answer was given in the context of 

a discussion about Ortiz’s non-safety related conflicts with Bonds and how, despite the conciliation 

meeting and agreement, Ortiz was still complaining about Bonds. Although Phillips did not 

explicitly state that, it is clear that this is what he meant.25

 While Kain and Phillips may have characterized Ortiz’s statements as a “threat,” it is 

clear from their testimony that the threat they perceived and referenced was Ortiz’s effort to get 

Bonds removed from the mine. Moreover, simply characterizing a statement as a “threat” does 

24 Notably, Kain, when asked if he felt that Ortiz mentioning MSHA was a threat, 

responded “No.” Tr. 121. 

25 Phillips was not present during the call during which Kain terminated Ortiz. As a 

result, his testimony regarding motivation is mostly second-hand. Accordingly, I accord it less 

weight than Kain’s testimony on this point. 

44 FMSHRC Page 793
not by itself establish discriminatory motive in context of the Mine Act. Accordingly, I find that 

the Secretary’s argument regarding direct evidence lacks merit. I now turn my attention to 

whether sufficient circumstantial evidence exists such that I can infer discriminatory intent or 

motivation. 

Knowledge of Protected Activity 

The Commission has held that “an operator’s knowledge of a miner’s protected activity is 

probably the single most important aspect of a circumstantial case.” Sec’y of Labor on behalf of 

Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999) (quoting Chacon, 3 FMSHRC at 

2510). 

The Secretary argues Sinacola had knowledge of Ortiz’s protected activity because Ortiz 

asserted his right to contact MSHA directly to Kain, the mine division manager.26 Although I 

have already found that Ortiz’s statement was not protected activity, for purposes of this analysis 

I agree, and Sinacola does not dispute, that the statement was made directly to Kain and, 

therefore, Sinacola had knowledge. Consequently, had the statement been protected activity, this 

factor would weigh in favor of Ortiz’s claim that Sinacola had knowledge of this activity. 

Animus or Hostility Toward the Protected Activity 

The Secretary argues that statements made at hearing by Kain and Phillips describing 

Ortiz as “difficult,” a “loudmouth,” and “troublemaker” demonstrate animus toward Ortiz. 

Meanwhile, Sinacola argues that Ortiz’s reputation was well-earned and had nothing to do with 

safety related activity. 

The statements by Kain and Phillips certainly demonstrate frustration with Ortiz. 

However, I find that their frustration was unrelated to any protected activity and was instead 

related to, among other things, Ortiz constantly voicing lack of satisfaction with his job and his 

personality and other non-safety related conflicts with Bonds. 

Kain testified that Ortiz was never satisfied and repeatedly complained about pay and 

what equipment he was ordered to operate. However, both Kain and Phillips credibly testified 

that the complaints about pay were unfounded, with Phillips stating that Ortiz’s pay was “right in 

line general increases . . . [which are] looked at annually[,]” and Kain confirming that Ortiz 

received normal raises and was never prevented from getting a raise. Tr. 100-101, 150. 

Moreover, Ortiz had a history of complaining about what equipment he was tasked with 

26 Although the Secretary attempts to link other potential protected activities to the 

knowledge element of this analysis, those other instances of potential protected activity occurred 

outside of the timeframe stipulated to by the Secretary and relied upon by Sinacola. Moreover, 

aside from Ortiz’s conclusory allegation during the conciliation meeting that he believed Bonds 

drove without a seatbelt because Ortiz could hear a beeping sound over the radio, there is no 

credible evidence that would allow me to infer Kain, who terminated Ortiz, had any knowledge 

concerning Ortiz’s purported complaints. However, for reasons discussed above, I have already 

credited Kain’s testimony that he did not recall any discussion of safety complaints during the 

conciliation meeting. 

44 FMSHRC Page 794
operating and had complained just prior to his termination about the loader he was assigned to 

operate and wanting to be trained on a dozer. However, Ortiz’s job title was “loader operator” 

and his complaints about equipment assignments were unrelated to safety, as evidenced by his 

agreement both during the conciliation meeting and at hearing that he was never asked to operate 

unsafe equipment or equipment that he was not trained on. Ex. C1 p. 7; Tr. 43. 

Further, both Kain and Phillips were frustrated by the persistent personality conflict 

between Ortiz and Bonds.27 Notably, Phillips’ testimony that “Ortiz had a reputation of being a 

loudmouth, a troublemaker,” which the Secretary’s cites as evidence of animus, was a response 

to a question asked about whether Phillips knew what caused Werbig to propose the conciliation 

meeting. The meeting, as I have already found, was aimed at diffusing the personality conflict 

and almost devoid of discussion related to safety.28 If Phillips and Kain had animus toward 

anything, it was the persistent conflict that existed between Ortiz and Bonds and not protected 

activity. The conflict was such a problem that Phillips agreed to dedicate significant staff 

resources and time toward trying to resolve it via the conciliation meeting, which he described as 

an “unusual” method. Given that the conciliation meeting clearly did not resolve the conflict, I 

find their frustration reasonable. 

Additionally, both Kain and Phillips credibly testified regarding general awareness of the 

rumor that Ortiz was involved with a petition to have Bonds removed from the mine. Moreover, 

it was no secret Ortiz had been in a physical altercation at the mine and had damaged both a 

loader and his supervisor’s truck. 

Although Kain’s and Phillip’s statements certainly demonstrate frustration with Ortiz, 

that frustration was warranted for reasons unrelated to protected activity. With this information 

in mind and given the lack of relevant evidence of a connection between their testimony and the 

 

27 The personality conflict was quite evident at hearing. Among other things, Bonds 

voiced his frustration with Ortiz failing to recognize the supervisor/subordinate relationship, and 

Ortiz complained about the tone Bonds would use when speaking to Ortiz. One illustrative 

example of how the conflict played out at the mine can be seen in the conflicting testimony the 

two offered regarding how a loader Ortiz was operating became damaged. At hearing, Ortiz 

accused Bonds of intentionally placing a rock in an area where Ortiz would run over it with his 

loader. Bonds, on the other hand, testified he could not have moved the rock in the area. Rather, 

Bonds attributed the damage to Ortiz’s failure to use his loader to keep the work area clean. I 

find Ortiz’s testimony on this incident unsupported and farfetched. I credit Bonds’ testimony on 

this issue. Accusing one’s boss of sabotage, without support, is the type of conduct that poisons a 

relationship. 

28 Although Ortiz testified that he raised multiple safety complaints during that meeting, I 

decline to credit that testimony and instead find, relying on Kain’s testimony and the notes 

Werbig took during the meeting, that the only discussion of a potential safety complaint was 

Ortiz’s conclusory statement that Bonds must not have been wearing a seatbelt at times when on 

the radio with Ortiz because Ortiz could hear a beeping sound. Ex. C1 p. 9. 

44 FMSHRC Page 795
alleged protected activity at issue in this proceeding, I find that the Secretary failed to establish 

that Sinacola exhibited animus toward any protected activity. 

 Coincidence in Time 

 The Secretary argues that there was a coincidence in time between the protected activity 

and adverse action because Ortiz was terminated immediately after he asserted his right to call 

MSHA. There is no dispute that Ortiz was terminated almost immediately after he stated he 

would have contacted MSHA if he wanted to cause trouble. Clearly, there was a coincidence in 

time. 

 Disparate Treatment 

 The Secretary argues that Sinacola treated Ortiz differently from miners who did not 

make safety complaints. Specifically, the Secretary asserts there is no evidence to show that any 

other miners were disciplined or terminated for alleged involvement in the petition to have 

Bonds removed from the mine. Moreover, the Secretary asserts that Phillips’ testimony that Ortiz 

was the only person making complaints at the mine indicates Ortiz was treated differently for 

making those complaints. 

 Both of the Secretary’s arguments on this factor lack merit. First, Ortiz was not 

terminated or disciplined because of his involvement in the rumored petition. Although Kain and 

Phillips were aware of the alleged rumor, no credible evidence was presented at hearing 

regarding action taken against Ortiz or any other miner for their alleged involvement in the 

petition. In fact, up until near the end of the April 20 call, Kain had not even considered 

disciplining or terminating Ortiz for anything. Rather, as evidenced by the transfer offer 

extended to Ortiz during the call, Kain was instead interested in attempting to find a solution to 

the persistent conflict between Bonds and Ortiz. 

