**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OF THEADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIAAVE., N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE:202-434-9933

FAX: 202-434-9949

 

 

**DECISION**

 

            This matter involves acomplaint of discrimination arising under Section 105(c)(3) of the Mine Act. 30U.S.C. § 815(c)(3). For the reasons which follow, the Court finds thatRespondent Rockwell Mining discriminated against Complainant Cecil Matney, Jr.by virtue of repeated violations of the requirements of Part 90 and that as aconsequence the Secretary should consider seeking a civil penalty for thoseviolations. 

 

            Apart from the Part 90violations, the Court finds that Mr. Matney suffered no financial loss inconnection with a short-lived and non-malevolent clerical error associated witha bonus. Further, the Court finds that Matney is not entitled to his claim ofcompensation for any supplemental income from Saturday work for two reasons: Heis a salaried employee and has been paid in full per that salary, and assumingarguendo that he was entitled to Saturday pay while on the mine’s decision toplace him on paid leave of absence, he failed to meet his burden of proof toestablish with any precision those Saturdays he would have worked had he notbeen on the extended leave of absence from his section foreman position.

 

**Introduction:Cecil Matney’s Discrimination Complaint**

** **

            The Respondent has stipulatedthat Mr. Matney is a Part 90 miner. Tr. 6. Briefly stated, Matney’s complaintbegan upon submitting his statement to MSHA on September 26, 2022. Thestatement initially alleged[1]that he was not afforded the same pay raise as other similarly situatedforemen, but it was later amplified to include allegations of exposure toexcessive dust in violation of the protections afforded under Part 90. Complaintat 10. Thereafter, on October 10, 2022, he signed his statement. On November23, 2022, MSHA issued a letter to Matney stating that it investigated hiscomplaint but determined that there was not “sufficient evidence to establishby a preponderance of the evidence that a violation of Section 105(c) occurred.... However, [MSHA informed that Matney] continue[s] to have the right to file adiscrimination case on [his] own behalf with the [Federal Mine Safety andHealth Review] Commission.”November 23rdletter at 1. Mr. Matney did just that, filing this Section 105(c)(3) claimpresently before this Court.

 

            On December 23, 2022, Matney,through his legal counsel, filed his formal 105(c)(3) complaint. That documenttracked his 105(c) statement, as outlined above. Per the second element in hisstatement, the Complaint asserts that the mine “fail[ed] to maintain Mr. Matneyat all times in a work environment that complies with the respirable duststandards for Part 90 miners.” Complaint at 1. The relief sought in theComplaint is for the Mine Review Commission to 

 

find that theRespondents did violate Section 105(c)(1) of the Mine Act, 30 U.S.C. Section815(c)(1) through their interference, discrimination, and retaliation inreference to his Part 90 rights, that MSHA issue an appropriate citation, andthat the Commission enjoin Respondents from further discrimination andinterference, and further relief as set forth herein.

 

*Id.*

* *

*           *Matney asserted inhis complaint that 

 

when he is notbeing sampled, he does not receive comparable help. Consequently, he isrequired to perform excessively dusty job tasks that he is not required toperform while his dust [sampling] pumps are running [on him]. Matney just wantsthe same number of people assigned to him at all times, on the section, as whenhe is wearing the dust sampling pumps. Or alternately, he requests that hemoved to an outby or outside location that complies with the applicable dustlimits at all times.

 

Complaint at 4.

 

            As will be discussed,ultimately Rockwell did take the appropriate action, as required by Part 90, bymoving Mr. Matney to outside work at the mine. 

 

**Theessence of Matney’s complaint has two aspects:**

 

**First,Matney asserts that the company withheld a pay full raise from him that theyafforded to all section foreman at the mine.**

 

**Second, he asserts that the companyinterfered with his Part 90 rights by failing to transfer him to a job thatcomplies with the dust exposure limitations for Part 90 miners.**

 

Matney assertsthat his initial dust sampling was not representative of the work on his shiftbecause he was told to refrain from his normal tasks when wearing a dust pumpbut that, when not being sampled, he is required to do the dusty jobs on his section.[2]He asserted that the mine provided the help he needed to do his job only whenhe was wearing a dust pump.

** **

**Findingsof Fact**

 

            Cecil Matney Jr. is 49 yearsold. He has more than 24 years of employment with underground coal mining. Hisemployment with Rockwell began with its Black Oak Mine. In late 2020, or early2021, he began working where he is currently employed, at Rockwell’s GatewayEagle Mine. He was hired as a non-production move foreman on the mine’s thirdshift. Tr. 34-36.  In sum, his work consisted of fire bossing,[3]rock dusting and periodic roof bolting. Later, his job was changed toproduction foreman. Tr. 46. In March 2022, his health was deteriorating and hebecame eligible for Black Lung benefits. At that time he requested a return tohis prior job on the third shift, that move was for the purpose of reducing theamount of dust he would be inhaling. Tr. 50. His supervisor, Shannon Dolin,tried to dissuade him from returning to his former position, but Matney toldhim his 

 

health is notgoing to get no better walking across the section. Being downwind of theseminers every two hours, it's killing me. I literally could hardly breathe, andI was spitting up blood and coughing up -- I had to do -- I had to do somethingto make a difference.

 

*Id*. 

 

 

 

**Matney’sReturn to the Move Crew Foreman position.**

** **

            Following a talk with thegeneral mine foreman, Scott Thompson, Matney was reassigned to his former jobas the move crew foreman.[4]However, the return to that third shift position still presented too much forhim and consequently on June 25, 2022, he then exercised his Part 90 transferrights. Tr. 51-52. At some point in early July 2022 the mine was notified thatMatney had elected Part 90 status. Tr. 138. At the end of the first week ofJuly, he was then deemed a Part 90 miner and was so informed of that status bythe mine’s safety director, Bill Hardin. Tr. 57.

 

            The mine then ran testsamples, also referred to as ‘engineering samples’[5]on Matney; two were done on the section and one was outby. Tr. 138-140. Dolin,Matney agreed, told him that he [Matney] would remain on the section as themove crew boss, telling him to take care of himself. Tr. 140. Matney agreedthat following that, the mine ran the regular quarterly samples on him in July2022. *Id.*

 

            However, the return to themove crew foreman position was not a panacea. Matney informed that he still hadto conduct the fire boss run[6]every two hours.  And, he still had to rock dust the section and he still hadto operate the roof bolt machine periodically. Tr. 54. This prompted him tostart a journal reflecting the tasks he had to perform though he was then a   Part90 miner. Complainant’s Ex. 1 is a copy of Matney’s Journal,[7]reflecting the tasks he had to perform after becoming a Part 90 miner. 

 

            Matneyfirst wore a dust pump to measure his dust exposure on July 21, 2022. Themine’s safety director, Bill Hardin, was with him then and Matney was told thatthe mine was going to keep him outby that night. While Matney was making beltsplices and installing bottom rollers, Hardin told him that work was too dusty.Matney asserted that when wearing the pump he was told to “take care” of it andthe mine only wanted him to walk across the faces. Tr. 59. Matney’sinterpretation of the “take care of the pump” remark was that it was made forthe purpose of making sure the dust sample would show compliance, aninterpretation supported by his claim that he “was even told on occasions to goto the intake and sit in fresh air.” *Id*. 

 

            The Court finds Matney’s claimabout being directed to sit in fresh air to be credible. Matney contended that,when he was being dust sampled, management provided somebody else to performthe rock dusting duties for him or they wouldn’t dust. Tr. 60. On that July 21st dust pump test, he was not working downwind ofthe roof bolting machine, nor did he spread rock dust, nor did they cut bottom.Thus, Matney contended that his work activities when wearing a dust pump werenot representative of his dust exposure. Tr. 67. 

 

            OnJuly 28, 2022, Matney’s exposure to respirable dust was measured at .667, anamount over the allowable limit. Tr. 84. According to Matney, his journalentry for July 28-29 recorded that Hardin was with him that evening when hemoved belt, and that for the next night, July 29, Matney cleaned faces, workedon ventilation, and hung cables. *Id.* The dust pump failed that nightwhen he was doing those tasks. Tr. 85.

 

            In further support of hisclaim that things were different when being dust sampled from times when nosampling was being made, Matney asserted that there were instances when he wasnot wearing a dust pump and he refused to spread rock dust. His decision torefuse that task was based on how much dust he’d inhaled that night. There werealso instances when he requested someone to rock dust, but no one was sent, andhe would not rock dust. Matney asserted that there were several such occasionswhen management told him that he will rock dust. Thus, it was an order for himto rock dust. Matney stated that mine superintendent Shannon Dolin told himthat, emphatically. Tr. 60. According to Matney, Dolin “pointed his finger in[his] face and told [him] that [he] would rock dust every night and grabbed hishair and shook his head.” Tr. 61. This instance of a command occurred afterMatney had been designated as a Part 90 miner.[8]*Id.*       The Court credits Matney’s account. 

* *

            Matney’s stance was that,unless he had sufficient help, his job was incompatible with being a Part 90miner. Tr. 62. This is because he would be downwind of many tasks such as roofbolting, drilling, cutting or trimming bottom, and rock dusting. *Id.*It ishelpful to visualize the effect of being downwind:

 

 

*Laboratory and Field Testing* (Figure 2), *inMobile Dry Scrubber Provides Cleaner Air for Downwind Roof Bolter*, The National Institute for Occupational Safetyand Health, https://www.cdc.gov/niosh/mining/content/dryscrubber.html.

 

            These dust-related obstaclesmeant that Matney was unable to complete all his tasks, and he asserted thatmanagement did not take well to that, inquiring why tasks were not done. Tr.64. He maintained that this dust exposure problem was frequent, sometimeslasting all night.  Tr. 65. Matney stated, and the Court notes that this isundisputed, that upon his return to the move crew foreman position, there wereoccasions when his crew was short. There was a difference between Matney andthe mine management as to what that meant. To Matney, it meant that he had todo dusty jobs. Matney testified that on such occasions he would have to roofbolt, scoop, and flinger dust.[9]Challenging that claim, mine management contended that if things couldn’t getdone with the crew Matney had, and given his need to avoid excessive dust, thenthose tasks simply didn’t get done. Matney told Shannon Dolin about the problemwith the latter advising that the mine was working on the issue. Tr. 80.

