JANUARY 1984 

Commission Decisions 

1-06-84 

1-09-84 

1-09-84 

1-13-84 

1-30-84 

Mathies Coal Company 

W.Schulte v. Lizza Industries, Inc. 

D.Hollis v. Consolidation Coal Co. 

Consolidation Coal Company 

Energy Fuels Nuclear, Inc. 

Administrative Law Judge Decisions 

1-06-84 

1-10-84 

1-10-84 

1-13-84 

1-13-84 

1-13-84 

1-13-84 

1-16-84 

1-17-84 

1-17-84 

1-17-84 

1-20-84 

1-23-84 

1-26-84 

1-26-84 

1-30-84 

1-30-84 

1-30-84 

1-31-84 

H. Gilpin v. Bethlehem Mines Corp. 

UMWA/H. Beard v. Midwestern Mining 

Stephen Woody v. Mid-Continent Res. 

Rushton Mining Company 

MSHA/G. Boone v. Rebel Coal Co. 

Jack Gravely v. Ranger Fuel Corp. 

Bethlehem Mines Corporation 

MSHA/Jack Kiefer v. National King Coal 

MSHA v. Robert Klein 

MSHA v. Wayne Kendall 

MSHA v. Ben Powell 

Wm. Haro v. Magma Copper Company 

Callanan Industries, Inc. 

West Va. Rebel Coal Company 

Albert Zeisel v. Asarco, Inc. 

U.S. Steel Mining Co., Inc. 

MSHA v. Robert Riedman 

United States Steel Mining Co., Inc. 

Southway Construction Co., Inc. 

PENN 82-3-R 

YORK 81-53-DM 

WEVA 81-480-D 

WEVA 80-116-R 

WEST 81-385-M 

PENN 84-5-D 

CENT 83-44-D 

WEST 80-491-D 

PENN 83-28 

WEVA 80-532-D 

WEVA 83-101-D 

WEVA 83-93 

WEST 83-96-D 

WEST 81-402-M 

WEST 81-406-M 

WEST 82-12-M 

WEST 79-49-DM 

YORK 79-99-M 

KENT 83-117 

WEST 83-9-DM 

PENN 82-305 

WEST 82-13-M 

WEVA 83-31 

WEST 80-111-M 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

1 

8 

21 

34 

41 

Pg. 47 

Pg. 49 

Pg. 51 

Pg. 52 

Pg. 57 

Pg. 58 

Pg. 91 

Pg. 109 

Pg. 111 

Pg. 113 

Pg. 115 

Pg. 117 

Pg. 139 

Pg. 140 

Pg. 142 

Pg. 155 

Pg. 162 

Pg. 168 

Pg. 174 

COMMISSION DECISIONS 

JANUARY 

The following case was Directed for Review during the month of January: 

Secretary of Labor on behalf of Michael Hogan and Robert Ventura v. Emerald 

Mines Corporation, Docket No. PENN 83-141-D (Judge Koutras, December 19, 1983) 

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

United Mine Workers of America, Local 111197 v. Bethlehem Mines Corporation, 

Docket No. PENN 83-234-D (Judge Broderick, December 13, 1983) 

Secretary of Labor, MSHA v. United States Steel Corporation, Docket No. 

PENN 83-221 (Judge Merlin, December 14, 1983) 

United States Fuel Company v. Albert J. Dicaro, Docket No. WEST 82-113-D 

(Judge Fauver, December 15, 1983) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MATHIES COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 6, 1984 

DECISION 

Docket No. PENN 82-3-R 

PENN 82-15 

This consolidated proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981), 

and presents the question of whether a violation of 30 C.F.R. § 75.1403 

was "significant and substantial" within the meaning of Cement Division, 

National.Gypsum Company., 3 FMSHRC 822 (April 1981). The Commission's 

administrative law judge concluded that Mathies Coal Company ("Mathies") 

violated the standard, that the violation was significant and substantial, 

and assessed a penalty. 4 FMSHRC 1111 (June 1982)(ALJ). We granted 

Mathies' petition for discretionary review, which challenges only the 

judge's significant and substantial findings. For the reasons that follow, 

we affirm. 

On September 22, 1981, during a spot inspection of Mathies' underground 

coal mine, an inspector of the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued a citation to Mathies under section 104(a) of 

the Mine Act, 30 U.S.C. § 814(a)(Supp. V 1981). The citation alleged a violation of 30 C.F.R. § 75.1403, ];_/ and stated: 

!/ The portions of the standard involved in this citation are: 

Section 75.1403, a statutory provision, which requires that 

[o]ther safeguards adequate, in the judgment of 

an authorized representative of the Secretary, to 

minimize hazards with respect to transportation of 

men and materials shall be provided; 

Section 75.1403-1, which permits the Secretary's authorized representative to require on a mine-by-mine basis, safeguards in addition to those 

required in §§ 75.1403-2 through 75.1403-11; and 

Section 75.1403-6(b)(3), which requires in part that each track-mounted, 

self-propelled personnel carrier be equipped with "properly installed and 

well-maintained sanding devices •••• " 

1 
One of the four sanding devices provided for the 

No. 4 self-propelled personnel carrier (mantrip) 

was inoperative which was going to transfer personnel from Gamble No. 1 to 4 face 24 Butt Parallel 

Section. The sander was empty due to a valve that 

was stuck open. Foreman in charge Ron Pietroboni. 

Notice to provide safeguard lJWC 12-01-72. [~/] 

The citation also alleged that the violation was significant and substantial. 

The inspector issued the citation at the start of the day shift, immediately 

following the mantrip operator's regular check of the mantrip. The inspector terminated the citation five minutes later after Mathies adjusted the 

valve and refilled the defective sander with sand. Thereafter, Mathies filed 

with this independent Commission a notice of contest of the citation. The 

contest proceeding subsequently was consolidated with the Secretary of Labor's 

proposal for a civil penalty. 

The mantrip was used by Mathies to transport its production crews of 8-10 

miners to and from working areas in the mine. The mantrip traveled along the 

haulage track from an area near the mine portal called the "bottom" to the 

working sections, at the beginning of each of three shifts and back again at 

the conclusion of the shifts. In addition to primary and secondary braking 

systems, the mantrip was equipped with a sander above each of its four wheels. 

Each sander contained a half-gallon of sand. The sanders supplemented the 

mantrip's brakes by dispensing sand in order to increase the friction between 

the haulage track and the wheels. The mantrip used only the two sanders at 

the front end, as determined by the direction of travel. One hand lever 

activated the two sanders at the front end of the mantrip, so that one 

inoperable sander would reduce sanding capacity by one-half. 

The record evidence indicates that sanders were most likely to be needed 

to supplement a mantrip's brakes in wet conditions, on curves, or on grades. 

The Mathies mine was considered to be a "wet" mine. Some areas along the haulage track were always damp or wet. In a few locations, Mathies used sump pumps 

to reduce excess moisture. On September 22, 1981, the haulage track was wet' at 

least in part because it was a high humidity time of year. The mantrip's route 

to the working section on the September 22d day shift passed curves, including 

blind curves and an S-curve, and hills, the steepest having a 3.4% grade. 

At the time the inspector issued the citation, the mantrip was fully 

loaded and ready to go. The inoperable sander was on the rear end of the 

mantrip. Because the mantrip changed directions five minutes into the 

20-minute trip, however, what was the rear end of the mantrip at the start 

of the trip would become the front end. Thus, the majority of the mantrip's 

6,500-foot trip into the mine and a portion of the return trip could have 

required the use of the inoperable sander to supplement the brakes. 

]:_/ A general notice of safeguard, issued December 1, 1972, requiring sanding 

devices on all self-propelled mantrips, was modified on August 12, 1980. The 

modification required that "all mantrips at this mine will be provided with 

properly maintained sanding devices sufficient to sand all wheels in hath 

directions of travel." 4 FMSHRC at 1112. 
The Commission's administrative law judge concluded that the defective 

sander constituted a violation of the cited standard, and that the violation 

was significant and substantial. He assessed a $130 penalty. Applying the 

National Gypsum test for determining when a violation is significant and 

substantial, the judge concluded that the hazard associated with the violation 

was a sliding derailment or collision with an object on the tracks, and that 

the hazard was reasonably likely to result in an injury of a reasonably serious 

nature. 4 FMSHRC at 1115, 1117-19. He attributed the likelihood of such injury 

to such factors as the "wetness, albeit occasional, of the haulageway, the curves, 

and downgrades in the mine and the intrinsic danger of haulage travel itself." 

4 FMSHRC at 1118. 

The issue on review is whether substantial evidence supports the judge's 

conclusion that the violation was "of such a nature as could significantly and 

substantially contribute to the cause and effect of a coal or other mine safety 

or health hazard." 30 U.S.C.§ 814(d)(l)(Supp. V 1981). 3/ We have previously 

interpreted this statutory language as follows: -

[A] violation is of such a nature as could significantly 

and substantially contribute to the cause and effect of 

a mine safety or health hazard if, based upon the particular facts surrounding that violation, there exists 

a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably 

serious nature. 

National Gypsum, 3 FHSHRC at 825. Noting that the Mine Act does not define 

"hazard," we construed the term to "denote a measure of danger to safety or 

health." 3 F.MSHRC at 827. We stated further that a violation "'significantly 

and substantially' contributes to the cause and effect of a hazard if the 

v~olation could be a major cause of a danger to safety or health. In other 

words, the contribution to cause and effect must be significant and 

substantial." _!i_. (footnote omitted). 

In order to establish that a violation of a mandatory safety standard is 

significant and substantial under National Gypsum, the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory safety standard; !!_/ (2) a J' 

discrete safety hazard--that is, a measure of danger to safety--contributed to • 

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

3/ The Mine Act's references to significant and substantial violations are 

contained in sections 104(d) and (e), 30 U.S.C. §§ 814(d) & (e). The MSHA 

inspector's significant and substantial findings in this case were made in 

connection with a citation issued under section 104(a) of the Mine Act, 

30 U.S.C. § 814(a), which does not expressly refer to this statutory phrase. 

Mathies has not challenged the propriety of including such findings in a 

section 104(a) citation, and we accordingly express no view on the issue in 

this decision. We note, however, that the question is pending before us 

in Consolidation Coal Co., FMSHRC Docket No. PENN 82-203-R, etc. 

4/ We emphasize that this case involves the violation of a mandatory safety 

;tandard. We have pending before us a case raising a challenge to the application of National Gypsum to a violation of a mandatory health standard. 

Consolidation Coal Co., FNSHRC Docket No. WEVA 82-209-R, etc. We intimate 

no views at this time as to the merits of that question. 
resul~ in an inJury; and (4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. As a practical matter, 

the last two elements will often be combined in a single showing. 

Here, only two of the four elements necessary to establish a significant and substantial violation are at issue. Mathies does not contest the 

judge's finding of a violation or, assuming the existence of a hazard posing 

a reasonable likelihood of injury, that the injury would be reasonably 

serious. Mathies argues only that the evidence does not support a finding 

either that one defective sander could contribute to a hazard or that any 

such hazard would involve a reasonable likelihood of injury. 

The judge found that the violative condition, the defective sander, 

contributed to a hazard of a sliding derailment or collision with some object 

on the tracks. 4 FMSHRC at 1115. The record amply supports this finding. 

Section 75.1403-6(b)(3) (n. 1 supra), which requires sanders on mantrips, 

reflects a broad determination by the Secretary of Labor that a mantrip's 

brakes by themselves do not always provide sufficient traction to prevent 

derailment or collision and that sanders are necessary to provide added 

stopping power. MSHA's modification of the 1972 notice of safeguard to 

Mathies (n. 2 supra) reflects a specific determination that conditions at 

the Mathies mine required that mantrips be equipped with properly maintained 

sanding devices "sufficient to sand all wheels in both directions of travel." 

4 FHSHRC at 1112. These determinations support the conclusion that because 

brakes alone may not suffice to stop the mantrip at Mathies' mine, sanders 

are necessary to supplement the brakes and that a defective sander can 

contribute to a derailment or collision hazard. 

Moreover, the record also establishes the existence of a hazard on the day 

of the citation. The damp conditions in the mine, the wet track, and the fact 

that the mantrip's route traversed curves and grades, created travel risks on 

September 22, 1981, that could have required the extra traction that sanders are 

intended to provide. The foregoing considerations establish the existence of a 

hazard. We need not pass on the validity of the additional consideration, relied 

on by the judge, of the "intrinsic danger" of haulage travel. 

The remaining issue is whether the judge properly concluded that there 

was a reasonable likelihood that the hazard contributed to could result in 

inJury. As we have noted in our discussion of the hazard, the mantrip's 

route encompassed curves and grades. In addition to the chronically wet 

conditions at the mine, conditions were exceptionally wet on the day the 

citation was issued. If the dampness, curves, or grades had necessitated 

use of the defective sander, the absence of sanding capacity could have been 

a major cause of a derailment or a collision. We must be mindful of the fact 

that the mantrip carried miners, and we agree with the judge that it is 

reasonably likely that such a loss of control would have exposed the 8-10 

miners riding in the mantrip to .the reasonably serious injury that any 

derailment or collision could entail. Thus, we concur with the judge 

that the hazard contributed to by the violation created a reasonable 

likelihood of injury, and that the violation was therefore a major cause 

of a danger to safety. 

4 
In reaching this conclusion, we note that the judge's decision was 

based in large part on his credibility findings and his resolution of 

disputed testimony in the Secretary's favor. Such determinations by a 

judge should not be overturned lightly, and in any event, we need not 

take that exceptional step here. Secretary on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803, 813 (April 1981). First, in light 

of our admonition that an inspector's judgment is an important element 

in making significant and substantial findings, (National Gypsum, 3 FMSHRC 

at 825-26), the judge gave appropriate weight to the inspector's judgment. 

Second, as the judge concluded, the inspector's testimony was "reasonable, 

logical and credible." 4 FMSHRC at 1115. The inspector observed conditions 

first-hand, in contrast to Mathies' sole witness, its foreman, who conceded 

he was present only part of the time. Moreover, the inspector's testimony 

was more specific than that of the foreman who could not remember the exact 

conditions that day. Thus, we conclude that the judge did not err in 

crediting the inspector's testimony as to the wet rail, the hazards created 

by the loss of sanding capacity, and the likelihood of injury. 

For the foregoing reasons, we affirm the judge's holding that the 

violation was significant and substantial. 

'Ros~ ~~~ Co11)7;rochairman 

----

Commissioner 

5 
Commissioner Lawson concurring: 

I agree with the majority as to the. result reached and in their 

affirrnance of the decision of the judge below. However, for the 

reasons expressed in my dissent in National Gypsum, supra, I disagree 

with their analytical approach as set forth here and in that decision. 

L/ 

A. E. Lawson, Commissioner 
Distribution 

H. Juanita M. Littlejohn, Esq. 

Mathies Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

Michael McCord, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Harrison Combs, Esq., 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Michael Lasher 

Fed. Mine Safety & Health Rev. Conrrnission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

l"'1 

' 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

WALTER A. SCHULTE 

v. 

LIZZA INDUSTRIES, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 9, 1984 

Docket No. YORK 81-53-DM 

DECISION 

This case involves a discrimination complaint brought by Walter A. 

Schulte against Lizza Industries, Inc. ("Lizza"), pursuant to the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~· 

(1976 & Supp. V. 1981). At issue is whether Lizza's discharge of 

Schulte on October 15, 1980, was in violation of section 105(c)(l) of 

the Act, 30 U.S.C. § 815(c)(l)(Supp. V. 1981). Following a hearing on 

the merits, the Commission's administrative law judge determined that 

Lizza did not violate section 105(c)(l) and dismissed Schulte's complaint. 4 FMSHRC 1239 (July 1982)(ALJ). For the reasons that follow, 

we affirm the judge's decision. 

Lizza operated a gravel quarry and preparation plant in Mount Hope, 

New Jersey, known as the Mount Hope Quarry. Lizza operated the quarry 

on a full-time basis, Monday through Friday, and with a reduced work 

force on Saturday. Employees were required to report to work daily at 

7:00 a.m. The work day ended at 4:30 p.m. Lizza had a policy requiring 

employees to notify the operator between the hours of 6:00 a.m. and 

7:00 a.m. of unforeseen absences, in order that they might be excused. 

Lizza also had a policy requiring employees to work overtime each day. 

Failure to comply with either policy was grounds for disciplinary action. 

Schulte was hired by Lizza on May 27, 1980. On September 10, 1980, 

Schulte left work two hours early. Plant Manager Fred Oldenburg told 

Jesse Parzero, Schulte's foreman, to have a talk with him regarding his 

early departure. Schulte previously had received two verbal warnings 

from Oldenburg concerning his attendance in the period leading up to 

September 23, 1980. 

Schulte reported for work six to ten minutes late on both September 

23 and 24 1980. On the first occasion, Oldenburg prepared a letter 

alerting ~chulte to the possible consequences of his actions and personally 

8 
delivered it to him. By his signature, Schulte acknowledged receipt of 

the letter and the accompanying postscript. 1/ On September 30, 1980, 

Schulte left work one half hour early. He {~·iled to report for work on 

October 2, 1980, and failed to notify Lizza of his absence. 

Tension between Schulte and Lizza surfaced on Octcber 4, 1980, when 

Schulte was demoted from the position of bulldozer operator to the 

position of laborer for his alleged unsafe practices as an operator. 

Schulte contended at the Commission hearing that he was removed in order 

to make room for a friend of the plant manager. Later that day, an 

altercation developed between Schulte and Parzero, his foreman, and 

disparaging remarks were exchanged. Ultimately, Oldenburg had to make 

peace between the two men. That same day, Oldenburg informed Schulte 

that he was being suspended without pay for three days. 

On October 6, 1980, the first day of this three-day suspension, 

Schulte reported safety complaints to the Department of Labor's Occupational Safety and Health Administration and Mine Safety and Health 

Administration ("MSHA"). Apart from these documented complaints, Schulte 

indicated at the hearing that he also reported safety complaints to both 

his foreman and his shop steward. Both individuals denied the allegations. 

Upon Schulte's return from the three-day suspension, Oldenburg gave 

him a letter, dated October 6, 1980, advising him of the suspension. 

Schulte acknowledged receipt of the letter and the accompanying postscript. '!:_/ On October 10, 1980, Schulte again left work one half hour 

1/ The body of the letter dated September 23, 1980, reads: 

Your attendance practices leave much to be desired. These practices 

cannot be tolerated. I am, therefore, formally informing you that 

if these practices continue you will be suspended and subsequently 

terminated. If you have any questions, please let me know. 

The postscript reads: 

I hereby understand that if my poor attendance practices continue 

I will be suspended for three days and terminated thereafter if 

the practices continue. 

2/ The body of the letter dated October 6, 1980, reads: 

Your attendance practices and work attitude leave much to be 

desired. You have been warned about these practices, yet you 

continue to be insubordinate. You are therefore suspended without pay for three days. If your performance does not improve, 

your employment will be terminated. If you have any questions, 

please let me know. 

The postscript reads: 

I hereby understand that if my poor attendance practices and work 

attitude continue, I will subsequently be terminated. 

9 
early. He also left work one half hour early on October 14, 1980. On 

October .15, 1980, he reported for work six minutes late. 

Responding to Schulte's safety complaints of October 6, 1980, two 

MSHA inspectors conducted an inspection of Lizza's Mount Hope Quarry on 

October 14 and 15, 1980. On October 14, 1980, MSHA cited Lizza for the 

inadequate guarding of a conveyor belt in a walkway near an area where 

Schulte worked. MSHA Inspector Robert Held testified that he mentioned 

to management that the miner's safety complaint which MSHA had received 

involved the guarding of the conveyor belt. Held did not identify Schulte 

as the complainant. Schulte testified that Oldenburg, Parzero and 

Vincent Crawn·, his shop steward, were present when he directed the MSHA 

inspectors to other alleged safety violations. 

The decision to terminate Schulte was reached at a meeting of management personnel on the second day of the MSHA inspection, October 15, 

1980. Those participating included Oldenburg, Parzero, Crawn and senior 

company official James Granito. Both Oldenburg and Parzero admitted 

that at the time of the meeting they were aware of rumors that Schulte 

had initiated the MSHA inspection. At the hearing, Oldenburg testified 

that Granito may have brought up the fact that Schulte's discharge had 

absolutely nothing to do with the MSHA inspection. 

Schulte was called into the meeting and discharged by Oldenburg, 

who gave him a letter detailing the reasons for his discharge. 3/ The 

two MSHA inspectors on the mine site were notified by management of 

Schulte's termination. 

Following his discharge, Schulte's union filed a grievance on his 

behalf and the question of whether his dismissal was for just cause 

under the applicable collective bargaining agreement was submitted for 

]_/ The body of the letter dated October 15, 1980, reads: 

You had been warned several times and subsequently suspended 

without pay as a result of poor attendance practices and insubordination. At a meeting held on Wednesday, October 15, 1980, 

you stated that your attitude had not improved and would not 

improve as a result of your no longer operating the bulldozer 

at our Mt. Hope plant. 

You were reminded on several occasions, and specifically on 

Thursday, October 9, 1980, by your foreman, Jesse Parzero, that 

your job required overtime each day. You have opted to neglect 

these instructions and have left your work area prior to the 

designated quitting time. 

Our prior verbal warnings, written warnings and disciplinary suspension have obviously failed to rehabilitate you. You have therefore left us no choice but to terminate your employment, effective 

today, October 15, 1980, at 1:30 p.m. 

10 
arbitration. !±_I On January 15, 1981, Schulte filed a complaint of 

discrimination with MSHA pursuant to section 105(c)(2) of the Mine Act, 

30 U.S.C. § 815(c)(2). Upon investigation, MSHA determined that no 

provisions of the Act had been violated and so informed Schulte on 

May 4, 1981. On May 14, 1981, Schulte filed his own complaint of discrimination directly with this independent Commission pursuant to section 

105(c)(3) of the Act, 30 U.S.C. § 815(c)(3). 2_1 Three separate evidentiary hearings were held. On July 6, 1982, the Commission's judge 

issued his written decision dismissing Schulte's complaint. Both parties 

filed cross petitions for discretionary review, which we subsequently 

granted. 

In reaching his decision, the judge employed the discrimination 

analysis which we enunciated in Secretary on behalf of Pasula v. 

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

grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd 

Cir. 1981), and Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803 (April 1981). The judge found Schulte's safety complaints to MSHA on October 6, 1980, constituted activity protected by 

section lOS(c)(l) of the Act and, thus, that Schulte had established the 

first element of his prima facie case under Pasula. As to the second 

element of that case, whether Schulte's discharge by Lizza was motivated 

in any part by his protected activity, the judge found from the circumstantial evidence available that "it could very well be inferred that 

Mr. Schulte's discharge was at least partially motivated by his protected 

activities." 4 FMSHRC at 1241. However, given the uncontradic ted 

evidence regarding his work attendance, the judge further found that 

"while Lizza may very well have had a 'mixed motivation' for discharging 

Schulte, it had credible 'business justifications' to discharge Schulte 

exclusive of any protected activities and it clearly would have discharged 

Schulte in any event for his unprotected activities alone." 4 FMSHRC at 

l244. The judge also found that Schulte's contention of disparate 

treatment, without credible evidence to support it, was not sufficient 

to rebut Lizza's affirmative defense. Id. 

!±_I The arbitrator's subsequent decision, dated February 23, 1981, was 

admitted as evidence at the hearing before the Commission's administrative law judge. Although the Commission judge did not refer to the 

arbitral decision in his own decision, we note in passing that the 

arbitrator concluded that Schulte was dismissed for a poor work attitude 

and attendance problems, and that his discharge was therefore for just 

cause within the meaning of the contract. This result accords with that 

reached by the judge. 

2_1 After investigation of a miner's complaint, the Secretary of Labor, 

acting through MSHA, is required to file a discrimination complaint with 

this Commission on the miner's behalf if he determines that the Act was 

violated. 30 U.S.C. § 815(c)(2). If the Secretary determines that the 

Act was not violated, as happened in this case, he shall so inform the 

miner and the miner may then file his own complaint directly with the 

Commission. 30 U.S.C. § 815(c)(3). 

11 
On review Schulte contends that the judge erred in concluding that 

Lizza established a successful affirmative defense to his prima facie 

case. As a preliminary matter, Lizza argues that Schulte's discrimination complaint to MSHA was not timely filed under the 60-day time 

limit contained in section 105(c)(2) of the Mine Act, 30 U.S.C. 

§ 815(c)(2), and should have been dismissed on that basis. Lizza also 

contends that, even if the complaint were timely, the judge erred in 

finding that Lizza had knowledge of Schulte's protected activity and in 

concluding that Schulte established a prima facie case. We first address 

the timeliness question. 

Lizza initially raised its limitations defense before the judge 

during the last evidentiary hearing on April 16, 1982, and, again, by 

written motion prior to issuance of the judge's written decision. At 

the hearing, the judge expressed doubt about Lizza's own timeliness in 

raising the issue at that late stage of the proceedings. He seemed to 

be of the opinion that Lizza had waived the affirmative defense by not 

raising it in its pleadings and by proceeding with the hearing on the 

merits. Lizza maintained that it had not received a copy of the complaint Schulte originally filed with MSHA until April 5, 1982, when it 

obtained a copy from the Secretary pursuant to a Freedom of Information 

Act ("FOIA") request. Only then, Lizza asserted, was it able to ascertain 

that Schulte's complaint was filed out of time. The judge did not 

specifically address Lizza's limitations defense in his decision. From 

the fact that the judge proceeded to decide the case based upon the 

merits, however, it appears, by necessary implication, that he rejected 

it. That is the construction of his decision which Lizza urges on 

review and is the one which we adopt. 

Section 105(c)(2) of the Act establishes the relevant period of 

limitations: 

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 .••• 

30 U.S.C. § 815(c)(2)(emphasis added). In Herman v. Imco Services, 4 

FMSHRC 2123 (December 1982), we held that the purpose of the 60-day time 

limit is to avoid stale claims, but that a miner's late filing may be 

excused on the basis of "justifiable circumstances." We relied on the 

Mine Act's relevant legislative history, which states: 

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 

12 
which could warrant the extension of the time-limit 

would include a case where the miner within the 

60-day period brings the complaint to the attention 

of another agency or to his employer, or the miner 

fails to meet the time limits 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 

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)(emphasis added). "Timeliness questions must be 

resolved on a case-by-case basis, taking into account the unique circumstances of each case." Hollis v. Consolidation Coal Co., FMSHRC Docket 

No. WEVA 81-480-D, slip op. at 4 (January 9, 1984). 

In the present case, Schulte filed his initial discrimination 

complaint with MSHA on January 15, 1981, 91 days after his discharge on 

October 15, 1980, and, thus, 31 days out of time. In its motion to 

amend its answer to include a period of limitations defense, Lizza 

apparently concedes that the reason Schulte did not file his complaint 

with MSHA on a timely basis was due to his ignorance of any such requirement. To support this contention, Lizza points to the transcript 

of MSHA's March 4, 1981, interview with Schulte, wherein Schulte stated: 

Q. Are you familiar that there's a time limit on 

the discrimination complaint? 

A. No. I was not aware of that. 

* * * 

Q. Ok. Now, so you weren't familiar with the 

time limit on this? 

A. No, sir. 

Operator's Exhibit 24, p. 4. On the basis of this uncontroverted 

evidence, we conclude that Schulte failed to file his complaint with 

MSHA within 60 days of the alleged violation because.he was unaware of 

the Act's provisions in this regard. 

We also conclude that the operator was not prejudiced by Schulte's 

31-day delay in filing. Lizza's only claim of prejudice is that, due to 

the judge's failure to dismiss Schulte's complaint based upon its period 

of limitations defense, it was required to expend the time and expense 

of litigating this case. While the expenditure of time and money involved in litigation should not be discounted, neither should it be 

overstated. Lizza has not demonstrated to us the kind of legal prejudice which we recognized in Herman, supra, namely, tangible evidence 

that has since disappeared, faded memories, or missing witnesses. 4 

FMSHRC at 2139. In any event, the record reveals significant evidence 

which leads us to conclude that Lizza's conduct before raising the limitations argument was tantamount to waiver. 

13 
The copy of Schulte' s complaint to MSHA, which Liz-za relies upon as 

"newly discovered" evidence, is really not new. In a letter addressed 

to Oldenburg dated January 26, 1981, the Secretary of Labor notified 

Lizza that Schulte had filed a complaint with MSHA alleging discriminatory 

treatment by Lizza. A Summary of Discriminatory Action, also dated 

January 26, 1981, was attached to the letter. Included on each item was 

the discrimination number, MD 81-46, which MSHA had assigned to the complaint. By letter dated August 3, 1981, Lizza's attorney connnunicated 

with then Chief Judge Broderick, concerning Schulte's May 14, 1981, 

complaint of discrimination pending before the Connnission. MSHA's 

letter to Oldenburg of January 26, 1981, was appended to this letter. 

In the body of his letter, Lizza's attorney stated, "For your information, 

Mr. Schulte had filed a complaint against the Company in January of this 

year in case No. MD 81-46." 

A complaint filed by Schulte anytime in January 1981 would have 

been outside the 60-day limit. Lizza's August letter thus reveals that 

Lizza, in January of 1981, but certainly no later than in August of 

1981, had actual notice of Schulte's late filing. This notice substantially predated receipt of its FOIA request in April 1982. §_/ 

Under these circumstances, Lizza's own delay of many months after it had 

such notice before complaining of Schulte's 31-day delay was tantamount 

to waiver of its period of limitations claim. Cf. Rule 8(c), Fed. R. 

Civ. P. 

On the basis of the foregoing considerations, Schulte's delay in 

filing his complaint is excused. We emphasize, however, that although a 

miner's lack of understanding regarding his rights under the Mine Act is 

one of the circumstances that may possibly justify excuse of a delayed 

filing, any delay is a potentially serious matter. ]_/ 

!!_/ While the document Lizza received from the Secretary pursuant to 

its 1982 FOIA request clearly identifies January 15, 1981, as the date 

Schulte's complaint was actually filed, MSHA's letter to Oldenburg dated 

January 26, 1981, nevertheless provided Lizza with sufficient independent 

information from which to determine the timeliness of Schulte's complaint. 

The newly discovered evidence did little more than advise Lizza that the 

complaint was actually filed 11 days earlier than it first might have 

been led to believe. 

]_/ This case is distinguishable from Herman and Hollis, supra, where 

the miners' late filings were not excused. The delay involved here was 

less than in those cases. In Herman, we concluded that the delay prejudiced the operator's ability to prepare and present its case. 4 

FMSHRC at 2138-39. In Hollis, the Commission concluded (Commissioner 

Lawson dissenting on this issue) that the miner knew of his Mine Act 

rights, but deliberately chose to pursue other avenues of relief. Slip 

op. at 3-5. 

14 
We now turn to the substantive discrimination issues. Under Fasula 

and Robinette, supra, a complainant alleging a violation of section 

105(c) of the Act must make a prima facie showing that (1) he engaged in 

protected activity and (2) the adverse action complained of was motivated in any part by the protected activity. In order to rebut a prima 

facie case, an operator must show either that no protected activity 

occurred or that the adverse action was in no part motivated by protected activity. If an operator cannot rebut the prima facie case in 

this manner, it may nevertheless affirmatively defend by proving that 

(1) it was also motivated by the miner's unprotected activities, and 

(2) it would have. taken the adverse action in any event for the unprotected activities alone. The operator bears an intermediate burden 

of production and proof with regard to these elements of defense. This 

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

cases where the adverse action is motivated by both protected and unprotected activity. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1937 (November 

1982). The ultimate burden of persuasion does not shift from the complainant. Secretary on behalf of Robinette v. United Castle Coal Co., 3 

FMSHRC at 818 n. 20. The Supreme Court recently approved the National 

Labor Relations Board's virtually identical analysis for discrimination 

cases arising under the National Labor Relations Act. NLRB v. Transportation Management Corp., 76 L.Ed. 2d 667 (1983). See also Baich v. 

FMSHRC, 719 F.2d 194 (6th Cir. 1983)(approving the Commission's PasulaRobinette test). 

At this stage of the proceedings, no one disputes that Schulte 

engaged in protected activity. Lizza takes exception only to the 

judge's factual conclusion that it had knowledge of Schulte's protected 

activity. It contends that such a conclusion is not supported by the 

evidence and, consequently, that the judge erred in holding that Schulte 

had established his prima facie case. 

In Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508 (November 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 

1983), we stated that direct evidence of motivation is rarely encountered and that reasonable inferences of motivation may be drawn from 

circumstantial evidence showing such factors as knowledge of protected 

activity, coincidence in time between the protected activity and the 

adverse action, and disparate treatment. 3 FMSHRC at 2510. We also 

indicated that knowledge was probably the single most important aspect 

of a circumstantial case. Because knowledge also involves subjective 

factors, it may be proved by circumstantial evidence and reasonable 

inferences. Id. The judge evaluated the evidence and concluded that 

Schulte had made a prima facie showing on the issues of knowledge and 

motivation. The judge found that officials of Lizza "had some knowledge, 

albeit 'rumors', that Schulte had called in the MSHA inspectors," that 

there was a coincidence in time between the MSHA inspection and Schulte's 

discharge, and that the "peculiar gratuitous denial [by Granito] that 

Schulte's discharge was the result of the MSHA inspection" cast doubt on 

Lizza's denial of any discriminatory intent. 4 FMSHRC at 124. 

15 
Although other inferences could have been drawn from the available 

evidence, there is a substantial evidentiary basis in the record to 

support the judge's conclusion that Schulte's discharge was at least 

partially motivated by his protected activity. We find no persuasive 

reason to overturn the judge on this point. The next question is whether 

Lizza affirmatively def ended by showing that it would have discharged 

Schulte in any event for his unprotected activity alone. 

The judge found that, although Schulte engaged in protected activity, 

he also engaged in unprotected activity as well. The judge concluded 

that the uncontradicted evidence of Schulte's poor work attendance 

clearly supported Lizza's business justification for discharging him. 

Schulte argues that the judge erred by imposing on him, as complainant, 

the burden of proving disparate treatment. Schulte contends that once a 

prima facie case has been established, the burden of proof shifts to the 

operator. Schulte also argues that the judge erred in concluding that 

he would have been discharged for his unprotected activity alone. He 

maintains that the evidence shows that the discipline meted out to him 

was not consistent with that given to other employees similarly situated. 

He also asserts that the judge was extremely vague in analyzing the 

record evidence in this regard. 

Regarding Schulte's burden of proof arguments, we indicated in 

Chacon, supra, that if a complainant wishes to allege disparate treatment, 

it could serve as one of the possible bases of a prima facie case. 4 

FMSHRC at 2412-13. It may also be presented by a complainant in order to 

refute an operator's affirmative defense. 4 FMSHRC at 2517. In the 

latter instance, the ultimate burden of persuasion still remains with 

the complainant who must refute a facially meritorious affirmative 

defense in order to prevail. Robinette, 3 FMSHRC at 818 n. 20. Conversely, 

in bearing the intermediate burden of proof of establishing an affirmative 

defense, the operator is equally free to show consistent treatment. We 

do not read the judge's decision as requiring Schulte to prove disparate 

treatment. 4 FMSHRC at 1244. A prima facie case can be made without 

such a showing. In this case, the evidence presented by Schulte to 

demonstrate disparate treatment, however characterized theoretically, 

simply amounted to evidence to be weighed·against the evidence favoring 

Lizza. The judge did so, and found Schulte's evidence lacking. We find 

no merit in Schulte's argument regarding any possible misallocation of 

evidentiary burdens. 

Turning to the merits of the issue of whether Schulte would have 

been discharged for his unprotected activity alone, we set forth in 

Bradley v. Belva Coal Co., 4 FMSHRC 982 (June 1982), some of the indicia 

tending to show that a miner's unprotected activity alone would have 

resulted in the disciplinary action taken: 

Ordinarily, an operator can attempt to demonstrate 

[that it would have disciplined the miner in any 

event for his unprotected activity alone] by showing, 

for example, past discipline consistent with that 

meted out to the alleged discriminatee, the miner's 

unsatisfactory past work record, prior warnings to 

the miner, or personnel rules or practices forbidding 

the conduct in question. 

Id. at 993. 16 
To support its position that it would have discharged Schulte in 

any event, Lizza points to significant evidence. It maintains that not 

only did it discipline Schulte in accordance with its established company 

disciplinary policy, but the discipline it administered was consistent 

with past discipline and warnings me~ed out to Schulte prior to his 

protected activity. Following repeated oral warnings, Schulte was given 

a written warning regarding his unsatisfactory attendance. Schulte 

continued to be both late and absent. Following his argument with 

Parzero, Oldenburg informed Schulte that he was suspended for three days 

without pay. During his suspension, Schulte engaged in his protected 

activity, that is, made his safety complaints to OSHA and MSHA. When he 

returned to work, Schulte was given both written confirmation of the 

previous disciplinary action and admonished that termination would 

follow if his conduct did not improve. Furthermore, following the suspension, Schulte again was caught in the act of leaving work early and 

again was warned (orally) that severe disciplinary action could be 

provoked by such a violation of the rules. Lizza argues that, even when 

Schulte was discharged, he indicated to his supervisors that his attitude 

would not improve as long as he was not permitted to work on the bulldozer. 

On the specific issue of consistent treatment of other employees 

similarly situated, Lizza argues that even though it had been in 

operation for less than six months, two other miners had received written 

warnings. Shortly after Schulte received his written warning, two other 

miners were suspended for three days without pay under the same disciplinary policy. Lizza also notes that on the same day that Schulte was 

terminated, miner Boisvert was suspended for three days without pay for 

refusing to work overtime as required by the company. 

To support his contention of disparate treatment, Schulte maintains 

that the timing of his discharge in relation to Lizza's treatment of 

seven other employees with similar attendance records is more than just 

coincidence. Not one of these other miners was terminated as early as 

Schulte. The only other miner whose employment was terminated on a date 

even close to his own termination was Boisvert, who was terminated nine 

days after Schulte's discharge. Schulte also relies upon the fact that 

the three other miners actually discharged were not terminated until 

much later, specifically November 1980, April 1981, and September 1981, 

and that the three remaining miners were never terminated and are still 

employed by Lizza. 

The judge credited Lizza's evidence. There is no question that 

Schulte had a poor attendance record, and indications are that he was 

also insubordinate. As a matter of bona fide company policy, Lizza 

employed a system of progressive discipline, which incorporated both 

notice and an opportunity to conform errant conduct. Schulte was warned 

of the possibility of discharge and disciplined within the strictures of 

established company policy. While the evidence concerning consistent 

and disparate treatment is not to~ally harmonious, the substantial 

17 
evidence standard governs our review. We conclude that .. sufficient 

credible·evidence exists to support the judge's conclusion that Schulte's 

discipline was consistent with that administered to other employees. ~/ 

We briefly address Schulte's final argument that the judge was 

vague in his analysis of the evidence regarding disparate treatment. In 

his decision, the judge stated: 

Schulte claims that co-workers Harley, Bell, and 

Brock had attendance records as poor as his own but 

were not similarly discharged. The time cards for 

those employees are in evidence, however, and Schulte 

has not shown how those records support his argument. 

Moreover, from my own independent appraisal of those 

records, I do not find that they support Schulte's 

contention in this regard. 

4 FMSHRC at 1244. While we can agree with Schulte that the judge was 

extremely brief in his analysis of the evidence regarding disparate 

treatment, we do not find his decision to be impermissibly vague. Both 

at the hearing level and on review, Schulte has failed to show specifically 

how the time cards in evidence support his position. Presented as raw 

data, the evidence is open to various interpretations. We will not 

disturb the interpretation adopted by the judge because, as we have 

already indicated, it is supported by substantial evidence. 

In sum, the evidence shows that other miners received warnings, 

suspensions, and discharges under the company's disciplinary policy. 

Taken in conjunction with the evidence of Schulte's poor attendance and 

insubordination over a relatively limited period of time, we find substantial evidence to support the judge's conclusion that Lizza would 

have discharged Schulte in any event for his unprotected activity alone. 

'§_/ At the hearing, Schulte testified that immediately following the 

meeting on October 15, 1980, when he was terminated, his foreman, Parzero, 

stated to him "This is what you get, mister, for bringing in MSHA .••• " 

Parzero denied the statement. Boisvert, who was in the vicinity at the 

time, testified that he was not able to hear their conversation. Schulte 

additionally testified that shop steward Crawn, stated to him, "[Y]ou 

stirred up a hornet's nest. It's a new company. They didn't need the 

trouble. That's why they routed you out." Had this evidence been 

credited, it would have cast severe doubt on Lizza's defense. The judge 

specifically discredited Schulte's testimony regarding Parzero and 

discounted his testimony regarding Crawn. Nothing appears in the record 

that would support the extraordinary step of reversing these credibility 

resolutions. 4 FMSHRC at 1241 n. 3 •. We also note that the record in 

this case does not support Schulte's further argument that Boisvert, 

terminated after Schulte's discharge, was also a victim of discrimination. 

18 
For the reasons stated above, we affirm the decision of the administrative law judge. 

L. Clair Nelson, Commissioner 

19 
Distribution 

Frederick D. Braid, Esq. 

Rains & Pogrebin, P.C. 

Rains Building 

210 Old Country Road 

Mineola, New York 11501 

for Lizza Industries, Inc. 

G. Martin Meyers, Esq. 

Suite 106 

Denville Professional Plaza 

35 W. Main Street 

Denville, New Jersey 07834 

for Walter Schulte 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

20 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

DAVID HOLLIS 

v. 

CONSOLIDATION COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 9, 1984 

Docket No. WEVA 81-480-D 

DECISION 

This case arises under section 105(c) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981). In his 

decision below, the Commission's administrative law judge dismissed the 

miner's discrimination complaint on the grounds that it had been untimely 

filed and that the discharge of the miner by Consolidation Coal Company 

("Consol") did not violate the Mine Act. 4 FMSHRC 1974 (November 1982)(ALJ). 