Second, although Phillips did testify that the “only complaint out of the mine in my time 

at the company” came from Ortiz, that statement lacks context. Tr. 150. Immediately prior to that 

statement, Phillips, when asked what the cause of the tension was between Ortiz and Bonds, 

testified that “it’s more than just personality. It was – you know, I had heard since I started with 

Sinacola that, you know, [Ortiz] wasn’t happy with his pay, he wasn’t happy with the piece of 

equipment that he was on. It – it seemed to always be something.” Tr. 150. Given the context in 

which the statement was made, Phillips was not talking about safety complaints. Consequently, I 

find the Secretary failed to establish that Ortiz was the subject of disparate treatment. The 

situation with Ortiz was unique. Accordingly, it is not strange that there are no similar situations 

involving other employees to compare it with. 

 Taking into consideration each of the items discussed above and, again, assuming that 

Ortiz’s statement to Kain was protected activity, I find that the Secretary did not establish by a 

preponderance of the evidence that Ortiz’s termination was motivated in any part by protected 

activity. However, again, for the sake of completeness, and assuming arguendo that Ortiz 

engaged in protected activity and that his termination was motivated in some part by that 

44 FMSHRC Page 796
protected activity, I now turn my attention to whether Sinacola established an affirmative 

defense. 

iii. Affirmative Defense 

The Commission has explained that an operator may establish an affirmative defense by 

proving that the adverse action was motivated by unprotected activity and it would have taken 

the action based solely on the unprotected activity. Pasula at 2799-2800. “An operator can 

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

out to the alleged discriminatee, the miner’s unsatisfactory past work record, prior warnings to 

the miner, or personnel rules or practices forbidding the conduct in question.” Bradley v. Belva 

Coal Co., 4 FMSHRC 982, 993 (June 1982). The defense should not be “examined superficially 

or be approved automatically once offered.” Haro v. Magma Copper Co., 4 FMSHRC 1935, 

1938 (Nov. 1982). Nor should the judge “substitute his business judgment or sense of ‘industrial 

justice’ for that of the operator.” Id. In reviewing the defense, the judge should determine 

whether the justification is credible and, if so, whether the operator would have been motivated 

as claimed. Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). The Complainant may 

demonstrate that the alleged non-discriminatory reason is mere pretext for the adverse action by 

showing that the “asserted justification is weak, implausible, or out of line with the operator’s 

normal business practices.” Sec’y of Labor on behalf of Price v. Jim Walter Res., Inc., 12 

FMSHRC 1521, 1534 (Aug. 1990). 

Sinacola argues that, even if the Secretary can establish a prima facie case, Ortiz was 

terminated for reasons other than his MSHA comment. Specifically, Sinacola argues Ortiz was 

terminated because he refused a to accept an offer to be transferred to a different Sinacola 

facility, made an inappropriate demand of management to terminate Bonds, had a history of 

conflict with other employees, and refused to follow the directions of his supervisor. 

The Secretary argues Sinacola failed to establish it would have terminated Ortiz for 

unprotected activities alone. The Secretary points to a lack of evidence regarding prior consistent 

discipline for similar infractions and Ortiz’s limited disciplinary history. The Secretary asserts 

that despite testimony that Ortiz was a “troublemaker” and insubordinate, there is no 

documentation of this alleged insubordination, and no disciplinary action was taken against Ortiz 

based on management’s belief that Ortiz had started a petition to have Bonds terminated. Here, 

Ortiz was not terminated until he mentioned MSHA. The other reasons cited by Sinacola are 

merely pretext for firing Ortiz after he asserted his right to contact MSHA. 

Even if I assume that Ortiz established a prima facie case of discrimination, I 

nevertheless find Sinacola provided a valid affirmative defense. As discussed previously, I credit 

Kain’s testimony regarding what was said on the April 20 telephone call. Kain credibly testified 

Ortiz refused Kain’s offer of a transfer, demanded that Bonds be removed from the mine, and 

stated he “could have” contacted MSHA. Even though the exact context regarding what Ortiz 

“could have” contacted MSHA about was unknown by Kain, Ortiz was clearly attempting to 

leverage that statement to get what he wanted, i.e., Bonds removed from the mine. As far as 

Ortiz was concerned, if anyone should be transferred to a different facility it should be Bonds. 

Kain’s response to Ortiz’s veiled threat is telling. Rather than take the bait and immediately 

44 FMSHRC Page 797
terminate Ortiz for a perceived threat about contacting MSHA, Kain instead told Ortiz he could 

contact MSHA at any time. In the court’s opinion, Kain paid no attention to the statement that 

Ortiz could have contacted MSHA and instead based his termination decision on Ortiz’s demand 

to have Bonds removed from the mine. Demanding that one’s supervisor be removed because of 

a personality conflict is not protected activity. 

I accept Kain’s explanation that he viewed Ortiz’s demand to remove Bonds as an act of 

insubordination. Kain credibly testified he had never experienced an employee directly demand 

that their supervisor be fired or transferred. I agree with Kain that Ortiz’s demand to remove 

Bonds was patently unreasonable.29 Tr. 115. As Phillips credibly explained, if employees can 

demand that their supervisors be fired because they do not like them, then management has no 

control over the organization. Here, I find that Kain correctly perceived Ortiz’s demand as 

stemming from his personality conflict and inability to work with Bonds in a 

supervisor/subordinate relationship. 

 I further find that Kain reasonably believed he had no other option than to terminate 

Ortiz at that time. When Ortiz refused the transfer offer and demanded that Bonds be removed 

from the mine, he eliminated other options that may have otherwise been available to Kain. 

Given Ortiz’s persistent personality conflict with Bonds, I find that Kain reasonably believed 

Ortiz and Bonds could never work together again after Ortiz demanded that Bonds be removed. 

With transfer not an option, and having no legitimate reason to terminate Bonds, I accept Kain’s 

explanation and agree that he had no other choice but to terminate Ortiz.30 

It should come as no surprise that Sinacola was unable to offer much in the way of 

evidence of prior consistent discipline for such an unusual act, i.e., demanding that one’s 

supervisor be removed because of significant non-safety related conflicts. However, I find that 

Ortiz’s past work record as well as the informal warning about insubordination he received 

during the conciliation meeting are additional evidence that demonstrates Sinacola would have 

terminated Ortiz for unprotected activity alone. Specifically, I find that Sinacola warned Ortiz 

about insubordination during the February conciliation meeting, even if the word insubordination 

was not used during the meeting. Werbig’s meeting notes clearly indicate Bonds’ expressed 

concern about Ortiz not listening to Bonds’ direction and Ortiz “push[ing] back when asked to 

do things.” Ex. C1 p. 9. Notably, at the end of the meeting, the first item the participants agreed 

to was to “follow supervisors direction[.]” Id. at 11. The meeting was clearly an attempt by 

management to, among other things, diffuse the conflict and ensure Ortiz acknowledged he was 

the subordinate of Bonds. In addition, Ortiz’s disciplinary record, while not lengthy, was far 

29 Although Ortiz may have believed his complaint about Bonds’ tone and the refusal to 

allow him to get out of the truck along a mine road warranted Bonds’ removal, Kain disagreed. 

In fact, Kain opined that, it would have been incredibly unsafe for Bonds to let Ortiz out of the 

truck to walk the route back to the yard. 

30 Even if alternative means of discipline existed, the Commission has stated that its 

judges should not substitute their views of what is good business practice for that of the operator 

with regard to whether the adverse action was “‘just’ or ‘wise.’” Secretary of Labor on behalf of 

Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2517 (Nov. 1981). 

44 FMSHRC Page 798
from spotless and included documented instances of Ortiz damaging company equipment as well 

as his involvement in a physical fight with another employee. Although Sinacola did not present 

evidence of any formal personnel rules or practices forbidding employees from engaging in 

insubordination like what occurred here, common sense dictates that such conduct is entirely 

inappropriate. 

Finally, I find that Sinacola’s justification for terminating Ortiz was not pretextual. 

Ortiz’s demand to remove Bonds was unreasonable and inappropriate. As discussed above, with 

transfer not an option, and having no legitimate reason to terminate Bonds, Kain’s options were 

at best extremely limited. In Haro v. Magma Copper Co., 4 FMSHRC 1935, 1937 (Nov. 1982), 

the Commission stated that both it and “its judges have neither the statutory charter nor the 

specialized expertise to sit as a super grievance or arbitration board meting out industrial equity. 

