i 

March and April 2019 

TABLE OF CONTENTS

COMMISSION ORDERS 

04-24-19 JONES BROTHERS, INC. SE 2016-218 Page 151 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03-18-19 GEORGE SCOLES, v. HARRISON 

COUNTY COAL CO. 

WEVA 2017-0638-D Page 153

03-19-19 GEORGE SCOLES, v. HARRISON 

COUNTY COAL CO. 

WEVA 2017-0638-D Page 177

04-16-19 PENNSY SUPPLY, INC. YORK 2018-0004 Page 201

ADMINISTRATIVE LAW JUDGE ORDERS 

03-26-19 KNIGHT HAWK COAL, LLC LAKE 2019-0087-R Page 217

03-27-19 JAMES C. SCOTT, employed by 

MILL BRANCH COAL CORP., and 

DONNIE B. THOMAS, employed by 

MILL BRANCH COAL CORP. 

VA 2018-0103 Page 227

04-09-19 MICHAEL DEUSO v. SHELBURNE 

LIMESTONE CORP. 

YORK 2019-0015-

DM 

Page 232
ii 

Review was granted in the following case during the months of March and April 2019: 

Secretary of Labor v. Northshore Mining Company, et al., Docket Nos. LAKE 2017-0224, et al. 

(Judge Miller, February 13, 2019) 

No case review was denied during the months of March and April 2019. 
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

April 24, 2019 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket Nos. SE 2016-218 

SE 2016-219 

v. SE 2016-246 

 JONES BROTHERS, INC. 

BEFORE: Jordan, Young, Althen, and Traynor, Commissioners1

ORDER

BY THE COMMISSION: 

These consolidated contest and civil penalty proceedings arise under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). After nine citations 

and orders were issued to Jones Brothers, Inc. by the Department of Labor’s Mine Safety and 

Health Administration, a Judge found that the operations of the company were subject to the 

Mine Act. 39 FMSHRC 399 (Feb. 2017) (ALJ). The parties then moved for a final order so that 

an appeal on the jurisdiction issue could be pursued, whereupon the Judge granted the motion, 

affirmed the citations and orders, and assessed penalties. 39 FMSHRC 570 (Mar. 2017) (ALJ). 

The Commission did not grant Jones Brothers’ petition for discretionary review, but 

subsequently the company successfully appealed to the United States Court of Appeals for the 

Sixth Circuit. That court vacated the decisions below, ruling that at the time of the Judge’s 

decisions, she was an inferior officer of the United States who had not been appointed in 

accordance with Article II, Section 2, Clause 2 of the Constitution.2 Jones Bros., Inc. v. Sec’y of 

Labor, 898 F.3d 669, 679 (6th Cir. 2018) (following Lucia v. SEC, ___ U.S. ____, 138 S. Ct. 

1

 Chairman Marco M. Rajkovich, Jr. is recused in this matter. 

2

 Known as “the Appointments Clause,” it reads: 

[the President] shall nominate, and by and with the Advice and 

Consent of the Senate, shall appoint Ambassadors, other public 

Ministers and Consuls, Judges of the supreme Court, and all other 

Officers of the United States, whose Appointments are not herein 

otherwise provided for, and which shall be established by Law: but 

the Congress may by Law vest the Appointment of such inferior 

Officers, as they think proper, in the President alone, in the Courts 

of Law, or in the Heads of Departments.

41 FMSHRC Page 151
2044, 2050 (2018). While recognizing that subsequent to her decisions the Commission had 

cured the defect in the Judge’s appointment, the court nonetheless held: 

Jones Brothers is entitled to a new hearing before a constitutionally 

appointed administrative law judge. And even if [the] Judge [here] 

has since received a constitutional appointment, that hearing must 

be before a new official. [The] Judge [here] “issued an initial

decision on the merits [and] cannot be expected to consider the

matter as though [she] had not adjudicated it before.” 

Id. (quoting Lucia, 138 S. Ct. at 2055). Accordingly we remand this matter to the Acting Chief 

Administrative Law Judge for assignment to a different Judge to conduct further proceedings 

consistent with the court’s instructions. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

41 FMSHRC Page 152
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

March 18, 2019 

DECISION 

This case is before me upon a discrimination proceeding filed by George Scoles, through 

counsel, against the Harrison County Coal Company (“HCC” or “Respondent”), pursuant to 

section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3).1

Scoles contends that Harrison County violated the Mine Act when it discharged him for 

engaging in protected activity. Scoles also argues that his discharge interfered with the ability of 

himself and other HCC miners to exercise their protected rights. HCC denies these claims and 

maintains that Scoles’ discharge was solely motivated by his repeated failure to properly clock in 

and out in compliance with the mine’s Hand Scanner Policy. 

A hearing was held on October 16-17, 2018 in Morgantown, West Virginia. Based on my full 

consideration of the testimony and exhibits presented at hearing, the stipulations of the parties, 

my observation of the demeanors of the witnesses, and the parties’ post-hearing briefs, I find that 

HCC did not violate the Mine Act when it discharged Scoles. 

I. STIPULATIONS

At hearing, the parties entered the following stipulations: 

1. During Scoles’ employment at Harrison County Mine, he was a miner within the

meaning of section 3(g) of the Mine Act, 30 U.S.C. § 802(g).

2. The Harrison County Mine is a mine as that term is defined in section 3(d) of the Mine

Act, 30 U.S.C. § 802(d).

1

 In this decision, the joint stipulations, transcript, the Complainant’s exhibits, and 

Respondent’s exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. C–#,” and “Ex. R–#,” 

respectively. 

GEORGE SCOLES, 

 Complainant, 

 v. 

HARRISON COUNTY COAL CO., 

 Respondent. 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 2017-0638-D 

Mine: Harrison County Mine 

Mine ID: 46-01318 

41 FMSHRC Page 153
3. The Harrison County Coal Company is an operator as that term is defined in section 3(d)

of the Mine Act, 30 U.S.C. § 802(d).

4. Products of the Harrison County Mine entered commerce, or the operator or products of

the Harrison County Mine affected commerce within the meaning and the scope of

section 4 of the Mine Act, 30 U.S.C. § 803.

5. From January 1, 2016, through the present, the United Mine Workers of America Local

Union 1501 and the UMWA International Union have represented the hourly production

and maintenance employees at the Harrison County Mine. Tr. 14-15.

II. FINDINGS OF FACT

A. Background

The Harrison County Mine is an underground coal mine located in Mannington, West

Virginia. Harrison County Coal Company (HCC) - a subsidiary of Murray American Energy Inc. 

- owns and operates the Mine. The Mine employs approximately 315 hourly employees and has

an approximate annual payroll of 25 million dollars. Tr. 335.

George Scoles worked at the Harrison County Mine from January 2007 until May 2017 as a 

Longwall Outby Utility Man. Tr. 28. He supplied the longwall face and performed a variety of 

tasks to facilitate advancement of the longwall at the mine. Tr. 28. He also served as a miner’s 

representative and as a walkaround with MSHA inspectors up to two to three times a week until 

his discharge. Tr. 85. Scoles is a member of the United Mine Workers of America (“UMWA”) 

Local Union 1501 at the Harrison County Mine. Tr. 86. 

Scoles has a mine-wide reputation as a safety advocate. Tr. 235-36, 256-58, 275, 277-78, 

303-05. Aside from his walkaround duties, Scoles made numerous safety complaints to mine

management. HCC was not always receptive to these complaints. Miner Christopher Yanero2

described episodes where Scoles reported safety issues and management did not cooperate or

assigned him to perform less desirable tasks while other miners were told to watch. Tr. 256-58.

Miner David Hollis3

 testified that he often heard Scoles make safety complaints or

recommendations over the radio that went unacknowledged by management. Tr. 305. Hollis

noted that management responded when he personally acknowledged Scoles’ comments over the

radio. Tr. 308.

2

 Christopher Yanero is a Plant Prep Helper at HCC. Tr. 249. He has worked at Harrison 

County Mine for 48 years. Tr. 250. He formerly served as mine committeeman and President of 

the Local Union for multiple terms. Tr. 259-60. 

3

 David Hollis is the day shift dispatcher for HCC. Tr. 292-93. He has worked at the 

Harrison County Mine for 18 years. Tr. 292. His duties include monitoring all atmospheric 

elements at the mine and dispatching miners to different areas of the mine via radio. Tr. 292-93. 

He estimated that he hears about 80-85% of the radio communications that take place at the 

mine. Tr. 293.

41 FMSHRC Page 154
These types of incidents, among others, prompted Scoles to file five section 105(c) 

complaints against HCC from 2014 to 2017. Scoles settled two of these complaints with the 

Mine. MSHA issued negative findings on another two and Scoles opted not to pursue them 

further. One of Scoles’ 2015 complaints proceeded to hearing before Commission 

Administrative Law Judge Andrews. See Sec’y on behalf of Scoles v. Harrison County Coal Co., 

40 FMSHRC 1393 (Sept. 2018) (ALJ). In that case, Judge Andrews found that HCC violated the 

Act when it discharged Scoles for subordination following an altercation with his supervisor. Id. 

at 1420-21. Scoles was reinstated and awarded backpay. Id. at 1421-23. 

In May of 2017, Scoles ran for safety and mine committeeman positions within the local 

Union. Tr. 87. The safety committeeman is charged with serving as a walkaround or assigning 

other miners to do so, performing safety inspections, and discussing miners’ safety concerns with 

management. Tr. 88. The mine committeeman is authorized to represent miners in grievance 

proceedings and address any collective bargaining issues or mine-management conflicts that may 

arise. Tr. 88. Scoles easily won both races, but he was discharged pursuant to HCC’s Hand 

Scanner Policy before he could assume office. Tr. 87-88. 

B. The Hand Scanner Policy

HCC implemented the Hand Scanner Policy (“Policy”) in January of 2016. The Policy serves

as the primary time and payroll tracking mechanism for all hourly employees. Tr. 336-37. The 

Policy requires the mine’s hourly employees to track their work hours by entering their employee 

number and scanning their fingerprint at designated kiosks at the beginning and end of each shift. 

Ex. C–1; Tr. 337-38. Miners can use either hand to scan, and the process takes about five 

seconds. Tr. 337-38. If the scan is rejected or if a miner has issues with a kiosk, they are 

instructed to notify management of the issue. Ex. C–1. In general, miners that experience 

scanning issues are instructed to return to the kiosk and try again or to try a different kiosk. Tr. 

240, 272. Even miners experiencing issues are usually able to scan in after a number of attempts. 

Tr. 240, 272. Scanner issues appear to be infrequent and individualized. There is no record of a 

large-scale scanner malfunction affecting entire shifts or crews. Tr. 247, 400-01. 

The Hand Scanner Policy outlines a four-step progressive discipline scheme to encourage 

miners to consistently scan in and out. Ex. C–1. Each time a miner fails to scan in or out, they are 

disciplined in accordance with the number of scans they previously missed. A miner will receive 

a verbal warning for their first missed scan, a written warning for their second, a two day 

suspension for their third, and a suspension with intent to discharge for their fourth. Id. The 

Policy allows miners to exonerate themselves; a miner moves back one step on the scale if they 

scan in and out without failure for 180 days. Id. Thus, a miner at Step 3 of the discipline program 

will move back to Step 2 if they scan in and out for 180 consecutive days, back to Step 1 after 

another 180 consecutive days, and so on. The Policy does not outline any factors aside from 

failures to scan that may result in discipline under the scheme. Ex. C–1. 

41 FMSHRC Page 155
Christopher Fazio4

 administers the Policy’s progressive discipline program at Harrison 

County Mine. Tr. 334-35. He maintains a spreadsheet to track progressive discipline records for 

all of the miners. Ex. R–E; Tr. 340. When a miner misses a scan, he is notified by payroll via the 

timesheets and will check his spreadsheet to administer the proper discipline.5 Tr. 340. The 

payroll records are sufficient to sustain a violation, and miners rarely dispute the missed scans. 

Tr. 415. When they do, Fazio pulls video footage collected by motion-activated cameras located 

near all of the kiosks to prove the missed scan. Tr. 345-47. The cameras record and store up to 

ten days’ worth of activity. Tr. 345-46. If the miner does not dispute the scan, Fazio does not 

save the video footage. Tr. 347. 

Fazio administers the first two steps of the Policy himself. He will hold a private meeting 

with miners to inform them of the missed scan and at Step 2 will issue the appropriate paperwork 

to the miner. Tr. 342. If a miner reaches Step 3, Harrison County Mine General Manager Scott 

Martin will also be present at the meeting. Tr. 342. Miners may file a grievance to dispute 

alleged missed scans under the policy; this is often where the video evidence will be shown to 

the miners. Tr. 193-94, 346. At Step 2, a local mine committee member and local management 

attend to try to resolve the dispute. Tr. 209. At Step 3, a district union representative will meet 

with a member of corporate management or Human Resources as well as the mine 

superintendent. Tr. 211. 

C. Scoles’ Discipline under the Policy

Scoles was disciplined and eventually discharged following five alleged violations of HCC’s

Hand Scanner Policy between May 2016 and May 2016. Scoles maintained at hearing that he 

never failed to scan in or out. Tr. 31, 60, 63, 66, 92, 94-95, 109, 116. 

Scoles was issued a verbal warning on May 31, 2016 for a missed scan on May 19.6

 Ex. R–B, 

p. 2. Scoles’ time sheet and time card for that date corroborate that Scoles failed to scan out. Ex.

R–B, pp. 3-4. Scoles denied missing the scan, though later claimed that he was unable to scan

out due to a scanner malfunction. Tr. 31-32. Miner Perry Heflin7 testified that Scoles discussed

4

 Christopher Fazio is the Human Resources Supervisor at the Harrison County Mine. Tr. 

333-34. He has worked for HCC since June 2010. Tr. 333. His duties include conducting hiring

and staffing procedures, managing collective bargaining, compensation and benefits, disability,

and discipline. Tr. 333-34.

5

 Fazio only administers the disciplinary aspect of the Policy. He does not edit the payroll 

sheets. When a miner misses a scan, front line foremen and supervisors are responsible for 

adjusting miners’ work hours to properly reflect the time they work. Those edits are done by 

hand, and according to Fazio, nobody can edit the timesheets through the computer system. Tr. 

407-08.

6

 The verbal warning record states that the HCC was unable to issue the verbal warning 

sooner because the mine was idle from May 20 to May 30. Ex. R–B, p. 2. 

7

 Perry Heflin is an electrical mechanic at Harrison County Mine. Tr. 230. He has worked 

for HCC for 12 years. Tr. 230. 

41 FMSHRC Page 156
the issue with him and that Scoles notified shift foreman Jim Coles of the matter. Tr. 238. Coles 

allegedly told Scoles and Heflin that he would take care of it. Tr. 32, 239. Scoles alleges that 

Fazio later spoke to him about the missed scan and told him that he would not be disciplined. Tr. 

32-33, 349. Scoles therefore believed that he was not given a verbal warning for this missed

scan.8 Even though he believed he would not be disciplined, Scoles claimed that he asked to see

video of the missed scan but was refused. Tr. 32-33.

Fazio denied Scoles’ account and did not recall speaking with Coles about an alleged scanner 

malfunction. Tr. 349. He testified that he issued Scoles a verbal warning in accordance with Step 

1 of the Policy and did not save the video footage because Scoles admitted to missing the scan. 

Tr. 348, 350-51. The record of the verbal warning states that “employee admitted that he did not 

scan out.” Ex. R–B, p. 2; Tr. 354. 

Scoles received a written warning for his second alleged missed scan on June 9, 2016. Ex. R–

B, p. 5. Scoles’ time sheet and time card show a missed out-punch on that date. Ex. R–B, p. 6-7. 

Fazio issued the warning to Scoles and to the Mine Committee the following day. Tr. 355-56. 

Scoles again denied missing the scan and did not sign the written warning. Tr. 47, 53, 113, 417. 

He claimed that HCC denied his request to see video of the missed scan. Tr. 54. Fazio disputed 

his account and claimed that Scoles once again admitted to missing the scan and accepted his 

discipline. Tr. 417. He did not think much of Scoles’ refusal to sign the written warning because 

miners often decline to sign management documents. Tr. 417. 

Scoles was suspended for two days for an alleged missed scan on July 6, 2016. Ex. R–B, p. 8. 

His time sheet and time card corroborate the missed scan. Ex. R–B, pp. 9-10. Scoles denied 

missing the scan. Tr. 61, 359, 413. He again requested video evidence of the scan but was 

denied. Tr. 61. However, it is undisputed that Scoles’ representative at his grievance hearing did 

see video footage of this missed scan. Tr. 198-99. 

On September 16, 2016, Scoles filed a grievance disputing the first two missed scans. Scoles 

was at Step 3 at the time he filed the grievance. The parties met on January 6, 2017. UMWA 

International Region 1 Representative Michael Phillippi9

 appeared at the grievance meeting on 

behalf of Scoles. Phillippi testified that he asked to see video of the alleged missed scans, but 

that HCC management claimed not to have them. For the first time in Phillippi’s experience 

handling grievances, HCC declined to reverse its decision to discipline a miner under the policy. 

Tr. 193-95. He noted that management would usually reverse its decision when it did not have 

video evidence of the missed scan. Tr. 195. Fazio testified that he did not have video footage 

because Scoles admitted to missing the scans and emphasized that video proof is not required to 

substantiate a missed scan. Tr. 346, 357. HCC declined to reverse the decision and noted on the 

8

 Miners do not receive a written record for a verbal warning, but management does 

produce a form for its own records. Tr. 354. 

9

 Michael Phillippi is an International Representative for Region 1 of the United Mine 

Workers Association. Tr. 187. He is involved in organizing and safety matters, but most of his 

work centers around grievance and arbitration, labor charges, and various policy matters. Tr. 

187-88.

41 FMSHRC Page 157
grievance agreement that as of September 16, 2016, Scoles was at Step 2 of the disciplinary 

scheme. Ex. C–6. 

Scoles also grieved his discipline for the July 6 scan. At the meeting, Fazio showed Phillippi 

video of Scoles entering and exiting the Foreman’s room without scanning. Tr. 198-99, 218, 359-

60, 413. Phillippi subsequently withdrew Scoles’ grievance. Tr. 199. However, he testified that 

he later considered his decision to withdraw Scoles’ grievance to be a mistake. Tr. 198-99. 

Although HCC showed him the video, he believed that there were other cameras that may have 

captured Scoles’ out-punch at a different kiosk. Tr. 199. Phillippi testified that based on his 

knowledge today he would not have withdrawn Scoles’ grievance. Tr. 199-200. Fazio testified 

that he showed Phillippi video from cameras located at each scanner. Tr. 360. 

 Scoles received a second two-day suspension on February 9, 2017 for missing a scan the 

previous day. Ex. R–B, p. 11. Scoles’ time sheet and time card show a missed out-punch for the 

date in question. Ex. R–B, pp. 12-13. Scoles was uncertain whether he missed this scan but again 

asked to see the video footage. Tr. 64-65, 364-65, 413-14. He was allegedly refused, although he 

admitted that he testified to the contrary during his arbitration hearing. Tr. 119-120. Scoles filed 

another grievance that was subsequently withdrawn upon viewing the video footage. Tr. 365-66. 

 Scoles was suspended with intent to discharge on May 10, 2017 for an alleged missed scan 

on May 8. Ex. R–B, p. 14. Scoles’ time sheet and time card show a missed in-punch. Ex. R–B, 

pp. 15-16. His time card also shows a handwritten time adjustment. Id. Scoles testified that he 

did not miss the scan, but later acknowledged that he was uncertain about whether he missed it. 

Tr. 66-67, 126. Scoles viewed the video footage of the missed scan at his “24-48 hour 

meeting.”10 Tr. 68-69, 366. However, Scoles claimed that the video froze—or “glitched”—

before it showed him entering the elevator. Tr. 69. 

 Scoles filed a grievance regarding his discharge and the matter was referred to arbitration. 

Exs. C–10, R–C. At the arbitration Scoles admitted that he missed all five of the scans and 

instead argued that discharge was a disproportionately severe punishment in relation to the 

conduct cited. Ex. R–D. On June 17, 2017, the Arbitrator did not find evidence of arbitrary or 

discriminatory enforcement of the Policy and upheld Scoles’ discharge. Id. Notably, the 

arbitrator found no material issues of fact; Scoles admitted at the arbitration hearing that he 

missed all five scans for which he was disciplined. Id. 

 On June 26, 2017, Scoles filed a section 105(c) complaint with MSHA alleging 

discrimination. Ex. C–17. MSHA issued a letter of negative finding on August 17, and Scoles 

filed his section 105(c)(3) complaint on September 25. Exs. R–L, R–M. 

10 Pursuant to the terms of the collective bargaining agreement with the Union, miners are 

entitled to a “24/48 hour meeting” with mine management to discuss their imminent discharge. 

Tr. 367-68. 

41 FMSHRC Page 158
III. DISPOSITION

Scoles alleges that HCC arbitrarily and discriminatorily enforced its Hand Scanner Policy 

against him to justify his discharge. Complainant’s Post-Hearing Brief (“Comp. Br.”) at 20. 

Scoles argues that, given his longstanding history of engaging in protected activity and of 

conflict with HCC management, he was subjected to strict discipline under the Policy where 

other miners were often granted leniency. Id. In addition, Scoles also contends that his discharge 

under the Policy constitutes illegal interference with the ability of himself and of miners to 

engage in protected activity at the Harrison County Mine. Id. at 36. 

 At the outset, HCC contends that Scoles’ section 105(c)(3) complaint was not timely filed 

and should be dismissed. Respondent’s Post-Hearing Brief (“Resp. Br.”) at 14, n. 10. 

Respondent also challenges whether this Court was Constitutionally appointed under the 

Appointments Clause and thus has the authority to hear this case. Id. at 21. With regards to the 

merits of the case, Respondent denies all charges of discrimination and interference. Id. at 14, 19. 

It contends that Scoles was fired solely based on his repeated failure to comply with HCC’s 

Hand Scanner Policy. Id. 

A. Timeliness of Scoles’ § 105(c)(3) Complaint

HCC contends that Scoles’ complaint should be dismissed as untimely because he failed to

file his complaint within 30 days of receiving MSHA’s non-merit letter. Resp. Br. at 14, n. 10. 

Scoles contends that he timely filed his complaint, and that even if he did not, the alleged nine 

day delay was excusable and was not sufficiently egregious or prejudicial to merit dismissal. 

Complainant’s Reply to Respondent’s Post-Hearing Brief (“Comp. Rep.”) at 18-19. 

 The Secretary is required to inform any miner that files a complaint of discrimination 

pursuant to section 105(c)(2) that he will or will not pursue that complaint before the 

Commission on the miner’s behalf. 30 U.S.C. § 815(c)(3). If the Secretary declines, a 

complainant has the right to file an action on their own behalf with the Commission “within 30 

days’ notice of the Secretary’s determination.” Id. That 30-day window commences when the 

miner receives actual notice of the Secretary’s determination. Boswell v. Nat’l Cement Co., 14 

FMSHRC 253, 257 (Feb. 1992). 

 The Commission has held that the filing periods for section 105(c) discrimination complaints 

are not jurisdictional in nature. Boswell, 14 FMSHRC at 257 (citing Hollis v. Consol. Coal Co., 6 

FMSHRC 21, 24 (Jan. 1984), aff’d mem, 750 F.2d 1093 (D.C. Cir. 1984). Judges determine 

whether a delay in filing should be excused on a case-by-case basis. Morgan v. Arch of Illinois, 

21 FMSHRC 1381, 1386 (Dec. 1999). The Commission has excused delays based on justifiable 

circumstances, including but not limited to “ignorance, mistake, inadvertence, and excusable 

neglect.” Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1921-22 (Nov. 1996) (citations 

omitted). Failure to meet the time limits in sections 105(c)(2) and (3) should not result in 

dismissal absent a showing of “material legal prejudice.” Sec’y of Labor on behalf of Nantz v. 

Nally & Hamilton Enters., 16 FMSHRC 2208, 2214-15 (Nov. 1994); see also Sec’y of Labor on 

behalf of Hale v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986) (finding prejudice to the 

operator to be the primary consideration in cases involving late filing). 

41 FMSHRC Page 159
I find that dismissal of this case for untimely filing is inappropriate. The record is unclear as 

to when Scoles received actual notice of the Secretary’s non-merit finding, but it likely did not 

amount to the entire 9-day period, if untimely at all. MSHA sent the letter to Scoles on August 

17, 2017 and Scoles filed his complaint on September 25, nine days past the prescribed 30-day 

limit. Exs. R–L, R–M; Tr. 143, 145-48. Scoles’ complaint acknowledges that he received the 

notice “on or around” that date, but he could not recall exactly when he received the letter. Tr. 

143, 148. It is unlikely that Scoles received the letter on the same day that it was dated and sent. 

Scoles did not check his mail on a regular daily or weekly basis because he was often traveling 

for work and because his mailbox was located over a thousand yards from his house. Tr. 145, 

161. Given these circumstances, I find it plausible that Scoles did not actually receive the

Secretary’s letter for up to or over nine days after it was sent, and that any delay was inadvertent

or excusable.

 Even assuming that Scoles’ filing was untimely, the delay was de minimis and did not 

prejudice Respondent’s ability to present its case. The 30-day filing window is not jurisdictional 

and does not merit dismissal absent a showing of prejudice. Boswell, 14 FMSHRC at 257 

(accepting filing that was 12 days late where operator showed no evidence of prejudice); Hale, 8 

FMSHRC at 908 (accepting filing that was 2 years late where operator showed no evidence of 

prejudice). Respondent offered no evidence that it was prejudiced by the delay. Accordingly, I 

reject HCC’s contention. 

B. Constitutional Appointments Clause Argument

HCC also argues that the Federal Mine Safety and Health Review Commission’s ALJ

appointment process is invalid pursuant to the Appointments Clause of the United States 

Constitution because the Commission improperly delegated its appointment authority to the 

Chief Administrative Law Judge. Resp. Br. at 21. Further, Respondent contends that the 

Commission’s April 3, 2018 Notice ratifying the appointment of its ALJs does not remedy the 

defect because the process by which the ALJs were presented to the Commission was too limited 

to constitute valid exercise of its appointment power. Id. at 22. 

 To the extent that I have the authority to do so, I reject Respondent’s arguments. The relevant 

case on this matter is the Court of Appeals for the 6th Circuit’s decision in Jones Brothers, Inc. 

v. Secretary of Labor, 898 F.3d 669 (6th Cir. 2018), which applied the Supreme Court’s decision

in Lucia v. Sec. & Ex. Comm., 138 S. Ct. 2044 (2018), to the Administrative Law Judges of the

Federal Mine Safety and Health Review Commission. In Jones Brothers, the Court held that

Commission ALJs were invalidly appointed inferior officers at the time that the ALJ heard the

case. Jones Bros., at 679. The Court acknowledged the Commission’s ratification notice, but

found that the notice did not remedy the Constitutional defect because it was issued after the

Judge heard the case on the merits. Id. at 677-79. The 6th Circuit vacated the decision and

remanded the case to the Commission for fresh proceedings before a different ALJ. Id. at 679.

 Unlike the circumstances in Jones Brothers, the instant case was heard on October 16-17, 

2018; over six months after the Commission Chairman ratified the appointments of all of its 

Administrative Law Judges. Federal Mine Safety and Health Review Commission, Commission 

Ratification Notice, http://www.fmshrc.gov/about/news/commission-ratification-notice (Apr. 3, 

41 FMSHRC Page 160
2018). The case at issue is therefore before a validly appointed ALJ. Nor do I find merit in 

HCC’s argument that the Ratification Notice did not cure the invalid appointment of the 

Commission Judges. Respondent’s argument finds no support in the 6th Circuit’s decision in 

Jones Brothers, the Supreme Court’s decision in Lucia, nor the language of the Appointments 

Clause. In fact, the Court’s decision in Jones Brothers suggests that the Commission validly 

“acted to cure [the] alleged constitutional defect by having every Commissioner ratify the 

appointment of every administrative law judge.” Jones Bros., at 677, 679. The Court also 

remanded the case for fresh proceedings before another ALJ, implying that the Ratification cured 

the defect. Id. at 679. I therefore accept the Commission’s ratification as valid and proceed to the 

merits. 

C. Discrimination

Section 105(c)(1) of the Mine Act provides:

No person shall discharge or in any manner discriminate against or cause to be 

discharged or cause discrimination against or otherwise interfere with the exercise 

of the statutory rights of any miner...because such miner...has filed or made a 

complaint under or related to this Act, including a complaint notifying the 

operator or the operator’s agent...of an alleged danger or safety or health 

violation in a coal or other mine, or because such miner...has instituted or caused 

to be instituted any proceeding under or related to this Act... 

30 U.S.C. § 815(c)(1). The complainant miner bears the initial burden to establish a prima facie

case of discrimination. To establish a prima facie case of discrimination under section 105(c)(1), 

the complainant must prove by a preponderance of the evidence: (1) that he engaged in protected 

activity, and (2) that the adverse action he complains of was at least partially motivated by that 

activity. Turner v. Nat’l cement Co. of Cal., 33 FMSHRC 1059, 1064 (May 2011); Sec’y of 

Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981); 

Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 

1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981). 

 If a miner establishes a prima facie case, the operator may rebut that case by showing “either 

that no protected activity occurred or that the adverse action was in no part motivated by the 

protected activity.” Turner, 33 FMSHRC at 1064. The operator may also defend affirmatively by 

proving that “it was also motivated by the miner’s unprotected activity and would have taken the 

adverse action for the unprotected activity alone.” Id. 

1. Prima Facie Case

 The Mine Act’s discrimination provisions provide miners with protections against adverse 

action for certain protected activities to encourage and enable miners to play an active role in the 

enforcement of the Act. A miner engages in protected activity if (1) they “ha[ve] filed or made a 

complaint under or related to this Act, including a complaint...of an alleged danger or safety or 

health violation[;]” (2) they “[are] the subject of medical evaluations and potential transfer under 

a standard published pursuant to section 101[;]” (3) they “ha[ve] instituted or caused to be 

41 FMSHRC Page 161
instituted any proceeding under or related to this Act or has testified or is about to testify in any 

such proceeding[;]” or (4) they “ha[ve] exercised on behalf of himself or others...any statutory 

right afforded by this Act.” 30 U.S.C. § 815(c)(1). 

It is undisputed that Scoles engaged in multiple forms of protected activity when he worked 

for HCC. First, Scoles made numerous safety complaints to mine management when he believed 

working conditions were unsafe. Tr. 235, 256-57, 275, 277-78, 303-05. Miner witnesses recalled 

specific instances where Scoles made complaints to management including but not limited to 

overheated beltline rollers, inadequate rock dust, excessive float dust, unset parking brakes, and 

malfunctioning scoops and door latches. Tr. 236, 256, 304. Second, Scoles served as a miner 

representative and walkaround during safety inspections two to three times each week in the 

eight months prior to his termination. Tr. 235, 256, 303-04. Third, Scoles filed five section 

105(c) complaints against HCC for alleged retaliation for his safety advocacy. One of those 

complaints proceeded before the Commission and was adjudicated in his favor. See Sec’y of 

Labor on behalf of Scoles v. Harrison County Coal Co., 40 FMSHRC 1393 (Sept. 2018) (ALJ). 

Finally, Scoles was running for two Local Union offices that assign walkarounds and raise 

miners’ safety concerns prior to his discharge. Tr. 87, 237, 260-61, 278, 306. I find that Scoles 

engaged in protected activity as defined by section 105(c)(1). 

 The Commission has defined “adverse action” as “an action of commission or omission by 

the operator subjecting the affected miner to discipline or a detriment in his employment 

relationship. Sec’y on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1930 (Aug. 