We affirm the judge's decision on both grounds. 

The complaining miner, David Hollis, was employed at Consol's Osage 

No. 3 Mine, an underground coal mine located near Morgantown, West Virginia. 

Hollis was active in safety matters and in the affairs of Local Union 4043, 

United Mine Workers of America, which represented miners at the mine. In 

April 1980, Hollis was elected to the union safety committee. The President 

of the UMWA Local appointed him chairman of the committee, and he served in 

that capacity until his discharge on September 29, 1980. 

The circumstances leading to Hollis' discharge occurred on September 26, 

1980. At the end of the afternoon shift that day, Hollis and another miner, 

William Coburn, were waiting to take an elevator out of the mine. Hollis 

confronted Coburn for attempting to leave work early and an altercation 

ensued. The evidence shows that Hollis was the instigator, or at best the 

more aggressive of the two, in the incident. At some point, Hollis either 

struck or grabbed Coburn. While riding up in the elevator with a number of 

other miners, Hollis had to be restrained on several occasions from grappling 

with Coburn. At the time of the altercation, Consol's mine rules proscribed 

fighting and described it as a dischargeable offense. 

On September 29, 1980, Consol discharged Hollis and Coburn for fighting. 

Both miners then filed grievances under the collective bargaining agreement 

in effect at the mine. The arbitrator in Coburn's case ordered Coburn reinstated on the grounds that Coburn was the victim in the fight and that he had 

acted in self-defense. The arbitrator in Hollis' case issued a decision on 

October 20, 1980, upholding Hollis' discharge for fighting. 

21 
On October 15, 1980, five days before the arbitrator's decision concerning his grievance, Hollis filed complaints with respect to his discharge with the National Labor Relations Board and the West Virginia Human 

Rights Commission. The specific nature and outcome of his NLRB complaint 

are not disclosed by the record. His complaint to the Human Rights Commission alleged that his discharge was racially discriminatory. The record 

does not show the outcome of this complaint. Following the arbitrator's 

decision, Hollis discussed appealing the decision with the union personnel 

who had represented him before the arbitrator. Hollis decided not to appeal, 

and was subsequently advised by a law professor whom he consulted to retain 

a labor lawyer •. Hollis did not do so for some time. 

Hollis testified that in late Harch 1981, he was gathering information, 

which he believed might be relevant to his Human Rights Commission case, at 

the Morgantown office of the Department of Labor's Hine Safety and Health 

Administration ("MSHA"). Hollis also testified that it was at this point he 

first learned of his right to file a complaint of discriminatory discharge 

under section lOS(c) of the Mine Act, 30 U.S.C. § 815(c)(Supp. V. 1981). 

On April 7, 1981, Hollis filed his initial section lOS(c) complaint with 

MSHA. 

After investigating Hollis' complaint, MSHA made an administrative 

determination that his discharge did not violate the Hine Act and declined 

to file a complaint with this independent Commission on his behalf. Hollis 

then filed his own discrimination complaint with the Commission pursuant 

to section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3). At the ensuing 

hearing before the Commission's administrative law judge, Consol moved 

to dismiss the case on the grounds that Hollis' initial complaint under 

the Hine Act, filed April 7, 1981, was untimely. 

The Commission's judge concluded that Hollis' complaint was untimely 

under the 60-day time limit set forth in section 105(c)(2) of the Mine Act, 

30 U.S.C. § 815(c)(2). 4 FMSHRC at 1974-77. 1/ The judge discredited 

Hollis' testimony that he had been ignorant of his rights under the Mine 

Act until his March 1981 visit to the Morgantown HSHA office. 4 FMSHRC at·, 

1976-77. The judge found instead that Hollis had known of his Hine Act--

remedies during the 60-day period following his discharge but had deliberately chosen to pursue other avenues of relief before filing his 

1/ Section 105(c)(2) states in pertinent part: 

Any miner ••• who believes that he has been 

discharged, interfered with, or otherwise 

discriminated against by any person in violation of [section lOS(c)] may, within 60 

days after such violation occurs, file a 

complaint with the Secretary [of Labor] 

alleging such discrimination •••• 

30 U.S.C. § 815(c)(2)(emphasis added). 

22 
section 105(c) complaint over four months past the Act's 60-day time limit. 

Id. Relying in part on the arbitrator's detailed findings, the judge also 

concluded that Hollis was discharged entirely because of his unprotected 

conduct in the fighting incident, and not because of his protected activities. 4 FMSHRC at 1978-96. The judge further concluded, however, that 

even if Hollis' termination were motivated in some part by his protected 

activities, the operator would have discharged him in any event for the 

fighting incident alone. 4 FMSHRC at 1996. We agree with the judge's 

conclusions. 

We first address the timeliness of Hollis' initial section 105(c) discrimination complaint. In relevant part, section 105(c)(l) of the Mine Act 

prohibits the discharge of a miner, or other discrimination against him, 

because of his exercise of any statutory right afforded by the Act. }:_/ If 

a miner believes that he has been discharged in violation of the Mine Act 

and wishes to invoke his remedies under the Act, he must file his initial 

discrimination complaint with the Secretary of Labor within 60 days after 

the alleged violation. 30 U.S.C. § 815(c)(2). ]_/ 

!:_/ Section 105(c)(l) 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, representative of 

miners or applicant for employment in any coal or other 

mine subject to this Act because such miner, representative of miners or applicant for employment has filed or 

made a complaint under or related to this Act, including 

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

or the representative of the miners at the coal or other 

mine of an alleged danger or safety or health violation in 

a coal or other mine, or because such miner, representative 

of miners or applicant for employment is the subject of 

medical evaluations and potential transfer under a standard 

published pursuant to section 101 [30 U.S.C. § 811 (Supp. V 

1981)] or because such miner, representative of miners or 

applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act or 

has testified or is about to testify in any such proceeding, 

or because of the exercise by such miner, representative of 

miners or applicant for employment on behalf of himself or 

others of any statutory right afforded by this Act. 

30 u.s.c. § 815(c)(l). 

3/ After investigation of the miner's complaint, the Secretary is 

;equired to file a discrimination complaint with this independent 

Commission on the miner's behalf if the Secretary determines that the 

Act was violated. 30 U.S.C. § 815(c)(2). If the Secretary determines 

that the Act was not violated, he shall so inform the miner, and the 

miner may then file his own complaint with the Commission. 30 U.S.C. 

§ 815 (c) (3). 

23 
We have held previously that the purpose of the 60-day time limit is to 

avoid stale claims, but that a miner's late filing may be excused on the basis 

of "justifiable circumstances." Joseph W. Herman v. TMCO Services, 4 FHSHRC 

2135 (December 1982). The Mine Act's legislative history relevant to the 

60-day time limit states: 

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 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 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)(emphasis added). Timeliness questions must be resolved on a 

case-by-case basis, taking into account the unique circumstances of each 

situation. 

In the present case, there is no dispute that Hollis was discharged 

on September 29, 1980, but did not file a complaint of discrimination with 

the Secretary until April 7, 1981, more than four months after the statutory 

deadline for filing such a complaint. The judge did not find Hollis' claimed 

ignorance of his rights under the Act to be credible. 4 FMSHRC at 1977. 

Rather, the judge concluded that Hollis knew of his section lOS(c) remedies 

within the 60-day period following his discharge but deliberately elected to 

seek other avenues of relief. The judge based these determinations, in part, 

upon the following findings: 

It is not disputed that [Hollis] had been an active, 

if not militant, chairman of the Safety Committee 

since his appointment hy the local union in April 

1980, and that in that capacity he frequently met 

with state and Federal (MSHA) safety officials. 

He had access to copies of the Federal law and 

Hollis himself asserts that he "knew the law" 

and had more knowledge of the Federal Mine 

Safety law than any other member of the Safety 

Committee. Moreover, the successor chairman of 

the Safety Committee, Edward Pugh, acknowledged 

that it was one of the duties of that position 

to advise miners of their rights under section 

lOS(c) of the Act. The fact that Hollis has 

also achieved a high level of education, having 

completed two years of college, also reflects 

on his ability to have understood and waived 

his rights. 

4 FMSHRC at 1977. 
The judge also found that even if Hollis had not known of his Mine Act 

rights initially, the arbitration decision provided adequate notice of these 

rights at a time when more than half of the statutory filing period remained. 

The relevant portion of the arbitration decision stated: "In both the Mine 

Health and Safety Act and the National Labor Relations Act, there are 

prohibitions against an employer taking disciplinary action against an 

employee for making charges or filing claims under the particular 

legislation." Operator's Exhibit 15, at p. 37. 

When reviewing a judge's credibility resolutions, as here, our role is 

necessarily limited. The judge observed Hollis as a witness and did not 

believe his testimony of ignorance concerning his Mine Act rights. We 

discern nothing in the record that would justify our taking the extraordinary step of overturning this credibility resolution. 

Furthermore, apart from Hollis' discredited testimony, substantial 

evidence supports the judge's inference that Hollis did know of his Mine 

Act rights during the 60-day time period. The record shows that Hollis was 

an aggressive safety committee member. He asserted that he "knew the law." 

During Hollis' tenure as safety committee chairman, he had filed over 30 

safety complaints and had met frequently with federal and state officials 

on his own time to discuss safety matters. The inference from this evidence 

that Hollis knew of his section 105(c) remedy is convincing. Additionally, 

we are not prepared to say that the further inference of notice, which the 

judge drew from the arbitrator's decision, was impermissible. 

We are cognizant of the fact that Hollis filed complaints with other 

agencies within 60 days from the date of his discharge. We conclude, 

however, as did the judge, that he pursued these alternate avenues of 

relief with knowledge of his section 105(c) rights. We do not believe 

that Congress, in the passage of legislative history quoted above, 

intended for us to excuse a miner's late-filing where the miner has 

invoked the aid of other forums while knowingly sleeping on his rights 

under the Hine Act. 

In sum, the record affords ample support for the judge's findings that 

Hollis knew of his Mine Act rights but fai.led to exercise them within the 

statutory time restriction set forth in section 105(c)(2) of the Act. We 

therefore conclude that "justifiable circumstances" are not present to excuse 

Hollis' serious delay in filing. 

Moreover, even assuming the timeliness of Hollis' discrimination complaint, 

we also conclude that substantial evidence supports the judge's determination that Hollis was discharged for non-discriminatory reasons. 

We first established the general principles for analyzing discrimination cases in Secretary on behalf of Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786 (October 1980), rev'd on other grounds sub nom. Consolidation 

Coal Co., v. Marshall, 663 F. 2d 1211 (3d Cir. 1981), and Secretary on behalf 

of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). 1n these 

cases, we held that a complainant, in order to establish a prima facie case 

of discrimination, bears the burden of production and proof to show (1) that 

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

against him motivated in any part by the protected activity. In order to 

25 
rebut a prima facie case, an operator must show either that no protected 

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

protected activity. If an operator cannot rebut the prima facie case in 

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

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

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

activities alone. The operator bears an intermediate burden of production 

and proof with regard to these elements of defense. This further line of 

defense applies only in "mixed motive" cases, i.e., cases where the adverse 

action is motivated by both protected and unprotected' activity. Haro v. 

Magma Copper Co., 4 FMSHRC 1935, 1937 (November 1982). The ultimate""""burden 

of persuasion does not shift from the complainant. Secretary on behalf of 

Robinette v. United Castle Coal Co., 3 FNSHRC at 818 n. 20. The Supreme 

Court recently approved the National Labor Relations Board's virtually identical 

analysis for discrimination cases arising under the National Labor Relations 

Act. NLRB v. Transportation Management Corp., 76 L.Ed. 2d 667 (1983). See 

also Baich v. FHSHRC, 719 F.2d 194 (6th Cir. 1983)(approving the Commission's 

~la-Robinette test). 

In this case, there is no dispute that Hollis engaged in protected 

activity, largely in the form of making safety complaints, prior to his 

termination. The judge concluded, however, that Hollis was discharged 

solely for his unprotected conduct in the fighting incident. On review, 

Hollis argues that the judge erred in relying to some extent on the 

arbitrator's findings concerning the fight and Consol's reasons for firing 

him. Hollis also asserts that the judge erred in his analysis of Consol's 

motivation for the discharge. We find these contentions lacking in merit. 

In Secretary on behalf of Pasula v. Consolidation Coal Co., supra, we 

held that in discrimination cases our judges may admit arbitral decisions 

and accord them such weight as may be appropriate. 2 FMSHRC at 2794-96. 4/ 

We indicated that according weight to the findings of arbitrators may aidthe Commission's judges in finding facts under our Act, "'especially 

where the issue is solely one of fact, specifically addressed by the parties, 

and decided by the arbitrator on the basis of an adequ?te record.'" 2 FMSHRC 

at 2795, quoting Gardner v. Alexander-Denver Co., 415 U.S. 36, 60 n.21 

(1974)(emphasis added). 

4/ In line with the Supreme Court's analogous approach in Alexander v. 

Gardner-Denver, 415 U.S. 36 (1979), we declined to enunciate rigid 

standards governing the weight that should be accorded arbitral findings. 

We indicated, however, that relevant factors for determining the appropriate weight included such considerations as whether the arbitrator had 

addressed the miner's Mine Act rights; the similarity, if any, between 

relevant rights under the collective bargaining agreement and e1e Act; 

whether the findings in question were factual in nature; the adequacy of 

the arbitral record; the procedural fairness of the arbitral proceedings; 

and the special competency of the arbitrator. 2 FMSHRC at 2795-96. 

26 
The only aspects of the arbitral decision relied upon by the judge are 

the factual findings regarding the fight and Consol's reasons for discharging 

Hollis. Both subjects were thoroughly tried and argued before the arbitrator. 

The judge carefully applied the Pasula criteria iri making use of these 

findings (4 FMSHRC at 1980-81 & n. 5), and we agree with him that the 

criteria are satisfied. We perceive no error in the judge's reliance on 

the arbitrator's decision concerning the factual issues of the fight and 

Consol's reasons for discharge. Moreover, the judge himself reviewed the 

record de nova and arrived at the same conclusions reached by the arbitrator. 

4 FMSHRC-at 1981. 5/ 

With respect to the merits of the discrimination case, it is clear that 

Hollis was the instigator of the fight with Coburn on September 26, 1980. 

The judge incorporated the arbitrator's detailed findings on this point 

(4 FMSHRC at 1981-88), which included Hollis' admission that the confrontation got out of hand and that his conduct set a bad example. 4 FMSHRC at 

1985. Moreover, in Coburn's arbitration proceeding, the UMWA Local 

representing Hollis argued that Hollis was the aggressor in the fight and 

Coburn, the victim. The arbitrator of the Coburn grievance agreed. 

The judge also found that Hollis, prior to September 26, 1980, had 

notice of the operator's rules of conduct, and that one of the rules stated 

that "fighting is a dischargeable offense." Operator's Exhibit 6. Hollis 

argues that the operator did not strictly enforce the rules of conduct 

until the fighting incident. The record discloses, however, that following a 

raucous 1979 Christmas party, the union requested mine management to do something about the fighting at the mine. Tr. 813, 944. The mine superintendent 

replied that something would be done, and thereafter the rules were tightened 

and fighting was expressly labeled a dischargeable offense. Tr. 65-66. We 

conclude, as did the judge and arbitrator, that management was impelled to 

enforce strictly the fighting rules because the union wanted the fighting 

at. the mine stopped. We also concur with the judge that Hollis' fight with 

Coburn "was a serious breach of the known rules of conduct of a severity 

5/ Hollis claims that certain evidence adduced at the hearing before the 

judge had not been introduced at the arbitration hearing and, accordingly, 

should have been considered by the judge in deciding the issues surrounding 

the discipline over the fighting incident. The judge did take this evidence 

into account: 

While the evidence developed at the hearing before 

me provided some greater detail than was available 

to the arbitrator, there is nothing in that additional evidence that would warrant any change in 

the analysis and conclusions of these incidents 

made by the arbitrator. 

4 FMSHRC at 1995. 

2'7 
far beyond that of any other incident cited [by Hollis to prove discriminatory discipline.]" 4 FMSHRC at 1996. 6/ 

Accordingly, we conclude that substantial evidence supports the judge's 

finding that Hollis was discharged solely for his unprotected conduct in the 

fighting incident. Thus, Hollis failed to establish a prima facie case of 

discriminatory discharge. We are mindful, as was the judge, that some 

evidence exists that could support an inference of a nexus between Hollis' 

safety complaints and his discharge. Even had a prima facie case of 

discrimination been made out, however, we find that substantial evidence 

supports the judge's further finding that Consol affirmatively defended 

by proving that Hollis would have been fired anyway solely on the basis of 

the fighting incident. 

For the foregoing reasons, we affirm the judge's dismissal of the discrimination complaint. 7/ 

Fra st~, C 

dJ{l.:.,j ;~ L. Clair Ne~1on, Commissioner 

~ . 

6/ Pointing to Coburn's reinstatement, Hollis also maintains that he was 

the victim of disparate treatment. In the Hollis arbitration decision, the 

arbitrator found that "[t]here was nothing in the record to raise any inference that the employer prosecuted the case against Mr. Coburn with any less 

vigor than it has this case." Operator Exhibit 15, at p. 34. After reviewing 

the record, we agree. 

7/ Certain exhibits, introduced and received into evidence before the judge, 

-;ere not contained in the record before us on review. Accordingly, we issued 

an order directing the parties to submit these exhibits so that the record 

could be made complete. The parties did so, and we have accepted the exhibits 

and made them part of the record. 

28 
Commissioner Lawson concurring and dissenting: 

I concur in the result reached by the majority, and agree that 

substantial evidence supports the judge's finding that Hollis was 

discharged solely for his unprotected conduct in the fight out of which 

this case arose. I disagree with their conclusion that the complaint 

was untimely filed. The majority has determined that Hollis "knew of 

his section 105(c) remedy", because "he had filed over 30 safety complaints and had met frequently with federal and state officials on his 

own time to discuss safety matters, and " ..• was knowingly sleeping on 

his rights." They.found "convincing" the inference from this evidence 

that Hollis knew of his Mine Act rights, and credited the "further 

inference of notice which the judge drew from the arbitrator's decision". 

S 1i p op . at 5 • 

The difficulty with this double inference analysis is that the only 

evidence of record on the question of Hollis knowledge of 105(c) is the 

unshaken denial thereof by the complainant. Nor did any witnesses testify 

to the contrary. Tr. 668, 701-704. The record thus confirms that complainant 

was unaware of his 105(c) ~ights until a few days before he actually filed 

the complaint. TR. 666, 668. 4 FMSHRC 1975. This is unsurprising, 

given Hollis' short tenure as a member of the safety committee, and the 

uncontroverted testimony that no 105(c) cases had ever arisen at this 

mine, either during Hollis' committee service, or in the seventeen years 

preceding Hollis' discharge. Tr. 891, 904. There is no dispute that 

filing was promptly had, once, as complainant testified, he became aware 

of his 105(c) rights. No reason appears evident why a miner as "aggressive" 

as Hollis would not have filed under 105(c) if he were aware of such: the 

logical inference would appear to be to the contrary. 

Indeed, counsel for the operator conceded that Consol " .•• cannot 

bring forth any direct evidence that he (Hollis) did have knowledge (of 

his 105(c) rights) but ••• it is reasonable to assume that he would know 

section 105(c)". Tr. 6. 

In Schulte v. Lizza Industries, Inc., FMSHRC (issued today), my 

colleagues agreed with me that the miner's testimony that he was ignorant 

of 105(c)'s timeliness strictures, conceded by the operator in that case 

also, was a consideration sufficient to excuse a (31-day) delay in filing 

the complaint. In the instant litigation, however, identical ignorance is 

found by the majority to be insufficient, notwithstanding this operator's 

admitted inability to present any contrary evidence. 

Our standard of review is the familiar one of "substantial evidence", 

required in most federal administrative proceedings. Section 113(d)(2)(A)(ii). 

Substantial evidence has been defined as "more than a mere scintilla ... mere 

uncorroborated hearsay or rumor does not constitute substantial evidence"; 

"it must do more than create a suspicion of the fact to be established". 

The record may not be "wholly barren of evidence". Universal Camera v. 

National Labor Relations Board, 340 U.S. 474, 477 (195l)(citing Consolidated 

Edison Company v. National Labor Relations Board, 305 U.S. 197, 229 (1938)). 

29 
Here, given the uncontradicted testimony of the complainant, and 

the admitted inability of this operator to adduce any evidence to the 

contrary, other than the contention that it woul.d be "reasonable to 

assume" knowledge by this miner of section 105(c), the finding of the 

judge, affirmed by the majority, is sub-scintilla. The record is, 

indeed, "wholly barren of evidence", and fails to meet the test of 

substantial evidence. 

The language of the Act as to time limits, of course, is precatory, 

not mandatory: "Any miner ••. who believes that he has been .•• discriminated against by any person in violation of the subsection may, 

within 60 days after such violation occurs, file a complaint with the 

Secretary ..•. " Section 105 (c) (2). (Emphasis added.) This language is 

obviously not accidental, as the majority concedes, the judge below 

acknowledged, and the legislative history makes evident. Slip op. at 4. 

This operator was unable to demonstrate any prejudice it suffered 

because of the fact that miner Hollis did not file his complaint within 

60 days. Tr. 815-822. Nor, as the record reveals, was Consol able to 

show that any instruction was ever given by it to Mr. Hollis concerning 

the time limits for filing claims under section 105(c). Tr. 863. There 

is no dispute that Hollis had brought his complaint to the attention of 

not only his employer, through the contractual grievance procedure, but 

to the West Virginia Human Rights Commission, and the National Labor 

Relations Board as well. 

This miner had thus indisputably met at least two of the three 

tests enumerated in the legislative history (slip op. at 4), either of 

which would have been sufficient under the guidelines set forth in the 

legislative history. As we noted in the analogous decision of UMWA v. 

Consolidation Coal, 1 FMSHRC 1300, 1302 (September 1979): 1./ 

In interpreting remedial safety and health legislation, 

"[i]t is so obvious as to be beyond dispute that .. . 

narrow or limited construction is to be eschewed .. . 

[L]iberal construction in light of the prime purpose 

of the legislation is to be employed." St. Mary's 

Sewer Pipe Co. v. Director, U.S. Bureau of Mines, 

262 F.2d 378, 381 (3rd Cir. 1959); Phillips v. 

Interior Board of Mine Operations Appeals, 500 F.2d 

772, 782 (D.C. Cir. 1974), cert. denied, 420 U.S. 938 

(1975). We believe that a liberal construction of the 

30-day filing period for compensation claims requires 

1./ Herman v. Imco Service is inapposite (slip op. at 4). There the miner 

took no action of any sort until eleven months after his discharge, when 

he filed a complaint with a state (Nevada) employment agency. That decision 

correctly reflected that record, and that the miner's failure to file a complaint "until eleven months after his discharge was simply because he did 

not want to do so". 4 FMSHRC 2138. 

30 
a conclusion that the period may be extended in appropriate circumstances. See, Dartt v. Shell, 539 F.2d 

1256, 1260 (10th Cir. 1976), aff'd by equally divided 

court, 434 U.S. 99 (1977); Kephart v. Institute of Gas 

Technology, 581 F.2d 1287 (7th Cir. 1978); Moses v. 

Falstaff Brewing Corporation, 525 F.2d 92 (8th Cir. 1975). 

Furthermore, while section 111 of the 1977 Act does not 

specify a time limit for the filing of compensation 

claims, the Act's discrimination provisions contain 

analogous time limits. 

The majority's approval of the judge's further reliance on the 

arbitrator's minimal mention of the Act, (as well as the National Labor 

Relations Act, to which this miner had already resorted), is even less 

explicable. On its face that decision provides no notice of either 

section 105(c) or the time limits thereunder, and obviously makes no 

reference to remedies under the Act. Slip op. at 5. In any event, many 

of the Act's prohibitions are enforceable only by the Secretary, not by 

an individual miner (see e.g., sections 104, 108, 109 and 110). '];../ 

Further, contrary to the judge's finding, the arbitrator did not reject 

Hollis "claim that he had been fired for activities protected by the 

Act". 11 The only section of the Act referred to by the arbitrator was 

section 103(g), which has no bearing on the issue here disputed. Dec. at 

4. Obviously, the arbitrator had no authority or jurisdiction to rule 

either for or against this miner on any issue over which the Commission 

has jurisdiction. 

Imputing knowledge of 105(c) to this, or any other, miner thus has 

no precedential support, and is contrary to both the spirit of the Act 

and its legislative history. The latter, and not by inference, clearly 

sanctions filing 105(c) complaints even though 60 days may have passed. 

Slip. op. at 4. 

The majority's upholding the judge's finding of Hollis knowledge 

consequently only affirms judicial speculation, not record evidence. It 

is, under the rationale adopted here today, apparently insufficient now 

for a miner to present uncontroverted evidence that he or she had no 

knowledge of section 105(c). The trier of fact may henceforth find 

knowledge, notwithstanding the absence not only of affirmative testimony, 

but the existence of testimony to the contrary. This error is especially 

egregious here, given the assertion that the miner "should have known" 

of his rights, and the judge's failure to comment on Hollis' demeanor, 

or to find him to be unpersuasive or untrustworthy. Hollis' "access to 

copies of the Federal law .•. his safety committee chairman successor's 

2/ The judge, without explanation, asserts that the arbitrator's decision 

11clearly advised (Hollis) of those rights" (emphasis added). (Dec. at 4). 

I fail to find either advice or clarity in that language, nor is there any 

explanation of "those rights" elsewhere in the decision. 

11 Hollis was discharged pursuant to the collective bargaining agreement. 

(Oper. Exh. 13). As the arbitration decision noted: "The question presented is whether just cause has been established for the discharge of 

the Grievant for fighting underground and on the cage on September 26, 1980". 

The Award of the arbitrator found that "the Employer has established just 

cause for the discharge of the Grievant." Oper. Exh. 15 at 1 & 42. 

31 
"acknowledge[ment]" that one of Hollis' duties was to advise miners of 

their rights under 105(c) .•. his "high" level of education" (slip op. 

at 4), could equally persuasively lead a disinterested observer to the 

conclusion that this miner was, in truth, ignorant of 105(c), or perhaps 

even neglectful of his duties as a union representative. 

More importantly, acceptance of the majority's rationale subverts 

the burden of proof allocations so carefully constructed in Pasula and 

Robinette, supra, and their requirement that the employer must justify 

disciplinary action. See also National Labor Relations Board v. 

Transportation Management Corp., 51 U.S.L.W. 476 (June 15, 1983). The 

majority's ready acceptance of the judge's "inference" that Hollis "knew" 

of his section 105(c) remedy, and additional "inference" of notice drawn 

from an arbitrator's decision such as this, thus impermissibly eases an 

operator's duty to present the evidence necessary to establish a nondiscriminatory motive for any discharge or other discipline it chooses 

to impose. 

Mere assertion that this miner "should have known of his rights 

under the Act to file complaints", supra, (Dec. at 4), is not evidence, 

much less substantial evidence. Although the judge and the majority here 

seek to frame the issue in credibility terms, there is no escaping the 

fact that this record is devoid of any evidence Hollis knew of the 

existence of section 105(c), much less its time filing requirements. 

I therefore dissent from the majority's holding that the filing 

hereunder was untimely, but concur in the dismissal of the complaint. 

A. E. Lawson, Commissioner 

32 
Distribution 

Jerry F. Palmer, Esq. 

Consolidation Coal Company 

1800 Washington Road 

Pittsburgh, PA 15241 

Jay Montgomery Brown, Esq. 

515 Devany Building 

P.O. Box 269 

Fairmont, West Virginia 26554 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

33 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CONSOLIDATION COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 13, 1984 

DECISION 

Docket Nos. WEVA 80-116-R 

WEVA 80-117-R 

WEVA 80-118-R 

WEVA 80-659 

This consolidated proceeding presents the question of whether roof control 

violations cited in a section 104(d)(l) citation were significant and substantial, 

within the meaning of Cement Division, National Gypsum Co., 3 FMSHRC 822 (April 

1981). The Commission's administrative law judge concluded that the violations 

by Consolidation Coal Company ("Consol") were significant and substantial, and 

affirmed the citation. 4 FMSHRC 747 (April 1982)(ALJ). 1/ We granted Consol's 

petition for discretionary review, which challenged only-the judge's significant 

and substantial findings. For the reasons that follow, we affirm. 

1/ This same proceeding was originally before another Commission administrative law judge, who affirmed the citation after finding a significant and 

substantial violation under the then-applicable, pre-National Gvpsum case law. 

2 FMSHRC 2862 (October 1980)(ALJ). We declined to grant Consol's petition for 

review of that decision. Thereafter, Consol petitioned the United States Court 

of Appeals for the Fourth Circuit for review of the judge's decision, which had 

become a final decision of the Commission pursuant to 30 U.S.C. § 823(d)(l)(Supp. 

V 1981). The Court remanded the case with instructions that the Commission 

reconsider the issues in light of our intervening decision in National Gypsum, 

supra. Consolidation Coal Co. v. FMSHRC, No. 80-1862, 4th Cir., October 13, 

1981 (unpublished opinion). Because the Commission judge who originally heard 

the case had left the Commission, the case was reassigned on remand to the 

judge whose decision is now before us on review. 

34 
On October 30, 1979, during an inspection of Consol's Shoemaker Mine, 

near Moundsville, West Virginia, an inspector of the Department of Labor's 

Mine Safety and Health Administration ("MSHA") issued a citation to Consol 

under section 104(d)(l) of the Federal Hine Safety and Health Act of 1977 

("Mine Act"), 30 U.S.C. § 814(d)(l)(Supp. V 1981). The citation alleged a 

violation of 30 C.F.R. § 75.200. 2/ This citation, which is the sole subject 

of this proceeding, stated: 

The approved mine roof control plan was not being 

followed in 4 Right 5 North section (037) and on the 

section supply track in that roof bolts were spaced 

from 4 feet 7 inches to 7 feet 6 inches apart and from 

bolt to coal rib in approximately 350 different locations 

that were measured in the (intake air) No. 1 entry from 

30 to 33 room and 31, 32, and 33 rooms, and in the track 

from 6 to 18 stopping for a total of approximately 1500 

feet in length and more bolts may be spaced wide .•.• 

The inspector included in the citation his findings that the violations were 

significant and substantial and were caused by the operator's unwarrantable 

failure to comply with the standard. 

As alleged by the inspector, the spacing of roof bolts in about 350 locations in the 4 Right 5 North working section exceeded the 4 foot-6 inch maximum 

permitted by Consol's roof control plan. The greatest concentration of overwide bolts, including some that were 7 feet or more apart, was along the 

section's supply track. The inspector testified that although roof conditions 

generally were good, the roof was cracked, loose, or unsupported between halts 

in three unspecified locations and could fall at any time. A roof fall caused 

by a clay vein had occurred under supported roof when Consol first advanced this 

s,ection, in about August or September 1978. Roof falls also had occurred in 

unsupported areas of the section. Two witnesses had observed pieces of fallen 

rock under supported roof at unspecified times and in unspecified locations. 

One of these witnesses had heard of employees receiving minor lacerations from 

pieces of falling rock. However, no lost-time injuries from roof or rock falls 

apparently had been reported in this section. 

All miners working in the section had been exposed to the over-wide bolts 

on every shift for at least six months, because they walked under the widestspaced bolts in the supply track on the way to the dinner hole and the tool 

storage area. Fewer employees than the normal production crew of 7-8 were 

working in the section on October 30, 1979, when the citation was issued. 

Consol had voluntarily closed the section on October 26 after receiving a 

citation that day for roof bolting violations. Nonetheless, on October 30 

at least one mechanic and one maintenance foreman were working in the 

section, and an unspecified number of roof bolters were also abating 

violations there. 

2/ In relevant part, 30 C.F.R. § 75.200, a mandatory safety standard dealing 

with roof control, requires operators to adopt and comply with roof control 

plans approved by the Secretary of Labor. 

35 
On remand from the Fourth Circuit, Consol conceded before the Commission 

judge that the over-wide roof bolts violated its roof control plan and hence 

constituted a violation of 30 C.F.R. § 75.200, but denied that the violations 

were significant and substantial. The judge analyzed this case in light of 

National Gypsum, relying in large part on the the findings of fact made hy 

the Commission judge who originally heard the case. In concluding that the 

violations were significant and substantial, the judge acknowledged the 

evidence establishing generally good roof conditions. He attached greater 

weight, however, to the evidence that there had been at least one prior roof 

fall and that widely-spaced bolts increased the possibility of roof falls. 

He also relied on the inspector's testimony that the roof was loose, cracked, 

or unsupported in three locations and could fall at any time. 

The judge narrowly interpreted the original judge's finding that there 

was no evidence of roof cracks, splits, or loose bolts, as not including the 

widest-spaced bolts in the supply track. 4 FMSHRC at 769-io:- In the judge's 

view, the fact that employees had worked and traveled safely in the section for 

six months prior to the October 30 citation did not prove the absence of a 

hazard which could result in a serious injury. In this regard, he noted that 

after the initial October 26 citation, a considerable amount of additional 

bolting had been necessary and that the abatement work was proceeding on the 

day of the section 104(d)(l) citation. 4 FMSHRC at 769. Therefore, the 

judge concluded that there was 

a reasonable likelihood that the hazards presented by 

the widely-spaced roof bolts as well as the areas described by the inspector as being loose between the bolts 

at several locations, constituted a significant and 

substantial hazard to those miners working and traveling 

through the cited areas. The danger presented was a roof 

fall, particularly in the track entry, where the roof 

bolt spacing was the widest, and the real potential for 

a fall in any of the locations was the direct result of 

the violation. 

4 FMSHRC at 770. 

The sole question before us is whether the roof control violations were 

''of such a nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard.'' 30 U.S.C. 

§ 814(d)(l). We have previously interpreted this statutory language as follows: 

[A] violation is of such a nature as could significantly 

and substantially contribute to the cause and effect of 

a mine safety or health hazard if, based upon the particular facts surrounding the violation, there exists a 

reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious 

nature. 

National Gypsum, 3 FHSHRC at 825. Noting that the Mine Act does not define 

"hazard," we construed the word to "denote a measure of danger to safety or 

36 
health." 3 FMSHRC at 827. We indicated further that a violation "'significantly 

and substantially' contributes to the cause and effect of a hazard if the 

violation could be a major cause of a danger to safety or health •••• In other 

words, the contribution to cause and effect must be significant and substantial." 

Id. (footnote omitted). 

As we stated recently, in order to establish that a violation of a mandatory 

safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety 

standard; 3/ (2) a discrete safety hazard--that is, a measure of danger to 

safety--contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably serious nature. Mathies 

Coal Co., FMSHRC Docket No. PENN 82-3-R, etc., slip op. at 3-4 (January 6, 

1984). 

On review, Consol does not contest the first and fourth elements of proof 

that is, the judge's finding of a violation or the reasonably serious nature of 

the injury. Rather, Consol argues that the evidence does not support the judge's 

conclusions that the over-wide spacing between the roof bolts could contribute 

to a hazard, and that there was a reasonable likelihood any such hazard would 

result in injury. We disagree. 

As to Consol's first argument, substantial evidence amply supports the 

judge's finding that the large numbers of over-wide roof bolts created a hazard 

of roof falls. Mine roofs are inherently dangerous and even good roof can fall 

without warning. 4/ As Consol's roof control plan states, the plan merely 

establishes the minimum requirements for adequate roof support. Exh. G-1, at 4. 

3/ We note that this case involves a violation of a mandatory safety 

standard. Pending before us is a case which challenges the application of 

National Gypsum to a violation of a mandatory health standard. Consolidation 

Coal Co., FMSHRC Docket No. WEVA 82-209-R, etc. We intimate no views at this 

time as to the merits of that question. 

4/ Roof falls have been recognized by Congress, the Secretary of Labor, the 

industry, and this Commission, as one of the most serious hazards in mining. 

As we have stated: 

A prime motive in enactment of the 1969 Coal Act was to 

"[i]mprove health and safety conditions and practices at 

underground coal mines" in order to prevent death and 

serious physical harm. One of the problems that greatly 

concerned Congress was the high fatality and injury rate 

due to roof falls. The legislative history is replete 

with references to roof falls as the prime cause of 

fatalities in underground mines. [Citations and footnotes 

omitted.] 

Eastover Mining Co., 4 FMSHRC 1207, 1211 & n. 8 (July 1982). 

(Footnote continued) 

37 
On October 30, the day of the citation, roof bolts were spaced in excess 

of Consol's. plan in about 350 locations. Some of the bolts in the supply track 

were 7 to 7 and a half feet apart, i.e., they exceeded by 2 and a half to 3 feet, 

the 4 and a half foot spacing permitted by the plan. Consol's own general mine 

foreman conceded that such overwide spacing increased the possibility of roof 

falls. 4 FHSHRC at 769; Tr. 74. Further, the operator did not rebut the 

inspector's testimony that in three locations the roof was cracked, loose, or 

unsupported, and could fall at any time. Thus, we conclude that despite the 

generally good conditions and the absence of reportable injuries in the 

previous six months, these over-wide bolts created "a measure of danger to 

safety or health." National Gypsum, 3 FHSHRC at 827. We therefore affirm 

the judge's holding that there was a hazard. 

The remaining question is whether the judge properly concluded that there 

was a reasonable likelihood that the hazard contributed to by the roof control 

violations would result in injury. Substantial evidence also supports this 

conclusion. The widely-spaced bolts found in 350 locations on October 30, 

in some instances up to 3 feet wider than permitted, represented a serious 

deviation by Consol from the minimum requirements of its roof control plan. 

(As the judge noted, bolts were too widely spaced in these 350 locations 

even after Consol had added 140 bolts as a result of the October 26 citation.) 

This large number of widely-spaced bolts and the often considerable distances 

between the bolts amounted to a widespread and serious departure from the 

minimum requirements for adequate roof support in the mine. Such major noncompliance dangerously increased the likelihood of roof fall accidents. 

As noted above, every miner on every shift for six months was exposed to 

the hazard created by the over-wide bolts along the supply track. The fact 

that no one was injured during that period does not ipso facto establish that 

there was not a reasonable likelihood of a roof fall. There was testimony as 

to past falls, and the inspector also stated that there was bad roof in three 

locations in the section. While fewer miners than usual were in the section 

on October 30 (because Consol had closed the section on October 26), at a 

minimum the mechanic and the maintenance foreman working there were exposed 

to the hazard. Had a roof fall occurred, there is a reasonable likelihood 

of injury because of this exposure. In light of the foregoing, we affirm 

the judge's holding that a reasonable likelihood existed that the hazard 

contributed to by the roof control violations would result in injury, and 

consequently that the violations were a major cause of a danger to safety. 5/ 

Fn. !:!_/ continued 

Roof falls remain the leading cause of death in underground mines. 

Despite decreased production and an overall decline in fatalities from 1981 

to 1982, fatalities resulting from falls of roof, face, and rib in underground coal mines increased from 41 deaths in 1981 to 52 deaths in 1982. 

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

Injuries and Worktime, Quarterly 17 (Closeout Ed. 1981); Hine Safety and 

Health Administration, U.S. Department of Labor, 8 Mine Safety and HeaLth, 

inside back cover (Spring-Summer 1983); see also Hine Injuries and \Jorktime, 

Quarterly 17 (Closeout Ed. 1982). ~--~-

'}_/ We affirm the judge's holding on the bases specified above, but <lo not 

otherwise endorse his evidentiary analysis of this issue. 

38 
In reaching this result, we reject Consol's subsidiary argument that the 

judge's holding is inconsistent with National Gypsum. Consol's widespread and 

serious noncompliance with the minimum requirements of its roof control plan, 

which created the likelihood of serious injury, is indeed the type of situation 

we contemplated in National Gypsum. 3 FMSHRC at 825-27. 

For the foregoing reasons, we affirm the judge's holding that the violation was significant and substantial. 

~C~er,~k 

r 

Clair! Nel,on, Commissioner 

I 

I 

! 

Commissioner Lawson concurring: 

I agree with the majority as to the result reached and in their 

affirmance of the decision of the judge below. However, for the reasons 

expressed in my dissent in National Gypsum, supra, I disagree with their 

analytical approach as set forth here and in that decision. 

A. E. Lawson, Commissioner 

39 
Distribution 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Anthony J. Polito, Esq. 

Corcoran, Hardesty, Ewart, Whyte & Polito, P.C. 

Suite 210, Two Chatham Center 

Pittsburgh, PA 15219 

Michael Holland, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

40 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 30, 1984 

Docket No. WEST 81-385-M 

ENERGY FUELS NUCLEAR, INC. 

DECISION 

This case involves an alleged violation of 30 C.F.R. § 57.6-116, a 

mandatory blasting standard. A Commission administrative law judge held 

that the operator, Energy Fuels Nuclear, Inc. (EFNI), did not violate 

the standard, and vacated the citation. 4 FMSHRC 1970 (November 1982)(ALJ). 

We granted the Secretary of Labor's petition for discretionary review. 

For the reasons that follow, we reverse. 

On September 9, 1980, Bryan Tate, a contract miner at EFNI's underground uranium mine, was injured in a blasting accident. A Department 

of Labor Mine Safety and Health Administration (MSHA) inspector issued a 

citation the following day after completing an accident investigation. 

The citation alleged a violation of 30 C.F.R. § 57.6-116, which provides: 

Mandatory. Fuse shall be ignited with hotwire 

lighters, lead spitters, igniter cord, or other 

such devices designed for this purpose. Carbide 

lights shall not be used to light fuses. 

