March 1987 

COMMISSION DECISIONS 

03-20-87 

03-20-87 

03-20-87 

03-20-87 

03-25-87 

03-30-87 

03-30-87 

Perry Drilling Company 

Patriot Coal Company 

Doug Connelly Sand & Gravel 

Sec.Labor/Andy Brackner v. Jim Walter 

Resources, Inc. 

Jim Walter Resources, Inc. 

Rushton Mining Company 

Sec. Labor/James & Robert Corbin & A.C. 

Taylor v. Sugartree Corp., & Terco, Inc~ 

ADMINISTRATIVE LAW JUDGE DECISIONS 

03-02-87 

03-05-87 

03-05-87 

03-05-87 

03-05-87 

03-05-87 

03-09-87 

03-11-87 

03-11-87 

03-11-87 

03-12-87 

03-16-87 

03-16-87 

03-17-87 

03-18-87 

03-19-87 

03-20-87 

03-20-87 

03-25-87 

03-25-87 

Sec.Labor/Bobby G. Keene v. S & M Coal Co. 

Newton J. Johnson v. Allied Coals, Inc. 

Larry Brian Anderson v. Consol Pennsylvania 

Coal Company 

Harlan L. Thurman v. Queen Anne Coal Co. 

Sierra Aggregate Company 

Alfred H. Cox v. Pammlid Coal Company 

Harlan L. Thurman v. Queen Anne Coal Co. 

Jim Walter Resources, Inc. 

Jim Walter Resources, Inc. 

Consolidation Coal Company 

James H. Harmon v. Consolidation Coal Co. 

Ronald Tolbert v. Chaney Creek Coal Corp. 

Emery Mining Corporation 

Jim Walter Resources, Inc. 

Ricky Vernon Hein v. Puskarich Limestone Co. 

Rushton Mining Company· 

Gary K. Ratcliff v. Crockett Coal Co., Inc. 

United States Steel Mining Co. 

Rushton Mining Company 

Brown Brothers Sand Company 

PENN 86-273 

WEVA 86-400 

WEST 86-196-M 

SE 86-69-D 

SE 87-29-R 

PENN 85-253-R 

KENT 84-255-D 

VA 86-34-D 

KENT 86-139-D 

PENN 86-221-D 

S.E 86-121-D 

WEST 85-162-M 

WEVA 86-73-D 

SE 86-121-D 

SE 86-139-R 

SE 86-141-R 

WEVA 86-386 

WEVA 86-375-D 

KENT 86-123-D 

WEST 86-101-R 

SE 86-125-R 

LAKE 87-22-DM 

PENN 86-44-R 

KENT 86-159-D 

WEVA 86-231 

PENN 85-279-R 

SE 86-23-M 

Pg. 379 

Pg. 382 

Pg. 385 

Pg. 388 

Pg. 390 

Pg. 392 

Pg. 394 

Pg. 401 

Pg. 409 

Pg. 413 

Pg. 419 

Pg. 426 

Pg. 435 

Pg. 526 

Pg. 533 

Pg. 538 

Pg. 545 

Pg. 549 

Pg. 580 

Pg. 595 

Pg. 604 

Pg. 610 

Pg. 611 

Pg. 618 

Pg. 619 

Pg. 630 

636 

MARCH i987 

The following cases were directed for review during the month of March: 

Secretary of Labor', MSHA v. Southern Ohio Coal Company, Docket Nos. 

WEVA 86-190-R, 86-194-R, 86-254. (Judge Maurer, February 2, 1987) 

Secreta~y of Labor, MSHA v. Union Oil Company of California, Docket No. 

WEST 86-1-M. (Judge Lasher, February 12, 1987) 

Secretary of Labor, MSHA v. Perry Drilling Company, Docket No. PENN 

86-273. (Judge Merlin, Default order of February 11, 1987) 

Secretary of Labor, MSHA v. Patriot Coal Company, Docket No. WEVA 

86-400. (Judge Merlin, Default order of February 11, 1987) 

Secretary of Labor, MSHA v. Doug Connelly Sand & Gravel Co., Docket 

No. WEST 86-196-M. (Judge,Merlin, Default order of February 11, 1987) 

Western Fuels-Utah, Inc., v. Secretary of Labor, MSHA, Docket No. 

WEST 86-108-R, WEST 86-245. (Judge Maurer, February 19, 1987) 

Rus.hton Mining Company v. Secretary of Labor, MSHA, Docket No. 

PENN 85-253-R, PENN 86-1. (Judge Broderick, February 20, 1987) 

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

Secretary of Labor, MSHA on behalf of Andy Brackner v. Jim Walter 

Resources, Inc., Docket No. SE 86-69-D. (Judge Broderick, February 9, 1987) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PERRY DRILLING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 20, 1987 

Docket No. PENN 86-273 

BEFORE: Ford, Chairman; Backley, Lastowka and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), 

Commission Chief Administrative Law Judge Paul Merlin issued an Order of 

Default on February 11, 1987, finding Perry Drilling Co. ("Perry 

Drilling") in default for failing to respond to a show cause order and 

assessing a civil penalty of $500. Six days after the default order 

issued, the judge's law clerk received a telephone call from Richard C. 

Perry of Perry Drilling in which Mr. Perry asserted, according to a 

memorandum placed in the official file by the law clerk, that the 

company had not received the Secretary of Labor 1 s penalty proposal or 

the show cause order. The clerk suggested that Perry advise the 

Commission in writing of these assertions. On February 26, 1987, the 

Commission received a letter from Perry stating that the company "never 

received the initial fine." We consider Perry's letter to constitute a 

timely petition for discretionary review, vacate the order of default, 

and remand for further proceedings. 

We have observed repeatedly that default is a harsh remedy and 

that if the defaulting party can make a showing of adequate or good 

cause for failing to respond, the failure may be excused and appropriate 

proceedings on the merits permitted. See,~·· Kelley Trucking Co., 

8 FMSHRC 1867, 1869 (December 1986); M.M. Sundt Constr. Co., 8 FMSHRC 

1269, 1271 (September 1986). Here, Perry Drilling filed a timely "Blue 

Card" request for a hearing in connection with the Secretary's proposed 

assessment of a civil penalty for one alleged violation of a mandatory 

safety standard. In response, the Secretary filed with the Commission a 

petition for assessment of civil penalty. When no answer to the 

petition was received, the judge, on November 26, 1986, ordered Perry 

. Drilling to send an answer or show cause for failure to do so. The show 

379 
cause order was mailed to Perry Drilling by certified mail, return 

receipt requested. The return receipt in the official file, dated 

December 2, 1986, bears the signature, "Richard C. Perry." 

We are unable on the basis of the present record to evaluate the 

credibility of Perry's assertions. We note that the Secretary attached 

a certificate of service to his petition for assessment of civil penalty 

stating that a copy of the petition was mailed to Richard C. Perry. 

Further, the signature "Richard C. Perry" appears on the return receipt 

of the judge's show cause order. We will permit Perry Drilling to 

present its position to the judge, who will determine whether sufficient 

grounds exist for excusing the failure to timely respond. ~··Kelley 

Trucking, supra, 8 FMSHRC at 1869. 

For the foregoing reasons, the judge's default order is vacated 

and this matter is remanded for proceedings consistent with this 

opinion. Perry Drilling is reminded to serve the Secretary with copies 

of all its correspondence and other filings in this matter. 29 C.F.R. 

§ 2700.7. ll 

Lastowk 

L. 

~ Clair Nelson, Commissioner 

lf Commissioner Doyle believes that, given the return receipt to the 

show cause order bearing Perry's signature and there being no assertion 

in Perry's letter of February 26 that he never received that order, the 

default order should not be vacated. 

380 
Distribution 

Richard C. Perry 

Perry Drilling Company 

Box 26 

Frostburg, PA 15740 

Therese I. Salus, Esq. 

Office,of the Solicitor 

U.S. Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

730 K Street, N.W., Suite 600 

Washington, D.C. 20006 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

.ADMINISTRATION (MSHA) 

v. 

PATRIOT COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 20, 1987 

Docket No. WEVA 86-400 

BEFORE: Ford, Ch~irman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), Commission Chief Administrative Law Judge Paul Merlin issued an Order of 

Default on February 11, 1987, finding Patriot Coal Company ("Patriot") 

in default for failure to respond to a show cause order. The judge 

assessed a civil penalty of $250. For the reasons that follow, we 

vacate the default order and remand the case for further proceedings. 

On March 3, 1987, Patriot's general manager wrote a letter to 

Judge Merlin requesting that the judge review his decision in light of 

its answer, attached to the letter. The attachment, a letter from 

Patriot's president dated Jariuary 5, 1987, and addressed to the 

Department of Labor's Regional Solicitor in Philadelphia, contains a 

short and plain statement of the reasons why Patriot disagrees with a 

backup alarm violation alleged by the Secretary. Patriot's March 3 

letter was received by the Commission on March 9, 1987. 

The judge's jurisdiction over the case terminated when his 

decision was issued. 29 C.F.R. § 2700.65(c). We are trr;ating Patriot's 

letter requesting review of the judge's order as a timely petition for 

discretionary review because it was received within 30 days of the 

judge's decision. 29 C.F.R. § 2700.70(a). The petition is granted. 

'!'he record discloses that on April 16, 1986, an inspector of the 

Department of Labor's Mine Safety and Health A~inistration ( 11MSHA11 ) 

issued a citation to Patriot alleging a violation of 30 C.F.R. § 77.410 

for failure to equip a parts truck with an automatic warning device. 

Upon preliminary notification by MSHA of the civil penalty proposed for 

the alleged violation, Patriot filed a 11Blue Card" request for a hearing 

before this independent Commission. On August 25, 1986, counsel for the 

382 
Secretary served Patriot with the Secretary's penalty proposal. When no 

answer to the penalty proposal was filed, the judge, on November 18, 

1986, issued a show cause order directing Patriot to file an answer 

within 30 days or show good reason for the failure to do so. As noted, 

Patriot's president served an answer on the Secretary by mail on January 

5, 1987. Other than as an attachment to Patriot's March 3 letter, the 

Commission's official record does not contain a copy of the answer. 

Under the Commission's rules of procedure, the party against whom a 

penalty is sought must file an answer with the Commission within 30 days 

after service of the proposal for penalty. 29 C.F.R. § 2700.S(b) & .28. 

Patriot's March 3 letter also mentions a thirty-day extension of 

time in which to answer, which it states it requested and was granted. 

Again, the Commission's official record contains no documentation that 

such a request was made or granted. 