Once it appears that a proffered business justification is not plainly incredible or implausible, a 

finding of pretext is inappropriate.” Here, Kain made a rational business decision, based on the 

information available at that time, to terminate Ortiz. That decision was both plausible and 

expected given the options available. 

Based on the above discussion, I find that Sinacola has proven its affirmative defense, 

and that the reasons given for Ortiz’s termination were not pretextual. 

IV. ORDER 

For the reasons set forth above, the complaint of discrimination brought by the Secretary 

of Labor on behalf of Moses Ortiz is DENIED and this proceeding is DISMISSED.

31 

 /s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

31 My August 24, 2021, Decision Approving Settlement and Order of Temporary 

Economic Reinstatement in CENT 2021-0184 remains in effect until this decision on the merits 

of the discrimination complaint becomes a final decision of the Commission. Sec'y on behalf of 

Bernardyn v. Reading Anthracite Co., 21 FMSHRC 947 (Sept. 1999). Section 113(d)(1) of the 

Act states “[t]he decision of the administrative law judge ... shall become the final decision of 

the Commission 40 days after its issuance unless within such period the Commission has 

directed that such decision shall be reviewed ....” 30 U.S.C. § 823(d)(1). 

44 FMSHRC Page 799
Distribution (Via First Class Mail and email): 

Lacee Caitlyn Eakins, Esq., and Jennifer Johnson, Esq., U.S. Department of Labor, Office of the 

Solicitor, 525 Griffin Street, Suite 501, Dallas, TX 75202 (eakins.lacee.c@dol.gov, 

johnson.jennifer@dol.gov) 

Harold Jones, Polsinelli, PC, 2950 N. Harwood Street, Suite 2100, Dallas, Texas 75201 

(hdjones@polsinelli.com, KCalderon@Polsinelli.com) 

44 FMSHRC Page 800
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

December 13, 2022 

SECRETARY OF LABOR, UNITED 

STATES DEPARTMENT OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

 Petitioner 

 v. 

APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2022-0301 

A.C. No. 46-08930-551112 

Mine: Grapevine South Surface Mine 

 

ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW 

 This case is before the Court on a Petition for the Assessment of a Civil Penalty under 

Section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. 

§ 815(d), filed May 31, 2022, and the Secretary of Labor’s Motion to Approve Settlement, filed 

October 14, 2022. The Secretary has refused to provide the 104(b) orders associated with seven 

104(a) citations in this docket.1 The absence of the associated 104(b) orders frustrates the 

Court’s ability to faithfully review the record and properly evaluate the proposed settlement. 

Further, the idea that the Secretary may unilaterally decide to secrete public records from the 

official file for a Petition for the Assessment of Civil Penalty he filed, is inimical to the 

Congressional structure and purpose of the Mine Act. 

Accordingly, for the reasons which follow, the Court CERTIFIES, under Commission 

Procedural Rule 76, 29 C.F.R. § 2700.76, that this interlocutory ruling involves a controlling 

question of law – whether the Secretary is obligated, upon a judge’s request, to supply the 

104(b) orders associated with 104(a) citations in a docket before the judge on a Motion to 

Approve Settlement – for which, in the Court’s opinion, immediate review will materially 

advance the final disposition of the proceeding. 

Background 

Docket WEVA 2022-0301 originally included 33 citations issued under Section 104(a) of 

the Mine Act, of which eight citations are listed in Exhibit A as having associated 104(b) Orders. 

Pet. for a Civil Penalty at 12-13. The docket was subsequently reallocated and thereby split into 

1 A separate deficiency, the Court noted that a citation’s termination sheet was also 

missing from the file. The Secretary did not provide the termination sheet for another citation 

that did not have an associated 104(b) order. However, Counsel for the Respondent provided the 

document.

44 FMSHRC Page 801
two dockets. That reallocation created a new docket WEVA 2022-0428. 2 Seventeen (17) 

citations remained with WEVA 2022-0301, of which seven of those citations had associated 

104(b) Orders issued for those now-admitted violations. However, the Petition does not include 

the seven 104(b) Orders associated with those 104(a) citations.3 Those citations are: Citation 

Nos. 9563136, 9563137, 9563138, 9563141, 9563142, 9563143, and 9563146.4 

The conditions found by the issuing inspector are briefly summarized here: 

Citation No. 9563136: Haulage truck with defective rear tire and oil leak from a rear 

inside tire; Citation No. 9563137, another haulage truck with various signal and brake light 

issues and audible alarm, all not functioning; Citation No. 9563138, five separate defects 

affecting safety on dozer; Citation No. 9563141, five separate defective lights and nonfunctioning horn on haulage truck; Citation No. 9563142, 13 thirteen (13) defects affecting 

2 Order for Docket Reallocation, June 29, 2022. For the 16 citations exported to the new 

docket, one of original eight citations which had an associated 104(b) Order was moved to the 

new docket, WEVA 2022-0428. As that new docket also had the deficiency of a missing section 

104(b) order, Citation No. 9563157, which Order the Secretary also refused to provide to the 

Court, and as that missing Order is within the separate, newly created docket, the Court has 

today issued a separate Certification for Interlocutory Review for Docket No. WEVA 2022-

0428. It is also noteworthy that for the reallocated citations making up the newly created Docket 

WEVA 2022-0428, eight of the sixteen citations in that docket involved mobile equipment 

related violations: Citation No. 9563189, pertained to multiple defects on the Volvo fuel and oil 

service truck, No. 900; Citation No. 9563183 involved a damaged seat belt on the Freightliner 

Truck No. MT 664; Citation No. 9563174 identified 8 separate defects on 785C Caterpillar 

haulage truck; Citation No. 9563173 addressed platform steps to access 785D Caterpillar haulage 

track which were cracked on both sides and had a broken toe board and hand rail to driver’s side 

door; Citation No. 9563172 found multiple defects on D11R Caterpillar Dozer; Citation No. 

9563159, involved a defective parking brake on a blasting truck; Citation No. 956156 found the 

Caterpillar 993 K Front end loader not operating in safe condition with five separate defects 

identified; and Citation No. 9563155 also identified five separate defects regarding safe means of 

access to 993K Caterpillar front end loader. 

3 That it is undeniable that this mine had a lot of vehicle-related violations is further 

demonstrated by the fact that among the other nine violations remaining within WEVA 2022-

0301 for which no (b) orders were issued, six of them involved an assortment of vehicle defects: 

Citation No. 9563139 involved other non-functioning lights on the D10R Caterpillar Dozer Co. 

No. D007; Citation No. 9563145 spoke to the 980 G Caterpillar front-end loader, No. 1893, with 

multiple defects; Citation No. 9563149 similarly found multiple defects on 992G Caterpillar 

front-end loader; Citation No. 9563151, identified five separate defects on a fuel and oil truck, 

No. GT 400; Citation No. 9563153, found horn and reverse lights not functioning; and Citation 

No. 9563154 discovered an inoperative reverse alarm on 993K Caterpillar front-end loader, No. 

L465. 

4 The full texts of the citations for the now-admitted violations missing the associated (b) 

orders are included in the Appendix to this order. 

44 FMSHRC Page 802
safety on haulage truck; Citation No. 9563143, fourteen (14) defects affecting safety on haulage 

truck; Citation No. 9563146, ten (10) defects affecting safety on haulage truck. Accordingly, it is 

inarguable that these now-admitted violations reflect that the mine had numerous problems with 

its mobile equipment. 

In light of the missing document(s), on November 9, 2022, the Court e-mailed the parties, 

requesting the missing information for this docket, as well as the missing information for the 

reallocated docket, WEVA 2022-0428. 

On Tuesday, November 15th, the Secretary’s non-attorney representative, conference and 

litigation representative David Trent, responded, speaking to the missing documents from both 

dockets: 

For the violations listed [by] Judge Moran request[ing] the terminations, no penalty 

is being compromised except for Citation No. 9563141. Therefore, the Secretary 

will not provide the terminations for these violations. For Citation No. 9563141 

there is no termination to provide for this violation.5 

E-mail from CLR Trent to the Court, November 15, 2022. 

On the same day as Mr. Trent’s response, Counsel for the Respondent, Attorney K. Brad 

Oakley, taking a cooperative approach, emailed the Court, responding that he could only locate 

a termination sheet for Citation No. 9563139, which termination sheet he attached to his email. 

He added that the violation was terminated upon repairs being made to lights on a dozer and that 

there was no (b) order associated with it. 