2012). The question of whether an employer’s action qualifies as “adverse” is thus decided on a 

case by case basis. Sec’y of Labor ex. rel. Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1848 

n. 2 (Aug. 1984).

There is no dispute that Scoles suffered an adverse action when HCC suspended him with the

intent to discharge him on May 10, 2017 and discharged him on June 17, 2017, following his 

arbitration decision. Exs. R–D, R–F; Tr. 371-72. “Discharge is perhaps the clearest form of 

adverse action prohibited by the plain language of the Mine Act.” Nevada Goldfields, Inc., 20 

FMSHRC 324, 329 (Apr. 1998) (citing section 105(c)(1) of the Mine Act); Hecla-Day Mines 

Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984)). The crux of this case thus falls to whether 

Scoles can demonstrate a causal nexus between his protected activity and HCC’s decision to 

terminate his employment. 

A miner need not provide direct evidence of an operator’s discriminatory motive, but may 

provide “circumstantial evidence...and reasonable inferences drawn therefrom. Turner, 33 

FMSHRC at 1066 (quoting Bradley v. Belva Coal Co., 4 FMSHRC 982, 992 (June 1982)). 

Factors that may support such an inference include the operator’s knowledge of the protected 

activity, evidence of hostility or animus toward the complainant, the temporal relationship 

between the complainant’s protected activity and the operator’s alleged adverse action, and the 

disparate treatment of the complaining miner. Sec’y 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). I address each factor in turn. 

41 FMSHRC Page 162
a. Knowledge of Protected Activity

 HCC does not dispute that it was aware that Scoles engaged in protected activity. That Scoles 

had a mine-wide reputation as a safety advocate and served as a walkaround appeared to be 

common knowledge among miners and management alike. Multiple miners testified to specific 

complaints that Scoles made directly to members of management as well as complaints that 

Scoles made over the mine radio communication system. HCC management was also personally 

involved with Scoles’ past section 105(c) complaints. HCC settled two section 105(c) cases with 

Scoles and went to hearing before a Commission Judge on a third case. 

I find that HCC had knowledge of Scoles’ protected activity. 

b. Animus or Hostility Toward the Protected Activity

 Scoles argues that HCC repeatedly demonstrated hostility and animus toward his protected 

activity. Comp. Br. at 30. He contends that ALJ Andrews previously found that HCC was hostile 

toward Scoles in a prior section 105(c) case and that mine management ignored Scoles’ safety 

complaints made over the dispatch. Id. at 31. More recently, Scoles contends that HCC 

demonstrated animus or hostility when HCC allegedly refused or delayed production of video 

evidence of his missed scans. Id. at 31-32. Finally, Scoles contends that HCC’s introduction at

hearing of Scoles’ disciplinary documents under the mine’s previous ownership constituted 

animus because they serve no basis for his discipline under the current Hand Scanner policy. 

Comp. Br. at 33. 

 Respondent argues that Scoles relies on protected activity and hostility that occurred long 

before his discharge and do not relate to his termination under the Hand Scanner Policy. Resp. 

Br. at 15. It also claims that Scoles or his representative viewed video footage of three scans and 

that Fazio was unable to show Scoles video evidence of the first two missed scans because 

Scoles admitted to missing them, prompting Fazio to delete the tapes. Fazio testified that miners 

were commonly unable to view the video promptly following notification of a violation of the 

Policy, and often were not shown the video until the grievance hearing. Tr. 413-15. 

 Given the history between Scoles and HCC there was ample opportunity for hostility or 

animus against Scoles’ protected activity. The Court sees no reason to discredit Scoles’ past 

interactions with HCC management that could and have been characterized as hostility in 

previous section 105(c) cases. These instances, however, were not shown at hearing to be 

connected to or to have played a role in Fazio and Martin’s administration of the Hand Scanner 

Policy against Scoles. 

 I do not find merit in Scoles’ assertion that HCC acted in a hostile manner when Fazio 

allegedly refused or intentionally delayed the production of video evidence of Scoles’ alleged 

missed scans. At the outset, contrary to Scoles’ testimony, Scoles or a representative on his 

behalf were able to see video footage of three of his five missed scans. Tr. 359-60, 364, 374, 412, 

416-17. He was thus not categorically denied the ability to see video footage of his missed scans.

41 FMSHRC Page 163
 Although it is undisputed that Scoles was unable to view video footage of his first two 

missed scans, the parties disagree as to whether Scoles actually requested to see video evidence 

or whether he admitted to missing the scans, prompting Fazio to delete the videos. This conflict 

is more relevant to Scoles’ allegation of disparate treatment under the Policy, and I will resolve 

the conflicts in detail in that analysis. Regardless of the testimonial dispute, the Policy does not 

require video footage of a missed scan to sustain a violation, nor does it require that management 

immediately show miners video footage of alleged missed scans. Ex. C–1. I accept Fazio’s 

testimony that the payroll records were sufficient to establish a violation of the Policy. Tr. 346-

47. Furthermore, even assuming that HCC refused to show Scoles video evidence of the first two

scans upon his request, I find no evidence that the refusal was motivated by Scoles’ protected

activity rather than what appears to be confusion over whether Scoles admitted to the scans.

Scoles cannot point to any comments or actions on the part of HCC that indicate hostility or

animus based upon his prior complaints, his role as a walkaround, or the upcoming election.

Scoles’ violations occurred over the course of nearly an entire year. Over that period, none of

HCC’s comments or actions fail to align with the written policy or suggests abuse of the

disciplinary scheme. Ex. C–1.

 I likewise reject Scoles’ contention that HCC demonstrated hostility when it unnecessarily 

delayed showing him or his miner representative the video footage of his other scans. Based on 

the record such a delay is not out of the ordinary in the context of enforcement of the Policy. 

Fazio testified that he generally waited until the grievance to show either the miner or his union 

representative video footage because miners so rarely disputed missed scans. Tr. 347,417, 423. 

He noted that these meetings could convene quite some time after the alleged missed scan 

occurred. Tr. 414. Indeed, Scoles’ filed his grievance challenging his first two missed scans 

nearly three months after he was disciplined for them, and the hearing was held between seven 

and eight months after that discipline. Ex. C–6. Thus, the mine’s failure to immediately show 

Scoles video footage in itself is not inconsistent with the general enforcement of the Policy or 

demonstrative of hostility toward the Complainant. 

 Finally, I reject Scoles’ contention that HCC’s introduction of Exhibit R–U, Scoles’ 

disciplinary history for violating an attendance policy when the Harrison County Mine was under 

previous ownership, constituted animus. Scoles points to Sec’y of Labor on behalf of Harrison v. 

Consolidation Coal. Co., 37 FMSHRC 1497, 1511 (July 2015) (ALJ), to argue that “introducing 

documents concerning the discipline of a miner when those documents should not rightfully have 

played any role in the disciplinary decision in question, is clear evidence of management 

hostility toward the miner and his exercise of Mine Act rights.” Comp. Br. at 33. 

 The above noted temporary reinstatement decision is easily distinguishable from the instant 

case. In Harrison, the ALJ found evidence of animus where Respondent introduced at arbitration 

an old safety slip as evidence of past disciplinary issues despite the terms of a previous 

settlement ordering Respondent to remove the slip from the miner’s file. Harrison, 37 FMSHRC 

at 1511. Here, there was no such express violation of a previous agreement between the two 

parties. Furthermore, HCC did not enter the exhibit as support for its decision to discharge 

Scoles but to raise credibility questions as to his testimony that he had never failed to scan in or 

out. Tr. 106-110. Introduction of Exhibit R–U was thus relevant to the instant case and did not 

constitute animus. 

41 FMSHRC Page 164
 Accordingly, Scoles has not demonstrated that HCC’s administration of the Policy 

constituted animus or hostility or that the alleged animus was in response to his protected activity 

at the mine. 

c. Temporal Relationship between Protected Activity and Adverse Action

Scoles argues that his discharge occurred close in time to his protected activity. Comp. Br. at 

34. He contends that he commonly took part in protected activity and was terminated on the day

of the Local Union elections, in which he was running for two positions. Respondent contends

that the timing supports its defense because Scoles was terminated immediately after HCC

became aware that Scoles reached Step 4 of the Hand Scanner Policy’s disciplinary scale.11

Resp. Br. at 15.

 As discussed above, Scoles consistently engaged in protected activity up until his discharge. 

For the purposes of this decision, I find that a coincidence in time between the protected activity 

and the adverse action exists. 

d. Disparate Treatment

 Scoles contends that he was the subject of disparate treatment under the Hand Scanner Policy 

because he was strictly disciplined for each alleged missed scan whereas other miners were 

granted leniency in similar situations. Comp. Br. at 24. Scoles also argues that he was singled out 

and disciplined for his first missed scan even though he informed his supervisor that the scanner 

malfunctioned. Id. at 28-29. 

 Respondent maintains that it disciplined all miners, including Scoles, strictly in accord with 

the Hand Scanner Policy. Resp. Br. at 17. It contends that neither Scoles nor his comparator 

witnesses could support their claims of disparate treatment under the Policy when scrutinized 

against HCC’s time, payroll, and enforcement records. Id. at 15. 

 As an initial matter, I find that Scoles did in fact fail to scan in or out on the five occasions 

for which he was disciplined. Although Scoles claimed that he did not miss any scans, his 

testimony was inconsistent at the hearing and contradicted his testimony at previous hearings. In 

his testimony before this Court, Scoles’ varied from outright denial that he missed any scans, to 

uncertainty regarding a couple of scans, to an eventual acknowledgment that he missed one scan 

because the kiosk malfunctioned. Tr. 31-32, 60, 63, 66, 92, 94-95, 109, 116. His assertion also

contradicted his arbitration and unemployment compensation testimony, in which he admitted to 

missing all five scans. Exs. R–D, R–F, R–J; Tr. 94, 134-39, 140-41. 

 Scoles’ account was similarly inconsistent regarding the video footage of his missed scans. 

He initially testified that he was only shown video for his final missed scan during his 24/48 hour 

meeting. Tr. 68-69. Although he testified that he could not remember seeing any video footage, 

he later admitted that either he or his representative was shown video evidence for three of the 

11 Respondent’s argument is fully addressed below in my analysis of its affirmative 

defense. 

41 FMSHRC Page 165
missed scans. Tr. 69, 119-20, 198-99, 366, 414. When crossed on these inconsistencies, Scoles 

was unable to produce a satisfactory explanation, and I therefore have grave doubts regarding 

Scoles’ recollection of the facts surrounding the missed scans. See Tr. 134-144. 

 Meanwhile, Fazio provided a credible and consistent account of Scoles’ disciplinary history 

that was supported by documentary evidence. HCC’s time and payroll records and Fazio’s 

disciplinary spreadsheet show that Scoles missed scans on each date alleged. See generally Exs. 

C–19, R–B; Tr. 351-53, 356-57, 358-60, 363-64, 365-67. The record also contains the verbal 

warning record, the written warning,12 both 2-day suspension notices, and the suspension with 

intent to discharge notice, all of which support Fazio’s account. Exs. C–18, R–B, p. 3. 

Furthermore, each of Scoles’ grievances regarding missed scans were subsequently withdrawn or 

disposed of in the mine’s favor. Tr. 198-99, 365, 374-75. The evidence supports that Scoles 

missed all five scans for which he was disciplined.

 Having held that Scoles missed all five scans, I turn to his contention that he was subjected to 

harsher enforcement under the Policy compared to other miners. Scoles does not have a like-tolike comparator because no other HCC miners reached Step 4 of the disciplinary program. 

Rather, Scoles points to various instances in which miners avoided disciplinary action despite 

failing to scan in or out, whereas he was disciplined in strict accordance with the Policy on every 

occasion. 

 I find that Scoles was not treated differently than any other miner under the Policy. First, the 

comparators’ accounts of disparate treatment consistently failed to match the dates in HCC’s 

time and payroll records. Although every comparator expressed absolute certainty regarding the 

dates of unpunished missed scans HCC offered time and pay records that systematically refuted 

each miner’s account. See Exs. R–AA, R–BB, R–CC, R–DD, R–EE, R–FF. Christopher Yanero 

testified that he missed a scan on February 13, 2018, but was not disciplined. Tr. 253. He also 

stated that miners Mark Heldreth and Jason Williams missed scans around the same time but that 

neither were disciplined. Tr. 254. Respondent provided time and pay records demonstrating that 

Yanero did in fact scan out on and around February 13 and that Heldreth and Williams scanned 

out on the days Yanero alleged they did not. Exs. R–V, R–BB, R–CC. Fay Ezelle claimed that he 

missed scans on February 27 and August 26 of 2018 and was not disciplined. Tr. 277. He also 

testified that he was only disciplined once under the Policy but then acknowledged that he had 

received a verbal warning, written warning, and 2-day suspension for missed scans. Tr. 276, 281. 

When asked about his Step 2 violation, he testified that he threw his written warning into the 

trash upon receipt. Tr. 286. Respondent again provided time sheets showing that Ezelle indeed 

reached Step 3 of the Policy and properly scanned in and out both on and around February 27 

and on August 28. See Exs. C–19, R–V, R–W, R– X, R–Y; Ex. R–DD. David Hollis testified 

that co-worker Sam Marra missed two scans that were excused by management. Tr. 298-99. 

 12 Although Scoles did not sign the written warning, I find that it was nonetheless 

properly issued. Scoles testified at hearing that he did not sign it because a miner representative 

was not present. Tr. 53. I accept Fazio’s testimony that he did not press the matter because it was 

commonplace for miners to refuse to sign records. This disregard for mine documents is 

supported by Ezelle’s testimony that he threw his Step 2 written warning into the garbage upon 

receipt. Tr. 286. 

41 FMSHRC Page 166
Respondent’s records again show that Marra was not working in the same part of the mine as 

Hollis during his alleged first missed scan and that Marra had accurately scanned on and around 

the date of the second alleged missed scan. Ex. R–EE. Not one of the comparators’ accounts of 

missed scans could be substantiated by the business or payroll records or in any way 

corroborated. 

 Scoles nonetheless asserts that “the fact that miners could not remember exact dates or 

confused times does not detract from the fact that they testified forthrightly regarding their 

recollections.” Comp. Rep. at 7. The Court acknowledges the miners’ earnest testimony but 

cannot credit any of it for the purposes of establishing disparate treatment in light of HCC’s 

business records clearly showing otherwise. Complainant has not provided any evidence that 

casts doubt on the veracity of those records or that suggests that the testimony of his comparator 

miners is entitled to more weight.13

 Business records aside, the comparators also demonstrated misconceptions as to how the 

scanners worked and how HCC administered the Policy that casts further doubt on the accuracy 

of their testimony. Yanero testified that he believed that he was not disciplined when scanner 

errors occurred because the records showed attempted or failed scans. Tr. 252. Hollis testified 

that he believed that scans could be excused if a supervisor filled out an exculpatory form letter. 

Tr. 300-302. Both of these claims appear to be inaccurate. Fazio testified that neither he nor any 

foremen have access or authority to excuse or alter missed scans. Tr. 372-73, 380, 407-08. 

Indeed, foremen handwrite the adjusted time onto the time sheet when a miner fails to scan in or 

out rather than entering them into the electronic system. Tr. 407-08. 

 I cannot conclude that other miners were disciplined less stringently than Scoles under the 

Policy. The comparator’ accounts either conflict with HCC’s business records or have plausible 

explanations for the discipline administered or lack thereof. In fact, examples of the 

Comparators’ own discipline demonstrates that the Policy was enforced upon them as written. 

The miners were disciplined when they forgot to scan but likewise not disciplined when they 

experienced a scanner error and informed a supervisor. 

 Scoles alleges a specific example of disparate treatment when he was disciplined for missing 

his first scan on May 19, 2016, even though he informed his supervisor that he was unable to 

scan in due to a malfunction. Tr. 32. Scoles testified he immediately informed his supervisor, Jim 

Coles, who told him he would “take care of it.” Tr. 32. Miner Perry Heflin corroborated Scoles’ 

conversation with Coles but could not recall the exact date it occurred. Tr. 238-39. Scoles noted 

that Fazio later spoke to him regarding the missed scan and told him that he would not be 

punished. Tr. 32-33. Scoles was nonetheless put at Step 1 for missing the scan. Tr. 32-33. 

13 Scoles maintains that the Court should credit his comparators’ accounts over HCC’s 

time and pay records because the operator offered no support for its records aside from Fazio’s 

“self-serving testimony.” Comp. Br. at 27. Yet Complainant offers nothing of substance to 

convince the Court that the time and payroll records are invalid. That the time and pay records 

support Fazio’s testimony and refute the comparators’ testimony is not a valid reason to discredit 

them. 

41 FMSHRC Page 167
 Fazio disputed Scoles’ account. He denied telling Scoles that he would not be disciplined and 

did not recall Scoles mentioning any conversation with Coles about the scan. Tr. 354. Rather, 

Fazio testified that Scoles admitted to missing the scan, telling him that “he was a big boy” and 

that “he could take it.” Tr. 351. HCC provided evidence of the verbal warning with written 

acknowledgment that Scoles admitted the miss and accepted the discipline. Ex. R–B, p. 2; Tr. 

349-50. Fazio noted that he did not save the video recording of the first missed scan because 

Scoles admitted that he failed to scan out. Tr. 351-54. 

 I have already found that Scoles missed the scan, and I accept Fazio’s testimony that Scoles 

admitted as much. Fazio’s account is supported by the time and pay records, his spreadsheet, and 

the notes recorded on the verbal warning record. Ex. R–B p. 5, C–19; Tr. 354, 357. His account 

explains why Fazio did not save the video footage and was unable to show Phillippi the video 

months later during Scoles’ grievance meeting. 

 Scoles argues that he reported a malfunction and that Fazio informed him he would not be 

disciplined for the missed scan. I do not credit this contention. As noted above, I found Scoles’ 

testimony to be severely inconsistent and seriously question his recollection of the events 

surrounding each of his five missed scans. With regard to the May 19 scan at issue, Scoles 

wavered between outright denying that he missed the scan and acknowledging that he did not 

scan in because the scanner malfunctioned, in both cases claiming that Fazio told him he would 

not be disciplined. Tr. 31-32, 92-95, 109, 116. Nonetheless, Scoles testified that he demanded to 

see the video and was refused. Neither of these sequences of events explained why Scoles would 

demand to see the video if he admitted to missing the scan, acknowledged that he missed the 

scan due to a kiosk malfunction, or was told that he would not be disciplined. 

 Scoles points to his and Heflin’s testimony that Scoles spoke with his supervisor about the 

scanner malfunction to argue that he was improperly disciplined for immediately reporting the 

issue. Heflin’s testimony corroborated Scoles’ account but did not provide sufficient detail to 

confirm that it pertained to the May 19 scan, or what exactly Coles meant when he said he would 

take care of the scanner malfunction. Tr. 238-239. Assuming Scoles experienced a scanning 

issue and that the conversation with Coles occurred on May 19, I find that Coles likely “took 

care” of the payroll aspect of the scanner issue but could not address the disciplinary side of the 

missed scan. This explanation reconciles Coles’ statement with Fazio’s testimony that front-line 

foreman and supervisors do not have the authority to excuse missed scans, only to annotate and 

validate time to ensure miners are paid according to hours work. Indeed, Scoles’ time and pay for 

that date is handwritten and apparently initialed by Coles. Ex. R–B, p. 3. This finding also 

explains why Fazio had no recollection of speaking with Coles about the matter, as Fazio is not 

involved with the payroll side of the Policy. 

 However, even accepting Scoles sequence of events, it does not necessarily follow that he did 

not miss the scan in violation of the Policy. Although multiple miners testified that they were not 

disciplined when they immediately informed a supervisor that they were unable to scan in or out, 

none claimed that they were simply excused as Scoles believed to be. Tr. 239-40, 254, 276, 297. 

Rather, most of the miner witnesses explained that their supervisors instructed them to return to 

the kiosk and continue trying to scan in or out until it was finally accepted. Tr. 240, 272, 311. In 

situations where miners informed supervisors that personally came to address the machine issue, 

41 FMSHRC Page 168
the miners recalled attempting to scan in again after they reported the issue. Tr. 240, 272. Thus, I 

find it plausible that Scoles could have reported the issue and still missed the scan in violation of 

the Policy by not attempting to rescan. 

 In sum, I do not find that Scoles was treated differently than other miners when he was 

disciplined for missing the May 19 scan. Scoles’ testimony was inconsistent and did not fully 

match his alleged sequence of events, while HCC provided business and disciplinary records 

consistent with Fazio’s recollection of the missed scan, including the verbal warning that noted 

Scoles’ acceptance of the discipline. Ex. R–B, p. 2; Tr. 351, 354. I therefore find that Scoles 

admitted to missing the May 19 scan and accepted the Step 1 discipline for it. Hence, his 

treatment was consistent with that of other miners that missed scans in accordance to the Policy. 

Accordingly, I find that Complainant was not subject to disparate treatment under the Policy. 

e. Conclusion

 In light of the above, I conclude that Complainant did not establish a prima facie case of 

discrimination. The Complainant was unable to establish a nexus between his protected activity 

and his discharge under the Policy. Although HCC knew of Scoles’ reputation as a safety 

advocate and had come into conflict with Scoles before regarding these matters, Scoles did not 

sufficiently show that HCC discharged him because of his protected activity. Most conclusively, 

Scoles was unable to establish that he was treated any differently than other miners for violating 

the Hand Scanner Policy. Scoles’ own testimony regarding his scanning history lacked any 

semblance of credibility, and his comparators were unable to show examples of disparate 

treatment under the Policy. On the other hand, HCC provided business records supported by Mr. 

Fazio’s credible testimony that showed a detailed and consistent enforcement of the policy. 

Accordingly, I find that Scoles failed to establish a prima facie case of discrimination.

2. Affirmative Defense

 An operator may establish an affirmative defense by proving that the adverse action was 

motivated by unprotected activity and that the operator would have taken said action based solely 

on the unprotected activity. Pasula at 2799-2800. In reviewing the defense, the judge should 

determine whether it 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 

show that the alleged non-discriminatory reason is 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).

Respondent contends that Scoles was terminated in accordance with the Mine’s Hand 

Scanner Policy and would have been terminated for that reason alone. Resp. Br. at 16. Scoles 

was disciplined upon each violation and was terminated immediately once HCC management 

discovered that he reached Step 4. Id. HCC argues that it has a legitimate and important business 

interest in accurately maintaining the time and payroll records for its workforce. Id. Thus, 

41 FMSHRC Page 169
Scoles’ discharge was consistent with the Policy and solely determined by his repeated failure to 

scan in and out. Id. 

 

 Scoles maintains that HCC used the Hand Scanner policy as pretext for his discharge. Comp. 

Rep. at 11. Scoles points to the other miners’ testimony to argue that HCC enforced the Policy in 

an inconsistent and lenient manner and thus did not discharge Scoles solely for his failure to scan 

in and out. Id. Furthermore, Scoles argues that HCC inflated its purported business interest in 

maintaining accurate payroll records because the mine regularly used an alternative means of 

tracking time that was more reliable than the hand scanners. Id. at 12-13. 

 Assuming arguendo that Complainant established his prima facie case, I find that HCC 

established a valid affirmative defense. Scoles reached Step 4 of the Hand Scanner Policy due to 

his multiple failures to scan in and out over the course of a year. The designated punishment at 

Step 4 is suspension with the intent to discharge, and HCC immediately disciplined Scoles 

accordingly when he reached that step. The Hand Scanner Policy’s language is singularly 

directed toward enforcing consistent compliance with HCC’s time and attendance system and 

clearly outlines the repercussions for repeated failure to do so. Ex. C–1. Although they may not 

have agreed with the Policy itself, Scoles and the other miners were aware that failing to scan in 

or out constituted a violation and testified to their personal experiences with the progressive 

discipline scheme. 

 Fazio’s testimony lends credibility to HCC’s proffered reason for discharging Scoles. He 

described his interactions with Scoles at each disciplinary step and his process for administering 

the Policy throughout the mine in detail. His disciplinary spreadsheet and the mine’s time and 

payroll records indicate that Fazio meticulously tracked missed scans and disciplined culpable 

miners in accordance with their status on the progressive discipline scheme. Ex. C–19. His 

testimony did not indicate that his disciplinary interactions with Scoles differed from those with 

other miners, were out of step with the Policy, or were motivated by factors other than Scoles’ 

failure to scan in our out. Furthermore, his testimony and HCC’s time and pay records 

systematically and consistently refuted the testimony of Scoles and his comparators’ regarding 

inconsistent enforcement of the Policy. As discussed in detail above, none of the miners’ 

testimony was sufficiently credible to cast doubt on the veracity of HCC’s records or that HCC’s 

implementation of the policy was implausible or out of line with normal business practices. 

 Complainant argues that HCC overstated its business interest in enforcing the Hand Scanner 

Policy because front-line foreman and supervisors regularly enter the time and pay accurately 

and without malfunction whenever miners missed a scan. Comp. Br. at 12-13. I reject this 

argument. The mere existence of a reliable backup system does not lessen HCC’s business 

interest in ensuring accurate time and pay for its workforce or the legitimacy of the Hand 

Scanner Policy as a means to do so. Mines have a clear business interest in ensuring its 

employees are paid correctly, consistently, and without dispute. They thus have a clear interest in 

ensuring that miners use the system put in place. Computerizing those calculations serves to 

provide an objective means of doing so and eliminate suspicion that mine management may 

abuse their power in making those calculations themselves. Supervisors are only authorized to 

adjust time and pay when miners fail to use the Hand Scanners, and they must do so by hand on 

the time sheet. It is therefore clear that HCC implemented the Hand Scanner Policy and system 

41 FMSHRC Page 170
to minimize supervisors’ involvement in calculating time and insulate the electronic system from 

their control. The Court finds this interest both reasonable and plausible. 

 I find that HCC’s offered business justification was not pretextual. The Hand Scanners are a 

plausible means to accurately calculate time and pay of all 315 miners working at the Harrison 

County Mine and to hold miners accountable for scanning in and out. The system is designed to 

avoid disputes between employees and management regarding pay by using an objective 

electronic timekeeping system. It cannot be effective, however, unless miners regularly scan in 

and out, and the Policy is unequivocally intended to ensure that they do so. HCC’s desire to 

implement a disciplinary scheme that effectively deters miners from failing to scan in and out is 

therefore reasonable. Scoles reached Step 4 of the Policy’s progressive discipline scheme when 

he failed to scan in or out on five different occasions without being exonerated more than one 

time. While discharge was the harshest measure available, it was clearly outlined within the 

Policy, and the Court declines to substitute its view of what may be good business practice for 

that of the operator with an opinion as to whether the adverse action was “just” or “wise.” Sec’y 

of Labor on behalf of Silva v. Aggregate Indus. WRC, Inc., 40 FMSHRC 552, 572 (Apr. 2018) 

(ALJ) (citing Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2517 (Nov. 1981). 

D. Interference

Scoles also contends that HCC’s “action of disciplining Scoles to the point of discharge

under the [Hand Scanner] Policy, while declining to discipline other similarly-situated miners 

each time management alleged them to have committed the exact same violation, is not only 

inherently likely to interfere with Scoles’ exercise of Mine Act rights; it is completely destructive 

of that exercise, inasmuch as it ended his employment at the Mine.” Id. at 37. Complainant also 

contends HCC’s decision to terminate him interferes with the rights of other miners because it 

will chill their desire to make safety complaints at the mine. Id. Complainant urges the Court to 

adopt the Franks test, which finds an interference violation when: 

(1) a person’s action can be reasonably viewed, from the perspective of members

of the protected class and under the totality of the circumstances, as tending to

interfere with the exercise of protected rights, and

(2) the person fails to justify the action with a legitimate and substantial reason

whose importance outweighs the harm caused to the exercise of protected rights.

UMWA on behalf of Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2108 (Aug. 2014). 

HCC disagrees and contends that Scoles’ discharge should not be analyzed under an 

interference framework. Resp. Br. at 20. Respondent argues that doing so would “create a 

‘perverse’ incentive for miner complainants to plead interference claims in lieu of or in addition 

to discrimination claims to avoid the more rigorous Pasula/Robinette framework.” Id.; see also 

Sec’y of Labor on behalf of Pepin v. Empire Iron Mining P’ship, 38 FMSHRC 1435, 1453 (June 

2016) (ALJ). If the Court does consider Scoles’ claim, HCC urges the adoption of an 

interference test for facially neutral company policies as outlined in Feagins v. Decker Coal Co., 

41 FMSHRC Page 171
23 FMSHRC 47, 50 (2001) (ALJ) (holding that to constitute illegal interference a facially neutral 

policy must (1) overtly impose negative consequences to a person for the exercise of a Mine Act 

Right or (2) damage or deny rights assured under the Act even if there is no overt causal 

connection between the damage suffered and the exercise of the protected right). Resp. Br. at 19. 

Should the Court apply the Franks test to Scoles’ claim, however, HCC argues that its decision 

to discharge Scoles cannot be reasonably viewed as tending to interfere with Mine Act rights, 

and was nonetheless justified by its legitimate interest in accurately tracking time and payroll 

that outweighs any harm caused to the exercise of said rights. Id. at 20-21. 

Unlike discrimination cases, the Commission has accepted interference claims where a miner 

complainant did not actually engage in protected activity or where the conduct complained of 

was verbal harassment rather than an adverse employment action. See Sec’y of Labor on behalf 

of Gray v. N. Star Mining, Inc., 27 FMSHRC 1, 8 (Jan. 2005); Moses v. Whitley Dev. Corp., 4 

FMSHRC 1475 (Aug. 1982), aff’d 770 F.2d 168 (6th Cir. 1985). In these cases, the Commission 

focuses not on the employer’s motive but on whether the conduct would “chill the exercise of 

protected rights,” either by the directly affected miner or by others at the mine. Gray, 27 

FMSHRC at 8; Moses, 4 FMSHRC at 1478-79. 

 A majority of the Commission has not endorsed a single analytical framework to apply when 

determining whether an operator interfered with the exercise of protected rights under section 

105(c). Sec’y of Labor on behalf of Greathouse, et al. v. Monongalia County Coal Co. et al., 40 

FMSHRC 679, 680 (June 2018). Two Commissioners in Greathouse and multiple 

Administrative Law Judges have applied the Franks test. The remaining two Commissioners 

held that the Complainant must also demonstrate that the alleged interference was motivated by 

animus to the exercise of protected rights. See Greathouse, 40 FMSHRC at 708. At this time, no 

Commissioner has explicitly endorsed Respondent’s proposed interference test for faciallyneutral policies as put forth in Feagins, while at least one Commission Judge has found that test 

to be out of line with Commission’s current case law on interference. See Sec’y of Labor on 

behalf of Greathouse, 39 FMSHRC 941, 948 (May 2016) (ALJ) (holding that Commission 

precedent has de-emphasized proof of a miner’s attempted exercise of a protected right and not 

required a showing of intent to interfere). 

At the outset, the Court has grave reservations in accepting Complainant’s alternative 

argument of interference and in applying the Franks test to a case that so obviously implicates 

protected activity and an adverse employment action. Cf. Gray, 27 FMSHRC at 8. To expand the 

use of interference claims to clear adverse actions such as discharge would allow complainants to 

sidestep the elements required to prove a prima facie case of discrimination under section 105(c). 

Pepin, 38 FMSHRC at 1452-53. In a case such as this one, where protected activity and adverse 

action are clearly present and where discriminatory motive has not been found, permitting an 

alternative pleading of interference runs the risk of rendering the Pasula/Robinette superfluous. 

If, upon failing to prove up its prima facie case of discrimination, a complainant may then resort 

to a claim of interference, there is little stopping a Complainant from avoiding Pasula/Robinette

analysis altogether by alleging interference to prove its claim under the less stringent Franks test. 

See 38 FMSHRC at 1452-53. 