Patriot has not provided any explanation for its failure to file a 

timely answer or for its failure to timely respond to the judge's show 

cause order. However, we note that Patriot is proceeding pro ~· that 

it did serve the Secretary with its answer prior to issuance of the 

judge's default order, and did bring the existence of a possible excuse 

to the attention of the Commission. In light of these factors, we 

believe that the operator should have the opportunity to present its 

position to the judge. 

For the foregoing reasons, the judge's default order is vacated 

and the matter is remanded to the judge, who shall determine whether 

relief from default is appropriate. See,~·· Kelley Trucking Co., 

8 FMSHRC 1867, 1869 (December 1986). 

383 
Distribution 

Richard B. Bolen, Gen. Mgr. 

Patriot Coal Company 

Route 12, Box 245 

Morgantown, West Virginia 26505 

James E. Culp, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March:20, 1987 

Docket No. WEST 86-196-M 

DOUG CONNELLY SAND & GRAVEL 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

In this civil penalty proceeding ar1s1ng under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), Commission Chief Administrative Law Judge Paul Merlin issued an Order of 

Default on February 11, 1987, finding Doug Connelly Sand & Gravel 

("Connelly") in default for failure to respond to a show cause order. 

The judge assessed civil penalties totalling $2,179. For the reasons 

that follow, we vacate the default order and remand the case for further 

proceedings. 

On March 3, 1987, Connelly's attorney wrote a letter to Judge 

Merlin seeking vacation of the default order on the ground that he 

mistakenly had filed Connelly's answer to the Secretary's penalty 

proposal with counsel for the Secretary instead of with the Commission. 

In support of this assertion, copies of Connelly's Answer, Affirmative 

Defense and Counterclaim were attached to the letter, together with 

copies of a mailing receipt for certified mail dated August 7, 1986, and 

a signed receipt for delivery dated August 8, 1986. Connelly's lettf,r 

was received by the Commission on March 6, 1987. 

The judge's jurisdiction over the case terminated when his 

decision was issued. 29 C.F.R. § 2700.65(c). We will treat Connelly 1 s 

letter requesting relief from the judge's order as a timely petition for 

discretionary review because it was received within 30 days of the 

judge's decision. 29 C.F.R. § 2700.70(a). The petition is granted. 

The record discloses that on May 1 and 2, 1986~ an inspector of 

the Department of Labor's Mine Safety and Health Administration ("MSHA") 

issued nine citations to Connelly alleging violations of various safety 

385 
regulations. Upon preliminary notification by MSHA of the civil 

penalties proposed for these alleged violations, Connelly's owner filed 

a "Blue Card" request for a hearing before this independent Commission. 

On July 24, 1986, counsel for the Secretary served him with the 

Secretary's penalty proposal. As noted, Connelly's attorrtey served an 

answer on the Secretary by certified mail return receipt requested on 

August 7, 1986. However, the document was never filed with the 

C0mmission. Under the Commission's rules of procedure, the party 

against whom a penalty is sought must file an answer with the Commission 

within 30 days after service of the penalty proposal. 29 C.F.R. 

§ 2700.S(b) & 28. 

Not having entered an appearance, Connelly's attorney never 

appeared on the distribution list for relevant Commission documents. 

The return receipt for the judge's show cause order indicates that it 

was ·delivered to-someone named 11Connelly. 11 While Connelly failed to 

respond to the judge's show· cause order, we recognize that Connelly's 

attorney did prepare an answer and serve it on the Secretary in a timely 

manner. In light of this fact and counsel's promptness in bringing the 

existence of a possible excuse to the attention of the Commission, we 

believe that the operator should have the opport~nity to present its 

position to the judge. 

For the foregoing reasons, the judge's default order is vacated 

and the matter is remanded to the judge, who shall determine whether 

relief is appropriate. See,~·· Kelley Trucking Co., 8 FMSHRC 1867, 

1869 (December 1986). 

~ ~irm~-n-/_/ __ _ 

f.~-;;~G£44~)tic~ k-. -

'Richard V. Backley, Commis~r Y 

L. Clair Nelson, Commissioner 

386 
Distribution 

Gary W. Brandstetter, Esq. 

Suite 5 Katlin Building 

122 Avenue A 

Snohomish, Washington 98290 

Faye von Wrangel, Esq. 

Office of the Solicitor 

U.S. Department of Lab.or 

8003 Federal Office Bldg. 

Seattle, Washington 98174 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, Suite 600 

Washington, D.C. 20006 

387 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

ON BEHALF OF ANDY BRACKNER 

v. 

JIM WALTER RESOURCES, INC. 

March 20, 1987 

·Docket No. SE 86-69-D 

ORDER 

On March 16, 1987, Jim Walter Resources, Inc. ("JWR") filed with 

the Commission a petition for discretionary review of the administrative 

law judge's decision issued February 9, 1987. The petition was untimely 

filed and contains no explanation for the late filing. Moreover, the 

petition contains no reasons supporting the assignments of error. 

Accordingly, the petition for discretionary review is dismissed. 

Valley Rock and Sand Corp., 2 MSHC 1673 (March 1982); Victor McCoy v. 

Crescent Coal Co., 2 FMSHRC 1202 (June 1980). 

~ 

Richard 

~/~ V. Backley, Commissioner 

~L~~ L. Clair Nelson, Commissioner 

3$8 
Distribution 

David M. Smith, Esq. 

Maynard, Cooper, Frierson & Gale, P.C. 

12th Floor, Watts Bldg. 

Birmingham, AL 35203 

Ann Rosenthal, Esq. 

Office ~f the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge James Broderick 

Federal Mine Safety and Health 

Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

389 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JIM WALTER RESOURCES, HTC. , 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 25, 1987 

Docket No. SE 87-29-R 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka and Nelson, Commissioners 

ORDER 

BY THE COMMISSION: 

In this matter pending on review, Jim Walter Resources, Inc. ("JWR"), 

has filed an unopposed motion to withdraw its petition for. discretionary 

review and to dismiss the proceeding. 

In his decision below, Commission Administrative Law Judge Avram 

Weisberger concluded that JWR had failed to comply with a notice to 

provide safeguards relating to clearance on an underground rail system 

and dismissed JWR's contest of the citation issued for the violation. 

9 FMSHRC 102 (January 1987)(ALJ). On February 24, 1987, the Commission 

granted JWR's petition for discretionary review. In its present motion, 

JWR asserts that a stop-block system has been installed along. the rail 

system to abate the alleged violation and that now "[n]o true dispute 

remains between the parties •••• " JWR also states that the Secretary 

of Labor does not oppose the granting of this motion. 

Upon consideration of Jt1R's motion, it is granted. Accordingly, 

the Commission's direction for review in this matter is vacated, and 

this proceeding is dismissed. 

ames A. Lastowka, Commissioner . '. / \ \..... . i / J -·fi , I , .. -r.--..' , \ r . ,/ Ji ~ .· I ./ I · I '· , , -·.A..-~- v· .1 ·-·'- '-·"r1t7\./ 

t". Clair Nelson, Commissioner 

390 
Distribution 

R. Stanley Morrow, Esq. 

Harold D. Rice, Esq. 

Jim Walter Resources, Inc. 

P.O. Box C-79 

Birmingham, Alabama 35283 

Harold D. Rice, Esq. 

Jim Walter Corporation 

1500 North Dale Mabry Highway 

Tampa, Florida 33607 

Barry Wisor, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety and Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

391 
FEDERAL MINE SAFm AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

OFFICE OF THE CHAIRMAN 

RUSHTON MINING COl-0.'ANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

WASHINGTON, D.C. 20006 

March 30, 1987 

Docket Nos. PENN 85-253-R 

PENN 86-1 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson, 

Commissioners 

ORDER 

BY THE COMMISSION: 

Petitioner, Rushton Mining Company, has filed a petition for discretionary review together with a motion to stay the administrative law 

judge's decision and a motion to remand this case to the judge for 

further proceedings. 

Petitioner presents two ·issues: Whether an operator is entitled to 

reimbursement from the Secretary for costs and attorney's fees under 

Rule 11 of the Federal Rules of Civil Procedure and, if so, whether the 

facts in this case support such reimbursement. 

The administrative law judge's jurisdiction in this case ceased 

with the issuance of his decision on February 20, 1987. Thus, by operation of Commission Rule 2700.65, petitioner did not have the opportunity 

to present the issue of reimbursement before the trier of fact. 

We believe that under the circumstances it is appropriate that the 

administrative law judge be given the opportunity to rule on the issues 

raised in the petition. 

392 
Accordingly, it is ordered that this case be remanded to the administrative law judge for the purpose of developing a record and ruling on 

the issues presented in the petition for discretionary review. 

Distribution 

Joseph T. Kosek, Jr . ., Esq. 

Rushton Mining Company 

P.O. Box367 

Ebensburg, PA 15931 

David T. Bush, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

/) 

,~//_(~~~ Richard V. Backley, CommisSiOn~ 

Joyce ~~d~ A. Doyle, cOlllmiSSi:ner 

-~ :IK9G=er 

L. Clair Nelson, Commissioner 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

393 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 30, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of JAMES CORBIN, 

ROBERT CORBIN, and A.C. TAYLOR 

Docket No. KENT 84-255-D 

v. 

SUGARTREE CORPORATION, 

TERCO, INC., and RANDAL LAWSON 

BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson, 

Commissioners 

DECISION 

BY THE COMMISSION: 

This discrimination proceeding arises under section lOS(c) of the 

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

(1982). 1/ Terco, Inc. ( 11Terco11 ), seeks review of a decision by 

Corranission Administrative Law Judge Gary Melick finding Terco, as 

successor to Sugartree Corporation ("Sugartree"), liable for back pay 

and other costs determined to be due as a result of Sugartree's 

1./ Section lOS(c)(l) of the Mine Act states in pertinent part: 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere 

with the exercise of the statutory rights of any 

miner, representative of miners or applicant for 

employment in any coal or other mine subject to this 

[Act] because such miner, representative of miners 

or applicant for employment has filed or made a 

complaint under or related to this [Act], including 

a complaint notifying the operator or the operator's 

agent, or the representative of the miners at the 

coal or other mine of an alleged danger or safety or 

health violation in a coal or other mine ••• , or 

because of the exercise by such miner~ representative of miners or applicant for employment on 

behalf of himself or others of any statutory right 

afforded by this [Act]. 

30 U.S.C. § 815(c)(l). 

394 
discriminatory discharge of the complainants. 8 FMSHRC 206 (February 

1986)(and appendices)(ALJ). For the reasons set forth below, we affirm. 