 

            Matney’s Journal reflects thaton August 12th and August 15th, he worked on the section, performing tasks suchas cleaning and dusting, loading out the gob, and operating the bolter. *Id.*Incontrast, the Journal for August 16th reflects that he wore a PDM[personal dust meter] ‘dust pump,’ but did not perform roof bolting thatevening. Instead, a ‘red hat’ [i.e. a novice miner] did the bolting so thatMatney could remain in fresh air. Tr. 80-81. The Court finds that this supportsMatney’s assertion that, when wearing a PDM, it was not business as usual, asaccommodations were made for Matney’s known and serious health condition. 

 

            Respondent’s Counselquestioned Matney about his work as the move crew boss during September 2022. Matneyagreed that there were three days in that month, September 22nd, 26th, and the27th, that he was shorthanded or had to do tasks that were dusty. Tr. 150. Matneyinformed that on September 22nd, his crew consisted of himself, two roofbolters, and a scoop/utility man, but that the scoop man was needed outby. Matneyhad no idea why the scoop man was needed outby. *Id*. Regarding September26th and 27th, Matney’s crew consisted of two utility men and two roof bolters,but the utility men were taken outby. Tr. 151. 

 

            On redirect, speaking to hisSeptember 24th - 25th shift, his journal remarks that he had a work order todust a section and that Chris Holstein advised that his two utility men wouldbe outby at that time and Matney would have to dust the section. Tr. 189. Matney’sjournal stated that on September 26th maintenance chief Pete Green relayedHolstein’s message that Matney had to dust. Tr. 189-190. 

 

            With regard to all those threedates, Respondent’s Counsel asked Matney if the reason those miners were movedoutby was important. Matney did not know why the miners were moved outby. *Id*.Still pressing on that issue, Respondent’s Counsel asked if Matney knew if thereason was that a beltline had ripped and had to be replaced. Again, Matneystated he did not recall that. *Id*. 

 

            From the Court’s perspective,those questions did not aid the Respondent’s position, because they supportMatney’s claim that, despite his Part 90 status, he was shorthanded. That themine, as suggested by Respondent’s Counsel, had *important* matters toaddress does not excuse the conditions Matney then faced, shorthanded as hewas. Though witnesses for the mine later testified that if Matney was unable tohave tasks completed, they simply would not get done, the Court finds it difficultto accept that management would have such a cavalier view. This put Matney inan uncomfortable position, virtually a Hobson’s choice,[10]as he would either have to accept that tasks would not be done, or he wouldhave to do them himself. The Court’s assessment of Matney’s character, throughhis credible testimony, was that he was not built to dismiss tasks. 

 

            Similarly, Matney’s responsesto questions from Respondent’s Counsel concerning events during October 2022support Matney’s position. Matney agreed that, as with the September crewissues, there were three days that month, October 13th, 27th, and 31st, when hewas shorthanded or had red hats and consequently that he personally had to dotasks that were dusty. Tr. 152. For example, on October 13th, Matney had onlyan electrician, a greaser, and a Joy representative on his section. His journalnoted that everyone else was outby working on violations. Tr. 153. Matneydisputed that no work involving cleaning, dusting or roof bolting occurred thatnight, stating that he might not have done flinger dusting but that he ran ascoop and cleaned. *Id.* He maintained that he did ventilation andcleaning on the 13th. *Id.* The Court credits Matney’s account of his workthat evening.[11]Matney agreed with Respondent’s Counsel that MSHA sampled him for dust onOctober 24, 2022. Tr. 155. 

** **

            Matney agreed that forNovember 2022, there were two days for which he was shorthanded and did tasksthat were dusty. Those days were November 1st and 2nd. Tr. 157-158. On November1st, there were only two roof bolters. Matney was unsure if the utility man wasoff work or needed outby, though he conceded that his journal would have notedsuch an absence. *Id.*He also agreed that on November 2nd, he had two redhats to clean and dust, a situation that Respondent’s Counsel characterized as“not a lack of people.” Tr. 158-159.

 

            Respondent’sCounsel then summed up Matney’s position that “from the time [he] elected Part90 as of July 6th or 7th through mid-November, roughly four and a half months,[he] identified eight occasions in [his] journal where [he] purport[ed] toeither have been shorthanded or would have had to work in dusty conditions.” Tr.159. Matney also agreed that on some of those occasions the reason for beingshort-handed could’ve been employees were absent rather than being pulled offof his crew. *Id.*

* *

            On November 15, 2022, Matney’sreceived an order from mine management directing him to stay at home. Tr. 85. Accordingto Matney, this came about because it was time for the mine to conduct thequarterly escapeway walk and, as Matney was the move crew foreman, he had to dothat. Tr. 90. The stay-at-home direction arose from Matney’s inability to walkthe airways out. Tr. 87. The stay-at-home order lasted until March 3, 2023. However,upon returning to work that March he did perform that walk along with ShannonDolin on March 4, 2023. Tr. 90-91. It was Matney’s view that walking the intakeescapeway to the outside would be a dusty experience, with the dust created bythe miners walking the route. Tr. 94. 

** **

            Regarding the mine operator’sdecision to impose a paid leave of absence on Matney for the period of November15, 2022, through March 3, 2023, an approximate leave of some three and halfmonths, Matney agreed that escape drills are required for all miners and thathe informed the mine that he could not perform the drill scheduled for November2022. Tr. 160. 

 

            On direct examination ofRespondent’s witness, Christopher Holstein, who was the section boss at thattime, about the circumstances prompting Matney’s leave of absence, Holstein’srelated that Matney informed him that others would have to do the intake drilland in effect warned that if he had to do it, they would need an ambulance outsidewaiting for him. Tr. 236-237. The upshot was apparently that Holstein had histhird shift fire boss[12]do the task. Tr. 237. Holstein agreed that he was referring to a fire drill andthe weekly intake exam. *Id.*As for the intake examination, that is to bedone once every seven days, with the purpose being to look for hazards. Agreeingwith his Counsel’s description, Holstein stated there was a misunderstanding ofwhat was required by the work list. Tr. 238 and 279. In any event, in asubsequent talk that Holstein had with Shannon about Matney’s reference toneeding an ambulance, Shannon expressed he was “worried about the guys” as it’sthe section boss’ job to get his crew outside. Tr. 239. While Matney was on hispaid leave the mine had Johnny Wriston perform that task with the work crew.*****Id.*

* *

            While Holstein asserted thatall management wanted was to have one of the fire bosses conduct, i.e. ‘boss,’the intake, Shannon Dolin’s testimony contradicted this, with Dolin stating“[t]hey ended up not doing the fire drill.” Tr. 280. Given his remarks, itwould seem that in fact, management did want a fire drill, then backed off. Dolindid understand that Matney had conveyed that he would not be able to do such anescapeway drill and that it was based on his medical condition. *Id.*

 

            In further support of theCourt’s finding that indeed, initially, management did want a fire drill tooccur, was this exchange: “So, at that point, what are you -- what duty do youthink you have towards Mr. Matney?” Dolin responded, 

 

            Well,it kind of makes you -- it worries you, because, you know, if he's not able todo that exam -- or that walk, then once he expressed that and told us, asmanagers, like I said, I go to my bosses. And we had a meeting on it and we decidedthat is putting us in a lot of liability knowing that the man said he couldn'tdo it and we still sent him in there knowing that he said he couldn't walk theintake out. So they decided, as a group, that we needed to get him evaluated. 

 

*Id.*

 

            At that point, the groupdecided that it needed to have Matney take a physical to see if he was capableof doing *a fire drill*.  Tr. 280-281. Matney was then told not to returnto work, though he would continue receiving his pay. As it turned out, Matneynever did have a physical exam before returning from his stay at home with paysuspension. Tr. 314.

** **

            When Matney returned to work,Holstein kept Wriston on the section to help Matney. *Id.* In the Court’sestimation, Wriston’s role was essentially an admission on the part of Rockwellthat Matney could not do his job and still be Part 90 compliant. Holstein thenagreed with Respondent’s Counsel’s words that Matney then made the faces andmanaged the workforce.  Tr. 240. He also agreed that, not long after that,Matney left the third shift. *Id*. Once that occurred Holstein had no moresupervisory role over Matney*. Id.* Holstein flatly denied that he had aconversation with someone in which he asserted that he wouldn’t have givenMatney a ride, nor pick him up somewhere. Tr. 240-241. 

 

            It is reasonable to concludethat Matney’s Part 90 status produced some resentment with management. Matney’sjournal for May 17th reflects that Chris Holstein, then the mine’s shiftforeman, made a remark to others when Matney requested a ride out of the mine,allegedly stating that he [Holstein] “[s]hould have left his [Matney’s] sickold ass walk out.” Tr. 118. While Matney heard about this remark second-hand,the Court finds the claim to be credible. However, the Court does not have toresolve whether Holstein made either of the hostile remarks since, taking thetestimony as a whole, it is reasonable to conclude that Rockwell managementcould not have been pleased with Matney. It’s clear the job wasn’t working outas management had hoped, and as it ultimately realized, as demonstrated by theRespondent’s late-arrived decision to place Matney outside.

 

            Upon the mine’s direction thatMatney return to work in March 2023, he agreed that he was required to make theescapeway drill. This occurred on March 6, 2023, when he walked the escapewaywith Shannon Dolin. Tr. 163. During Matney’s absence Johnny Wriston was onMatney’s section and when Matney returned to work Wriston remained on thesection. *Id.*

* *

*           *When back at work Matney’stasks consisted of making the required checks, doing the fire boss run of thefaces and to pre-shift and make any ventilation changes. Tr. 163-164. Further,Matney agreed that at that time Wriston had largely taken over the other dutieson the section. These included moving belt and power and cleaning and dusting,though Matney qualified the latter tasks as “if [Wriston] had peopleavailable.”[13]Tr. 164. 

 

            Matneywas dust sampled by MSHA on March 13, 2023, with MSHA’s Bill Meddings travelingwith him that day. No mine representative traveled with them that day. Tr. 165.Later in March, (March 23rd) the mine ran PDM’s on Matney. *Id.* Referringto Respondent’s Ex. B, a 19-page compilation of Dust Data Cards, page 9 of thatexhibit, reflects that the sample was over the maximum dust level, coming in at.745. Matney agreed that the exceedance was because the mine was cutting bottomon that date. Tr. 166. Matney discussed with Bill Hardin, from the mine’ssafety department, as to the reason for the exceedance. There was a spike inthe dust during that shift and the two tried to determine what Matney was doingat the time that occurred. Tr. 167. Further regarding the dust sampleexceedance, Bill Hardin advised Matney as to how he should position himselfregarding curtain and ventilation control. Tr. 170.  