41 FMSHRC Page 172
Moreover, accepting the notion that a miner’s discharge interferes with that miner’s ability to 

exercise protected activity would excise the burden of proof under the first prong of the Franks

test. That a miner’s discharge interferes with his or her own ability to engage in protected 

activity is a tautology. To hold that HCC’s decision to discharge Scoles pursuant to the Hand 

Scanner Policy interfered with his rights would obfuscate the intended purpose of “interference” 

under the Act and open the door for any and every miner to challenge the mere fact of their 

termination with or without a demonstrated impact on protected activity. This could not have 

been Congress’ intent when it identified two causes of action under section 105(c): “not only the 

common forms of discrimination, such as discharge, suspension, [and] demotion..., but also

against the more subtle forms of interference, such as promises of benefit or threats of reprisal.” 

Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1479 (Aug. 1982) (citing S. Rep. 95-191, 95th 

Cong., 1st Sess. 36 (1977) [“S. Rep.”], reprinted in Senate Subcommittee on Labor, Committee 

on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 624 (1978)); see also Pepin, 38 FMSHRC at 1452-53 (emphasis added). 

Regardless, the Court need not dwell upon whether multiple tests are necessary for factually 

different interference claims or endorse a specific interference framework because Scoles’ claim 

does not satisfy the Franks test, so far the least stringent interference test endorsed by the 

Commission. 

1. Whether HCC’s decision to discharge Scoles pursuant to the Policy can be 

reasonably viewed as tending to interfere with the exercise of protected rights. 

The Hand Scanner Policy implemented a four-step progressive discipline system for each 

instance where a miner failed to use the hand scanner to start or end their shift. Ex. C–1. HCC 

discharged Scoles after his fifth missed scan in slightly less than a year. He was moved back one 

step in accordance with the policy after scanning in and out for 180 consecutive days during that 

period. 

 When compared to other programs or plans found to interfere with miner’s protected rights, 

HCC’s Hand Scanner Policy does not implicate the exercise of protected rights under the Act. In 

other cases, the policies at issue either directly chilled a miner’s exercise of rights or provided an 

incentive for miner’s not to exercise those rights. See, e.g., Greathouse, 40 FMSHRC 679 (June 

2018) (addressing bonus plan that awarded miners for production and thus discouraged safety 

complaints); Sec’y of Labor on Behalf of Thomas McGary et. al. v. The Marshall County Coal 

Co. et. al., 37 FMSHRC 2597 (Nov. 2015) (ALJ) (policy requiring miners to report safety 

complaints to management before making the complaints to MSHA interfered with miners right 

to make anonymous complaints). Unlike those cases, the Hand Scanner Policy itself does not 

create any disincentive to refrain from engaging in protected activity. Miners cannot be 

disciplined for engaging in protected activity under the Policy and are not deterred from doing so 

based on any implication of the Policy’s language. See Ex. C–1. A miner cannot be discharged 

under the Policy for anything other than repeatedly failing to scan in or out. In short, if a miner 

simply scans in and out every day, the Policy will not impact them or their actions whatsoever. 

 When considering the totality of the circumstances surrounding Scoles’ discharge, however, I 

find that miners may reasonably view HCC’s decision to discharge him in close proximity to his 

41 FMSHRC Page 173
election to the Union Safety Committee as tending to chill the exercise of protected rights. Hollis 

testified that he warned Scoles not to run for the Union positions and refused to vote for him for 

fear of adversely impacting his employment at the mine. Tr. 306-307. Given Scoles’ reputation 

for safety advocacy, his pending candidacy for two Local Union positions, and his past conflicts 

with HCC management, miners could conceivably view HCC’s decision to discharge Scoles 

under the Policy as a statement discouraging miners’ exercise of protected activity for fear of 

being subject to stricter enforcement of the Policy. 

 For the purposes of this decision, I find that Scoles’ discharge satisfies step 1 of the Franks

test. 

2. Whether HCC’s decision to discharge of Scoles’ pursuant to the Hand Scanner

Policy outweighs the harm caused to the exercise of protected rights.

The second prong of the Franks test turns to whether the operator had a “legitimate and 

substantial” reason for the action “whose importance outweighs the harm caused to the exercise 

of protected rights.” Greathouse, 40 FMSHRC 679, 702 (June 2018) (citations omitted). An 

operator’s substantial business justification is most persuasive when it is narrowly tailored to 

promote the justification and the operator’s interest is important and the impact on employee 

rights is minimal. See Franks, 36 FMSHRC 2088, 2118 (Aug. 2014); Greathouse, 38 FMSHRC 

941, 954 (May 2016) (ALJ) (citations omitted). 

Scoles contends that HCC cannot offer a legitimate and substantial reason for discharging 

him under the policy that outweighs its interference with miners’ rights because it took the most 

severe action possible in discharging him.14 Comp. Br. at 39. HCC contends that it has a 

legitimate and substantial interest in ensuring accurate timekeeping and the payment of correct 

wages to its employees and ensuring that miners consistently scan in and out. Resp. Br. at 21. It 

notes that the Hand Scanner Policy is narrowly tailored to minimally affect employees’ rights by 

focusing solely on whether miners properly scan in and out of their shifts. Id. 

 I find that HCC’s interest in enforcing the Policy outweighs the minimal and attenuated 

impact upon miners’ exercise of their protected rights. The mine is large and must track the time 

and pay of 315 miners. It uses the hand scanners to quickly and effectively do so. Tr. 335-37. 

The system does not operate as effectively or efficiently as intended if miners do not use the 

scanners. The progressive discipline scheme is in place to ensure compliance. Scoles’ 

termination was in accordance with the established Policy, and HCC had a legitimate and 

substantial interest in enforcing the Policy so that miners consistently use the hand scanners to 

track their hours. 

14 Scoles contends that because HCC’s enforcement of the Hand Scanner Policy was 

pretextual in that it treated Scoles differently than other miners, it is unnecessary to balance that 

purported reason against the resulting interference with miners’ rights. Comp. Br. at 39. Since I 

have already found that HCC’s enforcement of the policy was not pretextual, I need not address 

this argument or its implications for interference claims in general. 

41 FMSHRC Page 174
 In contrast, Scoles’ discharge under the Hand Scanner Policy caused minimal and attenuated 

harm to other miners’ exercise of protected rights because he was solely responsible for 

remembering to scan in and out at the end of his shifts, especially as he progressed further along 

the disciplinary scheme. Scoles offers no evidence that he felt the Policy deterred him from 

exercising his rights or any evidence that the Policy was implemented as a threat against his 

exercise of those rights. Rather, Scoles demonstrated a flippancy toward the Policy, calling it “a 

joke,” “piddly,” and “heinous” during his deposition and reiterating that belief at hearing. Tr. 95-

99. Any harm that HCC’s decision to discharge Scoles may have caused to miners’ exercise of

protected rights is tempered by Scoles’ failure to adhere to the Policy. While a reasonable miner

may conceivably view HCC’s decision to discharge Scoles as a warning not to engage in

protected activity, I find it much more likely that a reasonable miner would view Scoles’

discharge as a warning to remember to scan in and out each day.

 Contrary to Scoles’ claim, HCC’s decision to discharge him was narrowly tailored to 

promote compliance with the Hand Scanner Policy. Although Complainant correctly 

characterizes HCC’s decision to discharge him pursuant to the Policy as the most severe action 

possible, discharge for repeated failure to scan in and out is clearly stated in the Policy, and the 

Court will not impart judgment on the “fairness, reasonableness, or wisdom of an operator’s 

employment policies except insofar as those policies may conflict with rights granted under 

section 105(c) of the Act.” Sec’y of Labor on behalf of Beckman v. Mettiki Coal (WV), LLC, 33 

FMSHRC 258, 274 (Jan. 2010) (ALJ) (citing Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 

2544 (Dec. 1990)). Here, the Policy does not directly or indirectly implicate miners’ abilities to 

exercise their rights under the Act, and the act of scanning in or out does not impose any burdens 

on miners that might obstruct or deter them from making complaints. The Policy clearly notes 

that a miner will be suspended with the intent to discharge upon reaching Step 4 of the Policy. A 

miner can only reach Step 4 by failing to consistently scan in or out, and HCC discharged Scoles 

for this reason. 

 I therefore find that HCC’s interest in ensuring that miners consistently use the hand scanners 

to track time outweighs the harm that Scoles’ discharge caused to the exercise of protected rights 

at Harrison County Mine. Inconsistent or lenient enforcement of the Policy compromises its 

purpose of ensuring consistent, mine-wide use of the Hand Scanner system. Scoles continuously 

violated the Policy and was disciplined accordingly to deter him from doing so in the future. 

41 FMSHRC Page 175
 I find that Scoles’ discharge pursuant to the Hand Scanner Policy did not unlawfully interfere 

with miners’ exercise of protected rights pursuant to section 105(c) of the Mine Act. 

IV. ORDER

 Accordingly, the complaint brought by George Scoles is DENIED and this proceeding is 

DISMISSED. 

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (Certified First Class U.S. Mail) 

Laura P. Karr, Timothy J. Baker, United Mine Workers of America, 18354 Quantico Gateway 

Drive, Suite 200, Triangle, Virginia, 22172 

Thomas A. Smock, Philip K. Kontul, & Cory E. Ridenour, Ogletree, Deakins, Nash, Smoak & 

Stewart, P.C., 1 PPG Place, Suite 1900, Pittsburgh, Pennsylvania 15222 

41 FMSHRC Page 176
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

March 19, 2019 

CORRECTED DECISION 

This case is before me upon a discrimination proceeding filed by George Scoles, through 

counsel, against the Harrison County Coal Company (“HCC” or “Respondent”), pursuant to 

section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3).1

Scoles contends that Harrison County violated the Mine Act when it discharged him for 

engaging in protected activity. Scoles also argues that his discharge interfered with the ability of 

himself and other HCC miners to exercise their protected rights. HCC denies these claims and 

maintains that Scoles’ discharge was solely motivated by his repeated failure to properly clock in 

and out in compliance with the mine’s Hand Scanner Policy. 

A hearing was held on October 16-17, 2018 in Morgantown, West Virginia. Based on my full 

consideration of the testimony and exhibits presented at hearing, the stipulations of the parties, 

my observation of the demeanors of the witnesses, and the parties’ post-hearing briefs, I find that 

HCC did not violate the Mine Act when it discharged Scoles. 

I. STIPULATIONS

At hearing, the parties entered the following stipulations: 

1. During Scoles’ employment at Harrison County Mine, he was a miner within the

meaning of section 3(g) of the Mine Act, 30 U.S.C. § 802(g).

2. The Harrison County Mine is a mine as that term is defined in section 3(d) of the Mine

Act, 30 U.S.C. § 802(d).

1

 In this decision, the joint stipulations, transcript, the Complainant’s exhibits, and 

Respondent’s exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. C–#,” and “Ex. R–#,” 

respectively. 

GEORGE SCOLES, 

 Complainant, 

 v. 

HARRISON COUNTY COAL CO., 

 Respondent. 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 2017-0638-D 

Mine: Harrison County Mine 

Mine ID: 46-01318 

41 FMSHRC Page 177
3. The Harrison County Coal Company is an operator as that term is defined in section 3(d)

of the Mine Act, 30 U.S.C. § 802(d).

4. Products of the Harrison County Mine entered commerce, or the operator or products of

the Harrison County Mine affected commerce within the meaning and the scope of

section 4 of the Mine Act, 30 U.S.C. § 803.

5. From January 1, 2016, through the present, the United Mine Workers of America Local

Union 1501 and the UMWA International Union have represented the hourly production

and maintenance employees at the Harrison County Mine. Tr. 14-15.

II. FINDINGS OF FACT

A. Background

The Harrison County Mine is an underground coal mine located in Mannington, West

Virginia. Harrison County Coal Company (HCC) - a subsidiary of Murray American Energy Inc. 

- owns and operates the Mine. The Mine employs approximately 315 hourly employees and has

an approximate annual payroll of 25 million dollars. Tr. 335.

George Scoles worked at the Harrison County Mine from January 2007 until May 2017 as a 

Longwall Outby Utility Man. Tr. 28. He supplied the longwall face and performed a variety of 

tasks to facilitate advancement of the longwall at the mine. Tr. 28. He also served as a miner’s 

representative and as a walkaround with MSHA inspectors up to two to three times a week until 

his discharge. Tr. 85. Scoles is a member of the United Mine Workers of America (“UMWA”) 

Local Union 1501 at the Harrison County Mine. Tr. 86. 

Scoles has a mine-wide reputation as a safety advocate. Tr. 235-36, 256-58, 275, 277-78, 

303-05. Aside from his walkaround duties, Scoles made numerous safety complaints to mine

management. HCC was not always receptive to these complaints. Miner Christopher Yanero2

described episodes where Scoles reported safety issues and management did not cooperate or

assigned him to perform less desirable tasks while other miners were told to watch. Tr. 256-58.

Miner David Hollis3

 testified that he often heard Scoles make safety complaints or

recommendations over the radio that went unacknowledged by management. Tr. 305. Hollis

noted that management responded when he personally acknowledged Scoles’ comments over the

radio. Tr. 308.

2

 Christopher Yanero is a Plant Prep Helper at HCC. Tr. 249. He has worked at Harrison 

County Mine for 48 years. Tr. 250. He formerly served as mine committeeman and President of 

the Local Union for multiple terms. Tr. 259-60. 

3

 David Hollis is the day shift dispatcher for HCC. Tr. 292-93. He has worked at the 

Harrison County Mine for 18 years. Tr. 292. His duties include monitoring all atmospheric 

elements at the mine and dispatching miners to different areas of the mine via radio. Tr. 292-93. 

He estimated that he hears about 80-85% of the radio communications that take place at the 

mine. Tr. 293.

41 FMSHRC Page 178
These types of incidents, among others, prompted Scoles to file five section 105(c) 

complaints against HCC from 2014 to 2017. Scoles settled two of these complaints with the 

Mine. MSHA issued negative findings on another two and Scoles opted not to pursue them 

further. One of Scoles’ 2015 complaints proceeded to hearing before Commission 

Administrative Law Judge Andrews. See Sec’y on behalf of Scoles v. Harrison County Coal Co., 

40 FMSHRC 1393 (Sept. 2018) (ALJ). In that case, Judge Andrews found that HCC violated the 

Act when it discharged Scoles for subordination following an altercation with his supervisor. Id. 

at 1420-21. Scoles was reinstated and awarded backpay. Id. at 1421-23. 

In May of 2017, Scoles ran for safety and mine committeeman positions within the local 

Union. Tr. 87. The safety committeeman is charged with serving as a walkaround or assigning 

other miners to do so, performing safety inspections, and discussing miners’ safety concerns with 

management. Tr. 88. The mine committeeman is authorized to represent miners in grievance 

proceedings and address any collective bargaining issues or mine-management conflicts that may 

arise. Tr. 88. Scoles easily won both races, but he was discharged pursuant to HCC’s Hand 

Scanner Policy before he could assume office. Tr. 87-88. 

B. The Hand Scanner Policy 

HCC implemented the Hand Scanner Policy (“Policy”) in January of 2016. The Policy serves 

as the primary time and payroll tracking mechanism for all hourly employees. Tr. 336-37. The 

Policy requires the mine’s hourly employees to track their work hours by entering their employee 

number and scanning their fingerprint at designated kiosks at the beginning and end of each shift. 

Ex. C–1; Tr. 337-38. Miners can use either hand to scan, and the process takes about five 

seconds. Tr. 337-38. If the scan is rejected or if a miner has issues with a kiosk, they are 

instructed to notify management of the issue. Ex. C–1. In general, miners that experience 

scanning issues are instructed to return to the kiosk and try again or to try a different kiosk. Tr. 

240, 272. Even miners experiencing issues are usually able to scan in after a number of attempts. 

Tr. 240, 272. Scanner issues appear to be infrequent and individualized. There is no record of a 

large-scale scanner malfunction affecting entire shifts or crews. Tr. 247, 400-01. 

The Hand Scanner Policy outlines a four-step progressive discipline scheme to encourage 

miners to consistently scan in and out. Ex. C–1. Each time a miner fails to scan in or out, they are 

disciplined in accordance with the number of scans they previously missed. A miner will receive 

a verbal warning for their first missed scan, a written warning for their second, a two day 

suspension for their third, and a suspension with intent to discharge for their fourth. Id. The 

Policy allows miners to exonerate themselves; a miner moves back one step on the scale if they 

scan in and out without failure for 180 days. Id. Thus, a miner at Step 3 of the discipline program 

will move back to Step 2 if they scan in and out for 180 consecutive days, back to Step 1 after 

another 180 consecutive days, and so on. The Policy does not outline any factors aside from 

failures to scan that may result in discipline under the scheme. Ex. C–1. 

41 FMSHRC Page 179
Christopher Fazio4

 administers the Policy’s progressive discipline program at Harrison 

County Mine. Tr. 334-35. He maintains a spreadsheet to track progressive discipline records for 

all of the miners. Ex. R–E; Tr. 340. When a miner misses a scan, he is notified by payroll via the 

timesheets and will check his spreadsheet to administer the proper discipline.5 Tr. 340. The 

payroll records are sufficient to sustain a violation, and miners rarely dispute the missed scans. 

Tr. 415. When they do, Fazio pulls video footage collected by motion-activated cameras located 

near all of the kiosks to prove the missed scan. Tr. 345-47. The cameras record and store up to 

ten days’ worth of activity. Tr. 345-46. If the miner does not dispute the scan, Fazio does not 

save the video footage. Tr. 347. 

Fazio administers the first two steps of the Policy himself. He will hold a private meeting 

with miners to inform them of the missed scan and at Step 2 will issue the appropriate paperwork 

to the miner. Tr. 342. If a miner reaches Step 3, Harrison County Mine General Manager Scott 

Martin will also be present at the meeting. Tr. 342. Miners may file a grievance to dispute 

alleged missed scans under the policy; this is often where the video evidence will be shown to 

the miners. Tr. 193-94, 346. At Step 2, a local mine committee member and local management 

attend to try to resolve the dispute. Tr. 209. At Step 3, a district union representative will meet 

with a member of corporate management or Human Resources as well as the mine 

superintendent. Tr. 211. 

C. Scoles’ Discipline under the Policy

Scoles was disciplined and eventually discharged following five alleged violations of HCC’s

Hand Scanner Policy between May 2016 and May 20176

. Scoles maintained at hearing that he 

never failed to scan in or out. Tr. 31, 60, 63, 66, 92, 94-95, 109, 116. 

Scoles was issued a verbal warning on May 31, 2016 for a missed scan on May 19.7 Ex. R–B, 

p. 2. Scoles’ time sheet and time card for that date corroborate that Scoles failed to scan out. Ex.

R–B, pp. 3-4.

4

 Christopher Fazio is the Human Resources Supervisor at the Harrison County Mine. Tr. 

333-34. He has worked for HCC since June 2010. Tr. 333. His duties include conducting hiring

and staffing procedures, managing collective bargaining, compensation and benefits, disability,

and discipline. Tr. 333-34.

5

 Fazio only administers the disciplinary aspect of the Policy. He does not edit the payroll 

sheets. When a miner misses a scan, front line foremen and supervisors are responsible for 

adjusting miners’ work hours to properly reflect the time they work. Those edits are done by 

hand, and according to Fazio, nobody can edit the timesheets through the computer system. Tr. 

407-08.

6

 The dates have been corrected from “between May 2016 and May 2016” to “between 

May 2016 and May 2017”. 

7

 The verbal warning record states that the HCC was unable to issue the verbal warning 

sooner because the mine was idle from May 20 to May 30. Ex. R–B, p. 2.

41 FMSHRC Page 180
 Scoles denied missing the scan, though later claimed that he was unable to scan out due to a 

scanner malfunction. Tr. 31-32. Miner Perry Heflin8

 testified that Scoles discussed the issue with 

him and that Scoles notified shift foreman Jim Coles of the matter. Tr. 238. Coles allegedly told 

Scoles and Heflin that he would take care of it. Tr. 32, 239. Scoles alleges that Fazio later spoke 

to him about the missed scan and told him that he would not be disciplined. Tr. 32-33, 349. 

Scoles therefore believed that he was not given a verbal warning for this missed scan.9

 Even 

though he believed he would not be disciplined, Scoles claimed that he asked to see video of the 

missed scan but was refused. Tr. 32-33. 

Fazio denied Scoles’ account and did not recall speaking with Coles about an alleged scanner 

malfunction. Tr. 349. He testified that he issued Scoles a verbal warning in accordance with Step 

1 of the Policy and did not save the video footage because Scoles admitted to missing the scan. 

Tr. 348, 350-51. The record of the verbal warning states that “employee admitted that he did not 

scan out.” Ex. R–B, p. 2; Tr. 354. 

Scoles received a written warning for his second alleged missed scan on June 9, 2016. Ex. R–

B, p. 5. Scoles’ time sheet and time card show a missed out-punch on that date. Ex. R–B, p. 6-7. 

Fazio issued the warning to Scoles and to the Mine Committee the following day. Tr. 355-56. 

Scoles again denied missing the scan and did not sign the written warning. Tr. 47, 53, 113, 417. 

He claimed that HCC denied his request to see video of the missed scan. Tr. 54. Fazio disputed 

his account and claimed that Scoles once again admitted to missing the scan and accepted his 

discipline. Tr. 417. He did not think much of Scoles’ refusal to sign the written warning because 

miners often decline to sign management documents. Tr. 417. 

Scoles was suspended for two days for an alleged missed scan on July 6, 2016. Ex. R–B, p. 8. 

His time sheet and time card corroborate the missed scan. Ex. R–B, pp. 9-10. Scoles denied 

missing the scan. Tr. 61, 359, 413. He again requested video evidence of the scan but was 

denied. Tr. 61. However, it is undisputed that Scoles’ representative at his grievance hearing did 

see video footage of this missed scan. Tr. 198-99. 

On September 16, 2016, Scoles filed a grievance disputing the first two missed scans. Scoles 

was at Step 3 at the time he filed the grievance. The parties met on January 6, 2017. UMWA 

International Region 1 Representative Michael Phillippi10 appeared at the grievance meeting on 

behalf of Scoles. Phillippi testified that he asked to see video of the alleged missed scans, but 

that HCC management claimed not to have them. 

 8

 Perry Heflin is an electrical mechanic at Harrison County Mine. Tr. 230. He has worked 

for HCC for 12 years. Tr. 230. 

9

 Miners do not receive a written record for a verbal warning, but management does 

produce a form for its own records. Tr. 354. 

10 Michael Phillippi is an International Representative for Region 1 of the United Mine 

Workers Association. Tr. 187. He is involved in organizing and safety matters, but most of his 

work centers around grievance and arbitration, labor charges, and various policy matters. Tr. 

187-88. 

41 FMSHRC Page 181
For the first time in Phillippi’s experience handling grievances, HCC declined to reverse its 

decision to discipline a miner under the policy. Tr. 193-95. He noted that management would 

usually reverse its decision when it did not have video evidence of the missed scan. Tr. 195. 

Fazio testified that he did not have video footage because Scoles admitted to missing the scans 

and emphasized that video proof is not required to substantiate a missed scan. Tr. 346, 357. HCC 

declined to reverse the decision and noted on the grievance agreement that as of September 16, 

2016, Scoles was at Step 2 of the disciplinary scheme. Ex. C–6.

Scoles also grieved his discipline for the July 6 scan. At the meeting, Fazio showed Phillippi 

video of Scoles entering and exiting the Foreman’s room without scanning. Tr. 198-99, 218, 359-

60, 413. Phillippi subsequently withdrew Scoles’ grievance. Tr. 199. However, he testified that 

he later considered his decision to withdraw Scoles’ grievance to be a mistake. Tr. 198-99. 

Although HCC showed him the video, he believed that there were other cameras that may have 

captured Scoles’ out-punch at a different kiosk. Tr. 199. Phillippi testified that based on his 

knowledge today he would not have withdrawn Scoles’ grievance. Tr. 199-200. Fazio testified 

that he showed Phillippi video from cameras located at each scanner. Tr. 360. 

 Scoles received a second two-day suspension on February 9, 2017 for missing a scan the 

previous day. Ex. R–B, p. 11. Scoles’ time sheet and time card show a missed out-punch for the 

date in question. Ex. R–B, pp. 12-13. Scoles was uncertain whether he missed this scan but again 

asked to see the video footage. Tr. 64-65, 364-65, 413-14. He was allegedly refused, although he 

admitted that he testified to the contrary during his arbitration hearing. Tr. 119-120. Scoles filed 

another grievance that was subsequently withdrawn upon viewing the video footage. Tr. 365-66. 

 Scoles was suspended with intent to discharge on May 10, 2017 for an alleged missed scan 

on May 8. Ex. R–B, p. 14. Scoles’ time sheet and time card show a missed in-punch. Ex. R–B, 

pp. 15-16. His time card also shows a handwritten time adjustment. Id. Scoles testified that he 

did not miss the scan, but later acknowledged that he was uncertain about whether he missed it. 

Tr. 66-67, 126. Scoles viewed the video footage of the missed scan at his “24-48 hour 

meeting.”11 Tr. 68-69, 366. However, Scoles claimed that the video froze—or “glitched”—

before it showed him entering the elevator. Tr. 69. 

 Scoles filed a grievance regarding his discharge and the matter was referred to arbitration. 

Exs. C–10, R–C. At the arbitration Scoles admitted that he missed all five of the scans and 

instead argued that discharge was a disproportionately severe punishment in relation to the 

conduct cited. Ex. R–D. On June 17, 2017, the Arbitrator did not find evidence of arbitrary or 

discriminatory enforcement of the Policy and upheld Scoles’ discharge. Id. Notably, the 

arbitrator found no material issues of fact; Scoles admitted at the arbitration hearing that he 

missed all five scans for which he was disciplined. Id. 

11 Pursuant to the terms of the collective bargaining agreement with the Union, miners are 

entitled to a “24/48 hour meeting” with mine management to discuss their imminent discharge. 

Tr. 367-68. 

41 FMSHRC Page 182
 On June 26, 2017, Scoles filed a section 105(c) complaint with MSHA alleging 

discrimination. Ex. C–17. MSHA issued a letter of negative finding on August 17, and Scoles 

filed his section 105(c)(3) complaint on September 25. Exs. R–L, R–M. 

III. DISPOSITION

Scoles alleges that HCC arbitrarily and discriminatorily enforced its Hand Scanner Policy 

against him to justify his discharge. Complainant’s Post-Hearing Brief (“Comp. Br.”) at 20. 

Scoles argues that, given his longstanding history of engaging in protected activity and of 

conflict with HCC management, he was subjected to strict discipline under the Policy where 

other miners were often granted leniency. Id. In addition, Scoles also contends that his discharge 

under the Policy constitutes illegal interference with the ability of himself and of miners to 

engage in protected activity at the Harrison County Mine. Id. at 36. 

 At the outset, HCC contends that Scoles’ section 105(c)(3) complaint was not timely filed 

and should be dismissed. Respondent’s Post-Hearing Brief (“Resp. Br.”) at 14, n. 10. 

Respondent also challenges whether this Court was Constitutionally appointed under the 

Appointments Clause and thus has the authority to hear this case. Id. at 21. With regards to the 

merits of the case, Respondent denies all charges of discrimination and interference. Id. at 14, 19. 

It contends that Scoles was fired solely based on his repeated failure to comply with HCC’s 

Hand Scanner Policy. Id. 

A. Timeliness of Scoles’ § 105(c)(3) Complaint

HCC contends that Scoles’ complaint should be dismissed as untimely because he failed to

file his complaint within 30 days of receiving MSHA’s non-merit letter. Resp. Br. at 14, n. 10. 

Scoles contends that he timely filed his complaint, and that even if he did not, the alleged nine 

day delay was excusable and was not sufficiently egregious or prejudicial to merit dismissal. 

Complainant’s Reply to Respondent’s Post-Hearing Brief (“Comp. Rep.”) at 18-19. 

 The Secretary is required to inform any miner that files a complaint of discrimination 

pursuant to section 105(c)(2) that he will or will not pursue that complaint before the 

Commission on the miner’s behalf. 30 U.S.C. § 815(c)(3). If the Secretary declines, a 

complainant has the right to file an action on their own behalf with the Commission “within 30 

days’ notice of the Secretary’s determination.” Id. That 30-day window commences when the 

miner receives actual notice of the Secretary’s determination. Boswell v. Nat’l Cement Co., 14 

FMSHRC 253, 257 (Feb. 1992). 

 The Commission has held that the filing periods for section 105(c) discrimination complaints 

are not jurisdictional in nature. Boswell, 14 FMSHRC at 257 (citing Hollis v. Consol. Coal Co., 6 

FMSHRC 21, 24 (Jan. 1984), aff’d mem, 750 F.2d 1093 (D.C. Cir. 1984). Judges determine 

whether a delay in filing should be excused on a case-by-case basis. Morgan v. Arch of Illinois, 

21 FMSHRC 1381, 1386 (Dec. 1999). The Commission has excused delays based on justifiable 

circumstances, including but not limited to “ignorance, mistake, inadvertence, and excusable 

neglect.” Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1921-22 (Nov. 1996) (citations 

omitted). Failure to meet the time limits in sections 105(c)(2) and (3) should not result in 

41 FMSHRC Page 183
dismissal absent a showing of “material legal prejudice.” Sec’y of Labor on behalf of Nantz v. 

Nally & Hamilton Enters., 16 FMSHRC 2208, 2214-15 (Nov. 1994); see also Sec’y of Labor on 

behalf of Hale v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986) (finding prejudice to the 

operator to be the primary consideration in cases involving late filing). 

I find that dismissal of this case for untimely filing is inappropriate. The record is unclear as 

to when Scoles received actual notice of the Secretary’s non-merit finding, but it likely did not 

amount to the entire 9-day period, if untimely at all. MSHA sent the letter to Scoles on August 

17, 2017 and Scoles filed his complaint on September 25, nine days past the prescribed 30-day 

limit. Exs. R–L, R–M; Tr. 143, 145-48. Scoles’ complaint acknowledges that he received the 

notice “on or around” that date, but he could not recall exactly when he received the letter. Tr. 

143, 148. It is unlikely that Scoles received the letter on the same day that it was dated and sent. 

Scoles did not check his mail on a regular daily or weekly basis because he was often traveling 

for work and because his mailbox was located over a thousand yards from his house. Tr. 145, 

161. Given these circumstances, I find it plausible that Scoles did not actually receive the

Secretary’s letter for up to or over nine days after it was sent, and that any delay was inadvertent

or excusable.

 Even assuming that Scoles’ filing was untimely, the delay was de minimis and did not 

prejudice Respondent’s ability to present its case. The 30-day filing window is not jurisdictional 

and does not merit dismissal absent a showing of prejudice. Boswell, 14 FMSHRC at 257 

(accepting filing that was 12 days late where operator showed no evidence of prejudice); Hale, 8 

FMSHRC at 908 (accepting filing that was 2 years late where operator showed no evidence of 

prejudice). Respondent offered no evidence that it was prejudiced by the delay. Accordingly, I 

reject HCC’s contention. 

B. Constitutional Appointments Clause Argument

HCC also argues that the Federal Mine Safety and Health Review Commission’s ALJ

appointment process is invalid pursuant to the Appointments Clause of the United States 

Constitution because the Commission improperly delegated its appointment authority to the 

Chief Administrative Law Judge. Resp. Br. at 21. Further, Respondent contends that the 

Commission’s April 3, 2018 Notice ratifying the appointment of its ALJs does not remedy the 

defect because the process by which the ALJs were presented to the Commission was too limited 

to constitute valid exercise of its appointment power. Id. at 22. 