Sugartree was owned by Randal Lawson, who was also its president. 

In July 1984, Sugartree operated the Sugartree No. 1 coal mine in K~ox 

County, Kentucky. On the last workday prior to the July 4, 1984 

holiday, and again on July 5, 1984, 1Sugartree miners James Corbin, 

Robert Corbin, and A.C. Taylor complained to their section foreman and 

to mine foreman Joe Watkins th~t malfunctioning watersprays on the 

continuous mining machine were cr~ating a severe dust and ventilation 

hazard in the section where the miners were working. On July 5, 1984', 

after unsuccessful repair efforts; Watkins ordered the crew of seven or 

eight miners to continue working, but the entire crew left the mine 

rather than ~ork under the existing dusty conditions. The crew returned 

to work the next day and, at the end of their shift, Watkins issued to 

the Corbins and Taylor lay-off slips that attributed dismissal "to the 

sharp decline in production during the last several weeks." No other 

miners were laid off. Lawson testified that he had picked these three 

miners for lay off because "they were the ones that [were] complaining •..• " Tr. 406. '!:_/ 

On July 12, 1984, the three miners filed complaints of discriminatory discharge with MSHA. 30 U.S.C. § 815(c)(2). Shortly thereafter, 

in July 1984, Sugartree ceased mining operations and Terco began mining 

at the same mine. On September 15, 1984, Terco, pursuant to 30 C.F.R. 

Part 41, submitted to MSHA a legal identity report for the "Terco No. 2 

Mine" that bore the same mine I.D. number as the Sugartree No. 1 Mine. 

The report listed Randal Lawson as president of Terco. 

On September 25, 1984, the Secretary of Labor filed with the 

Commission applications for the temporary reinstatement of the complainants. 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.44 (1984). Two days 

later Commission Chief Administrative Law Judge Paul Merlin issued 

orders of temporary reinstatement directed to Sugartree. Shortly after 

receiving copies of Judge Merlin's order, the two Corbins went to the 

mine to be reinstated but were informed that they would have to apply to 

Terco for employment. On October 3, 1984, the Secretary moved to amend 

the reinstatement orders by including Randal Lawson and Terco as 

parties. However, no further action concerning temporary reinstatement 

was taken pending determination of Terco 1 s liability. A subsequent 

legal identity report for Terco and the Terco No. 2 mine, submitted on 

February 2, 1985, listed Terry McCreary as president and Carol McCreary 

as secretary. Both McCrearys had served p1~eviously as officers of 

Sugartree, Terry McCreary as vice-president and Carol McCreary as 

secretary-treasurer. 

~/ On July 10, 1984, an inspector of the Department of Labor's Mine 

Safety and Health Administration ("MSHA") conducted a ventilation 

inspection at Sugartree No. 1 mine and issued to Sugartree two 

citations, one of which alleged that the water pressure in the 

continuous miner's spray system was lower than required by the mine's 

ventilation plan. 

395 
On December 27, 1984, the Secretary filed a discrimination 

complaint against Sugartree on behalf of the three complainants. 30 

U.S.C. § 815(c)(2). In April 1985, following prehearing discovery, 

Judge Melick permitted the Secretary to amend the complaint to add 

Lawson and Terco as respondents. 

After a hearing on the merits, the judge concluded that the 

complainants had been discharged from their jobs in violation of section 

105(c)(l) of the Mine Act. In reaching this conclusion, the judge found 

that the complainants had made protected safety complaints regarding 

both the defective water spray on the continuous mining machine and the 

unhealthy dust conditions in the working section of the mine and had 

engaged in a protected work refusal. 8 FMSHRC at 209-12. He further 

determined that the complainants were laid off permanently, , 

discharged "based solely on their protected safety complaints and/or 

their refusal to work in the face of clearly hazardous conditions." 

8 FMSHRC at 211-12. The judge found that Randal Lawson, as an 

individual, and Sugartree, for which Lawson was an agent, were 

responsible for the unlawful discharges and, consequently, were liable 

for violating complainants' rights under the Mine Act. 8 FMSHRC at 212. 

The judge further determined that Terco was Sugartree's successor and, 

as such, was jointly and severally liable for remedying the illegal 

discrimination. 8 FMSHRC at 212-14. The judge assessed a $1,000 civil 

penalty against Sugartree, Terco, and Lawson for the violation of 

section 105(c)(l), ordered them to pay approximately $35,000 in back pay 

and interest to each of the complainants, and directed Terco to 

reinstate immediately the complainants either to the same positions held 

at the time of their illegal discharges or to comparable positions. 8 

FMSHRC at 206-07, 214-15. J/ 

J/ Terco thereafter reinstated the Corbins. Complainant Taylor 

waived reinstatement because he had obtained other employment. On July 

23, 1986, the Secretary filed new discrimination complaints on behalf of 

the Corbins, alleging that they had again been discharged illegally by 

Terco. FMSHRC Docket Nos. KENT 86-131-D & 86-132-D. The cases were 

assigned to Judge Melick and ultimately became the subject of a 

settlement agreement between the Secretary and Terco, under the terms of 

which Terco agreed to pay the Corbins $50,000 damages and the Corbins 

agreed to waive any right to reinstatement by Terco. The Secretary 

agreed to "forego any enforcement action on behalf of the Corbins 11 in 

the instant proceeding. However, the settlement agreement also stated 

that in this present proceeding the Secretary would "take all action 

necessary to enforce the award on behalf of A.C. Taylor," who was not a 

party to the agreement. Based on the settlement, Judge Melick allowed 

the Secretary to withdraw the new discrimination complaints and 

dismissed those proceedings. 9 FMSHRC 24 (January 1987)(ALJ). The 

Secretary then moved the Commission to vacate that portion of the 

Commission's direction for review in the pending proceeding pertaining 

to liability and remedial issues affecting the Corbins. We granted the 

motion, but emphasized that all liability issues (including the question 

of successorship) and all personal remedy issues insofar as they affect 

•.• A.G. Taylor, remain for decision. 11 9 FMSHRC 197, slip op. at 2 

(February 10, 1987). 

396 
. Terco was the sole respondent to seek review of the judge's final 

decision. Terco has raised no question on appeal regarding the validity 

of the judge's findings of unlawful discrimination or the responsibility 

of Lawson and Sugartree for the violation. The sole question before us 

concerns the derivative liability of Sugartree's a~leged successor, 

Terco. 

To determine whether Terco was liable for the damages stemming 

from Sugartree 1 s discrimination, the judge applied the successorship 

doctrine enunciated by the Commission in Glenn Munsey v. Smitty Baker 

Coal Co., 2 FMSHRC 3463 (December 1980), aff 1 d in relevant part, rev'd 

in part on other grounds sub nom. Munsey v. FMSHRC, 701 F.2d 976 (D.C. 

Cir. 1983), cert. denied, 464 U.S. 851 (1983), and analyzed the case 

_according to the nine factors set forth in Munsey (see 2 FMSHRC at 3465-

66) for determining successorship status. 8 FMSHRC at 212-14. In 

particular, the judge found as follows: Terco had notice of the charges 

of discrimination; Sugartree ~ould not provide remedial relief to the 

complainants; and a substantial continuity of business operations was 

maintained from Sugartree to Terco. 8 FMSHRC at 213-14. On the basis 

of these findings the judge concluded: "Terco was a successor business 

entity [to Sugartree] and accordingly is jointly and severally liable 

for [Sugartree's] illegal acts of discrimination in this case." 8 

FMSHRC at 214. 

In Munsey, this Commission noted that the statutory protection 

against discrimination afforded miners is similar to the statutory 

protection afforded workers under other labor statutes. The Commission 

stated: "In certain circumstances, the protections of· those other 

statutes have been construed to include the liability of bona fide 

purchasers and other successors for their predecessors' act of 

discrimination ••• and ... in appropriate cases the successorship 

doctrine should also be applied [by the Commission] .••. " 2 FMSHRC at 

3465. Although Munsey was decided under the Federal Coal Mine Health 

and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977) 

("Coal Act 11 ), the predecessor to the Mine Act, the discrimination 

protections afforded miners under the Mine Act are even greater than 

those afforded miners under the Coal Act, and the successorship doctrine 

clearly applies under the Mine Act as well. 

In determining whether a successor should be required to remedy 

unlawful discrimination, consideration of a variety of relevant 

liability and economic factors is appropriate. In Munsey, the 

Conunission approved for consideration nine such factors: 

(1) whether the successor company had notice of the 

charge, (2) thP- ability of the predecessor to 

provide relief, (3) whether there has been a 

substantial continuity of business operations 1

, 

(4) whether the new employer uses the same plant, 

(5) whether he uses the same or substantially the 

same work force, (6) whether he uses the same or 

substantially the same supervisory personnel, 

(7) whether the same jobs eJJ-:i_st under substantially 

the same working conditions~ (8) whether he uses the 

397 
same machinery, equipment and methods of production 

and (9) whether he produces the same products. 

2 FMSHRC at 3465-66 (restating factors set forth in EEOC v. MacMillan 

Bloedel Containers, Inc., 503 F.2d 1086, 1094 (6th Cir. 1974)). These 

and similar factors have been applied under both the Civil Rights Act of 

1~94 (~.,MacMillan Bloedel, supra) and the National Labor Relations 

Act(~., NLRB v. Winco Petroleum Co., 668 F.2d 973, 976-78 (8th Cir. 

1982)). 

The first two factors considered by the judge were whether Terco 

had notice of the complainants' charges when it acquired Sugartree 1 s 

business operations and whether Sugartree was able to provide relief to 

the complainants. Substantial evidence supports the judge's findings 

that Terco 1 s know~edge of complainants' charges may be inferred 

reasonably and that 'Sugartre~ was unable to provide relief. Legal 

identity forms submitted by Sugartree in July 1984 and by Terco in 

September 1984 listed Randal Lawson as president and Carol McCreary as 

secretary-treasurer of both companies. The complainants filed their 

complaint of discrimination with MSHA on July 12, 1984, and MSHA's 

investigation of the complaint followed. We agree with the judge that 

the existence of identical corporate officers during this period is 

evidence that Terco had notice of the complainants' charges, 

particularly where, as here, Lawson, by his own admission, discharged 

the complainants for an illegal reason. Terco cannot be heard to say 

that it lacked notice of potential liability arising from the illegal 

actions of its president at the time it succeeded to Sugartree 1 s mining 

operation. As to the ability of Sugartree to provide relief, it is 

clear from the record that Sugartree ceased business activity and that 

its assets were sold to satisfy Lawson's personal debts. Tr. 432. 