 

            Matney stated that uponreturning to work, the mine’s first dust sample of him occurred on March 20,2023. While the dust sample for that day did not exceed the allowable limit,Matney stated that the pump shut off three hours early that day, and thereforethe result did not reflect a full-shift exposure. Tr. 96-98. As mentioned,Matney’s dust sampling for March 23, 2023, recorded at .745, did exceed thelimit, a significant exceedance over the .5 limit. Tr. 99-101. It was Matney’stestimony that on March 23rd he still continued to be required to spread rockdust as move crew foreman and was required to do roof bolting and to performhis fire boss runs. Tr. 106.  

** **

**Asquare peg in a round hole**

** **

            In the Court’s view, thelarger point is that Mr. Matney was again exposed to a dust exposure above themaximum allowable level. The evidence does not show, nor does the Court believethat the mine was purposely exposing Matney to excessive dust levels in any ofthe instances of exceedances, but rather that the mine was not facing up to thefact that, by continuing to have Matney work as move crew foreman on thenon-production shift, it was attempting to fit a square peg in a round hole. Motivesaside, the mine was still not achieving the required level of protection forMatney’s status as a Part 90 miner. As discussed later, eventually, the minerealized this when it reassigned Matney to outside work. It is fair to concludethat Matney’s discrimination complaint eventually brought about the mine’srecognition of the true remedy required. 

 

            On April 4, 2023, Matney’s jobduties changed from foreman to fire boss.[14]Summing up his new arrangement, Matney agreed that his tasks initially were tofire boss the belts, roadways, and the return pumps, and that prior to themine’s corrective action on May 10th, it had removed his duty to check thereturn pumps. Matney elaborated that Scott Thompson stated that he (i.e.Matney) didn’t need to be in the return air course. That left him with theduties of fire bossing the belts and roadways and the weekly airways. Tr. 172. 

 

            Followingthose job duties’ change, he was next tested for dust exposure on May 8, 2023.On that date he fire bossed the belts, and roadways, while wearing a companyPDM dust pump. At the shift’s end the pump read .46 on that occasion. Tr. 109and Ex.2. The following day, MSHA’s Bill Meddings traveled with Matney on hisshift. Matney fire bossed the roadways and belts that night. His dust inhalationthat evening exceeded the maximum exposure, the result coming in at .65. Tr.110. Thus, for his May 9th sample, he was over the .5 standard. The mine tookcorrective action the next day.  Tr. 172-173. That exceedance resulted inreducing Matney’s fire bossing duties to roadways. This corrective actioninvolved removing his fire boss runs on the belts and also changing the routeof travel to fire boss the roadways. The latter involved taking a differenttravel route in order to minimize dust. Tr. 173. This corrective action isreflected in Respondent’s Ex. C. *Id.* With his fire bossing dutiesremoved, Doug Lamb, a shift foreman took over that task. Following that change,Matney wore a dust pump on May 15, 2023, and he fire bossed the roadways duringthat shift.

 

**May24, 2023: A significant change occurs for Matney’s work duties**

 

            A significant change inMatney’s duties occurred starting on May 24, 2023, as he then began greasingthe stacker belt, checking splices in the 1 belt and fueling rides outside.[15]Tr. 120. By Matney’s account, the belt splice checking duty still exposed himto excessive dust. He conceded however that the mine had since been wateringthe roadways heavily, to reduce dust. Tr. 126. Matney had the same viewregarding greasing the stacker,[16]stating that during that task he is hit on his head with loose coal and stuffcoming off the belt while he is greasing it. Tr. 123. The stacker task is doneonce a week and performed completely outside. Fueling up rides is done entirelyoutside too and the office position is on the surface. Tr. 175. 

 

            As for the task of checking abelt for splicing, Matney was assigned to check the No. 1 belt. That beltsticks out of the portal. Tr. 176. This task of checking the belt takes about30 minutes at most. Per his journal, Matney agreed that being exposed to dustwhile checking the splices occurred on one occasion, not other times. *Id*. Matney concurred that as of May 10th, the vast majority of his work has beeneither outside or the mine’s office, which is also outside. Tr. 177.

 

**Thenature of Matney’s duties from Respondent’s perspective.**

 

            Respondent’s first witness,Christopher Holstein, nicknamed ‘Oz,’ was the section foreman[17]at the time Matney began working on the third shift. Tr. 220. After Holsteinwas informed that Matney was a Part 90 miner, mine superintendent Shannon Dolinmet with Holstein and others[18]in the mine office about having Matney “staying out of the dust” and that“[a]nytime the [flinger] duster starts up, [Matney] should be in the intake.” Tr.225. Thus, Holstein stated that anytime the dust flinger was running, Matneywould go to the intake to be in fresh air. *Id*. 

 

            According to Holstein, whenMatney would advise that he “had to do this or had to do that” Shannon wouldtell him “[a]bsolutely not,” and further that this issue “got to the point thathe told [Matney] if he heard of it again, he'd write him [Matney] up.” *Id*.Holstein stated that he expected Matney to “[m]ake sure his faces are firebossed.” Tr. 226. He added that Matney had supervisory authority over anyone onthe section. *Id*. 

 

            Holstein informed that when heworked as a shift foreman, in fact he did pull employees from the move crew towork outby. *Id.* This was for “anything that might not have the minesready to run the next morning.” He agreed with Respondent’s Counsel descriptionof these as “bigger tasks that had to be taken care of.” *Id*. Hedescribed these events as infrequent, “[t]wo, three times a month.” Tr. 227. Whensuch events occurred, Holstein described what he expected Matney to do: “he hasto be in the face every two hours; [i.e. fire bossing, making his runs]... have[the] day shift ready to run. ... I mean, you know, have, you know -- 'causeusually always the bolt men was up there. Have them move the equipment and haveit set up in a new cut or, you know, whatever it has to be.” *Id.*

 

            In the Court’s view,Holstein’s testimony demonstrates that the mine would have “bigger tasks” thathad to be done. The effect was that Matney’s ability to do his tasks would onoccasion take a back seat to those bigger tasks. Also undercutting the relaxedtone presented about Matney being unable to perform all his tasks on somenights, Holstein’s remark that Matney was to have the “day shift ready to run”put Matney in an impossible position – perform his tasks and be exposed to dustor let them slide. Rockwell was not facing up to the fact that the requirementsfor Matney’s Part 90 status and his move crew foreman position were inconflict.

 

            Holstein maintained that hedid not expect Matney to do the other actual tasks and he asserted that hisapproach with Matney was the same whether he was wearing a dust mask or not. Tr.227-228. It was Holstein’s view that if a miner was pulled off a section,Matney still had other people, such as bolt men, or a utility man, on thesection to do dusty tasks. Tr. 228. Yet, in his next remark, when asked whathappened if Matney couldn’t get a task done, Holstein remarked “He didn't getit done. Multiple times I didn't get it done.” 

 

            In the Court’s view, this wasa contradiction with Holstein’s earlier remark that Matney had others on thesection who could do such tasks. In what seemed to the Court as an odd, andimpractical state of affairs for Matney’s job, Holstein agreed with hisattorney’s characterization that it was “fairly regular” that tasks that neededto be done, couldn’t be done. *Id.* In fact, Holstein remarked thatsituation occurred “[s]eventy-five percent of the time.” *Id.* Respondent’sCounsel then received Holstein’s agreement that the mine’s ‘task list’ was“more aspirational.” Tr. 229. To the Court, such an arrangement seemed toconstitute an odd ‘to do’ list.  

 

            Asked about the night shiftsof September 25th-26th and the following night, September 26th-27th, Holsteinrecalled those occasions. While he confirmed that the mine needed two utilitymen to perform a big task, putting up a thousand feet of belt and that the taskwould take all night, his account differed from Matney’s.  Holstein agreed thatrock dusting needed to be done, but that he spoke with Matney about the rockdusting task, telling him that he had two roof bolters to do that and thatMatney was not to personally do the dusting. The same situation existed thefollowing night with Holstein taking Matney’s utility men from the section. 

 

            The Court notes that Holsteinagreed that the rock dusting *had* to be done and to that  end he had bagsof rock dust delivered to Matney’s section and further that the belt line workwas essential or the mine would not be operational. In the Court’s view, apartfrom determining whether to credit Matney’s version or Holstein’s, the problemhighlights that Matney was ill-suited as the move crew foreman, restricted ashe was due to his Black Lung disease. If the roof bolters were diverted fromrock dusting, that meant other tasks would not be completed. Roof bolting isnot optional, it too must be done for mining to continue. The ‘aspirational’view of the tasks to be completed for those on the section can only be taken sofar. Both roof bolting and dusting had to be done. 

 

            Matters were much the same forOctober 13, 2022. Holstein did not dispute that Matney’s journal referencedthat “everyone was working outby on violations, except for Matney, a Joy(mining equipment) representative, and a greaser.” Holstein agreed that themine was addressing violations at that time. Tr. 232. For October 27, 2022,Matney wrote that he moved power with three red hats. Holstein did not disputeMatney’s journal about this either, but stated that such work was notparticularly dusty. *Id.* Holstein asserted that there would not have beenany rock dusting performed that night, “not if you only had three red hats.” *Id.*

 

            October 31, 2022 was addressednext. Matney’s journal stated that he cleaned and dusted the section with oneblack hat and one red hat, but this question was of little value becauseHolstein did not recall that night. Despite that absence of recollection,Holstein agreed that Matney should have been able to clean and rock dust thatnight with one black hat and one red hat. Tr. 232. 

 

            Holstein was then asked about November1, 2022, a date for which Matney’s journal recorded that he cleaned and rockdusted the faces and that there were only two roof bolter operators on thesection with him. Tr. 234. Asked why the utility man was not present, Holsteinremarked that he may have had the man outby or he could’ve been absent. TheCourt notes that the larger point is that he couldn’t recall. *Id*. However,Holstein still maintained that Matney still had two miners bolting and hecould’ve used them “however he need[ed] them.” Tr. 235.[19] 

** **

            It is fair to observe thatHolstein agreed with the accuracy of Matney’s journal for the dates justmentioned. The other work was in fact being done, subtracting from Matney’savailable help on the section. The dispute boiled down to whether, as Holsteincontended, there was still sufficient help for Matney and, alternatively,whether it mattered to Holstein if tasks could not be completed. The Courtfinds, crediting Matney, that there was not sufficient help and that it didmatter to the mine that tasks were not completed. 