On the day of the explosion, Tate drilled about 50 holes in the 

face and 20 holes in the rib. Working alone, he loaded the holes with 

explosives with full knowledge of the operator's requirement that two 

miners be present when loading explosives and lighting fuses. See 30 

C.F.R. § 57.6-114. Before igniting the fuses, Tate lit a test fuse to 

determine how long it would be before the first fuse lit in the round 

41 
detonated the explosives. Using either a propane or butane torch, 1./ 

Tate proceeded to apply the torch flame directly to the thermalite 

connectors that had been affixed to the ends of the safety fuses. 2/ 

This ignition procedure was contrary to EFNI's established policy that 

miners must ignite multiple fuses by using igniter cord linked to safety 

fuses by thermalite connectors. See also 30 C.F.R. § 57.6-114. 

Although Tate believed that the test fuse indicated that he had 66 

seconds remaining, the explosives in the first hole detonated sooner, 

knocking him to the ground. A 10-12 second delay in the firing of the 

second two holes, instead of the anticipated 4-5 seconds, permitted Tate 

to crawl around the corner before the remainder of the round went off. 

When the rest of the explosives detonated, Tate was injured by flying 

rock. ll 

The judge concluded that the Secretary did not establish a violation 

of the cited standard. He reached this result even though both parties 

had agreed at the hearing that the standard prohibits lighting of thermalite connectors with a torch, and even though the operator stated in its 

post-hearing brief that it did not deny the fact of violation. The 

judge construed the standard literally. He distinguished between thermalite connectors and safety fuses. Because he found that Tate used the 

torch to light the thermalite connectors and that the connectors in turn 

]:_/ From the record it is not clear which type of torch was used, but 

the conflict is immaterial for purposes of our review. 

'!:_/ A thermalite connector is a small metal capsule about 1 to 1-1/2 

inches long, filled with an ignition compound that burns with intense 

heat when ignited. One end of the thermalite connector is crimped onto 

a safety fuse. The other end has a lip that can be pressed down to 

secure igniter cord passed under the lip if multiple fuses are to be 

linked together. Igniter cord is a "fuse, cordlike in appearance, which 

burns progressively along its length with an external flame at the zone 

of burning, and is used for lighting a series of safety fuses in the 

desired sequence." 30 C.F.R. § 57.2. Igniter cord is marked at onefoot intervals, so a series of explosions can be detonated according to 

the burning rate of the cord. Thermalite connectors can be attached at 

different points along a length of igniter cord. The miner lights one 

end of the igniter cord and leaves the blasting area. The cord burns at 

a speed determined by the burning rate of the particular cord used, 

igniting each thermalite connector seriatim. The ignition of the compound in the connectors instantaneously ignites the safety fuses. 4 

FMSHRC at 1970; Exh. P-2. 

3/ The flying rock tore a hole in Tate's back about 3 inches wide and 

l-1/2 inches deep. According to Tate, he tried to return to work the 

next day but was given three days off for disciplinary reasons. 

42 
ignited the fuses, he concluded: "Using a ••• torch to light the [thermalite connectors] may violate company policy, but it does not violate the 

regulation." In dicta, he observed that he would have found a violation 

if Tate had ignited the fuses directly with a torch. 4 FMSHRC at 1972. 

Taking into account the intended purpose of section 57.6-116, we 

hold that the judge erred in concluding that Tate's use of a torch to 

light the thermalite connectors attached to the safety fuses did not 

constitute a violation. The purpose of section 57.6-116 is to accomplish 

fuse ignition in a safe manner. Safety fuse burns inside its cover. 

Consequently,. there can be difficulty in determining if the fuse, rather 

than just the cover, has been lit and precisely when ignition of the 

fuse occurred. When a miner does not know with certainty whether, or 

for how long, a fuse is burning, he may fail to leave the blasting area 

in time. The fuse ignition devices specified in the standard accomplish 

safe and reliable fuse ignition by means of an intensely hot flame and 

a heat source that does not obscure or conceal evidence of the ignition 

"spit," a visible jet of flame that shoots out of the safety fuse at the 

moment its powder core is ignited. !±_/ The evidence shows that use of an 

open-flame torch, such as that used in the present case, may obscure the 

ignition spit emitted by the safety fuse. Thus, ignition of a safety 

fuse by use of a torfh defeats the purpose of the standard by preventing 

a miner from accurately determining when and if he has ignited the fuse. 

4/ The problems attendant to ignition of safety fuses are described in 

Exhibit P-6, the E.I. duPont de Nemours and Co., Blasters' Handbook, 

175th Anniversary Ed. (1977): 

The powder core of safety fuse burns inside its wrapping and 

cannot be seen after the fire from'the initial spit. Some 

brands emit smoke through the wrapping as the powder burns. 

Visual discoloration on the outside of the fuse is readily 

apparent; however, this may be some distance behind the 

point of the burning core. For this reason it is not a 

reliable indication of where the core is burning. The end 

spit is a jet of flame about two inches long that shoots out 

of the end of the fuse the moment it is lighted. It lasts 

at least a second and is followed by smoke which rises from 

the end of the fuse. 

Here are some important reminders: 

The fuse burns at the core and not at its cover. The cover 

may burn without the ignition of the core. When properly 

ignited, the core ignites with a jet of flame called the 

"ignition spit". This spit shows the core is lit. Practice 

ignition until you know the ignition spit. Persons who 

fail to recognize the ignition spit, or who are misled by 

the burning of the cover, have been killed or injured by 

trying to relight fuse which has been ignited. 

Exh. P-6 at 121-22 (emphasis in original). 

43 
vfuen a thermalite connector is crimped onto a safety fuse, the 

spit emitted upon ignition passes through the end of the thermalite 

connector. Therefore, as with the direct ignition of safety fuses, when 

igniting thermalite connectors attached to safety fuses it is essential 

that the ignition spit be observable and recognizable, and that it not 

be obscured or concealed by the ignition source. The record in this 

case indicates that application of the open-flame torch to the thermalite connectors could obscure the spit and result in uncertainty as to 

when and if the safety fuse ignited. Thus, in the present case, the 

precise hazard sought to be avoided by the standard is created by the 

miner's application of an open-flame torch to thermalite connectors 

attached to safety fuses. Keeping in mind that we are interpreting a 

mine safety standard, we conclude that on the facts of this case the 

judge erred in interpreting the standard too narrowly. Rather, we find 

that the miner's application of an open-flame torch to thermalite 

connectors attached to the ends of safety fuses def eats the purpose and 

is contrary to the intent of 30 C.F.R. § 57.6-116. Therefore, on the 

facts of this case we find a violation. 

Accordingly, the judge's decision is reversed, the citation is 

reinstated, and the case is remanded for assessment of an appropriate 

civil penalty. 

44 
Distribution 

Michael McCord, Esq. 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

William W. Maywhort, Esq. 

Holland & Hart· 

555 Seventeenth Street 

Suite 2900 

P.O. Box 8749 

Denver, Colorado 80201 

Administrative Law Judge Charles C. Moore 

Federal Mine Safety & Health Review Conunission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

45 

ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HARRY J. GILPIN, DISCRIMINATION PROCEEDING 

Complainant 

v. 

BETHLEHEM MINES CORPORATION, 

Respondent 

Docket No. PENN 84-5-D 

MSHA Case No. PITT CD 83-11 

Marianna Mine No. 58 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On November 2, 1983, Complainant filed documents with the 

Commission which were accepted as a complaint of discrimination 

under section 105(c) of the Federal Mine Safety and Health Act 

of 1977 (the Act) . The documents included a copy of the 

original complaint filed with MSHA dated July 27, 1983. This 

complaint alleges that Respondent Bethlehem Mines Corporation 

(Bethlehem) has had a policy of requiring miners to pass a 

welding test before being awarded jobs as mechanics. On June 6, 

19S3, employees were awarded jobs as mechanics without taking 

and passing the welding test. During the week of January 18, 

1983, Complainant bid on a mechanic's job and was told that he 

must take and pass the welding test before he would be awarded 

the job. Complainant contends that this is discrimination in 

that some employees have to take and pass the welding test before 

becoming mechanics and some do not. In his letter to the 

Commission, Complainant states that he should have been awarded 

the job, being the senior employee. 

On December 8, 1983, Respondent filed an answer, a Motion 

to Dismiss, a Memorandum of Law in Support of the Motion to 

Dismiss, and a Motion for a Protective Order. Complainant, who 

is not represented by counsel, has not responded to the motions. 

A complainant appearing pro se is not held to the same 

pleading requirements that might be expected of a lawyer. He 

must, however, assert a claim under the Act. The Mine Act does 

not protect an employee from all forms of discriminatory conduct 

47 
on the part of his employer, but only from discrimination for 

activity protected under the Act, that is, activity related in 

some way to mine safety and health. The Act does not enforce 

seniority rules or work rules unrelated to safety. 

There is no hint in the documents submitted to the Commission 

that Complainant was denied a promotion or a job opportunity 

because he made safety complaints. Rather, he complains of 

generally unfair application of job promotion rules and failure 

to follow seniority rules. These are not matters within the 

jurisdiction of the Com..~ission. See Lane v. Eastern Associated 

Coal Corp., 2 BNA MSHC ,! 1082 (1980) (ALJ). 

Because I find that the complaint herein does not state a 

cause of action under section 105(c) of the Act, this proceeding 

is DISMISSED. 

J

a/'/vlL-S A13 ~'() cfeA/v ell\..... 

James A. Broderick 

1

· Administrative Law Judge 

Distribution: 

Mr. Harry J. Gilpin, R.D. #1, Marianna, PA 15345 (Certified Mail) 

R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 900 Oliver 

Building, Pittsburgh, PA 15222 (Certified Mail) 

/fb 

48 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 101984 

UNITED MINE WORKERS OF 

A.MERICA (UMWA) , 

DISCRIMINATION PROCEEDINGS 

ON BEHALF OF 

HENRY BEARD, 

Complainant 

v. 

MIDWESTERN MINING & RECLAMATION, 

INC., 

Respondent 

UNITED MINE WORKERS OF 

AMERICA (UMWA) , 

ON BEHALF OF 

TERRY LOUDERMILK, 

Complainant 

v. 

MIDWESTERN MINING & RECLAMATION, 

INC., 

Respondent 

Docket No. CENT 83-44-D 

Bronaugh Mine 

Docket No. CENT 83-45-D 

Bronaugh Mine 

ORDER OF DISMISSAL 

Before: Judge Broderick 

In each of the above cases, the Complainants filed motions 

to withdraw their respective discrimination complaints on the 

grounds that the issues raised in these proceedings have been 

addressed and remedied by the NLRB in cases brought before that 

tribunal. 

Respondent does not object to the motion. 

Therefore, IT IS ORDERED that the motions are GRANTED and 

these proceedings are DISMISSED. 

/,f~d~~~ 

J

1 James A. Broderick 

Administrative Law Judge 

49 
Distribution: 

Joyce A. Hanula, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, DC 20005 (Certified Mail) 

Robert A. Lieberman, Esq., Linde, Thomson, Fairchild, Langworthy, 

Kohn & Van Dyke, P.C., 2700 City Center Square, 12th & Baltimore, 

P.O. Box 26010, Kansas City, MO 64196 (Certified Mail) 

/fb 

50 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

STEPHEN B. WOODY, 

Complainant 

v. 

333 W. COLFAX AVENUE, SUITE 400 JAN 10 1984 

DENVER, COLORADO 80204 

: DISCRIMINATION PROCEEDING 

: 

: Docket No. WEST 80-491-D . . 

. . MSHA Case No. ID 05-00301 

MID-CONTINENT ~ESOURCES, INC.,: 

Respondent : Dutch Creek No. 1 Mine 

: 

ORDER OF DISMISSAL 

Before: Judge Carlson 

In response to an order to show cause why this discrimination case should not be dismissed for lack of prosecution, 

complainant has filed a motion to withdraw his complaint. 

Pursuant to Commission Rule § 2700.11, the motion is 

granted. Accordingly, the complaint is dismissed with prejudice 

and this proceeding is terminated. 

SO ORDERED. 

Distribution: 

John A. Carlson 

Administrative Law Judge 

Mr. Stephen B. Woody, 200 Church Street, Grant Town, 

West Virginia 25674 (Certified Mail) 

J. Davitt McAteer, Esq., Center for Law and Social Policy 

1751 N Street N.W., Washington, D.C. 20036 (Certified Mail) 

Edward Mulhall, Jr., Esq., Andrew o. Norell, Esq., 

Delaney & Balcomb, 818 Colorado Avenue, P.O. Box 790 

Glenwood Springs, Colorado 81601 (Certified Mail) 

/ot 

51 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 131984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RUSHTON MINING COMPANY, 

Respondent 

DECISION 

Docket No. PENN 83-28 

A.C. No. 36-00856-03504 

Rushton Mine 

Appearances: Mark V. Swirsky, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

Before: 

Joseph T. Kosek, Jr., Esq., Rushton Mining Company, Ebensburg, Pennsylvania, for Respondent. 

Judge Melick 

Hearings were held in .this case on November 15, 1983, in 

Philipsburg, Pennsylvania. A bench decision was thereafter rendered and appears below with only non-substantive changes. That 

decision is now affirmed. 

This case was of course presented before me 

upon the petition for assessment of civil penalty 

filed by the Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health 

Act of 1977 for one violation of the regulatory 

standard at 30 CFR Section 75.201. The general 

issue is whether the Rushton Mining Company, which 

I will refer to as Rushton, has violated the cited 

regulatory standard and, if so, what is the appropriate penalty to be assessed. 

The order before me (No. 1150256) was issued 

pursuant to Section 104(df(2) of the Act by MSHA 

Inspector Donald Klemick on May 7, 1982, and reads 

as follows: 

"The method of mining that was followed in 

the F-butt 008 section during the 12:00 to 8:00 

a.m.- shift under the supervision of Ed Snyder, 

section foreman, exposed the miners to unusual 

danger from roof falls due to faulty recovery of 

52 
the pillar between the number 25 and 26 rooms in 

that the right side final pushout stump was mined, 

recovered first head-on and the continuous miner 

continued to mine toward the caved area, almost 

removing the entire right side fender." 

I should note that the order was amended at 

the beginning of this hearing and that amendment 

was subsequently modified. As finally agreed to 

by the parties, the modification to the order added that the method of mining also violated the 

roof control plan drawing 7(a). 

The standard cited, 30 CFR § 75.201, reads as 

follows: "The method of mining followed in any 

coal mine shall not expose the miner to unusual 

dangers from roof falls caused by excessive widths 

of rooms and entries or faulty pillar recovery 

methods." 

Now, the determinative issue in this case, as 

both parties have stipulated in essence, is whether, in taking the right side final pushout of the 

cited stump, the continuous miner operator placed 

himself under unsupported roof. If the continuous 

miner operator did indeed place himself under unsupported roof, it is conceded that the operator 

would have been exposed to unusual dangers from a 

potential roof fall in violation of the cited standard. On the other hand, if he did not proceed 

beyond unsupported roof, then it is recognized and 

conceded that there was no violation. 

In this regard, there is evidence on the one 

hand from the government through the testimony of 

MSHA Inspector Klemick, based on his observations 

of the number of support posts placed adjacent to 

the pushout area and an estimate of the distance 

between these posts, that the final pusho.ut was 

cut to a depth of some 24 to 30 feet. I observe 

at this point that this estimate was itself given 

with a six foot margin of error, thereby in itself 

raising some question as to its accuracy. 

Since it is undisputed that the miner operator would have been under unsupported roof because 

of his position on the machine if he cut to a 

depth of 15 feet or more, according to the testimony of Inspector Klemick the miner operator would 

have been some 11 to 15 feet beyond supported roof. 

53 
I note, however, that even though the inspector h~d a cloth tape measure with him at the time 

of his inspection, he did not use it to obtain a 

more precise measurement. I also note that it is 

a well established practice for MSHA inspectors to 

throw such tapes with a weighted object attached 

into an area too dangerous to enter personally in 

order to obtain a more precise measurement. This 

procedure is ordinarily followed in the presence 

of a representative of the mine operator, and that 

under those circumstances there can be little dispute over the distance. You have then an objective basis on which you can establish the distance. 

As I say, this procedure was not followed in this 

case. 

Moreover, according to Mark Naylor, the representative of the mine operator who accompanied 

Inspector Klemick, he told Inspector Klemick that 

he thought the cut was only 13 to 14 feet deep. 

While Mr. Klemick apparently disagreed with this 

estimate, stating something to the effect that he 

felt the cut was deeper than that, I note that 

even then, in spite of the knowledge at that point 

that his estimate was being questioned and would 

indeed undoubtedly be questioned and challenged 

at future proceedings, the inspector nevertheless 

did not even at that point take a more precise 

measurement or receive some sort of concurrence as 

to the depth of the cut from the representative of 

the operator. 

I must point out also that the government's 

evidence is also tempered by the testimony of the 

operator's witnesses - miners who were present 

when the cut was taken - namely, roof bolter Lemuel Hollen; the continuous miner operator, Donald 

Baker; and the section foreman, Ed Snyder. In 

addition, there was the te£timony of Mr. Naylor, 

who accompanied Klemick during his inspection. 

All of these witnesses confirmed that the cut in 

the final pushout on the right side of this stump 

did not place the continuous miner operator under 

unsupported roof. 

I find with respect to the operator's witnesses, that the testimony of Don Baker, the continuous miner operator, is particularly significant. 

54 
He had only moments before working on the final 

pushout on the right side been working on the f inal pushout on the left side. According to his 

undisputed testimony, some material from the roof 

had begun falling on him, or falling on the continuous miner, while he was working on the final pushout on the left side. Around the same time he 

along with the other gentlemen on the scene observed serious roof problems further up. Mr. Baker was, as he testified, also quite aware at that 

time of other roof falls that had occurred in this 

mine in which continuous miners had been buried. 

He was, in fact, in my opinion freshly aware of 

his mortality at that time and, under the circumstances, would certainly be the last person to 

work under unsupported roof. I therefore give his 

testimony that he was not working under unsupported roof special credence. 

Under the circumstances, I am compelled to 

find that the government has just not been able to 

sustain its burden of proof of the violation. By 

so finding, this does not mean that I do not believe in the veracity of the government's testimony. Nothing could be further from the truth. I 

am convinced that the inspector testified truthfully to the best of his ability. I am absolutely 

convinced of that. I am just compelled to find, 

for the reasons stated, that I am not convinced 

that his observations have been sufficiently corroborated by any objective measure and particularly in light of the opposing credible testimony, I 

just cannot sustain the government's case. I cannot find based on the credible evidence that the 

continuous miner operator had cut the final pushout to a depth that would have exposed him to unsupported roof. 

Accordingly, I find that the violation has 

not been committed. The order is therefore vacated, and this case is drsmissed. 

55 
ORDER 

Order No. 1150256 is vacated and t is case is dismissed. 

Distribution: 

Assistant 

Gary ~ic .l 

Admi~'strative Law Judge 

\ 

Mark v~ Swirsky, Esq., Office the Solicitor, U.S. Department 

of Labor, 14480 Gateway Build' g, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

Joseph T. Kosek, Jr., Esq., Rushton Mining Company, P.O. Box 367, 

Ebensburg, PA 15931 (Certified Mail) 

/nw 

56 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 131984 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

on behalf of 

GERALD D. BOONE, 

Complainants 

v. 

REBEL COAL COMPANY, 

Respondent 

Docket No. WEVA 80-532-D 

HOPE CD 80-67 

ORDER OF DISMISSAL 

Appearances: 

Before: 

Edward H. Fitch, Esq., and Robert A. Cohen, 

Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for 

Complainants; 

Douglas D. Wilson, Esq., Gardner, Moss, 

Brown & Rocovich, Roanoke, Virginia, for 

Respondent. 

Judge Melick 

The Complainant on behalf of Gerald Boone requests 

approval to withdraw the Complaint in the captioned case 

acknowledging receipt in full of the monetary damages, 

costs, and attorney's fees ordered by the undersigned to be 

paid. Under the circumstances h rein, permission to withdraw is granted. 29 CFR § 2700.l • The case · therefore 

dismissed. 

Distribution: 

Gary Melic 

Assistant 

Robert A. Cohen, Esq. and 

the Solicitor, U.S. Depar 

vard, Arlington, VA 2220 

wa~d H. Fitch, Esq., Office of 

nt of Labor, 4015 Wilson Boule-

(Certified Mail) 

Mr. Gerald Boone, Robertson Subdivision, Prichard, WV 25555 

(Certified Mail) 

Douglas D. Wilson, Esq., Gardner, Moss, Brown & Rocovich, 

P.O. Box 13606, Roanoke, VA 24035 (Certified Mail) 

Larry Harless, Esq., United Mine Workers of America, P.O. 

Box 1313, Charleston, WV 25325 (Certified Mail) 

/nw 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JAN 131984 

JACK E. GRAVELY, JR., 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 83-101-D 

v. 

HOPE CD 82-52 

RANGER FUEL CORPORATION, 

Respondent Beckley No. 2 Mine 

DECISION 

Appearances: Belinda S. Morton, Esq., Fayetteville, West 

Virginia, for Complainant; 

W. H. File, Jr. and John L. File, Esqs., 

File, Payne, Scherer & Brown, Beckley, 

West Virginia; Fletcher A. Cooke, Esq., Lebanon, 

Virginia, for Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a complaint of alleged discrimination filed by the complainant against the respondent pursuant · 

to Section 105(c) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. 801 et seq. The complaint was initially 

filed pro se by the complaIIlant after he was advised by the 

Secretary of Labor, MSHA, that an investigation of his complaint determined that a violation of Section lOS(c) had not 

occurred. The complainant then retained counsel to pursue 

his case before this Commission. 

The respondent .filed an answer denying the allegations 

of discrimination, and pursuant to notice a hearing was 

conducted at Beckley, West Virginia, on October 4, 1983, 

and the parties appeared and participated fully therein. They 

were given an opportunity to file post-hearing proposed 

findings and conclusions, with supporting briefs, and the 

arguments presented therein have been reviewed and considered 

by me in the course of this decision. 

Issue 

The issue in this case is whether or not Mr. Gravely's 

discharge was prompted by his engaging in protected activity 

58 
under the Act. Mr. Gravely asserts that he was fired because the respondent held him responsible for a roof fall. 

According to Mr. Gravely, the respondent expected him to 

take his work crew beyond a danger board to perform work 

in supporting the roof area which fell. The respondent 

contends that Mr. Gravely was discharged because of his 

asserted failure to properly and adequately supervise his 

work crew. Respondent contends that this failure on 

Mr. Gravely's part resulted in damage to two pumps, and that 

Mr. Gravely's work performance as a foreman was less than 

adequate. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 301 et seq. 

2. Sections 105(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 (c) (1), (2) 

and ( 3) . 

3. Commission Rules, 29 CFR 2700.1, et seq. 

Testimony and evidence adduced by the Complainant 

Ralph D. Carr, shuttle car operator, testified that on 

or about July 27 1 1982, he was working on Mr. Gravely's 

crew and he was instructed to operate a uni-track machine 

hauling crib blocks and headers to be used in supporting 

the top. During the operation of this machine he ran over 

a pump which was placed in the road'\>ray, and he did so after 

believing that the person assigned to watch it and move it 

had done so. Mr. Carr believed that mine foreman Dennis Myers 

had assigned the person to watch the pump (Tr. 11-15). 

Mr. Carr confirmed that a danger board was posted on 

the section in July 1982, and it was located approximately 

"one break back from where the top worked" (Tr. 14). Work 

to support the top was started at the location of the danger 

board and Mr. Gravely instructed him to start work at the 

danger board and that is what he did. Mr. Carr stated that 

Mr. Myers wanted the crew to go further into the dangered 

area, but he did not do so because it was against the law 

to go beyond the danger board (Tr. 15). 

In response ·to questions from the bench, Mr. Carr 

stated that Mr. Gravely was a foreman in charge of his crew 

and that Mr. Myers was the night shift foreman and was 

Mr. Gravely's supervisor (Tr. 16). 

59 
Mr. Carr confirmed that Mr. Gravely's crew was working 

on roof support, starting at the danger board and working 

towards the face and the fall area. Roof headers were 

installed at the danger board and work proceeded towards 

the face to support the top. He later learned that Mr. Gravely 

had been discharged, and Mr. Gravely advised him he had been 

fired because "we wouldn't go in behind and work on the top 

and where he had run over the pump" (Tr. 21). 

On cross-examination, Mr. Carr stated that starting 

work at the danger board and working toward the face supporting 

the roof as they progressed was the normal and proper procedure 

(Tr. 24). He explained the circumstances surrounding his 

running over the pump (Tr. 27-30). 

Bernard R. Campbell, Jr., testified that he works on 

the mine "hoot owl" shift, and that he knew Mr. Gravely 

when he worked as a foreman. Mr. Campbell stated that he 

was on Mr. Gravely's shift in July 1982, working at the 

posted danger board area installing roof supports at the 

track entry. Mr. Gravely was supervising the work. The 

work began at the danger board and progressed inby, and no 

one "coaxed" him to go any further than where they were 

actually working (Tr. 34). 

Mr. Campbell stated that during the time he worked for 

Mr. Gravely he never asked him to do anything which would 

violate the law. Mr. Campbell stated that while there was 

no roof fall at the danger board area, the area at the crosscut inby that area "fell some" (Tr. 35). 

In response to bench questions, Mr. Campbell stated 

that there was no violation at the danger board area because 

the roof was permanently supported there. No MSHA inspectors 

were present on the evening in question, and as far as he 

knows the company was not cited for any loose roof violations 

(Tr. 37). 

Mr. Campbell stated that he is a UMWA safety committeeman, 

was aware of the danger board situation, and that no one 

complained about the roof being loose, when asked if he knew 

what this case was about, he responded as follows (Tr. 38-39): 

JUDGE KOUTRAS: Do you know what this case 

is all about? 

THE WITNESS: Not exactly. 

JUDGE KOUTRAS: Do you know what Mr. Gravely 

is complaining about? 

GO-
THE WITNESS: Being discharged over pumps 

and bad top is the only thing I can understand. 

JUDGE KOUTRAS: He claims -- at least part 

of his claim here is that he was required to 

take -- that part of the reason for discharge 

was that he refused to take his crew into an 

area that he thought was unsafe. 

Do you have anything to contribute to that 

allegation, based on your own personal knowledge? 

THE WITNESS: Well, if Mr. Gravely says that 

we have to go in here to save this place, if 

I hadn't of been there the employees still 

didn't have to go in by it, they could ask 

for a committeeman, then they would have had 

to have got a hold of me and the mine foreman. 

But still, for a bad top, it's common knowledge 

to try to save it if you can. 

Mr. Campbell stated that when work started at the danger 

board Mr. Gravely had the responsibility to make sure the 

area was safe to start work and he made the decision that it was. 

i'brkwascompleted the first night, and he returned to the 

area on the next working shift and continued installing roof 

supports (Tr. 41). Mr. Gravely never indicated that he did 

not want to go beyond the danger board (Tr. 43). 

Jim L. Ellis, currently employed by Phillips Coal Company, 

testified that he was employed by the respondent from December 1980 

until November 1982, as a foreman. He worked with Mr. Gravely 

over a period of a year and a half, but on different shifts 

(Tr. 45-46). 

Mr. Ellis stated that it was company policy to post a 

list of persons assigned to work weekends. He recalled a 

shift during the Memorial Day weekend in 1982, and that 

Mr. Gravely's name was not posted. Mr. Ellis worked that 

weekend as a fire-boss (Tr. 47-48). 

Mr. Ellis confirmed that a member of his crew destroyed 

a pump approximately a year and half ago during the summer 

of 1982. He also confirmed that the shuttle car operator 

who ran over it was not disciplined because it was not his 

fault (Tr. 50). Mr. Ellis also stated that it was his 

responsibility to watch the pumps, that he assigned no one 

to watch them, and that no one was written up over this 

incident (Tr. 53). 

61 
On cross-examination, Mr. Ellis confirmed that the 

shuttle car operator was not careless or negligent and that 

is why he was not reprimanded (Tr. 54). He also confirmed 

that he left the respondent's employ when the mine shut down 

and he found another job (Tr. 55). 

Eric Coleman, roof bolter operator since 1979, testified 

that in July 1982, he worked the "hoot owl" shift, and that 

he "probably" worked on Mr. Gravely's shift as he had done 

on several different occasions (Tr. 57). He recalled the 

posted danger board and indicated that he and his roof bolter 

helper were assigned there to bolt the top. The roof "was 

working too bad" and no bolting took place until the area was 

cleaned up (Tr. 58). He considered Mr. Gravely to be a safe 

foreman (Tr. 59). 

When asked about the danger board incident, Mr. Coleman 

responded as follows (Tr. 62): 

JUDGE KOUTRAS: At any time during this 

entire episode, this one or two nights now 

that this incident took place about the headers 

and the danger board and all that business, 

did anyone ever instruct you specifically to 

go beyond the danger board to expose yourself 

to any hazard or anything? 

THE WITNESS: No. 

JUDGE KOUTRAS: Mr. Gravely or anybody else? 

THE WITNESS: No. 

JUDGE KOUTRAS~ Do you know whether Mr. Gravely 

asked any of his crew to do that? 

THE WITNESS: Not that I recall. 

JUDGE KOUT.RAS: Did Mr. Myers or anyone else 

from management, to your personal knowledge, 

instruct Mr. Gravely to take his crew beyond 

the danger board? 

THE WITNESS: Not that I can recall. I don't 

remember. 

Clifton P. Chandler, testified that he previously 

worked for the respondent for 12 years in various foreman 

positions but left when the mine shut down in November 1982. 

62 
He worked with Mr. Gravely, and he did not see Mr. Gravely's 

name on any list to work the Memorial Day weekend in 1982. 

Mr. Chandler stated that he didn't work, but that he checked 

the posted list and did not see Mr. Gravely's name on it 

(Tr. 6 7) • 

In response to further questions, Mr. Chandler stated 

that while his name was not posted to work the weekend 

in question, if he were notified by a superior to work he 

would do so (Tr. 68-69). 

Gary Lee Kiblinger testified that he has been employed 

by the respondent for four years as a plow operator. He 

stated that in July 30, 1982, he was working under Mr. Gravely's 

supervision while operating a continuous miner "scraping 

bottom." He explained the circumstances under which he ran 

over and damaged a pump. He was not disciplined by Mr. Gravely, 

and he believed the pump could have been avoided if the pump 

line had been moved (Tr. 160-163). 

Mr. Kiblinger confirmed that he worked the "hoot owl" 

shift on July 27, 1982, and that the work involved pinning 

and timbering the roof at the area where it had been dangered 

off with a danger board. He worked again on July 28, but 

he was not there when the roof actually fell, but he did 

indicate that at the time he was working to support it 

"it had bellied, it hadn't lacked much falling. It was bellying 

when we was putting them six by eight headers up" (Tr. 164). 

He also indicated that the roof condition was bad, and that 

"It was going to fall, don't matter what they put under it, 

it was going to fall", and that "when we put the three by 

eights up it started bowing" (Tr. 165-166). 

On cross-examination, Mr. Kiblinger stated that the pump 

casing was pierced, and that in order to use it again it 

would have to be repaired. The usual way to repair it is 

to install a new casing (Tr. 167). He also indicated that 

pumps have been "burned up" through negligence when they 

are allowed to "sit there and burn up" (Tr. 167). 

Jack E. Gravely, Jr., testified that he is currently 

employed as a salesman for the 84 Lumber Company, and that 

he previously worked for the respondent from February 13, 1981 

to July 30, 1982, as a section and construction foreman. 

As construction foreman on the midnight shift his job entailed 

doing "everything," and he worked on different sections with 

different crews (Tr. 75). His salary during 1982 was approximately 

$2600 a month (Tr. 98). 

63 
Mr. Gravely stated that he was never reprimanded in 

March 1982, and he denied ever being verbally reprimanded 

by Harrison Blankenship or Dennis Myers during his employment 

with the respondent. He did confirm that he received a 

three day suspension from Bill Ward for missing a day of work 

the Saturday, May 29, before Memorial Day. Mr. Gravely stated 

that he was told he was scheduled to work, but he insisted 

that his name was not on the work list and no one told him 

to work (Tr. 77). Mr. Gravely explained the procedure for 

posting the work list, and he indicated that while he was 

informed that his suspension would be without pay, he was in 

fact paid for the three days he was suspended (Tr. 78-82). 

Mr. Gravely denied that he was ever reprimanded over 

an incident concerning a continuous,rniner operator being 

off center on a 20 foot cut, and that he in fact had reprimanded 

the miner operator over that incident (Tr. 82-82). 

With regard to the incident concerning Mr. Carr running 

over a pump, Mr. Gravely explained the circumstances. He 

indicated that Mr. Carr was not at fault, and that the 

person assigned to watch and move the pump was moved to another 

location by Dennis Myers, and since Mr. Myers was his supervisor, Mr. Gravely did not question his decision (Tr. 84-86). 

Mr. Gravely stated that on July 27, 1982, his crew was 

composed of Ralph Carr, Gary Kiblinger, and Kenny Davis. 

The crew intended to work on scraping the bottom, and after 

some preparation work he checked the roof and found that 

"it was working pretty bad." He instructed the crew not to 

scrape bottom and they began setting timbers. Mr. Myers 

came to the area, and after looking at the topfordered some 

headers~and Mr. Gravely's crew worked the rest of the shift 

on the top. Mr. Gravely left the danger board for the next 

shift corning on the section (Tr. 88). 

Mr. Gravely stated that he next returned to work on the 

midnight shift on July 28., 1982, and Mr. Myers was his shift 

supervisor that night. Assistant shift foreman Larry Burgess 

informed him that the top on the section was bad and that 

he had placed the danger board all the way out into the entry 

and that any roof support work would have to be started at 

the location where the danger board had been moved. Mr. Gravely 

then proceeded to work his crew for the entire shift, starting 

at the danger board, and they proceeded inby to secure the 

roof, but at 5:00 a.rn. that morning a roof fall occurred inby 

the area where they were working (Tr. 90). 

64 
When asked whether anyone told him to go any further 

than where he was working on July 28, Mr. Gravely responded 

as follows (Tr. 90-91): 

Q. Did anyone tell you to go any farther 

than where you were working? 

A. Well, Mr. Myers told me that, you know, 

it would have been a lot better if I could 

have started further in, but it would have 

plaqed my whole crew and myself in imminent 

danger had we went any further in. And 

the next day, Harrison Blankenship told 

me that I definitely should have went 

further in there and secured the area that 

fell. 

Q. Did you hear any crackling noise from 

the top? 

A. Oh, you can always hear the top breaking 

up if it's bad. You see it dripping. 

Q. Had you had anvrun-ins before with 

Mr. Blankenship or Mr. Burgeffi as to the 

techniques that you used with your men? 

A. No, ma'am. 

When asked why the respondent terminated him, Mr. Gravely 

responded as follows (Tr. 91-92): 

Q. So why do you believe that Ranger Fuel 

terminated you? 

A. They told me -- on Friday the 30th, I worked 

that same section. There was another roof fall 

that wouldn't have been classified as a legal 

roof fall by MSHA regulations because it wasn't 

bolted yet. Larry Burgess again told me that 

he had been on that section, that they had cut 

a break-through through from both sides and 

the top was too bad -- they bolted it on one 

side and they cut it on the other side without 

it being bolted, and then give me two men, 

Eric Coleman and Dennis Cello to bolt it and 

three men to scrape bottom. I called Dennis Myers, 

and he come and looked at it and decided that he 

wanted to take the miner in and clean the rock 

up. So he called and got more people and got 

65 
all kinds of timbers and headers and stuff 

and started securing the area into that 

roof fall. We timbered the roadway down 

there and everything and made it pretty safe 

just to get in the area, but by the time we had 

done all that it had fell in some more. And 

at that time, Dennis decided that we just crib 

it-off and leave it and go ahead and take them 

down and scrape the bottom, but he told me 

they were thinking about firing me over allowing 

the first roof fall. 

And, at Tr. 99: 

Q. Are you sure that's the only reason that 

Ranger Fuel discharged you was because of the 

danger board incident? 

A. Yes , ma ' am. 

Q. He specifically said that when he discharged 

you? 

A. Harrison Blankenship, yes, ma'am, he told me 

specifically that I should have gotten that top 

secured. And Dennis Myers had already told me 

before that, that they were thinking about firing 

me over that fall. 

Mr. Gravely testified as to the circumstances surrounding 

a second pump which was damaged at the same water hole where 

the first pump had been destroyed. Miner operator Gary Kiblinger 

caught the pump hose with his miner while it was laying by 

the rib after being disconnected by electrician Randy Johnson: 

The pump was dragged some 75 to 100 feet, and Mr. Gravely 

believed that only the "goose neck" used to hook on the 

discharge hose was damaged and that this piece cost eight to 

ten dollars. Mr. Kiblinger was not reprimanded and the 

electrician was under the supervision of maintenance foreman 

Floyd Holthouser (Tr. 95-97). 

Mr. Gravely stated that the value of the second pump 

was probably two or three thousand dollars, and he denied 

that he had ever previously been blamed for destroying 

material on his shift (Tr. 98). 

Mr. Gravely confirmed that he was not given a written 

letter of discharge. He was advised orally by Mr. Blankenship 

and mine manager Walt Crickmer that he was discharged 

(Tr. 100) . 

66 
On cross-examination, Mr. Gravely denied that he was 

ever given a company personnel termination form. He also 

denied that Mr. Blankenship ever advised him he was being' 

discharged because two pumps were damaged during his shifts 

and that he had been warned about this on July 27, 1982. 

He also denied that Mr. Crickmer ever told him that he was 

being discharged for these reasons. Mr. Gravely stated 

that Mr. Blankenship "gave me the reason that I was being 

discharged over the roof fall, and on the 30th there was 

the second roof fall" (Tr. 101). 

Mr. Gravely denied that Mr. Blankenship ever advised 

him that he would be suspended on March 16, 17, or 18, 1982, 

because cribs had to be installed on the No. 3 entry when 

the ribs were cut off center. He also denied that he was 

in fact suspended on those days (Tr. 103-104). 

Mr. Gravely identified exhibit R-2 as a report he 

prepared and filed with his superior as part of his duties 

as a foreman. The report reflects that miner operator 

Rick Stewart cut certain areas too wide on March 3, 5, and 

12, 1982, and that Mr. Gravely verbally warned Mr. Stewart 

about the incidents (Tr. 109-112). Mr. Gravely denied that 

Mr. Blankenship reprimanded him on March 12, 1982, nor did 

he suspend him (Tr. 113). 

Mr. Gravely identified exhibit R-3 as a mine map, and 

that the No. 2 entry is the intake air entry, a track entry, 

and a belt entry. He confirmed that this is the entry where 

the pump incidents occurred and where the danger board in 

question was placed (Tr. 115-117). He denied that the principal 

roof fall occurred in the No. 1 entry, and stated that it 

occurred in the break-through between the No. 1 and 2 entries, 

and that it actually blocked the break-through and not the 

entry. He indicated that the fall was some 30 feet from the 

No. 2 entry and that it was not possible to approach that 

area from another direction other than going by the danger 

board on No. 2. He also indicated that the area could not 

be approachedby going in the No. 1 entry outby the danger 

board because the area was solidly cribbed off (Tr. 121). 

Referring to the mine map, Mr. Gravely contended that 

the area where he was criticized for not going with his crew 

was "inby that danger board and to the left in the break" 

(Tr. 122). Mr. Gravely stated that at no time did he refuse 

to go into an area because it was beyond the danger board, and he 

further testified as follows (Tr. 123-124): 

Q. And did anyone direct you to go into 

an area beyond the danger board? 

67 
A. Did anyone "direct" me? 

Q. Yes; order you to? 

A. No. 

Q. And did any of your men refuse to go intc 

an area that was marked or dangered off? 

A. I had better sense than to take my men 

into an ·area like that; and, because I didn't 

take them in there, they didn't have to refuse~ 

Q. So you didn't refuse to go and the men didn't 

refuse to go. Is that correct? 

A. We didn't go. My men, nor myself went into 

that area. 

Q. And the fall that later occurred, and it 

was a rather large fall, was over at the breakthrough near or in the No. 1 entry. Is that 

not correct? 

A. It was in the break-through, yes. 

Q. But no one ever specifically did anyone 

ever specifically tell you to go to correct that? 

A. Specifically tell me to correct that; yes, sir. 

Q. Who did that? 

A. Dennis Myers and Larry Burgess. 

Q. And why did you not do it? 

A. I started where they told me to start. 

Regarding his conversations with Mr. Myers and Mr. Blankenship over the pumps, Mr. Gravely testified as follows (Tr. 124-

125) : 

Q. Now, when you were called in after the 

second event relating to the pump, who was 

present at that time? 

A. After the second one? 

Q. Yes. 

68 
A. Dennis Myers and Harrison Blankenship. 

Q. And was anyone else present? 

A. No, sir. 

Q. Did you have a conversation with 

Walter Crickmer about it? 

A. That was later, that wasn't at the time 

that I was called in. 

Q. And what did Walter Crickmer state to 

you? 

A. Walt just told me that I was being discharged. 

Harrison Blankenship had already talked to me, 

all I was seeing Walt for was to turn my equipment 

in. 

Q. What did Mr. Blankenship say to you in 

particular as to why you were being discharged? 

A. For not getting in that area and timbering 

that fall. 

Q. Did he say anything else to you about the 

pumps? 

A. No, sir, not to my knowledge. 

Q. Now, he talked to you. Would it have been 

to your knowledge? 

A. Well, that's a year and a half ago and I 

don't remember word for word his specific 

conversation. 

Q. You're not prepared to state under oath that 

he did not tell you that you were being fired 

because of the pumps, are you? 

A. I'm not prepared to say under oath that he 

did or didn't. I'm saying under oath that it was 

a year and a half ago and I don't remember word 

for word what he said. 