Under these circumstances, complainants could not obtain reinstatement 

or monetary damages from Sugartree. 

The seven other factors discussed in Munsey provide a framework 

for analyzing the crucial question of whether there was a continuity of 

business operations and work force between the successor and its 

predecessor. Here, the judge found that a substantial continuity in 

business operations was maintained from Sugartree to Terco, and the 

evidence substantiates this finding. A comparison of the payroll 

records of Sugartree and Terco indicates that of the fifteen employees 

hired by Terco in July 1984 for the Terco No. 2 mine (formerly the 

subject Sugartree mine), approximately thirteen were employed formerly 

by Sugartree. Ex .• P-27; Tr. 488-491. Terco acimits that approximately 

50% of its total work force is composed of former Sugartree employees. 

T. Br. 3. Further, Terco continued to mine coal at the same mine and 

Sugartree 1 s mine superintendent and section for~man remained with Terco. 

Although Terco made some changes in its mining methods and equipment, 

these changes were dictated primarily by the r~quirements of mining 

engineering and not by any substantial change in its business operation. 

Moreover) no change in personnel was required to effect these changes. 

Under these circumstances, we conclude that the judge properly found 

that there was a substantial continuity in business operations between 

Sugartree and Terco. 

398 
Terco, citing Golden State Bottling Co. v. NLRB, 414 U.S. 168 

(1973), argues that only a successor who purchases the assets and stock 

of its predecessor with knowledge of the charges of discrimination may 

be held liable for remedy of the predecessor's illegal acts. Terco 

asserts that it did not make such a purchase but rather merely acquired 

Sugartree 1 s coal leases. We reject this narrow reading of the 

principles of successorship law. Golden State does not hold that the 

purchase of the assets or stock of the predecessor by the successor is 

necessarily the determinative factor in establishing successorship. 

Rather, the Court merely emphasized that in cases like Golden State, 

which involve a bona fide purchaser, the successor may protect itself in 

the purchase arrangement against any potential liability. 414 U.S. 172-

74. Purchase of the assets or stock of the predecessor undoubtedly 

should be weighed in the mix of successorship factors when it is 

present. However, its absence does not negate a finding of successorship liability. As the Court recognized, successorship transactions may 

assume many forms and liability may obtain in a number of business 

contexts. 414 U.S. at 182-83 n. 5. See also Munsey, 2 FMSHRC at 3465. 

Accordingly, we affirm the judge's decision and, in particular, 

his finding that Terco is a successor business entity to Sugartree 

jointly and severally liable for remedying the illegal acts of 

discrimination committed by Sugartree and Lawson. In light of the 

settlement agreement discussed above and the Commission 1 s prior order 

vacating that portion of the direction for review in this case 

pertaining to the Corbins (n. 3 supra), Sugartree, Terco and Lawson are 

directed to immediately comply with that portion of the judge's order 

directing payment of monetary damages to A.G. Taylor. 

~-n----

399 
Distribution 

Mary Griffin, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Carlos Morris, Esq. 

Morris & Morris 

P.O. Box 1008 

Barbourville, Kentucky 40906 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

400 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 1987 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY.AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF BOBBY G. KEENE, 

Complainant 

v. 

S & M COAL CO., INC., 

JEWELL SMOKELESS COAL 

CORPORATION, 

PRESTIGE COAL COMPANY, INC., 

TOLBERT P. MULLINS, and 

SHIRLEY A. MULLINS, 

Respondents 

. . 

. . 

. . 

. . 

. . 

. . 

Docket No. VA 86-34-D 

NORT CD 86-8 

No. 4 Mine 

DECISION 

Appearances: Carol Feinberg, Esq., and Jonathan Kronheim, 

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

of Labor, Arlington, Virginia, for the 

Complainant; 

Daniel Bieger, Esq., and Gay Leonard, Esq., 

Copeland, Molinary and Bieger, Abingdon, 

Virginia, for S&M Coal Co., Inc., Prestige Coal 

Co., Inc., Tolbert P. Mullins and Shirley A. 

Mullins; Joseph Bowman, Esq., for Jewell 

Smokeless Coal Corporation. 

Before: Judge Melick 

This case is before me upon the complaint by the 

Secretary of Labor on behalf of Bobby Keene under section 

105(c){2) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et~, the "Act", alleging that Mr. Keene 

was discharged rom S&M coal Company, Incorporated (S&M) on 

February 13, 1986, in violation of section 105(c)(l) of the 

401 
Act.l/ The Secretary further alleges in this case that 

Tolbert Mullins, part owner and president of S&M, was a 

"person" under section 105Cc)(l) also responsible for the 

unlawful discharge of (and unlawful failure to rehire) Mr. 

Keene. The Secretary also alleges that Prestige Coal Corporation (Prestige) is a successor-in-interest to S&M and as such 

is jointly and severally liable for costs, damages and the 

reinstatement of Mr. Keene.~/ 

In order to establish a prima facie violation of section 

105(c)(l) the-Complainant must prove by a preponderance of 

the evidence that Mr. Keene was engaged in an activity protected by that section and that the discriminatory action 

taken against him was motivated in any part by that protected 

activity. Secretary on behalf of Pasula v. Consolidation 

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

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 C3d 

Cir. 1981). See also Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 

1983) and NLRB v.'rr'ansportation Management Corporation, 462 

U.S. 393 (1983), affirming burden of proof allocations 

similar to those in the Pasula case. A miner's "work 

refusal" is protected under section 105(c) of the Act if the 

~/ Section 105(c)(l) of the Act provides in part as follows: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the statutory rights of any miner • • • in any coal or other mine subject to this Act because such miner ••• has filed or made a 

complaint under or related to this Act, including a complaint 

notifying the operator or the operator's agent ••• of an 

alleged danger or safety or health violation in a coal or 

other mine ••• or because such miner ••• has instituted 

or caused to be instituted any proceedings under or related 

to this Act or has testified or is about to testify in any 

such proceeding, or because of the exercise by such miner ••• 

on behalf of himself or others of any statutory right afforded 

by this Act. 

~/ At hearing the Secretary, with Mr. Keene's consent, moved 

to dismiss Jewell Smokeless Coal Corporation as a 

Party/Respondent in light of the settlement agreement filed 

herein. At the close of hearing the Secretary also agreed to 

the dismissal of Shirley Mullins as a Party/Respondent. 

There was no objection to what were redeemed to be requests 

to withdraw pleadings under Commission Rule 11, 29 C.F.R. § 

2700.11, and the requests were granted. 

402 
miner has a good faith, reasonable belief in the existence of 

a hazardous condition. Miller v. FMSHRC·, 687 F.2d 194 (7th 

Cir. 1982>: Secretary on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803 (1981). 

The evidence shows that Bobby Keene was a statecertif ied electrical repairman and maintenance foreman with 

underground mining experience dating from 1974. He began 

working for the Mullins Coal Company in 1984 as an electrician responsible for maintaining electrical equipment and the 

electrical "books" and was transferred by Tolbert Mullins to 

S&M as an electrician in the latter part of 1985. 

While at S&M, Keene became concerned because there was 

"too much bridging going on". As described by Keene, 

"bridging" is the utilization of a piece of wire on any 

electrical equipment to bypass its safety features. Anyone 

touching equipment that has been "bridged-out" can be electrocuted under certain conditions. 

According to Keene, about two weeks before February 13, 

1986, he was asked by Mine Superintendant Monroe Nichols to 

"bridge" the transformer and he refused. Around the same 

time Nichols also asked him to "bridge" the ground fault 

system and again Keene refused. Keene also complained to 

both Nichols and Section Foreman Jerry Looney around this 

time about "bridging-out" the ground system to the miner. 

According to Keene, Nichols responded that he would 

"bridge-out" whenever and whatever he wanted so long as he 

was supetintendant. 

On his way into the mine at the commencement of the day 

shift on February 13, 1986, Keene was telling the workcrew on 

the mantrip in effect that the "bridging" would have to stop. 

Later he told Nichols that if the "bridging" was not stopped 

then that Friday (the next day} would probably be his last 

shift. Around 10:30 that morning the continuous miner 

"tripped". Keene repaired the problem but as they began 

running coal, the breaker again "tripped" and the power was 

cut. The breaker would not reset this time and Keene told 

Section Foreman Looney that there was trouble in the ground 

monitor system of the miner cable. According to Keene, 

Looney then told him "to bridge the cable at the transformer" 

and when Keene refused stating that it would be unsafe for 

the miner operator, Looney gave him the choice of either 

"bridging" the cable or getting his "bucket" and leaving for 

home. Keene decided to leave and on the way out ran into 

Superintendant Nichols. Keene says he told Nichols that 

Looney fi~ed him because he refused to "bridge-out" the cable. 

Keene also reportedly told Nichols that he was going to talk 

403 
to the "Federals" about it. K:eene explained at hearing that 

there was a "big risk" of electrial shock and electrocution 

to operate the miner with a "bridged-out" cable. 

Keene's testimony was corroborated in essential respects 

by three othez; miners. Michael Sayers worked the day shift 

operating the shuttle car. He observed that during the first 

two months of 1986 the continuous miner broke down almost 

daily because of the cable. According to Sayers if the cable 

coula not be fixed either Bobby Keene or Jerry Looney would 

"bridge it out." He had heard both Looney and Nichols tell 

Keene to "bridge-out" the system. He also heard Keene 

complain while on the mantrip into the mine that he was tired 

of "bridging-out" the cables and that he was afraid somebody 

was going to get hurt or killed. According to Sayers, Loo.ney 

only replied that "we've got to run coal somehow, someway". 

On February 13, Sayers heard Keene say that he had been fired 

for "bridging" the cable and Superintendant Monroe responded 

that "well something has got to give around here". According 

to Sayers both Looney' and Nichols continued to "bridge-out" 

the miner after Keene left the mine. 

Matney was day shift miner operator at the No. 4 mine .. He too had heard Keene complain about "bridging-out" the 

cables and specifically heard him say that if the practice 

was not stopped "someone is going to get killed." According 

to Matney it was standard practice to "bridge-out" the cable 

if it could not be fixed within a few minutes. During the 

day shift on February 13, 1986 Matney heard Looney tell Keene 

to either "bridge-out" the cable or get his bucket and walk. 

Keene left the mine and only a few minutes later they were 

again running coal. Nichols and Looney continued to 

"bridge-out" the equipment. 

Jimmy Sexton was hired on February 17, 1986 as a shuttle 

car operator. He observed that when the continuous miner 

broke down it was standard practice at the mine for Looney or 

Nichols to "bridge-it-out." 