E-mail from Attorney Oakley to the Court, November 15, 2022. 

Attorney Oakley also informed in the same email that he had not been able to locate the 

termination sheets in the package of citations that his client provided to him, nor in the petition 

filed by Mr. Trent and that he believed that all of the remaining citations have 104(b) orders 

associated with them. For that reason, he opined that it was possible that MSHA did not issue 

terminations for the underlying citations. Id. Attorney Oakley confirmed, and it is not in 

dispute, that (b) orders were issued for the following citations in WEVA 2022-0301: 

9563136 – B order 9563148 issued on 1/13/22 and terminated on 1/19/22 

9563137 – B order 9563147 issued on 1/13/22 and terminated on 1/19/22 

9563138 – B order 9563177 issued on 2/1/22 and terminated on 2/3/22 

9563141 – B order 9563182 issued on 2/1/22 and terminated on 2/8/22 

9563142 – B order 9563181 issued on 2/1/22 and terminated on 2/8/22 

9563143 – B order 9563178 issued on 2/1/22 and terminated on 2/10/22 

 

5 Mr. Trent was referring to a citation found in the original docket. Thus, it remained with 

Docket No. WEVA 2022-0301 and therefore was not reallocated to WEVA 2022-0428. 

44 FMSHRC Page 803
9563146 – B order 9563180 issued on 2/1/22 and terminated on 2/2/22 

95631576 – B order 9563179 issued on 2/1/22 and terminated on 2/10/22 

On November 28, 2022, the Court, via email, repeated its request for the Secretary to 

provide the missing (b) orders for both dockets. E-mail by the Court to the Parties (November 

28, 2022). Thereafter, also on November 28, 2022, the CLR responded via e-mail, reiterating 

that the Secretary would not provide the missing termination sheets. 

Analysis 

The foregoing problem with the incomplete record in this case may be succinctly 

summarized. For this docket, Docket No. WEVA 2022-0301, the Secretary refuses to provide the 

104(b) orders issued for seven citations. The Court believes that once a matter is before the 

Commission, per section 110(k), the entire matter is within its domain under the Mine Act. That 

means that the Secretary may not secrete section 104(b) orders from the view of the 

Commission, miners or the public. That the citations have been settled, as assessed, without 

modifications to them, is irrelevant to the Secretary’s obligation not to hide orders issued in 

connection with the admitted violations. This is especially true because, as explained below, 

104(b) orders create certain obligations upon the Secretary which he is not free to ignore. 

The structure of the Mine Act underscores the importance of 104(b) orders. As the Court 

noted in its June 22, 2022 Order in Perry County Resources, 44 FMSHRC 501 (June 2022), 

The Court does not believe that the fact a violation is paid in full, with no 

modifications made to the issuing inspector’s evaluation, is the end of the matter. 

The principle behind this view is very basic, in carrying out its review 

responsibilities under 30 U.S.C. §820(k), the Court is obligated to be fully informed 

about the circumstances surrounding the issuance of a citation or an order. [The 

Citation in issue] is part of this docket, but the documentary record concerning this 

admitted violation is incomplete. This is because a section 104(b) order was issued 

by the inspector in connection with that Citation . . . The Secretary may not decide 

to selectively secrete such information from the Court, the public and especially 

from the miners it is charged to protect. From this Court’s perspective, such a stance 

is inimical to the spirit of the Mine Act. 

 

A Section 104(b) order is an important feature of the Mine Act. Section 104(b) of 

the Mine Act states: 

If, upon any follow-up inspection of a coal or other mine, an authorized 

representative of the Secretary finds (1) that a violation described in a citation 

issued pursuant to subsection (a) has not been totally abated within the period of 

time as originally fixed therein ... and (2) that the period of time for abatement 

6 Citation No. 9563157 represents the lone citation in reallocated Docket No. WEVA 

2022-0428 for which a (b) order was issued and for which the Secretary refuses to supply the (b) 

order paper. 

44 FMSHRC Page 804
should not be further extended, he shall determine the extent of the area affected by 

the violation and shall promptly issue an order requiring the operator of such mine 

or his agent to immediately cause all persons, except those persons referred to in 

subsection (c), to be withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines that such violation 

has been abated. 

 

30 U.S.C. § 814(b). 

 

As the Commission has noted, such orders have significance in their own 

right. It has observed that: 

First of all, section 105(a), by its terms, does not distinguish between the different 

types of orders that can be issued under section 104. Absent any language in the 

statute suggesting that the Secretary cannot propose a penalty in connection with a 

section 104(b) order, we will not interpret the phrase “order under section 104” in 

section 105(a) to exclude section 104(b) orders. 

 

Secondly, contrary to her claim, the Secretary may indeed assess a separate penalty 

for the failure to abate a violation. Section 105(b)(1)(A) of the Mine Act provides 

in pertinent part: 

If the Secretary has reason to believe that an operator has failed to correct a 

violation for which a citation has been issued within the period permitted for its 

correction, the Secretary shall notify the operator by certified mail of such failure 

and of the penalty proposed to be assessed under section 110(b) by reason of such 

failure and that the operator has 30 days within which to notify the Secretary that 

he wishes to contest the Secretary’s notification of the proposed assessment of 

penalty.... 30 U.S.C. § 815(b)(1)(A). Consequently, section 110(b) of the Act and 

MSHA’s regulations authorize the Secretary to assess steep daily penalties. See 30 

U.S.C. § 820(b); 30 C.F.R. § 100.5(c) (“Any operator who fails to correct a 

violation for which a citation has been issued under section 104(a) of the Mine Act 

within the period permitted for its correction may be assessed a civil penalty of not 

more than $6,500 for each day during which such failure or violation continues.”). 

 

Moreover, the fact that a withdrawal order has been issued increases the likelihood 

that such a penalty will be assessed. The legislative history of the Mine Act states 

that under section 105(b)(1)(A), like under section 105(a): 

 

[T]he Secretary is to similarly notify operators and miners’ representatives

when he believes that an operator has failed to abate a violation within the specified 

abatement period. In most cases, a failure to abate closure order will have been 

issued pursuant to Section [104(b)]. The notice of proposed penalty to operators 

in such cases shall state that a [104(b)] order has been issued and the penalty

provided by Section [110(b)] of the Act shall also be proposed. This penalty shall 

be proposed in addition to the penalty for the underlying violation required by 

44 FMSHRC Page 805
Section [110(a)] of the Act. S. Rep. No. 95-181, at 34-35 (1977), reprinted in Senate 

Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal 

Mine Safety and Health Act of 1977, at 622-23 (1978). 

 

In addition, even if no separate penalty for failure to abate a violation is assessed, 

the failure to abate allegation upon which a section 104(b) withdrawal order rests, 

if established, increases the amount of the penalty that is ultimately assessed for the 

underlying violation. As Judge Zielinski recognized in his first decision, ‘the 

demonstrated good faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation is one of the factors that the Commission 

must consider in fixing the amount of a civil penalty.’ 28 FMSHRC at 413 (quoting 

section 110(i) of the Mine Act, 30 U.S.C. § 820(i)). Thus, the sanction for a failure 

to abate is not only a withdrawal order, but, likely, a higher penalty when the 

Secretary eventually assesses a penalty for the original violative condition that 

allegedly was not abated in a timely fashion. See NAACO Mining Co., 9 FMSHRC 

1541, 1545 (Sept. 1987) (‘Under sections 104(b) and 110(b), if the operator does 

not correct the violation within the prescribed period, the more severe sanction of 

a withdrawal order is required, and a greater civil penalty is assessed.’). 

 

UMWA v. Maple Creek Mining, 29 FMSHRC 583, 592-594 (July 2007) (emphases 

added). 

 

Per the above decision, the Commission recognized the independent importance of 

104(b) orders may be the subject of a penalty in their own right, citing section 

104(b)(1)(A). The legislative history, as also cited by the Commission, makes this 

plain: “[t]he notice of proposed penalty to operators in such cases shall state that a 

[104(b)] order has been issued and the penalty provided by Section [110(b)] of 

the Act shall also be proposed. This penalty shall be proposed in addition to the

penalty for the underlying violation required by Section [110(a)] of the Act.” Id. at 

593. (emphases in original Order). 