And, at Tr. 126: 

Q. Mr. Gravely, then you do not deny that you 

were told -- since you cannot recall, you do not 

69 
deny that you were told that you were being 

discharged because you had permitted an 

employee to run over and destroy a pump on 

the 27th, and that you had permitted the 

same thing to occur and seriously damaged 

a pump on the 30th? 

A. Yes, sir, I do deny that. 

Q. You deny it? 

A. Yes, sir. 

Q. Well, a minute ago you said you couldn't 

remember. 

A. I couldn't remember his exact words, but 

I can remember that I wasn't told all of that. 

Mr. Gravely stated that he was never told to go into 

an unsafe area, and that therefore, he did not refuse to 

go into an unsafe area (Tr. 128). He confirmed that a danger 

board is moved as the work progresses inby to support the 

roof, and that he would always be working in the vicinity 

of the danger board as it is moved inby with the roof support 

work (Tr. 129). 

Mr. Gravely denied that Mr. Blankenship, Mr. Burgess, 

or Mr. Crickmer ever specifically counseled him about his 

work or the way he was carrying out his duties (Tr. 129-130). 

When asked about the roof fall that Mr. Gravely contends 

caused his discharge, he stated as follows (Tr. 147-152): 

JUDGE KOUTRAS: Mr. Gravely, in your 

earlier statement that you filed, the 

written statement, you say that Mr. Myers 

had told you that Mr. Blankenship had 

said that they were going to fire you for 

the fall that occurred on the 28th. 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And then your statement says 

that Mr. Blankenship told you that he was 

firing you because of the fall that occurred 

on the 28th. 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Did he blame you for the fall 

that occurred on the 30th, too? 

70 
THE WITNESS: He didn't mention the fall. 

I just said there had been another fall there 

and he didn't say that I was to blame for that. 

JUDGE KOUTRAS: So he didn't lay the responsibility 

for the July 30th fall on your shoulders? 

THE WITNESS: No, sir. 

* * * * 

JUDGE KOUTRAS: What was your response to him 

when he allegedly told you that's why they were 

firing you? 

THE WITNESS: I told him that the top was too bad, 

that we started where I had been instructed to 

start. 

* * * * 

JUDGE KOUTRAS: Did you tell Mr. Crickmer that 

Mr. Blankenship fired you because he wanted you 

to go into an area that you thought was unsafe? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And what was his response? 

THE WITNESS: His response was that there was 

nothing wrong and that I had destroyed the pump. 

And, at Tr. 153-155: 

JUDGE KOUTRAS: Okay. So the nuts and bolts of 

your complaint is your contention that the 

company fired you for failing to take care of a 

roof fall to the satisfaction of your supervisor 

or your superior? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And your response to that is that 

you weren't responsible for the roof fall and 

that you weren't about to go into an unsecured 

area with your crew and do some work? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: But nobody from the company, 

none of your superiors or anybody ever suggested 

to you directly that you do that. Is that right? 

71 
THE WITNESS: Mr. Blankenship did. 

JUDGE KOUTRAS: But this happened after the fact. 

THE WITNESS: Oh, he told me that after. 

JUDGE KOUTRAS: But at all times when you and your 

crew were down in the section addressing the roof 

fall conditions starting at the danger board and 

all that, did anybody suggest to you specifically 

how you were to go about your duties of uddressing 

the roof fall? 

'l'HE WITNESS: Well by the time anybody came to 

check on me -- which would have been Mr. Myers 

I was already doing it. 

JUDGE KOUTRAS: But nobody from management, none 

of your superiors, suggested to you that you were 

to take your crew in by a danger board? 

THE WITNESS: Well, Dennis said it would have been 

better if I would have got started further in, 

which would have been in by the --

JUDGE KOUTRAS: When was this though? 

THE WITNESS: That would have been during the 

shift, probably two or three o'clock in the morning. 

JUDGE KOUTRAS: And you told Dennis -- what did 

you say to him? 

THE WITNESS: I started where Larry Burgess had 

told me. Larry Burgess was the man who had 

dangered the area off initially. 

JUDGE KOUTRAS: But no one said anything to you 

at that point, Mr. Myers or no one else said 

anything to you other than maybe you should have 

started in a little further? 

THE WITNESS: No, not at that point. 

Testimony and Evidence Adduced by the Respondent 

Walter B. Crickmer, III, testified that he is a graduate 

geologist and has worked for the Pittston Company for eight 

years. At the time of Mr. Gravely's discharge he was the 

mine manager at Ranger Fuel Company's Beckley No. 2 Mine. 

He stated that prior to Mr. Gravely's discharge, he discussed 

his work performance with him. He described the nature of 

these discussions as follows (Tr. 178-179): 

72 
A. Well, it was a repeated history. Over 

a period of time -- it could go back as far 

as maybe even up to a year or eight or nine 

months before the discharge took place. I 

had five superintendents working for me at the 

time, Harrison was one in charge of production; 

I had people in charge of construction; a 

superintendent at each level, and it was our 

job to reorganize the mine and get the mines 

back on the right track. We discussed all 

the. foremen at different times. 

We had Harrison, and Jack worked for him on 

production. He had a problem with keeping 

Jack's crew on-center. I'm not saying that 

that was the only problem with Jack. We had 

Jack -- we moved him from production to construction, construction to general work all 

over the mine, on every shift, on every production 

shift, you know, day, evening and owl, trying 

to find a place for Jack to work. We had 

problems in each category. 

It kept going right along, and all of a sudden 

I started noticing, one of the miner foremen 

mentioned something to me that well, maybe 

Jim Campbell, one of the general work superintendents, said we have a problem with 

absenteeism with Jack. We looked at this 

record and started to see that every Friday and 

every Monday he was off; every Friday and every 

Monday he was off -- I mean not every one but 

a tremendous majority, 30 or 32 days or something 

within a year's period. He was always off 

Mondays and Fridays. 

And we kept moving him from shift to shift and 

from one section of the mine from construction 

to production and these pump episodes came up 

and, you know, I've been through this with the 

Unemployment Commission and MSHA and all this 

before and there wasn't ever any question of 

Jack's discharge ever being involved with this 

roof problem. 

When Harrison approached me that morning after 

he had talked with Dennis about a second pump 

being destroyed -- it wasn't destroyed, we 

repaired it for $800 -- he approached me with 

the thought that: okay, we have another pump 

73 
incident; we already had the first une, we 

lost it totally, $3500. I knew Jack had been 

involved with the center episode, with the 

absenteeism, with this and that all the way 

along continuously, continuously. He had been 

reprimanded before. He said: now, we've got 

two pumps back to back, what are you doing 

to do? He said: I'd like to fire him. I 

said: I agree. 

Mr. Crickmer identified exhibit C-1 as Mr. Gravely's 

"discharge ~aper", and he confirmed the "W.C." shown at the 

bottom of the document are his initials evidencing the fact 

he approved the discharge (Tr. 180). 

Mr. Crickmer stated that in 1982 it was possible for 

a foreman to be paid when in fact he had not reported to 

work. He explained that this was possible because of poor 

management and record keeping and that foremen were permitted 

to turn in their own time sheets. Since that time, company 

policy brought about changes and improvements (Tr. 182). 

Mr. Crickmer stated that Mr. Gravely was paid for three days 

on June 2, 3, and 4, 1982, because he turned in his own time. 

Mr. Crickmer stated that he was aware that Mr. Gravely had 

been suspended on those days, but he didn't know that he had 

been paid "until all these things started taking place" 

(Tr. 183) • 

Mr. Crickmer stated that while Mr. Gravely's discharge 

paper lists only the pump as the reason for his discharge, 

every other reason is not always listed (Tr. 181). 

On cross-examination, Mr. Crickmer confirmed that his 

present employer is Clinchfield Coal Company, and that Ranger 

Fuel and Clinchfield are divisions of the Pittston Company ., 

Coal Group. Mr. Crickmer confirmed that he appeared and 

testified at a hearing before the West Virginia Department of 

Employment Security on September 23, 1982 (Tr. 185). 

Mr. Crickmer s~ated that Mr. Gravely's alleged absenteeism 

was not a factor in the decision to discharge him, and he 

explained his answer as follows (Tr. 188): 

A. No, not a factor of his discharge. His 

discharge was brought about by his inability to 

control his crew; his inability to perform under 

each one of the superintendents; his constant 

moving from one job area to another; my discussions with Jack personally on these problems 

that he was having with staying on-centers; 

74 
Harrison talked to me about staying oncenters; Jim Campbell talking to me about 

problems, whatever, and then came up with 

these back-to-back destruction of the pumps; 

you know, you go to a certain point you reach, 

you say; is this man worthwhile keeping. 

You know, always in the back of your mind you 

think about the days absent and so forth, 

why does a man miss so many days; but, you 

can't discharge a person because of that, ma'am. 

Mr. Crickmer testified as to the value of the two pumps 

which were "destroyed," and he stated that the first pump 

was "completely destroyed" and that the second one was "damaged 

severely." He could not state the precise costs for the pumps 

(Tr. 198-201). 

Mr. Crickmer stated that Mr. Blankenship suspended 

Mr. Gravely on March 16 and 17, 1982, for "being off-center; 

controlling his crew," but he did not know whether it was 

written or verbal (Tr. 201-202). 

Mr. Crickmer identified exhibit R-4 as a copy of an 

invoice from the respondent's records indicating that the 

cost to repair the second pump in question was $854 (Tr. 206). 

He also identified exhibit R-5 as copies of Mr. Gravely's 

attendance record for the period February to December 1981, 

and January to July 1982 (Tr. 208). 

After referring to Mr. Gravely's attendance records, 

Mr. Crickmer stated that they reflect that he worked on 

March 17 and 18, 1982, but missed March 16 (Tr. 218). 

Respondent's counsel conceded that Mr. Crickmer had no 

personal knowledge as to whether Mr. Gravely was actually 

suspended on March 16 and 17, 1982 (Tr. 224-225). Under 

the circumstances, the payroll records, exhibits R-5 and R-6 

were rejected and not admitted (Tr. 226). 

With regard to Mr. Gravely's alleged failure to work 

over the Memorial Day weekend, t.1r. Crickmer conceded that 

his name was not posted on a work list but that he was 

personally informed verbally by his immediate supervisor that 

he had to work (Tr. 229-230). 

In response to bench questions, Mr. Crickmer stated 

that aside from the matter of Mr. Gravely not working on 

the Memorial Day weekend, none of the other asserted disciplinary actions, counseling, warnings, etc., were ever 

reduced to writing (Tr. 235). 

75 
Billy G. Smith, testified that he is employed by the 

respondent and was employed at the mine in 1982. He stated that 

on the Memorial Day weekend of May 29 and 30, 1982, Larry Burgess 

was scheduled to work, and after "kidding him" about it, 

Mr. Burgess informed him that he was going to put Mr. Gravely's 

name on the work list for that weekend. Later, when Mr. Smith 

mentioned this to Mr. Gravely, Mr. Gravely told him "I'm not 

working Saturday" (Tr. 262). 

On cross-examination, Mr. Smith stated that while he 

did not hear Mr. Burgess tell Mr. Gravely that he had to work, 

he did see Mr. Gravely's name "on the board where Larry had 

marked his out and put Jack's" (Tr. 262). The board is in 

the foremen's office where a foreman would normally go to 

make notations in the books (Tr. 263). Mr. Smith did not 

know whether Mr. Gravely ever saw the list when it was posted 

on Wednesday (Tr. 267). 

Larry Burgess, assistant shift foreman, second shift, 

testified that he was so employed in 1982. He stated that 

he scheduled Mr. Gravely to work the Memorial Day weekend 

by crossing out his own name from the posted list and inserting 

Mr. Gravely's. He did so after clearing it through mine 

foreman Bill Ward and Mr. Blankenship, and he stated that 

he told Mr. Gravely about the change (Tr. 271-272). The change 

was made on a Wednesday, and Mr. Gravely informed him that 

"hell, no, I ain't going to work" (Tr. 274). 

When asked to evaluate Mr. Gravely's work performance, 

Mr. Burgess responded as follows (Tr. 274-276): 

Q. Well, in the time that he worked for 

you prior to ~ay and up until the time he 

was discharged, did you have any opinion 

about the type of work he was doing and whether 

or not --

A. Yes, sir, I did. 

Q. it was satisfactory work? 

A. It was very unsatisfactory. Jack 

resented me for some reason or another, and 

it was my section to look after and I would 

make checks of it and I'd give him my opinion 

of what needed to be done and what I wanted 

him to do and so forth. 

Q. And what reaction did you get to that? 

76 
A. Well, he acted like he resented me all the 

·time, and he didn't pay a whole lot of attention 

to what I had to say. And there was several 

problems I had with Jack; one of them was the 

centers; one of them was with floating out 

through dinner, running the miner through dinner, 

which we're supposed to do, and I asked Jack to 

do it and he never did do it. And several times 

I come on the section and everybody would be in 

the dinner hole. 

Q. Had you ever recommended that he be terminated 

prior to the time he was? 

A. Yes, sir. I had been in trouble over Jack 

several times through my superiors for center 

lines, how critical it would have to be for the 

belt going through. Mr. Campbell, which is over 

construction, he was over the belt lines and all, 

he called me into his off ice several times over 

it; and, Harrison, we had discussed Jack several 

times. I couldn't do a thing with him. 

Q. Is it true from what you say that the center 

lines are very important in driving the --

A. Yes, sir. 

Q. And that if they're off three to six feet, 

does that create a problem? 

A. It sure does if it's in your belting, absolutely. 

Q. So you would have to come back and straighten 

it out. Is that right? 

A. Yes, sir. What time that you have to back up 

to shear your ribs, that's time that you're losing 

in production in the face. You know, you could 

be getting· a cut of coal for what time you was 

getting two or three buggies to straighten up 

the miss and taking it back to the face up here 

and bolting the ribs, and it's a lot of time and 

a lot of loss in production. 

Q. Is there also a lot of risk of violations of 

regulations? 

A. Well, sure. It's a state law that all places 

must have a center line in before the cut. Several 

77 
times I had went on a section and caught them 

cutting without a center line. They'll put 

a center line up and get two cuts before they 

would put the next one up. I mean there's a 

lot of that that went on. 

Q. Was this under Jack's supervision? 

A. Yes, sir. 

On cross-examination, Mr. Burgess stated that no 

violations were ever issued against the respondent for cutting 

the places in question too wide (Tr. 276). He also stated 

that while he could have disciplined Mr. Gravely for not 

working over the weekend in question, he did not do so and 

turned the matter over to Mr. Ward and Mr. Blankenship 

(Tr. 282) . 

When asked about the events of July 27 through 30, 1982, 

and the roof fall, Mr. Burgess testified as follows (Tr. 284-

285, 286, 288): 

JUDGE KOUTRAS: Are you aware of the events 

of July 27th, 28th, 29th, and 30th, this 

roof fall business and all that? 

THE WITNESS: Yes, sir, I was. 

JUDGE KOUTRAS: Tell me in your own words 

what you know about that. 

THE WITNESS: 

taken care of 

start with we 

that we had. 

JUDGE KOUTRAS: 

too general. 

Well, it's my opinion if it was 

the way it should have been to 

wouldn't have had all the problems 

That's a little too broad and 

THE WITNESS: No. Seriously, if the intersection 

where the top had give way had been supported 

like it was supposed to have been to start with, 

the top wouldn't have took off. I mean it 

has to break out somewhere. 

* * * * 

JUDGE KOUTRAS: All right. But on the 27th, do 

you agree that they were sent down to do some 

scraping and that they encountered a bad top? 

78 
THE WITNESS: I don't know what the dates were, 

but I know that Harrison give me the same diagram 

that he give Jack to go by. And Harrison explained 

it to me -- you know, Harrison was the day shift 

man and I was the evening shift man and he knowed 

I'd seen Jack before Jack went in. 

JUDGE KOUTRAS: Okay. 

THE WITNESS: Harrison explained to me what he 

wanted done up there, and I had the map. All right. 

When I come out that evening I told Jack, I said: 

Jack, I've got a map here -- he said I've got one, 

too. And I said, well, let me show you what 

Harrison wants, and he said: I know what he wants. 

* * * * 

THE WITNESS: No, sir. I showed him the map of 

JUDGE KOUTRAS: Of what he was expected to do? 

THE WITNESS: That's right. 

JUDGE KOUTRAS: At what area? 

THE WITNESS: In No. 1 intersection. 

JUDGE KOUTRAS: In No. 1 intersection? 

THE WITNESS: That's right. 

JUDGE KOUTRAS: And his response to you was? 

THE WITNESS: He knowed what to do. 

JUDGE KOUTRAS: Did he take the map from you? 

THE WITNESS: No, he had his own map. 

Harrison L. Blankenship, Jr., assistant mine foreman, 

testified that in 1982 he was the mine production superintendent, 

and that he has 12-1/2 years of mining experience. Mr. Blankenship stated that he first became aware of a problem in the 

No. 1 and No. 2 entry area on the morning of July 26, 1982, 

when either Mr. Gravely or an electrician reported a bad 

top in the No. 1 entry and asked him to look at it. 

Mr. Blankenship went to the area, which he described as 

the last open cross-cut in the No. 1 face between the No. 1 

and No. 2 entries (Tr. 298). The entry itself is used for 

air return. 

79 
Mr. Blankenship stated that he found some cracks in 

the roof.and he instructed evening shift foreman Burgess 

to install some "turn cribs" to support the roof and to 

allow "a hallway to work No. 1 Face" (Tr. 299). He described 

the area on exhibit R-7, and he stated that he gave Mr. Burgess 

a sketch, and also gave one to the "hoot owl" shift supervised 

by Mr. Myers. Mr. Myers sent Mr. Gravely to install the 

cribs, but they were not installed according to his instructions 

and the sketch, and he explained how they were installed 

(Tr. 301-303). 

Mr. Blankenship stated that when he returned to the 

area the next morning, July 27, he found that the cribs had 

been installed improperly and contrary to his instructions. 

He examined the roof, and while it did not look any worse 

he decided to let Mr. Gravely's "hoot owl" shift install 

additional cribs in the way he had explained the day before. 

He personally drew a diagram on a yellow pad and told him 

how he wanted the roof cribs installed. At that time no 

danger board had been put up, and he does not know when the 

board was put up or who put it up. He was aware of a danger 

board in the No. 2 entry approximately 130 to 140 feet out 

by the bad top area (Tr. 306). 

Mr. Blankenship stated that when Mr. Gravely went to 

the area which he sketched out for him, he found a danger 

board and started his work at that point. Mr. Blankenship 

believed the danger board "was put or set much too far out 

by the bad top," and six hours after his shift the top in 

the No. 1 entry intersection fell in, and it sheared off at 

the extension over the area where the cribs had been installed. 

Mr. Blankenship stated that there was no doubt that the fall 

would not have occurred if his initial orders to install 

"turn cribs" had been followed (Tr. 308). 

Mr. Blankenship stated that at the time the roof 

condition initially developed it was possible to approach 

the intersection from two directions. He stated that six 

cribs were set in the No. 1 entry along the left rib, but 

there was still room.to take a piece of equipment up to the 

entry. There was no danger board at the approach to the 

No. 1 entry, and the only danger board was set at the No. 2 

en try (Tr . 3 0 9) . 

When asked whether it would have been unsafe for 

Mr. Gravely and his crew to have done anything that he either 

ordered or asked him to do in regard to the roof situation, 

Mr. Blankenship responded as follows (Tr. 309-310): 

80 
A. To start with, the conditions changed from 

my shift to his shift, it was a period of at 

least eight hours, that the top conditions is 

subject to change in minutes. At the time I 

left the top was safe enough for even equipment 

to run through it. The danger board was put 

there after I left and by the time I got there 

the top had fallen in. So to answer your 

question truthfully I can't. 

Q. Well, I think what you're talking about is 

on the 28th. 

A. Yes, sir. 

Q. Now, on the 27th, was there anything that you 

asked him to do or which your plan required which 

would have been in your opinion unsafe for them 

to have done at that time? 

A. No, sir. There was no danger board; the top 

hadn't started to fall. They took the unitrack 

and hauled cribs all the way through this work 

site, but just set them improperly. 

Mr. Blankenship identified exhibits R-8 through R-12 

as records which he maintained on Mr. Gravely, and they 

include references to an incident on March 12, 1982, his 

suspension of March 16 and 17, 1982, his failure to work on 

May 29, 1982, his suspension of June 2-4, 1982 for his 

failure to work, the pump incidents of July 27 and 30, 1982 

(Tr. 310-318). 

Mr. Blankenship reviewed the actions shown on the 

records in question and stated that he personally informed 

Mr. Gravely of the first suspension, that he approved of 

the second one and that Mr. Ward informed Mr. Gravely of 

this. Mr. Blankenship also stated that he personally 

discussed the pumps with him (Tr. 314, 318). 

With regard to Mr. Gravely's failure to timber the fall 

area as instructed, Mr. Blankenship stated as follows 

(Tr. 316-317) : 

Q. Now, you did not take any action or 

give any reprimand or discipline as a result 

of this event that took place, did you? 

A. No, sir. I did talk to Mr. Gravely about 

this. I explained to him that there was a time 

81 
frame between the time I had written this 

note and the time that he was actively engaged 

in this type work and that things happened 

and that there was a danger board there which 

wasn't when I left; that he has to correct the 

danger board first and that the top fell in and 

that that 1 s something we will have to deal 

with later, but I did also mention to him 

that if it had been cribbed right to start with 

that it wouldn't be on the ground. 

Q. But you did not take any disciplinary action, 

did you? 

A. No, sir. 

With regard to the second pump incident, Mr. Blankenship 

stated (Tr. 317-319): 

Q. On July the 30th, which is two days later, 

of course; you state that the same or a similar 

occurrence with regard to the loss of a pump 

took place. Is that not correct? 

A. Yes, sir. 

Q. Was this pump located at the same spad number 

as the one before? 

A. Yes, sir. 

Q. 1944. And that's the same sump area that 

served the same pump. Is that correct? 

A. Yes, sir. 

Q. And you state here: "When I asked Mr. Gravely 

about this, he said he had no explanation." Did 

that take place? 

A. Yes, sir. 

Q. And then, did you tell him that you had no 

choice but to relieve him from his duty because 

of negligence? 

A. Yes, sir. 

Q. Now, what did you do after that in carrying 

out your statement as to what you should do? 

82 
A. Well, the first thing I done, I got 

the pump and made sure that the pump had been 

destroyed as called out by the owl shift. 

And after I saw the pump, then I brought 

Mr. Gravely in and Mr. Myers and we talked 

about it and decided to discharge him. And I 

got the okay from my superior to discharge 

him. 

Q. And who was your superior? 

A. Walter Crickmer. 

Q. Did you at the time you terminated Mr. Gravely 

prepare a personnel termination form? 

A. Yes, sir, I did. 

Q. I hand you what purports to be such a form 

dated July the 30th. Is that filled out by you? 

(Witness examines the above-referred to document.) 

(Pause in proceedings.) 

A. Yes, sir, it is. 

Q. And did you give Mr. Gravely a copy of that? 

A. Yes, sir, I did. 

Q. And I believe you said you did that after talking 

to Mr. Crickmer? 

A. Yes, sir. 

With regard to the discharge, Mr. Blankenship stated 

as follows (Tr. 324): 

Q. Do you remember the gist of the discussion 

you had with him about the reasons for discharging 

him? 

A. Yes, sir. We talked about it several minutes 

and we decided -- and we even talked with Jack in 

our presence -- that the reason that he was being 

discharged wasn't because of the top falling in 

and not going in by the danger board, but just 

multiple events that led up to the discharge. 

83 
Q. Well, was this a true and correct statement 

of your reason for the discharge? 

A. Yes, sir, it was. 

Q. Mr. Blankenship, if a foreman, or a man or 

employee, not a foreman, were to tell you they 

were apprehensive or afraid to go in an area in 

which the top was working, would you respect their 

opinions on that? 

A. Yes, sir. And on occasion I have even gone 

out on an out-shift and worked with them on a top 

that they were afraid of. 

Mr. Blankenship could not recall asking Mr. Gravely to sign 

the termination form in question. Mr. Gravely, Mr. Ward, 

and Mr. Myers were all present at the time the form was 

completed, and Mr. Ward completed part of the form from 

information from Mr. Gravely's personnel files. The form 

was presented to Mr. Gravely with an explanation as to why 

he was being discharged (Tr. 327-330). 

With regard to Mr. Gravely's suspension on March 16 and 

17, 1982, Mr. Blankenship stated that if Mr. Gravely in 

fact worked on those days "it was an oversight on somebody's 

part." He explained that 60 or 65 foremen are at the mine 

and it is difficult to keep up with all of them (Tr. 343). 

Mr. Blankenship stated at least four or five other foremen 

have been suspended, fired, or asked to resign for offenses 

similar to those engaged in by Mr. Gravely, and that Mr. Gravely 

has not been treated in any harsher manner. Some of these 

actions against foremen were before and after Mr. Gravely's 

discharge. Mr. Blankenship named at least four foremen who 

were suspended. One was suspended for five days for a first 

offense for "getting off centers" (Tr. 369). He also 

indicated that three of the foremen opted to quit rather than 

being fired (Tr. 370). 

Mr. Kiblinger and Mr. Carr were recalled in rebuttal by 

Mr. Gravely's counsel. They testified further with respect 

to the roof control cribs which were set at the break between 

the No. 1 and No. 2 entries, as well as the danger boards 

mentioned in this case. 

Mr. Gravely was recalled by me, and except for his 

suspension for three days in June 1982, which he readily 

acknowledged, he denied that he had otherwise been disciplined, 

su~pended, o: coun~eled about his work (Tr. 383). Mr. Gravely 

reiterated his belief that when Mr. Blankenship attempted to 

84 
blame him for the roof fall, he (Gravely) concluded that the 

only way he could have prevented the fall was to go inby the 

posted danger board to do something to prevent it (Tr. 387). 

Findings and Conclusions 

Mr. Gravely's discrimination complaint is based on his 

belief that he was discharged by the respondent after being 

held accountable and to blame for a roof fall which occurred 

on the section where his crew had engaged in some roof support 

work. Mr. Gravely asserted that assistant mine foreman 

Harrison Blankenship expected him to take his work crew inby 

an area which had been "dangered off" by the posting of a danger 

board sign to perform certain work to support the roof. 

The respondent's defense in this case is based on its 

assertion that Mr. Gravely was discharged from his management 

position as a foreman because of an accumulation of prior 

incidents and conduct which occurred during his employment 

tenure. These incidents and allegations by the respondent 

with regard to Mr. Gravely's work performance include the 

following: 

1. Lack of proper supervision by Mr. Gravely 

over his work crew which resulted in the 

destruction or damage to two sump pumps. 

2. Lack of proper supervision by Mr. Gravely 

over his work crew which resulted in the continuous miner operator making certain coal cuts 

"off center." 

3. Excessive absences during weekends, and 

the failure by Mr. Gravely to report for work 

on a weekend when he was previously scheduled 

to work. 

In support of its allegations concerning Mr. Gravely's 

work performance, the respondent presented testimony by former 

mine manager Walter Crickmer, assistant shift foreman Larry Burgess, 

and assistant mine foreman Harrison Blankenship. 

Mr. Crickmer testified that prior to the discharge, 

he had discussed Mr. Gravely's work performance with him and 

that Mr. Gravely had been assigned and reassigned to various 

foreman positions in an effort to find a place for him to work, 

but that in each instance management had problems with him. 

Although conceding that none of the prior warnings or suspensions 

given to Mr. Gravely for his work performance were reduced 

85 
to writing, Mr. Crickmer confirmed that he was aware of 

Mr. Gravely's alleged absenteeism, his failure to report 

to work when scheduled, his suspension which resulted 

because coal was cut "off center," a~d the incidents concerning 

the damaging of the sump pumps. Mr. Crickmer also confirmed 

that after the pump incidents, Mr. Blankenship advised him 

that he wanted to fire Mr. Blankenship, and Mr. Crickmer 

agreed that this should be done. 

Mr. Burgess testified that he considered Mr. Gravely's 

work performance to be unsatisfactory, and that he had 

previously made recommendations that Mr. Gravely be terminated 

because of the incidents concerning the "off center" coal cuts. 

Mr. Burgess conceded that he had been in trouble with his own 

superiors over these incidents, and he 9elieved that Mr. Gravely 

resented him and paid little attention to his instructions. 

Mr. Blankenship testified as to certain suspensions 

given to Mr. Gravely prior to his discharge, and he produced 

his personal records and notes to support these suspension 

actions. Mr. Blankenship stated that he personally informed 

Mr. Gravely of the first suspension, and that he approved a 

second suspension. He also confirmed that he personally 

discussed the damaged pumps with Mr. Gravely, as well as 

Mr. Gravely's failure to follow instructions as to how certain 

roof cribbing should have been installed at the roof fall 

area. 

Mr. Blankenship testified that after the second sump 

pump was damaged he decided to discharge Mr. Gravely for 

negligence, and he did so after obtaining Mr. Crickmer's 

approvel. Mr. Blankenship also testified that he advised 

Mr. Gravely that he was not being discharged because of 

the roof fall, but because of "multiple events." 

Mr. Gravely took issue with the reported prior disciplinary 

actions taken against him. In his defense, he testified as 

to certain mitigating circumstances surrounding the damaged 

pumps, and attempted to establish that even though he was 

the foreman in charge, the damage to the pumps resulted 

from actions by other foremen and by the negligence of the 

individuals who were assigned to watch the pumps. 

Although Mr. Gravely denied that he was ever reprimanded 

by Mr. Blankenship or ~r. Myers, he confirmed that he received 

a three day suspension for missing a day of work over a 

Memorial Day weekend. Mr. Gravely insisted that he was not 

scheduled to work, and even though the suspension was to be 

without pay, he stated that he was in fact paid for the 

days he was suspended. 

86 
Mr. Gravely denied that he was ever suspended or 

reprimanded during March 16-18, 1982, because an entry was 

cut too wide. In fact, he asserted that he verbally reprimanded 

the miner operator. Mr. Gravely made reference to certain 

mine records which he stated support his claim that he worked 

on the days of the purported suspension. ~ 

Mr. Gravely's arguments in defense of his prior disciplinary 

encounters with his management superiors were obviously offered 

to support inferences that the respondent is somehow attempting 

to conceal the real reason for his discharge. While it may 

be true that the respondent's personnel practices leave much 

to be desired, particularly with respect to the lack of specific 

documentation and lack of record-keeping concerning the 

prior suspensions and disciplinary actions taken against 

Mr. Gravely, I cannot conclude that the respondent has somehow 

fabricated these incidents so as to support the discharge 

after-the-fact. To the contrary, I find Mr. Crickmer, 

Mr. Burgess, and Mr. Blankenship to be credible witnesses, 

and I find their testimony concerning the prior suspensions, 

warnings, and counseling with regard to Mr. Gravely's work 

performance to be believable. Further, absent any showing 

of a violation of the Act, or a showing that the discharge 

was motivated by protected safety activities, I believe that 

disciplinary matters between mine management and its management 

staff are best left to those parties for resolution. 

I find nothing in the record here to support a conclusion 

that Mr. Blankenship or any other member of mine management 

ever directly or indirectly requested, directed, ordered, or 

otherwise suggested that Mr. Gravely take his work crew inby 

any danger board, or inby any hazardous area of the mine at 

any time prior to any "work refusal." Although shuttle car 

operator Ralph Carr stated that night shift foreman Myers asked 

the crew to go further into the dangered area, the crew did 

not proceed any further, and Mr. Carr's assertion is not 

further supported by any credible testimony or evidence. 

Two members of Mr. Gravely's crew who testified at 

the hearing in this case did not support Mr. Gravely's assertion 

that the crew was expected to work inby the danger board. 

Bernard Campbell worked on Mr. Gravely's shift, and 

Mr. Campbell is also a member of the UMWA safety committee. 

He testified that work to support the roof started at the 

danger board, and that no one "coaxed" him to go any further 

inby than where the roof was supported. He also testified 

that Mr. Gravely said nothing to him about not wanting to 

go beyond the danger board. 

*/ Submitted post-hearing by Mr. Gravely's counsel by letter 

and enclosures of October 28, 1983. The records are copies 

of shift reports for March 16 and 17, 1982, containing 

Mr. Gravely's signature. 

87 
Eric Coleman, a roof bolter who believed he worked on 

Mr. Gravely's shift during the danger board incident, 

testified that no one ever instructed him to go beyond the 

posted danger board. Mr. Coleman als~ testified that he could 

not recall or remember Mr. Gravely, Mr. ayers, or any other 

manager instruct Mr. Gravely to take his crew beyond the danger 

board. 

Gary Kiblinger, another member of Mr. Gravely's crew, 

said nothing about anyone ever instructing or ordering the 

crew to work inby the danger board in question. 

Mr. Gravely himself testified that at no time did he 

take his crew beyond the danger board, and that at no time 

did anyone ever direct or order him to do so. 

I take note of the fact that while Mr. Gravely asserted 

on the one hand that Mr. Blankenship blamed him for the first 

fall which occurred on July 28, Mr. Gravely also asserted 

that Mr. Blankenship never mentioned the subsequent fall which 

occurred on July 30, nor did he blame him for it. Mr. Gravely's 

testimony in this regard is rather contradictory, and it 

occurs to me that if Mr. Blankenship wanted to rely on the 

roof falls as the basis for Gravely's discharge, he would 

have blamed both of the falls on him. 

Even if I were to accept Mr. Gravely's assertion that 

the roof fall was the reason for his discharge, there is no 

evidence to support a conclusion that Mr. Gravely was ordered 

or requested to do anything which was not safe. Further, 

there is no evidence that Mr. Gravely's discharge resulted 

from his refusal to take his crew inby the danger board area 

in question. 

I believe that Mr. Gravely's belief that Mr. Blankenship 

"expected" him to take his crew inby the danger board stems 

from the fact that Mr. Gravely believes that he was fired 

for allowing the roof to fall. In this regard, he apparently 

relied on a purported statement by Mr. Myers that he should 

have started the roof support work further in from where he 

actually did,·and Mr. Blankenship's purported statement that 

he should have started his work further in to secure the roof 

area that fell. Mr. Gravely also apparently relied on 

Mr. Myers' purported statement that mine management was thinking 

about firing him over an earlier fall. Mr. Myers did not 

testify in this case, and Mr. Blankenship denied that Mr. Gravely's 

discharge was in any way connected with the danger board situation. 

It seems clear to me from the record in this case that 

any criticism of Mr. Gravely's asserted failure to properly 

set the roof cribs to Mr. Blankenship's satisfaction, 

as well as Mr. Blankenship's belief that the roof fall could 

have been avoided had Mr. Gravely followed his instructions, came 

after the roof fell. 

88 
With regard to the sketch and Mr. Blankenship's 

instructions as to how the roof was to be supported, Mr. Gravely 

did not believe that he ever received a copy of the sketch. 

However, he did acknowledge a conversation the morning after 

the fall when Mr. Blankenship became "disgusted" with him over 

the fall (Tr. 384). Further, when asked whether Mr. Myers 

ever gave him any instructions as to how to crib the roof 

area in question, Mr. Gravely first answered "no," and he 

then said "if he did, it was on-the-spot instructions when 

he was there with me" (Tr. 384). Mr. Gravely then stated 

that he was sure that Mr. Myers did instruct him as to how 

to crib the area (Tr. 385). Mr. Gravely also acknowledged 

that he was aware of the method of using roof supports laid 

out in an "arc," and that there is nothing unusual about 

this type of roof support. However, in his opinion, even 

if he had cribbed the roof in this fashion, it would still 

have fallen (Tr. 401). Given these circumstances, Mr. Gravely's 

initial assertions that he had no instructions or knowledge 

that Mr. Blankenship wanted the roof area which fell cribbed 

in any particular manner are less than candid. 

Mr. Blankenship's testimony reflects that his displeasure 

over the roof fall stemmed from his belief that Mr. Gravely 

failed to follow certain instructions which he had'given him 

as to how to support the roof which eventually fell. Mr. Gravely 

testified that he took corrective action to support the roof 

at the danger board location where Mr. Myers and Mr. Burgess 

instructed him to start. Mr. Burgess testified that when 

he attempted to discuss the proposed roof support work with 

Mr. Gravely, including going over a diagram or a map, Mr. Gravely 

advised him that he knew what Mr. Blankenship wanted done. 

Mr. Burgess also said that Mr. Gravely had his own map. 

After careful review of Mr. Blankenship's testimony, 

I conclude that his explanation as to how he expected the 

bad roof area to be corrected is both reasonable and 

plausible. After viewing Mr. BJ.ankenship on the stand during 

the hearing, I find him to be a credible and straightforward 

witness. I believe that Mr. Blankenship had given Mr. Gravely 

certain instructions as to how the roof support work should 

have proceeded, but that Mr. Gravely did not follow instructions. 

It seems obvious from the record in this case that the 

respondent was not too enchanged with Mr. Gravely's work 

performance as a foreman, and that his discharge came about 

after a series of incidents which finally convinced mine 

management that Mr. Gravely should not continue on as a 

foreman. 
Conclusion and Order 

In view of the foregoing findings and conclusions, and 

after careful consideration of all of the evidence and testimony 

adduced in this case, I conclude and find that Mr. Gravely 

was discharged because of poor work performance and not because 

of his refusal to take his work crew inby any dangered off 

mine area. I further conclude and find that the respondent 

did not discriminated against Mr. Gravely, and that his rights 

under the Act have not been violated. Accordingly, his 

discrimination complaint IS DISMISSED. 

Distribution: 

Belinda S. Morton, Esq., Fayette County Nat'l Bank Bldg., 

Box 636, Fayetteville, WV 25840 (Certified Mail) 

Fletcher A. Cooke, Esq., P.O. Box 4000, Lebanon, VA 24266 

(Certified Mail) 

W. H. File, Jr., Esq., File, Payne, Scherer & Brown, P.O. 

Drawer L, Beckley, WV 25801 (Certified Mail) 

/slk 

90 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 131984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 83-93 

A.C. No. 46-03887-03505 

v. 

Mine No. 108 

BETHLEHEM MINES CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Thomas W. Ehrke, Esq., Bethlehem Mines 

Corporation, Bethlehem, Pennsylvania, for 

Respondent. 

Judge Kennedy 

This matter came on for an evidentiary hearing on the 

operator's notice of contest of a 104(d) (1) citation and 

•a 104(a) S&S citation issued in connection with a fatal 

roof fall accident. During the recess between the first 

and second day of the hearing, the parties negotiated a 

settlement which, after adducing further evidence, they 

asked the trial judge to approve. 

Because the record disclosed some unusual and troubling 

aspects of the operator's compliance procedures and MSHA 1 s 

enforcement procedures, I deem it advisable to set forth the 

following findings and conclusions as a preamble to conf irmation of my bench decision. 

•· 

Anatomy Of An Institutional Failure 

On the afternoon shift of Monday, August 2, 1982, a massive 

roof fall occurred in the No. 3 entry, 1 Left Section of Mine 

No. 108. The fall resulted in the death of Louis N. Hodges 

91 
who, at the time, was performing the duties of a continuousminer operator helper !_I and the temporary entrapment of 

William D. Singleton, continuous-miner operator. Mr. Singleton 

was protected by his canopy and extracted himself from the 

fall without injury. 2/ Mr. Singleton had 12 years mining 

experience of which 7-were as a continuous-miner operator. 

The section foreman was Thomas J. Binns. Mr. Binns had 

11 years mining experience of which 7-1/2 years were as a 

foreman. 

The accident occurred while the operator was engaged 

in a full pillar recovery operation. ~ More specifically, 

while Singleton was making his initial or "A" cut of 18' x 

10' in the No. 3 Pillar from the No. 3 Entry he noticed a 

slip crack running diagonally across the roof from the left 

rib. He ignored or did not appreciate the significance of 

the condition and when he finished the "A" cut, backed the 

miner into the entry to position it to make the "B" run and 

square up the split. 

Both Binns and Singleton as well as their superiors 

were aware of the fact that to make the "B" cut a full 10 

feet in width would require the removal of coal from the No. 

3 Pillar on a line immediately adjacent to or under a clay 

vein six inches in width that ran at a right angle across 

the roof of the No. 3 entry and into the pillar. The clay 

vein was plainly visible to anyone who looked and had been 

supported with 2 by 8 headers and bolts since the entry was 

originally developed in 1975. (See attached sketch.) 

1/ Mr. Hodges was a 23 year-old miner with five years underground experience. This was the second roof fall fatality at 

the #108 Mine in 1982. 

2/ Where continuous-miner operators are protected by 

canopies, their instructions are to stay in their cabs and 

to try to tram their machines out from under imminent roof 

falls. While this may be good for production, it is hard 

on helpers if the CMO does, as was shown in this case, and 

cuts down loose roof that triggers a massive roof fall. In 

the last nine years 435 miners have been killed on the job 

as a result of roof falls. Thus, on the average 4 miners 

a month die as the result of roof falls. 

?/ Pillar removal is inherently dangerous--perhaps one of 

the most hazardous operations conducted in the underground 

mining environment. To accomplish it safely requires special 

training and rigid adherence to the safety precautions set 

forth in the mandatory standards, including the operator's 

roof control and pillar recovery plans. 

92 
Singleton knew of should have known that it was 

highly likely that the crack running from the left rib might 

intersect the clay vein if he made a full cut on the "B" 

run. Further, Binns and Singleton both knew that when a 

clay vein was encountered the "B" cut should be shortened so 

that sufficient coal would be left to support the roof until 

permanent additional support could be supplied. Despite 

this Binns did not tell Singleton to shorten the "B" cut and 

made no preparations to provide additional roof support. 