Keene's testimony is further corroborated by Looney 

himself. Looney acknowledged that he said to Keene "let's 

bridge it out" just before telling Keene that if he did not 

like the way the mine was operated he could leave. Looney 

also acknowledged that he was not then a certified electrician 

and that he knew that "bridging-out" the miner could result in 

fatal electrial shock. 

Of the remaining witnesses testifying on,behalf of the 

Respondent only George Lester was present during this 

exchange between Keene and Looney. It· is apparent however 

404 
that even Lester failed to hear critical parts of the 

exchange. For example while Looney admitted that he said to 

Keene "let's bridge-out the monitor", Lester purportedly did 

not hear that statement. Lester's testimony at hearing also 

conflicts with a prehearing interview and his credibility 

suffers accordingly. 

I find additional material support to the Complainant's 

case in the testimony of both of Respondent's witnesses, 

Moproe Nichols and Jerry Looney. Both admitted that they had 

"bridged-out"- electrical equipment, a procedure they knew to 

be in violation of federal regulatory standards and hazardous. 

Indeed the evidence in this case is uncontradicted that Keene 

was in effect told to perform an illegal and dangerous procedure or be fired. Keene clearly entertained a good faith 

and reasonable belief that the procedure of "bridging" was 

hazardous to himself or to anyone coming into contact with 

the "bridged-o~t" miner. Consolidation Coal Co. v. FMSHRC et. 

al., 795 F.2d 364 (4th Cir. 1986). I also find that since 

the dangers inherent in such a procedure were obvious and 

admittedly known to both Looney and Nichols there was no need 

to further "communicate" the nature of the hazard to them. 

See Secretary on behalf of Dunmire and Estle v. Northern Coal 

Co., 4 FMSHRC 126 (1982). Keene's departure from the mine 

immediately after being given the choice of performing a 

procedure known to be illegal and likely to have fatal 

consequences to himself or others or getting his bucket and 

walking was accordingly a discharge in violation of the Act. 

Robinette, supra. 

The Complainant in this case also alleges that Tolbert 

Mullins is individually liable as a "person" unlawfully discriminating against him under section 105(c)(l). See footnote 1, supra. According to Keene, on February 26~9~he 

telephoned Mr. Mullins at the request of the MSHA investigator in efforts to settle the case. Keene says that during 

the course of this conversation Mullins told him that he 

could have his job back but only as an electrician. Moreover 

in response to Keene's concerns about the illegal practice at 

S&M of "bridging-out" electrical equipment Mullins purportedly 

responded that Keene would not have to report the practice in 

the electrical inspection books.3/ This conversational 

exchange is not disputed and accordingly I accept Keene's 

3; It is undisputed that Keene as a certified electrician 

would be legally required to report such violative conditions 

in the electrical inspection books. 

405 
testimony in this regard. This evidence clearly supports a 

finding that Mullins, as an individual, was a "person" 

discriminating against Keene in violation of the Act in his 

refusal to reemploy Keene except under illegal and dangerous 

conditions. See Munsey v. Smitty Baker Coal Company, Inc., 

et al, 2 FMSHRC 3463 (1980). 

Finally the Complainant argues that Prestige Coal 

Company Inc., (Prestige) is a successor-in-interest to S&M 

Coal Company and accordingly under the criteria set forth in 

the Munsey decision is jointly and severally liable for · 

costs, damages and reinstatement in this case. In Munsey 

the Commission applied the factors used by the Federal Courts 

in EEOC v. McMillan Blowdell Containers, Inc., 503 F.2d 1086, 

1094 (6th Cir. 1974) for determining such liability. These 

factors are: Cl> whether the successor company had notice of 

the charge, (2) the ability of the predecessor to provide 

relief, (3) whether there has been a substantial continuity 

of business operations, (4) whether the new employer uses the 

same plant, (5) whether it uses the same or substantially the 

same work force (6) whether it uses the same or substantially 

the same supervisory personnel, (7) whether the same jobs 

exist under substantially the same working conditions, (8) 

whether it uses the same machinery, equipment, and methods of 

production, and (9) whether it produces the same product. 

In this case there is no dispute that Prestige continues 

to produce the same product as S&M i.e., coal. It is also 

apparent from the record that Tolbert-Mullins as president 

and part owner of both S&M and Prestige Cand therefore as 

agent for both companies) was in a position to have notice on 

behalf of Prestige of the charges by the Complainant in this 

case. It is also established that S&M is not able to provide 

adequate relief to the Complainant in this case. It is no 

longer in business and has no liquid assets. Moreover its 

only unpledged assets consist of old mining equipment having 

but •little value as parts and scrap metal and having limited 

marketability. 

Of the eight employees presently working at Prestige 

only two formerly worked for S&M. However one of the two 

employees, Monroe Nichols, was a supervisor at S&M and is a 

supervisor at Prestige. The Prestige mine is a surface mine 

and S&M was an underground mine. Accordingly,the machinery, 

equipment and methods of production differ. The specific 

jobs at Prestige are also different but many of the skills 

are transferrable. Within this framework I find on balance 

that indeed Prestige is a successor-in-interest to S&M and 

accordingly is jointly and severally liable for costs, 

damages, reinstatement and civil penalties. 

406 
Civil Penalty 

I find the acts of discrimination by S&M and Tolbert 

Mullins to be particularily serious in this case because of 

the direct impact they had on the safety of miners. Here the 

practice of bridging-out safety features on electrical equipment continued unabated after the discharge of Mr. Keene and 

after his discharge it was highly unlikely that anyone else 

would have protested the dangerous practice. In additon 

Mr. Mullins and the other S&M officials knew that they were 

requiring Keene to perform illegal and dangerous acts. Their 

discharge (and refusal to take back) Keene for refusing to 

perform such tasks was therefore willful. In assessing a 

penalty herein I have considered that S&M is no longer in 

business. I have also considered its history of violations 

and the fact that it was a small operation. The violative 

conditions of course have not been abated since Keene has not 

been reinstated nor has he been reimbursed for lost wages, 

costs, and interest. 

ORDER 

~n light of the stipulations entered in this case S&M 

Coal Company, Inc. and Prestige Coal Company are ordered, 

jointly and se~erally to pay to Bobby Keene within 30 days of 

the date of this decision, costs amounting to $654.18, backpay of $3,082.16 and interest to be computed in accordance 

with the formula set forth in Secretary ex rel. Bailey, v. 

Arkansas Carbona Company, 5 FMSHRC 2024 (1983). It is further 

ordered that Tolbert Mullins jointly and severally with the 

aforementioned Respondents, pay the said costs of $654.18 and 

$2,089.75 of said backpay (inasmuch as his chargeable act of 

discrimination occurred on February 26, 1986) within 30 days 

of the date o this decision. It is further ordered that 

Prestige Coal Co., iminediately provide employment to Bobby 

Keene in a capacity commensurate with his skills and at no 

less pay than he was receiving at the time of his discharge 

from S&M Coal Company, Inc. on February 13, 1916. It is 

further 0,rdered that S&M Coal Company, Inc., P estige Coal 

Company, and Tolbert Mullins, jointly and seve ally pay a 

civil penalty of $1, 000 within 30 . ays of the ate of this 

decision. l : I 

I ! -4 

. I !},/~ 1, /\ ·'·~ ,.,, \'. ,! \.~ . ""' 

Ga . ....._ j "· y Melic. U 

Administrative Law ~udge '\ 

\ \· ', I 

\: 

407 
Distribution: 

Carol B. Feinberg, Esq., and Jonathan Kronheim, Esq., Office 

of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail> 

Daniel R. Bieger, Esq., and Gay Leonard, Esq., Copeland, 

Molinary & Bieger, 212 West Valley Street, P.O. Box 1296, 

Abingdon, VA 24210 (Certified Mail) 

Joseph Bowman; Esq., Street, Street, Street, Scott & Bowman, 

P.O. Box 2100, Grundy, VA 24614 (Certified Mail) 

rbg 

408 
FEDERAL MINE SAFETY AND. HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DECISION 

Before: Judge Fauver 

This proceeding was brought by Complainant, Newton J. 

Johnson, under section lOS(c) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801, et seq., for 

reinstatement and back pay. ~ 

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

"No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the 

statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject 

to this Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of 

the miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine, or 

because such miner, representative of miners or applicant 

for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to 

section 101 or because such miner, representative of miners 

or applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act or 

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

or because of the exercise by such miner, representative of 

miners or applicant for employment on behalf of himself or 

others of any statuto~y right afforded by thi~ Act." 

This matter is now before me upon Respondent's Motion 

for Summary Decision, filed on January 27, 1987, pursuant to 

29 C.F.R. § 2900.64" Complainant was served a copy of the· 

motion and, by order of February 23, 1987, was granted three 

weeks to respond to the motion. No response has been filed. 

409 
The record affirmatively shows the followed undisputed 

facts: 

1. On June 4, 1984, Johnson applied for the job of 

night watchman at Allied Coals, Inc. Terry Mullins, Allied's 

mine superintendent, interviewed Johnson for the job. 

Mu~lins told him the night watchman position would include 

picking up garbage and washing vehicles. Mullins hired 

Johnson for tpe night watchman job and Johnson started at 

$3.35 per hour. 

2. While employed at Allied, his tasks included watching 

the No. 1 and 2 mines, loading supplies, washing vehicles, 

picking up garbage, shoveling the belt line on the outside 

of the mine, ang other odd jobs. Johnson did these tasks 

when asked by his·supervisor, Vernon Noble. In between 

tasks and on weekends when the mine was not operating, 

Johnson remained in the night watchman's office. 

3. While employed at Allied, Johnson did not complain 

to anyone in management about the safety or health conditions 

of the jobs he was doing. He never complained that the jobs 

he was asked to do were unsafe, or that he lacked training. 

4. In April of 1985, Johnson asked Terry Mullins a 

raise. Johnson told Mullins he wanted a raise because his 

job involved tasks other than simply watching the property. 

Mullins refused to give him a raise. 

5. On May 8, 1985, Vernon Noble told Johnson to go to 

Mine No. 2 and help supplyman Kirn Rice. When Johnson arrived, 

Rice told him to shovel the outside belt line. Johnson had 

shoveled the belt line several times before. This time, he 

did not want to· do it and he quit. Johnson went to Vernon 

Noble and told him "I wasn't shoveling no belt line." 

Johnson told Noble he was quitting and left the property. 