 To the extent that I have the authority to do so, I reject Respondent’s arguments. The relevant 

case on this matter is the Court of Appeals for the 6th Circuit’s decision in Jones Brothers, Inc. 

v. Secretary of Labor, 898 F.3d 669 (6th Cir. 2018), which applied the Supreme Court’s decision

in Lucia v. Sec. & Ex. Comm., 138 S. Ct. 2044 (2018), to the Administrative Law Judges of the

Federal Mine Safety and Health Review Commission. In Jones Brothers, the Court held that

Commission ALJs were invalidly appointed inferior officers at the time that the ALJ heard the

case. Jones Bros., at 679. The Court acknowledged the Commission’s ratification notice, but

found that the notice did not remedy the Constitutional defect because it was issued after the

Judge heard the case on the merits. Id. at 677-79. The 6th Circuit vacated the decision and

remanded the case to the Commission for fresh proceedings before a different ALJ. Id. at 679.

41 FMSHRC Page 184
 Unlike the circumstances in Jones Brothers, the instant case was heard on October 16-17, 

2018; over six months after the Commission Chairman ratified the appointments of all of its 

Administrative Law Judges. Federal Mine Safety and Health Review Commission, Commission 

Ratification Notice, http://www.fmshrc.gov/about/news/commission-ratification-notice (Apr. 3, 

2018). The case at issue is therefore before a validly appointed ALJ. Nor do I find merit in 

HCC’s argument that the Ratification Notice did not cure the invalid appointment of the 

Commission Judges. Respondent’s argument finds no support in the 6th Circuit’s decision in 

Jones Brothers, the Supreme Court’s decision in Lucia, nor the language of the Appointments 

Clause. In fact, the Court’s decision in Jones Brothers suggests that the Commission validly 

“acted to cure [the] alleged constitutional defect by having every Commissioner ratify the 

appointment of every administrative law judge.” Jones Bros., at 677, 679. The Court also 

remanded the case for fresh proceedings before another ALJ, implying that the Ratification cured 

the defect. Id. at 679. I therefore accept the Commission’s ratification as valid and proceed to the 

merits. 

C. Discrimination

Section 105(c)(1) of the Mine Act provides:

No person shall discharge or in any manner discriminate against or cause to be 

discharged or cause discrimination against or otherwise interfere with the exercise 

of the statutory rights of any miner...because such miner...has filed or made a 

complaint under or related to this Act, including a complaint notifying the 

operator or the operator’s agent...of an alleged danger or safety or health 

violation in a coal or other mine, or because such miner...has instituted or caused 

to be instituted any proceeding under or related to this Act... 

30 U.S.C. § 815(c)(1). The complainant miner bears the initial burden to establish a prima facie

case of discrimination. To establish a prima facie case of discrimination under section 105(c)(1), 

the complainant must prove by a preponderance of the evidence: (1) that he engaged in protected 

activity, and (2) that the adverse action he complains of was at least partially motivated by that 

activity. Turner v. Nat’l cement Co. of Cal., 33 FMSHRC 1059, 1064 (May 2011); Sec’y of 

Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981); 

Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 

1980), rev’d on other grounds, 663 F.2d 1211 (3d Cir. 1981). 

 If a miner establishes a prima facie case, the operator may rebut that case by showing “either 

that no protected activity occurred or that the adverse action was in no part motivated by the 

protected activity.” Turner, 33 FMSHRC at 1064. The operator may also defend affirmatively by 

proving that “it was also motivated by the miner’s unprotected activity and would have taken the 

adverse action for the unprotected activity alone.” Id. 

1. Prima Facie Case

 The Mine Act’s discrimination provisions provide miners with protections against adverse 

action for certain protected activities to encourage and enable miners to play an active role in the 

41 FMSHRC Page 185
enforcement of the Act. A miner engages in protected activity if (1) they “ha[ve] filed or made a 

complaint under or related to this Act, including a complaint...of an alleged danger or safety or 

health violation[;]” (2) they “[are] the subject of medical evaluations and potential transfer under 

a standard published pursuant to section 101[;]” (3) they “ha[ve] 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) they “ha[ve] exercised on behalf of himself or others...any statutory 

right afforded by this Act.” 30 U.S.C. § 815(c)(1). 

It is undisputed that Scoles engaged in multiple forms of protected activity when he worked 

for HCC. First, Scoles made numerous safety complaints to mine management when he believed 

working conditions were unsafe. Tr. 235, 256-57, 275, 277-78, 303-05. Miner witnesses recalled 

specific instances where Scoles made complaints to management including but not limited to 

overheated beltline rollers, inadequate rock dust, excessive float dust, unset parking brakes, and 

malfunctioning scoops and door latches. Tr. 236, 256, 304. Second, Scoles served as a miner 

representative and walkaround during safety inspections two to three times each week in the 

eight months prior to his termination. Tr. 235, 256, 303-04. Third, Scoles filed five section 

105(c) complaints against HCC for alleged retaliation for his safety advocacy. One of those 

complaints proceeded before the Commission and was adjudicated in his favor. See Sec’y of 

Labor on behalf of Scoles v. Harrison County Coal Co., 40 FMSHRC 1393 (Sept. 2018) (ALJ). 

Finally, Scoles was running for two Local Union offices that assign walkarounds and raise 

miners’ safety concerns prior to his discharge. Tr. 87, 237, 260-61, 278, 306. I find that Scoles 

engaged in protected activity as defined by section 105(c)(1). 

 The Commission has defined “adverse action” as “an action of commission or omission by 

the operator subjecting the affected miner to discipline or a detriment in his employment 

relationship. Sec’y on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1930 (Aug. 

2012). The question of whether an employer’s action qualifies as “adverse” is thus decided on a 

case by case basis. Sec’y of Labor ex. rel. Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1848 

n. 2 (Aug. 1984).

There is no dispute that Scoles suffered an adverse action when HCC suspended him with the

intent to discharge him on May 10, 2017 and discharged him on June 17, 2017, following his 

arbitration decision. Exs. R–D, R–F; Tr. 371-72. “Discharge is perhaps the clearest form of 

adverse action prohibited by the plain language of the Mine Act.” Nevada Goldfields, Inc., 20 

FMSHRC 324, 329 (Apr. 1998) (citing section 105(c)(1) of the Mine Act); Hecla-Day Mines 

Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984)). The crux of this case thus falls to whether 

Scoles can demonstrate a causal nexus between his protected activity and HCC’s decision to 

terminate his employment. 

A miner need not provide direct evidence of an operator’s discriminatory motive, but may 

provide “circumstantial evidence...and reasonable inferences drawn therefrom. Turner, 33 

FMSHRC at 1066 (quoting Bradley v. Belva Coal Co., 4 FMSHRC 982, 992 (June 1982)). 

Factors that may support such an inference include the operator’s knowledge of the protected 

activity, evidence of hostility or animus toward the complainant, the temporal relationship 

between the complainant’s protected activity and the operator’s alleged adverse action, and the 

disparate treatment of the complaining miner. Sec’y of Labor on behalf of Chacon v. Phelps 

41 FMSHRC Page 186
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. 

Cir. 1983). I address each factor in turn. 

a. Knowledge of Protected Activity

 HCC does not dispute that it was aware that Scoles engaged in protected activity. That Scoles 

had a mine-wide reputation as a safety advocate and served as a walkaround appeared to be 

common knowledge among miners and management alike. Multiple miners testified to specific 

complaints that Scoles made directly to members of management as well as complaints that 

Scoles made over the mine radio communication system. HCC management was also personally 

involved with Scoles’ past section 105(c) complaints. HCC settled two section 105(c) cases with 

Scoles and went to hearing before a Commission Judge on a third case. 

I find that HCC had knowledge of Scoles’ protected activity. 

b. Animus or Hostility Toward the Protected Activity

 Scoles argues that HCC repeatedly demonstrated hostility and animus toward his protected 

activity. Comp. Br. at 30. He contends that ALJ Andrews previously found that HCC was hostile 

toward Scoles in a prior section 105(c) case and that mine management ignored Scoles’ safety 

complaints made over the dispatch. Id. at 31. More recently, Scoles contends that HCC 

demonstrated animus or hostility when HCC allegedly refused or delayed production of video 

evidence of his missed scans. Id. at 31-32. Finally, Scoles contends that HCC’s introduction at

hearing of Scoles’ disciplinary documents under the mine’s previous ownership constituted 

animus because they serve no basis for his discipline under the current Hand Scanner policy. 

Comp. Br. at 33. 

 Respondent argues that Scoles relies on protected activity and hostility that occurred long 

before his discharge and do not relate to his termination under the Hand Scanner Policy. Resp. 

Br. at 15. It also claims that Scoles or his representative viewed video footage of three scans and 

that Fazio was unable to show Scoles video evidence of the first two missed scans because 

Scoles admitted to missing them, prompting Fazio to delete the tapes. Fazio testified that miners 

were commonly unable to view the video promptly following notification of a violation of the 

Policy, and often were not shown the video until the grievance hearing. Tr. 413-15. 

 Given the history between Scoles and HCC there was ample opportunity for hostility or 

animus against Scoles’ protected activity. The Court sees no reason to discredit Scoles’ past 

interactions with HCC management that could and have been characterized as hostility in 

previous section 105(c) cases. These instances, however, were not shown at hearing to be 

connected to or to have played a role in Fazio and Martin’s administration of the Hand Scanner 

Policy against Scoles. 

 I do not find merit in Scoles’ assertion that HCC acted in a hostile manner when Fazio 

allegedly refused or intentionally delayed the production of video evidence of Scoles’ alleged 

missed scans. At the outset, contrary to Scoles’ testimony, Scoles or a representative on his 

41 FMSHRC Page 187
behalf were able to see video footage of three of his five missed scans. Tr. 359-60, 364, 374, 412, 

416-17. He was thus not categorically denied the ability to see video footage of his missed scans.

Although it is undisputed that Scoles was unable to view video footage of his first two

missed scans, the parties disagree as to whether Scoles actually requested to see video evidence 

or whether he admitted to missing the scans, prompting Fazio to delete the videos. This conflict 

is more relevant to Scoles’ allegation of disparate treatment under the Policy, and I will resolve 

the conflicts in detail in that analysis. Regardless of the testimonial dispute, the Policy does not 

require video footage of a missed scan to sustain a violation, nor does it require that management 

immediately show miners video footage of alleged missed scans. Ex. C–1. I accept Fazio’s 

testimony that the payroll records were sufficient to establish a violation of the Policy. Tr. 346-

47. Furthermore, even assuming that HCC refused to show Scoles video evidence of the first two

scans upon his request, I find no evidence that the refusal was motivated by Scoles’ protected

activity rather than what appears to be confusion over whether Scoles admitted to the scans.

Scoles cannot point to any comments or actions on the part of HCC that indicate hostility or

animus based upon his prior complaints, his role as a walkaround, or the upcoming election.

Scoles’ violations occurred over the course of nearly an entire year. Over that period, none of

HCC’s comments or actions fail to align with the written policy or suggests abuse of the

disciplinary scheme. Ex. C–1.

 I likewise reject Scoles’ contention that HCC demonstrated hostility when it unnecessarily 

delayed showing him or his miner representative the video footage of his other scans. Based on 

the record such a delay is not out of the ordinary in the context of enforcement of the Policy. 

Fazio testified that he generally waited until the grievance to show either the miner or his union 

representative video footage because miners so rarely disputed missed scans. Tr. 347,417, 423. 

He noted that these meetings could convene quite some time after the alleged missed scan 

occurred. Tr. 414. Indeed, Scoles’ filed his grievance challenging his first two missed scans 

nearly three months after he was disciplined for them, and the hearing was held between seven 

and eight months after that discipline. Ex. C–6. Thus, the mine’s failure to immediately show 

Scoles video footage in itself is not inconsistent with the general enforcement of the Policy or 

demonstrative of hostility toward the Complainant. 

 Finally, I reject Scoles’ contention that HCC’s introduction of Exhibit R–U, Scoles’ 

disciplinary history for violating an attendance policy when the Harrison County Mine was under 

previous ownership, constituted animus. Scoles points to Sec’y of Labor on behalf of Harrison v. 

Consolidation Coal. Co., 37 FMSHRC 1497, 1511 (July 2015) (ALJ), to argue that “introducing 

documents concerning the discipline of a miner when those documents should not rightfully have 

played any role in the disciplinary decision in question, is clear evidence of management 

hostility toward the miner and his exercise of Mine Act rights.” Comp. Br. at 33. 

 The above noted temporary reinstatement decision is easily distinguishable from the instant 

case. In Harrison, the ALJ found evidence of animus where Respondent introduced at arbitration 

an old safety slip as evidence of past disciplinary issues despite the terms of a previous 

settlement ordering Respondent to remove the slip from the miner’s file. Harrison, 37 FMSHRC 

at 1511. Here, there was no such express violation of a previous agreement between the two 

parties. Furthermore, HCC did not enter the exhibit as support for its decision to discharge 

41 FMSHRC Page 188
Scoles but to raise credibility questions as to his testimony that he had never failed to scan in or 

out. Tr. 106-110. Introduction of Exhibit R–U was thus relevant to the instant case and did not 

constitute animus. 

 Accordingly, Scoles has not demonstrated that HCC’s administration of the Policy 

constituted animus or hostility or that the alleged animus was in response to his protected activity 

at the mine. 

c. Temporal Relationship between Protected Activity and Adverse Action

Scoles argues that his discharge occurred close in time to his protected activity. Comp. Br. at 

34. He contends that he commonly took part in protected activity and was terminated on the day

of the Local Union elections, in which he was running for two positions. Respondent contends

that the timing supports its defense because Scoles was terminated immediately after HCC

became aware that Scoles reached Step 4 of the Hand Scanner Policy’s disciplinary scale.12

Resp. Br. at 15.

 As discussed above, Scoles consistently engaged in protected activity up until his discharge. 

For the purposes of this decision, I find that a coincidence in time between the protected activity 

and the adverse action exists. 

d. Disparate Treatment

 Scoles contends that he was the subject of disparate treatment under the Hand Scanner Policy 

because he was strictly disciplined for each alleged missed scan whereas other miners were 

granted leniency in similar situations. Comp. Br. at 24. Scoles also argues that he was singled out 

and disciplined for his first missed scan even though he informed his supervisor that the scanner 

malfunctioned. Id. at 28-29. 

 Respondent maintains that it disciplined all miners, including Scoles, strictly in accord with 

the Hand Scanner Policy. Resp. Br. at 17. It contends that neither Scoles nor his comparator 

witnesses could support their claims of disparate treatment under the Policy when scrutinized 

against HCC’s time, payroll, and enforcement records. Id. at 15. 

 As an initial matter, I find that Scoles did in fact fail to scan in or out on the five occasions 

for which he was disciplined. Although Scoles claimed that he did not miss any scans, his 

testimony was inconsistent at the hearing and contradicted his testimony at previous hearings. In 

his testimony before this Court, Scoles’ varied from outright denial that he missed any scans, to 

uncertainty regarding a couple of scans, to an eventual acknowledgment that he missed one scan 

because the kiosk malfunctioned. Tr. 31-32, 60, 63, 66, 92, 94-95, 109, 116. His assertion also

contradicted his arbitration and unemployment compensation testimony, in which he admitted to 

missing all five scans. Exs. R–D, R–F, R–J; Tr. 94, 134-39, 140-41. 

12 Respondent’s argument is fully addressed below in my analysis of its affirmative 

defense. 

41 FMSHRC Page 189
 Scoles’ account was similarly inconsistent regarding the video footage of his missed scans. 

He initially testified that he was only shown video for his final missed scan during his 24/48 hour 

meeting. Tr. 68-69. Although he testified that he could not remember seeing any video footage, 

he later admitted that either he or his representative was shown video evidence for three of the 

missed scans. Tr. 69, 119-20, 198-99, 366, 414. When crossed on these inconsistencies, Scoles 

was unable to produce a satisfactory explanation, and I therefore have grave doubts regarding 

Scoles’ recollection of the facts surrounding the missed scans. See Tr. 134-144. 

 Meanwhile, Fazio provided a credible and consistent account of Scoles’ disciplinary history 

that was supported by documentary evidence. HCC’s time and payroll records and Fazio’s 

disciplinary spreadsheet show that Scoles missed scans on each date alleged. See generally Exs. 

C–19, R–B; Tr. 351-53, 356-57, 358-60, 363-64, 365-67. The record also contains the verbal 

warning record, the written warning,13 both 2-day suspension notices, and the suspension with 

intent to discharge notice, all of which support Fazio’s account. Exs. C–18, R–B, p. 3. 

Furthermore, each of Scoles’ grievances regarding missed scans were subsequently withdrawn or 

disposed of in the mine’s favor. Tr. 198-99, 365, 374-75. The evidence supports that Scoles 

missed all five scans for which he was disciplined.

 Having held that Scoles missed all five scans, I turn to his contention that he was subjected to 

harsher enforcement under the Policy compared to other miners. Scoles does not have a like-tolike comparator because no other HCC miners reached Step 4 of the disciplinary program. 

Rather, Scoles points to various instances in which miners avoided disciplinary action despite 

failing to scan in or out, whereas he was disciplined in strict accordance with the Policy on every 

occasion. 

 I find that Scoles was not treated differently than any other miner under the Policy. First, the 

comparators’ accounts of disparate treatment consistently failed to match the dates in HCC’s 

time and payroll records. Although every comparator expressed absolute certainty regarding the 

dates of unpunished missed scans HCC offered time and pay records that systematically refuted 

each miner’s account. See Exs. R–AA, R–BB, R–CC, R–DD, R–EE, R–FF. Christopher Yanero 

testified that he missed a scan on February 13, 2018, but was not disciplined. Tr. 253. He also 

stated that miners Mark Heldreth and Jason Williams missed scans around the same time but that 

neither were disciplined. Tr. 254. Respondent provided time and pay records demonstrating that 

Yanero did in fact scan out on and around February 13 and that Heldreth and Williams scanned 

out on the days Yanero alleged they did not. Exs. R–V, R–BB, R–CC. 

 Fay Ezelle claimed that he missed scans on February 27 and August 26 of 2018 and was not 

disciplined. Tr. 277. He also testified that he was only disciplined once under the Policy but then 

acknowledged that he had received a verbal warning, written warning, and 2-day suspension for 

13 Although Scoles did not sign the written warning, I find that it was nonetheless 

properly issued. Scoles testified at hearing that he did not sign it because a miner representative 

was not present. Tr. 53. I accept Fazio’s testimony that he did not press the matter because it was 

commonplace for miners to refuse to sign records. This disregard for mine documents is 

supported by Ezelle’s testimony that he threw his Step 2 written warning into the garbage upon 

receipt. Tr. 286.

41 FMSHRC Page 190
missed scans. Tr. 276, 281. When asked about his Step 2 violation, he testified that he threw his 

written warning into the trash upon receipt. Tr. 286. Respondent again provided time sheets 

showing that Ezelle indeed reached Step 3 of the Policy and properly scanned in and out both on 

and around February 27 and on August 28. See Exs. C–19, R–V, R–W, R– X, R–Y; Ex. R–DD. 

David Hollis testified that co-worker Sam Marra missed two scans that were excused by 

management. Tr. 298-99. Respondent’s records again show that Marra was not working in the 

same part of the mine as Hollis during his alleged first missed scan and that Marra had accurately 

scanned on and around the date of the second alleged missed scan. Ex. R–EE. Not one of the 

comparators’ accounts of missed scans could be substantiated by the business or payroll records 

or in any way corroborated. 

 Scoles nonetheless asserts that “the fact that miners could not remember exact dates or 

confused times does not detract from the fact that they testified forthrightly regarding their 

recollections.” Comp. Rep. at 7. The Court acknowledges the miners’ earnest testimony but 

cannot credit any of it for the purposes of establishing disparate treatment in light of HCC’s 

business records clearly showing otherwise. Complainant has not provided any evidence that 

casts doubt on the veracity of those records or that suggests that the testimony of his comparator 

miners is entitled to more weight.14

 Business records aside, the comparators also demonstrated misconceptions as to how the 

scanners worked and how HCC administered the Policy that casts further doubt on the accuracy 

of their testimony. Yanero testified that he believed that he was not disciplined when scanner 

errors occurred because the records showed attempted or failed scans. Tr. 252. Hollis testified 

that he believed that scans could be excused if a supervisor filled out an exculpatory form letter. 

Tr. 300-302. Both of these claims appear to be inaccurate. Fazio testified that neither he nor any 

foremen have access or authority to excuse or alter missed scans. Tr. 372-73, 380, 407-08. 

Indeed, foremen handwrite the adjusted time onto the time sheet when a miner fails to scan in or 

out rather than entering them into the electronic system. Tr. 407-08. 

 I cannot conclude that other miners were disciplined less stringently than Scoles under the 

Policy. The comparator’ accounts either conflict with HCC’s business records or have plausible 

explanations for the discipline administered or lack thereof. In fact, examples of the 

Comparators’ own discipline demonstrates that the Policy was enforced upon them as written. 

The miners were disciplined when they forgot to scan but likewise not disciplined when they 

experienced a scanner error and informed a supervisor. 

 Scoles alleges a specific example of disparate treatment when he was disciplined for missing 

his first scan on May 19, 2016, even though he informed his supervisor that he was unable to 

scan in due to a malfunction. Tr. 32. Scoles testified he immediately informed his supervisor, Jim 

14 Scoles maintains that the Court should credit his comparators’ accounts over HCC’s 

time and pay records because the operator offered no support for its records aside from Fazio’s 

“self-serving testimony.” Comp. Br. at 27. Yet Complainant offers nothing of substance to 

convince the Court that the time and payroll records are invalid. That the time and pay records 

support Fazio’s testimony and refute the comparators’ testimony is not a valid reason to discredit 

them. 

41 FMSHRC Page 191
Coles, who told him he would “take care of it.” Tr. 32. Miner Perry Heflin corroborated Scoles’ 

conversation with Coles but could not recall the exact date it occurred. Tr. 238-39. Scoles noted 

that Fazio later spoke to him regarding the missed scan and told him that he would not be 

punished. Tr. 32-33. Scoles was nonetheless put at Step 1 for missing the scan. Tr. 32-33. 

 Fazio disputed Scoles’ account. He denied telling Scoles that he would not be disciplined and 

did not recall Scoles mentioning any conversation with Coles about the scan. Tr. 354. Rather, 

Fazio testified that Scoles admitted to missing the scan, telling him that “he was a big boy” and 

that “he could take it.” Tr. 351. HCC provided evidence of the verbal warning with written 

acknowledgment that Scoles admitted the miss and accepted the discipline. Ex. R–B, p. 2; Tr. 

349-50. Fazio noted that he did not save the video recording of the first missed scan because 

Scoles admitted that he failed to scan out. Tr. 351-54. 

 I have already found that Scoles missed the scan, and I accept Fazio’s testimony that Scoles 

admitted as much. Fazio’s account is supported by the time and pay records, his spreadsheet, and 

the notes recorded on the verbal warning record. Ex. R–B p. 5, C–19; Tr. 354, 357. His account 

explains why Fazio did not save the video footage and was unable to show Phillippi the video 

months later during Scoles’ grievance meeting. 

 Scoles argues that he reported a malfunction and that Fazio informed him he would not be 

disciplined for the missed scan. I do not credit this contention. As noted above, I found Scoles’ 

testimony to be severely inconsistent and seriously question his recollection of the events 

surrounding each of his five missed scans. With regard to the May 19 scan at issue, Scoles 

wavered between outright denying that he missed the scan and acknowledging that he did not 

scan in because the scanner malfunctioned, in both cases claiming that Fazio told him he would 

not be disciplined. Tr. 31-32, 92-95, 109, 116. Nonetheless, Scoles testified that he demanded to 

see the video and was refused. Neither of these sequences of events explained why Scoles would 

demand to see the video if he admitted to missing the scan, acknowledged that he missed the 

scan due to a kiosk malfunction, or was told that he would not be disciplined. 

 Scoles points to his and Heflin’s testimony that Scoles spoke with his supervisor about the 

scanner malfunction to argue that he was improperly disciplined for immediately reporting the 

issue. Heflin’s testimony corroborated Scoles’ account but did not provide sufficient detail to 

confirm that it pertained to the May 19 scan, or what exactly Coles meant when he said he would 

take care of the scanner malfunction. Tr. 238-239. Assuming Scoles experienced a scanning 

issue and that the conversation with Coles occurred on May 19, I find that Coles likely “took 

care” of the payroll aspect of the scanner issue but could not address the disciplinary side of the 

missed scan. This explanation reconciles Coles’ statement with Fazio’s testimony that front-line 

foreman and supervisors do not have the authority to excuse missed scans, only to annotate and 

validate time to ensure miners are paid according to hours work. Indeed, Scoles’ time and pay for 

that date is handwritten and apparently initialed by Coles. Ex. R–B, p. 3. This finding also 

explains why Fazio had no recollection of speaking with Coles about the matter, as Fazio is not 

involved with the payroll side of the Policy. 

 However, even accepting Scoles sequence of events, it does not necessarily follow that he did 

not miss the scan in violation of the Policy. Although multiple miners testified that they were not 

41 FMSHRC Page 192
disciplined when they immediately informed a supervisor that they were unable to scan in or out, 

none claimed that they were simply excused as Scoles believed to be. Tr. 239-40, 254, 276, 297. 

Rather, most of the miner witnesses explained that their supervisors instructed them to return to 

the kiosk and continue trying to scan in or out until it was finally accepted. Tr. 240, 272, 311. In 

situations where miners informed supervisors that personally came to address the machine issue, 

the miners recalled attempting to scan in again after they reported the issue. Tr. 240, 272. Thus, I 

find it plausible that Scoles could have reported the issue and still missed the scan in violation of 

the Policy by not attempting to rescan. 

 In sum, I do not find that Scoles was treated differently than other miners when he was 

disciplined for missing the May 19 scan. Scoles’ testimony was inconsistent and did not fully 

match his alleged sequence of events, while HCC provided business and disciplinary records 

consistent with Fazio’s recollection of the missed scan, including the verbal warning that noted 

Scoles’ acceptance of the discipline. Ex. R–B, p. 2; Tr. 351, 354. I therefore find that Scoles 

admitted to missing the May 19 scan and accepted the Step 1 discipline for it. Hence, his 

treatment was consistent with that of other miners that missed scans in accordance to the Policy. 

Accordingly, I find that Complainant was not subject to disparate treatment under the Policy. 

e. Conclusion

 In light of the above, I conclude that Complainant did not establish a prima facie case of 

discrimination. The Complainant was unable to establish a nexus between his protected activity 

and his discharge under the Policy. Although HCC knew of Scoles’ reputation as a safety 

advocate and had come into conflict with Scoles before regarding these matters, Scoles did not 

sufficiently show that HCC discharged him because of his protected activity. Most conclusively, 

Scoles was unable to establish that he was treated any differently than other miners for violating 

the Hand Scanner Policy. Scoles’ own testimony regarding his scanning history lacked any 

semblance of credibility, and his comparators were unable to show examples of disparate 

treatment under the Policy. On the other hand, HCC provided business records supported by Mr. 

Fazio’s credible testimony that showed a detailed and consistent enforcement of the policy. 

Accordingly, I find that Scoles failed to establish a prima facie case of discrimination.

2. Affirmative Defense

 An operator may establish an affirmative defense by proving that the adverse action was 

motivated by unprotected activity and that the operator would have taken said action based solely 

on the unprotected activity. Pasula at 2799-2800. In reviewing the defense, the judge should 

determine whether it 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 

show that the alleged non-discriminatory reason is 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).

41 FMSHRC Page 193
Respondent contends that Scoles was terminated in accordance with the Mine’s Hand 

Scanner Policy and would have been terminated for that reason alone. Resp. Br. at 16. Scoles 

was disciplined upon each violation and was terminated immediately once HCC management 

discovered that he reached Step 4. Id. HCC argues that it has a legitimate and important business 

interest in accurately maintaining the time and payroll records for its workforce. Id. Thus, 

Scoles’ discharge was consistent with the Policy and solely determined by his repeated failure to 

scan in and out. Id. 

 Scoles maintains that HCC used the Hand Scanner policy as pretext for his discharge. Comp. 

Rep. at 11. Scoles points to the other miners’ testimony to argue that HCC enforced the Policy in 

an inconsistent and lenient manner and thus did not discharge Scoles solely for his failure to scan 

in and out. Id. Furthermore, Scoles argues that HCC inflated its purported business interest in 

maintaining accurate payroll records because the mine regularly used an alternative means of 

tracking time that was more reliable than the hand scanners. Id. at 12-13. 

 Assuming arguendo that Complainant established his prima facie case, I find that HCC 

established a valid affirmative defense. Scoles reached Step 4 of the Hand Scanner Policy due to 

his multiple failures to scan in and out over the course of a year. The designated punishment at 

Step 4 is suspension with the intent to discharge, and HCC immediately disciplined Scoles 

accordingly when he reached that step. The Hand Scanner Policy’s language is singularly 

directed toward enforcing consistent compliance with HCC’s time and attendance system and 

clearly outlines the repercussions for repeated failure to do so. Ex. C–1. Although they may not 

have agreed with the Policy itself, Scoles and the other miners were aware that failing to scan in 

or out constituted a violation and testified to their personal experiences with the progressive 

discipline scheme. 

 Fazio’s testimony lends credibility to HCC’s proffered reason for discharging Scoles. He 

described his interactions with Scoles at each disciplinary step and his process for administering 

the Policy throughout the mine in detail. His disciplinary spreadsheet and the mine’s time and 

payroll records indicate that Fazio meticulously tracked missed scans and disciplined culpable 

miners in accordance with their status on the progressive discipline scheme. Ex. C–19. His 

testimony did not indicate that his disciplinary interactions with Scoles differed from those with 

other miners, were out of step with the Policy, or were motivated by factors other than Scoles’ 

failure to scan in our out. Furthermore, his testimony and HCC’s time and pay records 

systematically and consistently refuted the testimony of Scoles and his comparators’ regarding 

inconsistent enforcement of the Policy. As discussed in detail above, none of the miners’ 

testimony was sufficiently credible to cast doubt on the veracity of HCC’s records or that HCC’s 

implementation of the policy was implausible or out of line with normal business practices. 

 Complainant argues that HCC overstated its business interest in enforcing the Hand Scanner 

Policy because front-line foreman and supervisors regularly enter the time and pay accurately 

and without malfunction whenever miners missed a scan. Comp. Br. at 12-13. I reject this 

argument. The mere existence of a reliable backup system does not lessen HCC’s business 

interest in ensuring accurate time and pay for its workforce or the legitimacy of the Hand 

Scanner Policy as a means to do so. Mines have a clear business interest in ensuring its 

employees are paid correctly, consistently, and without dispute. They thus have a clear interest in 

41 FMSHRC Page 194
ensuring that miners use the system put in place. Computerizing those calculations serves to 

provide an objective means of doing so and eliminate suspicion that mine management may 

abuse their power in making those calculations themselves. Supervisors are only authorized to 

adjust time and pay when miners fail to use the Hand Scanners, and they must do so by hand on 

the time sheet. It is therefore clear that HCC implemented the Hand Scanner Policy and system 

to minimize supervisors’ involvement in calculating time and insulate the electronic system from 

their control. The Court finds this interest both reasonable and plausible. 

 I find that HCC’s offered business justification was not pretextual. The Hand Scanners are a 

plausible means to accurately calculate time and pay of all 315 miners working at the Harrison 

County Mine and to hold miners accountable for scanning in and out. The system is designed to 

avoid disputes between employees and management regarding pay by using an objective 

electronic timekeeping system. It cannot be effective, however, unless miners regularly scan in 

and out, and the Policy is unequivocally intended to ensure that they do so. HCC’s desire to 

implement a disciplinary scheme that effectively deters miners from failing to scan in and out is 

therefore reasonable. Scoles reached Step 4 of the Policy’s progressive discipline scheme when 

he failed to scan in or out on five different occasions without being exonerated more than one 

time. While discharge was the harshest measure available, it was clearly outlined within the 

Policy, and the Court declines to substitute its view of what may be good business practice for 

that of the operator with an opinion as to whether the adverse action was “just” or “wise.” Sec’y 

of Labor on behalf of Silva v. Aggregate Indus. WRC, Inc., 40 FMSHRC 552, 572 (Apr. 2018) 

(ALJ) (citing Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2517 (Nov. 1981). 