While Binns and Singleton denied knowledge of the 

existence of the clay vein, 4/ Singleton admitted he knew of 

the crack and counsel for the operator judicially admitted 

that "the clay vein just inby the head of the continuous 

mining machine (as shown in the sketch) was visible to the 

crew well in advance of the fall." I find that because 

cracks and clay veins are very common in the Redstone Coal 

Seam and Mine No. 108, neither Binns nor Singleton considered 

the crack or the clay vein's presence unusual. 5/ Both men 

visually observed the roof conditions in the No~ 3 Entry and 

Binns may have drummed it once or twice. Neither man drummed 

the entry or the split in the area of the crack in the "A" 

cut before the "B" cut was begun. Both miners knew, of 

course, that cracks and clay veins are signs of an abnormal 

or dangerous roof condition and that when encountered they 

should be carefully evaluated and supported before proceeding 

to mine coal. 

After Singleton loaded two shuttle cars of coal from 

the "B" run a large piece of draw slate (18" x 6" x 4") fell 

from the roof near the rib through which the clay vein ran. 

It hit the continuous miner and startled Singleton and the 

other miners in the area. Singleton stopped the miner and 

4/ I find Binns position on this incredible. He should 

have seen the clay vein during his onshift roof check of the 

entry on August 2 and during his preshif t examination of the 

area on Friday, July 30, 1982, just two days before the 

accident occurred. Why Binns chose to absent himself from 

the face during the time Sing~eton was making the "B" cut 

was never explained. 

5/ Nevertheless every properly trained miner knows that "a 

clay vein area is very hazardous and must be treated with 

extreme caution." Guide to Geologic Features Affecting Coal 

Mine Roof, MSHA Information Report 1101 (1979). 

93 
got out of the cab to observe the roof. He saw some flaking 

and dribbling of the roof near the clay vein but quickly 

decided the roof was not working and without advising Binns 

of the incident started cutting coal again. 

After taking one or two more shuttle cars of coal, 

Norman Woods the roof bolter who was standing with Hodges 

inby the miner near the right rib of the pillar split 

watching the clay vein observed the roof commence to work 

violently. He shouted a warning and ran down the right rib 

behind the miner and looked at the roof on the left rib. It 

was creaking, groaning and starting a heavy dribble of rock, 

slate and clay. He yelled to Hodges and Singleton that the 

roof was coming down and to get out. Singleton, following 

his standing instructions, put the miner in reverse and 

started to back out. Hodges started to run, but stopped to 

lift the trailing cable from where it had jammed at the 

corner of the split and was cut down and crushed by a 

massive fall of rock before he could get to the crosscut. 

Lanny Rauer, the mine superintendent, testified he 

believed both Singleton and Binns acted in accordance with 

the operator's standing instructions and good mining practice. 

He said Singleton's instructions were to cut down loose 

roof, wherever encountered, and therefore he could not fault 

Singleton for proceeding with the "B" run even in the 

presence of clear evidence of an abnormal roof condition. 

He also believed Binns adequately checked the roof in the 

entry before the shift began and while the pillar recovery 

was in progress. He admitted, however, that his standing 

instructions on how to handle loose roof in the presence of 

clay veins might have contributed to the roof fall. 

Mr. Crumrine, a roof control expert for MSHA, said 

Singleton should have backed the miner out of the "B" cut as 

soon as he saw the rock fall from the area of the clay vein. 

At that point, Binns should have been advised and should 

have taken action to provide additional roof support as 

required by safe mining practice, the mandatory standards 

and the roof control plan. He was, however, sympathetic to 

Mr. Rauer's claim that Mr. Binns should not be stigmatized 

with an unwarrantable failure violation and agreed, as 

conference officer, to change the (d) (1) citation to an (a) 

citation. 

As a result of its investigation, the West Virginia 

Department of Mines found that all persons should have been 

withdrawn from the area when the roof was first observed to 

94 
be working, i.e., when the draw slate fell ai:id hit the 

continuous.miner. 

The UMWA Safety Committee issued a statement saying 

that "after hearing the testimony of the people involved, 

we feel that [the roof fall fatality of August 2, 1982) was 

an unavoidable accident and that Management, the Section 

Foreman or any one else involved was in no way responsible." 

The Manager of the Bethlehem Mines Division as well as 

MSHA's accident investigation found the immediate cause of 

the roof fall was the undermining of the intersection of the 

crack running diagonally across the split from the left rib 

with the clay vein running down the right rib of the split. 

Neither investigation expressed any doubt about the presence 

and visibility of the clay vein or the crack. The clay vein 

was six inches in width and the crack at least l/64th of an 

inch. The area was well illuminated and Singleton saw the 

crack while making the "A" run. 

It was not until Singleton undercut the intersection of 

the crack and the clay vein that the farmer's significance 

became apparent to him and by then it was too late. Singleton's 

failure to appreciate the significance of the crack can only 

be attributed to a lack of adequate training in the evaluation of abnormal roof conditions. Singleton's and Binn's 

failure to appreciate the significance of the clay vein was 

inexcusable. Binn's failure to supervise the operation and 

to instruct Singleton to shorten his cut in the presence of 

the clay vein was responsible for the creation of an imminent 

danger. Rauer's instructions to cut down loose roof, wherever 

encountered was contrary to safe mining practice. Further, 

for Rauer to permit partial pillaring on the left side of 

the section was, as the Division Manager found, a factor 

that contributed to override pressure on the roof. 

Responsibility for the roof fall must be attributed to 

the entire chain of cornrnand--f rom the mine superintendent to 

the continuous miner operator. What occurred was not an act 

of God nor an unavoidable accident. Both Mr. Singleton's 

and Mr. Binns's evaluation of the situation was deplorable. 

And if Mr. Rauer is to be bel~eved, their training and 

instructions were fatally deficient. Mr. Rauer's sharp 

disagreement with his own Division Manager over the contributing 

causes of the fall indicates a disarray on the part of top 

management that is hardly reassuring. Based on the evidence 

considered as a whole, I would have to agree that as MSHA found: 

The accident occurred due to the failure of 

management and the workmen to properly evaluate 

95 
the roof where a clay vein and roof crack 

existed and was intersected. 

The Rounded Corner Violation 

As a result of the accident investigation a 104(a) S&S 

citation was issued for creating an excessive width (23') in 

the mouth of the pillar split. The evidence clearly supported 

MSHA's determination that under accepted practice as well as 

the drawings attached to the roof control plan the operator 

was allowed to round or notch the corner of a pillar split 

and thereby widen the mouth to more than 20' and narrow the 

outby fender to less than the 12.5 feet for a distance of 12 

to 18 inches in order to get the continuous miner positioned 

to make the "A" run. The technical violation involved did 

not contribute to the roof fall. Accordingly, the motion to 

vacate this citation was approved as part of the overall 

settlement of this matter. 

The District Conference 

Shortly after the investigative report 1 issued, this 

matter came on for a conference at the District Off ice in 

Morgantown, West Virginia. 30 C.F.R. 100.6. 6/ The District 

Manager designated Robert L. Crumrine, an experienced CMI 

and roof control expert, to act as the Conference Officer. 

Present at the conference was Larry Rauer, the mine superintendent, and later John Dower the inspector responsible for 

the citations and investigative report. 

Mr. Dower was about 45 minutes late for the conference 

and by then Mr. Crumrine had made up his mind about the 

matter. 7/ This was not unusual as in 9 out of 10 cases the 

issuing rnspector is not permitted to attend the conference. 8/ 

§/ The conference procedure is a method of informal adjudication not specifically provided for under the Act. Under 

this procedure, District Managers are encouraged to eschew 

the role of vigorous enforcers and become "cooperative 

regulators." 

7/ Mr. Dower said he was late because he was not alerted to 

the fact that his presence was· requested until shortly 

before the conference convened on the morning of October 6, 

1982. He said he was delayed by his unsuccessful efforts to 

obtain copies of the citations and his notes which were 

locked up in his supervisor's office. 

8/ While the governing instructions provide that "MSHA 

inspectors will participate in the review of the citations 

and orders," this is subject to the discretion of the 

District Manager. 47 F.R. 22293 (1982). 

96 
While Mr. Rauer had a copy of the fatal roof fall 

accident report approved and signed by the District Manager, 

Mr. Keaton, and reviewed, approved and issued by headquarters 

of MSHA in Arlington, Virginia two weeks earlier, neither 

Mr. Crumrine nor Mr. Dower had a copy of the report at the 

time of the conference. Mr. Crumrine said he did not need 

to read the report to decide the matter. He made his decision 

on the basis of his discussion with Mr. Rauer and after 

reading a statement by Mr. Binns. Mr. Binns statement 

claimed he sounded the roof in the No. 3 entry in the area 

where the "B" cut was to be started while Mr. Singleton was 

positioning the continuous miner for the "B" run. He did 

not deny that he left the area after sounding the roof 

instead of staying to supervise and control the dimensions 

of the "B" cut. 

Mr. Crumrine said he was satisfied there was a violation 

of 75.205 but felt the charge of an unwarrantable failure to 

sound the roof was unfair to Mr. Binns. 9/ Mr. Crumrine 

believed Binns had adequately sounded the roof in the No. 3 

entry before the "B" run was started. Since he left the 

area immediately thereafter and was not present when Singleton 

encountered the loose roof, Crumrine did not think he could 

be held accountable for Singleton's failure to properly 

evaluate the situation. 

With respect to Mr. Singleton's actions, Mr. Crumrine 

said it is against MSHA policy to hold an operator responsible 

for unwarrantable failure violations attributable to contract 

miners. 10/ Thus when he concluded that Mr. Binns, the 

section foreman, had sounded the roof adequately and was not 

r~sponsible for the failure to provide additional roof 

2/ The graveman of the case presented by the solicitor 

turned on the failure of Binns and Singleton to provide 

additional roof support in the presence of the dangerous 

condition revealed by the initial working of the roof near 

the clay vein with knowledge, by Singleton, of the crack 

observed while making the "A" run. 

10/ This policy fails to take into account situations where 

the contract miner's actions are properly imputable to the 

operator because of faulty training or instructions. 

Whether miners acting as adjudicators under the informal 

procedures that prevail at district conferences can be 

expected to.apply the nuances of the law of vicarious 

liability seems doubtful. 

97 
support in the face of an obviously abnormal roof condition 

he advised ~r. Rauer and Mr. Dower that the (d) (1) citation 

would be converted to a 104(a) S&S citation. 

Mr. Rauer was satisfied with this disposition as it 

removed the stigma of the unwarrantable failure finding 

both as to Mr. Binns and the operator. Mr. Dower on the 

other hand felt that he had not had a fair opportunity to 

be heard especially in view of Mr. Crumrine's haste to 

convene and conclude the matter without considering the 

report and findings, so recently approved by the District 

Manager and MSHA, with respect to management's responsibility for the fatality. He protested Mr. Crumrine's 

decision to his supervisory inspector Mr. Vasicek. Mr. Vasicek, 

after consultation with Mr. Lawless, assistant to the District 

Manager, told Mr. Dower that Mr. Crumrine's ruling would not 

be adopted by the District Manager and that the citations 

were affirmed as issued. This was confirmed by letter of 

October 14, 1982 from the District Manager to Mr. Rauer. 

To placate the operator, Mr. vasicek told the assessment 

office on December 14, 1982 that "The negligence of both the 

foreman and the machine operator (Binns and Singleton) contributed to the accident. The machine operator should have 

backed out all the way and stayed out when he saw the roof 

was 'working.' The penalty should be fairly low." (Emphasis 

supplied.) 

Why the supervisory inspector undertook to suggest the 

assessment office ignore the inspector's evaluation of the 

operator's negligence is puzzling. Especially since the 

inspector who wrote the citations and the investigative 

report was, until the hearing, never told that his supervisor, 

whom he was led to believe supported his evaluation, had 

sought to persuade the assessment off ice to let the operator 

off with a "fairly low" penalty. 11/ 

11/ If this account accurately reflects MSHA's policy of 

conferencing in action, it is small wonder there are widespread reports of how the new enforcement philosophy has 

demoralized rank-and-file inspectors. Such behind-the-scenes 

manipulation of MSHA's ostensible role as chief enforcer 

of the Mine Safety Law can lead to the perception that 

cooperation is being used as a cloak for capitulation. A 

recent report by the International Health and Safety Committee 

of the UMWA expressed concern over "the frequency with which 

MSHA supervisors cave in to operator pressure and downgrade 

98 
Following the suggestion from the District Office, 

MSHA's assessment office in Arlington, Virginia wrote a 

special assessment that found that while the violation 

resulted from management's negligence and was serious the 

amount of the penalty warranted was only $2,000. Prior to 

the era of nonadversarial enforcement such a violation 

would have been specially assessed at $5,000 to $10,000. 

Compare, Southern Ohio Coal Company, 4 FMSHRC 1459 (1982). 

Bethlehem, not satisfied with this ''fairly low" assessment, filed a notice of contest. In due course, the solicitor 

filed the Secretary's proposal for penalty with the Commission. 

After assignment, the trial judge issued a pretrial order. · 

In response, the operator raised as a defense, Mr. Crumrine's 

ruling at the conference of October 6, 1982. 

On or about May 19, 1983, the solicitor called the 

trial judge to seek a postponement for compliance with Part B 

of the outstanding pretrial order on the ground the District 

Manager had decided to settle the matter by reinstating 

Mr. Crumrine's ruling of October 6, 1982 and accepting a 

penalty of $500. To expedite the matter, the District 

Manager directed the inspector, Mr. Dower, to issue the 

modifications necessary to effect a reduction of the charge 

in the (d) (1) citation and to vacate the 104(a) citation. 

Mr. Dower followed orders but the modifications were 

rescinded when the trial judge refused to approve the 

settlement. 

fn. 11 (continued) 

citations that have been issued by the inspectors in the 

field." The same report also noted that: 

Unfortunately, these days, it seems that the MSHA 

inspectors who are not afraid to enforce the 

Act wind up having to defend themselves, not only 

against the operators but also against their own 

supervisors. Committee members related conversations with MSHA inspectors that confirmed the view 

that the weakened enforcement approach we have seen 

in the field results from the message that has been 

sent down from the top agency heads. Vigorous enforcement of mandatory health and safety standards has been 

viewed as "nit picking" and the message to the inspector 

in.the field has been clear: back off, and if you cite 

a condition at all, cite it as a non s&s (nonserious) 

violation. 

99 
Thereafter the matter came on for trial of the operator's 

defense, inter alia, that Mr. Crurnrine's ruling of October 6, 

1982, as confirmed by the District Manager on May 19, 1~83, 

was res judicata and therefore the Commission had no authority 

to adjudicate the matter de novo. This defense dissolved 

in the light of disclosures that, to say the least, reflected 

poorly on the independence, objectivity and neutrality of the 

district conference procedure. 

As pictured in this record, the district conference procedure has. a potential for seriously undermining the deterrent 

effect of the civil penalty provisions of the Mine Safety 

Law. 12/ In this case, the conference officer on the basis 

of an-rnformal discussion with a representative of the 

operator chose to dismiss the unwarrantable failure charges 

on the roof fall violation because he did not want to 

stigmatize a member of supervisory management. This 

myopic view of what actually occurred was then used to 

justify a reduction in the amount of the civil penalty 

warranted for the institutional failure responsible for 

the fatality. Without even reading the official MSHA fatal 

accident report, Mr. Crumrine, based solely on what the 

operator's mine superintendent told him, concluded that 

because Mr. Binns was not alone guilty of an unwarrantable 

failure violation and Mr. Singleton was not, under MSHA 

policy, chargeable with such a violation Bethlehem, as 

operator, was responsible only for a strict liability, no 

fault violation to which no culpability would attach. The 

District Manager sub silencio, followed through on this 

evaluation by indicating to the assessment off ice that the 

negligence of Binns, Singleton and the operator be considered 

12/ While a new administration has the right to try a new 

philosophy of enforcement implicitly endorsed by the democratic 

process, it is axiomatic that the leaders of every administration are required to adhere to the dictates of statutes that 

are also products of democratic decisionmaking. Unless this 

administration can convince Congress to change those provisions 

of the Mine Safety Law it finds objectionable, it is its 

duty to enforce the statutory mandate in a manner consistent 

with the original Congressionql intent. A new administration 

may not refuse to enforce a law of which it does not approve. 

Motor Vehicle Manufacturers Ass'n v. State Farm Mutual 

Automobile Ins. Co., U.S. 77 L. Ed 2d 443 n. 

June 24, 1983) (Rhenqu1st, J. in concurring). Prosecutorial 

discretion does not extend to nullifying or recreating law 

without changing it through the legislative process. There 

are statutory and constitutional limits on the discretion of 

policy makers to disavow the will of Congress. 

100 
"low" and the penalty "fairly low." As we have seen, the 

District.Manager thought "fairly low" meant $500. Under the 

circumstances, I believe it would have been shockingly low. 

The solicitor was compelled to seek approval of the 

settlement only because Congress, in its wisdom, changed the 

law in 1977 to require approval of penalty settlements by 

the Commission's judges. The legislative history of section 

llO(k) of the Act shows that Congress felt the public 

interest in vigorous enforcement is best served when the 

process by which penalties are assessed is carried out in 

public, "where miners and their representatives, as well as 

the Congress and other interested parties, can fully observe 

the process." S. Rpt. 95-181, 95th Cong. 1st Sess. 44-45 

(1977). As the Senate Report continued, "the Committee 

intends to assure that the abuses involved in the unwarranted 

lowering of penalties as a result of off-the-record negotiations are avoided. It is intended that the Commission and 

the Courts will assure that the public interest is adequately 

protected before approval of any reduction in penalties." Id. 

The conference procedure permits MSHA to circumvent the 

statutory protection against the abuses found by Congress. 

Recent studies show that the average penalty assessed has 

dropped from $177 to $80, a reduction of some 45%, since the 

conference procedure was inaugurated. The disturbing conclusion is that the philosophy of deregulation made manifest in 

the conference procedure has led to a marked reduction in the 

deterrent effect of the civil penalty and thereby encouraged 

operators to flout the law. 13/ 

The civil penalty assessment was designed to encourage 

management at all levels to respond positively to health and 

safety concerns. The legislative history of the Mine Safety 

Law shows Congress intended to place responsibility for 

compliance with the Act on those who control or supervise 

the operation of mines as well as on those who operate them 

on a day-to-day basis. S. Rep. 91-411, 9lst Cong. 1st Sess. 

39 (1969); S. Rep. No~ 95-181, 95th Cong. 1st Sess. 40 

(1977). Upper level management decisions such as those 

13/ Since May 1982, approximately 75% of all violations 

charged have been assessed at $20. A recent study shows 

that the policy of cooperative enforcement has resulted in a 

sharp upturn in fatality rates in underground and surface 

bituminous coal mines. Weeks and Fox, Fatality Rates 

and Regulatory Policy in Bituminous Coal Mining, United 

States, 1959-1981, 73 AJPH 1278 (1983). 

101 
affecting capital expenditures, the basic nature and scope 

of corporate safety and health programs, the hiring of top 

mine management officials, and other policy matters have a 

profound effect upon safety and health conditions at individual 

mines. Civil penalties should therefore be structured to 

influence all levels of decisionmaking. An average penalty 

of $80 for serious violations provides no incentive to voluntary 

compliance, and does violence to the principle of proportionality. Further, the single or de minimis penalty assessment 

of $20 is a positive disincentive to management's commitment 

to safety and a triumph of expediency over effective enforcement. 

As a recent report by the National Academy of Sciences 

found, top managements' commitment is of primary importance 

in achieving compliance with safe mining practices and 

must be constantly reinforced by strict and effective 

enforcement at the federal level. The movement toward 

compromise and dilution of the federal enforcement effort 

reflected in this record indicates the forces of change may 

have shifted too far in the direction of deregulation. 14/ 

14/ Thought should be given to returning enforcement to its 

traditional role. Experience under the Coal Act demonstrated 

that confusion of the policing or enforcement function with 

the consultative and adjudicatory functions is bad policy 

and detrimental to both effective enforcement and fair 

adjudication. 

I thought that in 1977 Congress made a conscious decision 

to structure the regulatory scheme so as to preclude tradeof f s to vigorous safety enforcement. The legislative history' 

of the Mine Act shows the enforcement function was transferred 

from the Department of the Interior because of its conflict 

with that Department's responsibility for maximizing production 

of the nation's coal resources. It was felt that "no conflict 

could exist if the responsibility for enforcing and administering the mine safety and health laws was assigned to the 

Department of Labor since that Department has as its sole duty 

the protection of workers and the insuring of safe and healthful working conditions." Sen: Rep. 95-181, supra, 5. 

A safe mining operation is not a function of the art of the 

cost accountant. It requires a strong, almost a "religious," 

commitment by management, labor, and the regulatory agency. 

BNA Interview With David A. Zegeer, Assistant Labor Secretary 

for Mine Safety and Health, December 9, 1983, published in 

Current Report, Mine Safety & Health Reporter, December 26, 

1983, at 605. 

102 
The Problem With the Mandatory Standard 

The (d) (1) Citation charged a violation of section 302(f} 

of the Act, 30 C.F.R. 75.205, Roof testing. The standard 

provides: 

Where miners are exposed to danger from falls of 

roof face and ribs the operator shall examine and test 

the roof, face and ribs before any work or machine 

is started, and as frequently thereafter as necessary 

to insure safety. When dangerous conditions are found 

they shall be corrected iromediately. 

By contrast, the approved roof control plan provides: 

Where miners are exposed to danger of falls of 

roof, face and ribs the workmen shall examine and 

test the roof, face, and ribs before any work or 

machine is started, and as frequently thereafter as 

necessary to insure safety. The roof shall be examined 

visually and by the sound and vibration method. 

Except the sound and vibration method shall not be 

conducted where adverse roof conditions (slips, clay 

veins, etc.} are detected during visual examinations. 

When dangerous conditions are found, they shall be 

corrected immediately. (Emphasis supplied.} 

Inspector Dower testified that his understanding of the 

mandatory standard and the roof control plan was that the 

~ontinuous miner operator, Singleton, who denied knowing of 

the existence of the clay vein in the right rib of the "B" 

cut, was required to examine the roof visually and by the 

sound and vibration method when he observed the large rock 

(18" by 6" by 4"} fall on his machine during his first cut 

of the "B" run and that his failure to do so was unwarrantable. 

Mr. Dower felt the standard made no exception for the "adverse 

roof conditions" referred to in the roof control plan but 

recognized that it might be unsafe to use the sound and 

vibration method to "test" a roof as loose and dangerous as 

that encountered in the "B" cut. 

Mr. Crumrine, MSHA's roof· control expert, said that when 

visual observation such as the falling rock and/or the 

flaking and dribbling from the clay vein signalled the presence 

of a loose roof condition the safe and prudent course of 

action was to withdraw the machine to a position under supported 

roof and then set such roof support as would be necessary to 

insure the hazardous condition was abated. He cautioned 

against drumming or sounding the roof until some temporary 

support was provided as this might in itself trigger a roof 

fall. 

103 
He did not subscribe to Mr. Rauer's instruction which 

was to cut down loose roof wherever encountered at the face 

with the continuous mining machine. Mr. Crumrine said the 

reason the roof control plan differs from the mandatory 

standard is because the standard, literally applied, is 

hazardous to the safety of the miners. MSHA, he explained, 

was aware of the ambiguity but, he said, repeated efforts 

to have the standard modified or amended were to no avail. 

The language added to the safety precaution in the roof 

control plan was intended to ameliorate, if not resolve, the 

conflict. It is intended that the language of the precaution 

take precedence over the standard and to say, in effect, 

that notwithstanding the provisions of the mandatory standard 

a roof should not be "tested" by the sound and vibration 

method 1n the presence of a dangerous, hazardous or adverse 

condition such as a slip or clay vein. 

A further difficulty that should be clarified is· the 

fact that the Inspection Manual states that "The word 

'Operator' in this provision [75.205] means the operator 

as defined in Section 3(d) of the Act. However, roof tests 

can be made by persons designated by the operator." 

Inspection Manual II-219 (1978). If this means what I 

think it means, Singleton may not have been the individual 

designated by the operator.to make a sound and vibration 

test of the roof. At least no evidence was offered by MSHA 

to show that he was. The evidence shows only that Binns 

the section foreman made the tests. And certainly if 

Singleton and the other facemen were not qualified to make 

a sound and vibration test there is reason to question their 

competency to correctly evaluate a hazardous roof condition 

on the basis of visual observation alone--a much more dif f icult task. 

The roof control plan, on the other hand, authorizes 

"workmen" to "examine and test" the roof which may mean that 

Singleton, as a faceman, was presumably qualified to test 

the roof. Thus we have another inconsistency between the 

standard and the roof control plan which makes for difficulty 

in assigning individual responsibility for the alleged 

unwarrantable failure to evaluate properly the roof condition. 

On September 2, 1983, MSHA issued a preproposal draft of 

revisions to the roof control standards. 48 F.R. 40165. The 

standard on roof testing has been redesignated as 75.210 and 

in pertinent part provides: 

104 
§ 75.210 Roof Testing and Scaling 

(a) A visual examination of the roof, face 

and ribs shall be made in all underground areas 

immediately before any work or machine is started 

and thereafter as conditions warrant. If the 

visual examination does not disclose a hazardous 

condition in areas that are not permanently supported, 

sound and vibration roof tests shall be made. The 

sound and vibration test shall: 

(1) Be conducted after the ATRS system 

is pressured against the roof inby the 

area to be tested; or 

(2) Begun under permanently supported 

roof and progress no more than 5 feet 

into the unsupported area. This test 

shall be made only for the purpose of 

preparing to manually install roof support 

when an ATRS system is not required by 

§ 75.207. 

(b) When a hazardous condition is detected, the 

condition shall be corrected immediately or a 

danger sign posted at a conspicuous location prior 

to leaving the area. 

(c) Overhangs and loose roof, faces and ribs shall 

be taken down or supported. 

(1) A bar for taking down loose material 

shall be provided on all face equipment, 

except haulage equipment. 

(2) Each bar used to take down loose 

material shall be of a length and design 

that will enable a person to perform 

work from a location that will not expose 

the persons to injury from falling material. 

(3) Loose material shall be taken down 

from an area supported by permanent roof 

supports or an ATRS system. If an ATRS 

system is not required by § 75.207 and the 

loose material cannot be taken down from 

a permanently supported area, at, least two 

temporary supports on not more than 5 foot 

centers shall be set between any person and 

the material being taken down. 

105 
Adoption of this revision would do much to clarify and 

resolve .the confusion that attends the present roof testing 

provision. Some provision should be made, however, for 

assigning responsibility to either the section foreman or 

his designee for making roof tests. Designations of contract 

or day rate miners should be in writing and furnished to MSHA 

to be kept as part of the operator's records. 

A review of the proposed revision confirms that Mr. Rauer's 

instructions for cutting down loose roof with the mining machine 

does not accord with commonly accepted safety standards. 15/ It 

confirms Mr. Crumrine's view that the existing standards do not 

contemplate using the sound and vibration test under unsupported 

roof for more than 5 feet into the unsupported area. It 

also establishes that once the rock fell Singleton should have 

withdrawn his machine, set temporary supports, tested the roof, 

"discovered" the clay vein, traced the slip crack, consulted 

with Binns and, if necessary Rauer, and then on the basis of a 

considered judgment decided whether to go for the coal or 

abandon the pillar as too risky. Instead Singleton on the 

basis of faulty training and instructions made a snap judgment to go for production and subordinate safety that cost 

Hodges his life and put several other lives at risk. And 

in the long run, as Rauer testified, the operator had to 

abandon the coal in the entire pillar line. Once again the 

teaching is that a safe operation is the most productive 

operation. 

Since enactment of the Coal Act in 1969 over 1200 miners 

have died in the nation's underground mines--42% of them as 

the result of roof or rib falls. MSHA's studies show that 

fatalities due to roof and rib falls are attributable to two 

main reasons: (1) failure to follow safe procedures, and 

(2) hazardous conditions that went undetected until too late. 

Both of these reasons were present in the case of Mr. Hodges' 

death. 

Summing Up 

Summing up I conclude there was more than enough blame 

to go around. The contract miners had the last clear chance 

to prevent the roof fall; instead they triggered it. The 

15/ See also, Bureau of Mines Instruction Guide 17, Roof and 

Rib Control; Programmed Instruction Book, Roof and Rib Control, 

National Mine Health and Safety Academy. 

106 
section foreman failed in his responsibility to supervise 

and oversee. an operation which he knew or should have known 

was hazardous. The mine superintendent failed to provide 

the training, instruction and leadership that would have 

instilled in his subordinates an attitude toward safe mining 

practices and procedures that would have prevented the accident. Lastly the division manager took no steps to discipline 

the mine superintendent for his failure to supervise his 

subordinates properly or to provide the training and instructions that would insure a safe operation. 

The real problem at the #108 mine, of course, was 

attitudinal. At every level the supervisors and workers had 

been indoctrinated with the need to subordinate safety to 

production. How else explain such a take-a-chance policy 

as that embodied in the superintendent's instructions to 

cut down loose roof in the presence of clay veins and slip 

cracks. Mr. Crumrine's sympathy for Mr. Binns notwithstanding, 

it is beyond doubt there was an institutional failure here 

that demands immediate correction. 

The collective failure of management and the contract 

miners warranted the imposition of a penalty that underscores the gravity of the institutional failure--a failure 

that resulted from faulty engineering, poor training and 

lax enforcement. Such a di$position is fairer than singling 

out Mr. Binns. While it is natural to seek a scapegoat for 

disaster, the institutional responsibility in this case 

transcends the individual responsibility of Mr. Binns. 

For these reasons, I approved a settlement that involved 

the payment of a $5,000 penalty and vacation of the unwarrantable 

failure charge as to Mr. Binns. 

Accordingly, it is ORDERED that the bench decision 

approving settlement of this matter be, and hereby is, 

CONFIRMED and the captioned DISMISSED . 

.Attachment 

Distribution: 

Covette Rooney, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified 

Mail) 

Thomas W. Ehrke, Esq., Bethlehem Mines Corporation, Room 1871 

Martin Tower, Bethlehem, PA 18016 (Certified Mail) 

/ejp 

107 
Pillar Split 

working ----'~ 

face 

Vertical -roof 

crack extending 

about 58 feet 

0 

0 

0 

Woods uni.::lj ured -----~ 0 

Leze:::id 

P - 0 ·- Vertical roof crack 

't;·;·: Clay Vein 

a 

• - - R.:>of bolt holes i::. cavity 

!loaf bolts wi.th 5''x6'' 

0 -- plates in undist-~=bed 

mine roof 

\ - -Roof bolts exten.tli=lg from 

roof fall cavity 

r=:::::i - ~ood planks 

l" = 10' 

ATTACHMENT 

No. 3 Entry 

0 0 

0 

0 ,....., D 

I I 

u 

0 

0 

0 

0 

0

i I 0 

n 1-

0 

0 Ci 

Breaker posts - Coui~ not 

.,,---~e measured due to roof 

conditions. 

Clay vein extending across 

t...-""-----No. 3 entry into working fa 

Joy 12 CM Continuous miner 

in roof across entry 

under canop 

vie ti: 

Crosscut to No. 4 entry S: :> 

Joy 21 SC shuttle car 

partially under fallen material 

Smith 

® - - The high limits of cavity 

~o. 1 Sketch of Fatal Roof Fall Accident 

~tine No. 108 (ID No. 46-03887) 

Bethlehem Xines Corporation 

=odgesville, Upshur County, West Virginia 

August 2, 1982 

108 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JAN 1-61984 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

ON BEHALF OF 

JACK LEWIS KIEFER, 

Complainant 

v. 

NATIONAL KING COAL, INC., 

Respon,dent 

Docket No. WEST 83-96-D 

MSHA Case No. DENV CD 82-26 

King Coal Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Carlson 

The parties have submitted a stipulation and settlement 

agreement which, if approved, will resolve all issues in this 

discrimination case. 

Under the terms of the agreement, respondent, National King 

Coal, Inc. (National), agrees to pay to Jack Lewis Kiefer the 

sum of $7,500 as back wages and compensation for all other alleged 

damages resulting from his discharge. National further agrees to 

expunge from complainant's employment record any adverse references 

to his discharge. 

Complainant, in turn, relinquishes any claim for reinstatement 

with National. 

Having reviewed the file and considered the circumstances, I 

conclude that the settlement should be approved. Accordingly, the 

agreement of the parties is approved in its entirety. 

Pursuant to the payment terms incorporated in the agreement, 

National shall tender to Jack Lewis Kiefer through the United States 

Department of Labor at 1585 Federal Building, 1961 Stout Street, 

Denver, Colorado 80294, the following installment sums on the 

following dates: $2,500.00 on or before January 15, 1984; $2,500.00 

on or before February 15, 1984; and $2,500.00 on or before March 15, 

1984, for a total sum of $7,500. Additionally, should National fail 

to tender any installment due under this order within 30 days after 

its due date, it shall pay to Jack Lewis Kiefer, through the United 

States Department of Labor, at the address aforesaid, a penalty in 

the amount of $1,000.00, which shall be in addition to and not in 

lieu of any existing remedies for failure to comply with an order of 

this Commission. 

109 
Further, in accord with its agreement, National shall, 

within 30 days of the date of this order, expunge from the 

employment record of Jack Lewis Kiefer any adverse references 

to his discharge. 

In view of this settlement, this discrimination proceeding 

is dismissed. 

SO ORDERED. 

Distribution: 

John A. Carlson 

Administrative Law Judge 

Robert J. Lesnick, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building, 

1961 Stout Street, Denver, Colorado (Certified Mail) 

Neil o. Andrus, Esq., Musick, Peeler & Garrett 

718 Seventeenth Street, Suite 1500, Denver, Colorado 80202 

(Certified Mail) 

/ot 

110 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 . JAN 1 71984 

DENVER. COLORADO 80204 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 81-402-M 

A.C. No. 04-00010-05027 A 

v •. Crestmore Mine 

ROBERT KLEIN, 

Respondent 

DECISION APPROVING SETTLEMENT 

Before: Judge Vail 

This is a civil penalty proceeding filed by the petitioner 

against Robert Klein, (hereinafter "Klein"), as an individual 

agent of the Riverside Cement Company, the corporate operator of 

the Crestmore Mine located in Riverside, California. Klein in 

this case was acting as the operator's safety director at the 

Crestmore Mine. 

On November 1, 1979, Order No. 375785 was issued by the Mine 

Safety and Health Administration to the Riverside Cement Company, 

pursuant to section 107(a) of the Federal Mine Safety and Health 

A~t, 30 u.s.c. 817fa), citing a violation of safety standard 30 

C~F.R. § 57.15-5. _I Said order reads as follows: 

A serious accident occurred at the Crestmore Mine 

when an employee entered the feed hopper at the 

dynapactor (crusher) to free a bridged material 

hangup. The bridged material broke through dropping 

the employee onto the pan feeder and loose material 

from above came down covering the employee. Safety 

belts, lines, and a person in attendance on the line 

were not being used in this dangerous location. 

1/ 30 C.F.R. § 57.15-5 provides as follows: 

Mandatory. Safety belts and lines shall be worn when men work 

where there is danger of falling; a second person shall tend the 

lifeline when bins, tanks, or other dangerous areas are entered. 

111 
Riverside Cement Company has paid an uncontested civil penalty 

assessment of $5,000 for the foregoing violation under MSHA 

Assessment Office Case No. 04-00010-0511-I. 

Klein was charged in this case under section llO(c) of the 

Act, 30 u.s.c. § 820(c), with knowing, authorizing, ordering, or 

carrying out said violation charged above against Riverside Cement 

Corporation, as their agent. 

The petitioner filed a civil penalty proceeding against 

Klein, proposing the assessment of a $300.00 civil penalty. This, 

matter was s~t for hearing on November 16, 1982 in Riverside, 

California. On November 15, 1982, the petitioner and Klein filed 

a joint motion for approval of a settlement and for dismissal of 

this case. Klein tendered a check for $100.00 in settlement of 

the proposed civil penalty and indicated he no longer wished to 

contest the charges against him. 

The parties represent that there was a serious violation in 

this case involving an accident wherein a miner sustained back 

injuries, multiple abrasions and lacerations. However, as a 

mitigating factor, Klein was not directly supervising the injured 

miner at the time of the accident. Also, Klein showed good faith 

after notification of the violation in helping to implement, at a 

mine safety meeting, proper procedures for when and where to use 

safety belts and lines to guard against a future occurrence of a 

similar accident. 

Based on a review of the record in this case and the 

representations of the parties, I find the settlement proposed is 

in accord with the purpose and policy of the Act. 

ORDER 

Accordingly, it is ORDERED that the motion by the petitioner 

and Klein be, and hereby is, GRANTED. It is further ORDERED that 

upon clearance of Klein's tendered $100.00 check as payment of the 

offered sum herein, the captioned ma_t-ter is DISMISSED. 

Distribution: 

;:::__;:;;~/~/~ Vi~ E. Vail 

Administrative Law Judge 

J. Philip Smith, Esq., Office of the Solicitor 

United States Department of Labor, 4015 Wilson Boulevard 

Arlington, Virginia 22203 (Certified Mail) 

Enos C. Reid, Esq., Reid, Babbage and Coil, 3800 Orange Street 

P.O. Box 1300, Riverside California 92502 (Certified Mail} 

/blc 

112 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JAN 171984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 81-406-M 

A.C. No. 04-00010-05025 A 

v. Crestmore Mine 

WAYNE KENDALL, 

Respondent 

DECISION APPROVING SETTLEMENT 

Before: Judge Vail 

This is a civil penalty proceeding filed by the petitioner 

against Wayne Kendall, (hereinafter "Kendall"), as an individual 

agent of the Riverside Cement Company, the corporate operator of 

the Crestmore Mine located in Riverside, California. Kendall in 

this case was acting as the operator's plant manager at the 

Crestmore Mine. 

On November 1, 1979, Order No. 375785 was issued by the Mine 

Safety and Health Administration to the Riverside Cement Company, 

pursuant to section 107(a) of the Federal Mine Safety and Health 

Act, 30 u.s.c. 817fa), citing a violation of safety standard 30 

C.F.R. ~ 57.15-5. _I Said order reads as follows: 

A serious accident occurred at the Crestmore Mine 

when an employee entered the feed hopper at the 

dynapactor (crusher) to free a bridged material 

hangup. The bridged material broke through dropping 

the employee onto the pan feeder and loose material 

from above came down covering the employee. Safety 

belts, lines, and a person in attendance on the line 

were not being used in this dangerous location. 

1/ 30 C.F.R. § 57.15-5 provides as follows: 

Mandatory. Safety belts and lines shall be worn when men work 

where there is danger of falling; a second person shall tend the 

lifeline when bins, tanks, or other dangerous areas are entered •. 

113 
Riverside Cement Company has paid an uncontested civil penalty 

assessment .of $5,000 for the foregoing violation under MSHA 

Assessment Office Case No. 04-00010-05ll~I. -

Kendall was charged in this case under section llO(c) of the 

Act, 30 u.s.c. § 820(c), with knowing, authorizing, ordering, or 

carrying out said violation charged above against Riverside Cement 

Corporation, as their agent. 

The petitioner filed a civil penalty proceeding against 

Kendall, proposing the assessment of a $300.00 civil penalty. 

This matter was set for hearing on November 16, 1982 in Riverside, 

California. On November 15, 1982, the petitioner and Kendall 

filed a joint motion for approval of a settlement and for 

dismissal of this case. Kendall tendered a check for $100.00 in 

settlement of the pr6posed civil penalty and indicated he no 

longer wished to contest the charges against him. 

The parties represent that there was a serious violation in 

this case involving an accident wherein a miner sustained back 

injuries, multiple abrasions and lacerations. However, as a 

mitigating factor, Kendall was not directly supervising the 

injured miner at the time of the accident. Also, Kendall showed 

good faith after notification of the violation in helping to 

implement, at a mine safety meeting, proper procedures for when 

and where to use safety belts and lines to guard against a future 

occurrence of a similar accident. 

Based on a review of the record in this case and the 

representations of the parties, I find the settlement proposed is 

in accord with the purpose and policy of the Act. 

ORDER 

Accordingly, it is ORDERED that the motion by the petitioner 

and Kendall be, and hereby is, GRANTED. It is further ORDERED, 

that upon clearance of Kendall's tendered $100.00 check as payment 

of the offered sum herein, the captioned matter is DISMISSED. 

Distribution: 

~7/ c~r:;,1..v .. / G. (/.~ c:.,.. c..-<:--L ~/ 

Virgd/i E. Vail 

Administrative Law Judge 

J. Philip Smith, Esq., Office of the Solicitor 

United States Department of Labor, 4015 Wilson Boulevard 

Arlington, Virginia 22203 (Certified Mail) 

Enos c. Reid, Esq., Reid, Babbage and Coil, 3800 Orange Street 

P.O. Box 1300, Riverside California 92502 (Certified Mail) 

/blc 

114 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JAN 171984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 82-12-M 

A.C. No. 04-00010-05026 A 

v. Crestmore Mine 

BEN POWELL, 

Respondent 

DECISION APPROVING SETTLEMENT 

Before: Judge Vail 

This is a civil penalty proceeding filed by the petitioner 

against Ben Powell, (hereinafter "Powell"), as an individual agent 

of the Riverside Cement Company, the corporate operator of the 

Crestmore Mine located in Riverside, California. Powell in this 

case was acting as the operator's plant manager at the Crestmore 

Mine. 

On November 1, 1979, Order No. 375785 was issued by the Mine 

Safety and Health Administration to the Riverside Cement Company, 

pursuant to section 107(a) of the Federal Mine Safety and Health 

Ayt, 30 U.S.C. 817ia), citing a violation of safety standard 30 

C.F.R. § 57.15-5. _/ Said order reads as follows: 

A serious accident occurred at the Crestmore Mine 

when an employee entered the feed hopper at the 

dynapactor (crusher) to free a bridged material 

hangup. The bridged material broke through dropping 

the employee onto the pan feeder and loose material 

from above came down covering the employee. Safety 

belts, lines, and a person in attendance on the line 

were not being used in this dangerous location. 