6. Almost a year later, on April 24, 1986, Johnson 

filed a discrimination claim with the Mine Safety and Health 

Administration, United States Department of Labor. On 

August 5, 1986, the Mine Safety and Health Administration 

notified Johnson that in its opinion no violation of § 

105(c) had occurred. On August 11, 1986, Johnson filed this 

complaint with the Federal Mine Safety and Health Review 

Commission. 

DISCUSSION 

To establish a claim under § 105(c) of the Act, the 

complaining miner has the burden of proving that he engaged 

410 
in protected activity and that the employer took adverse 

action against him that was motivated in part by the protected 

activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786, 2799-2800 (October 1980), revd. on other grounds 

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

12ll~d Cir. 1981); Secretary on behalf of Robinette v. United 

Castle Coal Co., 3 FMSHRC 803, 817-18 (1981); Boich v. Federal 

Mine Safety and Health Review Commission, 704 F. 2d 272 (6th Cir. 

1983). 

Johnson admits that his sole complaint is that he was 

required to perform tasks that involved more than merely 

watching the property and that others who were performing 

some of the same tasks were paid at a higher rate {Dep. 31, 

38, 44, 54, 61-62, 97-98}. For example: 

Q. Okay. What is your claim against the Company? 

A. They ought to have been paying me $10.50 just the 

same as they was paying all them other workers, like Dean 

Mullins and all of them. Cause they was unloading supplies 

and so was r. 

Q. Is that that your whole claim against the Company? 

A. Yeah. {Dep. 38). 

Johnson's only complaint is that 

should have been paid more. He asked 

quit a month later (Dep. 18, 28-30). 

activity under the Act. 

in his opinion, he 

for a raise once and 

This is not protected 

Also, Allied did not take any adverse action against 

Johnson. He admits that he voluntarily quit, and that he 

quit only because he did not want to perform his assigned 

tasks at the rate the company was paying him. (Dep. 35-36, 

37, 47-48): 

Q. Okay. Why did you quit? 

A. QCause I wasn't going to shovel that belt line no 

more over at the #2. (Dep. 33). 

Q. You just didn't want to do it? Is that right? 

A. That's right. I ain't going to shovel no belt line 

Why should I shovel it, and somebody else shovel it and they 

getting $10.50 for it and me just getting $3.35. (Dep. 35}. 

411 
The Act does not protect a miner from the consequences 

of voluntarily resigning a job for reasons unrelated to 

safety or health. See, e.g., Munsey v. Federal Mine Safety 

and Review Commission 595 F. 2d 735, 744 (D.C. Cir. 1978}. 

Johnson voluntarily quit his. job for reasons unrelated 

to any safety or health concerns. Respondent is therefore 

entitled to summary decision. 

On an independent ground, Johnson's complaint to MSHA 

was severely late, and barred by the 60-day time limit for. 

filing complaints under the Act. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent's Motion for 

Summary Decision is GRANTED and this proceeding is DISMISSED. 

lJ~ ~Ir~ William Fauver 

Administrative Law Judge 

Distribution: 

Mr. Newton' J. Johnson, P.O. Box 8, Brinkley, KY 41805 (Certified 

Mail) 

John W. Fischer, Esq., Leslie St. Clair, Esq., Denlinger, 

Rosenthal & Greenberg, 2310 First National Bank Center, 425 

Walnut Street, Cincinnati, OH 45202 {Certified Mail) 

kg 

412 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINt, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 5 1987 

LARRY BRIAN ANDERSON, 

Complainant 

v. -

CONSOL PENNSYLVANIA 

COAL COMPANY, 

Respondent 

. . 

. . DISCRIMINATION PROCEEDING 

: Docket No. PENN 86-221-D . . 

DECISION 

Appearances: Michael J. Healey, Esq., Healey & Davidson, 

Pittsburgh, Pennsylvania, for Complainant1 

Michael R. Peelish, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

On July 14 and September 17, 1986, Complainant filed a 

complaint with the Commission alleging that he was denied 

employment by Respondent because of allegations that he "turned 

in" a foreman of a mine operated by a related company for a 

safety violation. Complainant stated that these allegations are 

not true. 

On September 18, 1986, Respondent filed a Motion to Dismiss 

on the grounds that it was not properly served and that 

Complainant failed to state a claim under section lOS(c) of the 

Act. By order issued October 2, 1986, I denied the Motion. 

Pursuant to notice, the case was heard in Pittsburgh, 

Pennsylvania, on December 16, 1986. Larry Anderson, Kerry 

Anderson and James Miller testified on behalf of Complainant. 

Victor J. Columbus, Richard E. Kidd, Louis Barletta and 

Ed Dudzinsky testified on behalf of Respondent. Both parties 

have filed post hearing briefs. Based on the entire record and 

the contentions of the parties, I make the following decision. 

FINDINGS OF FACT 

At all times pertinent to this proceeding, Respondent was 

the owner and operator of an underground coal mine in Greene 

413 
County, Pennsylvania, known as the Bailey Mine. Respondent is 

affiliated with Consolidation Coal Company. 

Complainant worked as a miner for Consolidation Coal 

Company at its McElroy Mine from January 1976 to 1979, as a 

shuttle car operator and loader operator. He worked as a shuttle 

car operator at a U.S. Steel Mine for about a year beginning in 

February 1980. In March 1981, he was recalled by Consol at the 

Lov~ridge Mine and worked until he was laid off in December 1984. 

He worked as a __ continuous miner operator and bolter operator. 

In January 1985, Complainant submitted an application for 

employment at Respondent's subject mine. He underwent a 

mechanical aptitude test and psychological test and was 

interviewed March 26, 1985 by the mine's industrial relations 

supervisor Ed Dudzinsky. Following the interview, Dudzinski "was 

impressed" with Complainant and stated he would recommend him as 

a face equipment operator~ Complainant was then interviewed 

A:t¥"il 10, 1985,by Louis Barletta, mine foreman at the subject 

mine. At that time Barletta was seeking maintenance and general 

personnel rather than face equipment operators. Because 

Complainant's experience was as an equipment operator, his 

application was placed "in the active file for further 

consideration." (Tr. 95). No applicants have been hired for work 

at the face since April 1985. 

Several weeks after Barletta interviewed Complainant, 

Dudzinsky called the personnel representative Wayne McArdle at 

the Consol McElroy mine and talked to him about claimant and 

other applicants who had worked at McElroy. Mccardle told him 

that better people than Complainant were available from McElroy 

and that Complainant had had problems with a supervisor. Bailey 

Mine personnel assistant Richard Kidd was asked to do a 

"reference check" on Complainant. Mccardle told Kidd that 

Complainant was an average employee at best. His attendance was 

average. He also told Kidd of an incident in which Complainant 

"was involved in trying to set up foreman Nicely for some type of 

roof control violation." (CX3; Tr. 116). Four others at McElroy 

stated that Complainant was a good worker and they would 

recommend him. Al Polis of the Loveridge mine stated that 

Complainant "had been nothing but trouble •.• all types of 

illness." ( CX3). 

On October 4, 1985, Complainant wrote to B.R. Brown, Chief 

Executive Officer of Consolidation Coal Company complaining that 

he was not hired because of his religious convictions. Brown 

referred the letter to the subject mine where the current 

Supervisor of Industrial Relations Victor Columbus (Dudzinsky's 

successor) began an investigation. Dudzinsky told Columbus that 

"he felt uncomfortable with [complainantf because he felt 

414 
[complainant] had not been straightforward with him in the 

interview ••• " (Tr. 56). Columbus obtained Complainant's 

attendance record when he worked at the Loveridge Mine in 1983 

and 1984. These show three unexcused absences in 1983 and six 

unexcused absences in 1984. Further evidence shows that 

Complainant was under a doctor's care and received substantial 

treatment in 1983 and 1984 for a back condition. Based on this 

investigation, Columbus in early 1986 decided that he would no 

longer consider Complainant for employment at the subject mine. 

In the summer of 1985, Complainant filed a complaint with 

the Pennsylvania Human Relations Commission charging Respondent 

with discrimination on the basis of religion and handicap. A 

hearing was held on April 3, 1986. At the hearing on the 

complaint, Columbus stated on behalf of Respondent that 

Complainant along with other "had turned in a boss for a safety 

violation, going under an unsupported roof." (Tr. 21). This was 

given as a reason for not hiring Complainant. In fact, 

Complainant had never complained to State or Federal authorities 

of safety violations or alleged safety violations by his 

supervisors. 

With respect to Complainant's attendance, the record shows 

that at McElroy Mine his "attendance was average, did miss some 

days." (Tr. 116). It further shows that his attendance was "very 

good, travels a long way • • • always on time • • • willingness 

to work overtime as needed ••• " CCX 3, Tr. 117-118). These 

remarks were based on discussions with McElroy personnel and with 

Bailey Mine personnel who knew Complainant. Since he filed his 

application with Respondent, Complainant received training in 

electrical work at the Tri-State Training Services. He took an 

examination and has been certified by MSHA in low, medium and 

high voltage electrical work. He notified Columbus of this by 

telephone. 

ISSUES 

1. Did Respondent discriminate against Complainant in 

violation of section 105(c) of the ~ct when it refused to hire 

him or when it refused to consider him for future employment? 

2. If it did, to what remedy is Complainant entitled? 

CONCLUSIONS OF LAW 

JURISDICTION 

Complainant and Respondent are protected by and subject to 

·the provisions of section 105(c) of the Act, Complainant as an 

applicant for employment in a mine, and Respondent as the 

415 
operator of the subject mine. I have jurisdiction over the 

parties and subject matter of this proceeding. 

PROTECTED ACTIVITY 

Ordinarily a Complainant alleging discrimination must show 

that he engaged in protected activity and the adverse action 

complained of resulted from that activity. Secretary/Fasula v. 

Consolidation Coal KCo., 2 FMSHRC -2786 (1980), rev'd on other 

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

1211 (3rd cir::-T981). In this case Complainant states that he 

did not engage in safety-related protected activity, but that 

Respondent believed he did and discriminated against him because 

of that belief. In Moses v. Whitley Development Corporation, 4 

FMSHRC 1475 (1982), the Commission faced a similar issue and held 

that a Complainant may establish a prima facie case by proving 

that (1) the operator suspected that he had engaged in protected 

activity, and (2) the adverse action was motivated in any part by 

such suspicion. 

I conclude that Respondent believed or suspected that 

Complainant reported safety violations committed by his 

supervisor, which would have clearly been protected activity. 