D. Interference

Scoles also contends that HCC’s “action of disciplining Scoles to the point of discharge

under the [Hand Scanner] Policy, while declining to discipline other similarly-situated miners 

each time management alleged them to have committed the exact same violation, is not only 

inherently likely to interfere with Scoles’ exercise of Mine Act rights; it is completely destructive 

of that exercise, inasmuch as it ended his employment at the Mine.” Id. at 37. Complainant also 

contends HCC’s decision to terminate him interferes with the rights of other miners because it 

will chill their desire to make safety complaints at the mine. Id. Complainant urges the Court to 

adopt the Franks test, which finds an interference violation when: 

(1) a person’s action can be reasonably viewed, from the perspective of members

of the protected class and under the totality of the circumstances, as tending to

interfere with the exercise of protected rights, and

(2) the person fails to justify the action with a legitimate and substantial reason

whose importance outweighs the harm caused to the exercise of protected rights.

UMWA on behalf of Franks v. Emerald Coal Res., LP, 36 FMSHRC 2088, 2108 (Aug. 2014). 

HCC disagrees and contends that Scoles’ discharge should not be analyzed under an 

interference framework. Resp. Br. at 20. Respondent argues that doing so would “create a 

41 FMSHRC Page 195
‘perverse’ incentive for miner complainants to plead interference claims in lieu of or in addition 

to discrimination claims to avoid the more rigorous Pasula/Robinette framework.” Id.; see also 

Sec’y of Labor on behalf of Pepin v. Empire Iron Mining P’ship, 38 FMSHRC 1435, 1453 (June 

2016) (ALJ). If the Court does consider Scoles’ claim, HCC urges the adoption of an 

interference test for facially neutral company policies as outlined in Feagins v. Decker Coal Co., 

23 FMSHRC 47, 50 (2001) (ALJ) (holding that to constitute illegal interference a facially neutral 

policy must (1) overtly impose negative consequences to a person for the exercise of a Mine Act 

Right or (2) damage or deny rights assured under the Act even if there is no overt causal 

connection between the damage suffered and the exercise of the protected right). Resp. Br. at 19. 

Should the Court apply the Franks test to Scoles’ claim, however, HCC argues that its decision 

to discharge Scoles cannot be reasonably viewed as tending to interfere with Mine Act rights, 

and was nonetheless justified by its legitimate interest in accurately tracking time and payroll 

that outweighs any harm caused to the exercise of said rights. Id. at 20-21. 

Unlike discrimination cases, the Commission has accepted interference claims where a miner 

complainant did not actually engage in protected activity or where the conduct complained of 

was verbal harassment rather than an adverse employment action. See Sec’y of Labor on behalf 

of Gray v. N. Star Mining, Inc., 27 FMSHRC 1, 8 (Jan. 2005); Moses v. Whitley Dev. Corp., 4 

FMSHRC 1475 (Aug. 1982), aff’d 770 F.2d 168 (6th Cir. 1985). In these cases, the Commission 

focuses not on the employer’s motive but on whether the conduct would “chill the exercise of 

protected rights,” either by the directly affected miner or by others at the mine. Gray, 27 

FMSHRC at 8; Moses, 4 FMSHRC at 1478-79. 

 A majority of the Commission has not endorsed a single analytical framework to apply when 

determining whether an operator interfered with the exercise of protected rights under section 

105(c). Sec’y of Labor on behalf of Greathouse, et al. v. Monongalia County Coal Co. et al., 40 

FMSHRC 679, 680 (June 2018). Two Commissioners in Greathouse and multiple 

Administrative Law Judges have applied the Franks test. The remaining two Commissioners 

held that the Complainant must also demonstrate that the alleged interference was motivated by 

animus to the exercise of protected rights. See Greathouse, 40 FMSHRC at 708. At this time, no 

Commissioner has explicitly endorsed Respondent’s proposed interference test for faciallyneutral policies as put forth in Feagins, while at least one Commission Judge has found that test 

to be out of line with Commission’s current case law on interference. See Sec’y of Labor on 

behalf of Greathouse, 39 FMSHRC 941, 948 (May 2016) (ALJ) (holding that Commission 

precedent has de-emphasized proof of a miner’s attempted exercise of a protected right and not 

required a showing of intent to interfere). 

At the outset, the Court has grave reservations in accepting Complainant’s alternative 

argument of interference and in applying the Franks test to a case that so obviously implicates 

protected activity and an adverse employment action. Cf. Gray, 27 FMSHRC at 8. To expand the 

use of interference claims to clear adverse actions such as discharge would allow complainants to 

sidestep the elements required to prove a prima facie case of discrimination under section 105(c). 

Pepin, 38 FMSHRC at 1452-53. In a case such as this one, where protected activity and adverse 

action are clearly present and where discriminatory motive has not been found, permitting an 

alternative pleading of interference runs the risk of rendering the Pasula/Robinette superfluous. 

If, upon failing to prove up its prima facie case of discrimination, a complainant may then resort 

41 FMSHRC Page 196
to a claim of interference, there is little stopping a Complainant from avoiding Pasula/Robinette

analysis altogether by alleging interference to prove its claim under the less stringent Franks test. 

See 38 FMSHRC at 1452-53. 

Moreover, accepting the notion that a miner’s discharge interferes with that miner’s ability to 

exercise protected activity would excise the burden of proof under the first prong of the Franks

test. That a miner’s discharge interferes with his or her own ability to engage in protected 

activity is a tautology. To hold that HCC’s decision to discharge Scoles pursuant to the Hand 

Scanner Policy interfered with his rights would obfuscate the intended purpose of “interference” 

under the Act and open the door for any and every miner to challenge the mere fact of their 

termination with or without a demonstrated impact on protected activity. This could not have 

been Congress’ intent when it identified two causes of action under section 105(c): “not only the 

common forms of discrimination, such as discharge, suspension, [and] demotion..., but also

against the more subtle forms of interference, such as promises of benefit or threats of reprisal.” 

Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1479 (Aug. 1982) (citing S. Rep. 95-191, 95th 

Cong., 1st Sess. 36 (1977) [“S. Rep.”], reprinted in Senate Subcommittee on Labor, Committee 

on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 624 (1978)); see also Pepin, 38 FMSHRC at 1452-53 (emphasis added). 

Regardless, the Court need not dwell upon whether multiple tests are necessary for factually 

different interference claims or endorse a specific interference framework because Scoles’ claim 

does not satisfy the Franks test, so far the least stringent interference test endorsed by the 

Commission. 

1. Whether HCC’s decision to discharge Scoles pursuant to the Policy can be

reasonably viewed as tending to interfere with the exercise of protected rights.

The Hand Scanner Policy implemented a four-step progressive discipline system for each 

instance where a miner failed to use the hand scanner to start or end their shift. Ex. C–1. HCC 

discharged Scoles after his fifth missed scan in slightly less than a year. He was moved back one 

step in accordance with the policy after scanning in and out for 180 consecutive days during that 

period. 

 When compared to other programs or plans found to interfere with miner’s protected rights, 

HCC’s Hand Scanner Policy does not implicate the exercise of protected rights under the Act. In 

other cases, the policies at issue either directly chilled a miner’s exercise of rights or provided an 

incentive for miner’s not to exercise those rights. See, e.g., Greathouse, 40 FMSHRC 679 (June 

2018) (addressing bonus plan that awarded miners for production and thus discouraged safety 

complaints); Sec’y of Labor on Behalf of Thomas McGary et. al. v. The Marshall County Coal 

Co. et. al., 37 FMSHRC 2597 (Nov. 2015) (ALJ) (policy requiring miners to report safety 

complaints to management before making the complaints to MSHA interfered with miners right 

to make anonymous complaints). Unlike those cases, the Hand Scanner Policy itself does not 

create any disincentive to refrain from engaging in protected activity. Miners cannot be 

disciplined for engaging in protected activity under the Policy and are not deterred from doing so 

based on any implication of the Policy’s language. See Ex. C–1. A miner cannot be discharged 

41 FMSHRC Page 197
under the Policy for anything other than repeatedly failing to scan in or out. In short, if a miner 

simply scans in and out every day, the Policy will not impact them or their actions whatsoever. 

 When considering the totality of the circumstances surrounding Scoles’ discharge, however, I 

find that miners may reasonably view HCC’s decision to discharge him in close proximity to his 

election to the Union Safety Committee as tending to chill the exercise of protected rights. Hollis 

testified that he warned Scoles not to run for the Union positions and refused to vote for him for 

fear of adversely impacting his employment at the mine. Tr. 306-307. Given Scoles’ reputation 

for safety advocacy, his pending candidacy for two Local Union positions, and his past conflicts 

with HCC management, miners could conceivably view HCC’s decision to discharge Scoles 

under the Policy as a statement discouraging miners’ exercise of protected activity for fear of 

being subject to stricter enforcement of the Policy. 

 For the purposes of this decision, I find that Scoles’ discharge satisfies step 1 of the Franks

test. 

2. Whether HCC’s decision to discharge of Scoles’ pursuant to the Hand Scanner

Policy outweighs the harm caused to the exercise of protected rights.

The second prong of the Franks test turns to whether the operator had a “legitimate and 

substantial” reason for the action “whose importance outweighs the harm caused to the exercise 

of protected rights.” Greathouse, 40 FMSHRC 679, 702 (June 2018) (citations omitted). An 

operator’s substantial business justification is most persuasive when it is narrowly tailored to 

promote the justification and the operator’s interest is important and the impact on employee 

rights is minimal. See Franks, 36 FMSHRC 2088, 2118 (Aug. 2014); Greathouse, 38 FMSHRC 

941, 954 (May 2016) (ALJ) (citations omitted). 

Scoles contends that HCC cannot offer a legitimate and substantial reason for discharging 

him under the policy that outweighs its interference with miners’ rights because it took the most 

severe action possible in discharging him.15 Comp. Br. at 39. HCC contends that it has a 

legitimate and substantial interest in ensuring accurate timekeeping and the payment of correct 

wages to its employees and ensuring that miners consistently scan in and out. Resp. Br. at 21. It 

notes that the Hand Scanner Policy is narrowly tailored to minimally affect employees’ rights by 

focusing solely on whether miners properly scan in and out of their shifts. Id. 

 I find that HCC’s interest in enforcing the Policy outweighs the minimal and attenuated 

impact upon miners’ exercise of their protected rights. The mine is large and must track the time 

and pay of 315 miners. It uses the hand scanners to quickly and effectively do so. Tr. 335-37. 

The system does not operate as effectively or efficiently as intended if miners do not use the 

scanners. The progressive discipline scheme is in place to ensure compliance. Scoles’ 

15 Scoles contends that because HCC’s enforcement of the Hand Scanner Policy was 

pretextual in that it treated Scoles differently than other miners, it is unnecessary to balance that 

purported reason against the resulting interference with miners’ rights. Comp. Br. at 39. Since I 

have already found that HCC’s enforcement of the policy was not pretextual, I need not address 

this argument or its implications for interference claims in general. 

41 FMSHRC Page 198
termination was in accordance with the established Policy, and HCC had a legitimate and 

substantial interest in enforcing the Policy so that miners consistently use the hand scanners to 

track their hours. 

 In contrast, Scoles’ discharge under the Hand Scanner Policy caused minimal and attenuated 

harm to other miners’ exercise of protected rights because he was solely responsible for 

remembering to scan in and out at the end of his shifts, especially as he progressed further along 

the disciplinary scheme. Scoles offers no evidence that he felt the Policy deterred him from 

exercising his rights or any evidence that the Policy was implemented as a threat against his 

exercise of those rights. Rather, Scoles demonstrated a flippancy toward the Policy, calling it “a 

joke,” “piddly,” and “heinous” during his deposition and reiterating that belief at hearing. Tr. 95-

99. Any harm that HCC’s decision to discharge Scoles may have caused to miners’ exercise of

protected rights is tempered by Scoles’ failure to adhere to the Policy. While a reasonable miner

may conceivably view HCC’s decision to discharge Scoles as a warning not to engage in

protected activity, I find it much more likely that a reasonable miner would view Scoles’

discharge as a warning to remember to scan in and out each day.

 Contrary to Scoles’ claim, HCC’s decision to discharge him was narrowly tailored to 

promote compliance with the Hand Scanner Policy. Although Complainant correctly 

characterizes HCC’s decision to discharge him pursuant to the Policy as the most severe action 

possible, discharge for repeated failure to scan in and out is clearly stated in the Policy, and the 

Court will not impart judgment on the “fairness, reasonableness, or wisdom of an operator’s 

employment policies except insofar as those policies may conflict with rights granted under 

section 105(c) of the Act.” Sec’y of Labor on behalf of Beckman v. Mettiki Coal (WV), LLC, 33 

FMSHRC 258, 274 (Jan. 2010) (ALJ) (citing Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 

2544 (Dec. 1990)). Here, the Policy does not directly or indirectly implicate miners’ abilities to 

exercise their rights under the Act, and the act of scanning in or out does not impose any burdens 

on miners that might obstruct or deter them from making complaints. The Policy clearly notes 

that a miner will be suspended with the intent to discharge upon reaching Step 4 of the Policy. A 

miner can only reach Step 4 by failing to consistently scan in or out, and HCC discharged Scoles 

for this reason. 

 I therefore find that HCC’s interest in ensuring that miners consistently use the hand scanners 

to track time outweighs the harm that Scoles’ discharge caused to the exercise of protected rights 

at Harrison County Mine. Inconsistent or lenient enforcement of the Policy compromises its 

purpose of ensuring consistent, mine-wide use of the Hand Scanner system. Scoles continuously 

violated the Policy and was disciplined accordingly to deter him from doing so in the future. 

41 FMSHRC Page 199
 I find that Scoles’ discharge pursuant to the Hand Scanner Policy did not unlawfully interfere 

with miners’ exercise of protected rights pursuant to section 105(c) of the Mine Act. 

IV. ORDER

 Accordingly, the complaint brought by George Scoles is DENIED and this proceeding is 

DISMISSED. 

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (Certified First Class U.S. Mail) 

Laura P. Karr, Timothy J. Baker, United Mine Workers of America, 18354 Quantico Gateway 

Drive, Suite 200, Triangle, Virginia, 22172 

Thomas A. Smock, Philip K. Kontul, & Cory E. Ridenour, Ogletree, Deakins, Nash, Smoak & 

Stewart, P.C., 1 PPG Place, Suite 1900, Pittsburgh, Pennsylvania 15222 

41 FMSHRC Page 200
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVE., N.W., SUITE 520N 

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

April 16, 2019 

DECISION AND ORDER

Appearances: M. del Pilar Castillo, Esq., Office of the Solicitor, United States

Department of Labor, Philadelphia, Pennsylvania, for the Petitioner,

David M. Toolan, Esq., CRH Americas, Inc., Atlanta, Georgia, for the 

Respondent. 

Before: Judge Rae 

This case is before me upon a petition for assessment of civil penalties filed by the 

Secretary of Labor (“the Secretary”) pursuant to § 105(d) of the Federal Mine Safety and Health 

Act of 1977, as amended (“the Mine Act” or the “Act”), 30 U.S.C. § 815(d). At issue are three 

section 104(a) and two section 104(d) citations issued to Pennsy Supply, Inc. (“Pennsy”) as a 

result of an inspection conducted by an authorized representative for the Department of Labor’s 

Mine Safety and Health Administration (MSHA). 

A hearing was held in Dover, Delaware, at which time testimony was taken and 

documentary evidence submitted. The parties also filed post-hearing briefs. I have reviewed all 

of the evidence and have cited to the testimony, exhibits, and arguments I found critical to my 

analysis and ruling herein without including a detailed summary of the testimony given by each 

witness. 

After considering the evidence, and observing the witnesses and assessing their 

credibility, for the reasons set forth below, I vacate all five citations. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

PENNSY SUPPLY, INC., 

 Respondent. 

CIVIL PENALTY PROCEEDINGS 

Docket No. YORK 2018-0004 

A.C. No. 07-00059-449176

Mine: Bay Road Plant #7 

41 FMSHRC Page 201
I. STIPULATIONS

The parties have entered into the following stipulations:

1. The Respondent was an “operator” as defined in § 3(d) of the Mine Act, 30

U.S.C. § 803(d), at the mine at which the citations at issue in this proceeding were issued. 

2. Operations of Respondent at the mine at which the citations were issued are

subject to the jurisdiction of the Mine Act. 

3. This proceeding is subject to the jurisdiction of the Federal Mine Safety and

Health Review Commission. 

4. The individual whose name appears in Block 22 of the Citations was acting in her

official capacity and as an authorized representative of the Secretary of Labor when the citations 

were issued. 

5. The proposed penalty for the citations at issue in this proceeding will not affect

the Respondent's ability to continue in business. 

6. The citations contained in Exhibit “A” attached to the Secretary’s Petition is an

authentic copy with all appropriate modifications or abatements, if any. 

Joint Ex. 1.1

II. FACTUAL BACKGROUND

Bay Road Plant #7, operated by Pennsy, is a small construction sand and gravel plant

located near Dover, Delaware. Tr. 14-15. This case had its origins in a complaint filed by a 

former Pennsy employee, Steven Horn, with the Occupational Safety and Health Administration 

(OSHA). Tr. 76. Horn started working for Pennsy sometime in 2016 (the record is unclear as to 

exactly when) as a plant operator assigned to separate rock and sand into piles of various grades. 

Tr. 71-72. Horn testified that in his complaint to OSHA (which is not in the record), he alleged 

that he had been exposed to dangerous levels of lead during a winter maintenance task performed 

at the plant in mid-February 2017. Tr. 77. OSHA conducted a preliminary investigation but 

determined it lacked jurisdiction over Pennsy. OSHA referred the complaint to MSHA, which 

assigned an inspector, Michele Santos-Cranford, to investigate it. Tr. 138. Santos-Cranford, who 

had been employed at MSHA for nine years and had mining experience dating to 1986, 

interviewed Horn and, on July 11, 2017, inspected the plant premises. 

The task which Horn alleged exposed him to lead poisoning was winter maintenance of a 

sand screw. See Ex. R-1 (a photograph of a sand screw, though not the one on which 

maintenance was being performed in February 2017). This involved the removal of shoes held 

onto the screw by bolts, nuts, and washers. Daniel Washburn, a former Pennsy employee who 

1

 In this decision, the abbreviation “Tr.” refers to the transcript of the hearing. The 

Secretary’s exhibits are numbered Ex. S-1 through S-18, Respondent’s Ex. R-1 through R-7. 

41 FMSHRC Page 202
testified at the hearing, was the lead man in charge of this winter maintenance. Tr. 14. Washburn 

testified that he removed the shoes, which were secured by two bolts, by grinding through one 

half of each bolt using a grinder with a cutting wheel. Once the bolts were cut in half, Washburn 

would strike the bolt with a hammer thereby removing the bolt from the shoe. Tr. 18, 21. 

Washburn stated he had previously performed this task two or three times a year. Typically, he 

stated, this task entailed removal of 20 to 30 shoes. On this particular occasion, however, all the 

shoes were being removed and ones in good condition were being set aside for use on a new sand 

screw. This meant that an unusually large number of shoes had to be removed. According to 

Washburn, “well over 100 [shoes] on each side” were removed; Horn stated that “400 to maybe 

450 bolts” were removed. Tr. 18, 108. Both Washburn and Horn removed the shoes individually, 

then handed them to a third employee, Jeff Darling (who did not testify at the hearing), who 

would sort them according to whether they could be reused or should be disposed of. Tr. 21. 

Horn testified he had told Washburn about his prior welding and burning experience, and 

that Washburn told him, “Steve, if you can help us, we are going to be burning these bolts 

off....” Tr. 79. Horn stated he had never done this particular task at Pennsy. Tr. 88. Rather than 

grinding the bolts as Washburn had done in the past and was doing then, Horn opted to use an 

alternative approach to the task: burning the back end of the bolt, where there was a nut and 

washer that held the shoe in place, with an acetylene torch. As the metal started to melt from the 

flame, he would cut close to the back of the bolt so it could fall away from the shoe, thereby 

releasing the shoe from the sand screw. Tr. 85-86. Horn testified he switched to using a torch 

because it was “the most feasible and quickest way” to remove his the bolts securing the shoes to 

the sand screw. Tr. 108. Washburn testified that his supervisor, Jay Clendaniel, stated Horn’s 

torch method took too long, and Clendaniel suggested Horn use the grinder as Washburn was 

doing. Tr. 42. Clendaniel was not called to testify at the hearing. 

Both Horn and Washburn testified that shortly after they began their work on the sand 

screw, Horn voiced concerns about what he believed to be lead washers behind the bolts they 

were removing. Tr. 29, 87. Washburn stated he observed Horn’s burning with the torch produced 

“a real white smoke” that had a foul odor. Tr. 28. Horn stated the smoke was “normal for that 

type of work.” Tr. 87. He stated the washers burned and melted into a gray liquid, which 

splashed onto the floor and produced “a little bit of black smoke,” though he did not mention any 

odor. Tr. 87. Horn subsequently told Washburn that there were lead washers in between the nuts 

and bolts, and asked whether they should be concerned. Tr. 88. Washburn testified that Horn also 

asked whether they needed additional personal protective equipment (“PPE”). Tr. 30. Washburn 

testified he called Clendaniel to relay Horn’s concerns, and to suggest that additional breathing 

protection was necessary. According to Washburn, Clendaniel said no additional PPE was 

required because the work was being done outside in breezy conditions. Tr. 30. Washburn 

claimed he called Clendaniel again later that day, and that Clendaniel suggested they wear paper 

respiratory masks. Tr. 31. Though both men apparently attempted to use paper masks, Washburn 

testified that “they kept steaming up our safety glasses,” and they stopped using them. Tr. 32. 

Horn contradicted Washburn’s claim that he contacted Clendaniel at all. Horn testified 

that Washburn told him, “We do this all the time, and nobody ever got sick from it.” Tr. 77. 

Thereafter, according to Horn, the men “just continued with the job until completion.” Tr. 88-89. 

Horn also testified that he worked with Washburn every hour during the winter maintenance 

41 FMSHRC Page 203
work but never saw Washburn call Clendaniel. Tr. 109, 124-25. Jeff Dawson, the mine’s General 

Manager and Clendaniel’s immediate supervisor, testified that “[a]fter the [MSHA] investigation 

started ... I asked if [Clendaniel] has been notified by anyone about any hazards associated with 

lead on this job. He said he had not been notified by anyone.” Tr. 266. On this issue, upon 

observing his demeanor, I found Dawson’s testimony particularly credible. 

Notably, Washburn did not testify that he relayed to Clendaniel Horn’s specific concerns 

about the presence of lead despite his testimony that “I know from past experience, there was 

lead, definitely lead washers in that.” Tr. 24. He stated he knew this because he had helped 

install the shoes in the past, and had been responsible for ordering replacement washers. Tr. 25, 

48. He claimed that, when new replacement washers were installed, “everyone over the years”

would ask why lead washers were being used. Tr. 26. However, despite this testimony,

Washburn admitted he never raised the issue in regular safety training, did not report any

concerns to a confidential mine safety hotline, and never discussed the use of lead washers with

mine management. Tr. 41. On this point, Washburn further contradicted himself, testifying that,

before this particular task in winter 2017, no one had ever before voiced any concerns about lead

washers: “Until this came about, we didn’t realize there was an issue, because over the years no

one ever said anything [about] it.” Tr. 60.

Inspector Santos-Cranford’s inspection notes indicate that Clendaniel informed her that 

he did not know that lead washers were being used in the sand screw, and that he told Horn to 

stop using the torch because it was generating too much smoke. Ex. S-14 at MSHA047 and 

MSHA049. She also noted that Dawson told her he did not know lead washers were being used 

in the sand screw, and that he looked in the sand screw manual to see whether lead washers were 

listed as a component and found no such indication. Ex. S-14 at MSHA045. 

Horn and Washburn disagreed on whether Clendaniel visited site where they were 

performing the winter maintenance. Washburn first testified that Clendaniel never came by the 

task site. Tr. 31. But he then testified that Clendaniel suggested Horn switch from using the 

torch, which he believed was taking too long, to the grinder. Tr. 42. Horn, on the other hand, 

testified that Clendaniel “always came by because he was following progress in two yards,” and 

would have observed him using the torch. “Once he seen we were working, everyone was 

moving forward, he would go to the other yard and check progress over there.” Tr. 89. Horn also 

testified, however, that the reason Clendaniel came through was because MSHA was onsite but 

that they stayed stayed away because work was being done. He then stated that he had “no idea” 

MSHA was onsite and only heard about it later. Tr. 120. 

Horn testified he was offered a position with a car battery manufacturer on Friday, March 

31, 2017 at 3:00 PM. He immediately told Washburn that he was leaving Pennsy “as of this 

moment.” Tr. 72. As part of his pre-employment screening for the new employer, Horn’s blood 

lead level was tested. Horn was scheduled to complete paperwork at the new employer on 

Monday, April 3, 2017, and begin work the following Thursday. Tr. 73. However, on the way to 

sign the paperwork, the new employer called him and told him that he had a high blood lead 

level, and that on account of that, it had to revoke its employment offer. Battery manufacturing 

involves exposure to lead. Tr. 74. Horn called Pennsy’s human resources department soon 

thereafter and spoke with a representative named Jeff Brown. He asked, “based on leaving my 

41 FMSHRC Page 204
job on Friday at three in the afternoon, that it [is] now one o’clock Monday, what were the 

opportunities, possibilities of getting my job back[?]” Tr. 74. Horn stated that Brown responded, 

“no, we have decided to move forward. That is not going to happen.” Tr. 74. Horn then asked 

about whether he could receive worker’s compensation based on the results of his lead test, 

claiming “I was employed by [Pennsy] with the initial contact of lead.” Brown asked in response 

how the company could know he was not exposed to lead “outside of being employed with 

Pennsy.” Horn answered by ending the call, stating “this conversation is over.” Tr. 76. 

Horn testified he consulted with his doctor and obtained a second lead test. The results 

were the same. At the hearing, Horn gave one example of what he believed to be memory 

impairment caused by his heightened lead level in his blood. He recalled that he was driving with 

his wife down a rural road near his home and became confused. He asked his wife, “if we go this 

way, is it going to take us to the main road.” Horn said she replied, “my God, Steve, you have 

been down this road 100 times, you know that.” Tr. 75. Horn testified he had not received any 

treatment for the high level of lead in his system. Instead, he stated he had his blood lead level 

checked once a month and that the levels had decreased over time. Tr. 76. 

At some point thereafter, Horn filed a complaint with OSHA, which in turn was referred 

to MSHA. As previously noted, Santos-Cranford inspected the Bay Road Plant #7 on July 11, 

2017. As a result of this inspection, Santos-Cranford issued five section 104(a) citations to 

Pennsy charging violations arising from Horn’s alleged exposure to and poisoning by lead. 

Pennsy contested the alleged violations and argues that they should all be dismissed. Pennsy also 

argues that MSHA lacked any basis for modifying two of the citations to allege that Pennsy was 

highly negligent, and that the two violations resulted from the company’s unwarrantable failure 

to comply with a mandatory safety standard.2

 

The two modified citations, Nos. 8802227 and 8802228, were originally issued pursuant 

to section 104(a) of the Act, and the degree of negligence for each was designated as moderate. 

On May 21, 2018, the Secretary filed a Motion to Amend the Petition for Assessment of Penalty 

requesting that both of these citations be amended to section 104(d) citations with high 

negligence, which would add unwarrantable failure designations to both citations. In support of 

the motion, the Secretary alleged that “newly-discovered evidence warrants the amendment of 

the citations." Mot. to Amend at 3 (May 21, 2018). The Secretary further explained that: “During 

discovery, the Secretary has learned that the operator had a heightened awareness that its 

employees were grinding and burning lead. Instead of implementing the required protections 

required under the Mine Act, the operator trivialized employees' concerns.” Id. I granted the 

motion in an order dated May 31, 2018. At the hearing, although Pennsy’s counsel repeatedly 

attempted to elicit from Santos-Cranford testimony providing the bases for the Secretary’s 

unwarrantable failure allegations, the Secretary’s counsel repeatedly objected, stating, “I am the 

one that wrote the amendment. What Mrs. Santos-Cranford thinks about negligence is not really 

relevant.” Tr. 234. When counsel for the operator asked the inspector how long Clendaniel had 

been aware of the alleged safety condition, again counsel for the Secretary objected again stating, 

“ [s]he doesn’t know.” The evidence supporting the unwarrantable failure allegations were 

2

 The unwarrantable failure terminology is taken from section 104(d) of the Mine Act, 

30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a 

violation. 

41 FMSHRC Page 205
based upon Washburn’s testimony, which was already on the record and which the Secretary 

argued satisfied his burden as to unwarrantable failure. Tr. 236-238. In the post-hearing brief, the 

Secretary argued that the violations in question where unwarrantable failures because the 

Respondent showed “a plain indifference to worker safety” and did not offer mitigating 

circumstances. 3 Sec. Br. 22-23. 

III. CREDIBILITY FINDINGS

Reviewing the record of these proceedings compels me to address and make findings on

the credibility of several of the witnesses, particularly Horn and Washburn. I have already noted 

several instances in the record where Horn and Washburn contradict each other. Neither could 

agree on the number of shoes removed or the number of days it took to perform the winter 

maintenance. Neither could agree on whether Clendaniel visited the job site. Neither could agree 

on the color or smell of the alleged lead fumes. Neither could agree on whether Washburn called 

Clendaniel to voice Horn’s concerns about lead. And, if he did in fact call Clendaniel, Washburn 

did not actually testify that he told Clendaniel that Horn had an issue with the “lead.” Instead, he 

testified he reported Horn had a problem with generic dust and fumes. 

In addition, Washburn testified that, on the one hand, “everyone over the years” would 

ask why lead washers were being used, yet on the other hand, testified later that, “[u]ntil this 

came about, we didn’t realize there was an issue, because over the years no one ever said 

anything [about] it.” Tr. 26, 60. In contrast to this contradictory testimony, Santos-Cranford’s 

noted indicate that neither Dawson, who I found quite credible, nor Clendaniel knew lead 

washers were being used in the sand screw. 

As to Washburn’s claims of having contacted Clendaniel twice by phone in one day 

about fumes and the need for addition PPE while he and Horn were performing winter 

maintenance on the sand screw, I have already stated that I credit Dawson’s testimony that no 

such contacts occurred. I find, however, that, contrary to Washburn’s testimony, Clendaniel 

visited the work site and instructed Horn to stop using a torch to remove the bolts, and to instead 

use a grinder. 

Both Horn and Washburn alleged that medical tests established that they had suffered 

from lead poisoning, allegations upon which the Secretary based much of the case against 

Pennsy. Yet the record is utterly devoid of any credible evidence, either documentary or 

testimonial, from a credible medical source that supports any claim of lead poisoning, much less 

establishes by a preponderance that such poisoning occurred or may have been caused by lead 

exposure at the Pennsy work site. I find unconvincing Horn’s single example of apparent 

3

 The Commission has stated that factors such as the length of time the violation has 

existed, the extent of the violative condition, whether the operator was placed on notice that 

greater efforts are necessary for compliance, the operator’s efforts in abating the condition, 

whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge 

of the existence of the violation are all to be considered in determining whether conduct is 

aggravated in the context of unwarrantable failure. See Consolidation Coal Co., 19 FMSHRC 

340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on 

other grounds, 195 F.3d 42 (D.C. Cir. 1999). 