1/ 30 C.F.R. § 57.15-5 provides as follows: 

Mandatory. Safety belts and lines shall be worn when men work 

where there is danger of falling; a second person shall tend the 

lifeline when bins, tanks, or other dangerous areas are entered. 

115 
Riverside Cement Company has paid an uncontested civil penalty 

assessment of $5,000 for the foregoing violation under MSHA 

Assessment Office Case No. 04-00010-0511-I. 

Powell was charged in this case under section llO(c) of the 

Act, 30 u.s.c. § 820(c), with knowing, authorizing, ordering, or 

carrying out said violation charged above against Riverside Cement 

Corporation, as their agent. 

The petitioner filed a civil penalty proceeding against 

Powell, proposing the assessment of a $300.00 civil penalty. This 

matter was set for hearing on November 16, 1982 in Riverside, 

California. On November 15, 1982, the petitioner and Powell filed 

a joint motion for approval of a settlement and for dismissal of 

this case. Powell tendered a check for $100.00 in settlement of 

the proposed civil p~nalty and indicated he no longer wished to 

contest the charges against him. 

The parties represent that there was a serious violation in 

this case involving an accident wherein a miner sustained back 

injuries, multiple abrasions and lacerations. However, as a 

mitigating factor, Powell was not directly supervising the injured 

miner at the time of the accident. Also, Powell showed good faith 

after notification of the violation in helping to implement, at a 

mine safety meeting, proper procedures for when and where to use 

safety belts and lines to guard against a future occurrence of a 

similar accident. 

Based on a review of the record in this case and the 

representations of the parties, I find the settlement proposed is 

in accord with the purpose and policy of the Act. 

ORDER 

Accordingly, it is ORDERED that the motion by the petitioner 

and Powell be, and hereby is, GRANTED. It is further ORDERED that 

upon clearance of Powell's tendered $100.00 check as payment of 

the offered sum herein, the captioned matter is DISMISSED. 

Distribution: 

~ L---- . ;/ ~· ~~ ,,.---- c:,,~ cst-t{: ~· C/?cc-~-P virgiYE. Vail 

Administrative Law Judge 

J. Philip Smith, Esq., Office of the Solicitor 

United States Department of Labor, 4015 Wilson Boulevard 

Arlington, Virginia 22203 (Certified Mail) 

Enos c. Reid, Esq., Reid, Babbage and Coil, 3800 Orange Street 

P.O. Box 1300, Riverside California 92502 (Certified Mail) 

/blc 

118 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

. 333 W. COLFAX AVENUE. SUITE" 400 

DENVER, COLORADO 80204 

WILLIAM A. HARO, 

Complainant 

DISCRIMINATION PROCEEDINGS 

v. Docket No. WEST 79-49-DM 

MD 79-05 

MAGMA COPPER COMPANY, 

Respondent 

Docket No. WEST 80-116-DM 

MD 78-43 

Appearances: 

Before: 

San Manuel Mine 

DECISION 

Paul F. Tosca, Jr., Esq., Tucson, Arizona, 

for Complainant; 

N. Douglas Grimwood, Esq., Vancott, Bagley, 

Cornwall & McCarthy, Phoenix, Arizona, 

for Respondent. 

Judge Morris 

On November 30, 1982, the Federal Mine Safety and Health 

Review Commission remanded Docket No. WEST 80-116-DM and 

instructed the judge to analyze whether respondent Magma Copper 

Company, "proved that it would have transferred Haro anyway for 

legitimate b~siness reasons, regardless of his protected refusal 

to cut the B.O. car", 4 FMSHRC 1935, 1941. Subsequently, in a 

separate order, the Commission directed the judge to make his 

findings as to the merits of the respondent's defenses on the 

basis of the record presently before him, 5 FMSHRC 805. 

Prior to ruling on respondent's defense the parties were 

granted an opportunity to file briefs. After receipt of the 

briefs, and a review of the issues, the judge entered an interim 

order reaffirming complainant's claim of discrimination. The 

interim order, with a few clarifying changes, is restated here. 

Inasmuch as the interim order reaffirmed the claim of 

discrimination it became necessary, by virtue of the order of 

remand, to determine what amount, if any, was due to complainant. 

In lieu of a further hearing on damages the parties submitted a 

stipulation concerning back pay, interest, attorneys fees and 

special damages. The stipulated facts are discussed, infra, 

together with the issues raised in a subsequent brief filed by 

respondent. 

117 
Analysis of respondent's defense 

The Commission order of remand directs the entry of findings 

of fact and conclusions of law on the evidence relevant to 

respondent'~ defense. The principal thrust of the defense is that 

Haro was transferred because he placed a telephone call outside of 

the "chain of command" at the mine without trying to work out the 

problem with his supervisor; further, that a conflict of personalities necessitated Hare's transfer. 

The evidence relevant to respondent's defenses appears in th~ 

evidence of both parties. Such evidence is summarized in this 

decision in the same order as it was received at the hearing. It 

follows: 

·complainant William Haro 

The discrimination occurred on June 13, 1978 when dispatcher 

Lockhart instructed Haro to remove a bad order (B.O.) car on the 

production train. Lockhart is the dispatcher of supervisory 

personnel with the same pay rate as Stonehouse. Haro refused 

because Lockhart would not assign another person to assist him 

(Tr. 15, 6 0-61) • 

After Haro refused to remove the B.O. car, Stonehouse 

recommended that Haro call Frank Torres, (Hare's supervisor) at 

his home. Stonehouse, the shaft boss, reports to Cothern (Tr. 18, 

59, 60, 62). In the ensuing telephone conversation Torres told 

Haro to return to his maintenance work (Tr. 66). 

Before this incident occurred Haro had received written 

instructions, in the form of a company memorandum, to the effect 

that two men were to be used when a railroad car was cut from a 

train (Tr. 57, Exhibit C2). 

Haro did not contact Cothern about his refusal to cut the'' 

B.O. car; nor did he contact the mine mechanic supervisor (Tr. 18, 

64-65). 

After the tail light bracket incident (which occurred the 

following day) Haro submitted a grievance. At Torres's request 

Haro held the grievance until he [Torres] had an opportunity to 

look at it (Tr. 70, 71). 

On two prior terminations Haro quit respondent to seek 

employment elsewhere (Tr. 53). Haro did not recall any specific 

conflicts with supervisors (Tr. 53). 

After the B.O. car incident Navarro told Haro he was moving 

him from dump mechanic to another underground position on straight 

days. This was because Navarro wanted to protect Haro from 

Cothern. It was Navarro's responsibility to keep harmony among 

118 
the crews (Tr. 71, 72). Durago, the shift boss, told Haro he 

thought he and Cothern had a personality conflict. Cothern denied 

that there was a personality conflict (Tr. 73). Bob Zerga told 

Haro the same thing about the personality conflict (Tr. 73). 

Haro felt threatened by Traynor's statement about his 

(Haro's) activities stirring up more conflict in the mine 

operating division (Tr. 74). 

The purpose of the meeting on June 23rd with Traynor and 

Navarro was to try to work out differences with Cothern. The 

meeting didn't go any further than the second step of the 

grievance procedure. Haro received a letter from the general 

manager indicating it was not a proper subject for a grievance and 

he refused to hear it (Tr. 78-82). 

On June 23 (or June 25) Haro received a notice that he was 

being removed as dump mechanic and placed on straight days (Tr. 

225, 226). He then called MSHA (Tr. 226, 227). 

The "stress" started about June 13th (Tr. 227). 

Witness Frank Torres 

Frank Torres, a supervisor in the mechanical division, was 

familiar with the incident of June 13, 1978. On this date a 

dispatcher (Lockhart) asked Haro to remove a B.O. car from a 

production train (Tr. 89-92, 111). Because he was to do it alone 

Haro refused and called Torres at home. 

Torres told Haro they would have someone help him remove the 

car (Tr. 91-92). It would violate company policy not to provide 

Haro with an assistant to remove the car (Tr. 92). In their phone 

conversation, Torres asked Haro to request that his shift boss 

furnish someone to assist (Tr. 92-93). Stonehouse was the shaft 

foreman. Further, Torres told Stonehouse on the extension to help 

Haro himself or to provide someone to assist. Stonehouse agreed 

(Tr. 111). Torres assumed Stonehouse provided the assistant to 

cut the ore car (Tr. 92-93). Torres and Stonehouse are on about 

the same management level (Tr. 111-112). 

Haro was acting in accordance with instructions from Torres 

when he called him at home (Tr. 93). Torres tells this to each of 

his dump mechanics. They may call Torres or his supervisor, 

Navarro (Tr. 93). 

On June 15 Haro came to Torres with a grievance regarding the 

conflict over the tail light matter that had occurred between Haro 

and Cothern (Tr. 105-106). Torres told Haro to hold onto his 

grievances a couple of days. Torres wanted to try to smooth it 

over without going through the grievance procedure (Tr. 105-106). 

119 
On June 22, 1978 Torres discussed with his supervisor, 

Navarro, the conflict problems between Cothern and Haro (Tr. 106). 

Torres felt they should look into it, or he (Navarro), as Torres' 

supervisor, should look into it (Tr. 106). Navarro would be the 

more appropriate one to investigate because he is on a level 

closer to Cothern (Tr. 106). 

Witness Rudy Navarro 

This witness is section foreman of the three shaft area. 

Navarro testified that Haro's transfer to the surface job 

could be a direct result of the airslusher accident (Tr. 126). 

Concerning the ore cars: Mechanics are to go to the mine 

operating department and get a helper. They are not to remove the 

ore cars by themselves (Tr. 132). 

Navarro put Haro on straight days because of the conflict 

with Cothern. The statements were made by Cothern that Haro was 

arguing, and a big shot. Cothern didn't want him (Tr. 133-134). 

Witness John Zagorsky 

It seemed to this witness, who replaced Haro as dump 

mechanic, that "they" were pressuring Bill Haro all of the time 

(Tr. 174). By "they", Zagorsky means management consisting of 

Frank Torres, John Traynor, Tom Traynor, and Rudy Navarro. The 

pressure included undue stress. Also there was a silent period 

when they refused to talk to Haro. They would also needle him and 

ask more than the usual questions. There was more silent 

treatment than needling (Tr. 186). 

The Torres to Haro conversation [about the grease line] was 

more of a form of harassment than an explanation (Tr. 187). Haro 

is not a troublemaker. But he is conscious of what is safe around 

him and willing to speak up (Tr. 174, 175). 

Harry Miller, Thomas Traynor, Tom Howard, Gregory Korn, and 

Donald Graham also testified for Haro. However, those witnesses 

did not offer any evidence relevant to the issues now being 

considered. 

Respondent's Evidence 

Witness Robert Zerga 

Robert Zerga, Magma's development superintendent, is 

responsible for the maintenance division (Tr. 285). 

Zerga did not recall the chronological order, but the first 

personnel problem involving Haro was when Frank Bunch related to 

him that he had a confrontation with Haro off the job. Further, 

120 
there was some indication from Baro that he felt that the 

confrontation was going to run over onto the job (Tr. 290). Zerga 

told Bunch, t~e area supervisoL, that if there were any problems 

on the site with Haro, he was to exclude himself and let his 

foreman handle them (Tr. 291). 

The next matter was the problem between Haro and Cothern. 

The problem came to the attention of the mine operating group 

because Haro had called the maintenance people instead of dealing 

with Cothern who was in his chain of command (Tr. 291). The 

immediate result was that Cothern and Haro met to solve the 

problem and rectify the situation (Tr. 292). The meeting went 

poorly and it did not resolve the problem but amplified it. There 

were grievances turned in by Haro saying he was being set up and 

discriminated against (Tr. 292). 

After discussing the matter with Haro's foreman, Zerga felt 

the only reasonable position the company could take was to 

separate the two individuals because of an irreconcilable 

difference or conf 1 ict. They were separated. Haro was taken off 

as dump mechanic and put in the same area working for the 

mechanical foreman (Tr. 292). Zerga felt Haro required more 

supervision than he was receiving as a dump mechanic (Tr. 292). 

At the time of Haro's removal from the dump mechanic position 

the scenario was this: Cothern said that he didn't like someone 

going off the job when he [Cothern] could have resolved the 

problem. And he had never asked Bill Haro to do anything that was 

unsafe or out of line. Haro said he was being harassed and 

intimidated, further he claimed Cothern was trying to set him up 

to get him fired (Tr. 314). 

Lockhart was not Haro's boss and the problem was that Haro 

did not go to Cothern (Tr. 315). Stonehouse, the shaft foreman, 

worked for Cothern (Tr. 315). 

Subsequent to the Bunch and Cothern incidents, Haro's pattern 

of personality conflicts repeated themselves in subsequent 

incidents (Tr. 319). Through the grievance procedure it was 

claimed that Navarro, Torres, and Traynor were trying to "get" 

Haro. Pursuant to Haro's request he was moved to the surface. 

After that he had problems in the new area into which he had been 

moved. He had problems with Leno Gonzales over the use of 

telephones and over the use of wrong grease (Tr. 319). He had 

problems where he [Haro] said "they're just harassing me" (Tr. 

3 2 0) • 

Witness Zerga had problems with finding a solution to Haro's 

grievances. Concerning the grease line: Haro said he tried to 

explain the situation to Torres but he (Torres) wouldn't let him 

(Tr. 335-336). 

121 
Witness Rudy Navarro 

This witness (recalled) had been Haro's supervisor for one 

and a half years. One of his welders told Navarro that Haro had 

smoked a marijuana cigarette. Navarro contacted Haro. He said it 

wouldn't happen again. _/ 

The m~r1Juana cigarette incident occurred six months before 

Haro was assigned as a dump mechanic (Tr. 339, 340). It is a 

violation of company policy for a worker to have drugs in his 

possession while working (Tr. 342-343). 

Discussion 

The Commission has ruled that an operator may produce 

evidence in support of its legitimate business reasons to justify 

the challenged adverse action. In the words of the Commission 

"ordinarily an operator can attempt to demonstrate this by 

showing, for example, past discipline consistent with that meted 

out to the alleged discriminatee, the miner's unsatisfactory past 

work record, prior warnings to the miner, or personnel rules or 

practices forbidding the conduct in question," Bradley v. Belva, 4 

FMSHRC 982, at 993 (June 1982). Belva does not exclude other 

avenues of evidence that would establish legitimate business 

reasons to justify the operator's defense. 

But in this case respondent's evidence does not approach any 

of the criteria mentioned in Belva. To the contrary, the evidence 

establishes that Haro was transferred as a direct result of having 

engaged in a protected activity. 

The pivitol evidence arises from the testimony of witness 

Robert Zerga. This individual, as the person responsible for 

personnel problems, clearly establishes the reason why Haro was 

transferred. In the words of witness Zerga: "The problem came to 

my attention because the mine operating group brought to my 

attention that Mr. Haro had, instead of dealing with Mr. Cothern 

on a problem, had gone outside and called maintenance people 

instead of dealing with the line of command that was at work" (Tr. 

291). 

Notwithstanding whatever "line of command" existed at the 

mine, Haro was justified in calling his superior at his home. His 

supervisors, Torres and Navarro, told him he could call "outside" 

(Tr. 93, 267). Such authorization was not only given to Haro but 

to "each one" of the dump mechanics (Tr. 93). 

ll Haro denies the use of drugs (Tr. 229). 

122 
Supervisor Torres states !:he rationale: "We have three or 

four of them [dump mechanics) that are on rotating shifts, that if 

for some reason they cannot work with the shaft foreman or the 

assistant shift boss in regard to cutting off cars, which 

ordinarily they furnish somebody to help and assist on this 

certain thing, that if there was any question, they could not get 

anybody, they'd either call me or Mr. Navarro, which is my 

supervisor" (Tr. 93). 

Respondent claims Cothern was upset because Haro called 

outside to maintenance. Although Cothern did not testify, as an 

assistant superintendent, he should have knowledge of the 

instructions given to the dump mechanics by their supervisors. 

Haro claims, and it is now the law of the case, that his 

refusal to cut the B~O. car was a protected activity. In this 

regard he established a prima facie case. Commission decision, 4 

FMSHRC at 1941. 

Was his subsequent telephone call to Torres a further 

protected activity? or, as the defense urges, did that call 

violate respondent's chain of command. 

Under some circumstances a telephone call to an operator's 

supervisor off of the worksite might not be a protected activity. 

But here the telephone call directly interconnected with Hare's 

refusal to remove the railroad car. It was, in these unique 

circumstances, a protected activity. 

Additional uncontroverted evidence indicates Haro did not 

unilaterally call Torres. Stonehouse, the shaft boss, recommended 

the call be made (Tr. 59-62). 

I agree with respondent that it is clear that Haro did not 

contact Cothern concerning the B.O. car. No such contact was 

necessary. Stonehouse, the shaft boss, recommended that Haro call 

Torres. At that point Stonehouse hadn't been aware of the policy 

to provide a worker to assist the dump mechanic when an ore car is 

removed from the train (Tr. 62, 268). However, in talking to 

Torres, Stonehouse agreed to provide such an assistant (Tr. 111). 

That concluded the matter. No further purpose would be served by 

Haro going beyond Stonehouse and contacting Cothern. 

Additional evidence in the case requires review. Witness 

Zerga testified concerning a personnel problem involving Frank 

Bunch and Haro. This problem apparently arose out of a 

confrontation between Bunch and Haro off of the job. Zerga 

handled this by instructing Bunch, an area supervisor, to exclude 

himself from any problems involving Haro. He [Bunch) was to let 

his foreman handle any problem (Tr. 291). 

123 
For several reasons there is a failure of proof that these 

events played any part in causjng respondent to remove Haro as the 

dump mechanic. The initial reason is that Zerga's testimony 

presents no time frame relating to the Bunch/Haro confrontation. 

It could have been as early as 1972, when the personnel records 

show Haro was hired or at any subsequent time (Exhibit R8). In 

addition, witness Zerga is clear that he didn't know the 

chronology between the Bunch incident and the Cothern incident. 

Without further supportive evidence I give no weight to a 

view that the Bunch incident was involved in the decision to 

remove Haro as dump mechanic. 

An additional issue arising from the evidence concerns 

witness Navarro's testimony that Haro's transfer to the surface 

could have been a direct result of the [airslusher] accident (Tr. 

125-126). 

The foregoing evidence is entitled to zero weight. Whether 

something "could" have caused Haro to be transferred lies within 

the realm of possibilities and conjecture. 

A final point raised by the evidence concerns the incident 

where it is claimed that Haro smoked a marijuana cigarette. The 

use of drugs violates company policy. No one claims this was 

involved in Haro's transfer. Respondent apparently thought 

nothing of the incident because it subsequently assigned Haro to 

the position of dump mechanic. 

Respondent's contentions after remand 

and before interim order 

In its brief filed after the order of remand and before the 

entry of the interim order respondent urges various arguments in 

support of its position. The initial condition: 

Respondent states that Haro could well be obstreperous. He 

had been reassigned on six (6) different occasions due to his 

inability to get along with supervisors. These reassignments, 

respondent states, were not alleged to have been motivated by 

unlawful motives (Brief, page 5, paragraph 1). 

I disagree with respondent's contentions. No evidence 

supports the view that Haro was transferred on six different 

occasions. Respondent's assertions do not cite any part of the 

transcript. Further, I find no evidence supporting respondent's 

statement. The evidence concerning transfers by Haro are stated 

in the foregoing summary of the evidence. There are two such 

transfers. Both occurred after the B.O. car incident. The first 

was when Navarro transferred Haro off of the position of dump 

.mechanic. The second was when Haro requested a transfer to the 

surface because he was being harassed. 

124 
Respondent's personnel records (RB) fail to show any such 

transfers. In .fact, the personnel records show nothing after May 

25, 1976., 

Respondent's claim that Haro was fired because he couldn't 

get along with his supervisors seems contradicted by the records 

(RS). The records show Haro quit in July 1972. Further, he was 

dropped as an employee in February 1973 (AWOL), in April 1973 

(excessive absenteeism), as well as August 1973 (AWOL). These are 

legitimate business reasons to terminate and to refuse to rehire a 

worker. But the cqntradiction lies in the fact that Haro was 

rehired after each of these terminations. 

Respondent's brief does not cite any portion of the 

transcript in its assertion that Haro couldn't get along with 

supervisors. There is evidence that Haro "had problems" with 

Anderson, zunica, and Pena as well as Gonzales (use of telephone 

and wrong grease). Even if I assume these men were Haro's 

supervisors I cannot overlook the obvious. These "problems" all 

occurred after Haro refused to remove the B.O. railroad car. 

Further, the record does not disclose what the "problems" were 

between Haro and the first three individuals. 

Respondent's second contention: On June 13, 1978 Haro was 

asked by a co-worker to cut a "bad order" car by himself. He 

refused to do so. Instead of referring the matter to Cothern, his 

supervisor on shift, he called a supervisor off shift at the. 

supervisor's home (Brief, page 5). 

This contention has been discussed. To restate the holding: 

Stonehouse, the level boss, recommended the phone call and he 

concurred in Torres' suggestion. Haro did not have to take the 

matter to Cothern. 

The third contention: Cothern deeply resented the Haro 

telephone call to another supervisor. Cothern told Haro he would 

try to have Haro removed from his shift for that reason. Cothern 

gave the same explanation to Zerga, who had made similar decisions 

regarding Haro in the past (Brief, page 5). 

Cothern did not testify and in fact he wasn't shown to have 

been on the shift at the time. But there is sufficient evidence 

to infer Cothern's reaction to Haro. However, no defense is 

established. Haro was engaged in a protected activity. Cothern 

told Haro he would get him removed. He did. 

Magma's claim that Zerga had made "similar decisions" 

concerning Haro can, on this record, relate only to the Bunch/Haro 

incident. As previously discussed the Bunch/Haro incident is 

without any reference to a time frame. Further, it is obvious 

125 
from Zerga's testimony that it played no part in the decision to 

remove Haro as dump mechanic. 

The fourth contention: The decision was made to place Haro 

directly under a mechanical supervisor, so that any questions 

could be resolved on shift (Brief, page 5). 

This view really asserts that when a miner engages in a 

protected activity he can be demoted under a guise including the 

one that more supervision is required. But Zerga's stated reason 

for removing Haro was because of the telephone call to the 

maintenance people on the "outside." If a protected activity in 

part causes adverse action against a miner then a violation of the 

Act occurs. As a matter of fact such a transfer as occurred here 

would eliminate the necessity of any telephone calls. A 

supervisor would theri be "on shift." 

The fifth contention: Not one supervisor ever told Mr. Haro 

he had been wrong in refusing to cut the R.O. car (Brief, page 

5) • 

I am unable to perceive how this assertion establishes a 

defense. Haro followed company policy and refused to cut the B.O. 

car without assistance; then he called "outside" as he had been 

instructed to do. It is not relevant whether a supervisor tells a 

miner whether his actions are wrong. Haro, Torres, Navarro and 

the company memorandum all clearly establish a mechanic was not to 

remove a railroad car without an assistant (Haro 15-16; Torres 

92-93; Navarro 132; Exhibit C2). 

The sixth contention: The San Manuel Mine employs 1,500 

persons underground. Miners, craft persons and laborers are 

assigned work by their supervisors pursuant to orders which the 

supervisors themselves are given. The orders are carried out in 

an environment of noise, dust and frequent darkness amid heavy 

machinery and explosives. If a supervisor loses control over the 

men he supervises, disaster can result. In the present case, 

Cothern did not order Haro to do an unsafe act. A co-worker made 

that request-.~Haro did not discuss it with Cothern or otherwise 

follow the chain of command. He solicited instructions from a 

supervisor off the job. This was in derogation of the authority 

and responsibility given to Mr. Cothern as a supervisor (Brief, 

pages 5-6). 

This contention was previously discussed, but to briefly 

restate it: Magma's brief (pages 1, 2) shows a chain of command 

with Haro as dump mechanic on a level with Lockhart. On the next 

echelon it shows the "level boss" to be Stonehouse. On the next 

level Cothern is listed as shift boss. Zerga is shown as the 

final supervisor. When Stonehouse, on a level above Haro, decided 

the issue, that concluded it. Cothern should know Haro had been 

128 
authorized to call maintenance people on the outside. Further, 

the telephone call was legitimate since Stonehouse didn't know 

about the co~pany policy. 

Magma's final statement in its brief is that neither 

Cothern's request that Haro be reassigned, nor Zerga's granting of 

that request, were so weak, so implausible or so out of line with 

normal practice, to be considered as mere pretext seized to cloak 

discriminatory motive. Zerga was merely trying to keep two 

employees from creating conflicts which were inhibiting the 

productivity of both of them (Brief, page 6). 

The issues raised by this contention have been previously 

reviewed. In sum, the evidence does not establish that respondent 

transferred complainant Haro for legitimate business reasons but 

to the contrary he was transferred for engaging in a protected 

activity. 

Respondent's contentions after 

issuance of interim order 

After the parties filed their stipulation concerning damages 

the parties were granted an additional opportunity to file briefs. 

Complainant Haro did not file. Respondent did. Respondent's 

contentions all address the interim order that was entered 

reaffirming the original discrimination concerning the B.O. car 

incident. The issues raised were in addition to those previously 

raised and discussed when respondent filed its brief after the 

order of remand and before the entry of the interim order. 

Magma's contentions entitled "Exceptions to order after remand," 

are basically credibility arguments. They follow: 

Contention No. 1: 

The Order draws a negative inference in several places 

from the failure of Supervisor Cothern to testify. (e.g., 

p. 6 paragraph 3; p. 8 paragraph 5) Mine Superintendent, 

Bob Zerga, testified that Mr. Cothern was then employed 

by Freeport Mining Co., in West Irian, on the Island of 

Java, in Indonesia, and that he was not available to 

testify (Tr. 293). Further explanation of his failure 

to appear would seem superfluous. 

It is true that the evidence is uncontroverted that Cothern 

was out of the country at the time of the hearing. It is not 

necessary to explore whether an adverse inference was drawn from 

his failure to testify or whether it was a recitation of a fact. 

In any event the evidence from both complainant and respondent 

support Hare's authority to call "outside." 

12'7 
Contention No. 2: 

The Order states that Mr. Haro call Mr. Torres at Torres' 

home at the suggestion of Mr. Stonehouse (Tr. 62; p. 2 

of Order). This account differs substantially from the 

account given by Mr. Haro in his written account at the 

time of the event (p. 1 Complaint of Haro to MSHA in Review 

Commission Record), his deposition given on July 18, 1980 

(see Tr. 63-64), and his direct examination (Tr. 19). 

In his complaint to MSHA, Haro goes into exquisite detail 

concerning the personnel involved, their level assignments 

and the conversations he had with each one. At no time does 

he mention that Stonehouse told him to call Torres. 

In an attempt tci destroy Haro's credibility on this point 

respondent initially cites Haro's complaint to MSHA "in the Review 

Commission record." 

Haro's statement to MSHA was not offered as an exhibit nor 

did any party request the judge take official notice of such 

statement. Accordingly, the statement is not part of the 

evidenciary record and not before me. 

Respondent further cites Haro's direct examination, citing 

the transcript at pages 19, 63-64. 

In order to analyze these points I deem it necessary to set 

forth the pertinent portions of the transcript. 

The direct examination at pages 16-19 of the transcript shows 

the following: 

A. Yes, sir. Mr. Tosca: Your Honor, this is a memorandum of Magma Copper Company which directly related 

to the questions I just asked. I offer it into evidence. 

(Whereupon the above mentioned 

Exhibit was marked for 

identification at this time.) 

Judge Morris: C-2 has been offered in evidence. It's a 

memo from a J. Herndon. Any objection to C-2, Mr. 

Grimwood? 

Mr. Grimwood: Your Honor, no, there's no objection and 

128 
the company will stipulate that Mr. J. Herndon did 

prepare this memorandum and post it 6n the date 

indicated. 

Judge Morris: May 8, 1976. 

Mr. Grimwood: May 8, 1976, yes. 

Judge Morris: Exhibit C-2 will be received together with 

the stipulation. 

By Mr. Tosca: 

(Whereupon the above mentioned 

Exhibit was received into 

evidence at this time.) 

Q. Will you please read that short memorandum to the 

Court, please? 

A. "May 8, 1976, Subject, Production Training Message. 

In the last 30 days there has been two instances 

of mud trains losing cars on the main line. From 

this day forward there will be no cutting of cars 

from the production train to service development or 

any other reason except to cut out a B.O. car. 

When a B.O. car is cut, a supervisor will be present. 

The safety hooks and couplings are to inspected as 

often as necessary and cleaned if necessary." 

Q. Well, according to your testimony, Mr. Haro, Mr. 

Lockhart apparently asked you to break company policy; 

is that right? 

A. That's correct. 

Q. Did you ask your supervisor? 

A. I asked him that the policy be followed. 

Judge Morris: You asked for what? 

The Witness: I asked that the policy be followed. 

By Mr. Tosca: 

Q. You were aware of this memo at the time? 

A. Yes, I was, sir. 

Q. What was Mr. Lockhart's response to your request? 

A. Mr. Lockhart asked me if I was refusing to do the 

job as assigned. 

129 
~· And your response? 

A. No, sir, that I wasn't refusing to do the job, that 

I was just asking that the policy be enforced as 

stated. 

Q. Did you cut the ore car from the train? 

A. No, sir. 

Q. What was the result of that? 

A. At that point in time, I called my immediate 

supervisor, Mr. Frank Torres at his home as I had been 

told to do by Mr. Torres if I had run into this 

situation and at that point in time Mr. Torres explained over the telephone ·to myself and the shaft 

foreman, Mr. Stonehouse, the procedure as stated in 

the memorandum. (Emphasis added). 

Then Mr. Torres called Mr. Lockhart and explained 

the procedure to Mr. Lockhart and I was never asked 

after that point in time to go out and cut the car. 

Q. And that was the end of that issue? 

A. At that point in time, sir. 

Q. On June 14, 1978, were you working under a Mr. 

Cothern, a foreman for Magma Copper Company? 

A. Yes, sir, Mr. Cothern was an assistant chief foreman. 

Q. On that date did you have a conversation with Mr. 

Cothern regarding the tail light on the rear of one 

of these ore cars? 

A. I did, sir, on two different occasions on the same 

date. 

Q. Can you give me, in substance, a brief synopsis of 

that conversation? 

A. Yes, sir, Mr. Cothern instructed me to tie with 

bailing wire, a light to the end of the production 

train and when I brought Mr. Cothern's attention 

to the policy stating that we did not tie lights 

on the end of trains, that we installed them on 

light brackets, the tail car of the trains, and I 

showed Mr. Cothern that one of these tail cars that 

130 
was equipped with a light bracket and a light, that 

was_ in working order, was in the middle of the train, 

that that's all he needed to do was to remove the car 

from the middle of the train and put it on the back 

of the train as the procedure calls for it. 

Mr. Cothern asked me if I was refusing to do a job order 

as instructed. 

Q. What was your response? 

A. I t6ld him, "No, sir, I wasn't." 

Further relevant verbatim testimony appears in Hare's 

cross-examination: 

Transcript at 61-64: 

Q. And Mr. Lockhart was a dispatcher? 

A. That's correct, sir. 

Q. Was Mr. Lockhart in, well, he wasn't in that chain 

of command I just described was he? 

A. Oh yes. 

Q. Where does he fit in? 

A. He is a dispatcher of supervisory personnel. I 

imagine he's probably the same pay rate as Mr. 

Stonehouse. 

Q. Right, but at least as far as Mr. Stonehouse being 

your card signing boss, Mr. Stonehouse reporting to 

Mr. Cothern, he's not in there any place, but he did 

ask you to do something. 

A. Yes, sir. 

Q. Okay, so isn't it true that when Mr. Lockhart asked 

you to do that and you told him that you didn't want 

to do it, it was against policy and you pointed out 

that thing, isn't it true that you simply, at that 

time, went over to the telephone and called Mr. 

Torres? I believe that's what your testimony was. 

You immediately went and placed a call to Mr. Torres; 

is that correct? 

A. This is at the conclusion of three conversations that 

I had with Mr. Lockhart in reference to cutting the 

B.O. car out. 

131 
Q. Well, you testified as to those, I'm sure, didn't 

you testify in full as to whatever conversations 

you had with Mr. Lockhart: right? 

A. Yes, sir. 

Q. And then so you just went ahead and just got on the 

phone and called up Mr. Torres at his home. He was 

off shift at that time, right? 

A. Sir, I believe my first complaint will show that I 

went to the 2075 and I reported to Mr. Stonehouse. 

I told Mr. Stonehouse what the policy was. I told 

Mr. Stonehouse what the situation was at that point 

in time and I asked him for his suggestion. 

Mr. Stonehouse indicated to me that he did not have 

any knowledge of such policy and that he himself recommended that I call Mr. Torres as Mr. Torres told 

me to do if I ran into this situation. (Emphasis added). 

Q. Okay, what I'm saying though, Mr. Haro, is that's not 

the way you testified on direct examination and I 

believe--

Mr. Tosca: I don't believe the question was asked whether 

he had called Mr. Torres on direct or not. It wasn't 

asked. 

Judge Morris: Well, we don't have a full question here. 

I believe, that's where it trailed off so you can hold 

your objection for a minute. 

Mr. Grimwood: Well, the record will reflect whether the 

question was there or not. 

Judge Morris: Well, you haven't asked him a question, 

Mr. Grimwood. How can he answer it? Do you want to ask 

him a question and if Mr. Tosca has an objection he can 

make it, but right now there's no question. 

By Mr. Grimwood: 

Q. Okay, Mr. Haro, do you recall when I took your deposition on July 18, 1980, about three weeks ago on 

this matter, on these discrimination charges, do you 

recall that? 

A. Do I remember the deposition? 

Q. Yes. 

132 
A. Yes, sir. 

Q. Okay, I refer to page 14 of the deposition, which 

is in the record and I ask, I ~irect your attention 

to the events of June 13, 1978, "What happened on 

that date?" Answer: "On June 13, 1978, I informed 

Mr. Lockhart that car 222 had a B.O. safety latch. 

Mr. Lockhart told me to remove the car from the 

train and to replace it with a good car. I asked 

Mr. Lockhart for assistance in this and he refused 

to comply with my request so I referred him to the 

memorandum and Mr. Lockhart asked me if I was refusing 

to do a job as was given to me. I informed Mr. 

Lockhart that I was not refusing to do a job, that I 

was merely trying to comply with the memorandum policy 

as stated. 

I, at that time, called Mr. Torres at home and informed 

Mr. Torres of the situation." Now is that pretty much 

how it happened? 

A. First of all, sir, during the deposition I tried to 

explain my answers as throughly as I possibly could. 

If I deleted the conversation that I had with Mr. 

Stonehouse prior to that, I didn't do it purposely. 

It is on the record on my first complaint with MSHA 

and I did put that in. If you'd care to check those 

records, it's in writing. 

Q. Well, there's been quite a bit of writing here. Well, 

okay, so at least you talked to Mr. Lockhart. Mr. 

Lockhart didn't give you satisfaction. Now you say 

you also talked to Mr. Stonehouse. Did you talk to 

Mr. Cothern about this situation? 

A. Mr. Stonehouse indicated to me that Mr. Cothern and 

Mr. Corwin were not available. 

Q. Well, were they on that shift? 

A. They were, sir, but they were not in an area where 

they could be reached at. 

Contrary to respondent's contentions I find Hare's testimony 

that Stonehouse suggested he call Torres to be very credible. 

In his direct examination, Haro is explaining his telephone 

call to Torres (Tr. 18, lines 8-14). At this point, without any 

leading question or suggestion, Torres, on the telephone, is explaining the procedure to Haro "and the shaft foreman, Mr. Stonehouse." (Tr. 18, lines 12, 13). 

133 
Hare's cross examination, as set forth above, further 

amplifies the testimony. 

Haro's evidence on this point is uncontroverted. Stonehouse 

did not testify. I find Haro's evidence credible and no contrary 

evidence causes me to reject it. 

Concerning Hare's deposition: the broadly worded question 

(Tr. 63, 64), of "what happened on that date?" [June 13, 1978) 

does not require a party to state every detail of the events of 

that day. 

The concluding paragraph of respondent's argument again 

refers to Hare's written complaint to MSHA. As previously stated 

that evidence is not before me. 

For the foregoing reasons I conclude that Stonehouse in fact 

suggested that Haro call Torres. 

Contention No. 3: 

Mr. Torres specifically instructed Mr. Haro and other 

mechanics involved not cut B.O. cars by themselves. Torres' 

specific instructions were to contact him at home only after 

having contacted the shift foreman and the shaft boss on duty 

and not having gotten satisfactory response from them (Tr. 

102-103). 

In support of its position respondent cites the transcript at 

pages 102, 103. This portion of the testimony is as follows: 

Q. Okay, Mr. Torres, Mr. Haro has testified here today 

about some problems he had with Mr. Cothern in the mine 

operating division and that sort of thing. Do you give 

your mechanics, you said you had three or four of them 

who work on B and C shift, any special instructions 

about handling these kinds of problems that they might 

run into with operating people? 

A. Yes, sir, let me explain this. On B and C shift 

there is no mechanical supervisor in this area where 

we work and they work, the dump mechanic works for the 

shaft foreman which the shaft foreman answers, in this 

particular case, to Mr. Cothern who was assistant shift 

foreman or shift foreman of this crew, and I have given 

them instructions as to, if they asked, say for instance, 

to cut a B.O. car off the train to if they ask them to 

go cut it off to ask for assistance. To try, if they 

cannot get anywhere with the shaft boss, his immediate 

supervisor at that time, to ask to talk to the assistant 

shift foreman or the shift foreman whichever the case 

may be, to get some help to do the job of cutting off 

cars or whatever. 

134 
Q. Does it sometirnes h21ppen that mine operating people 

who have essentially mjne responsibilities and mine 

mechanical people who have what you call support responsibilities, take a different attitude or a different 

approach to certain problems? 

A. I don't believe I understand that. 

Q. Well okay, I'll withdraw the question. You've 

testified that the mechanic who works on B and C shift 

does not have an immediate mechanical supervisor that 

moreorless is responsible to, that the mine operating 

division--in your opinion is it important to have someone 

with some degree of diplomacy or at least some common 

sense to work in this position, to work with the mine 

operating people? 

A. Yes, sir, it's very important to cooperate, yes, sir. 

Additional evidence on this point, not cited by respondent, 

appears in the direct testimony of Torres at page 93 of the 

transcript. It fol lows: 

Q. Do you know if--who was it you gave those instructions 

to? 

A. Mr. Stonehouse at the time was the shaft foreman in 

that area on B shift or whatever shift that it is that 

we are talking about. 

Q. To your knowledge, do you know if Mr. Stonehouse 

provided assistance to Mr. Haro to cut an ore car from 

the train? 

A. I would assume he did, yes. 

Q, But you have no personal knowledge whether he did 

or not? 

A. No. 

Q. When Mr. Haro called you at home on June 13, 1978, was 

he acting in accordance with your instructions? 

A. Yes, he was. I tell this to each one of my dump 

mechanics. We have three or four of them that are on 

rotating shifts, that if for some reason they cannot 

work with the shaft foreman or the assistant shift boss 

in regard to cutting off cars, which ordinarily they 

135 
furnish somebody to help and assist on this certain 

thing, that if there was any question, they could not 

get anybody, they'd either call me or Mr. Navarro, which 

is my supervisor. 

A fair reading of the foregoing portions of the transcript 

does not establish the strict construction urged by respondent. 

But in any event Torres indicated Haro could call "if there was 

any question" (Tr. 93). There were in fact serious questions. 

One of these was that Lockhart would not assign another worker to 

assist Haro (Tr. 15). In reply, Haro was asking that the written 

company policy be enforced (Tr. 15, 16). Another question arises 

from the fact that Stonehouse himself "wasn't aware of any such 

policy" (Tr. 268). This may be the reason why Stonehouse was on 

the extension when Haro talked to Torres. 

Contention No. 4: 

Contrary to the language of the Order, the law does not hold 

that "[i]f a protected activity in part causes adverse 

action against a miner then a violation of the Act occurs." 

The petitioner's proof in a "mixed motive" case merely shifts 

burden to the respondent to articulate a ligitimate 

business necessity for his action. 

The law of the case has been clearly articulated by the 

Commission in its order of remand, 4 FMSHRC 1935. The Commission 

has directed the judge to analyze respondent's legitimate business 

reasons. The analysis is made here, and for the reasons stated 

herein, I reject that defense. 

Contention No. 5: 

Mr. Haro was never "transferred", but he was reassigned (e.g., Tr. 298). Transfers are shown on the 

personnel card, assignments to crews or working places are 

not. 

The parties have agreed on the damages incurred by Haro. 

Whether the adverse action against Haro is called a "transfer" 

or a "reassignment" is of little consequence. 

Contention No. 6: 

The fact that Mr. Haro was never told that he was wrong 

in requesting assistance in cutting a B.O. car shows 

absence of respondent's animus toward a protected activity. 

The irritation of Mr. Cothern arose out of Haro 1 s choosing 

to telephone off the property without having consulted 

Mr. Cothern as Mr. Torres told him to do. Hare's testimony that Stonehouse told him to make the call is in138 
consistent with all his previous accounts of the event, 

as stated above. 

The issues raiserl in this contention have already been 

thoroughly explored and found contrary to respondent's views. 

Respondent's animus is apparent. Complainant engaged in a 

protected activity. He was transferred for that activity. 

Contention No. 7: 

Mr. Cothern was an operations supervisor. Mr. Torres was a 

maintenance supervisor. Mr. Cothern can hardly be charged 

with knowledge of instructions given by supervisors in other 

departments. Furthermore, Cothern's instructions were 

consistent with those given by Torres: contact the highest 

responsible perion on the job before calling off the 

property. 