ADVERSE ACTION 

Following Complainant's interview by Louis Barletta on 

April 10, i985, he was not hired for the openings at the subject 

mine and his application was put back "in the active file." This 

was adverse action. In "early 1986, 11 Respondent decided that it 

would no longer consider Complainant for employment and his 

application was removed from the active file. This was further 

adverse action. 

MOTIVATION 

Respondent advances three reasons for the adverse action 

described above: Cl) Complainant's absentee record at other 

Consol mines: (2) The lack of openings at the subject mine for a 

miner with Complainant's experience and skills: (3) Complainant's 

lack of candor in failing to inform Respondent that he complained 

of ety violations committed by a supervisor at a Consol mine. 

With respect to the third reason, I have found as a fact that he 

did not make such complaints. Nevertheless, Respondent believed 

that he did and its refusal to consider him for any position at 

the subject mine was motivated in part by that belief. 

Therefore, Complainant has established a prima facie case of 

discrimination under section 105(c). 

416 
I conclude that Respondent's reliance on Complainant's 

absentee record was pretextual and not a genuine motive for 

either of the instances of adverse action referred to above. I 

base this conclusion on a consideration of Complainant's 

employment record at Consol mines, as disclosed by exhibits, and 

the tetimony of Respondents witnesses Columbus, Kidd and 

Dudzinsky. I am persuaded that the ultimate reason for rejecting 

Complainant's application was the belief that he accused a 

supervisor of a safety violation and failed to disclose this 

incident. 

However, the evidence also establishes that the rejection of 

Complainant for employment in April 1985 was because he was not 

sufficiently qualified for the openings them available at the 

subject mine. This decision was made by Barletta and the 

evidence does not indicate that he was aware of the alleged 

incident involving a safety complaint at McElroy. I conclude 

that Respondent would·have taken this adverse action (refusal to 

hire) for unprotected activity alone. See Pasula, supra1 Moses, 

supra. 

However, the action in 1986 in removing Complainant from 

consideration for any job was not motivated by his work 

experience and skill, but rather by Respondent's conclusion that 

he was a troublemaker, i.e., that he "was involved in trying to 

set up" a foreman for some type of safety violation. This 

motivation is proscribed by section lOSCc). Therefore, I 

conclude that Respondent's removal of Complainant from 

consideration for employment in "early 1986" was a violation of 

section lOSCc) of the Act. 

REMEDY 

Fashioning' an effective remedy for the discriminatory 

conduct I have found is difficult. Barletta testified that no 

miners have been hired to work at the face between April 1985 and 

December 16, 1986. Complainant's qualifications are primarily 

though not exclusively for face work. In an attempt to remedy 

the misconduct, Respondent will be ordered to reinstate 

Complainant's application and consider it in good faith for 

openings at the subject mine without regard to his alleged 

absentee record, and without regard to his alleged retorting of 

supervisor's safety violations. This shall include a 1 work for 

which Complainant is qualified, considering his experience and 

his recent electrical training. Respondent will be ordered 

to notify me within 30.days of the date of thi~ decision of what 

steps it has taken to comply with this order. 'Finally, 

Respondent will be ordered to reimburse Complainant for 

reasonable attorneys fees and costs of litigation. 

417 
ORDER 

Based on the above findings of fact and conclusions of law, 

Respondent is ORDERED: 

Cl) To reinstate Complainant's application for employment at 

the subject mine and consider it in good faith for openings for 

which he is qualified, without regard to his alleged absentee 

record at Consol mines and without regard to his alleged 

reporting of sμpervisor's safety violations; 

(2) To cease and desist from considering prior protected 

safety activity in denying employment applications at the subject 

mine; 

(3) To notify me within 30 days of the date of this decision 

wh"at steps it has taken to comply with the above orders; 

(4) To reimburse complainant for his reasonable attorney 

fees and costs of litigation. If counsel can agree on the amount 

of such fees and expenses they shall so notify me within 20 days 

of the date of this decision. If they cannot agree, counsel for 

Complainant shall submit his statement of fees and expenses 

within 20 days and counsel for Respondent shall have 20 days 

thereafter to reply. 

(5) This decision is not final until the matters in Order 

(3) and (4) are submitted, and I have issued a supplementary 

decision concerning such matters. 

),!WU5 ,k (],,,,~,_'ef;_ (/ James A. Broderick · Administrative Law Judge 

Distribution: 

Michael J. Healey, Esq., Healey & Davidson, 1906 Law and Finance 

Bldg., Pittsburgh, PA 15219 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Company, 1800 

Washington Rd., Pittsburgh, PA 15241 (Certified Mail) 

slk 

418 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 5 \981 

HARLAN L. THURMAN, 

Complainant 

: 

. . DISCRIMINATION PROCEEDING 

v. 

QUEEN ANNE COAL COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

DECISION 

Docket No. SE 86-121-D 

BARB CE 86-51 

Appearances: James c. Shastid, Esq., Knoxville, Tennessee, for 

Complainant1 

Charles A. Wagner, Esq., Knoxville, Tennessee, for 

Respondent 

Before: Judge Weisberger 

Statement of the case 

Complainant filed a complaint with the Commission under 

Section 105(c) of the Federal Mine Safety and Health Act of 1977 

30 u.s.c. § 815(c) Cthe Act) alleging that he was illegally discriminated against in that, in essence, he was forced to quit his 

job with Respondent due to the danger to him as a consequence of 

harrassment from co-workers and his foreman. 

Pursuant to notice of September 16, 1986, the case was set 

for hearing in Knoxville, Tennessee on November 4, 1986. On 

October 22, 1986 Respondent filed a Motion for Continuance. On 

October 29, 1986 a Order was issued granting the Motion for 

Continuance and scheduling the case for hearing on December 2, 

1986. On November 24, 1986 Respondent filed a Motion to Dismiss 

on the ground that: 1. the Complaint was not timely filed, and 

2. the Complaint failed to state a violation of 30 u.s.c. 

§ 815Cc) 1. At the hearing on December 2, 1986 an oral argument 

was presented by the Parties as to Respondent's Motion. After 

listening to the arguments, I denied the Motion to Dismiss that 

was based upon the ground that the complaint was not timely filed. 

I reserved decision on the Motion to Dismiss which was made on 

the grounds that the complaint failed to state a violation of 

Section 815Cc) 1 supra. 

419 
The case was subsequently heard in Knoxville, Tennessee on 

December 2, 1986. At the hearing Complainant was represented by 

James c. Shastid, and Respondent was represented by Charles A. 

Wagner, III. Harlan Thurman and Deborah Thurman testified for 

Complainant. Robert Swisher, Dempsey Lindsey, Crawford Harness, 

Jeffery Mason, and Dewayne Mason testified for Respondent. On 

December 9, 1986 a letter was received from Complainant in which 

he advised that Attorney James Shastid was no longer representing 

him. This was confirmed in a letter. from Mr. Shastid received on 

December 12, 1986. Subsequent to the hearing, the Parties, on 

February 2, 1987 filed posthearing briefs. On February 17, 1987 

a reply brief was filed by Complainant. On the same date a . letter was received from Counsel for Respondent who, in essence, 

waived his right to file a Reply Brief. 

Findings of Fact 

The Complainant, Harlan L. Thurman, had been employed as a 

miner by the Respondent, Queen Anne Coal Company, for 3 years 

prior to March 1986. During that time, he worked the night shift 

with the same personnel. 

The Complainant testified that in the 3 years that he worked 

for the Respondent there was no outside man. Robert Swisher, the 

President, and one of the owners of Respondent testified that 

there has not been any outside man at Respondent's mine for 

approximately 9 or 10 years. Thurman, in essence, testified that 

during the 3 years he worked for Respondent his co-workers and 

foreman continuously hassassed him. He said that they put urine 

in his tea, that his clothes were tied up, that dish washing 

liquid was poured over his clothes, that there was grease placed 

on the seat of his vehicle, there were logs placed under the 

vehicle's wheels, and a headlight was broken on his vehicle. He 

also said that in the summer of 1985 he was sent to work alone by 

his foreman Crawford Harness. It also was Thurman's testimony 

that when he started to work for Respondent there was an incident 

when only four men were on the shift and a miner was being 

operated. In the summer of 1985, Complainant made a complaint to 

Dempsey Lindsey, the Respondent's superintendent, that Crawford 

had cursed him over a mistake in transporting certain supplies. 

Complainant also made a complaint to Lindsey, in the summer of 

1985, that the men had left him alone when he had to get a scoop 

cart out of the mud. 

Complainant's work shift usually commenced at 4:00 p.m. and 

concludad at 1:30 a.m. On March 6, 1986 the Complainant started 

to work on the shift at 4:30 p.m. and left early at 10:30 p.m., 

in essence, because he felt that the harrassment from his foreman 

and co-worker, coupled with the lack of an outside man, created a 

dangerous condition to him under ground. Prior to March 6, 1986 

420 
the complainant had not made any safety complaints to MSHA 

Officials, or company management officials. 

On March 7, 1986 the Complainant went to see Emroy Haggard, 

the bookkeeper and part-owner of the Respondent, and told him, in 

essencr, that Respondent's employees were taking coal. He also 

"explained to him what had been going on and some of the stuff 

that been happening". (Tr. 32). Haggard then set up a meeting 

for the Complainant with Swisher the following Monday. At that 

meeting Complainant indicated that the men on the shift were 

harrassing him. Thurman had told him that at one time that 

.Crawford stuck his fist in his face and threatened to whip him. 

Swisher also said that Thurman told him that the men on the shift 

were: stealing company coal; had broken the headlight on his 

truck while it was on Respondent's site1 had urinated in his 

food, and had locked him inside the gate. Thurman also told 

Swisher that there was· no outside man. He also told Swisher that 

Harness does not have any education. Thurman had also told him 

that when he first started to work for Respondent his shift ran a 

miner with only four people on the shift. 

swisher than convened a meeting the following Thursday with 

himself, Thurman and the men on the shift along with Foreman 

Dempsey. At that meeting, in essence, Complainant's complaints 

were reiterated, then Swisher told the men on the shift that he 

would not tolerate any horseplay. According to Thurman, Swisher 

told him then to go back to work. Swisher also asked Lindsey to 

find Thurman a job on the day shift. 

After the meeting Thurman intended to return to work. However, shortly after he left, Thurman returned to the office and 

told Dempsey and Swisher that, in essence, that he could no 

longer work under ground with the men on the shift. Thurman gave 

his reason that he feared for his safety because Dempsey and 

Harness were "like they were a clique". (Tr. 107). Swisher told 

Lindsey to try to get Thurman a job on the day shift. However, 

Lindsey has testified that in general it is diffcult to get men 

from the day shift to transfer to the night shift, and that in 

this case none of the day shift men wanted to trade with Thurman 

and work on the night shift. Lindsey also talked to the president and manager of another mining company, where Thurman had 

previously worked, with regard to obtaining a job for Thurman. 