41 FMSHRC Page 206
memory loss, especially in the absence of any credible medical opinion linking such a symptom 

to lead poisoning. I also find it curious, at least, why if Horn was poisoned by lead he would call 

to get his job back immediately after being turned down by the battery company. If Horn did, in 

fact, suffer from lead poisoning, it beggars comprehension why the Secretary failed to place in 

the record more than anecdotal evidence of such a serious diagnosis. The Secretary’s failure to 

do so leads me to draw a negative inference as to this essential evidentiary lacuna. 

As to the Secretary’s case in general, the evidence presented at the hearing was all too 

often vague and cursory, and not supported by any expertise. The most glaring example of this is 

that, although samples were taken at the Pennsy plant and tested for lead, and although the test 

results (some of which were positive) were placed in the record (Ex. S-16), the Secretary 

presented no evidence interpreting those results. There is no indication as to whether the positive 

test results were high, medium, or low in the context of occupational exposure to lead in some 

form. Nor was there any testimony linking the presence of the lead found to possible exposure to 

it in the workplace. Lead washers were found but even the Secretary’s primary witness, SantosCranford, admitted that “there would be no way for me to prove one way or the other whether 

these washers [i.e., those collected during sampling] had anything to do with exposure or not.” 

Tr. 171. Although Santos-Cranford testified that this was “[t]he reason why there was no citation 

issued for exposure,” Tr. 171, as I review the citations she did issue, the underlying assumption 

buttressing them is that Horn was exposed to and poisoned by lead in the workplace. 

The Secretary’s allegations rest upon there being lead in the workplace at Pennsy, which 

is accused of failing to have an MSDS for lead or to train its employees as to the hazards 

associated with lead or to provide adequate protection to its employees against lead exposure or 

to have in place a system to monitor workplace exposure to lead – and all of these allegations are 

based on an employee allegedly suffering from lead poisoning. Exposure to lead is at the very 

core of the Secretary’s case, yet when asked how she relied on the sampling results when issuing 

the citations at issue, Santos-Cranford was not able to respond in any meaningful way. Tr. 170. 

As a result, I am left with a record lacking any specific evidence that when Pennsy 

employees worked on sand screw, they could have been exposed to impermissible lead levels, 

and in what form that lead might have entered the working environment such as dust or fumes. 

In this regard, Santos-Cranford’s statement that “lead content is lead content” is 

stunningly inapposite. Tr. 162. To establish the need for heightened safety precautions, the 

Secretary would have to first provide a background level for lead in the environment. Lead is 

ubiquitous, and “can be found in all parts of our environment – the air, the soil, the water, and 

even inside our homes.” Learn about Lead, www.epa.gov/lead/learn-about-lead. Then the 

Secretary would have to show that, at Pennsy, workers were exposed to lead in the work they 

performed at levels exceeding (or far exceeding) background exposure. I infer from the lack of 

any positive test results from common areas at the Pennsy plant that the background lead level 

there was likely negligible. I also infer that workers were not carrying lead dust particles on their 

work clothes, hands or persons from work areas to common areas, therefore negating any claims 

that miners were exposed to lead dust. 

41 FMSHRC Page 207
I am struck by the lack of effort the Secretary made to prove this case. There are so many 

questions left unanswered. I cannot assume that something happened at Pennsy that should not 

have, and that it might have made persons sick. My role is not to give credence to assumptions. 

Instead, I must look at the evidence and determine if it proves by a preponderance the matters 

asserted by the Secretary. 

Overall, I find that the testimony of both Horn and Washburn was confusing, often 

disingenuous and self-serving, and, ultimately, lacking in credibility. The Secretary’s case I find 

plagued with inadequately supported assumptions. My findings below on each of the violations 

reflect this. 

IV. LEGAL PRINCIPLES

A mine operator is strictly liable for Mine Act violations that occur at its mine. Spartan

Mining Co., 30 FMSHRC 699, 706 (Aug. 2008). The Secretary bears the burden of proving any 

alleged violation by a preponderance of the credible evidence. In re: Contests of Respirable Dust 

Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d sub nom. Sec’y of Labor v. 

Keystone Coal Mining Corp., 153 F.3d 1096 (D.C. Cir. 1998). 

V. FURTHER FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Citation No. 8802224

Citation No. 8802224 was issued by Santos-Cranford on August 1, 2017 after she 

consulted with Horn and inspected the Bay Road Plant #7. Santos-Cranford relied on Horn’s 

statements and documents in issuing this citation. Tr. 175. The narrative section of Citation No. 

8802224 states that Respondent failed to complete and submit a MSHA #7000-1 form in 

violation of 30 C.F.R. § 50.20(a)4

 after a former employee (i.e., Horn) reported to the company 

that he had been diagnosed with lead poisoning. The citation alleges moderate negligence. The 

Secretary proposed a penalty of $116.00. Ex. S-2; Ex. A. 

The Secretary argues that Horn reported his alleged diagnosis of lead poisoning to 

Pennsy’s human resources department on April 3, 2017, and that Pennsy then failed to report that 

alleged diagnosis within the 10-day reporting window designated in section 50.20(a). The 

Secretary states that Pennsy did not report the alleged lead poisoning until August 1, 2017, well 

outside the reporting window. Sec. Br. 24. 

4

 Section 50.20(a) states in relevant part: “Each operator shall maintain at the mine office 

a supply of MSHA Mine Accident, Injury, and Illness Report Form 7000-1. ... 

Each operator shall report each accident, occupational injury, or occupational illness at the mine. 

The principal officer in charge of health and safety at the mine or the supervisor of 

the mine area in which an accident or occupational injury occurs, or an occupational illness may 

have originated, shall complete or review the form in accordance with the instructions and 

criteria in §§ 50.20-1 through 50.20-7. If an occupational illness is diagnosed as being one of 

those listed in § 50.20-6(b)(7), the operator must report it under this part. The operator shall mail 

completed forms to MSHA within ten working days after an accident or occupational 

injury occurs or an occupational illness is diagnosed. ...” 30 C.F.R. § 50.20(a). 

41 FMSHRC Page 208
Pennsy argues it did not violate the standard because it never received any evidence that 

Horn was diagnosed with an occupational illness, aside from Horn’s statements to that effect. 

Pennsy claims Horn refused to cooperate with its investigation of his alleged illness. Resp. Br. 8-

9. 

Section 50.20(a) requires operators to submit an MSHA #7000-1 form reporting each 

accident, occupational injury, and occupational illness occurring at the mine. 30 C.F.R. 

§ 50.20(a). An occupational illness is defined as “an illness or disease which may have resulted

from work at a mine or for which an award of compensation is made.” 30 C.F.R. § 50.2(e).

Notably, section 50.20(a) provides: “If an occupational illness is diagnosed as being one of those

listed in section 50.20-6(b)(7), the operator must report it under this part.” 30 C.F.R. § 50.20(a)

(emphasis added). Poisoning by lead is listed in section 50.20-6(b)(7)(iv).

As highlighted above, the plain language of section 50.20(a) requires in the case of an 

occupational illness an actual diagnosis of such an illness. However, here, Pennsy never had any 

bona fide diagnosis of lead poisoning, and thus, as is further explained below, was under no 

obligation to provide MSHA a report of any such alleged poisoning. 

On March 31, 2017 at 3:00 PM, Horn received an offer of employment at another 

company. He immediately quit his job at Pennsy. Tr. 72. However, his new employer revoked 

the offer of employment after Horn reported that the level of lead in his blood was higher than 

they would accept for a new employee. When Horn called Pennsy’s human resources department 

to ask for his job back, a request that Pennsy denied, Horn asked about eligibility for worker’s 

compensation on account of lead poisoning. But the Pennsy representative to whom Horn spoke 

asked how the company could be sure he was exposed to lead at its plant. This led Horn to 

abruptly terminate the conversation. Tr. 74, 76. He thereafter refused to give Pennsy any other 

information on his lead test results, never signed a medical release form for Pennsy to retrieve 

those results, and had not received any medical treatment for the heightened lead level in his 

blood. Tr. 76, 116, 179. Similarly, although Washburn testified he also tested positive for lead, 

he never provided any test results to Pennsy, either orally or in any printouts of laboratory tests, 

nor did he ever sign a medical release form which Pennsy provided him. Tr. 61-62. 

At the hearing, the Secretary did not produce any medical records that could have 

established that Horn and Washburn had been diagnosed with lead poisoning. Nor did the 

Secretary provide any such documentation to Pennsy. To the contrary, Santos-Cranford testified 

that she did not provide the company any documentation because “[i]t’s not our job.” Tr. 179. 

I find this particularly curious insofar as, had Horn or Washburn provided medical 

documentation of a diagnosis of lead poisoning, section 50.20(a) has a low threshold triggering 

the necessity of reporting an occupational illness, i.e., only that a diagnosed illness may have 

resulted from work at a mine. 

The failure to produce the alleged blood tests by Horn or Washburn or the Secretary after 

being asked to do so left Pennsy with no confirmation of a diagnosed mining-related illness 

which would give rise to the reporting requirement of section 50.20(a). I note in particular that 

Pennsy made all reasonable efforts to obtain and confirm the allegations Horn made, but was 

41 FMSHRC Page 209
never provided the information necessary to make any report. Moreover, the record before me is 

devoid of any evidence that Pennsy ever had any such information. I thus conclude that, under 

these circumstances, the standard simply did not apply.

Moreover, even if I were to accept as true the unsubstantiated and anecdotal evidence that 

Horn or Washburn had lead poisoning, I find what evidence that is in the record inconsistent 

with OSHA guidance on the toxicity of lead. 29 C.F.R. § 1910.1025, App. A, Substance Data 

Sheet for Occupational Exposure to Lead. I take judicial notice of this OSHA guidance. Union 

Oil Co., 11 FMSHRC 289, 300 n.8 (Mar. 1989) (official notice may be taken of the existence of 

extra record information that is not the subject of testimony but is commonly known, or can 

safely be assumed, to be true). Although this OSHA guidance states that a short term dose of 

lead can cause acute encephalopathy of the brain, which develops quickly to seizures, coma, and 

death from cardiorespiratory arrest, “[s]hort term occupational exposures of this magnitude are 

highly unusual.” It is chronic, long-term exposure that results in lead levels in highly toxic 

ranges. Short term exposure would have to be extremely heavy and concentrated to obtain 

acutely toxic results. Here, though, Horn was outside in the breeze, had protective clothing on, 

did the work for a just few days, and was told to stop using a torch to remove the bolts. Tr. 23, 

28-30, 43, 78, 80. There is no evidence that either Horn or Washburn suffered any serious

symptoms consistent with lead poisoning, acute or otherwise. Nor did the Secretary introduce

any evidence of how many of the washers that Horn torched were actually lead. Especially in

light of the OSHA guidance on lead, I find that the record in no way supports the Secretary’s

argument that Horn suffered from an occupational illness Pennsy was obligated to report to

MSHA.

For these reasons, I find that the Secretary failed to prove that Pennsy had any duty to 

report Horn’s alleged occupational illness pursuant to section 55.20(a), 30 C.F.R. § 55.20(a). 

Given that I have found no violation, I need not address any other issues related to Citation No. 

8802224, including gravity, negligence, and the proposed penalty assessment. 

B. Citation No. 8802225

Citation No. 8802225 was issued by Inspector Santos-Cranford on July 31, 2017 

following an inspection of the Bay Road Plant #7. This inspection arose out of the same 

circumstances as the preceding citation. Tr. 137, 182. The citation alleges that Pennsy had no 

Material Safety Data Sheet (“MSDS”) for lead washers available at the mine as allegedly 

required by 30 C.F.R. § 47.51.5 The citation alleges moderate negligence. The Secretary 

proposed a penalty of $116.00. Ex. S-4; Ex. A. 

Before conducting her inspection, Santos-Cranford consulted with an MSHA toxicologist 

(who was not called to testify at the hearing) regarding measuring the alleged existence of lead at 

the mine. Tr. 141-42. During her inspection of the mine on July 11, 2017, Santos-Cranford 

collected several wipe and bulk samples after she explained her methodology to Washburn, 

supervisor Jay Clendaniel, and General Manager Jeff Dawson. Tr. 141. Santos-Cranford used 

two sample collection methods: wipe sampling of various surfaces in common areas at the mine 

5

 Section 47.51 states in relevant part: “Operators must have an MSDS for each 

hazardous chemical which they produce or use.” 30 C.F.R. § 47.51. 

41 FMSHRC Page 210
(such as the kitchen) and work areas, and the collection of bulk samples (e.g., bolts, nuts, 

washers, etc.). Tr. 150, 153. 

No evidence of lead contamination in common areas was introduced at the hearing. 

Santos-Cranford obtained bulk samples from a drain near where the winter maintenance task had 

been performed. Tr. 145. These bulk samples were not proven to have come from the sand screw 

on which work was actually performed, and were intact, not ground, cut, or melted. Tr. 156-57. 

Some of these samples, specifically some washers and wipes taken from a sand screw, tested 

positive for the presence of lead. Tr. 162-63; Ex. S-16 at MSHA 071; Ex. S-17. As I have 

already noted, Santos-Cranford, admitted that “there would be no way for me to prove one way 

or the other whether these washers [i.e., those collected during sampling] had anything to do with 

exposure or not.” Tr. 171. 

Subsequently, Santos-Cranford requested an MSDS for the washers found onsite. Tr. 

187. Santos-Cranford testified that an MSDS identifies hazards associated with a specific

material and remedies associated with those hazards. Tr. 183. However, when asked to retrieve

an MSDS for the washers, Dawson and Clendaniel were unable to do so. Tr. 187. When SantosCranford returned to the mine on August 1, 2017, a book containing MSDS documents,

including one for lead washers, had been placed in the scale house for employee use. Tr. 189.

The MSDS for lead washers originated from a Canadian supplier which had not manufactured or

supplied the lead washers to Pennsy. Ex. S-5 at MSHA 006; Tr. 48, 232.

As a result of finding lead washers on the premises and the identification of traces of lead 

on the sand screw, as well as the inability of mine employees to provide an MSDS for lead 

washers on July 11, 2017, Santos-Cranford issued Citation No. 8802225. 

I find that, as a matter of law, the Secretary has not established a violation of the cited 

standard. The requirement in section 47.51 regarding the availability of MSDSs at mines extends 

to hazardous chemicals mine operators produce or use. Elsewhere in Part 47, the term “article” is 

defined as: “A manufactured item, other than a fluid or particle, that — (1) Is formed to a 

specific shape or design during manufacture, and (2) Has end-use functions dependent on its 

shape or design.” 30 C.F.R. § 47.11. Under section 47.91, an “article” is generally exempt from 

the MSDS requirement. 30 C.F.R. § 47.91. I conclude that a washer is by definition an “article” 

under section 47.11, and thus exempt from the MSDS requirement, because it is neither fluid nor 

particle, is formed during manufacture into the specific shape of a flat disc, and its end-use 

function is being “placed beneath a nut or at an axle bearing or a joint to relieve friction, prevent 

leakage, or distribute pressure.” The American Heritage Dictionary of the English Language 

1941 (4th ed. 2009). 

Notably, under section 47.91, an “article” may not be exempt if, under “normal 

conditions of use,” it releases more than insignificant amounts of a hazardous chemical and 

poses a physical or health risk to exposed miners. 30 C.F.R. § 47.91. The “normal conditions of 

use” here was removal of washer to release shoes from a sand screw. Tr. 88-89. This was done 

through the grinding of the adjacent bolt and striking the bolt with a hammer, which Washburn 

testified was the routine practice of removal during winter maintenance, and which produced 

only sparks from the metal, not fumes or dust. Tr. 17-18, 21, 26, 48-49. Burning the washers as 

41 FMSHRC Page 211
Horn did using an acetylene torch was not common practice at the operation; rather, it was an 

anomaly. Horn took it upon himself to use a torch directly on the washers – and was directed to 

cease doing so because it was generating too much smoke. Ex. S-14 at MSHA047 and 

MSHA049. Clearly, Horn’s work on the washers was not a “normal condition of use.” Tr. 88. 

Nor did the Secretary prove that Horn’s anomalous approach to removing the washers released 

any specific hazardous chemical that caused lead poisoning. It is insufficient proof to suggest 

that correlation between Horn’s unsupported allegations of lead poisoning and his anomalous use 

of a torch on the washers establishes either the existence of lead exposure or that any such 

exposure caused lead poisoning. Moreover, the Secretary offered no proof that Washburn’s 

method of removal caused the release of any specific hazardous chemical, or that Washburn’s 

method of removal (i.e., grinding the bolt) posed any physical or health risk to exposed miners. 

Tr. 43, 86-87, 89, 203. 

The Secretary has thus failed to establish that, as a matter of law, section 47.51 applies to 

lead washers. Nor did the Secretary prove that the lead washers were subject to the MSDS 

requirement under section 47.91 on account of the “normal conditions of use” to which the 

washers were subjected. I therefore vacate Citation No. 8802225. Given that I have found no 

violation, I need not address any other issues related to Citation No. 8802225, including gravity, 

negligence, and the proposed penalty assessment. 

C. Citation No. 8802226

Santos-Cranford issued Citation No. 8802226 on August 1, 2019 following her inspection 

of the Bay Road Plant #7. This citation arose out of the same circumstances as the preceding 

citations. Tr. 194-95. The narrative section of Citation No. 8802226 states that Pennsy failed to 

train miners on the specific hazards associated with cutting and grinding connecting bolts and 

nuts separated by lead washers, in violation of 30 C.F.R. § 47.2(b).6

 The citation alleges 

moderate negligence, and is designated at significant and substantial (S&S).7

 The Secretary 

proposed a penalty of $330.00. Ex. S-6; Ex. A. 

During her July 11, 2017 inspection of the mine, Santos-Cranford asked two miners 

whether they had been trained on the specific hazards of cutting and grinding bolts and nuts 

separated by lead washers. Tr. 195, 197. When asked, Washburn, a member of his crew, and a 

third unidentified employee stated they had not received any such training. When asked at 

another time and place, Horn answered likewise. Tr. 197-98. 

6

 Section 47.2 states in relevant part: “(a) This part applies to any operator producing or 

using a hazardous chemical to which a miner can be exposed under normal conditions of use or 

in a foreseeable emergency. ... (b) Operators ... must instruct each miner with information about 

the physical and health hazards of chemicals in the miner's work area, the protective measures 

a miner can take against these hazards, and the contents of the mine's HazCom program.” 30 

C.F.R. § 47.2.

7

 The S&S terminology is taken from section 104(d)(1) of the Act, which distinguishes as 

more serious any violation that is “of such nature as could significantly and substantially 

contribute to the cause and effect of a coal or other mine or safety hazard.” 30 U.S.C. 

§ 814(d)(1).

41 FMSHRC Page 212
Section 47.2(b) requires operators to instruct miners about the physical and health 

hazards of chemicals the operator produces or uses, and the protective measures a miner can take 

against such hazards. Section 47.11 defines a chemical as any element, chemical compound, or 

mixture of these. A lead washer is not an element, a chemical compound, or a mixture of these. 

Instead, as I have already found in connection with Citation No. 8802225, lead washers are 

“articles” as defined in section 47.11, and are thus by definition exempt from section 47.2(b). 

Under section 47.91, an article may not be exempt if, under normal conditions of use, it releases 

more than insignificant amounts of a hazardous chemical and poses a physical or health risk to 

exposed miners. 30 C.F.R. § 47.91. Again, as I have already found, the Secretary failed to prove 

that the lead washers, in their normal conditions of use, failed to meet this criteria for exemption 

from the standard. Additionally, as I have previously noted, there is no evidence that 

management knew that any of the replacement washers were made of lead. I thus conclude that 

Pennsy was not required under section 47.2(b) to train its miners on hazards associated with lead 

washers. 

For these reasons, I vacate Citation No. 8802226. Further analysis of other issues related 

to Citation No. 8802226, including gravity, S&S, negligence, and the proposed penalty 

assessment, is unnecessary. 

D. Citation No. 8802227

Santos-Cranford issued Citation No. 8802227 on August 1, 2019 following her inspection 

of the Bay Road Plant #7. This citation arose out of the same circumstances as the preceding 

citations. Tr. 202. The narrative section of Citation No. 8802227 states that Pennsy failed to 

provide special personal protective equipment (“PPE”) to protect against hazards associated with 

lead washers, in violation of 30 C.F.R. § 56.15006.8

 The citation, as modified, alleges that the 

violation was S&S, highly negligent, and an unwarrantable failure. Ex. S-8; Ex. A. 

The key elements in the cited standard, section 56.15006, as applied here, are that an 

operator must provide special PPE when miners encounter “chemical hazards ... capable of 

causing injury or impairment.” 30 C.F.R. § 56.15006. To prove a violation of this standard, the 

Secretary needed to present credible evidence demonstrating a hazard was present, i.e., working 

in such a way that created a hazard associated with exposure to lead, that the hazard could (or 

did) cause injury or impairment, and that PPE was not provided. 

The record clearly establishes that special PPE was readily available to miners at Pennsy. 

Dawson, whose testimony I found credible, stated that appropriate PPE was always provided for 

miners, and that respiratory protection was provided if it was required for a specific job. 

Clendaniel had the responsibility for submitting requests for specific PPE to Dawson. When 

asked whether he would have approved such a request for respiratory protection, Dawson 

testified any such request “[w]ould have been approved immediately.” However, Dawson also 

testified that no such request was made with regard to the task at issue here. Tr. 249-50. As to the 

8

 Section 56.15006 states: “Special protective equipment and special protective clothing 

shall be provided, maintained in a sanitary and reliable condition and used whenever hazards of 

process or environment, chemical hazards, radiological hazards, or mechanical irritants are 

encountered in a manner capable of causing injury or impairment.” 30 C.F.R. § 56.15006. 

41 FMSHRC Page 213
need for any specific protection against exposure to lead, as I have previously noted, there is no 

evidence that Dawson or Clendaniel knew that any of the washers on which Horn and Washburn 

were working were made of lead. To the contrary, Santos-Cranford’s inspection notes indicate 

that neither of them had any idea that any lead was present at the work site. Ex. S-14. In a telling 

admission, Santos-Cranford conceded that a requirement for enhanced PPE does not exist where 

there is no awareness of exposure. When asked “[y]ou still have to be aware there is exposure for 

[enhanced PPE requirements] to kick in,” she replied: “Right.” Tr. 244. 

 Furthermore, the Secretary has not proven that any chemical hazard existed. There is 

evidence that some lead was present at the Pennsy plant, but no credible testimony or 

documentary evidence was adduced at the hearing that established that any specific chemical 

hazards were either present or could have been present where Horn and Washburn were working. 

Rather the Secretary assumed that Horn’s unsubstantiated claim of lead poisoning was sufficient 

to prove that lead fumes were released from washers that may or may not have been lead during 

the winter maintenance task as not all of the washers were the lead replacement parts. The 

evidence of an “injury or impairment” is as insubstantial as that pertaining to the chemical 

hazard that supposedly led to an actual injury. As I have already noted above, Horn’s allegations 

of lead poisoning were utterly lacking in corroboration by medical testimony or documentation. 

The ease with which such documentation could have been procured, and which may even have 

been in the Secretary’s possession, has already led me to the negative inference that Horn’s 

allegations were less than credible. 

 For these reasons, I find that the Secretary failed to prove that Pennsy violated section 

56.15006 as alleged. Therefore, I vacate Citation No. 8802227. Further analysis of other issues 

related to Citation No. 880222, including gravity, S&S, negligence, unwarrantable failure, and 

proposed penalty assessment, is unnecessary.

E. Citation No. 8802228 

 Citation No. 8802228 was issued by Santos-Cranford on August 1, 2019, and arose out of 

the same circumstances as the preceding citations. Tr. 208. The narrative section of Citation No. 

8802228 states that Pennsy failed to provide a system of exposure monitoring when three miners 

were allegedly exposed to lead fumes and dust, in violation of 30 C.F.R. § 56.5002.9 The citation 

alleges high negligence, S&S, and unwarrantable failure. Ex. S-8; Ex. A. 

 Section 56.5002 is broadly worded and requires operators to conduct “surveys,” a term 

that is not defined, “as frequently as necessary” when work generates dust, gas, mist, or fumes, 

and “to determine the adequacy of control measures.” 30 C.F.R. § 56.5002. Generally, an 

agency’s interpretation of its own regulation is controlling unless “‘plainly erroneous or 

inconsistent with the regulation.’” Plateau Mining Corp. v. FMSHRC, 519 F.3d 1176, 1192–93 

(10thCir. 2008) (finding that Secretary’s interpretation of his own regulation is entitled to 

deference), quoting Auer v. Robbins, 519 U.S. 452, 451 (1997). At the hearing, counsel for the 

Secretary asked Santos-Cranford, who was acting in her official capacity and as an authorized 

representative of the Secretary of Labor when the citations were issued, what type of “surveys” 

 9

 Section 56.5002 states: “Dust, gas, mist, and fume surveys shall be conducted as 

frequently as necessary to determine the adequacy of control measures.” 30 C.F.R. § 56.5002. 

41 FMSHRC Page 214
or “control measures” would have satisfied the requirement of section 56.5002. Santos-Cranford 

stated: 

[Section 56.]5002 ... would mean on a regular day when just the sand plant 

is running they could control their dust, let's say, by looking to make sure all their 

sprayers were running. That is a survey in itself, just by looking out to make sure 

everything is running fine, or by making sure that the water truck is running on a 

dusty day. So that control is in place. ... This is a little bit more technical, now you 

are talking about something that is a fumes [sic] or dust. ... So in itself that is 

telling you something was wrong, something needs to stop. We need to step back 

and take a look in itself would be a survey. 

You had people who said that they were concerned, just stopping and looking at 

the situation in itself would have been enough. 

Tr. 211. When asked whether any sampling would be required to satisfy the standard in this 

situation, Santos-Cranford answered, “[s]ampling is not required, only surveying.” Tr. 212. 

Under this interpretation of the standard by the authorized representative of the Secretary, 

all that was required for Pennsy to comply with section 56.5002 when Horn’s use of an acetylene 

torch produced excessive smoke was to stop work, look at the situation, and determine the 

adequacy of control measures. The Secretary’s own evidence demonstrates that Clendaniel did 

just that when he told Horn to stop using the torch because it was generating too much smoke. 

Ex. S-14 at MSHA049. Horn thereafter discontinued using the torch altogether, and work 

progressed to remove the shoes exclusively with grinders. This approach eliminated the smoke 

problem. As Washburn testified, when the grinders were used, there “wasn't a lot of dust. There 

was a little bit, but it was more sparks coming from the grinding of the nuts, sparks from it.” Tr. 

28. Moreover, grinding the bolts, as Washburn was doing, avoided all contact with any washers,

lead or otherwise, because the grinders were only coming into contact with the front end of the

bolt, not any washers. Tr. 18, 21. Clendaniel’s order to stop using the torch eliminated any

alleged hazard along with any excessive smoke, and thus, Pennsy satisfied the requirements of

the cited standard as defined by the Secretary.

41 FMSHRC Page 215
 Far from proving a violation of section 56.5002, the Secretary essentially established that 

Pennsy complied with that section. I thus find no violation occurred and therefore, vacate 

Citation No. 8802228. Further analysis of other issues related to Citation No. 8802228, including 

gravity, S&S, negligence, unwarrantable failure, and the proposed penalty, is unnecessary.

ORDER 

 Consistent with this Decision, IT IS ORDERED that Citation Nos. 8802224, 8802225, 

8802226, 8802227, and 8802228 are VACATED. Accordingly, these proceedings are 

DISMISSED. 

 /s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution: 

M. del Pilar Castillo, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630E, The 

Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106 

David M. Toolan, Esq., Oldcastle Law Group, 900 Ashwood Parkway, Suite 700, Atlanta, GA 

30338 

41 FMSHRC Page 216
ADMINISTRATIVE LAW JUDGE ORDERS

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 

March 26, 2019 

KNIGHT HAWK COAL, LLC, 

 Contestant 

v. 

SECRETARY OF LABOR, MINE 

SAFETY & HEALTH 

ADMINISTRATION (MSHA) 

 Respondent

CONTEST PROCEEDING 

Docket No. LAKE 2019-0087-R 

Citation No. 9035600; 11/14/2018 

Mine: Prairie Eagle Underground 

Mine ID: 11-03147 

ORDER DENYING THE SECRETARY OF LABOR’S MOTION IN LIMINE 

Before: Judge McCarthy 

I. STATEMENT OF THE CASE

This proceeding is before the undersigned on a Notice of Contest and separate Motion to 

Expedite filed November 15, 2018, by Knight Hawk Coal, LLC, pursuant to section 105(d) of 

the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(d) (“Mine Act”) 

and Commission Procedural Rule 20(b). The contest challenges technical Citation No. 9035600-

01, as modified, issued to Contestant on November 14, 2018 for operating without an approved 

ventilation plan under 30 C.F.R. § 75.370(a)(1).1 

Contestant’s existing ventilation plan for the Prairie Eagle Underground Mine (“Mine”) 

was revoked by MSHA’s District 8 manager on November 14, 2018, after months of 

negotiations resulted in alleged impasse over various previously-approved ventilation plan 

provisions. The Citation alleged that in numerous discussions, and by letters dated April 12, May 

3, June 7, and October 22, 2018, MSHA advised Contestant of concerns and of certain issues 

required to be addressed in its ventilation plan.” The Citation, in more specific detail set forth 

therein, identified the following five deficiencies: (1) The designs of the typical bleeder system 

does not control the air direction through all individual "blocks", including the air direction in the 

pillared area within each "block". [30 C.F.R. §§ 75.334(b)(1), 75.334(c)(4), 75.371(bb), and 

75.372(b)(9)] . . . (2) The method to control air movement to ventilate the unbolted extendeddepth perimeter cuts within the pillared area is not provided. The extended cuts are part of the 

pillared area within the worked-out area, and the air must be controlled to ensure effective 

ventilation of the extended-depth cuts. [30 C.F.R. §§ 75.334(b)(l), 75.334(c)(4), 75.371(bb), and 

1

 The contest alleges that the citation was invalidly issued under the Act and applicable 

regulations, the inspector’s evaluation lacks foundation in fact or law, and the revocation of the 

previously-approved ventilation plan involving perimeter mining was arbitrary, capricious, and 

unreasonable. 

41 FMSHRC Page 217
75.372(b)(9)] . . . (3) The air direction through all individual "blocks", including the air direction 

in the pillared area within each "block", is not shown in the ventilation plan drawings or on the 

ventilation map. [30 C.F.R. §§ 75.364(a)(2)(iii) and 75.372(b)(9)] . . . (4) The air direction at EP 

locations is not shown in the ventilation plan drawings or on the ventilation map. [30 C.F.R. §§ 

75.364(a)(2)(iii), 75.371(y), 75.371(z), and 75.372(b)(9)] . . . (5) The specified means of 

evaluation of the worked-out area does not provide sufficient information to determine the 

effectiveness of the bleeder system, including (a) whether air was moving in the proper direction 

through all "blocks," including the bleeder entries and pillared areas in each "block"; (b) the 

means to reasonably assure ventilation of the extended-depth portions of the pillared areas; or (c) 

the effectiveness of ventilation through the worked-out area. [30 C.F.R. §§ 75.334, 

75.364(a)(2)(iii), 75.364(a)(2)(iv), 75.371(y), and 75.371(z)]. 

On November 20, 2018, Respondent filed its Answer to Notice of Contest and admitted 

that the citation was issued after Respondent determined that Contestant was mining without an 

approved ventilation plan under conditions alleged to be a violation of the cited mandatory 

standard. On November 26, 2018, this case was assigned to the undersigned. Thereafter, on 

November 27, 2018, Respondent filed an Opposition to Contestant’s Motion to Expedite. 