I disagree with respondent's initial statement. A management 

supervisor should have knowledge of a written company safety 

memorandum. Further, particularly in matters relating to safety, 

he should know how unsupervised workers handle safety complaints. 

The second statement in contention No. 7 has already been 

discussed. 

Contention No. 8: 

The Order confuses Haro's reassignment from dump mechanic to 

maintenance mechanic (underground) to maintenance m~chanic 

(surface). Mr. Zerga granted Mr. Hare's request for the 

latter reassignment because of the Helmer accident. 

The parties have stipulated on Haro's damages. No purpose 

can be served by exploring this issue. 

After considering the record and for the reasons stated 

herein I conclude that complainant's claim of discrimination 

arising from the B.O. car incident should be affirmed. 

Stipulation Concerning Damages 

The parties, by their respective counsel, in a written 

stipulation agreed that if a final order finding unlawful 

discrimination is to be issued an accurate computation of the 

amounts to which complainant would be entitled are as follows: 

Back pay 

Interest 

Attorney fees 

Compromise of 

Special Damages 

137 

$3,219.71 

2,099.36 

5,644.52 

361.20 
The figure entitled "compromise of special damages" arises 

from a dispute of whether an additional $722.40 is due 

complainant. The parties compromised their dispute on this point. 

The stipulation concerning damages is in order and it is 

approved. 

Based on the facts recited in this decision and on the 

conclusions of law herein I enter the following: 

ORDER 

1. Complainant's claim of discrimination concerning the B.O. 

railroad car is affirmed. 

2. The employment record of William A. Haro is to be 

completely expunged of all comments and references involved in his 

refusal to remove and replace the B.O. railroad car. 

3. Respondent is ordered to pay the following sum to 

complainant for the amounts indicated: 

Distribution: 

Back pay 

Interest 

Attorney fees 

Compromise of 

Special Damages 

Total 

$ 3,219.71 

2,099.36 

5,644.52 

361.20 

$11,324.79 

Paul F. Tosca, Jr., Esq., 807 Pioneer Plaza 

100 North Stone, Tucson, Arizona 85701 (Certified Mail) 

N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills 

1700 TowneHouse Tower, 100 West Clarendon 

Phoenix, Arizona 85013 (Certified Mail) 

/blc 

13B 
FEDERAL Ml~'\: SAFETY AND HEALTH REVIEW \.\lMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 3 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. YORK 79-99-M 

A.C. No.Jo~ 0·0013-05003 

v. 

CALLANAN INDUSTRIES, INC., 

Respondent 

South Bethlehem Quarry 

and Mill 

DECISION APPROVING SETTLEMENT 

Appearances: William G. Staton, Esq., Office of the Solicitor, U.S. Department of Labor, New York, 

New York, for Petitioner; 

Before: 

Harry R. Hayes, Esq., Hayes & Lapitina, 

Albany, New York, for Respondent. 

Judge Melick 

This case is before me on remand for reconsideration of 

a petition for assessment of civil penalty under Section 

llO(a) of the Federal Mine Safety and Health Act of 1977 

(the Act) . Petitioner has filed a motion to approve a 

settlement agreement as to the one remaining citation and to 

dismiss the case. Respondent has agreed to pay the proposed 

penalty of $78 in full. I have considered the representations and documentation in the case, and I conclude that the 

proffered settlement is appropriate under the criteria set 

forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is 

GRANTED, and it is ORDERED that Respondent pay a penalty of 

$78 within 30 days of this order '\ ' n 

Gary"~1e~\~,~~ \J\JtV~~ Assistantl Chief Admi\istrative Law Judge 

Distribution: \ 

William G. 

Department 

(Certified 

\ 

Staton, Esq., Offic of the Solicitor, 

of Labor, 1515 Broa~way, New York, NY 

Mail) 

u. s. 

10036 

Harry R. Hayes, Esq., Hayes & Lapitina, 111 Washington 

Avenue, Room 602, Albany, NY 12210 (Certified Mail) 

/nw 139 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 6 \984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

·Petitioner 

v. 

WEST VIRGINIA REBEL COAL 

COMPANY, INC. , 

Respondent 

Docket No. KENT 83-117 

A. C. No. 15-06365-03504 

No. 1 Surface Mine 

ORDER OF DISMISSAL 

Before: Judge Steffey 

Counsel for the Secretary of Labor filed on January 9, 1984, 

in the above-entitled proceeding a motion to withdraw the proposal for assessment of civil penalty and dismiss the proceeding 

or, in the alternative, a motion for approval of settlement. The 

alternative motions are accompanied by data showing that respondent paid in full the civil penalties totaling $120 proposed by 

MSHA for six alleged violations of the mandatory health and safety standards. Respondent paid the proposed penalties by a check 

dated March 31, 1983, which was just 17 days after the proposal 

for assessment of civil penalty was filed on March 14, 1983. 

There was apparently a lack of communication between the 

personnel who paid the proposed penalties and the personnel who 

are responsible for the filing of answers to proposals for assessment of civil penalty because respondent failed to file an answer 

to the proposal for assessment of civil penalty until after the 

Chief Administrative Law Judge had issued a show-cause order on 

June 20, 1983, requiring respondent to file an answer or be held 

in default and be ordered to pay the penalties proposed by MSHA. 

Respondent filed on July 1, 1983, an answer in reply to the showcause order. The answer denies that any violations occurred and 

requests that a hearing be held "on all said matters". 

The Secretary's motion cites the Commission's decision in 

Mettiki Coal Corp., 3 FMSHRC 2277 (1981), in support of his request for permission to withdraw the proposal for assessment of 

civil penalty. In that interlocutory review case, the Commission 

held that granting a motion to withdraw a proposal for assessment 

of civil penalty was a satisfactory resolution of the controversy 

in circumstances showing that respondent had agreed to pay in full 

civil penalties totaling $10,000 for seven alleged violations and 

had withdrawn its notice of contest. The Commission also stated 

140 
in the Mettiki case that its ruling did not preclude a judge from 

denying a request to withdraw if "* * * the record discloses that 

resolution of the matter pending would best be served by the Commission's settlement procedures or by an evidentiary hearing. 

This situation is not presented in this case" (3 FMSHRC at 2277). 

It does not appear that the Commission's settlement procedures 

would best serve the resolution of the issues in this proceeding 

either when it is considered that respondent paid in full the total 

penalties proposed by MSHA just 17 days after the proposal for 

assessment of civ.il penalty was filed. The Secretary's counsel 

commendably filed his motion in the alternative and provided ample 

reasons in support of his alternative motion for approval of settlement if I had found that approval of the parties' settlement agreement would provide the best method for resolution of the issues in 

this proceeding. Another reason for granting the motion to withdraw, instead of granting the alternative motion for approval of 

settlement, is that MSHA has already received the check for full 

payment of the proposed penalties so that there is no need for me 

to issue an order requiring respondent to pay the penalties proposed by MSHA. 

In the circumstances described above, I find that the Secretary's motion for permission to withdraw the proposal for assessment of civil penalty should be granted. 

WHEREFORE, it is ordered: 

The motion for withdrawal of the proposal for assessment of 

civil penalty is granted, the proposal for assessment of civil -

penalty is deemed to h~ve been withdrawn, and all further proceedings in Docket No. KENT 83-117 are dismissed. 

Distribution: 

~a. ol7:81f Richard C. Steffe~ ~ Administrative Law Judge 

Thomas A. Grooms, Esq., Office of the Solicitor, U. S. Department 

of Labor, Room 280, U. S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Carl A. Tibbetts, Esq., Gardner, Moss, Brown & Rocovich, Suite 

Nine Hundred, First National Exchange Bank Building, 213 E. 

Jefferson Street, P. 0. Box 13606, Roanoke, VA 24035 (Certified 

Mail) 

yh 141 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE. SUITE 400 

DENVER, COLORADO 80204 

.t~N 2 6 1984 

ALBERT B. ZEISEL, 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. WEST 83-9-DM 

v. 

MD 82-80 

ASARCO, INC. , 

Respondent 

Appearances: 

Before: 

DECISION 

Ronald E. Gregson, Esq., Denver, Colorado, 

for Complainant; 

Earl K. Madsen, Esq., Bradley, Campbell & Carney, 

Golden, Colorado, 

for Respondent. 

Judge Carlson 

This case arose upon a complaint of discriminatory discharge 

filed by the complainant with the Secretary of Labor under section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801, et~., (the Act). The Secretary, after investigation, declined to prosecute the complaint. The complainant, 

Albert B. Zeisel, then brought this proceeding directly before 

this Commission as permitted under section 105(c){3) of the Act. 

Mr. Zeisel alleges that he was discharged in violation of 

section 105(c)(l) of the Act. l/ The essence of his complaint 

l/ Section 105(c)(l) provides: 

No person shall discharge or in any manner discriminate against 

or cause to be discharged or cause discrimination against or other 

wise interfere with the exercise of the statutory rights of any 

miner, representative of miners or applicant for employment in any 

coal or other mine subject to this Act because such miner, representative of miners or applicant for employment has filed or made 

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

notifying the operator or the operator's agent, or the representative of miners at the coal or other mine of an alleged danger or 

safety or health ~iolation in a coal or other mine, or because 

such miner, representative of miners or applicant for employment 

is the subject of medical evaluations and potential transfer under 

a standard published pursuant to section 101 or because such 

miner, representative of miners or applicant for employment has 

instituted or caused to be instituted any proceeding under or 

related to this Act or has testified or is about to testify in any 

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

others of any statutory right afforded by this Act. 

142 
is that he was discharged from his job as a motorman's helper by 

ASARCO, Inc •. (ASARCO) after he protested that a jack he was using 

was unsafe. He seeks reinstatement, back pay and bonuses, and 

restoration of seniority. 

Mr. Zeisel's original complaint, filed prose, indicated that 

he had been compelled to use a jack which was not working 

properly, but the pleading contained no direct allegation that he 

had made a safety complaint to the operator. Thereafter, Mr. 

Zeisel secured counsel who at a formal pretrial hearing was 

permitted to amend the complaint by adding the following 

allegation: 

[D]uring the incident that led to the second warning 

notice the Complainant made a complaint directly to 

Mike Mosher, ·his shift boss, concerning the safety of 

the jack which he was using. (Prehearing transcript 

at4and5). 

A full hearing on the merits was held in Denver, Colorado, 

following which both parties submitted extensive briefs. 

REVIEW OF THE EVIDENCE 

There was little agreement between the parties as to most of 

the facts concerning complainant's firing. The undisputed 

evidence does show that Mr. Zeisel had worked in the operator's 

underground metal mine at Leadville, Colorado from September 1981 

to his discharge on or about May 25, 1982. At the times material 

here, he was a motorman's helper. In that capacity he worked, 

successively, under three shift bosses: Dennis Vetrano, Glen 

Anderson, and Mike Mosher. On October 5, 1981, he received a 

warning notice from Vetrano (complainant's exhibit A). The notice 

specifies that he failed to follow orders and performed 

unsatisfactory work. Although the "explanation" portion of the 

notice simply notes "employee not doing job correctly," there was 

general agreement that Vetrano was dissatisfied with the speed 

with which Zeisel and fellow crewman were mucking a ditch. 

The witnesses also agreed that a second warning was issued, 

this time by Mosher, on April 29, 1982, (respondent's exhibit 8), 

but there was disagreement about the particulars of the incident. 

The parties did agree as to the nature of the event which led 

Mosher to issue a third and final notice on May 25, 1982. This 

event involved Zeisel's use of his finger to hold a latch on a 

hand-operated track jack which he and his motorman were using to 

143 
replace a derailed muck car on the track. Mosher observed the 

incident and issued a warning notice for "safety rule violation" 

and "unsafe work habits." This notice triggered a decision by 

higher management to discharge Zeisel. 

Complainant insists that ASARCO ended his employment because 

he made a complaint to Mike Mosher that the jack he was using to 

put a derailed car back on the track was defective. He did this, 

according to his testimony, at the very time that Mosher was 

reprimanding him for using his finger to hold the malfunctioning 

latch. Beyond that, Zeisel testified that he had a reputation as 

a safe and effective worker, and that Mike Mosher had evidenced a 

dislike for him from the first day he reported for work on 

Masher's crew. Finally, Zeisel maintained that Robert Russell, 

the mine superintendent, resented him because he had purchased a 

house from ASARCO which had been the house of Russell's boss, the 

unit manager. 

Witnesses for ASARCO testified that the complainant was 

discharged because he had repeatedly engaged in unsafe practices 

and was not an effective worker. They also maintained that the 

firing occurred after a series of incidents for which formal 

warnings were given in accordance with established disciplinary 

procedures. 

In resolving the evidentiary disagreements some review of the 

testimony relating to each incident is necessary. Mr. Zeisel 

acknowledged that his first shift boss, Vetrano, for whom he 

worked about three months, had once criticized him for failing to 

muck a ditch far enough or deep enough. Zeisel indicated that he 

never saw a written notice, nor signed one. The evidence does 

indicate, however, that Vetrano filed one with management on 

October 5, 1981 on which he checked boxes marked "failure to 

follow orders" and "unsatisfactory work", and upon which he also 

wrote "Employee not doing job correctly." (Complainant's exhibit 

A.) 

Zeisel testified that he received another warning notice for 

allegedly mishandling a section of rail which he and motorman Mike 

Dunn were lifting. According to Zeisel, Dunn's hand slipped and 

he dropped the rail. Zeisel asserted that he got a warning slip 

from his then shift boss, Mike Mosher, although Dunn himself did 

144 
not consider the incident significant and "couldn't believe" 

Mosher had issued a warning slip. Leroy Allan Eversole, safety 

director for the ASARCO Leadville unit, was called by complainant 

as a witness. He testified that Dunn had indicated that the 

dropped rail was not a "big deal." The warning slip in question 

(complainant's exhibit B), issued on April 4, 1982, by Mosher, 

shows a checkmark before the phrase "unsatisfactory work," and 

contains this written explanation: "not doing job properly and 

being unsafe." Eversole testified that he was asked by Mosher at 

about this time how to spell Zeisel's name because he was 

"thinking about" giving Zeisel a warning slip because Zeisel had 

been "kind of unsafe." Mosher mentioned the dropped rail incident 

in this connection. According to Eversole, Mosher also mentioned 

that Zeisel "was not totally responsive as a helper." Mike Dunn, 

when called as witness for ASARCO, testified that he had 

complained to Mosher that Zeisel had let go of the rail, which led 

to Dunn's finger being "smashed," and that he may have told Mosher 

that Zeisel had jumped between moving cars on the track. Dunn 

testified that he asked Mosher that zeisel be taken off the crew. 

Mosher himself, in testifying for ASARCO, indicated that Dunn 

had asked him to transfer Zeisel because he was "too unsafe." 

Mosher said Dunn had told him of Zeisel's standing on the track 

while signaling Dunn to back up the motor. According to Mosher, 

the April 4, 1982 reprimand was for Zeisel's unsafe signaling 

practice as reported by Dunn, not the dropped rail incident, which 

he did not believe "serious." Mosher testified that he moved Dunn 

to a different crew because of his safety complaints about Zeisel 

(Transcript 207). 

The crucial incident is that involving Zeisel's use of the 

jack. That episode triggered Zeisel's discharge and furnishes the 

basis for his complaint in this proceeding. The undisputed 

evidence shows that the track jacks used to replace derailed cars 

on the track sometimes malfunction because particles of muck or 

debris jam the latch mechanism which has to be pushed to allow the 

jack to be raised. When this occurred it was common for one miner 

to use a wrench (a buzzy) to depress the latch while another 

operated the handle which raised or lowered the jack. On or about 

May 25, 1982 Zeisel was working as helper for motorman Robush when 

a derailment took place. The two men used a jack to get the 

derailed cars back on the track. No one disputes that Zeisel used 

his finger, rather than a buzzy, to hold the jammed latch on the 

jack, and that Mosher saw him do it. 

145 
Zeisel insisted throughout his testimony that use of a finger 

to hold the latch was not uncommon. When pressed on the matter, 

he stated that he had seen Dunn use a finger on a latch once and 

Robush do so once. Zeisel also insisted that he had never been 

specifically instructed in the use of the jacks, but he learned 

through observing the motorman. Both motormen, in their own 

testimony declared the practice unsafe, and denied having ev~r 

used it. 

Robush and zeisel agreed that they alternated holding the 

latch and operating the iron bar used on the jack handle. Zeisel 

insisted that he used his finger because neither man had a buzzy 

to use instead. Robush contradicted this, claiming that he had a 

buzzy which he used, and which he offered to Zeisel. According to 

Robush, zeisel used it for a while, but then used his finger, 

which he was doing when Mosher happened on the scene for a second 

time. The first time when Mosher came by, Robush asserted, he 

himself was holding the latch with his buzzy. Robush claimed that 

he had warned Zeisel not use his finger and was ignored. zeisel 

denied that Robush said anything. 

They agreed, however, that Mosher reprimanded Zeisel on the 

spot. Robush testified that Mosher warned that if the jack 

slipped it could cut off a finger. He also testified that he told 

Mosher the jack was not working properly, to which Mosher replied 

that the jack should be "bad ordered" and sent to the surface for 

repair. Zeisel agreed that Mosher warned him about using his 

finger, but denied that Robush told Mosher anything or that Mosher 

"bad ordered" the jack. 

The testimony differs as to what, if anything, Zeisel said to 

Mosher that could be considered a safety complaint. Zeisel's own 

testimony on this matter was not wholly clear. Early in his 

direct testimony, this colloquy occurred: 

Q. Was it dangerous to use your finger? 

A. Not at all. I mean, you either use a buzzy or 

you use your finger in order to get that jack to 

work properly if its not working at all. (Tr. 20.) 

Then following this testimony: 

Q. What did you say to Mike Mosher when he said it 

was unsafe? 

A. I said it wasn't unsafe, that the whole jack or 

the jack itself was not working properly and that 

it just wouldn't -- thats all we had to work with. 

xxx 

Q. Did he say he'd do anything about the jack being 

unsafe? 

A. I'm sorry? 

146 
Q. Did he say he'd do anything about the jack being 

·unsafe? 

A. He didn't say another word. He just walked off. 

(Tr. 2 2) • 

On cross examination of Zeisel, this testimony took place: 

Q. You told him [Mosher] the jack was not working 

properly and what you were doing was really not 

unsafe? 

A. Pushing it in, no. To my knowledge it isn't because its common practice. So I told him the jack 

was not working properly and this was how we had to 

to make it work. [Emphasis added] 

Q. Did you say anything else to him? 

A. Basically that was it. Just talking about the jack, 

just saying it wasn't working. And he just walked 

off. (Tr. 44). 

Still later in the cross examination Zeisel insisted he told 

Mosher, specifically, the jack "was unsafe, it wasn't working 

right" (Tr. 46). 

Under further cross examination, after being asked to review 

his affidavit given to an MSHA investigator, he appeared to 

retreat from that position: 

A. Yeah, I told him the jack wasn't working properly. 

Q. But there is no reference to your using the term 

safe or unsafe or safety? 

A. Well, they go together if its not working properly. 

Q. Thats in your opinion. 

A. Its a fact, it seems like. 

Q. But you didn't say that. 

A. No, but if its not working properly •••• (Tr. 49.) 

Upon examination by the judge, complainant became more 

explicit: 

147 
Q. Now when you were describing the incident that 

apparently led to your discharge, you indicated, 

if I followed your testimony, that you and the 

motorman used your finger on the latch of the jack 

because you didn't have a buzzy. Now that implies 

to me that had you had a wrench you would have 

preferred to use that to your finger; is that right? 

A. Well, its easier to use, yes sir. 

Q. Is that the only reason you use it, 'cause its 

ea~ier to use than your finger? 

A. It would be, yeah. 

Q. Not because its safer to use than your finger? 

A. No. Using your finger could not get you hurt. 

(Emphasis added.) (Tr. 71-72). 

Robush, who was called as a witness by complainant, agreed 

that Zeisel did complain about the jack to Mosher after being 

warned by Mosher about using his finger. Robush testified as 

follows: 

Q. What, if anything, did Mr. Zeisel say to Mr. Mosher 

that you heard? 

A. He told him that we had trouble with the jack from 

the very beginning. 

Q. Anything else? 

A. No. (Tr. 111). 

Robush reiterated this recollection under questioning by the 

judge: 

Q. I want you to think before you answer this question. 

Did Mr. Zeisel say anything to you or Mr. Mosher 

about the safety or lack of safety or anything 

concerning danger relative to the use of the jack? 

Did that subject come up in his conversation? 

A. No, I don't believe so. (Tr. 122-123). 

148 
ASARCO officials who participated in the actual decision to 

terminate the complainant's employment testified at length for the 

company. Curtis A. Johnson, the unit manager for the Leadville 

unit, testified that he had the ultimate responsbility for 

firings. Johnson maintained that he made the decision to dismiss 

Zeisel after a consultation with Dave Russell, the mine 

superintendent. Beyond the circumstances which resulted in 

warning slips, Russell, he said, informed him that Zeisel wa~ a 

"slow worker," and that other workers were "carrying some of his 

weight." The essence of Johnson's testimony was that complainant 

was discharged out of belief that the miner displayed unsafe work 

habits (although he had never had an accident), and for a general 

failure to perform his job properly. Johnson claimed to have no 

knowledge of any alleged safety complaint before the firing (Tr. 

150) • 

Russell's testimony was in essential agreement with that of 

Johnson. He, too, denied any knowledge that Zeise! had made any 

sort of safety complaint about the jack (Tr. 228). In this 

regard, Russell indicated that he had discussed the two most 

recent warning slips with Ray Bond, the mine foreman, who in turn 

had talked to Mosher. Bond made no mention of any safety 

complaint from Zeisel. 

Management's witnesses also suggested that the complainant's 

discharge was the natural consequence of his having received three 

formal warnings for work violations. Personnel records of other 

discharged miners were produced in an attempt to show that 

Zeisel's termination was consistent with an established company 

policy of discharge for cumulative warnings for on-the-job 

misconduct. 

Management officials did not contend that the company had a 

specific rule forbidding using fingers on a sticking latch. 

Basically, they contended that common sense barred such a 

practice. Further, unit manager Johnson believed that the 

practice was covered by a general provision in the company's 

safety rule book distributed to all eMployees. Rule 3 on page 1 

of the book provides: 

No set of rules can more than outline a few safety 

procedures. Plan your work and do your work in 

conformity with these rules, but use good judgment. 

This book must be supplemented by common sense. 

(Respondent's exhibit 7 at 1). 

All witnesses except Zeisel appeared to share a belief that 

use of a finger to depress a sticking latch was dangerous. 

149 
DISCUSSION 

The burden of proof of an alleged discriminatee under the Act 

is set forth in Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

(1980) rev'd on other grounds sub nom. Consolidation Coal Co., v. 

Marshall, 663 F. 2d 1211 (3rd Cir. 1981). In Pasula the 

Commission held that complainant must carry the initial burden of 

showing that he engaged in a protected activity and that the 

protected activity was a motivating factor in his discharge or 

some other discriminatory act. 

Having carefully considered all the evidence and the 

arguments of the parties, I must conclude that the complainant in 

this proceeding failed to establish the initial element. No case 

for protected activity can be made out unless the complaining 

miner makes known his complaint to the mine operator. Put another 

way, an operator can scarcely be said to have discharged a miner 

for making a safety complaint it knew nothing about. In Dunmire 

v. Northern Coal Co., 4 FMSHRC 126 (1982), the Commission 

considered the minimum requirements of a health or safety 

complaint in connection with a work refusal. The resulting 

holding made clear that a communication is "ordinarily" essential. 

Exception may be found where no representative of the operator is 

present, where "exigent circumstance require swift reaction," or 

where an attempt to communicate would be futile. The Commission 

amplified this concept as follows: 

We stress that our purpose is promoting safety, and we 

will evaluate communication issues in a common sense, 

not legalistic manner. Simple brief communication will 

suffice, and the "communication" can involve speech, 

action, gesture, or tying in with others' comments. We 

are confident that the vast majority of miners are 

responsible and will communicate such concerns in any 

event. (Id. at 134.) 

Complainant, of course, was not involved in a refusal to 

work. On the contrary, assuming that he did in fact feel the jack 

unsafe, he nevertheless proceeded to join Robush in its use. His 

complaint, if he made one, came only after he had been verbally 

reprimanded for using his finger on the latch. This does not 

mean, however, that he could not have voiced a perfectly valid 

complaint at the time of the reprimand. The most favorable part 

of his testimony is that in which he maintained that he told the 

shift boss that the jack was "unsafe." One can conceive of a 

situation where a miner, fearful for his livelihood and having 

already received two warning slips, might indulge in an unsafe act 

where he believed he was expected to do so in conformity with a 

common practice in the mine. Zeisel, it will be remembered, 

maintained the use of the finger on the track jack was common, and 

no one disputed his contention that the jacks were frequently 

jammed with muck particles. 

150 
My difficulty with his testimony begins at this point, 

however. Robush, whom Zeisel called as his own witness, 

emphatically denied that he ever used his own finger on the jack, 

as did Dunn, the other motorman, who testified at the behest of 

the operator. These two were the only miners whom Zeisel 

supposedly saw using their fingers. More important, the 

complainant, when closely examined on the matter, ultimately 

acknowledged that he recognized no safety problem in using his 

finger on the latch, and that his only statement to Mosher was 

that the jack "was not working properly." Ignoring Mosher's own 

testimony that Zeisel said nothing about the condition of the 

jack, and indeed did not speak at all, I must agree with the 

operator that a statement that the jack "was not working 

properly," if made, did not rise to the level of a cognizable 

safety complaint. I specifically reject complainant's argument 

that such words carried with them a reasonable connotation that 

the speaker was concerned about the safety of the jack. It is far 

more likely that Mosher, or any reasonable person, upon hearing 

such words, would have assumed that they were offered as a spurof-the-moment excuse or justification for the miner's own breach 

of safety principles, not as a complaint of an unsafe condition 

inherent in a jack with a stuck latch. 

In reaching this conclusion, I have not ignored the attempts 

of complainant's counsel, in his excellent brief, to place his 

client within the exceptions to the necessity for an explicit 

complaint as outlined in Dunmire. The facts simply do not fit 

those exceptions. A management representative was present and 

complainant had a clear opportunity to register a complaint. I 

find no credible evidence that Zeisel believed that the making of 

a complaint would have been futile or useless. On the contrary, 

at the hearing he maintained that he did make a complaint by 

declaring that the jack was not working properly. 

Although I am convinced that Mr. Zeisel made no safetyrelated complaint, I should add that the credible evidence also 

demonstrates that no such complaints ever reached the unit manager 

(Johnson) or the mine superintendent (Russell), who together made 

the decision to terminate the complainant's employment. Thus, if 

Zeisel did declare to Mosher that the jack was not working and 

Mosher managed to construe this to mean that Zeisel had a concern 

over the safety of the device, there is no indication that Mosher 

ever communicated any of this to any higher management official, 

let alone to those who made the decision to fire. 

Complainant seeks to show a management awareness of a 

complaint through the following testimony by mine superintendent 

Russell concerning his conversation with foreman Bond: 

We Discussed why someone would stick their finger in 

a jack when they're jacking the car up when they've 

151 
got a buzzy and if there's muck in the jack why don't 

they get it out and make things safe. Well, not safe, 

but make the jack work, you know, .if its jammed or 

whatever. (Tr. 228.) 

This statement does not lead to a reasonable inference that 

Russell somehow knew that Zeisel had lodged a complaint about the 

safety of the jack. Taken in the context of Russell's full 

testimony, it stands for nothing more than a reflection of 

management's dismay over a miner's use of his finger on the latch 

mechanism. I should note that I find that the company's concern 

over the use of a finger on the jack was genuine. I also find 

that the practice was ln fact hazardous. 

Some mention should also be made of the significance of shift 

boss Masher's "bad oidering" of the jack when he was told that it 

wasn't working properly. Complainant suggests that this action 

should be construed as an admission that using a jack with a 

jammed latch was unsafe per se. (Curiously, Zeisel himself denied 

that Mosher issued a "bad order" (Tr. 22)). The question thus 

raised is whether ASARCO recognized that a jack with a jammed 

latch was dangerous even when used with a buzzy. 

Mosher maintained that it was ordinarily safe to use a ·buzzy. 

He pointed out that the car was already raised when he got there, 

and that he had no recourse but to allow the miners to finish. He 

acknowledged, however, that because of the location of the car in 

the incident in question, some possibility existed that a miner 

could be hurt even if using a buzzy, had the jack slipped. (Tr. 

212-213). Superintendent Russell, on the other hand, testified 

to the general effect that use of the buzzy was an acceptable 

technique. Demonstrating with a jack, he endeavored to show that 

cars needed to be raised but a small distance to replace them on 

the track, and that if the jack slipped the car always fell to one 

side or the other, not toward the end where the jacking was done. 

He ultimately acknowledged, however, that it was safer to use a 

jack in good working order, than to use anything to hold the 

latch. (Tr. 217-219, 244-245.) On the whole, however, it is 

apparent that miners and management alike tended to believe use of 

a buzzy was acceptable and generally safe; otherwise the 

transcript would not be filled with unquestioning references to 

the use of buzzy on sticking latches. Use of a buzzy, that is to 

say, was not perceived as cheating on safety. In a mine where 

that state of mind prevailed it is doubtful that a suggestion that 

the jack was "not working properly" would be seen as a safety 

complaint. This is especially true where the suggestion came from 

a miner who - seemingly alone among mine personnel - believed it 

was safe to use his finger directly on the latch. 

152 
Complainant contends that ASARCO's stated reason's for the 

discharge must be discounted because the surrounding circumstances 

suggest that those reasons were a mere pretext for a retaliatory 

dismissal based on his making of a safety complaint. In support 

of this contention, complainant relies on Chacon v. Phelps Dodge 

Corporation, 3 FMSHRC 2508 (1981), rev'd on other grounds, 709 F. 

2d 86 (D.C. Cir. 1983). That case recognized that operators who 

are motivated to retaliate against miners for engaging in 

protected activity seldom leave a trail of direct evidence. Thus, 

the real motive for an adverse action may be proved bi reasonable 

inferences drawn £rom such circumstances such as these: the 

operator's knowledge of protected activity; its hostility to the 

protected activity; a coincidence in time between the protected 

activity and the adverse action; and disparate treatment of the 

complaining miner and others whose alleged non-protected conduct 

was similar. Complainant insists that the evidence here mandates 

an inquiry into the areas outlined in Chacon. His brief then 

offers an extended analysis of evidence claimed favorable to the 

desired inferences. 

The difficulty with complainant's position is manifest. The 

Chacon approach is of value only when some evidence, direct or 

circumstantial, establishes that protected activity took place. 

If such evidence is lacking, any Chacon analysis ends there. For 

the reasons previously discussed, I found that no credible 

evidence demonstrates that the miner conveyed to ASARCO any 

information, by word or conduct, which was or should have been 

understood as a safety complaint. 

Some passing mention must also be made of complainant's 

assertion that he was the victim of an inexplicable animosity on 

the part of Mosher, who allegedly disliked him from the first day 

he reported to work under Masher's supervision. Mosher denied any 

such attitude, and denied that he greeted complainant with 

obscenities on his first day on the crew. If Zeise! is believed, 

however, it adds no strength to his case. The complainant has a 

remedy under the Act only to the extent that his discharge was 

motivated by a complaint about safety. If Mosher indeed harbored 

an unjustified dislike of Ziesel, that fact may have furnished a 

discharge motive quite remote from any alleged safety complaint. 

Similarily, if we are to accept complainant's view that mine 

superintendent Russell was somehow biased against him because he 

purchased a house from a unit manager for ASARCO, that fact, too, 

would at best furnish a separate motive for discharge. 

153 
To summarize, I find that the evidence shows that the 

complaining m.iner registered no safety-related complaint with the 

mine operator. I further find that his discharge was based solely 

upon a management perception that he tended to be an unsafe and 

otherwise unsatisfactory worker. I consequently conclude that the 

miner did not engage in protected activity under the Mine Safety 

and Health Act of 1977 and is therefore without a remedy under the 

Act. 

ORDER 

In accordance with the foregoing, this discrimination 

proceeding is ORDERED dismissed with prejudice. 

Distribution: 

Ronald E. Gregson, Esq. 

?:O~n. ~~ ~. Ca:lson 

Administrative Law Judge 

910 16th Street, Suite 1125 

Denver, Colorado 80202 (Certified Mail) 

Earl K. Madsen, Esq., Bradley, Campbell & Carney 

1717 Washington Avenue 

Golden, Colorado 80401 

/blc 

15tj 
FEDE_RAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JU.DGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING CO., INC., 

Respondent 

UNITED MINE WORKERS OF 

AMERICA ( UMWA) , 

Intervenor 

. . 

DECISION 

Docket No. PENN 82-305 

A.C. No. 36-05018-03501 

Cumberland Mine 

Appearances: Howard K. Agran, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

B~fore: 

Louise Q. Symons, Esq., United States Steel Corporation, Pittsburgh, Pennsylvania, for Respondent. 

Judge Melick 

This case is before me upon the Petition for Civil Penalty 

filed by the Secretary pursuant to Section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et. seq., 

the "Act," for four violations of regulatory standards. The general issues before me are whether U.S. Steel Mining Company, Inc. 

(U.S. Steel), has violated the regulations as alleged and if so 

whether those violations are "significant and substantial" within 

the meaning of the Act and as interpreted by the Commission in 

Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC 

822 (1981). If violations are found, it will also be necessary 

to determine the appropriate penalty to be assessed. 

Citation No. 1146090 charges a violation of the standard at 

30 C.F.R. § 75.503 and specifically alleges as follows: "[T]he 

S/S scoop battery tractor serial No. 486-1128 approval 2G operating in the 121 main west section was not maintained in permissible condition in that the battery covers were not secured." 

155 
The standard at 30 C.F.R. § 75.03 reads as follows: "[T]he 

operator -of each coal mine shall maintain in permissible condition all electric face equipment required by§§ 75.500, 75.501, 

75.504 to be permissible which is takeri into or used inby the 

last open crosscut of any such mine." 

The Secretary argues that in order for the scoop tractor, 

which is admittedly electric face equipment, to be "permissible" 

within the meaning of the cited standard, it must comport with 

the construction and design requirements set forth in the standard at 30 C.F.R. § 18.44(c). Even assuming, arguendo, that 

those construction and design requirements are a prerequisite to 

permissibility, I do not find a violation herein. § 18.44(c) 

requires only that "battery-box covers shall be provided with a 

means for securing them in an enclosed position." Admittedly the 

battery box covers in this case were equipped with tabs and holes 

which clearly provided a means for securing those covers in a 

closed position. In addition to the tabs and holes, the covers 

were interlocking and were provided with lips that fit over the 

edge of the battery box. 

Since the battery box covers in this case fully comported 

with the requirements of§ 18.44(c), I cannot find that a violation has occurred. Citation No. 1146090 is accordingly vacated. 

If the Secretary indeed deems that battery box covers should be 

locked and secured at certain times for certain specified safety 

reasons, rulemaking procedures should be employed to provide an 

appropriate regulatory standard. The Administrative Law Judge 

cannot be used as a substitute for such rulemaking. 

Citation 1146093 charges a violation of the standard at 30 

C.F.R. § 75.606 and specifically alleges as follows: "The continuous miner trailing cable was under the left front tire of a 

parked Torkar shuttle car serial No. 4275 in the east main section [and] therefore was not adequately protected from damage by 

mobile equipment." The cited standard requires that "trailing 

cables be adequately protected to prevent damage by mobile equipment." 

It is not disputed that the conditions cited by MSHA Inspector Clarence Moats in fact existed. The trailing cable for the 

continuous miner was in fact found under the left front tire of 

the cited shuttle car. Moreover there is no dispute that trailing cables can be damaged if run over by heavy mining equipment. 

The cable in this case had not been blocked or moved out of the 

roadway to protect it from being run over. In fact the cable had 

been lying in the roadway three feet from the left rib. Under 

158 
the circumstances, it is clear that the violation has been proven 

as charged. The evidence also shows however that the ground beneath the cable was soft, that the cable was not in fact damaged, 

and that there was no power in the cable at the time it was cited. 

Moreover it is undisputed that even if there had been internal 

damage to the cable, the circuit breaker would most likely have 

cut off power before injuries would occur. 

A violation is "significant and substantial" if, "based on 

the particular facts surrounding that violation, there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or an illness of a reasonably serious nature." National Gypsum, supra. The evidence shows herein that the hazard 

contributed to by damaging trailing cables is electrical shock 

and electrocution. It is not disputed that these may lead to 

injuries which are reasonably serious. The evidence further 

shows that such electrical shock could occur if the cable is 

damaged in such a way that exposed wire_ would protrude outside 

the insulation and a miner picked it up with his hands. It is 

common for the cables to be moved by hand. Although the wire in 

this case was not found in such a condition, I find a reasonable 

likelihood that if the cited condition remained uncorrected, the 

wire would become exposed in the described manner and would result in an injury of a reasonably serious nature. Under the circumstances I conclude that the violation was "significant and 

substantial" and constituted a serious hazard. Secretary v. Mathies Coal Co., 6 FMSHRC (January 6, 1984). I observe 

that the operator had three previous similar violations and another similar violation the same day. This pattern shows a careless 

disregard on the part of management in preventing violations of 

this nature. Accordingly, I also find the operator to have been 

negligent. The violation was abated in a timely manner. 

Citation No. 1146094 was issued five minutes after the above 

citation for another violation of the same standard, i.e. 30 

C.F.R. § 75.606. In this case, the shuttle car located in the 

belt entry of the east main section was parked on top of its own 

trailing cable. The unchallenged evidence shows that the trailing cable was lying beneath the left rear tire of the shuttle car 

approximately five feet from the rib. The cable had not been 

anchored to keep it out of the roadway and protect it from being 

run over. The remaining facts are the same as existed in connection with the previous citation, noted above. Under the circumstances, I find that the violation has been proven as charged. I 

further find that the violation was "significant and substantial" 

and serious for the reasons already set forth in regard to the 

prior citation. Because of the pattern of previous violations of 
a similar nature, I find that the violation herein was the result 

of a careless disregard for compliance with this standard. The 

violation was abated in a timely manner. 

Citation No. 990131 issued May 4, 1982, charges a violation 

of the standard at 30 C.F.R. § 70.lOO(a) alleging more particularly that the "average concentration of respirable dust based on 

results of five samples submitted by the operator in the working 

environment of designated occupation 044 for MMU012-0 was 2.4 

milligrams per cubic meter exceeding the dust standard of 2.0 

milligrams per cubic meter for this work unit." 

The cited standard reads as follows: "Each operator shall 

continuously maintain the average concentration of respirable 

dust in the mine atmosphere during each shift to which each miner 

in the active workings of each mine is exposed at or below 2.0 

milligrams of respirable dust per cubic meter of air as measured 

with an approved sampling device and in terms of an equivalent 

concentration determined in accordance with § 70.206 (Approved 

sampling devices; equivalent concentrations)." Respondent does 

not dispute the existence of the violation as charged but claims 

that the violation was not "significant and substantial" within 

the meaning of the National Gypsum decision. 

The evidence shows that the respirable dust samples were 

taken from the longwall tailgate operators as required by MSHA. 

The sampling device is placed upon the miners in this occupation 

because it is expected that they will be the ones exposed to the 

highest concentrations of respirable dust. The Secretary argues 

that based upon the British studies in evidence (Ex. P-1), and., 

the testimony of Thomas K. Hodous, M.D., a Board-certified expert 

in internal and pulmonary medicine (Ex.P-2), nearly 1% of the 

miners exposed over a 35 year working period to an average concentration of 2.4 milligrams per cubic meter of respirable dust will 

develop Category 2/1 simple pneumoconiosis or greater if they had 

begun working with normal Category 0/0 X-rays.l 

It is not disputed that pneumoconiosis is a disease of a 

reasonably serious nature. The issue as presented is whether, 

based upon the particular facts surrounding this violation there 

lThe International Labor Organization classifies X-ray evidence 

of simple pneumoconiosis based on the profusion of dots appearing 

on the lung films. There are four major categories from 0 to 3, 

each further subdivided into three categores, 0 to 2. Category 0 

would be a normal f ilrn and Category 3 would indicate a high profusion of dots suggestive of a severe disease process. 

158 
exists a reasonable likelihood that the hazard contributed to 

will result .in pneumoconiosis or massive fibrosis. National Gypsum, supra. In Secretary v. United States Steel Mining Company, 

Inc., 5 FMSHRC , Docket No. WEVA 83-31 (January 30, 1984), I 

found on the particular facts of that case that such a reasonable 

likelihood existed. In that case, five respirable dust samples 

taken on three consecutive days in the cited bimonthly sampling 

cycle from the longwall tailgate operators showed an average exposure of 3.6 milligrams of respirable dust per cubic meter. Based 

on the same British studies cited in this case, Dr. Hodous projected that up to 2.4 per cent of miners starting with normal 

Category 0/0 X-rays exposed over a 35 year working period to that 

concentration of respirable dust would develop Category 2/1 or 

greater pneumoconiosis. The evidence in that case also showed 

that from the 197 samples taken from that occupation over a period of three and one half years, there was an average concentration of respirable dust of 3.12 milligrams per cubic meter. In 

addition, in that case the cited longwall unit had been consistently unable to meet the 2.0 milligram per cubic meter standard 

during its entire history of operation. It was considered to be 

technologically infeasible to operate that unit consistently within compliance of the standard. There was moreover insufficient 

evidence in that case to show whether the high risk tailgate operators were regularly wearing personal protective equipment which 

would have reduced their actual exposure to respirable dust. 