 

Though no additional reasons are needed to require disclosure of the (b) order in 

this matter, the record does not reveal if the Secretary met his obligation to notify 

the miners’ representatives when, as here, he believed that an operator has failed to 

abate a violation within the specified abatement period. 

 

This Court is well-aware that its review of settlements is presently cabined within 

the terms of the Commission’s decisions in The American Coal Co., 40 FMSHRC 

983 (Aug. 2018) (“AmCoal”) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 

2018) and that under those decisions the Court’s review role has become 

statistically perfunctory. However, there is still an obligation and duty to examine 

each citation and order within a submitted docket, even if the citation is not 

contested and paid as originally assessed. The responsibility to ensure that there is

a complete record is separate and apart from, and not mutually exclusive to, the 

review of violations that have settled, whether such settlements are for the full 

amount proposed or some lesser amount. 

44 FMSHRC Page 806
 Frankly, the Court is at a loss to understand why the Secretary of Labor is not in 

full support of providing the full record of the enforcement actions taken in 

connection with an admitted 104(a) citation. In this matter that involves hiding the 

inspector’s issuance of a 104(b) order in connection with that citation. The apparent 

decision to secrete such information from the Court, the public and especially from 

the miners it is charged to protect is perplexing and at odds with the admonition 

from several federal courts invoking Justice Louis D. Brandeis’ remark that 

“Sunlight is said to be the best of disinfectants.” See, for example, Argus v. U.S. 

Dept Agriculture, 740 F.3d 1172 (8th Cir. 2014), wherein Argus invoked the federal 

law meant to bring disclosure sunlight to the government bureaucracy, in its request 

to see spending information from the U.S. Department of Agriculture under the 

Freedom of Information Act, 5 U.S.C. § 552. To the same effect as the Secretary 

has done here, the Department of Agriculture, with little explanation, refused 

disclosure. Reversing the lower court’s determination that the information sought 

was exempt from disclosure, the Eighth Circuit took note of Justice Louis D. 

Brandeis’ remark about the disinfecting benefit of sunlight. Id. at 1173, citing Other 

People’s Money 92 (1914). 

Id. at 503-506 (footnotes omitted). 

Conclusion 

For all of the above stated reasons, the Court certifies upon its own motion that this 

interlocutory ruling involves a controlling question of law for which, in the Court’s opinion, 

immediate review will materially advance the final disposition of the proceeding, 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

 

44 FMSHRC Page 807
APPENDIX 

The text of the citations for the now-admitted violations concerning which the Secretary has 

refused to supply the associated 104(b) orders are presented here. 

Citation No. 9563136 

Citation No. 9563136 was issued on January 10, 2022, for a violation of 30 C.F.R. § 77.1606(c). 

Titled “Loading and haulage equipment; inspection and maintenance,” this standard specifies 

that “[e]quipment defects affecting safety shall be corrected before the equipment is used.” 30 

C.F.R. § 77.1606(c). 

The citation stated: 

The following defects affecting safety existed on the 777D Caterpillar Haulage 

Truck Co. No. M03-546: 

1. A large knot existed on the side wall area of the left rear outside tire. 

2. Oil was leaking from the right rear inside wheel area. 

This truck was being operated in the Grapevine North Pit Area. Defects affecting 

safety shall be corrected before the equipment is used. 

Standard 77.1606(c) was cited 44 times in two years at mine 4608930 (44 to the 

operator, 0 to a contractor). 

Pet. for a Civil Penalty at 19. 

 For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably 

be expected to result in “lost workdays or restricted duty,” affecting one person. Id. The 

violation was not found to be significant and substantial. Id. Negligence was found to be “low.” 

Citation No. 9563137 

Citation No. 9563137 was issued on January 10, 2022, for a violation of 30 C.F.R. 

§ 77.1605(d). Titled “Loading and haulage equipment,” the standard specifies that “[m]obile 

equipment shall be provided with audible warning devices. Lights shall be provided on both 

ends when required.” 30 C.F.R. § 77.1605(d). 

The citation stated: 

The following conditions existed on the 777D Caterpillar Haulage Truck Co. No. 

M03-546: 

1. Both front marker/signal lights were not functioning when tested. 

2. Both rear brake lights were not functioning when tested. 

3. The left rear signal light was not functioning when tested. 

4. The Level 3 audile warning alarm which is located inside the operators cab was 

not functioning when tested. 

This truck was being operated in the Grapevine North Pit Area. This truck is 

44 FMSHRC Page 808
operated before and after daylight hours. Mobile equipment shall be provided with 

audible warning devices. 

Lights shall be provided on both ends when required 

Standard 77.1605(d) was cited 16 times in two years at mine 4608930 (16 to the 

operator, 0 to a contractor). 

Petition at 20. 

 For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably 

be expected to result in “lost workdays or restricted duty,” affecting one person. Id. The 

violation was not found to be significant and substantial. Id. Negligence was found to be “low.” 

Id. 

Citation No. 9563138 

Citation No. 9563138 was issued on January 10, 2022, for a violation of 30 C.F.R. § 77.1606(c), 

supra. 

The citation stated: 

The following defects affecting safety existed on the D10R Caterpillar Dozer Co. 

No. D007: 

1. A gap existed in the top corner of the right hand door to the operators cab. With 

the door closed completely the outside of the cab was still visible. 

2. Bolts were missing in the floor board allowing the floor board to be loose and 

not properly sealed. 

3. Oil was leaking out the right side final drive. 

4. Oil could be seen leaking on the right side out of the frame of the dozer. 

5. The seat in the operators cab is bottomed out. 

This dozer was being operated in the Grapevine North Pit Area. Defects affecting 

safety shall be corrected before the equipment is used. 

Standard 77.1606(c) was cited 44 times in two years at mine 4608930 (44 to the 

operator, 0 to a contractor). 

Petition at 21. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably be 

expected to be “permanently disabling,” affecting one person. Id. The violation was not found 

to be significant and substantial. Id. Negligence was found to be “low.” Id. The citation was 

continued on January 13, 2022, with the justification that: 

 

44 FMSHRC Page 809
Repairs are still being conducted at this time. Most of the repairs have been 

completed. The mine operator removed the dozer from service until the repairs 

could be completed, so more time has been granted. 

Id. at 22. The citation was continued again on January 18, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 23. The citation was continued again on January 24, 2022, with the justification that: 

Repairs are still being conduct at this time. The following repairs have been 

completed 1, 2, 4, and 5. Repair work has been hampered by parts availability and 

limited personnel to complete the repairs. The mine operator has removed the 

equipment from service until these repairs can be completed. 

Id. at 24. 

Citation No. 9563141 

 Citation No. 9563141 was issued on January 11, 2022, for a violation of 30 C.F.R. 

§ 77.1605(d), supra. The citation stated: 

The following conditions existed on the 785D Caterpillar Haulage Truck Co. No. 

RT111: 

1. The left and right side front signal/marker lights are not functioning when tested. 

2. The left side high beam light is not functioning when tested. 

3. The left and right side rear signal lights are not functioning when tested. 

4. The left and right side brake lights are not functioning when tested. 

5. The horn was not functioning when tested. 

This truck was being operated in the Mill Seat Pit Area (Alma). This truck operates 

before and after daylight hours. Mobile equipment shall be provided with audible 

warning devices, 

Lights shall be provided on both ends when required. These conditions have been 

recorded on the Pre-Operational Examinations and reported to the mine operator. 

Standard 77.1605(d) was cited 18 times in two years at mine 4608930 (18 to the 

operator, 0 to a contractor). 

Petition at 29. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably be 

expected to be “fatal,” affecting one person. Id. The violation was not found to be significant 

and substantial. Id. Negligence was found to be “high.” Id. The citation was continued on 

January 18, 2022, with the justification that: 

44 FMSHRC Page 810
Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 30. The citation was continued again on January 24, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 31. 

Citation No. 9563142 

 Citation No. 9563142 was issued on January 11, 2022, for a violation of 30 C.F.R. 

§77.1606(c), supra. 

 The citation stated: 

The following defects affecting safety existed on the 785D Caterpillar Haulage 

Truck Co. No. RT111: 

1. Right front strut is leaking oil. 

2. Right rear strut is leaking oil. 

3. Oil is leaking from the right rear inside wheel area. 

4. Oil is leaking from the right rear outside wheel area. 

5. Oil is leaking from the left rear inside wheel area. 

6. Excessive slack existed in the rear stabilizer bar (dogbone). 

7. Excessive slack existed in the center arm pin. 

8. The left front strut is leaking oil. 

9. Oil is leaking from the right front brake caliber area. 

10. Oil is leaking excessively from the steering oil tank onto the deck and down 

onto the right side of the engine compartment area. 