In its Motion to Expedite, Contestant alleges that revocation of the approved ventilation 

plan permitting perimeter mining was arbitrary, capricious, and unreasonable. Contestant argues 

that eleven years of mining history shows that perimeter mining is a safe and acceptable method 

of mining that results in lower exposure to respirable dust, noise, and red or danger zones; a 

lower citation and injury rate; elimination of all hazards associated with roof bolting; superior 

overall ventilation of the entire perimeter panel, as compared to longwall gob and pillared areas; 

and adequate ventilation to ensure that methane-air mixtures and other gases, dusts, and fumes 

from worked-out areas are continuously diluted and routed away from active workings into a 

return air course or to the surface. Further, Contestant alleges that the previously-approved 

ventilation plan is consistent with MSHA Program Policy Letter No. P13-V-12, which addresses 

evaluation of bleeder systems and states, “[i]t is anticipated that District Managers would not 

suggest changes to relevant portions of existing approved ventilations plans absent conditions 

affecting the safety or health of miners that arise following the issuance and effective date of this 

PPL.” Finally, Contestant requested an expedited hearing by the end of January 2019 to promote 

judicial economy and to ameliorate claimed irreparable harm to Contestant’s method of 

production and miners. 

In its Opposition, Respondent argues that Contestant has failed to show “extraordinary or 

unique circumstances resulting in continuing harm or hardship,” and that this complex case will 

require extensive discovery and expert testimony about air sampling data and ventilation 

controls, thereby making an expedited hearing inappropriate. 

41 FMSHRC Page 218
After various conference calls and email exchanges with the undersigned, the parties 

eventually agreed to hearing dates on March 28-29 and April 1, 2019 in St. Louis, Missouri.2 

On February 5, 2019, the Secretary of Labor filed a Motion in Limine (“Motion”) to 

exclude three types of evidence at the hearing: (1) the introduction of any evidence concerning 

MSHA’s approval, rejection, or revocation of ventilation plans other than the Prairie Eagle 

Underground Mine; (2) all evidence and testimony, including expert testimony, that was not part 

of the record available to MSHA District 8 Manager, Ronald Burns, when he decided to revoke 

the Mine’s ventilation plan; and (3) and testimony from former MSHA ventilation supervisor, 

Mark Eslinger. The Secretary argues that under the arbitrary and capricious standard of review 

adopted by the Commission in Prairie State Generating Co., LLC, 35 FMSHRC 1985 (July 

2013) (Prairie State I), aff’d 792 F.3d 82 (D.C. Cir. 2015) (Prairie State II) and Mach Mining, 

LLC, 32 FMSHRC 149 (Jan. 2010) (Mach Mining I), aff’d 728 F.3d 643 (7th Cir. 2013) (Mach 

Mining II), MSHA’s approval or rejection of ventilation plans at other mines is irrelevant to 

whether MSHA’s revocation of the Mine’s ventilation plan was arbitrary and capricious. Rather, 

the Commission need only determine whether District Manager Burns “[made] a full appraisal of 

the relevant and available facts, and [was] reasonable in his conclusions.” Motion at 4. The 

Secretary also argues that information that was not presented to District Manager Burns during 

the parties’ negotiations is irrelevant to the threshold question of whether the parties engaged in 

good-faith negotiations for a reasonable period of time regarding the disputed ventilation plan. 

See Twentymile Coal Company, 30 FMSHRC 736, 748 (Aug. 2008); Prairie State II, 792 F.3d at 

93. Finally, the Secretary argues that Eslinger should not be permitted to testify because his

opinions regarding perimeter mining are irrelevant under the arbitrary and capricious standard,

and were not presented to District Manager Burns during negotiations over the ventilation plan.

On February 13, 2019, Contestant filed a Response (“Response”) in Opposition and 

argues that the Secretary’s Motion should be denied. Alternatively, Contestant requests an 

opportunity to present excluded evidence by offer of proof to generate a full record for 

Commission review. Response at 14.3

 Contestant argues that the Secretary bears the burden of 

proving that the operator’s proposed ventilation plan is “unsuitable” for the Mine under 

Commission precedent in C.W. Mining Co., 18 FMSHRC 1740 (Oct. 1996), Peabody Coal Co., 

18 FMSHRC 686 (May 1996), Peabody Coal Co., 15 FMSHRC 381 (Mar. 1993), and Carbon 

Cty. Coal Co., 7 FMSHRC 1367 (Sept. 1985). Response at 2. The Contestant further argues that 

the Commission’s Prairie State I decision contradicts such prior Commission precedent, without 

2

 The schedule for the hearing reflects an agreement resolving a misunderstanding 

between the parties about testimony to be taken from Contestant’s expert. Specifically, on 

January 16, 2019, Contestant filed a motion to keep the record open after the hearing to take 

expert testimony due to a scheduling conflict. Contestant styled the motion as “unopposed,” but 

the Secretary did oppose the motion, as written. During a subsequent conference call with the 

undersigned, the parties agreed to set aside an additional day – April 1, 2019 – to take testimony 

that could not be taken on March 28-29, 2019. 

3

 During a February 28, 2019 conference call, Contestant indicated that should the 

undersigned grant the Secretary’s Motion, Contestant would seek to make its offer of proof in 

question and answer format. 

41 FMSHRC Page 219
explicitly overruling it. Response at 2-3. Although the Commission applied the arbitrary and 

capricious standard of review to the district manager’s revocation of a ventilation plan in Prairie 

State I, Contestant observes that the Commission cited to C.W. Mining, 18 FMSHRC at 1746, 

which requires the Secretary to show that the plan is unsuitable for the conditions of the mine. 

Response at 3, citing Prairie State I, 35 FMSHRC at 1989-90. See also, Prairie State I, 35 

FMSHRC at 2002 (Young, C., dissenting). Finally, Contestant emphasizes that the operator is 

charged with developing the ventilation plan, not the Secretary. Zeigler Coal Co. v. Kleppe, 536 

F.2d 398, 406 (D.C. Cir. 1976). Contestant concludes that the arbitrary and capricious standard

of review grants the district manager too much latitude to approve or reject a ventilation plan,

and de facto transfers the responsibility for formulating the plan to the district manager.

Response at 9-10.

II. LEGAL PRINCIPLES AND ANALYSIS

Section 303(o) of the Mine Act provides: 

(o) A ventilation system and methane and dust control plan and revisions

thereof suitable to the conditions and the mining system of the coal mine

and approved by the Secretary shall be adopted by the operator and set out

in printed form within ninety days after the operative date of this title. The

plan shall show the type and location of mechanical ventilation equipment

installed and operated in the mine, such additional or improved equipment

as the Secretary may require, the quantity and velocity of air reaching each

working face, and such other information as the Secretary may require.

Such plan shall be reviewed by the operator and the Secretary at least

every six months.

The cited regulation at issue in this case is 30 C.F.R. § 75.370(a)(1), which provides: 

The operator shall develop and follow a ventilation plan approved by the district 

manager. The plan shall be designed to control methane and respirable dust and 

shall be suitable to the conditions and mining system at the mine. The ventilation 

plan shall consist of two parts, the plan content as prescribed in § 75.371 and the 

ventilation map with information as prescribed in § 75.372. Only that portion of 

the map which contains information required under § 75.371 will be subject to 

approval by the district manager. 

30 C.F.R. § 75.370(a)(1). 

The prehearing issues raised by the Secretary’s motion in limine concern what evidence 

should be excluded at the hearing. Commission Procedural Rule 63(a) states that relevant 

evidence, including hearsay, which is not unduly repetitious or cumulative, is admissible. 

Determinations as to admissibility of evidence at hearing are left to the sound discretion of the 

trial judge. Marfork Coal Co., 29 FMSHRC 626, 634 (Aug. 2007) (noting that an abuse of 

discretion standard is consistent with the discretion accorded the trial judge managing the 

hearing). 

41 FMSHRC Page 220
The Secretary contends that the undersigned should evaluate District Manager Burns’ 

decision to revoke Contestant’s previously-approved ventilation plan under an arbitrary and 

capricious standard of review and only consider evidence actually presented during plan 

negotiations. Contestant argues that the statutory and regulatory phrase “suitable to the 

conditions and mining system at the mine” supports consideration of all evidence related to the 

suitability of the disputed ventilation plan when deciding whether the district manager’s 

revocation of the ventilation plan was erroneous, even under the arbitrary and capricious 

standard. In my view, it is premature and imprudent in this case to decide disputed evidentiary 

issues in a vacuum decoupled from the crucible of trial. 

Commission case law regarding the standard of review applicable to determining whether 

a district manager’s rejection of a ventilation plan is erroneous appears to be in a state of flux. In 

Signal Peak Energy, 40 FMSHRC 1059 (Aug. 2018), appeal docketed, No. 18-72837 (9th Cir. 

Oct. 19, 2018), the Commission recently split 2-2 on what standard of review applies when 

considering an MSHA district manager’s revocation of a ventilation plan.4

 Then Chairman 

Jordan and Commissioner Cohen affirmed the judge’s application of the “arbitrary and 

capricious” standard of review of the district manager’s decision to reject a ventilation plan 

submitted by the operator. Signal Peak Energy, 40 FMSHRC at 1064.5 They relied on Mach 

Mining II, 728 F.3d at 657-58, where the Seventh Circuit found that that a Commission majority 

correctly determined that a district manager’s refusal to approve a ventilation plan should be 

reviewed deferentially under an arbitrary and capricious standard, and on Prairie State II, 792 

F.3d at 91-92, where the D.C. Circuit held that the arbitrary and capricious standard of review

applied by the Commission majority to the Secretary’s plan-suitability determination “was at

least a permissible one.” Id. at 93.

By contrast, Commissioners Young and Althen found that the judge applied the wrong 

legal standard and that substantial evidence did not support a finding that the operator’s plan was 

unsuitable to provide safe and healthful ventilation at the specific mine. Signal Peak Energy, 40 

FMSHRC at 1074. They opined that Mach Mining I and Prairie State I were wrongly decided, 

but found that those Commission decisions were upheld by the circuit courts as permissible 

interpretations, making it unnecessary to reject such circuit court precedent because substantial 

evidence did not support rejection of the operator’s proposed ventilation plan when analyzed 

4

 Accordingly, the judge’s decision to apply the arbitrary and capricious standard of 

review was affirmed under Pennsylvania Elec. Co., 12 FMSHRC 1652 (Aug. 1990), aff’d on 

other grounds, 969 F.2d 1501 (3d Cir. 1992). 

5

 Generally, under the arbitrary and capricious standard of review, a district manager’s 

decision would be set aside only where MSHA “relied on factors which Congress [had] not 

intended it to consider, entirely failed to consider an important aspect of the problem, offered an 

explanation for its decision that runs counter to the evidence before the agency, or is so 

implausible that it could not be ascribed to a difference in view or the product of agency 

expertise.” Signal Peak Energy, 40 FMSHRC at 1065, citing Motor Vehicle Mfrs. Ass’n of U.S., 

Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). 

41 FMSHRC Page 221
under the safety standard at issue. Id. at n.10.6

 They observed that the Commission has taken 

conflicting positions on the Secretary’s burden of proof, comparing the Peabody Coal and C.W. 

Mining cases cited by Contestant in his Response, with both the Mach Mining I and Prairie State 

I cases cited by the Secretary in his Motion. Signal Peak Energy, 40 FMSHRC at 1075-76.7 

Commissioners Young and Althen relied on Canyon Fuel Co., LLC, 39 FMSHRC 1578 

(Aug. 2017), aff'd in part and vacated in part, 894 F.3d 1279, 1296-1300 (10th Cir. 2018), where 

the Tenth Circuit reversed another 2-2 split Commission decision and found that that the 

Secretary failed to establish a violation of 30 C.F.R. § 75.380(d)(5), which provides that “[e]ach 

escapeway shall be ... [l]ocated to follow the most direct, safe and practical route to the nearest 

mine opening suitable for the safe evacuation of miners.”8 Relying on Commission precedent, 

the Tenth Circuit stated: 

To establish a violation of § 75.380(d)(5), however, “[i]t is insufficient for 

the Secretary to merely cite the designated route as being out of 

compliance with the regulation.” S. Ohio Coal, 14 FMSHRC at 1785. 

Rather, “it is the Secretary's burden to prove that, as compared to the 

designated route, there is at least one other escapeway route that [he] has 

determined more closely complies with the standard's requirement.” 

894 F.3d at 1295-96. 

Acting Chairman Althen and Commissioner Young concluded that the phrase “suitable to 

the conditions and mining system at the mine” set forth in 30 C.F.R. § 75.370(a)(1) is 

6

 Commissioners Young and Althen declined to characterize their view on the Secretary’s 

burden of proof as a “standard of review,” stating that “the outcome of a suitability determination 

in this case does not depend upon a didactic characterization of the standard of review as beyond 

a preponderance of the evidence or abuse of discretion.” Id. at 1079. 

7 But see Mach Mining II, 728 F.3d at 658 n.21, noting that further explanation regarding 

departure from precedent by the Commission was unnecessary given the court’s conclusion that 

the statute’s regulatory scheme requires a more deferential standard of review. 

8

 The deadlocked Commission left standing the judge’s finding that the escapeway used 

by the operator was not the most direct, safe and practical route to the nearest mine opening 

“suitable” for the safe evacuation of miners. 

41 FMSHRC Page 222
sufficiently analogous to the “suitable for the safe evacuation of miners” in 30 C.F.R. § 

75.380(d)(5) such that the Tenth Circuit’s analysis was persuasive.9 They stated: 

Thus, section 303(o) [of the Mine Act] does not call for MSHA to develop 

a plan of its own and impose such plan upon the operator. Suitability is the 

standard. If the operator’s plan is suitable – this is, is appropriate for 

maintaining adequate ventilation and respirable dust control, then it meets 

the requirements of section 303(o). 

Signal Peak Energy, 40 FMSHRC at 1079.10 

Given apparent evolving Commission precedent concerning the appropriate standard of 

review for evaluating a district manager’s revocation of a mine’s ventilation control plan, the 

recent change in Commission composition,11 and the prerogative of the new Commission to 

rationally explain reversal of existing precedent,12 even in light of appellate court or Supreme 

9

 Commissioners Young and Althen recognized the unusual suitability provision in 

section 75.380(d)(5), which may require comparison of alternative “suitable” escapeways to 

determine whether the one designated by the operator is “the most direct, safe and practical 

route,” unlike section 303(o), which mandates only that the ventilation plan be suitable. 40 

FMSHRC at 1077 n.7. They emphasized, however, that the Tenth Circuit required an initial 

determination of whether the escapeway developed by the operator was suitable, and only then 

was the comparison aspect of the specific regulation triggered. Id. at 1078. Commissioners 

Young and Althen fundamentally concluded that “the test of suitability is not which plan MSHA 

might prefer, but instead whether the plan (i.e., route in Canyon Fuel) proffered by the operator 

is suitable. In other words, the suitability determination is not an opportunity for MSHA to 

design a route or develop a plan for the operator. In their view, MSHA's duty is to review the 

plan submitted by the operator and determine whether it achieves the requisite safety and health 

requirements at the specific mine.” 40 FMSHRC at 1077. They faulted MSHA in both Signal 

Peak and Canyon Fuel, for failing to analyze the operator’s plan in terms of its suitability for 

achieving the safety and health requirements at the specific mine. 40 FMSHRC at 1077 n.7. 

10 The Commission’s split decision in Signal Peak Energy is pending with briefs filed in 

the United States Court of Appeals for the Ninth Circuit. 

11 Chairman Marco M. Rajkovich, Jr. and Commissioners William I. Althen and Arthur 

R. Traynor, III were sworn into office on Monday, March 25, 2019. They join Commissioners

Mary Lu Jordan and Michael G. Young to form a new five-member Commission.

12 See e.g., Mach Mining II, 728 F.3d at 658 n.21, citing Lone Mountain Processing, Inc. 

v. Sec’y of Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013) (“[a]s we have long held, an agency

changing its course must supply a reasoned analysis indicating that prior policies and standards

are being deliberately changed, not casually ignored.”) (internal citations omitted).

41 FMSHRC Page 223
Court affirmation of existing precedent,13 the undersigned concludes that Contestant’s proffered 

evidence may be sufficiently relevant under either a de novo review of proof of suitability based 

on a preponderance of substantial evidence or an arbitrary and capricious standard of review, 

such that denial of Respondent’s motion in limine is warranted. 

Contestant seeks to offer evidence concerning the rejection of ventilation plans involving 

perimeter mining at other mines to support its contention that District Manager Burns’ course of 

conduct resulted in an arbitrary and capricious decision in this case. Response at 10-11. 

Contestant argues that starting in 2017, District Manager Burns “engaged in a systematic 

program of seeking to eliminate perimeter mining in District 8 despite its long use and approval. 

It involved revocation of plans at Arch Coal’s Viper Mine, denial of a perimeter mining plan at 

Peabody Midwest’s Gateway North Mine, the evaluation of perimeter mining at Peabody 

Midwest’s Gateway Mine and the revocation of Knight Hawk’s plan.” Id. at 10. Contestant 

argues that “[t]he District Manager was fully aware of this history during discussions with 

Knight Hawk of this history. Further, it was clear throughout the process of discussions with 

MSHA that the safety aspects of perimeter mining [were] presented to the District Manager.” Id. 

at 11. If, as the Secretary states in his Motion at 5 that “[t]he initial question in ventilation plan 

cases is whether MSHA and the operator engaged in good-faith negotiations for a reasonable 

period of time regarding the proposed plan,” evidence that the District Manager has embarked on 

a pattern of rejecting or revoking perimeter mining ventilation plans, arguably without 

demonstrating adverse risks to miner safety and health under the previously-approved plan, is 

relevant to whether MSHA engaged in good-faith negotiations or arbitrary and capricious 

decision-making. 

The undersigned finds little risk of prejudice to the Secretary should Contestant’s 

evidence be considered at hearing. There are no jury trials at the Commission. Therefore, the risk 

of confusing or misleading the trier of fact as to the appropriate burden of proof or standard of 

review is greatly diminished. Moreover, a Commission judge is capable of distinguishing 

information that was actually presented to the district manager during discussions over the 

Mine’s ventilation plan from information that was not presented, but arguably may have 

influenced the district manager’s decision making, and such judge can parse through a complete 

and thorough record when issuing findings of fact. 

By contrast, excluding the Contestant’s evidence at this stage would prevent the 

Contestant from developing a complete and thorough record should either party seek further 

review of the trial decision, which could significantly delay the resolution of this case should the 

undersigned be required on remand to further develop the record or consider evidence that could 

have been fully developed or considered in the first instance. Furthermore, Contestant’s counsel 

represented during the parties’ February 28, 2019 conference call that the form of the offer of 

proof that he would seek should the undersigned grant Respondent’s motion in limine would be 

13 See, e.g., John Deklewa & Sons, 282 N.L.R.B. 1375 (1987), enforced sub nom. Int’l 

Ass’n of Bridge, Structural & Ornamental Iron Workers Local 3 v. NLRB, 843 F.2d 770, 780-81 

(3d Cir. 1988), cert. denied, 488 U.S. 889 (1988) (overruling previous Board interpretation of 

section 8(f) of the National Labor Relations Act despite the Supreme Court’s affirmance of the 

Board’s previous interpretation in NLRB v. Iron Workers, 434 U.S. 35 (1978)). 

41 FMSHRC Page 224
by question and answer format of excluded testimony. While the undersigned has discretion to 

deny the requested form of such proffer based on my statutory and regulatory authority to control 

and manage the hearing,14 granting the Secretary’s Motion and allowing the Contestant to submit 

its offer of proof to fully develop the record for Commission review is unlikely to save much 

additional time or resources at hearing. Therefore, in the undersigned’s view, a balancing of 

interests weighs in favor of giving Contestant a full and fair opportunity to present all “[r]elevant 

evidence, including hearsay evidence, that is not unduly repetitious or cumulative” or privileged, 

at hearing. See Commission Procedural Rule 63(a). 

The Secretary relies on the Commission’s decision in Prairie State I to argue that the 

undersigned should not consider any evidence that was not previously submitted to District 

Manager Burns in the course of discussions over the ventilation plan. While the Secretary does 

cite language in Prairie State I where the Commission affirmed the decision of the judge to 

exclude evidence that had not been presented to MSHA prior to the district manager’s final 

decision on the proposed plan, the Commission affirmed that decision as one within the judge’s 

discretion and not an absolute legal requirement. Prairie State I, 35 FMSHRC at 1996. 

(“Accordingly, we conclude that the Judge did not abuse her discretion in excluding specific 

evidence that had not been presented to MSHA for consideration prior to the district manager’s 

final determination.”). As explained above, Contestant’s yet-proffered evidence regarding an 

alleged policy or practice to preclude or marginalize perimeter mining within District 8 appears 

to be relevant to whether the operator’s previously-approved ventilation plan was no longer 

suitable to achieve the safety and health ventilation requirements at the Mine, or whether District 

Manager Burns acted in an arbitrary and capricious manner by revoking the plan now deemed 

deficient under certain mandatory standards. Furthermore, based on an alleged deposition 

admission, Contestant asserts that District Manager Burns relied on Program Policy Letter No. 

P13-V-12, applicable to Examination, Evaluation and Effectiveness of Bleeder Systems, and that 

Contestant was subjected to evaluation of extended cuts in the worked out area of perimeter 

mining under Procedure Instruction Letter I12-V-11, each time it added a mining unit. 

Accordingly, such documents appear to be relevant. 

Finally, the undersigned concludes that the testimony of Mark Eslinger, former MSHA 

ventilation specialist for District 8, appears to be relevant to the issues presented for hearing. 

Contestant asserts that Eslinger would testify to the history of approval and safety of perimeter 

mining plans in District 8, including Knight Hawk’s revoked ventilation plan. Response at 11. In 

his deposition, provided by the Secretary, Eslinger testified to an understanding that District 

Manager Burns wanted to eliminate perimeter mining in District 8. Eslinger Deposition, Tr. 

27:19-29:23. Under the Young/Althen suitability approach, whether the district manager failed to 

consider whether perimeter mining under the previously-approved ventilation plan was suitable 

to achieve the safety and health ventilation requirements at the Mine is relevant to the 

undersigned’s review of the District Manager’s decision and whether the Secretary sustains his 

burden of proof. Under the arbitrary and capricious standard of review adopted by then 

Chairman Jordan and Commissioner Cohen in Signal Peak Energy, whether District Manager 

Burns revoked the Mine’s ventilation plan due to pre-established conclusions or policy about 

 14 See Administrative Procedure Act, 5 U.S.C. § 556(c)(3) and (5) and Commission 

Procedural Rules 55(c)(3) and (5). 

41 FMSHRC Page 225
perimeter mining, without regard to whether the evidence submitted by Knight Hawk showed 

that its plan remained suitable under section 303(o) of the Mine Act and 30 C.F.R. § 

75.370(a)(1), is relevant to whether MSHA relied on inappropriate factors to guide its decision 

making, failed to consider an important aspect of the problem, or offered an explanation counter 

to the evidence, or that is implausible or inconsistent with agency expertise. Since Contestant 

avers that Eslinger was part of the MSHA committee that revised the ventilation standards in 

1988, 1992 and 1996 (see Response at 12), his opinion testimony may be germane to compliance 

or non-compliance with cited mandatory standards in the technical citation. Therefore, under 

either approach articulated by the Commissioners’ separate opinions in Signal Peak Energy, the 

testimony of Eslinger appears sufficiently relevant to warrant consideration at hearing. 

The Secretary argues that Eslinger’s opinions should have been presented to the District 

Manager prior to issuance of the subject citation. But the Mine Act contemplates situations 

where a party may need to submit evidence to a reviewing body that was not heard by the initial 

decision maker. For example, as the Seventh Circuit recognized in Mach Mining II, while 

judicial review is usually based on the record created by the Commission, a party may obtain 

permission to supplement the record if the additional evidence is material and there are 

reasonable grounds for failure to adduce such evidence below. Mach Mining II, 728 F.3d at 653, 

citing section 106(a)(1) of the Mine Act. Here, Eslinger’s deposition testimony states that he was 

told by industry and MSHA representatives that District Manager Burns wants to get rid of 

perimeter mining. Eslinger Deposition, Tr. 28-32. Such testimony, if credible, may be relevant 

and material to my disposition of this matter, and it arguably would have been futile to present 

such evidence during the negotiation process to the same district manager alleged to be hostile 

toward perimeter mining. 

III. CONCLUSION

For the foregoing reasons, the Secretary’s Motion in Limine is DENIED. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: 

Travis Gosselin, Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, 

Room 844, Chicago, IL 60604 

R. Henry Moore, Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty Avenue,

Pittsburgh, PA 15222

41 FMSHRC Page 226
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

March 27, 2019 

ORDER TO SHOW CAUSE 

Before: Judge Feldman 

As discussed herein, the threshold issue is whether the approximate 36-month interim 

period, between the April 8, 2015, issuance of underlying Order No. 8178613 to Mill Branch 

Coal Corporation1 (“Mill Branch”) and the April 12, 2018, personal liability notification by the 

Secretary’s Office of Assessments to James Scott and Donnie Thomas (“Respondents”)2

 satisfies 

1

 Mill Branch’s liability for Order No. 8178613 was disposed of in an unpublished 

Decision Approving Settlement issued on August 3, 2016. 

2

 Section 110(c) of the Act provides, in pertinent part: 

Whenever a corporate operator violates a mandatory health or 

safety standard . . . , any director, officer, or agent of such

corporation who knowingly authorized, ordered or carried out such 

violation, . . . shall be subject to the same [liability for] civil 

penalties . . . that may be imposed [on a mine operator] . . .under 

subsections (a) and (d) of this section. 

30 U.S.C. § 820(c). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

JAMES C. SCOTT, employed by MILL 

 BRANCH COAL CORP., 

 and 

DONNIE B. THOMAS, employed by 

 MILL BRANCH COAL CORP., 

 Respondents. 

CIVIL PENALTY PROCEEDINGS 

Docket No. VA 2018-0103 

A.C. No. 44-07087-462566 A

Docket No. VA 2018-0104 

A.C. No. 44-07087-462567 A

Mine: D-6 North Fork 

41 FMSHRC Page 227
the timeliness provisions of section 105(a) of the of the Federal Mine Safety and Health Act of 

1977 (the “Act”), 30 U.S.C. § 815(a). The timeliness provisions of section 105(a) provide, in 

pertinent part: 

If, after an inspection or investigation, the Secretary issues a 

citation or order under section 104, he shall, within a reasonable 

time after the termination of such inspection or investigation, 

notify the operator by certified mail of the civil penalty proposed 

to be assessed under section 110(a) for the violation . . . . 

Id. (emphasis added). 

Although the statutory notification provisions apply to contests of civil penalties by 

operators, Commission judges have repeatedly applied the timeliness provisions of section 

105(a) to cases of personal liability brought pursuant to section 110(c) of the Act. Sec’y of Labor 

v. Brinson, employed by Kentucky-Tennessee Clay Co., 35 FMSHRC 1463, 1465 (May 2013)

(ALJ) (citing Reasor, 34 FMSHRC 943 (April 2012) (ALJ); Wayne Jones, 20 FMSHRC 1267

(Nov. 1998) (ALJ); James Lee Hancock, 17 FMSHRC 1671 (Sept. 1995) (ALJ)).

The seminal case addressing the application of the timeliness provisions of section 105(a) 

is Sec’y of Labor v. Twentymile Coal Company, 411 F.3d 256 (D.C. Cir. 2005) (“Twentymile”). 

In Twentymile, the Court deferred to the Secretary’s interpretation that the operable period for 

assessing timeliness is the time period between the completion of the Secretary’s investigation 

and the notification of penalty assessment. Id. at 262. In concluding that the termination of an 

investigation, rather than the date of issuance of a citation, is the operative event for determining 

timeliness as contemplated by section 105(a), the Court relied on the abatement provisions of 

section 105(b)(1)(B) of the Act that provide that an operator is required to “achieve rapid 

compliance after notification of a violation.” Id.; 30 U.S.C. § 815(b)(1)(B) (emphasis added). In 

this regard, the Court reasoned: 

[g]iven that Congress included the [abatement] response to the

investigation among the relevant criteria [for assessing a penalty

contained in 30 U.S.C. § 815(b)(1)(B)], we cannot deem it

plausible that Congress contemplated that any determination of the

reasonableness of the time could begin before the determination

could be made, that is, before the mine had an opportunity to

respond to the order.

Twentymile, 411 F.3d at 262 (emphasis added). 

The Commission has subsequently considered the effect of the Twentymile Court’s 

reliance on the statutory provisions of section 105(b)(1)(B) in interpreting the timeliness 

provisions of section 105(a). See Sec’y of Labor v. Sedgman, 28 FMSHRC 322, 339-41 (June 

2006) (“Sedgman”). The Commission noted that section 105(b)(1)(B) “clearly refers not to 

investigation reports, but rather to citations and orders, as it is the citation or order that supplies 

41 FMSHRC Page 228
an operator with ‘notification of a violation,’” and should therefore be the starting point for 

assessing timeliness. Id. at n. 20 (Commissioners Suboleski and Young) (quoting 30 U.S.C. 

§ 815(b)(1)(B)). 

Consistent with Sedgman, the Secretary’s Program Policy Manual (“PPM”) recognizes 

that the issuance of the underlying citation or order is the starting point for determining whether 

the assessment of civil penalties in section 110(c) cases are timely. Specifically, the PPM states: 

Investigative timeframes have been established to help ensure the 

timely assessment of civil penalties against corporate directors, 

officers, and agents. Normally, such assessments will be issued 

within 18 months from the date of issuance [to the operator] of the 

subject citation or order. However, if the 18 month timeframe is 

exceeded, TCIO [the Compliance and Investigation Office] will 

review the case and decide whether to refer it to the Office of

Special Assessments for penalty proposal. In such cases, the 

referral memorandum to the Office of Special Assessments will be 

signed by the Administrator. 

MSHA, U.S. Dep’t of Labor, PPM, Vol. I, at 42 (2012) (emphasis added). 

In addressing the timeliness issue, it is noteworthy that the Commission has opined, “the 

Secretary is not free to ignore . . . time constraints . . . for any mere caprice, as that would . . . 

deny fair play to [respondents]” by exposing respondents to stale claims. Sec’y of Labor v. Long 

Branch Energy, 34 FMSHRC 1984, 1989 (Aug. 2012) (“Long Branch”) (citing Sec’y of Labor v. 

Salt Lake Cnty. Road Dep’t, 3 FMSHRC 1714, 1716 (July 1981)). However, the Commission 

noted that it “must balance concerns for procedural irregularity against the severe impact of 

dismissal on the Mine Act’s penalty scheme.” Long Branch, 34 FMSHRC at 1991. In this regard, 

the Commission stated: 

In order to achieve this balance, we clarify that “adequate cause” 

may be found to exist where the Secretary provides a non-frivolous 

explanation for the delay. The Secretary's excuse may not be 

facially implausible, and should be supported by evidence 

sufficient to establish that the delay did not result from “mere 

caprice” or through willful delay, intentional misconduct, or bad 

faith. 

Id. (footnote omitted). 