 

            Shannon Ray Dolin,the mine superintendent at Gateway, also testified. Dolin learned of Matney’sPart 90 status in July 2022. Tr. 270. Respondent’s Ex. Tab A, letter from MSHA,informing the mine of Matney’s exercise of the option to work in a low dustarea. As mentioned, to meet that requirement, the mine conducted engineeringsamples for the purpose of determining the location on the section with theleast amount of dust, with the goal of finding out where the mine would be incompliance. Tr. 272. The mine ran three samples, two outby and one on thesection. The sample on the section came back less dusty than the outbysections, and that led the mine to leaving Matney on the section, as thesection foreman. *Id*. Matney was shown the sample results.

 

            In line with the testimony ofother witnesses for the Respondent, Dolin stated that management haddiscussions with Matney. As he put it “we did have several meetings with Cecilon his -- how he had to change his culture and mindset of getting things done. Dolincontended that by ‘mindset,’ he was asserting that foremen tend to think theycan do tasks better, so they have a tendency to take over tasks. Tr. 273. 

 

            Dolin’s description ofMatney’s duties in that role as the move crew foreman made it sound as if theywere very easy to achieve: “[Matney] ha[d] to put his DTIs [dates, times andinitials] up. He ha[d]to examine the section every two hours and manage thepeople, manage the men.” Tr. 274. By ‘managing the people,’ Dolin stated thatmeant “[Matney] has a list of things that's left for him to try to get done. Andhe just has to manage the people that he has at that time to get -- try hisbest to get it done.” Tr. 275.

 

            Dolin stated that Matney “voicedseveral times that “[he] just can't handle not getting it done [adding thatMatney was] used to getting everything done.” *Id*. Dolin’s emphasis wasthat Matney “ha[d] to manage the people. And if he don't have the people and ifhe don't get it done, then he just don't get it done.” Tr. 276. 

 

            To the Court, themine’s asserted very forgiving approach to work not getting done and Dolin’stestimony that work not getting done happened regularly on every shift andfurther that miners were never reprimanded for not getting things done, isdifficult to accept as an accurate depiction of the mine’s attitude. 

 

            Dolin agreed that people werepulled from the move crew to work outby to deal with things “more pressing thanthings on the section to get done.” However, he asserted that managementcontinued to tell Matney to stay out of the dust. Tr. 277. Dolin maintainedthat Matney’s work was the same, whether or not he was wearing a PDM. *Id.*In describing the instance when Matney was tested for dust exposure by themine, and Bill Hardin, the mine’s safety director, was with him, Dolin assertedthat Hardin was there “[t]o train him. Train him where to -- how to do his joband staying out of the dust, how to manage the people.” Tr. 278. The Court alsofinds this assertion as difficult to accept, given the mine’s high regard forMatney, that he would need ‘training’ on how to keep out of the dust.  

 

            In support of the Court’sskepticism, was Dolin’s testimony when asked about Matney’s remarks in hisjournal for November 2, 2022. That entry referred to the left return at 3 headbeing flooded, and Matney’s assertion that Dolin and Holstein wanted him toclean and dust the section, plaster stoppings, clean the tail, and pull slackon the 450-roof bolter. The journal also stated that Matney had only two roofbolters and two red hats that night. Dolin asserted that he did not recall thatinstance. Tr. 278. Despite the lack of recollection, Dolin expressed that thework Matney described in his journal for that date was not a big task. *Id*.As to whether he, Dolin, personally told Matney to do any of those tasks, againDolin’s memory failed him, stating he “[didn’t] recall telling Matney to doit.” *Id.*

 

            Upon Matney’sreturn to work in March 2023, his job duties had changed, as the mine decidedthat Johnny Wriston, who had taken over Matney’s work during his absence, wouldremain on the section. Under this new arrangement, Wriston was to do the ‘deadwork,’ the term Dolin used to mean the “cleaning and dusting and ventilating,the maintenance of the section.” Tr. 282. Matney would fire boss the section. *Id*.In March MSHA sampled Matney, but Dolin said he did not know exactly theresults. *Id.*

 

            In late March, Matney wastested for dust exposure again, this time by the mine. *Id.* Dolinconceded that one of those samples taken by the mine exceeded the .5 limit.[20]*Id.* That resulted in the mine learning that the overage was from theroof bolter and once again they instituted a corrective action, making sureMatney was not downwind from the bolter and further that the bolter was shutoff before he went downwind to date the faces.[21]Tr. 283. 

 

            The Court construes theunified responses from the Respondent’s witnesses as expressing their view thatthe problem with the instances of non-compliance with the dust exposure levelwas Matney’s fault. The Court finds otherwise – the source of the problem withexceedances was the nature of Matney’s position. In the Court’s view, it simplydidn’t work – the efforts to contort Matney’s duties and locations during theshift were impractical and the realities of performing that job exposed him tothe documented dust exceedances. 

 

            In questioning by the Court,Dolin repeated that he had many meetings with Matney on the issue of gettinghis tasks done. In sum, his testimony had two themes: that Matney had to‘manage’ his people, implicitly meaning manage his people better. With that,and in the Court’s view, contradicting his remark was that “that's what younormally want, to get everything done” on the list, if you “don't get the listdone, then you just don't get it done.” Tr. 336-337. The Court finds it hard toaccept Dolin’s assertion that “we got to where we thought we was going to haveto reprimand, I guess you would say, as far as writing it down and write him upto make sure he didn't do it.” Tr. 336-337. Yet, Dolin asserted that themeetings were initiated by Matney, not by the mine. Tr. 337.

 

**Rockwell makes a major change in Matney’s work duties**

 

            Dolin was askedabout the spring of 2023. He affirmed that Matney then became an outby foreman,also described as a fire boss. Dolin stated that the mine was not required tomove him to the new position. He thought the change occurred in April 2023. Theoffer to the new position as fire boss consisted of fire bossing the belts androadways and some pumps but not the return pumps. Tr. 285. Matney was thensampled in his new role but again one of the samples was non-compliant,exceeding the .5 limit. Tr. 285-286. The mine then took corrective action byremoving Matney from fire bossing the belts. *Id.* Respondent’s Ex. C. Themine determined that the belts were the source for Matney coming out ofcompliance. Tr. 286. Thereafter, Matney fire bossed only the roadways. *Id.*He was then sampled again and this time was below the .5 limit. Tr. 287. MSHAwas present during that new sample. The mine did not receive a citation inconnection with this event. *Id.*

* *

            Dolin described Matney’s new March 2023 duties asfollows: 

 

Mostof his duties, or all of them, are outside. He does some paperwork outside forDoug Lamb. He fills up the diesel rides when they're sitting outside. And hechecks belt splices on No. 1 belt, which is outside. Or it comes outside. Hecan check it outside. And he greases the stacker belt once a week outside.

 

 Tr. 289. Respondent’s Ex. K. 

 

            At that point, theonly genuine issue in terms of dust exposure, would be associated with checkingsplices in the No. 1 belt. That task is performed outside. This is done todetermine if there are defects with the belt in need of repair, such as asplice. *Id.* Dolin stated that task takes less than five minutes, thetime it takes for the belt to make a complete revolution. Tr. 291.  

 

            At the request of Respondent’s Counsel, the mine conductedan engineering dust sample for the belt check task. Tr. 292. That sample resultwas below the .5 level. *Id*. and Respondent’s Ex. L. Regarding the taskof greasing the stacker belt, it is done outside once a week and it takes aboutan hour to do it. Tr. 293. A dust sample was performed for this task too and italso came back below the .5 level. In addition, MSHA sampled Matney under hisnew work tasks. This was done on August 25, 2023, and that sample was below the.5 level. Tr. 296. Ex. N at Tab 9, Ex. 0.

 

            The Respondentthen called Billy Hardin, a safety technician at the mine. Hardin’s testimonywas in line with other witnesses for the Respondent in that in their view theburden was on Matney to avoid the dust on his section, stating, “[y]ou know,[Matney] has to assess the situation, look for dust.” Tr. 346. He stated thathe was ‘training’ Matney how to stay out of the dust. Yet, while ‘training’him, Matney exceeded the dust limit. Tr. 348. The dust sample on Matney forJuly 28, 2022 exceeded the .5 level. 

 

            Based on the entirety of theevidence, the Court finds that the essential problem was the mine’s effort tokeep Matney in the section though the job really could not be done withoutexposing Matney to excessive dust. Hardin’s various reasons – a belt crewmaking a splice, the crew performing rock dusting, the process of moving abelt, and Matney passing through some fly pads and curtains that had dust onthem[22]– for Matney’s exposure to dust demonstrate the unsuitability of keeping him onthe section. Tr. 348-353, 357. While additional examples to demonstrate theinappropriateness of having Matney continue to work on the section are notnecessary, Hardin testimony about the May 9th dust sample, which sample wasabove the exposure limit, is revealing of the insolubility of having Matneyremain on the section. Though Hardin stated that the mine investigated this, hedidn’t remember what happened, nor did he know about any corrective action. Tr.358. Hardin acknowledged that the dust sample for May 9th was above the limit. 

 

            DouglasLamb, the mine’s evening shift foreman was the final witness for theRespondent. Tr. 376. He only began working with Matney in March 2023. *Id.*At that time Matney’s job was to fire boss and check belts. Tr. 377. Initially,Matney fire bossed everything, meaning roadways, beltlines and pumps. Tr.377-378. Later, they removed checking the pumps from Matney’s tasks. Lambagreed that one sample was above the limit, at .65. He added that an MSHAinspector was with Matney on that occasion. It was his belief that theinspector had Matney do more than he normally would, expressing “thatinspector, he wanted him to go in and do an on-shift on the belts and then theycome back out, and then they had to go back in and fire boss.” Tr. 379. This,Lamb stated, increased Matney’s dust exposure that day. Tr. 380. Nevertheless, Lamb took corrective action, removing firebossing of the belts and the weekly air flows from Matney’s duties. *Id*.  

 

            As for the roadway firebossing, Lamb informed they had Matney “fire boss his way *in **and let itclear up**, and then he could come back down the roadways*.” *Id*.(emphasis added). The Court takes note that this is yet another example thatMatney’s job on the section simply was inconsistent with avoiding dustexceedances.