11. Oil is leaking excessively from the area located behind the hydraulic tank. 

12. Three gussets located on the right side of the truck was cracked and separated. 

13. The right rear inside tire has excessive damage to the tire. 

This truck was being operated in the Mill Seat Pit Area (Alma). Defects affecting 

safety shall be corrected before the equipment is used. 

 

44 FMSHRC Page 811
Standard 77.1606(c) was cited 46 times in two years at mine 4608930 (46 to the 

operator, 0 to a contractor). 

 Petition at 32-33. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably be 

expected to result in “lost workdays or restricted duty,” affecting one person. Id. at 32. The 

violation was not found to be significant and substantial. Id. Negligence was found to be 

“moderate.” Id. The citation was continued on January 18, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 34. The citation was continued again on January 24, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 35. 

Citation No. 9563143

Citation No. 9563143 was issued on January 11, 2022, for a violation of 30 C.F.R. § 77.1606(c), 

supra. 

 The citation stated: 

The following defects affecting safety existed on the 785C Caterpillar Haulage 

Truck Co. No. RT269: 

1. The mud flap located underneath the operators cab is bent down, allowing mud 

to get on the 

drivers side rear view mirror and onto the window glass of the drivers side door. 

2. The truck frame is cracked across the bottom and back side of the frame. The 

crack is located on the rear of the truck above where the stabilizer bar (dogbane) is 

located. 

3. The right rear strut is leaking oil. 

4. The right side rear wheel is leaking oil on the inside area of the wheel. 

5. The left side rear wheel is leaking oil on the inside area of the wheel. 

6. Oil is leaking from the steering oil tank area which is located on the top deck 

above the engine compartment. The oil is leaking down onto the right side of the 

engine compartment area. 

 

44 FMSHRC Page 812
7. Excessive slack existed in the right side steering jack inside ball stud. The slack 

is visible when the truck is steered in either direction. 

8. Excessive slack existed in the left side steering jack inside ball stud. The slack is 

visible when the truck is steered in either direction. 

9. The front brake canister is over stroked. There is no warning alarm or warning 

light on inside the operators cab. 

10. The handrail located on the front bumper to the right side step is bent and 

missing a bolt. 

11. The hood is broke near the offside door to the operators cab. This hood is also 

used as a walkway (deck) to access the offside door to the operators cab. 

12. The fuel gauge located inside the operators cab was not functioning when tested. 

13. Paper towels are wrapped around the door striker to the drivers side door to the 

operators cab. 

14. Paper towels are installed around the top corner to the drivers side door to the 

operators cab. 

This truck was being operated in the Mill Seat Pit Area (Alma). Defects affecting 

safety shall be corrected before the equipment tis used. 

Standard 77.1606(c) was cited 46 times in two years at mine 4608930 (46 to the 

operator, 0 to a contractor). 

Petition at 36-37. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably result 

in “lost workdays or restricted duty,” affecting one person. Id. at 36. The violation was found 

not to be significant and substantial. Id. Negligence was found to be “moderate.” Id. 

The citation was continued on January 18, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampere3d by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

 

Id. at 38. The citation was continued again on January 24, 2022, with the same justification. Id. 

at 39. 

Citation No. 9563146 

 Citation No. 9563146 was issued on January 12, 2022, for a violation of 30 C.F.R. 

§ 77.1606(c), supra. 

 The citation stated: 

The following defects affecting safety existed on the 785D Caterpillar Haulage 

Truck Co. No. RT112: 

44 FMSHRC Page 813
1. An excessive oil leak existed on a hose located on the right front area of the truck. 

Oil was spraying out the hose. 

2. An excessive oil leak existed in the area behind the hydraulic tank area. A steady 

streams of oil was coming from this area. 

3. Oil was leaking from the right rear wheel. The inside area of the wheel was 

covered in oil and running down the sidewall of the tire. 

4. The mud flap is missing from underneath the drivers side of the operators cab. 

The mirror and window glass of the drivers side door was covered in mud. 

5. Oil was leaking from the filter area of the steering oil tank and running down 

onto the right side of the engine compartment. 

6. Left rear brake temperature error indicator is coming on inside the operator's cab. 

7. The warning light located next to the digital display is taped over. 

8. The action warning light located on the dash board is staying on at all times. 

9. Excessive slack existed on the right side steering jack inside ball stud. This slack 

was visible when the truck was steered in either direction. 

10. The right side fender is damaged where the front head lights are located causing 

the lights to not face forwards completely. 

This truck was being operated in the Mill Seat Pit Area (Alma). Defects affecting 

safety shall be corrected before the equipment is used. 

Standard 77.1606(c) was cited 48 times in two years at mine 4608930 (48 to the 

operator, 0 to a contractor). 

Petition at 44-45. 

For gravity, likelihood of injury was found to be “unlikely,” and injury could reasonably be 

expected to result in “lost workdays or restricted duty,” affecting one person. Id. at 44. The 

violation was not found to be significant and substantial. Id. Negligence was found to be 

“moderate.” Id. The citation was continued on January 18, 2022, with the justification that: 

Repairs are still being conduct at this time. Some of the repairs have been 

completed. Repair work has been hampered by parts availability and limited 

personnel to complete the repairs. The mine operator has removed the equipment 

from service until these repairs can be completed. 

Id. at 46. The citation was continued again on January 24, 2022, with the justification that: 

Repairs are still being conduct at this time. Repairs to items 1, 2, 4, 6, 7, 9 and 10 

have been completed. Repair work has been hampered by parts availability and 

limited personnel to complete the repairs. The mine operator has removed the 

equipment from service until these repairs can be completed. 

Id. at 47. 

44 FMSHRC Page 814
Distribution: 

David C. Trent, Conference & Litigation Representative, U.S. Department of Labor, MSHA 

4499 Appalachian Highway, Pineville, WV 24874 Trent.david@dol.gov 

K. Brad Oakley, Esq., Jackson Kelly PLLC, 100 W. Main Street, Suite 700 

Lexington, KY 40507 kboakley@jacksonkelly.com 

44 FMSHRC Page 815
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / Fax 202-434-9949

December 13, 2022 

 SECRETARY OF LABOR, UNITED 

STATES DEPARTMENT OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

 APPALACHIAN RESOURCE WEST 

VIRGINIA, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2022-0428 

A.C. No. 46-08930-551112 

Mine: Grapevine South Surface Mine 

 

ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW 

 This case is before the Court on a Petition for the Assessment of a Civil Penalty under 

Section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. 

§ 815(d), filed May 31, 2022, and the Secretary of Labor’s Motion to Approve Settlement, filed 

October 14, 2022. The Secretary has refused to provide the 104(b) order associated with a 

104(a) citation in this docket. The absence of the associated 104(b) order frustrates the Court’s 

ability to faithfully review the record and properly evaluate the proposed settlement. Further, the 

idea that the Secretary may unilaterally decide to secrete public records from the official file for 

a Petition for the Assessment of Civil Penalty he filed is inimical to the Congressional structure 

and purpose of the Mine Act. 

Accordingly, for the reasons which follow, the Court CERTIFIES under Commission 

Procedural Rule 76, 29 C.F.R. § 2700.76, that this interlocutory ruling involves a controlling 

question of law – whether the Secretary is obligated, upon a judge’s request, to supply a 104(b) 

order associated with a 104(a) citation in a docket before the judge on a Motion to Approve 

Settlement – for which, in the Court’s opinion, immediate review will materially advance the 

final disposition of the proceeding. 

Background 

This docket was originally part of a larger docket, Docket No. WEVA 2022-0301, which 

consisted of 33 citations. By virtue of an Order for docket reallocation, dated June 29, 2022, this 

new docket was created. Order for Docket Reallocation at 1. It consists of 16 citations moved 

from that original docket. Upon examination of the motion for approval of settlement and 

Exhibit A, the Court discovered that the record was incomplete for one of the citations, Citation 

No. 9563157, in that a section 104(b) order issued in connection with that citation was absent. 