The evidence in this case shows that the Cumberland Mine 

began its longwall operations in February 1980. During 1980, of 

the 118 valid samples taken from the cited occupation, the longwall tailgate operator, the average concentration of respirable 

dust was 1.828 milligrams per cubic meter. The mine operator was 

in violation of the cited standard only once during the year. 

Twenty-nine valid samples taken in 1981 showed an average respirable dust concentration of 1.605 milligrams per cubic meter. In 

1982, there were forty valid samples taken with an average concentration of 2.02 milligrams per cubic meter. The mine operator 

was apparently out of compliance with the standard once that 

year. To the date of hearing in 1983, ten samples had been taken 

showing an average concentration of respirable dust of only 1.30 

milligrams per cubic meter. 

According to longwall miner Gregory King, called as the Secretary's witness, the high risk occupations at the longwall 

(those exposed to the highest concentrations of respirable dust, 

namely the headgate and tailgate operators) customarily wore personal respiratory protection (either Airstream helmets or Dustfoe 

8.8 respirators) about 20% of the time and usually during periods 

159 
of heaviest dust concentration. In accordance with the stipulation of the. parties, if properly worn, the respirators would 

correspondingly reduce the amount of dust inhaled by 20%, representing the time the miners were wearing such protection. It may 

reasonably be inf erred from this evidence that the actual respirable dust inhaled by the tailgate operators, the cited occupation, was about 20% less than the reported concentrations. 

The evidence in this case thus shows that the longwall tailgate operators at the Cumberland Mine have in the past only rarely been exposed to respirable dust concentrations above the 2.0 

milligram per cubic meter standard. There is also a clear record 

at the mine of progressively decreasing concentrations of respirable dust as new dust suppression measures have been taken. No 

violations of the dust standard have been found since 1982 and 

the average concentration of respirable dust since then has been 

below the proscribed level. It may therefore reasonably be inferred that the longwall tailgate operators will continue to be exposed to dust concentrations below the proscribed level and that 

they will continue to use respirators at least part time. Within 

this framework, I find that the assumptions necessary to the risk 

determination made by Dr. Hodous and based upon the cited British 

studies cannot reasonably be inferred in this case. 

Accordingly, on the facts of this particular case, I do not 

find that the cited violation is "significant and substantial" 

nor of high gravity. Inasmuch as the Respondent had been, prior 

to the issuance of the citation ·at bar, operating its longwall 

unit generally in compliance with the 2.0 milligrams per cubic 

meter standard and followed no independent testing procedures, I 

do not find it was negligent in exceeding the prescribed dust 

levels in this instance. 

In determining the appropriate penalties to be assessed in 

this case, I am also considering the evidence that the operator 

has continued to cooperate with the Bureau of Mines in developing 

new dust control techniques at its Cumberland Mine, that it has 

furnished personal protective equipment to each of its mining 

crews, and has since the date of this violation, maintained relatively low respirable dust levels. I also note that the operator 

is large in size and has a moderate history of violations. 

ORDER 

The U.S. Steel Mining Company, Inc., is hereby ordered to 

pay the following civil penalties within 30 days of the date of 

this decision: 

160 
Citation 

Citation 

Citation 

Citation 

No. 

No. 

No. 

No. 

1146090 

1146093 

1146094 

9901311 

(0, 

Gary Melic 

Assistant C 

Distribution: 

<vacated) 

$125 

125 

75 

Judge 

Howard K. Agran, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Louise Q. Symons, Esq., United States Steel Corporation 600 Grant 

Street, Pittsburgh, PA 15230 (Certified Mail) 

Arthur E. Guty, Sr., Chairman, Safety Committee, Local 2300, United Mine Workers of America, 341 Derrick Avenue, Uniontown, PA 

15401 (Certified Mail) 

/nw 

161 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

JAM 3 o \984 

CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 82-13-M 

A.C. No. 04-00010-05028 A 

v. 

ROBERT A. RIEDMAN, 

Respondent 

Crestmore Mine 

DECISION 

Appearances: J. Philip Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Before: 

Enos C. Reid, Esq., Reid, Babbage & Coil, 

Riverside, California, 

for Respondent. 

Judge Vail 

STATEMENT OF THE CASE 

In this proceeding, the Secretary seeks a civil penalty 

against respondent, Robert A. Riedman, (Riedman), for violation of 

section llO(c) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et ~· ll 

Riedman, as mine production supervisor of the Crestmore Mine ., 

for the Riverside Cement Company, Riverside, California, is 

alleged to have "knowingly authorized, ordered, or carried out" 

the alleged violation of 30 C.F.R. § 57.15-5 cited in MSHA 

withdrawal order No. 375785 issued November 1, 1979 pursuant to 

section 107(a) of the Act. The cited regulation requires that 

safety belts and lines shall be worn when men work where there is 

danger of falling; and a second person shall tend the lifeline 

when bins, tanks, or other dangerous areas are entered. The 

1/ 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 civil penalties, 

fines, ••• that may be imposed upon a person under subsections 

(a) and ( d) • 

162 
withdrawal order alleged as follows: 

A serious accident occurred at the Crestmore Mine 

when an employee entered the feed hopper at the 

dynapactor (crusher) to free a bridged material 

hangup. The bridged material broke through dropping 

the employee onto the pan feeder and loose material 

from above came down covering the employee. Safety 

belts, lines and a person in attendance on the line 

were not being used in this dangerous location. 

Riedman denied the allegation. After notice to the parties, 

a hearing on the merits was held in Riverside, California. 

FINDINGS OF FACT 

1. On November 1, 1979, Riverside Cement Company was the 

corporate operator of the Crestmore Mine near Riverside, 

California. Robert A. Riedman was the mine production foreman. 

2. Both Riverside Cement Company and Riedman are subject to 

the Federal Mine Safety and Health Act of 1977 (Transcript at 5 

and 6). 

3. The Crestmore Mine is an underground mine whose principal 

product is limestone for cement. 

4. Riverside Cement Company paid a penalty assessment of 

$5,000 for the violation of C.F.R. § 57.15-5 alleged in withdrawal 

order No. 375785, issued November 1, 1979 (Exhs. P-3 and P-7). 

5. The violation alleged in order No. 375785 was abated 

promptly and in good faith by the corporate operator (Exhs. P-6A 

and 6B). 

6. On October 30, 1979, Richard Trombi, crusher operator, 

was injured while trying to free bridged material in the feed 

hopper at the dynapactor crusher. The crusher is a part of the 

underground mining process. Ore is hauled by trucks to where the 

crusher is located and dumped into a hopper. A pan feeder in the 

bottom of the hopper feeds the material into the dynapactor 

crusher (Tr. at 26-27 and Exh. P-5). 

7. The hopper is a cone shaped bin, approximately 5 by 15 

feet wide at the top, 20 feet deep, and narrowing to 5 by 11 feet 

at the bottom. Material unloaded in the hopper sometimes becomes 

lodged in the hopper and will not drop onto the pan feeder at the 

bottom (Exhs. P-5 and R-1). 

8. On the day of the accident, Trombi and Cliff Palmer 

climbed into the hopper with two sticks of dynamite intending to 

set it off to dislodge some material that had become bridged in 

163 
the bin. The two miners wete standing on the material to place 

the dynamite when the material broke away and caused Trombi to 

fall approximately three to five feet onto the pan feeder at the 

bottom. Also, material above Trombi fell on top of him. 

9. Palmer had been holding onto a rope tied to the top of 

the hopper and used for entering and climbing out of the hopper. 

He was able to avoid dropping to the bottom of the hopper or being 

struck by the material (Tr. at 34 and Exhs. P-5 and R-1). 

10. Trombi suffered back injuries, cuts to his nose and 

mouth, and abrasions over other parts of his body (Tr. at 35). 

11. At the time the accident occurred, Riedman, the corporate 

operator's agent and mine production foreman, was standing on a 

catwalk along the side of the hopper. Riedman was supervising the 

work of Trombi and Palmer in the hopper (Tr. at 56-57 and Exh. 

R-1). 

12. Riedman earns an annual salary of $34,000 (Tr. at 60). 

ISSUES 

1. On October 30, 1979, did the corporate operator fail to 

provide and require its employees to wear safety belts and lines 

when entering the hopper; or have a second person tend the safety 

line in violation of§ 57.15-5 as alleged in the withdrawal 

order? 

2. If so, did Riedman knowingly autho~ize, order, or carry 

out such violation within the meaning of section llO(c) of the 

Act? 

DISCUSSION 

The facts in this case are not in dispute. Richard Trombi 

and Cliff Palmer, employees of the corporate operator, under the 

direct supervision of respondent Robert A. Riedman, climbed into a 

hopper bin to blast loose rock that had become bridged across the 

bottom of the bin and prevented the remaining rock from being fed 

into the crusher. 

In this case, rock had become bridged across the bottom of 

the bin and piled up along the side. Trombi and Palmer climbed 

into the bin and stood upon some of the rock located approximately 

half way down the side of the bin. They intended to use dynamite 

to blast loose the bridged rock. Trombi had just bent over to 

place the dynamite in the rock when the rock broke loose causing 

Trombi to fall to the bottom of the bin and other rock above to 

fall down on top of him. Palmer was holding on-to a rope that was 

tied to the top of the bin which was used to climb in and out of 

1611 
the bin and was able to pull himself free from the falling rock. 

Neither miner was wearing a safety belt or was attached to a life 

line tended by a second person (Exhs. P-1 and R-1). Respondent 

Riedman was standing on a catwalk along side the bin at the time 

the accident occurred, supervising the work being done there by 

Trombi and Palmer (Tr. at 57). 

I find that the above facts show a violation of mandatory 

safety standard 30 C.F.R. § 57.15-5 which provides as follows: 

Mandatory. Safety belts and lines shall be worn when 

men work where there is danger of falling; a second 

person shall tend the lifeline when bins, tanks, or 

.other dangerous areas are entered. 

There can be no dispute that the hopper bin in this case 

should be considered a dangerous area. The actual occurrence of 

Trornbi's fall and the resulting injuries best depict what the 

standard is designed to prevent. 

The only defense presented by respondent Riedman for allowing 

these miners to enter the bin without safety belts or lines is 

that he thought it was safer. Riedman testified that the rock was 

located on the side of the hopper where the catwalk is located and 

the only place where the safety belt could be tied or tended. If 

the miners were wearing safety belts, when the rock fell, the 

miners would have been pulled into it and buried alive (Tr. at 

56). 

I reject this argument as being unrealistic. First, Palmer 

was able to escape by holding onto the rope that was tied to the 

top and used for climbing in and out of the bin. If the location 

of the catwalk was a problem, then other means to handle the task 

were required. No explanation can justify the action of 

management in this case. 

The Commission in secretary of Labor v. Kenny Richardson, 3 

FMSHRC (1981), Richardson v. Secretary of Labor, 609 F. 2d 632 

(1982), review denied, held section llO(c) of the Act to be 

constitutional and enunciated the critical elements which 

constitute a violation of this section. The corporate operator 

must first be found to have violated the Act. Further, if a 

person, such as supervisor, is in a position to protect an 

employee's safety and health and fails to act on the basis of 

information or knowledge or the reason to know of the existence of 

a violative act, he has acted knowingly and in a manner contrary 

to the remedial nature of the statute. 

As to the first element in the Richardson case, supra, the 

facts show in this case that the Secretary proposed the assessment 

of a $5,000.00 penalty against the corporate operator Riverside 

165 
Cement Company, for violation of § 57.15-5 as stated in order No. 

375785. The·corporate operato1 paid the penalty in full (Ex. 

P-7). Payment of a penalty, whether the full amount of the 

proposed assessment or a compromised amount, constitutes an 

admission by the corporate operator that the conditions alleged in 

the citations existed and were violations of the respective health 

and safety standards listed therein as a matter of law. Ranger 

Fuel Corporation, Docket Nos. WEVA 80-56-R, 80-57-R and 80-58-R, 

(February 10, 198l)(ALJ). Eastern Associated Coal Corp. v. 

Secretary, Docket No. WEVA 80-120-R, (May 20, 1980)~ The Valley 

Camp Coal Company, 1 IBMA 196, 204 (1972). 

As to the second element described above, respondent 

Riedman's liability under section llO(c) of the Act for the action 

of Trombi and Palmer turns on whether he knowingly authorized, 

ordered, or carried out such violation. There can be no question 

that he did all three of the above for as the direct and immediate 

supervisor of these two employees, he was present on the catwalk 

along side the bin when Trombi and Palmer entered it without 

safety belts or ,lines. There can be no valid argument in defense 

of Riedman's actions in this case. It must be obvious from the 

precarious position of the two miners in the bin that an accident 

was possible endangering their health and safety. 

PENALTY 

The Secretary originally proposed a penalty of $500.00 in 

this case. At the hearing, he proposed that the penalty be raised 

to $700.00. I find that the facts in this case show beyond a 

doubt that Riedman was negligent in allowing Trombi and Palmer to 

enter the bin without safety belts or lines. The only evidence 

presented to explain the basis for such actions was Riedman's 

opinion that such equipment posed a greater danger than not using 

them. The argument is not accepted as reasonable. If the acts 

posed this kind of danger, other means were required to accomplish 

the task. 

The gravity of the action on the part of Riedman is serious 

as the resultant injuries to Trombi were severe and the 

possibility of death was present. 

Riedman was asked at the hearing by his counsel if the 

payment of a $700.00 penalty would cause a financial hardship? 

Riedman replied: "It won't help any". Riedman earned $34,000.00 

annually at the time of his testimony in this case (Tr. at 58, 

60) • 

I find that the original penalty of $500.00 is appropriate in 

this case. 

166 
CONCLUSIONS 

1. The corporate operatot, Riverside Cement Company, and 

Robert A. Riadrnan, mine production foreman~ are subject to the Act 

and jurisdiction of the Administrative Law Judge in this case. 

2. Riverside Cement Company is a corporation and on October 

1, 1979, violated 30 C.F.R. § 57.15-5 as alleged in withdrawal 

order No. 375785 in failing to require safety belts and lines 

tended by a second person for miners entering bins, tanks, or 

other dangerous areas. 

3. Respondent Robert A. Riedman violated section llO(c) of 

the Act in knowingly authorizing, ordering and carrying out the 

violation alleged in withdrawal order No. 375785. 

ORDER 

The respondent Robert A. Riedman is found to have violated 

section llO(c) of the Act and is ORDERED to pay a penalty 

of $500.00 within 40 days of the date of this decision. 

Distribution: 

~(d( ~~?;;~)- Vir~ ~· Vail 

Administrative Law Judge 

J. Philip Smith, Esq., Office of the Solicitor 

U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, Virginia 22203 

Enos C. Reid, Esq., Reid, Babbage & Coil 

P.n. Box 1300, Riverside, California 92502 

/blc 

167 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JAN 3 0 1984 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

UNITED STATES STEEL 

MINING CO., INC., 

Respondent 

Docket No. WEVA 83-31 

A.C. No. 46-01816-03504 

Gary No. 50 Mine 

DECISION 

Appearances: Howard K. Agran, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, 

Pennsylvania, for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for assessment of civil penalty filed by the Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seg., the "Act," 

for two violations of regulatory standards. At hearing, 

Petitioner requested to modify the pleadings by withdrawing Citation No. 2029554 from the case on the grounds that 

the citation had been vacated before the request for hearing had been filed. Under the circumstances, the Petitioner's request to withdraw the citation is granted. 

Commission Rule 11, 29 C.F.R. § 2700.11. 

The remaining citation at issue, Citation No. 

9914230, charges a violation of the mandatory standard at 

30 C.F.R § 70.lOOCa). Since the Respondent concedes the 

existence of the violation as charged, the only issues 

before me are whether the violation was "significant and 

substantial" as defined in the Act and as interpreted by 

the Commission in Secretary v. Cement Division, National 

Gypsum Co., 3 FMSHRC 822 Cl981), and the appropriate penalty to be assessed. The citation alleges that "[b]ased 

on the results of five valid dust samples collected by the 

operator, the average concentration of respirable dust in 

the working environment of the designated occupation in 

mechanized mining unit 028-0 was 3.6 milligrams [per cubic 

meter] which exceeded the applicable limit [set forth in 

30 C.F.R. § 70.lOOCa)] of 2.0 milligrams [per cubic 

meter]." 

168 
Under the National Gypsum test, "a violation is of 

such a nature as could significantly and substantially 

contribute to the cause and effect of a.mine safety or 

health hazard if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." The Secretary 

contends that there is a reasonable likelihood that exposure to high concentrations of respirable coal dust will 

result in pneumoconiosis, massive fibrosis, emphysema, 

stomach cancer, and chronic bronchitis. It is not disputed 

that these are illnesses of a reasonably serious nature. 

Respirable dust samples taken on three consecutive 

days in the July/August 1981 bi-monthly sampling cycle 

from the longwall tailgate operator at the Gary No. 50 

Mine show an average exposure of 3.6 milligrams of respirable dust per cubic meter. In addition the 197 samples 

taken from that same designated occupation over a period 

of 3-1/2 years (August 14, 1979 to March 7, 1983), show an 

average exposure of 3.12 milligrams of respirable dust per 

cubic meter. It is conceded that the cited longwall unit 

has been unable to consistently meet the 2 milligram per 

cubic meter standard set forth in the regulations and it 

is considered by both parties to be technologically infeasible to operate that unit consistently within compliance 

of the standard.l 

According to Thomas K. Hodous, M.D., a board certified expert in internal and pulmonary medicine, evidence 

exists that demonstrates that continued exposure of coal 

miners to respirable coal dust increases the risk for at 

least five disease processes; namely stomach cancer, emphysema, chronic bronchitis, pneumoconiosis and massive fibrosis. While mortality studies have shown an increased 

incidence of stomach cancer in coal miners, Dr. Hodous 

1 In light of this evidence one must wonder why this longwall unit had not long ago been closed down by MSHA under 

available statutory procedures. See e.g. §§ 104(b), 104(d) 

and 104(e) of the Act. When asked at hearing why closure 

orders had not been effectuated (even after two years of 

noncompliance) the MSHA witness could only respond "That 

was what I didn't want you to ask." While MSHA urges in 

this case a finding that the dust violations are "signif icant and substantial" the oniy real significance of such a 

finding is its effect on triggering withdrawal order 

sequences under sections 104(d) and 104(e) of the Act. The 

finding is accordingly of little value unless MSHA is willing to enforce closure procedures--a willingness it has not 

so far shown. 

169 
acknowledged that the relationship between exposure to 

respirable dust and stomach cancer is yet unproven. In 

addition, while pathological evidence of "rather marked 

emphysema" among coal miners also exists, the relationship 

between dust exposure and this disease has similarly not 

been conclusively established. Dr. Hodous opined, however, that there is sufficient evidence to support the 

view that miners with individual susceptibilities have a 

higher risk of suffering stomach cancer and emphysema as a 

result of exposure to coal dust. 

According to Dr. Hodous, chronic bronchitis can also 

result from dust exposure including exposure to nonrespirable dust i.e. dust particles larger than 5 microns 

in size. According to the studies cited by Dr. Hodous, 

coal miners may suffer chronic bronchitis in a matter of 

24 months. The disease leads to coughing and phlegm production and in ·some cases increased pulmonary infection. 

In severe cases, cough syncopy may develop wherein the 

cough is so severe that the individual may faint. 

The fourth illness described by Dr. Hodous as resulting from exposure to respirable coal dust is coal workers 

pneumoconiosis. More specifically, pneumoconiosis is a 

lung disease caused by the deposition of respirable coal 

dust on the lung and the body's reaction to it. Exposure 

to respirable dust over a period of years results in the 

accumulation of coal particles into what are called macules 

surrounding the spots of coal in the terminal airways and 

the air sacs of the lung. Continuous exposure to coal dust 

may cause the condition to spread and involve most parts of 

the lung. The condition may worsen to progressive massive 

fibrosis involving the destruction of alveoli and distortion of the remaining lung tissues. While simple coal 

workers pneumoconiosis is usually asymptomatic, progessive 

massive fibrosis or complicated coal workers pneumoconiosis 

ordinarly causes shortness of breath and cough. It can 

also cause severe pulmonary impairment and early death. 

There is no known treatment which can reverse the disease 

process of these impairments. However, in the case of 

simple pneumoconiosis, removing the afflicted person from 

the offending exposure will prevent further progression. 

In the case of massive fibrosis, however, lung deterioration may continue without continued exposure to coal dust. 

According to Dr. Hodous, several studies from British 

pneumoconiosis field research correlate the degree of exposure experienced by coal miners with the probability of 

contracting pneumoconiosis. The first is a study entitled 

"The Relation Between Pneumoconiosis and Dust Exposure in 

British Coal Mines" authored by Jacobsen, Rae, Walton and 

Rogan, (Exhibit G-6). The second is a follow-up study 

170 
entitled "Coal Worker's Simple Pneumoconiosis and Exposure 

to Coal Dust at Ten British Coal Mines" published in 1982, 

by the British Journal of Industrial Medicine (Exhibit G-8). 

From these studies a graph was developed depicting the probabilities of developing Category 2/1 or higher pneumoconiosis after exposure to various mean dust concentrations over 

an average working lifetime of 35 years. 2 The studies 

have shown that 15 percent of the miners who have contracted 

2/1 pneumoconiosis can also be expected to develop progressive massive fibrosis over the subsequent 10 years. Based 

on these studies, Dr. Hodous calculated that among healthy 

miners exposed over a working lifetime to the dust levels 

evidenced in this case 1.7 percent to 2.4 percent will 

develop Category 2/1 or greater pneumoconiosis. As previously noted, a miner with 2/1 pneumoconios~s with continuing dust exposure has a greatly increased risk of 

developing progressive massive fibrosis, a disease that can 

result in severe pulmonary impairment and early death. 

Respondent challenges the probability assessment in 

this case on the grounds that it is based upon unreliable 

data in the cited British studies. There is no evidentiary 

basis, however, for the challenged reliability. It is no 

more than a bald unsupported allegation. Moreover the 

expert testimony of Dr. Hodous affirmatively corroborates 

the reliability of the studies. Respondent also argues 

that Dr. Hodous' conclusions are based on invalid assumptions regarding future work experience of miners in the 

Gary No. 50 Mine. While the specific longwall mining unit 

cited in this case may not be in continuous operation and 

may not continuously expose the same miners to the same 

excessive levels of respirable dust evidenced in this case, 

I find that the evidence is sufficient from which probability estimates may reasonably be inferred for the limited 

purpose of determining whether or not the cited over-exposure 

is "significant and substantial." 

Finally, Respondent argues that Dr. Hodous' projections do not take into consideration that 50 percent of the 

miners at the cited mine were wearing personal protective 

equipment. Even assuming, however, that this representation was correct and that the alleged protective equipment 

brought actual exposure levels to the prescribed limits, it 

is apparent that the remaining 50 percent of the miners 

2 The International Labor Organization classifies x-ray 

evidence of simple pneumoconiosis based on the profusion 

of dots appearing on the lung films. There are four major 

categories from 0 to 3 each further subdivided into three 

categories 0 to 2. Category O would be a normal film and 

Category 3 would show a high profusion of dots indicating 

a severe disease process. 

171 
were nevertheless unprotected. More particularly there is 

no evidence that the miners in the cited high risk occupation wore such protective equipment. 

Accordingly I am satisfied that under the particular 

facts surrounding the violation cited in this case, including a long history of over-exposure to respirable dust and 

the expectation of future over-exposures in conjunction 

with the studies demonstrating a correlation between long 

term exposure to respirable dust and pneumoconiosis, I 

find that there does indeed exist a reasonable likelihood 

that the cited exposures in this case significantly and 

substantially contribute to the reasonably serious illness 

coal worker's pneumoconiosis. The uncontested testimony 

of Dr. Hodous that continuing coal dust exposure increases 

the risk of chronic bronchitis and, for susceptible individuals, of emphysema and stomach cancer also supports the 

inference that it is reasonably likely that the cited exposure significantly and substantially contributes to these 

reasonably serious illnesses. The violation herein is 

accordingly "significant and substantial." within the meaning of the National Gypsum decision. See also Secretary 

v. Consolidation Coal Co., 5 FMSHRC 378 (1983), (Judge 

Broderick) pet. for review granted April, 1983; and 

Secretary v. U.S. Steel Mining Co., 5 FMSHRC 46 (1983) 

(Judge Kennedy). 

In determining the amount of penalty to be assessed 

in this case, I consider that the violation was serious as 

demonstrated by the above discussion. Based on the long 

history of excessive dust levels in this section of the 

Gary No. 50 Mine, and the inability of the Respondent to 

operate the cited longwall unit in continuous compliance 

with the respirable dust standard, I must find that the 

Respondent fully expected to operate in violation of that 

standard. At the same time, I recognize that the Respondent has been working with MSHA technical support staff 

and has been making extraordinary efforts at some expense 

to bring this and other longwall units into compliance 

with the regulation. The Respondent has also, in recognition of its inability to bring the longwall unit into compliance, furnished personal protective equipment for the 

mining crew. Under all the circumstances, I find that a 

penalty of $250 is appropriate. 

172 
ORDER 

The U.S. Steel Mining Company, Inc., is hereby 

ordered to pay a civil penalty of $250 within 30 days of 

the date of this decision. t; .. 

J

-' i. .fl~ () i\~·Jv ; v 

Gar Meltk ~.\. ~/<.A..{/~. 

Assist~~t Chief ~ministrative Law Judge 

Distribution: u· 

Howard K. Agran, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 

Market Street, Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., 600 Grant Street, Pittsburgh, PA 

15230 (Certified Mail) 

/fb 

173 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 80-111-M 

A.C. No. 05-03431-05001 

v. 

Alcott Pit 

SOUTHWAY CONSTRUCTION COMPANY, 

Docket No. WEST 81-295-M 

A.C. No. 05-03586-05001 BY2 

INC., 

Respondent Sargents Pit 

DECISION 

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

u. s. Department of Labor, Denver, Colorado, 

Before: 

for Petitioner; 

J. o. Lewis, Esq., Alamosa, Colorado, 

for Respondent. 

Judge Carlson 

These two cases, consolidated for hearing, arose out of 

inspection of respondent's gravel pits and crushing operations. 

The cases were heard at Pueblo, Colorado, under provisions of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~· 

(the "Act"). The Secretary seeks civil penalties for seven alleged 

violations of safety standards promulgated under the Act. 

The parties waived the filing of post-hearing briefs. 

ISSUES 

The questions to be decided are: 

(1) Whether respondent's operation constituted 

"mining" within the contemplation of the Act. 

(2) Whether respondent's operation affected 

commerce within the contemplation of the Act. 

(3) If respondent was covered by the Act, whether 

it committed the violations alleged, and if so 

what civil penalties are appropriate. 
THE MINING ISSUE 

All testimony in this case was provided by two federal 

inspectors • .!/ Counsel for Southway Construction Company, Inc. 

(Southway) called no witnesses, and was content to cross examine 

the inspectors. The undisputed evidence showed that respondent, 

at the times of inspections, was extracting river rock and gravel 

from natural deposits forming a bench along a stream bed. The river 

rock, in formation, was sufficiently loose to be removed directly 

by the buckets or scoops of front-end loaders. The product was 

screened on the site to separate small, gravel-size rock, which 

needed no further processing, from larger stones which required 

crushing to make aggregate. 

Section 3(h)(l) defines a "coal or other mine" as "an area 

of land from which minerals are extracted in non-liquid form .••• " 

This definition must be given a broad reading. Cyprus Industrial 

Minerals Corporation, 3 FMSHRC 1 (1981). Sand and gravel pit 

operations clearly fall within the definition. Marshall v. Wallock 

Concrete Products, Inc., (U.S. District Court for the District 

of New Mexico), 1 MSHC 2237 (1980); B & N Construction, Inc., 

3 FMSHRC 427 (1981) (ALJ). 

I therefore hold that the Southway operation was a "mine" 

within the meaning of the Act. 

THE COMMERCE ISSUE 

Southway denied that it was engaged in an enterprise affecting 

commerce, and put the government to its proofs upon that issue. 

The government undertook to supply those proofs by showing that 

Southway provided crushed rock or aggregate to the Colorado State 

Highway Commission for use in highway construction; that Southway 

used equipment manufactured outside the State of Colorado; and that 

Southway used the telephone, an instrument of interstate commerce, 

in the conduct of its business. 

The Act covers all mines "the products of which enter commerce or the operations or products of which affect commerce." 

80 U.S.C. § 803. This language gives the widest jurisdiction 

obtainable under the commerce clause of the Constitution. 

Brennan v. OSHRC, 492 F.2d 1027 (2d Cir. 1974). 

1/ The transcript of the evidentiary hearing was of lamentable 

quality. Despite the frequent errors, the substance of the testimony 

was preserved and neither party sought corrections. Therefore no 

correcting orders are entered. 

1.75 
Inspector Leo Garcia inspected the Southway's Alcott pit on 

June 28, 1979 .• The aggregate produced at the site, he testified, 

was being trucked to the City of Delta, Colorado, for use in a 

street resurfacing project. 

The evidence shows that Southway closed down its Alcott 

operation shortly after Garcia's inspection and moved to a location 

known as the Sargents pit. Inspector Porfy Tafoya inspected that 

location with another MSHA inspector on September 4, 1979. This 

site was also adjacent to a waterway. Tafoya testified that the 

foreman acknowledged that Southway was crushing aggregate for the 

Colorado Highway Department. He further testified that the Highway 

Department had representatives at the site and that he observed the 

aggregate being hauled away in Highway Department trucks. None of 

this evidence was challenged. 

It has long been clear that even businesses which sell their 

product within a single state fall within the broadest application 

of the commerce power. This is so because of the cumulative impact 

of small producers upon interstate transactions. Wickard v. Filburn, 

317 U.S. 111 (1942); Fry v. United States, 421 U.S. 542 (1974}. 

Respondent's affect on commerce is doubly clear in this case 

because its aggregate product was used in the construction of public 

roads and highways which play an inevitable part in interstate 

transportation, B.L. Anderson, Inc., 3 FMSHRC 1019 (1981} (ALJ), 

aff'd. sub nom B.L. Anderson, me. v. FMSHRC, 668 F.2d 442 (1982); 

John Petersen, d/b/a Tide Creek Rock Products, 4 FMSHRC 2241, 2247 

( 19 8 2) ( ALJ) • 

Moreover, Inspector Tafoya testified that he ascertained 

that several of the pieces of heavy mobile equipment used in the 

pit were manufactured outside of Colorado. His knowledge was based 

upon up-to-date listings maintained by MSHA in connection with its 

licensing and approval of mining equipment. Familiarity with 

such information, he indicated, was essential to the performance 

of his duties. Under such circumstances the information is 

inherently credible, and not subject to exclusion under the 

hearsay rule as respondent contends. Use of equipment which 

has moved in interstate commerce affects commerce within the 

meaning of the Act. Avalotis Painting Company, 9 OSHA 1226 (1981}; 

United States v. Dye Construction Company, 510 F.2d 78 (10th Cir. 

1975}. 

The Secretary also attempted to show that Southway used a 

telephone in the conduct of its business, a further indication 

of commerce. That issue is not further examined here since other 

evidence plainly shows that the Southway enterprise "affected 

commerce." 

178 
THE VIOLATIONS 

Docket No. WEST 80-111-M (The Alcott Pit) 

Citation 327198 

At the Alcott Pit, Inspector Garcia saw several oxygen cylinders 

on the floor of the pit. The cylinders, he testified, were upright 

and unsecured by ~traps or wires. Gauges showed the cylinders to be 

full. He cited this condition as a violation of the safety standard 

cited at 30 C.F.R. § 56.16-5 which provides: 

Compressed and liquid gas cylinders 

shall be secured in a safe manner. 

The inspector indicated that the nearest employee, approximately 

15 feet away, was operating a crusher. Immediately upon citation, 

Southway moved the cylinders up against a trailer, and secured them. 

The danger presented by unsecured cylinders, the inspector stated, 

was that if they were accidently tipped or turned over, the gauges 

could break, creating a possibility of ignition, or the cylinders 

themselves could "shoot out," propelled by the liberated gasses. 

These facts, all undisputed, clearly establish a violation of 

the cited standard. 

The inspector, in his citation, classified the violation as 

"significant and substantial." That statutory term was defined in 

Cement Division, National Gypsum Co., 3 FMSHRC 822 (1981), where 

the Commission held that it applied to those violations in which 

there exists "a reasonable likelihood that the hazard contributed 

to will result in an injury or illness of a reasonably serious 

nature." Respecting this citation, the inspector testified that 

he did not now consider th.at the violation qualified as significant 

and substantial under the National Gypsum test. Counsel for the 

Secretary joined in that view and moved to amend the charge to 

eliminate the significant and substantial designation. 

Although this judge has in the past had occasion to scrutinize 

such motions closely, the Secretary's reappraisals will be accepted 

in this case since the original penalty assessment amounts were quite 

small - an indication that the violations were relatively minor. 

177 
The civil penalty sought by the Secretary is $24.00. The 

parties stipulated to several of the factual elements which go 

toward determination of penalty for all violations in this 

proceeding. Southway's operation was small, and at the time of 

Garcia's inspection it had no history of violations. The evidence 

showed that all violative conditions were abated immediately. 

Respondent's good faith was not challenged. 

As to this particular violation, workers exposure to the 

hazard of the unsecured oxygen bottles was minimal. Under 

all the circumstances only a light penalty is justified. The 

originally proposed penalty of $24.00 is light, however, and I 

deem that amount appropriate. A penalty of $24.00 is therefore 

assessed. 

Docket No. WEST 81-295-M (The Sargents Pit) 

Citation No. 326265 

Inspector Tafoya testified that he observed that insulation 

on a splice on a 480 volt electrical cable furnishing power to 

a conveyor motor was inadequate, exposing the interior wires of 

the cable. The area of which he complained was very near the 

point at which the cable entered the motor case. ~lso, the 

bushing designed to protect the cable from wear and the effects 

of vibration where it entered the motor casing was not in the 

proper place. It therefore offered no protection to the cable. 

These conditions caused the inspector to charge a violation of 

30 C.F.R. § 56.12-8, which, as pertinent here, provides: 

Power wires and cables shall be insulated 

adequately where they pass into and out of 

electrical compartments. Cables shall enter 

metal frames of motors, splice boxes, and 

electrical compartments only through proper 

fittings. 

The inspector maintained that the cable presented a hazard 

of electrical shock or electrocution to any of the four employees 

who might for any reason touch the cable or the motor housing. I 

hold that this uncontradicted testimony establishes the violation 

alleged. The cable was neither adequately insulated, nor was the 

fitting at the engine cover "proper". 

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The inspector maintained that this violation was significant 

and substantial as the original citation alleged. He feared that 

the combination of the defective splice and the misplaced bushing 

could lead to electrocution or severe shock. Four employees were 

potentially exposed to this hazard, and he singled out a worker 

doing clean-up in the immediate area of the belt. I agree with 

the inspector's assessment, and conclude that the violation carried 

with it the reasonable likelihood of injury of a reasonably serious 

nature. It was therefore properly classified as significant and 

substantial. 

The Secretary seeks a penalty of but $40.00. Giving due 

consideration to the penalty criteria discussed earlier, together 

with the gravity of the violation, a $40.00 penalty is surely not 

excessive. The proposed amount will therefore be assessed. 

Citations 326266 and 573521 

These two citations represent virtually identical conditions 

on two separate conveyor systems at the pit. On each conveyor 

Inspector Tafoya observed take-up pulleys with exposed or unguarded 

pinch points. The exposed pinch points on both machines were 

situated ·about four or five feet above ground level. Neither 

danger point was protected by any natural obstruction which would 

tend to isolate employees from contact. The inspector acknowledged 

that no employees were working in proximity to the pulleys at the 

time of his visit, but observed that clean-up of conveyor spillage 

would necessarily be done in the immediate area from time-to-time. 

Unwary workers, he indicated, could have clothing caught up in the 

pinch point, with resulting personal injury. He cited these 

conditions as violations of 30 C.F.R. § 56.14-1, which provides: 

Gears; sprockets; chains; drive head, tail 

and take-up pulleys; flywheels; couplings; 

shafts; sawblades; fan inlets; and similar 

exposed moving machine parts which may be 

contacted by persons, and which may cause 

injury to persons, shall be guarded. 

The facts establish violations. Here again the violations were 

originally charged as significant and substantial, but the 

Secretary moved at trial to delete that designation owing to the 

inspector's belief that the circumstances did not meet the National 

Gypsum test. The inspector's view was apparently based on the 

fairly remote poss~bility that workers would be near the danger 

area presented by the pulleys. While the validity of that view may 

be arguable, I am not disposed to quibble with it in a case of this 

magnitude. The violations will not be deemed significant and 

substantial. 

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The Secretary seeks a civil penalty of $40.00 for each 

violation. Since I see no useful distinction between the 

penalty-related facts affecting these violations and those 

affecting the oxygen bottle citation discussed earlier, consistency suggests the same result here. Consequently, a civil 

penalty of $24.00 will be assessed for each. 

Citations 573520 and 573522 

While at the site, Inspector Tafoya determined that two 

pieces of heavy mobile equipment were operating without audible 

reverse signal alarms. Both machines, a front-end loader and a 

Caterpillar bulldozer, were equipped with such automatic devices. 

On both machines, however, the alarms were out-of-order. The 

inspector also testified that operators of the machines had 

obstructed views to the rear, and that while he watched backing 

maneuvers, neither operator was provided with an observer to 

signal when the way was clear. Tafoya cited these conditions 

as violations of 30 C.F.R. § 56.9-87, which provides: 

Heavy duty mobile equipment shall be 

provided with audible warning devices. 

When the operator of such equipment has 

an obstructed view to the rear, the 

equipment shall have either an automatic 

reverse signal alarm which is audible 

above the surrounding noise level or 

an observer to signal when it is safe 

to back up. 

The inspector indicated that there was no employee foot traffic 

in the area of the cited equipment while he watched. There were, 

however, no impediments to the presence of workers, and there was 

thus a "potential" for endangerment. The evidence shows that the 

alleged violations occurred. 

The Secretary seeks a penalty of $36.00 for each reverse 

alarm violation. Even if not significant and substantial, I consider these violations of greater gravity than those for which 

lesser penalties have been assessed herein. Large pieces of mobile 

equipment need functioning back-up alarms whenever there is any 

possibility of foot traffic on the pit floor. The $36.00 penalty 

amounts will be affirmed. 

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Citation 573523 

The inspector described four electrical boxes located in 

Southway's generator trailer which controll~d electrical current 

to a variety of equipment in the pit, including the conveyors and 

crushers. None of these boxes, he testified, was labeled to show 

which piece of equipment it controlled. This condition caused him 

to cite the respondent for violation of 30 C.F.R. § 56.12-18, which 

provides: 

Principal power switches shall be labeled 

to show which units they control, unless 

identification can be made readily by 

location. 

The inspector acknowledged that the foreman of the operation 

and the other three employees probably knew the purpose of each box. 

He nevertheless pointed out that in the event of an emergency persons 

other than employees might need to deenergize a particular circuit 

without delay or any need for study or experimentation. 

The requirement of the standard is unconditional; the violation 

was proved. 

The Secretary does not retreat from his original position that 

the violation was significant and substantial. Curiously, however, 

the proposed penalty at $22.00 was smaller than that for any other 

violation in this proceeding. While the condition of the control 

boxes was clearly violative of the standard, I find the likelihood of 

an accident, and hence any injury, quite remote under the facts of 

record. I must therefore hold that the Secretary failed to establish 

the significant and substantial element of the charge. 

The $22.00 penalty proposed is appropriate and will be assessed. 

CONCLUSIONS OF LAW 

Consistent with the facts found true in the narrative portions of 

this decision, the following conclusions of law are made: 

(1) Southway was engaged in "mining" under the Act and its 

mining operations and production affected commerce. 

It was thus subject to the Secretary's enforcement 

jurisdiction. 

(2) Southway violated the safety standard published at 

30 C.F.R. § 56-16.5 as alleged in citation 327198 in 

Docket No. WEST 80-111-M. The violation was not 

significant and substantial within the meaning of 

the Act. A civil penalty of $24.00 is appropriate. 

181 
(3) Southway violated the safety standard published at 

30 C.F.R. § 56.12-8 as alleged in citation 326265 

in Docket No. WEST 81-295-M. The violation was 

"significant and substantial" within the meaning 

of the Act. A civil penalty of $40.00 is appropriate for the violation. 

(4) Southway violated the safety standard published at 

30 C.F.R. ~ 56.14-1 as alleged in citations 326266 and 

573521 in Docket No. WEST 81-295-M. The violations 

were ·not "significant and substantial" within the 

meantng of the Act. A civil penalty of $24.00 is 

appropriate for each violation. 

(5) Southway violated the safety standard published at 

30 C.F.R. § 56.9-87 as alleged in citations 573520 and 

573522 in Docket No. WEST 81-295-M. The violations 

were not "significant and substantial" within the 

meaning of the Act. A civil penalty of $36.00 is 

appropriate for each violation. 

(6) Southway violated the safety standard published at 

30 C.F.R. § 56.12-18 as alleged in citation 573523 in 

Docket No. WEST 81-295-M. The violation was not 

"significant and substantial" within the meaning of 

the Act. A civil penalty of $22.00 is appropriate 

for the violation. 

ORDER 

Accordingly, all citations, as modified herein, are ORDERED 

affirmed, and the respondent Southway shall pay to the Secretary 

of Labor civil penalties totalling $206.00 within 30 days of the 

date of this order. 

Distribution: 

John A. Carlson 

Administrative Law Judge 

Robert J. Lesnick, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building, 

1961 Stout Street, Denver, Colorado 80294 (Certified Mail) 

J. o. Lewis, Esq., 703 3rd Street, P.O. Box 1033 

Alamosa, Colorado 81101 (Certified Mail) 

/ot 

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