 

            Referringto the mine’s May quarterly samples, Lamb stated that the mine exceeded the .5limit with an exceedance at .65. *Id.*  The ‘corrective action’ for thatwas for Matney to only fire boss the roadways. Tr. 381. This was when Wristoncame on to do those former tasks of Matney. Thus, after that, Matney’sduties became “do[ing] paperwork, fill[ing] up the diesel rides, a weeklygreasing of the stacker belt, and then, Lamb’s recollection was that a fewweeks later, the mine decided that Matney could be outside and check splices on1 belt.” *Id*.

 

            The Court inquired of Matneywhat his job title has been since May 16, 2023, to which he replied “outbyforeman.” The Court also asked Matney if it is correct that the only remainingissue with dust exposure since May 2023 now stems from splicing belts, an issueabout which Matney stated that the mine had now started watering down the area.Matney essentially agreed that the dust exposure issue for him is now limitedto the belts. Tr. 131-132. But, he added that there is some dust exposure whenhe is on the stacker belt too. Tr. 132. The stacker belt task is performed oncea week and is done entirely outside. Tr. 175. The Court tried to have Matneydescribe the extent of his present dust exposure from those sources, and heresponded that it was 20 percent of the workday. Tr. 132. To state the obverse,Matney tacitly agreed that presently his job duties do not expose him toexcessive dust for 80% of his workday. Tr. 133.

 

            The Court inquired furtherabout Matney’s present work environment, asking if he still had Part 90 issuesgoing forward with his present work duties or whether looking ahead, if hispresent job duties still present Part 90 issues or if they are now resolved. Tr.196. Matney responded that he couldn’t answer the question because he has notyet been sampled for dust by the company under his new tasks. *Id*. Heelaborated that for checking belt splices, fueling up rides and greasing thestacker belt, and when the roads are dusty, without having a dust pumpsampling, he couldn’t know if those tasks were above the .5 dust limit. Tr.197. Yet, Matney agreed that those dust concerns constituted about 20% of hisday, with 80% not presenting a dust exposure issue, as he is in an office orotherwise outside apart from the dust exposure sources he just mentioned. *Id.*The Respondent’s dust testing at the belt splice location and the greasingtask evidence that one performing those tasks would not be exposed to dust levelsover the maximum. As noted *supra,*the mineconducted an engineering dust sample for the belt check task and for thestacker belt greasing task and both came back below the .5 level. Tr. 292, andRespondent’s Ex. L. Neither task requires much time in Matney’s currentposition, with the stacker task involving an hour once a week and the splicecheck task taking less than five minutes, the time it takes for the belt tomake a complete revolution.

 

 

**ANALYSIS**

** **

            Subpart B – DustStandards, Rights of Part 90 Miners; provides: 

            After the20th calendar day following receipt of notification from MSHA that a part 90miner is employed at the mine, the operator shall *continuously maintain*the average concentration of respirable dust in the mine atmosphere during eachshift to which the part 90 miner in the active workings of the mine is exposed,as measured with an approved sampling device and expressed in terms of anequivalent concentration, at or below: (a) 1.0 milligrams of respirable dustper cubic meter of air (mg/m 3). (b) 0.5 mg/m 3 as of August 1, 2016.

30 C.F.R. § 90.100; 79 Fed. Reg.24989, (2014).

            Thereis no dispute that for the time periods in issue in this matter Cecil Matneywas a Part 90 Miner, nor is there a dispute that, on more than one occasion ofdust sampling, the sampling revealed exceedances of the maximum dust exposure. Asdiscussed above, the demonstrated exceedances were on July 28, 2022, March 23,2023, and May 9, 2023.   

            As noted in *Mullins vBeth-Elkhorn Coal Corp*., 9 FMSHRC 891, 897 (May 1987), (“*Mullins*”),

 

 [t]he Part 90transfer option encompasses three basic rights: (1) to be assigned work in “anarea of a mine” where the required Part 90 dust concentration levels arecontinuously maintained (30 C.F.R. §§ 90.3(a), 90.100 & 90.101); (2) in “anexisting position” at the same mine on the same shift or shift rotation or, ifthe miner agrees in writing, in “a different coal mine, a newly-createdposition or a position on a different shift or shift rotation” (30 C.F.R. §90.102(a)); and (3) at no less than the regular rate of pay earned by the minerimmediately before exercise of the transfer option (30 C.F.R. § 90.103). It isthe duty of operators to effectuate these rights as applicable with respect totheir Part 90 miners. 

 

*Id.*at897.  

 

            Mr. Matney had it right when,during cross-examination, he was asked about the MSHA dust standard, correctlyexpressing that the dust standard for a miner who is not [covered by] Part 90is 1.50 whereas for one who is under Part 90, it is .50. And that if one isabove the .50 level, the operator has “to do a corrective action and they haveto remove you from that job or figure out a way to keep you in fresh air, keepyou out of the dust.” Tr. 181.  

 

And that is the central deficiency on thepart of Rockwell – it failed to keep Matney out of the excessive dust. Rockwell’snoncompliance with Part 90 vis-à-vis Mr. Matney continued until May 24, 2023. 

 

 

**DISCRIMINATIONDECISIONS UNDER THE MINE ACT BASED ON PART 90 CLAIMS**[23]

** **

            WhilePart 90 involves particular rights, the analysis of a claim stemming from thoserights has been routinely assumed to be no different from any discriminationcase under the Mine Act. The Court believes that, at least in this instance,the atypical violation of Mr. Matney’s right to be protected from excessivedust does not fit the one-size-fits-all formula presented in the Commission’s *Pasula–Robinette* test. 

 

            In the Part 90discrimination case noted above of *Mullins v. Beth-Elkhorn Coal Corp*.,   9FMSHRC 891, 895-896 (May 1987), the Commission stated:

 

Thegeneral principles governing analysis of discrimination cases under the MineAct are settled. In order to establish a prima facie case of discriminationunder section 105(c) of the Act, a complaining miner bears the burden ofproduction and proof in establishing that (1) he engaged in protected activityand (2) the adverse action complained of was motivated in any part by thatactivity. *Secretary on behalf of Pasula v. Consolidation Coal Co*., 2FMSHRC 2786, 2797–2800 (October 1980) rev’d on other grounds sub. nom*.Consolidation Coal Co. v. Marshall*, 663 F.2d 1211 (3rd Cir.1981); *Secretaryon behalf of Robinette v. United Castle Coal Co*., 3 FMSHRC 803, 817–18(April 1981). The operator may rebut the prima facie case by showing eitherthat no protected activity occurred or that the adverse action was in no partmotivated by protected activity. If an operator cannot rebut the prima faciecase in this manner, it nevertheless may defend affirmatively by proving thatit also was motivated by the miner’s unprotected activity and would have takenthe adverse action in any event for the unprotected activity alone. Pasula,supra; Robinette, supra*.*See also*Eastern Assoc. Coal Corp. v. FMSHRC*,813 F.2d 639, 642 (4th Cir.1987); *Donovan v. Stafford Construction Co*.,732 F.2d 954, 958–59 (D.C.Cir.1984); *Boich v. FMSHRC*, 719 F.2d 194,195–96 (6th Cir.1983) (specifically approving the Commission’s Pasula–Robinettetest).

 

*Id*.

            

            Inthis Matney v. Rockwell matter, the Court examined all the pertinent Commissioncases for Part 90. It also reviewed the lone Part 90 decision issued by theUnited States Courts of Appeals. The Commission has issued 11 decisionsinvolving Part 90. Two of the 11 are related to the D.C. Circuit’s reversal ofthe Commission decision in *Sec’y of Labor ex rel. Bushnell v CanneltonIndust.,*867 F.2d 1432, (D.C. Cir.1989)**(“*Bushnell*”) andtherefore they are not discussed.

*            Bushnell*involvedSecretary’s interpretations of 30 C.F.R. § 90.103 and section 101(a) of theMine Act. The Commission “held that the regulations and the Mine Act protect aminer against pay reductions only upon his transfer to a low-dust work areaafter exhibiting evidence of pneumoconiosis (black lung disease), and not uponsubsequent transfers for other reasons.” *Id*. at 1433. The D.C. Circuitreversed the Commission’s holding. While the focus of the case was the rate ofpay for a Part 90 miner who is transferred, the Court of Appeals made someimportant remarks which are useful to this matter, Matney v. Rockwell. 

            That Court noted thatSection 101(a)(7) of the Mine Act, specifically provides:

Whereappropriate, the mandatory standard shall provide that where a determination ismade that a miner may suffer material impairment of health or functionalcapacity by reason of exposure to the hazard covered by such mandatorystandard, **that miner shall be removed from such exposure and reassigned.**Any miner transferred as a result of such exposure shall continue to receivecompensation for such work at no less than the regular rate of pay for minersin the classification such miner held immediately prior to his transfer. In theevent of the transfer of a miner pursuant to the preceding sentence, increasesin wages of the transferred miner shall be based upon the new workclassification. *Id*. § 811(a)(7). 

*Id*.at 1433, quoting 30 U.S.C. § 811(a)(7). (emphasis added).

                        TheCourt believes that only one of the Commission’s Part 90 decisions, *Goff**v. Youghiogheny & Ohio Coal Co.,*8 FMSHRC 1860, (Dec. 1986) (“*Goff*”), is useful to the analysis of thematter at hand. For the sake of completeness, a brief recap of the otherCommission Part 90 decisions are footnoted here.[24]

            *Goff*involved a discrimination complaint in which the Commission, upon finding thatGoff’s complaint did state a cause of action, remanded the matter to the judgeto determine whether the miner was discriminatorily discharged. The judge thenfound that the miner’s discharge was not made in in violation of section105(c)(1), a determination upheld by the Commission.  

            Although*Goff* did not shed light on the particular issue in this matter, theunderlying *decision*, in which the Commission determined that the minerdid state a cause of action, is of value. There, it held that: 

            a miner maystate a cause of action under section 105(c)(1) of the Mine Act by alleging discriminationbased on the miner’s being ‘the subject of medical evaluations and potentialtransfer’ under 30 C.F.R. Part 90 [as] [those] provisions contain mandatoryhealth standards governing transfer of miners evidencing the development ofpneumoconiosis.