The Citation involved a now-admitted violation of 30 C.F.R. § 77.1606(c). That standard directs 

that equipment defects affecting safety shall be corrected before the equipment is used. It is no 

44 FMSHRC Page 816
exaggeration to say that the citation was a doozy. Issued January 18, 2022, it reported the 

following 10 equipment defects affecting safety: 

The citation states: 

The following defects affecting safety existed on the 785C Caterpillar Haulage Truck 

Co. No. RT263: 

1. The left rear strut is bottoming out. 

2. The bed gusset located near the left side of the bed hinge pin area is cracked. 

3. The bed gusset located near the right side of the bed hinge pin area is cracked. 

4. Excessive slack existed from the right side top hoist cylinder. This is where the 

cylinder connects to the truck bed. 

5. An excessive antifreeze leak existed from the left side are of the engine. Steady 

streams of antifreeze could been seen running down from the left side. 

6. The left side front strut is bottoming out. 

7. The right front strut is leaking oil. 

8. A wire was disconnected front he right rear brake canister over stroke switch. 

9. The drivers side window would not roll up when tested. 

10. Drivers side door seal was damaged and paper towels were stuffed in areas to 

seal the door in the back corner. Also the door striker is taped up to keep the door 

closed completely. 

This truck was being operated in the Grapevine North Pit Area. Defects affecting 

safety shall be correct before the equipment is used. 

Standard 77.1606(c) was cited 53 times in two years at mine 4608930 (53 to the 

operator, 0 to a contractor). 

Pet. for a Civil Penalty at 66-67. 

For gravity, likelihood of injury was found to be “unlikely,” but the injury could 

reasonably be expected to result in “lost workdays or restricted duty” affecting one person. Id. at 

66. The violation was not found to be significant and substantial. Understandably, the 

negligence was found to be “high.” Id. at 68. 

Nearly a week after issuance of the citation, on January 24, 2022, the inspector issued a 

“Subsequent Action,” in which he informed that the “[r]epair work has been hampered by 

limited personnel to complete the repairs. The mine operator has removed the equipment from 

service until these repairs can be completed.” Citation No. 9563157-01, Petition at 68. The 

inspector extended the date for correcting the multiple defects until January 28, 2022. 

After that, the file, in a manner of speaking, went dark. Exhibit A, however, gives away 

that there was subsequent action in that a section 104(b) order was issued. 

The Secretary moved to keep the citation as issued, with no reduction in penalty. Mot. to 

Approve Settlement at 3. The penalty was assessed at $4,624.00. 

44 FMSHRC Page 817
In light of the missing 104(b) document(s), on November 9, 2022, the Court e-mailed the 

parties, requesting the missing information pertaining to Citation No. 9563157. Though the 

subject of a related Order certifying for interlocutory review arising out of the parent document, 

WEVA 2022-0301, also issued today, it is worth noting that there are seven (7) missing (b) 

orders from that document. To be clear, as originally constructed, for the 33 citations initially 

constituting WEVA 2022-0301, there were eight (8) instances in total where the (b) orders are 

absent. This Order speaks solely to the missing document(s) for Citation No. 9563157, which is 

part of WEVA 2022-0428. 

On Tuesday, November 15th, the Secretary’s non-attorney representative, conference and 

litigation representative David Trent, responded, speaking to the missing documents from both

dockets: 

For the violations listed [by] Judge Moran request[ing] the terminations, no penalty 

is being compromised except for Citation No. 9563141. Therefore, the Secretary will 

not provide the terminations for these violations. For Citation No. 9563141 there is 

no termination to provide for this violation.1 

E-mail from CLR Trent to the Court, November 15, 2022. 

On the same day as Mr. Trent’s response, Counsel for the Respondent, Attorney K. Brad 

Oakley, taking a cooperative approach, emailed the Court, responding that he could only locate 

a termination sheet for Citation No. 9563139, which termination sheet he attached to his email. 

He added that the violation was terminated upon repairs being made to lights on a dozer and that 

there was no (b) order associated with it. E-mail from Attorney Oakley to the Court, November 

15, 2022. 

 However, that citation is not part of this docket, Docket No. WEVA 2022-0428. Rather, 

it is part of Docket No. WEVA 2022-0301 which is the subject of the Court’s separate 

certification for interlocutory review, also being issued today. 

Attorney Oakley also informed in the same email that he had not been able to locate the 

termination sheets in the package of citations that his client provided to him, nor in the petition 

filed by Mr. Trent and that he believed that all of the remaining citations have 104(b) orders 

associated with them. For that reason he opined that it was possible that MSHA did not issue 

1 Mr. Trent was referring to a citation found in the original docket and not reallocated to 

this docket, WEVA 2022-0428. No explanation was provided for the lack of any termination 

paper. It will be mentioned in the Court’s companion certification for interlocutory review 

regarding Docket No. WEVA 2022-0301. The settlement for this citation represents another 

incongruity with the Secretary’s position, as he stands by the inspector’s evaluation in all 

aspects, yet accedes to a penalty reduction in the face of five (5) independent defects on a 

haulage truck. The justification presented by the mine operator is that there were other lights 

working on the truck. All lights, however, are not the same. Here, among the defective lights, 

brake lights weren’t working and, an independent concern unrelated to lights, the truck’s horn 

was also not working. 

44 FMSHRC Page 818
terminations for the underlying citations. Id. To the Court, that makes sense as the (b) orders 

would supersede the (a) citations. 

On November 22, 2022, the Court e-mailed the parties again, advising, in relevant part, 

that for Docket No. WEVA 2022-0428, the documents related to Citation No. 9563157 

continued to be missing the section 104(b) order. Subsequently, on November 28, 2022, the 

Court updated the status of information missing from that docket, advising that a new deficiency 

had been discovered, namely that Citation No. 9563158 was missing entirely from the Petition. 

Accordingly, the Court advised that “[i]n addition to supplying the court with copies of the 

missing 104(b) orders, as previously requested, the Court also requests a copy of Citation No. 

9563158.” E-mail by the Court to the Parties (November 28, 2022). Thereafter, also on 

November 28, 2022, the CLR responded via e-mail, providing the missing citation, while 

reiterating that the Secretary would not provide the missing termination sheets. E-mail from 

CLR Trent to the Court (November 28, 2022). 

Analysis 

As explained below, the Court believes that this matter pertains to a bedrock principle of 

the Mine Act and the Commission’s role in protecting the safety and health of miners. Further, in 

no way does it conflict with the Commission’s interpretation of its review responsibilities under 

its decisions in The American Coal Co., 40 FMSHRC 983 (Aug. 2018) (“AmCoal”) and 

Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018). 

Simply put, the question is whether the Secretary of Labor has the authority to deprive 

the Commission, miners and the public from seeing section 104(b) orders issued in connection 

with citations. The Secretary’s legal position is that if a citation is paid in full and without any 

modifications, it may withhold such orders from the Commission’s eyes and everyone else. 

To the Court at least, such a position is inimical to the unique statutory provision created 

by Congress under section 110(k) of the Mine Act. As the Court views the Secretary’s posture, it 

may be compared to a police officer telling a curious onlooker at the scene of a violation to 

‘move along, nothing to see here.’ The problem with such an imperious attitude is that it is the 

Commission, acting through its ‘front line oversight’ by the Court of the settlement process, that 

makes it far more than an onlooker. Rather, under Congressional mandate, once a petition for the 

assessment of a civil penalty has been filed, it is not the Secretary but the Commission which 

occupies the role as the overseer of the settlement process. 

One would think that the Secretary, who has the important initial role in protecting the 

safety and health of miners, would be on the same page as this Court on the issue of disclosure of 

the record of citations and any orders which may ensue from them. However, regrettably and 

inexplicably, that is not the case. 

 

As this Court remarked in Perry County Resources, 44 FMSHRC 501 (June 2022), a 

matter which also involved the Secretary, again acting through a non-attorney representative, 

refusing to provide a section 104(b) order issued following a section 104(a) citation. In that case 

the Court expressed that it did not believe: 

44 FMSHRC Page 819
that the fact a violation is paid in full, with no modifications made to the issuing 

inspector’s evaluation, is the end of the matter. The principle behind this view is very 

basic, in carrying out its review responsibilities under 30 U.S.C. §820(k), the Court is 

obligated to be fully informed about the circumstances surrounding the issuance of a 

citation or an order [for a citation which] is part of this docket . . . the documentary 

record concerning this admitted violation is incomplete. This is because a section 

104(b) order was issued by the inspector in connection with that Citation . . . The 

Secretary may not decide to selectively secrete such information from the Court, the 

public and especially from the miners it is charged to protect. From this Court’s 

perspective, such a stance is inimical to the spirit of the Mine Act. 