ORDER

 Consistent with the above, the Secretary IS ORDERED TO SHOW CAUSE why the 

captioned 110(c) proceedings should not be dismissed because the April 12, 2018, issuance of 

the subject notifications of personal liability for proposed civil penalties, approximately 36 

months after issuance of underlying Order No. 8178613, failed to comply with the reasonable 

41 FMSHRC Page 229
time provisions of section 105(a). Consistent with Long Branch, the Secretary should 

demonstrate “adequate cause” by providing a “non-frivolous explanation” for the 36-month 

delay. Specifically, the Secretary should address the following: 

1. Underlying Order No. 8178613, issued on April 8, 2015, for an alleged violation of the

accident notification provisions in section 50.10(d) which require an operator to

immediately contact MSHA within 15 minutes after the operator knows, or should know,

that a water inundation has occurred.3

 30 C.F.R. § 50.10. Settlement of Mill Branch’s

liability for Order No. 8178613 was approved on August 3, 2016. See n. 1, supra. If the

Secretary had sufficient information concerning the facts surrounding the cited violation

to determine that settlement was appropriate in August 2016, the Secretary should

provide a justification for why it took an additional 20 months to issue the subject notices

of proposed penalties notifying the Respondents of their alleged personal liability under

section 110(c).

2. The Respondents’ personal liability for the proposed civil penalties is based on their

alleged “knowing” violation of the accident reporting requirements contained in section

50.10(d). The propriety of personal liability requires determining: whether the

Respondents were primarily responsible for notifying MSHA of the inundation within 15

minutes; the extent of the alleged delay; and whether there were any aggravating or

mitigating circumstances. The Secretary should provide justification for why the

investigation into these apparently non-complex questions of fact required approximately

36 months to complete.

3. The Secretary should provide the date of referral to the Office of Special Assessments for

the personal liability penalty proposals in issue. If the date of referral is beyond the 18-

month investigative time frame contained in the Secretary’s PPM, the Secretary should

explain the reason for the delay.

The Secretary may provide any additional information he deems relevant. IT IS

FURTHER ORDERED that the Secretary shall provide responses to the above-requested 

information within 21 days of the date of this Order. The Respondents’ may provide a response 

to the Secretary’s submission within 14 days thereafter. Any procedural questions should be 

directed to my Law Clerk, Noah Meyer, at nmeyer@fmshrc.gov. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

3

 An “accident” is defined to include “[a]n unplanned inundation of a mine by a liquid or 

gas.” 30 C.F.R. § 50.2(4). 

41 FMSHRC Page 230
Distribution (by certified mail): 

Andrew R. Tardiff, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th Street 

South, Suite 401, Arlington, VA 22202 tardiff.andrew.r@dol.gov 

Eric T. Frye, 1051 Main Street, Milton, WV 25541 eric.frye@blackjewel.us 

Donnie B. Thomas, P.O. Box 1, Lejunior, KY 40849 

James C. Scott, 3706 Turkey Creek, Inez, KY 41224 

/nm 

41 FMSHRC Page 231
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 

April 9, 2019 

ORDER DISMISSING SECTION 105(c) DISCRIMINATION COMPLAINT

Before: Judge McCarthy 

This matter is before the undersigned on a Complaint of Discrimination filed pursuant to 

section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., as 

amended (“Mine Act”) and 29 C.F.R. 2700.42. Respondent seeks an Order Dismissing the 

Complaint for untimely filing and lack of jurisdiction. For the reasons set forth below, the 

undersigned finds that Complainant’s untimely filing of his action with the Commission was 

justifiable because of ignorance, misunderstanding, or mistake, and because of the absence of 

any material prejudice to Respondent. The undersigned further finds, however, that such action 

should be dismissed because Complainant’s new allegations, which raised arguable protected 

activity for the first time before the Commission, were not investigated by the Secretary under 

extant controlling precedent set forth in Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 

(Apr. 1991). 

I. STATEMENT OF THE CASE

On April 21, 2017, Complainant was terminated from his position at SLC Swanton 

(“Mine”). Complainant contacted the Mine Safety and Health Administration (“MSHA”) via 

email on May 22, 2017. In that email, sent at 7:06 a.m., Complainant asserted that he had been 

terminated because of his age. He further asserted that immediately after he was fired, a physical 

altercation ensued with Mine owners Dennis and Trampas Demers. As described by 

Complainant in his email to MSHA: 

I was texted to go to main office in Colchester VT for a meeting which I thought 

was going to be about plant modifications, but it was about terminating me from 

[sic] being 57 yrs old. 

I sat and listened to them for 5 min. I got up said I heard enough and stormed out 

of there [sic] office when I reached outside door Dennis Demers grabbed me, as 

Trampas Demers was shouting at me you did this to yourself & I told you dad he 

is a f**king loser, he is nothing. I went to grab Trampas and Dennis tackled me 

MICHAEL DEUSO 

 Complainant 

v. 

SHELBURNE LIMESTONE CORP., 

 Respondent 

DISCRIMINATION PROCEEDING 

Docket No. YORK 2019-0015-DM 

Mine: SLC Swanton Div. 

Mine ID: 43-00030 

41 FMSHRC Page 232
on to the asphalt where Trampas had his arm on my throat choking me while I 

was on my back, and Dennis was kneeling his whole body on my chest area 

between my head holding my head with his hands, I went to take a swipe at 

Trampas to get him off my throat so could breath [sic], Dennis took my head and 

picked it up and slammed it on the asphalt 3 times almost knocked me out. After 5 

min or so Dennis let me up I grabbed my glasses from the ground Dennis asked 

for the keys I gave him the plant keys & company truck keys I asked if he would 

unlock my truck so I could grab some personal things he did. I cleaned it out 

while Trampas hollered we were going to give you a severance but your to [sic] 

f**king stupid. 

Email from Michael Deuso, Complainant, to the Albany, New York MSHA Field Office (May 

22, 2017, 07:06 EDT). Complainant also provided his phone number to the MSHA Field Office. 

At 11:01 a.m. on May 22, 2017, an Albany, New York MSHA Field Office supervisor 

responded to Complainant’s email. He stated that the company’s main office where the 

altercation allegedly occurred is “not under MSHA jurisdiction,” and that “age discrimination is 

not a protected act under the Mine Act.” MSHA concluded that “there is nothing that MSHA can 

do to assist in the matter.” 

After MSHA declined to investigate any further, Complainant filed an unlawful 

termination claim with the Office of Administrative Hearings at the Vermont Department of 

Labor. Complainant’s claim was active through at least October 30, 2018 in the Vermont state 

adjudicative system.1

On December 12, 2018, Complainant filed a pro se action with the Commission under 

section 105(c)(3) of the Mine Act. His Commission filing recounts the incident at Respondent’s 

corporate office. It further alleges for the first time that, during the week of April 17, 2017, the 

Mine owners came to the mine and “made adjustments on the primary and secondary feeders” to 

run the system at 100% capacity. Complainant states that he “adjusted the feeder knob” to reduce 

the speed at which the feeders were operating, against the wishes of Respondent. Complainant 

further asserts that he adjusted the feeder knob because “the belt amps were starting to run past 

the amp setting that they had the feeders set at so I tweaked the setting on the cone crusher to 

maintain the belt amperage.” With his Commission filing, Complainant submitted a news article 

recounting a conveyor belt fire at the Mine in 2015.2

 Complainant claims that he reduced the 

speed of the feeders out of concern for the possibility of another fire on the belts. 

On January 8, 2019, the Respondent filed a Motion to Dismiss (“Motion”). The Motion 

argues that Complainant’s email communication with MSHA on May 22, 2017 constituted a 

“complaint” within the meaning of section 105(c)(1) of the Mine Act. The Respondent further 

argues that section 105(c)(3) requires Complainant to file his action with the Commission within 

1

 As of this writing, Complainant has a suit against Respondent active in the United 

States District Court for the District of Vermont. Deuso v. Shelburne Limestone Corp., No. 2:18-

CV-131-CR (D. Vt. Aug. 13, 2018).

2

 Elodie Reed, SWANTON: Stone elevator catches on fire, ST. ALBANS MESSENGER (Sep. 

22, 2015), https://www.samessenger.com/swanton-stone-elevator-catches-on-fire/. 

41 FMSHRC Page 233
30 days after the Secretary of Labor declines to prosecute his complaint under section 105(c)(2) 

of the Act. Given that Complainant’s filing with the Commission was received on December 17, 

2018, approximately 19 months after the Secretary determined that there was nothing that 

MSHA could do to assist in this matter, the Respondent argues that the action should be 

dismissed as untimely filed. 

On January 31, 2019, the undersigned conducted a conference call with the parties and 

deferred ruling on Respondent’s Motion to Dismiss pending an opportunity for Complainant to 

show cause why his action should not be dismissed as untimely filed, or dismissed because his 

allegations were not investigated by the Secretary under Commission precedent set forth in 

Hatfield, 13 FMSHRC at 546. On February 6, 2019, the undersigned issued such Order to Show 

Cause. 

On February 15, 2019, Complainant submitted his Response to the Order to Show Cause, 

recounting the circumstances surrounding his termination and quoting from Chapter 2 of 

MSHA’s Special Investigations Handbook,3

 which outlines the procedures for investigating 

discrimination complaints. Complainant avers that MSHA’s Albany Field Office Supervisor did 

not follow MSHA procedures regarding investigation of discrimination complaints, and “if you 

decide to allow an investigation you will find multiply [sic] violations of the Section 105(c) of 

the miners act [sic]. I sincerely hope you decide to allow an investigation into this case so future 

miners will have a safer place to work.” Response at 3. 

On February 27, 2019, Respondent submitted its Reply to Complainant’s Response 

(“Reply Memorandum”). Respondent argues that Vermont state investigators found insufficient 

evidence to prove age discrimination and that neither age discrimination nor acts that occur at the 

Mine’s corporate headquarters fall under MSHA jurisdiction. Further, Respondent argues that 

Complainant was terminated for insubordination after his failure to comply with the operator’s 

directives to refrain from adjusting the dial settings on the belt feeders. Finally, Respondent 

argues that the Complainant’s active engagement in the state law proceedings indicates that he is 

sophisticated enough to understand his legal rights, and that he should not be excused from filing 

his section 105(c)(3) action with the Commission approximately 19 months after MSHA 

informed him that it was declining to take any action on his behalf. 

II. LEGAL PRINCIPLES AND ANALYSIS

In cases involving a pro se litigant, the Commission has stated that “motions to dismiss 

for failure to state a claim should rarely be granted. Instead, a judge should ensure that he 

informs himself of all the available facts relevant to his decision, including the complainant’s 

version of those facts.” Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 1920 (Nov. 

1996), citing Heckler v. Campbell, 461 U.S. 458, 470-73 (1983) (Brennan, J., concurring). The 

filings of a pro se litigant are to be construed liberally. Marin v. Asarco, Inc., 13 FMSHRC 1269, 

1273 (Aug. 1992), citing Haines v. Kerner, 404 U.S. 519, 520 (1972). 

3

 U.S. Dep’t of Labor, Handbook Number PH05-I-4, Special Investigations Procedures 

(2005). 

41 FMSHRC Page 234
Section 105(c)(1) of the Mine Act provides, in pertinent part, that: 

No person shall discharge or in any manner discriminate against . . . or otherwise 

interfere with the exercise of the statutory rights of any miner . . . in any coal or 

other mine subject to this Act because such miner . . . has filed or made a 

complaint under or related to this Act, including a complaint notifying the 

operator or the operator's agent . . . of an alleged danger or safety or health 

violation in a coal or other mine, or because such miner . . . instituted or caused to 

be instituted any proceeding under or related to this Act or has testified or is about 

to testify in any such proceeding, or because of the exercise by such miner . . . on 

behalf of himself or others of any statutory right afforded by this Act. 

Section 105(c)(2) of the Mine Act provides, in pertinent part, that: 

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. . . . 

Section 105(c)(3) of the Mine Act provides, in pertinent part, that: 

Within 90 days of the receipt of a complaint filed under paragraph (2), the 

Secretary shall notify, in writing, the miner . . . of his determination whether a 

violation has occurred. If the Secretary, upon investigation, determines that the 

provisions of this subsection have not been violated, the complainant shall have 

the right, within 30 days of notice of the Secretary's determination, to file an 

action in his own behalf before the Commission, charging discrimination or 

interference in violation of paragraph (1) . . . . 

Under section 105(c)(3) of the Mine Act, Complainant had 30 days to file his section 

105(c)(3) action with the Commission after receipt of MSHA’s May 22, 2107 email 

communication advising him that there was nothing that MSHA could do on his behalf. As 

noted, Complainant filed with the Commission almost 19 months later. The Commission has 

held, however, that a claim may be considered despite untimely filing due to “justifiable 

circumstances, including ignorance, mistake, inadvertence and excusable neglect.” Perry v. 

Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 1921-22 (Nov. 1996), citing Schulte v. Lizza 

Indus., Inc., 6 FMSHRC 8, 12-13 (Jan. 1984); Farmer v. Island Creek Coal Co., 13 FMSHRC 

41 FMSHRC Page 235
1226, 1230-31 (Aug. 1991).4

 In Perry, the Commission noted that “[even if there is an adequate 

excuse for late filing, a serious delay causing legal prejudice to the respondent may require 

dismissal.” See Secretary of Labor on behalf of Hale v. 4-A Coal Co., 9 FMSHRC 905, 908 

(June 1986).” The Commission concluded that “[i]n general, “timeliness questions must be 

resolved on a case-by-case basis, taking into account the unique circumstances of each 

situation.” See Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984) aff'd mem., 750 

F.2d 1093 (D.C. Cir. 1984).

Although this case arises under section 105(c)(3), the undersigned finds that Commission 

precedent addressing the Mine Act’s legislative history regarding the filing time limit under 

section 105(c)(2) is instructive here. The Commission has found that the 60-day filing period for 

discrimination claims is not a jurisdictional bar and that timeliness questions must be examined 

on a case-by-case basis. Hollis, 6 FMSHRC at 24, aff'd mem., 750 F.2d 1093 (D.C. Cir. 1984). 

The relevant legislative history of the Mine Act supports this case-by-case approach when 

stating: 

While this time-limit is necessary to avoid stale claims being brought, it should 

not be construed strictly where the filing of a complaint is delayed under 

justifiable circumstances. Circumstances which could warrant the extension of the 

time-limit would include a case where the miner within the 60–day period brings 

the complaint to the attention of another agency or to his employer, or the miner 

4 In Perry, complainant Perry filed his discrimination complaint with MSHA pursuant to 

section 105(c) on September 14, 1995. On November 6, 1995, MSHA notified Perry and Phelps 

Dodge after investigation that it had concluded that a violation of section 105(c) had not 

occurred. Perry filed his section 105(c)(3) action with the Commission on November 17, 1996. A 

Commission Administrative Law Judge issued an Order dated April 26, 1996, dismissing Perry’s 

complaint for failure to state a claim upon which relief may be granted. The Commission vacated 

the judge's Order. Emphasizing the complainant’s pro se status, the Commission found that Perry 

had met his burden of alleging discrimination actionable under Section 105(c), and remanded the 

case for further evidentiary proceedings and a determination of whether the facts warranted a 

waiver of the time requirements for filing a complaint. 

On remand, a different Commission Administrative Law Judge found that Perry filed his 

discrimination complaint 223 days after he was discharged and 38 days after the issuance of an 

arbitration decision upholding his discharge. Considering Perry's pro se status, his hearing 

testimony, and the absence of any allegation of discrimination throughout the Phelps Dodge 

appeal process, the judge found that Perry formed the belief that he was discharged for having a 

lost-time accident and raising a related safety complaint only after he had lost in arbitration. 

Accordingly, she found that Perry's filing 163 days in excess of the 60–day time limit set forth in 

section 105(c) was excusable and without prejudice to Phelps Dodge, and concluded that Perry 

timely filed his complaint within 60 days of exhausting Phelps Dodge's appeal process. Perry v. 

Phelps Dodge Morenci, Inc., 19 FMSHRC 1664, 1665 n.3 (Oct. 1997) (ALJ). 

41 FMSHRC Page 236
fails to meet the time limit because he is misled as to or misunderstands his rights 

under the Act. 

S.Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate Sub-committee on Labor, 

Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 624 (1978); see also Herman v. IMCO Services, 4 FMSHRC 

2135, 2138 (Dec. 1982). 

Although Complainant’s section 105(c)(3) action was filed nearly 19 months after 

Complainant was notified that MSHA could do nothing on his behalf, the Commission and its 

judges have waived the untimely filing of a section 105(c) complaint on numerous occasions, 

even when the delay in filing was extensive, particularly where there is no showing of prejudice 

to respondent. See , e.g., 4-A Coal Co., 9 FMSHRC at 908 (reversing judge’s dismissal of section 

105(c)(2) complaint filed by the Secretary two years after the incident where the respondent did 

not demonstrate prejudice due to the delay); cf., Keim v. Cordero Mining LLC, 36 FMSHRC 963 

(April 2014) (ALJ) (excusing the untimeliness of pro se section complaint filed with MSHA, but 

dismissing timely filed section 105(c)(3) action for failure to establish any genuine issue of 

material fact that adverse discipline was motivated, at least in part, by any protected activity, or 

that respondent harbored any animus toward such activity; Jack v. Mid-Continent Resources, 

Inc., 6 FMSHRC 1059, 1061 (April 1984) (ALJ) (excusing the untimeliness of pro se complaint 

filed more than nine months after discharge where complainant misunderstood his rights under 

the Act and was confused about the proper manner in which to proceed, and respondent did not 

demonstrate prejudice due to the delay, but dismissing section 105(c)(3) action because 

discharge was not motivated in any part by protected activity). 

In this case, it appears that Complainant misunderstood or was ignorant of the rights he 

had under the Mine Act to file an action on his own behalf after MSHA declined to further 

investigate the matter. When the Secretary declines to bring a discrimination case before the 

Commission, the Secretary typically provides an insufficient evidence letter to the complainant 

advising of the Secretary’s decision and the right to file a discrimination action under section 

105(c)(3) with the Commission. See, e.g., Farmer v. Spartan Mining Co., LLC, 389 FMSHRC 

1301, 1303 (June 2017) (ALJ). In this case, the email sent by MSHA to the Complainant makes 

no reference to his section 105(c)(3) right to file an action with the Commission. In the 

undersigned’s view, it was reasonable for Complainant to conclude that he had no remedy under 

the Mine Act based on statements made by MSHA in their initial intake of his Complaint. The 

Albany MSHA Field Office supervisor informed Complainant that there was nothing that MSHA 

could do to assist in this matter. Complainant may have mistakenly inferred from this statement 

that he had no additional rights under the Mine Act. Considering the totality of circumstances, 

including Complainant’s pro se status and the lack of any notification from MSHA about the 

Complainant’s right to pursue an action under section 105(c)(3) with the Commission, the 

undersigned concludes there were justifiable circumstances that excuse the untimely filing of his 

section 105(c)(3) action with the Commission. 

Additionally, the Respondent failed to demonstrate material prejudice should the 

undersigned excuse the Complainant’s untimeliness. In both its motion to dismiss and its Reply 

to the Order to Show Cause, Respondent fails to articulate why, much less demonstrate how, its 

legal interests would be prejudiced by Complainant’s delay in filing with the Commission. 

41 FMSHRC Page 237
Although Respondent cites Perry to support the proposition that the 19-month delay is too long

to qualify as “excusable neglect,” Respondent does not address any of the cases or the legislative 

history cited above, which favor processing a claim despite untimely filing where no prejudice 

has been shown. Nor does Respondent’s Reply Memorandum address the other circumstances 

outlined in Perry that might give rise to a waiver of untimely filing, such as ignorance or 

mistake. Additionally, as noted, Respondent does not offer any reason why its legal interests 

would be adversely affected by waiving the untimely filing. Although the pro se Complainant 

was dilatory in pursuing his legal action under section 105(c)(3), Complainant contested his 

discharge with the Vermont Department of Labor and the Vermont judicial system shortly after 

contacting MSHA. As the parties’ filings indicate, the Respondent has been on notice of 

Complainant’s claims and has vigorously defended the validity of Complainant’s discharge since 

Complainant initiated legal actions against Respondent. Furthermore, there has been no showing 

by Respondent that essential witnesses are no longer available or that essential evidence no 

longer exists. Therefore, the undersigned concludes that the Respondent has not demonstrated 

material prejudice caused by waiving the untimely filing of the section 105(c)(3) action that 

Complainant filed with the Commission. 

Nevertheless, the undersigned concludes that Complainant’s section 105(c)(3) action 

should be dismissed under extant Commission precedent set forth in Hatfield v. Colquest Energy, 

Inc., 13 FMSHRC 544 (Apr. 1991). In Hatfield, the complainant sought to amend his complaint 

under section 105(c)(3) after a Commission judge dismissed his initial complaint for failure to 

allege any protected activity. The judge denied the respondent’s motion to dismiss the amended 

complaint. The Commission reversed and remanded on interlocutory review, holding that the 

complainant could not amend his complaint to include allegations that the Secretary had not 

previously investigated. The Commission reasoned that section 105(c)(2) gave the Secretary the 

prerogative to investigate violations of section 105(c), not the Commission. The Commission 

concluded: 

The written discrimination complaint filed by Hatfield with MSHA is general in 

nature and alleges no specific protected activities. The present record contains no 

indication that the matters alleged in the amended complaint were part of the case 

reported to and investigated by MSHA. Nor is there evidence in the record that 

the Secretary's determination that the Act had not been violated was based on 

matters contained in the amended complaint. If the Secretary's determination was 

based upon an investigation that did not include consideration of the matters 

contained in the amended complaint, the statutory prerequisites for a complaint 

pursuant to § 105(c)(3) have not been met. 

13 FMSHRC at 546.

The Mine Act provides that an aggrieved miner must file a “complaint with the 

Secretary” to commence the investigatory process under section 105(c)(2). The initial complaint 

must contain some allegations of protected activity that the Secretary can investigate. If the 

Complainant does not allege protected activity in its initial communication with MSHA, a 

complainant cannot subsequently amend his pleading before the Commission to allege new 

protected activity that was not investigated by MSHA. Hatfield, 13 FMSHRC at 545. 

41 FMSHRC Page 238
Hatfield is controlling here. Complainant’s initial complaint filed with MSHA does not 

appear to allege any protected activity. Complainant’s May 22, 2017 email communication with 

MSHA makes no reference to the alleged belt feeder incident. The closest that Complainant 

comes to describing the alleged belt feeder incident in his initial communication with MSHA is 

his general statement that he was called into Respondent’s offices to discuss “plant 

modifications.” There is no reference to health or safety concerns. Even given the liberal 

construction that the Commission accords pro se pleadings, Complainant’s email is simply too 

indefinite to satisfy Hatfield. 

By comparison, in DeRossett v. Martin County Coal Corp., 15 FMSHRC 883 (May 

1993) (ALJ), the judge found that complainant had apparently complied with Hatfield, but 

dismissed the complaint as untimely filed. Id. at 885 and n.2. In DeRossett, complainant’s initial 

complaint to MSHA stated: 

I was discharged by Martin County Coal Corp., MTR Surface Mine No. 1, in 

November 1989, for complaining about safety hazards. I am requesting 

reinstatement to my original job, receive backpay plus interest, have all benefits 

reinstated and to have all records pertaining to the discharge removed from my 

personnel file. 

Id. at 884. The judge found that complainant submitted a supplemental statement to MSHA 

detailing allegations of transfer to the evening shift and efforts to seek reinstatement after layoff. 

Accordingly, the judge found it apparent that complainant had complied with the administrative 

prerequisites set forth in Hatfield. Id. at 885 n.2. Complainant sought to file an amended 

complaint with the Commission to include additional violations of section 105(c)(1). Assuming 

arguendo that DeRossett's complaint to MSHA incorporated the allegations of discrimination 

contained in the amended complaint filed with the Commission,5

 and even assuming that such 

allegations were investigated by MSHA, the judge concluded that the complaint was filed 

untimely and that the untimely filing could not be excused. Id. at 885. More specifically, the 

judge reasonably inferred, under the totality of circumstances, that DeRossett received sufficient 

information during his period of employment with respondent from which he knew, or should 

have known, of his right to file complaints with MSHA under Section 105(c) of the Act for 

retaliation against him for making safety complaints. Id. at 887. 

By contrast, in this case, Complainant did not provide any additional explanation to 

MSHA about what “plant modifications” meant in his initial email to MSHA. He simply alleges 

that Respondent unlawfully discharged him due to his age and thereafter physically assaulted 

5

 Specifically, the amended complaint filed with this Commission alleged the following 

two allegations: 1) complainant made numerous complaints to supervisory personnel about 

unsafe working conditions, which complaints were a substantial factor in motivating respondent 

to move complainant to second shift during a reduction in force, despite the retention on the first 

shift of a position that complainant was qualified and entitled to fill; and 2) complainant sought 

reinstatement to his former position on numerous occasions following his discharge, but 

respondent refused to rehire him, despite the recall of less senior individuals following the 

reduction in force, because of complainant's safety complaints.

41 FMSHRC Page 239
him at company headquarters.6

 Also, there is no evidence in the record that MSHA’s 

determination that there was nothing it could do—i.e., there was insufficient evidence that the 

Act had been violated in customary parlance—was based on matters contained in the new 

allegations filed under section 105(c)(3). 

On the contrary, Complainant’s section 105(c)(3) action filed with the Commission on 

December 13, 2018 sets forth the alleged belt feeder incident for the first time. Under Hatfield, 

the December 13, 2018 filing does not cure the deficiency of the earlier filing because MSHA’s 

insufficient evidence determination was based upon an investigation that did not include 

consideration of the matters contained in the section 105(c)(3) filing.7 Under section 105(c)(2), 

6

 While alleged age discrimination and physical assault are serious matters, the Mine Act 

is not the remedy for every workplace dispute simply because it occurs in or around a mine. See, 

e.g., Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 (Dec. 1990) (“[T]he Commission

does not sit as a super grievance board to judge the industrial merits, fairness, reasonableness, or

wisdom of an operator’s employment policies except insofar as those policies may conflict with

rights granted under section 105(c) of the Mine Act.”) (internal citations omitted). Although the

Commission has never addressed the issue to the undersigned’s knowledge, it is conceivable that

under the particular facts and circumstances of a given case, reporting workplace violence or

abuse because of protected activity or because it implicates concerns for safe performance of

work tasks could rise to the level of protected activity under section 105(c) of the Mine Act. Cf.

Harris v. Duane Thomas Marine Contr., LLC, No. 2:13-cv-00076-SPC-DNF (M.D. Fla. Feb. 5,

2013) (the Secretary brought a complaint under section 11(c) of the OSH Act of 1970 alleging

that internal complaints to owner and/or external complaints to OSHA concerning workplace

violence and verbal abuse constitute protected activity related to the OSH Act). See Keim v.

Cordero Mining LLC, 36 FMSHRC at 972 n. 5. However, the Secretary’s 11(c) theory in Harris

was never tested by dispositive motion before the case settled in 2014, and there is a clear

distinction between reporting workplace violence motivated by alleged protected activity or

which implicates concern for the safe performance of work tasks, and engaging in a physical

altercation with mine management in reaction to being terminated. In either instance, it is

incumbent on the Complainant, pursuant to Hatfield, to provide sufficient information to enable

MSHA to initiate an investigation into the matter.

7

 As recounted in the statement of facts, Complainant did describe the altercation in his 

email to MSHA. However, Complainant merely told MSHA that he initially believed the 

meeting was going to be about “plant modifications,” which is not sufficiently descriptive of any 

protected activity or any nexus between the workplace altercation and protected activity to 

compel MSHA to investigate. Furthermore, the Supreme Court of Vermont, when hearing 

Complainant’s state law wrongful termination claim, made no reference to a physical fight 

following Complainant’s realization that he was to be terminated. See Deuso v. Vermont 

Department of Labor, No. 2017-425, 2018 WL 2100366 (Vt. May 4, 2018) (unpub. mem.), 

which states: 

Before the president or vice president had the opportunity to raise their specific 

concerns, claimant asked if the meeting was about the quarry or about him. When 

(continued...) 

41 FMSHRC Page 240
the Secretary is entitled to “cause such investigation to be made as he deems appropriate.” Here, 

the Secretary’s designee apparently deemed no investigation appropriate other than an initial 

reading of Complainant’s May 22, 2017 email. Consequently, despite the liberal manner in 

which the Commission construes pro se complaints, under the Commission’s precedent in 

Hatfield, Complainant’s December 13, 2018 filing is deficient as a matter of law and must be 

dismissed. 

Nevertheless, the undersigned is compelled to comment on the cursory nature of 

MSHA’s investigation of this matter. Complainant contacted the MSHA Albany Field Office 

supervisor at 7:06 a.m. on May 22, 2017. He informed MSHA that he had been terminated from 

his position at a mine for allegedly improper reasons and that a physical altercation occurred 

between Complainant and owners of Respondent immediately after he was fired.8

 He also 

provided his phone number. One brief follow-up phone conversation between MSHA and 

Complainant might have uncovered the belt feeder incident, which could have prompted an 

investigation into whether the Complaint appeared to have merit. Such an investigation would 

have been timely under the Mine Act and would have preserved Complainant’s ability to bring 

his allegations under section 105(c)(3), if the Secretary determined, after investigation, that he 

would not prosecute the Complaint on Complainant’s behalf. 

Furthermore, in subsequent proceedings brought before the Vermont Department of 

Labor and this Commission, the Respondent acknowledged that Complainant was terminated for 

refusing to obey an order to keep the belt feeder running at full capacity. 

[Complainant] was specifically instructed not to adjust any of the settings and if 

any issues arose or if he felt needed [sic] to reset, he was to contact either Dennis 

Demers or Trampas Demers before making any adjustments. There is no question 

that he disobeyed and disregarded that direct order. That is the reason he was 

terminated. 

Reply Memorandum at 2. If Complainant reasonably believed that the operator’s order was 

unsafe or hazardous, firing him for refusing to follow that order arguably violates section 105(c) 

of the Mine Act. See Secretary of Labor on behalf of Hogan v. Emerald Mines Corp., 8 

FMSHRC 1066, 1071 (July 1986) (“A miner has the right under section 105(c) of the Mine Act 

7

 (...continued) 

told that the meeting was about him, claimant ‘jumped to the conclusion he was 

being fired and stormed out of the meeting.’ He used profanity on the way out of 

the building. 

Id. at *1. Taken together, the undersigned concludes that Complainant’s description of the 

alleged termination to MSHA was insufficient to plead protected activity as articulated in 

Hatfield. 

8

 The MSHA Field Office’s response to the Complainant’s initial filing states, in part, 

that Respondent’s main office does not fall under MSHA jurisdiction. It would appear to be 

wholly inconsistent with the purposes of section 105(c)(1) if an operator could avoid MSHA 

jurisdiction simply by bringing miners to the operator’s corporate offices before retaliating 

against them because of the exercise of any alleged protected rights at the mine site. 

41 FMSHRC Page 241
to refuse work, if the miner has a good faith, reasonable belief in a hazardous condition.”), citing 

Miller v. Federal Mine Safety and Health Review Comm’n, 687 F.2d 194, 195 (7th Cir. 1982);

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d. Cir. 1981); Secretary of Labor on behalf 

of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). 

In short, a more thorough investigation by MSHA likely would have shed light on the 

validity of pro se Complainant Deuso’s allegations before the Commission. Instead, MSHA 

summarily dismissed the matter less than four hours after it was initially brought to the Albany 

Field Office’s attention, resulting in dismissal of whatever potential claims to relief Complainant 

might have had after full investigation by MSHA under extant Commission precedent set forth in 

Hatfield. 

III. ORDER

For the foregoing reasons, it is ORDERED that the section 105(c)(3) Complaint filed on 

December 13, 2018, be DISMISSED. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: 

Michael J. Deuso, 236 North Main Street, East Berkshire, VT 05447 

Joseph F. Cahill, Jr., Cahill Gawne Miller & Manahan P.C., P.O. Box 810, St. Albans, VT 05478 

James R. Logan, U.S. Department of Labor, MSHA, 24 Computer Drive West, Albany, NY 

12205 

41 FMSHRC Page 242