7 FMSHRC 1776, 1776-1777 (Nov. 1985).

            TheCourt notes that the Commission, examining the updated discrimination provisionunder the Mine Act, stated that it “*granted minersbroader protection and relief for a wider range of discriminatory actions**andwas intended by Congress to be interpreted expansively***.” *Id*. at1780-1781. (emphasis added). Further, the Commission observed that “where it is determined as a result of a physicalexamination that a miner may suffer material impairment of health or functionalcapacity by reason of his exposure to a hazard covered by a standard, **theminer shall be moved from such exposure and reassigned**.” *Id.* at1781. (emphasis added). 

            Based on the decisions citedabove, it seems clear that the operative Part 90 provisions apply to Mr.Matney. Indeed, the operator has agreed that Matney is a Part 90 miner. Per theCourt of Appeals decision in *Bushnell,*the applicable mandatorystandards required that Matney should have been “removed from such exposure andreassigned.” *Bushnell* at 1433. 

 

            The Commission’s decision in *Goff*is completely in line with *Bushnell*, with its statement that “where[as with Matney’s condition] it is determined as a result of a physicalexamination that a miner may suffer material impairment of health or functionalcapacity by reason of his exposure to a hazard covered by a standard, **theminer shall be moved from such exposure and reassigned**.” *Goff* at1781. (emphasis added). In applying that requirement, the Commission noted thatthe Mine Act discrimination provision “*granted miners broader protection andrelief for a wider range of discriminatory actions**and was intended byCongress to be interpreted expansively***.” *Id*. at 1780-1781.(emphasis added).

 

            In theCourt’s view, a strict application of the Commission’s*Pasula–Robinette* test does not work well in this unusual set of facts. Yes,per the first part of that test, Matney certainly engaged in protectedactivity, but to say that the adverse action – keeping Matney in the sectionforeman position despite several dust samples showing that he was exposed tolevels above the maximum allowed – was motivated by Matney’s engaging in theprotected activity, would be a stretch. While Rockwell attempted to invent acontorted, and demonstrated to be unworkable, section foreman role for Matney,the Court cannot conclude that its motivation was due to Matney’s protectedactivity. 

            Instead,Rockwell’s motivation was exposed by Rockwell itself. Shannon Dolin, Matney’ssupervisor, gave Rockwell’s motivation away, when he expressed that withMatney’s background and experience he was more valuable to the mine in thesection position.[25]Tr. 339. To the Court, that explains why the mine did not take the action it eventuallydid, transferring Matney to the outside – he was more valuable in his move crewforeman position.

**ROCKWELL’SATTEMPT TO LIMIT MATNEY’S COMPLAINT TO THE INITIAL BASIS ASSERTED.**

** **

**           **Though Respondenthas attempted to make much of the one-issue basis for Matney’s first filing,his Discrimination Report, that argument fails. This is because the Commissionhas long held that a miner is not limited to the initial basis stated in adiscrimination complaint.       

 

            As stated in *Sec. oboCallahan v. Hubb Corp*., 20 FMSHRC 832, 837 (Aug. 1998) 

 

Section 105(c)(2)both authorizes the Secretary to bring discrimination complaintsunder the Mine Act and governs that complaint process. According to thelanguage of section 105(c)(2), the Secretary's decision to proceed with acomplaint to the Commission, as well as the content of that complaint, is basedon *the Secretary's investigation* of the initiating complaintto her, and not merely on the initiating complaint itself. *Seealso Secretary of Labor on behalf of Dixon v. Pontiki Coal Corp.,* 19FMSHRC 1009, 1016-18 (June 1997) (scope of complaint Secretarymay pursue before Commission not circumscribed by matters addressed in originalcomplaint filed with her, but by subject matter of investigation conducted bySecretary in response to that complaint). Section 105(c)(2) also clearly statesthat the hearing held and the order subsequently issued by the Commission areon *the Secretary's complaint and proposed order for relief.* Theprovision in section 105(c)(2) that a complainant miner “may present additionalevidence on his own behalf” is a further indication that *theSecretary's* case may be separate and independent from thecomplainant's. 

 

*Id.* at 837.

 

            See also, *Sec. v. HopkinsCounty Coal*, 38 FMSHRC 1317 (June 2016) at n.15, wherein the Commissionnoted that: 

 

if the content ofa discrimination complaint filed with the Commission is based on that which isuncovered during the Secretary's investigation, then it follows that theSecretary's authority to investigate in the first instance cannot becircumscribed by the early and often uninformed statements made by a miner inhis charging complaint. 

 

*Id.* at n. 15.

 

            Accordingly,Respondent’s effort to limit Matney’s action to his pay disparity issue fails. 

 

**COMPLAINANT MATNEY’S CLAIM THAT HE WASGIVEN A LESSER RAISE BECAUSE HE WAS A PART 90 MINER**

** **

            Matney’s “DiscriminationReport,” dated September 13, 2022, addressed one issue only: his assertion thathe received a smaller raise than others in the same position because he haddeclared Part 90 status on June 25, 2022. Complainant’s Ex. 3, designated asPINE CD 2022-04. It is undisputed that section foremen received a $5,000 raiseand outby foremen received $4,000. 

The problem arose in the context of whatmay be described as a conflict or confusion over the raise due Matney. 

 

            The testimony is undisputedthat Mr. Matney did not receive the appropriate pay raise he was due for hisposition. Matney was a section foreman, but his raise was the amount for anoutby foreman. Tr. 67-68.Thus, he did not receive the same pay amount as therest of the foremen in his classification.

 

            The Respondent called MichaelGosnell, the general manager of the Rockwell complex on the subject of theseraises. Tr. 212. The raises went into effect on August 1st. *Id*. Theraises were not equal. For example, the pay for a section foreman was more thanan outby foreman.[26]Tr. 213. Gosnell believed that Matney came to the mine as an outby foreman;however the computer showed him as a section foreman. Tr. 214. Later, afterMatney told Varney that he did not receive the correct raise, Varney toldGosnell about the problem and Gosnell stated that the pay would need tocorrected, if Matney was in fact employed in the role of section foreman. Tr.215.  

 

            Aaron Kent Varney, theregional HR manager for Rockwell, testified about the pay issues in thismatter. Varney had Matney listed as an outby foreman, which is the role Matneywas listed as having on the mine’s staffing sheet when Matney began working atGateway. Tr. 251. No one advised Varney otherwise about Matney’s positiondescription. *Id*. The amount of the raise, which was the initial basisfor Matney’s complaint in this matter, was to be effective as of August 1,2022. *Id*.  Varney affirmed that the employees’ raises varied; howeverevery section foreman or outby foreman got the same dollar amount of a raise. Tr.252. Matney’s raise was at the outby foreman rate, at 2.4%. Subsequently,Matney came to Varney’s office about the raise issue, and it was then that heinformed Varney that he was a section foreman. Varney advised that his listshowed him as an outby foreman. Tr. 254. Varney said it wasn’t until thatconversation with Matney that he learned he was a Part 90 miner. Subsequent tothat conversation, Dolin confirmed that Matney was indeed a moveforeman/section foreman. *Id*. 

 

            The error was correctedpromptly. Tr. 256. In less than a month, Matney’s received the full raise hewas due. Tr. 141. Though Matney believed that his insufficient raise stemmedfrom his new status as a Part 90 miner, he had no evidence to support thatview, other than it made sense to him, as every other foreman got the fullraise. Tr. 142. 

 

            However, based on the credibletestimony of Varney and Gosnell on this issue, it is clear to the Court thatnot only was the error quickly corrected but also that it was brought about bya misunderstanding of Matney’s true position. The Court finds that the errorwas accidental, without malice, and not brought about by any animus overMatney’s Part 90 miner status. 

            

**COMPLAINANTMATNEY’S CLAIM THAT THE MINE DEPRIVED HIM OF INCOME FROM HIS WEEKEND WORK.**

** **

**           **Part of Matney’sdamages arise from his claim of the “every other weekend” pay he would oftenreceive. Tr. 86.****More particularly, Matney asserts that during the timehe was on paid leave absence, from November 15, 2022, through March 3, 2023, hewould often work on Saturdays every other weekend, and was paid $400.00 foreach such weekend work. Pay stubs support that Matney was indeed paid for extrashifts. See, for example, Ex. 7, November 2022, at stamped page 87. 

** **

            In his attempt to show that helost such income during his paid absence, Matney relied upon a letter from KentVarney, the human resources manager at Rockwell. That letter included thestatement “[a]s of today, 9/14/2022, year-to-date pay, out of the above bonusesare retention bonus 5,700 [and the remark that] Mr. Matney is required to workweekends, which are scheduled for every other weekend, but it does depend, andthe pay is $400 per shift.” Tr. 77-78. 

 

            However, to be fair, and forthe purpose of limiting the apparent concession that Matney was paid forSaturday work every other weekend, the letter was created essentially as afavor because Matney was applying for a home loan.  Varney was directed to Tab4 from Complainant’s exhibit notebook. That exhibit reflects Matney’s requestfor Varney to issue the letter reflected in that exhibit. Matney was purchasinga house and the bank wanted specific information in connection with the loanapplication. Dated 9/14/2022, the letter, which was for the bank, reflectedMatney’s salary at that time. Tr. 258. The last paragraph of that letter forthe bank states “Mr. Matney is required to work weekends which are scheduledfor every other weekend, but it does depend, and the pay is $400 per shift.”Tr. 259. This amount referred to “extra shifts” and Varney stated that the minetries to project two Saturdays every month, but he added that, in fact,sometimes it’s more, sometimes less. *Id.* Thus, he maintained that theshifts are not guaranteed, though they usually do happen. *Id.*

 

            Matney confirmed that he didwork every other weekend. This was in connection with his role as a certifiedEMT. On such weekends when he worked, the mine called it an extra shift and hewould be paid $400 for that work. Thus, he worked two of the Saturday shiftseach month in that capacity, unless the mine was idle. Tr. 78-79. This practicebegan when he started working for Gateway Eagle. *Id*. Matney acknowledgedthat there were times he would have a Saturday off. Such days off would beespecially true in November and December as well as during January throughMarch. Tr. 160-161.

 

            As Matney expressed it, thoughpaid his full salary during the four months he was told to stay home,[27] he did notbelieve that he had been made whole because he “did not get [his] extra shiftpaid that [he] would have received if [he’d] normally been at work working,...[he contended this amount would be] somewheres between $2400 and $3200.” Tr.127. 