A Section 104(b) order is an important feature of the Mine Act. Section 

104(b) of the Mine Act states: 

If, upon any follow-up inspection of a coal or other mine, an authorized 

representative of the Secretary finds (1) that a violation described in a citation issued 

pursuant to subsection (a) has not been totally abated within the period of time as 

originally fixed therein ... and (2) that the period of time for abatement should not be 

further extended, he shall determine the extent of the area affected by the violation 

and shall promptly issue an order requiring the operator of such mine or his agent to 

immediately cause all persons, except those persons referred to in subsection (c), to 

be withdrawn from, and to be prohibited from entering, such area until an authorized 

representative of the Secretary determines that such violation has been abated. 

30 U.S.C. § 814(b). 

As the Commission has noted, such orders have significance in their own 

right. It has observed that: 

First of all, section 105(a), by its terms, does not distinguish between the 

different types of orders that can be issued under section 104. Absent any language in 

the statute suggesting that the Secretary cannot propose a penalty in connection with 

a section 104(b) order, we will not interpret the phrase “order under section 104” in 

section 105(a) to exclude section 104(b) orders. 

Secondly, contrary to her claim, the Secretary may indeed assess a separate 

penalty for the failure to abate a violation. Section 105(b)(1)(A) of the Mine Act 

provides in pertinent part: 

If the Secretary has reason to believe that an operator has failed to correct a 

violation for which a citation has been issued within the period permitted for its 

correction, the Secretary shall notify the operator by certified mail of such failure and 

of the penalty proposed to be assessed under section 110(b) by reason of such failure 

and that the operator has 30 days within which to notify the Secretary that he wishes 

to contest the Secretary’s notification of the proposed assessment of penalty.... 30 

44 FMSHRC Page 820
U.S.C. § 815(b)(1)(A). Consequently, section 110(b) of the Act and MSHA’s 

regulations authorize the Secretary to assess steep daily penalties. See 30 U.S.C. § 

820(b); 30 C.F.R. § 100.5(c) (“Any operator who fails to correct a violation for 

which a citation has been issued under section 104(a) of the Mine Act within the 

period permitted for its correction may be assessed a civil penalty of not more than 

$6,500 for each day during which such failure or violation continues.”). 

Moreover, the fact that a withdrawal order has been issued increases the 

likelihood that such a penalty will be assessed. The legislative history of the Mine 

Act states that under section 105(b)(1)(A), like under section 105(a): 

[T]he Secretary is to similarly notify operators and miners’ 

representatives when he believes that an operator has failed to abate a violation 

within the specified abatement period. In most cases, a failure to abate closure order 

will have been issued pursuant to Section [104(b)]. The notice of proposed penalty

to operators in such cases shall state that a [104(b)] order has been issued and the 

penalty provided by Section [110(b)] of the Act shall also be proposed. This penalty

shall be proposed in addition to the penalty for the underlying violation required by 

Section [110(a)] of the Act. S. Rep. No. 95-181, at 34-35 (1977), reprinted in Senate 

Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal 

Mine Safety and Health Act of 1977, at 622-23 (1978). 

In addition, even if no separate penalty for failure to abate a violation is 

assessed, the failure to abate allegation upon which a section 104(b) withdrawal 

order rests, if established, increases the amount of the penalty that is ultimately 

assessed for the underlying violation. As Judge Zielinski recognized in his first 

decision, ‘the demonstrated good faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation is one of the factors that the 

Commission must consider in fixing the amount of a civil penalty.’ 28 FMSHRC at 

413 (quoting section 110(i) of the Mine Act, 30 U.S.C. § 820(i)). Thus, the sanction 

for a failure to abate is not only a withdrawal order, but, likely, a higher penalty 

when the Secretary eventually assesses a penalty for the original violative condition 

that allegedly was not abated in a timely fashion. See NAACO Mining Co., 9 

FMSHRC 1541, 1545 (Sept. 1987) (‘Under sections 104(b) and 110(b), if the 

operator does not correct the violation within the prescribed period, the more severe 

sanction of a withdrawal order is required, and a greater civil penalty is assessed.’). 

UMWA v. Maple Creek Mining, 29 FMSHRC 583, 592-594 (July 2007) (emphases 

added). 

Per the above decision, the Commission recognized the independent 

importance of 104(b) orders may be the subject of a penalty in their own right, 

citing section 104(b)(1)(A). The legislative history, as also cited by the Commission, 

makes this plain: “[t]he notice of proposed penalty to operators in such cases shall 

state that a [104(b)] order has been issued and the penalty provided by Section 

[110(b)] of the Act shall also be proposed. This penalty shall be proposed in addition 

44 FMSHRC Page 821
to the penalty for the underlying violation required by Section [110(a)] of the Act.” 

Id. at 593. (emphases added). 

Though no additional reasons are needed to require disclosure of the (b) order in this 

matter, the record does not reveal if the Secretary met his obligation to notify the 

miners’ representatives when, as here, he believed that an operator has failed to abate 

a violation within the specified abatement period. 

This Court is well-aware that its review of settlements is presently cabined within the 

terms of the Commission’s decisions in The American Coal Co., 40 FMSHRC 983 

(Aug. 2018) (“AmCoal”) and Rockwell Mining, LLC, 40 FMSHRC 994 (Aug. 2018) 

and that under those decisions the Court’s review role has become statistically 

perfunctory. However, there is still an obligation and duty to examine each citation 

and order within a submitted docket, even if the citation is not contested and paid as 

originally assessed. The responsibility to ensure that there is a complete record is 

separate and apart from, and not mutually exclusive to, the review of violations that 

have settled, whether such settlements are for the full amount proposed or some 

lesser amount. 

 

Frankly, the Court is at a loss to understand why the Secretary of Labor is not in full 

support of providing the full record of the enforcement actions taken in connection 

with an admitted 104(a) citation. In this matter that involves hiding the inspector’s 

issuance of a 104(b) order in connection with that citation. The apparent decision to 

secrete such information from the Court, the public and especially from the miners it 

is charged to protect is perplexing and at odds with the admonition from several 

federal courts invoking Justice Louis D. Brandeis’ remark that “Sunlight is said to be 

the best of disinfectants.” See, for example, Argus v. U.S. Dept Agriculture, 740 F.3d 

1172 (8th Cir. 2014), wherein Argus invoked the federal law meant to bring 

disclosure sunlight to the government bureaucracy, in its request to see spending 

information from the U.S. Department of Agriculture under the Freedom of 

Information Act, 5 U.S.C. § 552. To the same effect as the Secretary has done here, 

the Department of Agriculture, with little explanation, refused disclosure. Reversing 

the lower court’s determination that the information sought was exempt from 

disclosure, the Eighth Circuit took note of Justice Louis D. Brandeis’ remark about 

the disinfecting benefit of sunlight. Id. at 1173, citing Other People’s Money 92 

(1914). 

Id. at 503-506 (footnotes omitted). 

The Secretary, seeking what appears to be more territorial gain in the Commission’s 

presently limited review role for settlement motions, now is attempting to further limit that role 

by foreclosing the Commission’s ability to even see relevant documents associated with 

citations, in this case (b) orders. The public purpose behind the Secretary’s decision to prevent 

the Commission, miners, and the public from seeing these relevant documents is unfathomable. 

44 FMSHRC Page 822
Given the Secretary’s obligations, as stated above, when 104(b) orders have been issued 

his refusal to disclose them creates the appearance of something being askew. It is noteworthy 

that the Secretary is not asserting that he does not have the documents. Instead, the Secretary is 

contending that the Commission may not view them. To the Court, this is a position at odds 

with the Commission’s unique gatekeeper role per section 110(k) of the Mine Act. 

For the reasons stated above, the Court certifies upon its own motion that this 

interlocutory ruling involves a controlling question of law for which in the Court’s opinion, 

immediate review will materially advance the final disposition of the proceeding, 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

David C. Trent, Conference & Litigation Representative, U.S. Department of Labor, MSHA 

4499 Appalachian Highway, Pineville, WV 24874 Trent.david@dol.gov 

K. Brad Oakley, Esq., Jackson Kelly PLLC, 100 W. Main Street, Suite 700

Lexington, KY 40507 kboakley@jacksonkelly.com

44 FMSHRC Page 823