 

            While Matney undoubtedly wouldhave worked some, indeterminate number, of those every other weekend times,earning the extra income from that, Counsel for Matney failed to identify theparticular weekends when such work, as Matney often performed, was performed bysomeone else during November 2022 through March 2023. At the hearing the Courtdirected Counsel for Matney to calculate the sums asserted to be due duringthis time period. Tr. 130. This did not occur. The Court would also point outthat Mr. Matney was a salaried employee and that he received his fullcompensation during his stay-at-home period. Tr. 377. 

 

            Accordingly, because Matneywas paid his full salary while on paid leave of absence and because theSaturday work was ‘extra’ work and not guaranteed to occur every other weekend,by not establishing the specific work that was done by someone else and thespecific Saturdays such work occurred, he failed to meet his burden of proof. 

 

**ROCKWELL’S****ATTEMPTTO LIMIT MATNEY’S COMPLAINT TO THE INITIAL BASIS ASSERTED.**

** **

**           **Though Respondenthas attempted to make much of the one-issue basis for Matney’s firstsubmission, his Discrimination Report, that argument fails. This is because theCommission has long held that a miner is not limited to the initial basisstated in a discrimination complaint.

 

Asstated in *Sec. obo Callahan v. Hubb Corp*., 20 FMSHRC 832, (Aug. 1998) 

 

Section 105(c)(2)both authorizes the Secretary to bring **discrimination** complaintsunder the Mine Act and governs that complaint process. According to thelanguage of section 105(c)(2), the Secretary's decision to proceed with acomplaint to the Commission, as well as the content of that complaint, is basedon *the Secretary's investigation* of the initiating complaintto her, and not merely on the initiating complaint itself. *Seealso Secretary of Labor on behalf of Dixon v. Pontiki Coal Corp.,* 19FMSHRC 1009, 1016-18 (June 1997) (**scope** **of** **complaint** Secretarymay pursue before Commission not circumscribed by matters addressed in originalcomplaint filed with her, but by subject matter of investigation conducted bySecretary in response to that complaint). Section 105(c)(2) also clearly statesthat the hearing held and the order subsequently issued by the Commission areon *the Secretary's complaint and proposed order for relief.* Theprovision in section 105(c)(2) that a complainant miner “may present additionalevidence on his own behalf” is a further indication that *theSecretary's* case may be separate and independent from thecomplainant's.

 

*Id*. at 837

 

            The Court also takes note of *Sec.v. Hopkins County Coal*, 38 FMSHRC 1317 (June 2016) wherein the Commissionnoted that:

 

if the content ofa discrimination complaint filed with the Commission is based on that which isuncovered during the Secretary's investigation, then it follows that theSecretary's authority to investigate in the first instance cannot becircumscribed by the early and often uninformed statements made by a miner inhis charging complaint.

 

*Id.* at n.15

 

Accordingly, the Respondent’s attempt tolimit Matney’s Complaint to the initial basis asserted is rejected.  

** **

**Conclusions**

** **

**     **Based on theforegoing, and the Court’s assessment of the credible testimony, the Courtfinds that Rockwell exposed Complainant Cecil Matney to excessive dust bykeeping him in the position of move crew foreman. This violated Part 90. Insteadof complying with the Part 90 exposure requirements, Rockwell attempted tocontort Matney’s position putting him in an impossible position – as apractical matter Matney could not perform his job without being exposed toexcessive dust and Rockwell had to know this. Its recalcitrance in properlyplacing Matney in a Part 90 compliant position was admitted by Respondent’s ownwitness who admitted that Matney’s value to the mine was best served by keepinghim as the move crew foreman. As noted above, as of **May 24, 2023**, Rockwellfinally came into compliance with Part 90 by placing Cecil Matney Jr. in aposition which stopped exposing him to excessive dust. 

 

      For the many reasons discussed abovein support of the Court’s findings, and in accordance with Commission Rule44(b), 29 C.F.R. § 2700.44(b), the Court is notifying the Secretary of thisdecision, sustaining the discrimination complaint brought by miner Cecil Matneypursuant to section 105(c)(3) of the Act, so that the Secretary may file apetition for assessment of a civil penalty with the Commission. 

 

      As discussed above, the Courtconcludes that Complainant Cecil Matney’s temporary inadequate raise was aclerical error, unrelated to his Part 90 status. Apart from the brief errorrelating to the raise due Matney, all aspects of his salary and benefits werepaid in full. 

 

      Further, for a failure of proof,Matney did not establish that he was entitled to the indefinitely identifiedSaturday work, which potential work was unrelated to his salary. 

 

 

 

** **

/s/ William B.Moran

                                                                                    William B. Moran

Administrative LawJudge

 

 

Distribution:

 

SamuelB. Petsonk, Esq., Petsonk PLLC, 417 East Main Street, Oak Hill, WV 25901(sam@petsonk.com) 

 

JonathanR. Ellis, Esq., STEPTOE & JOHNSON PLLC, 707 Virginia Street, East, P.O. Box1588, Charleston, WV 25326 (jonathan.ellis@steptoe-johnson.com) 

 

RobertS. Wilson, Esq., Office of the Solicitor, Mine Safety and Health Division, 20112th Street South, Arlington, VA 22202-5450 Wilson.robert.s@dol.gov

----

[1] In its initialform Matney’s Complaint expressed “On June 25, 2022, I elected to exercise myPart 90 transfer rights. I was classified as a foreman both before and afterexercising my Part 90 rights. My employer customarily provides periodicacross-the-board raises to all salaried employees. All foremen have alwaysreceived the same raise in my experience there. On the week of August 4, 2022,all outby and section foreman received a raise of $4,000. However, my raise wasonly $2,000.00. The raises became effective on the next payday. On that payday,it would reflect one week of the new raise and one week of the old salary rate.Human Resources (Kent Varney) confirmed that all section foreman did receivethe same raise. I am currently a move crew foreman, which has always beentreated the same as a section foreman for purposes of raises. As a Part 90miner, I seek an order affording me the same raise that all other similarlysituated foremen received.” As explained *infra*, the Court rejected theRespondent’s claim that Matney’s Complaint is limited to his initial statement.

 

[2] The term‘section’ refers to the ‘working face.’ Tr. 244.

 

[3] Matney describedhis work as fire boss as follows: “A fire boss, in accordance [with] the Stateof West Virginia, [requires one] to walk across your faces every two hours. Thatmeans your headings. You have to check for methane. You have to check forairflow and any hazards that you find in that face, whether a ventilationcurtain be tore down, you have to replace it and fix it.” Tr. 38. At that timethe mine had nine entries. His fire boss duties encompassed “try[ing] to spendat least five minutes in each entry to make sure that you're catchingeverything: Loose bolts, kettle bottoms, bad ribs, et cetera. ... just anythingthat you can find that's a violation ... [and this has to be done] every twohours.” Tr. 39. The job is done on foot. Matney added that “three hours priorto the day shift starting, [one has] to do what's called a pre-shift that MSHAand the State of West Virginia requires to be done three hours prior to theshift starting. You're going across the section, you're getting air readings inyour -- return air reading air forces to make sure you have enough air goingdown your returns. You're making sure that you've got plenty of air in yournon-idle faces. And you're making sure the ventilation is correct. And you'resaying that this section of this mine is safe for the day shift to come in toperform their duties on that shift for the day shift.” *Id.*

 

[4] To avoid anyconfusion when dates are referenced about Matney’s shift, on a given night hewould start work near the end of a day, with the majority of his hoursoccurring after midnight. Therefore, references to dates will often reflect twodays, but involve a single shift. For example, the reference *infra*toJuly 28th to July 29th, pertains to a single shift. 

 

[5] The test or‘engineering’ dust samples were conducted in mid-July 2022, and they wereuploaded to MSHA. Tr. 326. These were done to help the mine determine the bestlocation for Matney to work on the section. Tr. 327. One of those samples,which was outby, was over the exposure limit. Tr. 328. The mine did not keepthose results. *Id.* Though the Court found it troublesome that the minedid not keep the results, it does not find that it was malicious. The minereviewed the samples and went over them with Matney. *Id.*

 

[6] Holstein wouldlater testify that there were times when he, Holstein, was doing his fire bossrun and be downwind of the bolt crew when doing that, but he added that he hadthe right to tell his crew to shut off the bolting, and he stated that he hasdone that. Tr. 242. He then stated that he would tell the bolt crew to stop ifdownwind and close to them.*Id.*Holstein asserted that, when dusting thesection, one side becomes clear within 15 minutes of dusting it. It was hiscontention that Matney could have told his crew not to bolt when he was firebossing, especially if his practice was to do that task the same time eachnight. Tr. 246-248. Having observed Matney and Holstein closely during theirtestimony, the Court concluded that Matney was the more credible witness. 

 

[7] ThoughRespondent’s Counsel attempted to have Matney endorse the idea that his journalwas gospel, reflecting the entirety of a given day and from that premise thatanything omitted from it did not occur, the Court does not agree. Tr. 143. Thejournal did not purport to be a compendium of each day’s events. As Matneystated, he created the journal to help him remember events, an understandableand prudent practice, given his concerns about his duties post his Part 90designation. The Court also asked Matney why he created a journal. He answered,“[t]o protect myself as a Part 90 miner.” Tr. 199. By protect, he elaboratedhis purpose was “[t]o show that, if the company is not being compliant with thelaws of a Part 90 miner, I have proof of it instead of word-of-mouth.... [he]figure[ed] if [he] could put dates and times down on paper, it's easier than .. . trying to remember, okay, on this date -- it's hard to remember exactlywhat you did or have done on that date.” *Id*. He testified that thejournal was his good faith effort to record what occurred and not an attempt totell only his side of the events. Tr. 199-200. The Court concludes that thejournal was not an exercise of fabrication, but rather a good faith attempt tonote the events on a given day. Thus, overall, the Court finds that Matney’sjournal was credible and not a selective recounting.

 

[8] In a challenge tothe completeness of Matney’s journal, Matney agreed that some friction betweenhim and Shannon Dolin was left out from it. The friction involved Dolin askingif Matney had rock dusted. Matney told him he had not, and according to Matney, Dolin “blowed off his handle and throwed hislittle temper tantrum, grabbed his head, and said, ‘You will rock dust every night,’and pointed his finger at my -- towards my face ... And I asked him, I said, ‘Areyou giving me a direct order to dust?’ He walked off and come back and said,‘No, but you have to dust every night.’ If I don't have somebody on the sectionto dust, how am I supposed to dust every night?” Tr. 179. In the Court’sassessment of this dispute, Matney’s omission from his journal certainly didnot help the Respondent’s perspective, as his disclosure about the incidentreflected underlying irritation between management and Matney. 

 

[9] A ‘dust flinger’refers to a machine that dispenses rock dust, not a person literally flingingdust by hand. Tr. 198.

[10] It isinteresting, at least to the Court, that the origin of the familiar term‘Hobson’s choice,’ is of 17th century origin, named after ThomasHobson (1554–1631), a Cambridge carrier who hired out horses, giving thecustomer the ‘choice’ of the one nearest the door or none at all. *Hobson’schoice*, Wikipedia, (Dec. 6,2023), https://en.wikipedia.org/wiki/Hobson%27s_choice.

 

[11] AlthoughRespondent’s Counsel asserted that Matney in fact had only two days in Octoberfor which he asserted working in dusty conditions, Matney never agreed withthat assertion. Tr. 156. To the Court, the claim is beside the point. Theprotection to be afforded to Part 90 miners is to be free of excessive dust onevery shift. Put another way, excessive dust exposure is not waived if it onlyoccurs on a few days during a given month. 

 

[12] A point ofclarification, a ‘fire boss’ is another term for ‘outby foreman.’ Tr. 263. 

 

[13] Respondent’sCounsel asked Matney about certain dates in March and April 2023, but the Courtconsidered the following aspects to be inconsequential to this matter. ForMarch 11th, Matney asserted that he was exposed to rock dust from the flingerduster, but he acknowledged that he resolved the issue with Wriston and thatthe problem did not arise again. Tr. 164. For March 28th and April 3rd, hisjournal reflects that he operated the flinger duster, but he agreed that hisjournal did not assert that he was shorthanded on the section on those dates. *Id.*

 

[14] It is noted thatMSHA issued citations associated with these dates, but they did not involvedust exceedances. Citation No. 9592733 was issued for the mine not submittingfive valid representative dust samples. Tr. 111. Complainant’s Ex. 5. Anothercitation, No. 9591268, was issued for records regarding the length of eachshift worked for the Part 90 miner [Matney] not being maintained as required.Tr. 111-112. 

 

[15] Matney remarkedthat Respondent’s Counsel’s description of his new work duties left out hiswork on Saturdays, such as on May 20th, when he did the roadways’ on-shift, andthe belts and fire run belts. Tr. 174. They ran coal on that day, Matneystated. *Id*. 

 

[16] As its nameimplies, the stacker moves fresh or raw crushed coal into a pile. Tr. 122. AsMatney described it, the stacker “hauls the coal -- it dumps the coal out intothe stockpile in the yard where they load coal trucks.” *Id*. Whengreasing it, Matney is beside the stacker belt all the way up to the top. *Id.*During that task he is hit on his head with loose coal and stuff coming off thebelt while he is greasing it. Tr. 123. Though he complained about the dustexposure from those tasks, Matney stated that neither Doug Lamb nor ShannonDolin did anything about it. *Id.*However, he conceded that the next timea splicing was required, the day shift did it and he has not had to do a splicesince his complaint. *Id.*

 

[17] The term ‘sectionforeman’ is used interchangeably as ‘move foreman.’ Tr. 254. 

 

[18] The ‘others’ werenot identified by Mr. Holstein.

[19] Continuing withhis testimony that was not particularly helpful to the Respondent’s case,Holstein was next asked about November 2, 2022, for which Matney’s journalrecorded, as described by Respondent’s Counsel, that the “left return at theNo. 3 head flooded and that you [Holstein] and Shannon wanted him to clean anddust the section, plaster stoppings, clean the tail, pull slack on the 450 roofbolter [and that Matney] claim[ed] that he had two roof bolter operators andtwo red hats.” Tr. 235. However, Holstein stated that he didn’t recall thatthere was flooding at the No. 3 thatparticularnight, yet he added**“But I mean, sure.” *Id.*  Despite that lack ofrecollection, he denied telling Matney to do any of those tasks. *Id.* Holsteinasserted that the tasks would just be listed on the work clipboard. Tr.235-236. As for whom Matney had working for him that night, Holstein statedthat Matney said he had two bolt men on the section. As to whether a utilityman had been pulled to work outby that night, Holstein also could not recall. Tr.236.

 

[20] Dolin stated thatthe mine did not receive any dust sample compliance violation for March 2023,informing that there have to be two or more exceedances. Tr. 283-284.

 

[21] The record isunclear whether the Respondent actually meant 2023. The transcript reflects2022, but as Respondent’s Counsel remarked, “Was there another time -- and Ithink we might be confused as to dates now. I apologize. I just want to refreshyour recollection as to referring to a roof bolter corrective action. Was therea corrective action in July of 2022? Tr. 283. Dolin responded “[t]here was oneon adjusting curtains.” *Id*. Asked if that was in March 2022, Dolinanswered it could have been and that he and Scott Thompson undertook thecorrective action. *Id*. 2023 makes sense as the correct year. 

[22] The last example,simply passing through some fly pads and curtains, exemplifies the error ofhaving Matney continue to work in the section and the ‘corrective action’serves to underscore the error with Hardin advising Matney to “watch where youposition yourself walking through curtains.” Tr. 357.

[23] The Court readand considered the parties’ post-hearing briefs and all contentions raisedwithin them. Either directly or implicitly in this decision, such contentionswere addressed, including for example, Respondent’s assertions regarding theelements of an interference claim. R’s Br. at 20-21. 

[24]*Mullinsv Beth-Elkhorn Coal*, 9 FMSHRC 891 (May 1987). 

TheCommission’s own introduction for this decision shows that it is of no value tothe issues in this matter:

Thisproceeding involves a discrimination complaint filed by Jimmy R. Mullinspursuant to the Federal Mine Safety and Health Act of 1977. 30 U.S.C. § 801 etseq. (1982) (“Mine Act”). The complaint alleges that Mullins’ removal from adispatcher’s job pursuant to an arbitration award resolving a senioritygrievance violated section 105(c)(1) of the Mine Act by contravening his rightsunder 30 C.F.R. Part 90 (“Part 90”).1 Former Commission Administrative LawJudge Richard C. Steffey *892 found that the removal of Mullins from thedispatcher’s job constituted unlawful discrimination, ordered that Mullins bereinstated to that position, and awarded back pay, expenses, and attorney’sfees. 7 FMSHRC 1819 (November 1985) (ALJ). ... Because we conclude that miners’Part 90 rights do not entitle miners to particular transfer positions, wereverse.

*Id.*

*Perando v. Mettiki Coal Corporation*,10 FMSHRC 491 (April 1988).

This decision issimilarly not instructive. There, the miner’s work refusal “would not have beenprotected under the Mine Act. Such an action by Perando would have to beinterpreted as a refusal by a miner (not suffering from pneumoconiosis) toreport to work unless and until assigned to a dust-free area. Such a right isnot granted by the Mine Act. Section 101(a)(7) of the Act, 30 U.S.C. §811(a)(7), authorizes the Secretary to develop improved mandatory health orsafety standards providing that miners whose health has been impaired byexposure to a designated hazard “shall be removed from such exposure andreassigned” and that such transfer shall be without loss of pay. To date, theSecretary has implemented this statutory mandate by providing under 30 C.F.R.Part 90 that a miner who has been determined by the Secretary of Health andHuman Services to have evidence of the development of pneumoconiosis shall beafforded the option to transfer without loss of pay to a mine area where theaverage concentration of respirable dust is at or below 1.0 mg/m3. 30 C.F.R. §§90.3, 90.100, & 90.103; See generally *Jimmy R. Mullins v. Beth–ElkhornCoal Corp*., et al., 9 FMSHRC 891, 896–98 (May 1987). As the Secretaryemphasizes in her amicus brief on review, the Department of Labor has notpromulgated any similar transfer-pay retention standards applicable to minerswith industrial bronchitis, the illness suffered by Perando. Also, even a minerwho falls within the protections of Part 90 does not have the right to refuseto work pending transfer to a job in a mine atmosphere totally free ofrespirable dust. *Gary Goff v. Youghiogheny & Ohio Coal Co*., 8 FMSHRC1860, 1865 (Dec. 1986). Exposure to some amount of respirable dust is inherentin virtually all underground coal mining. Thus, even if the Secretary hadincluded miners suffering from industrial bronchitis within the scheme of thepresent Part 90 transfer-pay retention regulations, Perando would not have hada right under those provisions to transfer with pay retention to a less dustyposition since her underground work areas at Mettiki were consistently belowthe required Part 90 respirable dust level of 1.0 mg/m 3. M. Exh. R–2, Tr.74–77, 100–102 (May 1, 1986). To accord Perando the right asserted in this casewould confer upon her greater transfer-pay retention protection than thatenjoyed by Part 90 miners, an anomalous result. *Id*. at 495-496.

*CanterburyCoal Co.,*20 FMSHRC 718 (July 1998)., involving a citationissued by MSHA charging Canterbury with violating 30 C.F.R. § 90.102(a)1 “whenit transferred a Part 90 miner without his written consent, to a position on adifferent shift rotation in a low dust area of the mine,” similarly is notuseful to this matter. The Commission upheld the administrative law judge’sdetermination that the operator violated the provision by so acting. *Id.*at 723.

*Rochester& Pittsburgh Coal Corp.,*12 FMSHRC 189 (Feb.1990), is also inapplicable. There the Commission upheld the administrative lawjudge’s determination that R&P failed “to compensate a Part 90 miner at notless than the regular rate of pay received by that miner immediately before hisexercise of the Part 90 option.” *Id*. at 193. 

 

[25] Dolin’s candidremark came with his acknowledging that Matney had asked about whether he couldtake the dispatcher job. Dolin admitted “we talked about it. But, you know,with Cecil's knowledge and his ability and certified, you know, we tried toutilize him better for the mines and make sure that he was in a safe location.”Tr. 339.

[26] As noted earlier,the terms ‘outby foreman’ and ‘fire boss’ are used interchangeably. Tr. 263. 

[27] Matney agreedthat during his leave of absence he was paid everything duehim; his regular pay, and all bonuses. Tr. 163. Matneyis not an hourly employee. Tr. 314.