Thurman did not return to work after he left early on 

March 6, and subsequently obtained other non mining employment. 

Issues 

1. Whether the Complainant has established that he was 

engaged in an activity protected by the Act. 

421 
2. If so, whether the Complainant suffered adverse 

action as the result of the protected activity. 

3. If so, to what relief is he entitled. 

Conclussions of Law 

Complainant and Respondent are protected by and subject to 

the provisions of the Act, Complainant as a miner and the 

Repondent as the operator. 

The Commission, in a recent decision, Goff v. Youghiogheny 

& Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated 

the legal standards to be applied in a case where a miner has 

alleged acts of discrimination. The Commission, Goff supra at 

1863, stated as follow: 

A complaining miner establishes a prima facie case of 

prohibited discrimination under the Mine Act by proving 

that he engaged in protected activity and that the 

adverse action complained of was motivated in any part 

by that activity. Pasula, 2 FMSHRC at 2797-2800; 

Secretary on behalf of Robinette v. United castle Coal 

Co., 3 FMSHRC 803, 817-18 (April 1981). The operator 

may rebut the prima facie case by showing either ,that 

no protected activity occurred or that the adverse 

action was not motivated in any part by protected activity. Robinette, 3 FMSHRC at 818 n. 20. See also 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 

(D.C. Cir 1984); Boich v. MSHRC, 719 F.2d 194, 195-96 

(6th Cir. 1983) (specifically approving the 

Commission's Pasula-Robinette test). 

Protected Activity 

Thurman's complaints to Swisher on or about March 10, 1986 

with regard to the lack of an outside man, and complaints the 

following Thursday that there was an incidence whereby a miner 

was operated with only four men in the section, both contained 

allegations of safety violiations and as such are considered 

protected activities. The balance of the complaints made to 

Swisher, Haggard, and Lindsey, all had to do with allegation of 

harrassment by Thurman's co-employees, were not protected 

activities (see Jimmy Sizemore and David Rife v. Dollar Branch 

Coal Company, 5 FMSHRC 1251 (July 1983)). In the same way 

complaints to Swisher and Haggard with regard to co-workers 

taking Respondent's coal, are not safety related and thus are not 

·protected activities. 

422 
Adverse Action 

Complianant, in essence, complains of four adverse actions 

by Respondent: 

1. Swisher told Thurman to go back to work on about March 

13, 1986 after Swisher had heard Thurman's various complaints. 

2. The fact that Respondent had not found a job for Thurman 

on its day shift. 

3. The fact that the Respondent had not cured its alleged 

violation of not having an outside man. 

4. Swisher threatened Thurman by telling him about a former 

employee of Repondent who was killed when a tank that he had put 

a torch to had blown up. 

There is no evidance that Respondent took any adverse action 

against Thurman which was motivated in any part by safety complaints. Indeed, I find that although Thurman at the hearing 

complained of unsafe practices such as not having an outside man 

and operating a miner with only four men, there is no evidence 

that Thurman made any complaint about these condition to any 

government official, or agent of Respondent prior to the date 

that he left work, i.e., March 6, 1986. Thurman alleges that 

after he made various complaints to Swisher on or about March 10 

and March 13, 1986, Swisher told him to go back to work. I hold 

that Swisher's comments to Complainant, in indicating on or about 

March 10, 1986 that Thurman should go back to work, did not constitute any adverse action. Surely, having Thurman return to his 

usual job can not be found to be an adverse action. Similarly, 

although Thurman might reasonably have felt that for him to 

return to his section, where he was subject to harrassment, would 

be a danger to him, this can not constitute any type of constructive discharge. In this connection, it is manifest that the Act 

does not contemplate protecting a miner from harrassment from a 

co-worker, when that harrassment is not motivated by the miner's 

safety complaints. In this case, there is no evidence that 

harrassments from Thurman's co-workers were motivated in any part 

by Thurman's complaints about not having an outside man. Indeed, 

all evidance indicates that Thurman's complaints in this regard 

occurred subsequent to the date that he left work. Also there is 

no evidence that the harrassment from co-workers were abetted or 

encourged by management. Indeed, Swisher's uncontradicted 

testimony was to the effect that at the meeting with Thurman's 

co-workers on March 6, 1986, after Thurman had complained of 

harrassment, he (Swisher) told them to stop engaging in horseplay. 

423 
Also, it is clear that Respondent did not commit any adverse 

action in not finding Thurman a job on the day shift. Not only 

is there no evidence that this was not in any way motivated by 

Thurman's protected activities but to the contrary, the only 

evidence in record, testimony by Dempsey, is that none of the day 

shift wanted to switch shifts with Thurman. To require Respondent 

to create a position for Thurman on the day shift, would unduely 

interfere with its business decisipn in managing its mine. 

Thurman might have felt threatened by hearing Swisher 

telling him of· a former miner, who had some type of emotional 

problem, who was killed in an accident at the mine. However, 

there was not evidence that Swisher, in telling of this incident, 

had any intent to threaten Thurman. Nor is there any evidence 

that his telling of this incident in any way was motivated by 

Thurman's protected activities. Indeed, Swisher testified that 

he told of the incident in order to relate his care for his 

employees. 

Complainant appears to arguing that inasmuch as Respondent 

continues to operate without an outside man at the mine, that 

this is an adverse action against him. It is clear that although 

failure to provide a miner with a safe work place might be a 

violation under the Act but that "such a failure does not without 

more consititute discrimination." {Lund v. Anamax Mining Company 

4 FMSHRC 249, 251 (February 1982)). 

Therefore, based upon the above I conclude that Thurman 

failed to established the second element of a prima facie case 

i.e., that he did not show that there was an adverse action by 

Respondent motivated by in any part by safety complaints. I 

conclude that accordingly Complainant has not established that he 

was discriminated against under Section 105(c) of the Act. 

Order 

Based upon the above Findings of Fact and Conclusions of 

Law, it is ORDERED that this proceeding be DISMISSED. As such, 

Respondent's Motion to Dismiss is GRANTED. 

424 

Avram Weisberger 

Administrative Law Judge 
Distribution: 

Mr. Harlan L. Thurman, P. o. Box 561, Norris, TN 37828 (Certified 

Mail) 

Charles A. Wagner, Esq., 1801 Plaza Tower, P. o. Box 1308, 

Knoxville, TN 37901-1308 (Certified Mail) 

Robert Swisher, Queen Anne Coal Company, P. O. Box 498, 

Lake City, TN 37769 (Certified Mail) 

dcp 

425 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFF1CE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 MAR 5 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SIERRA AGGREGATE COMPANY, 

Respondent 

,, 

: Docket No. WEST 85-162-M 

A.C. No. 04-04707-05502 

Docket No. WEST 85-174-M 

A.C. No. 04-04707-05503 

Red Top Mine 

DECISION 

Appearances: Joseph T. Bednarik, Esq., Office of the Solicitor, 

U.S. Department of Labor, Los Angeles, California, 

for Petitioner1 

Mr. Donald Jolly, Bishop, California, 

pro se. 

Before: Judge Lasher 

These proceedings were initiated by the filing of petitions 

for assessment of a civil penalty by the Secretary of Labor 

(herein the Secretary) pursuant to Section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. Section 820(a) 

Cl977)Cherein the Act). A hearing on the merits was held in 

Bishop, California on September 16 and 17, 1986, at which 

Respondent represented itself. The Secretary was well and ably 

represented by.counsel. 

The Secretary seeks assessment of penalties against 

Respondent for a total of 7 alleged violations involved in the 

two dockets which were consolidated for hearing in the Notice of 

Hearing issued July 23, 1986. 

PRELIMINARY DISCUSSION 

1. Background. 

On March 18, 1985, MSHA Inspector Ronald Ainge conducted an 

inspection of the Red Top Mine operated by Sierra Aggregate 

Company near Victorville, California. At all relevant times the 

mine was owned and operated by Mr. and Mrs. Donald Jolly (T. 4, 

11, 41, 42) as a sole proprietorship i,n a community property 

state. The Red Top Mine is one of two owned and operated by the 

Jollys. The other, the Black Point Mine, is located near Bishop, 

California. The offices of Sierra Aggregate Company are located 

at 2239 Sunrise Drive in Bishop. 

'426 
Inspector Ainge observed 3 men working at the mine site when 

he arrived on March 18, 1985. One of these, Bret Redman, was 

employed full-time by Respondent as a watchman and front-end 

loader operator CT. 77) and the other two, although characterized 

by Respondent Donald Jolly as independent contractors CT. 79) and 11 self-employed11 CT. 78) were actually hourly-paid, part-time 

employees (T. 76-80). Mr. Redman accompanied Inspector Ainge 

during the inspection. 

2. Federal Pre-Emption. 

Respondent, in correspondence (letter dated November 7', 

1985) has raised the issue that regulation of his mine by MSHA is 

improper since such is also regulated by the California 

Occupational Safety and Health Administration (CAL-OSHA). The 

California OSH Act does not preempt the Federal Mine Safety and 

Health Act of 1977. Brubaker-Mann, Inc., 2 MSHRC 227 (1980). 

Section 506 of the Act (provided in the original 1969 Mine Act 

and left intact by the 1977 Amendments) permits concurrent state 

and federal regulation, and under the federal supremacy doctrine, 

a state statute is void to the extent that it conflicts with a 

valid federal statute. Dixy Lee Ray v. Atlantic Richfield 

Company, 98 S. Ct 988, 435 U.S. 151, 55 L. Ed. 2d 179 Cl978): 

Bradley v. Belva Coal Company, 4 MSHRC 982, 986 (1982). Accordingly, Respondent's contention is found to lack merit and is 

rejected. 

3. Interstate Commerce. 

The principal activity at Respondent's two mines is the 

excavation and processing of volcanic material into cinders. CT. 

42-43). This material is sold for the production of concrete 

blocks CT. 43), decorative bricks CT. 44), soil additives CT. 

44-45) and highway cinders CT. 70). Approximately 99% of the 

output of the Black Point Mine and 20% of the output of the Red 

Top Mine was sold to the State of California which used the 

cinders in the maintenance of highways, including U.S. Highway 

395 and Interstate 15 (T. 72-74). 

Sierra Aggregate Company owns a substantial amount of mobile 

equipment which is used at both mine sites. The equipment was 

manufactured out-of-state primarily by Caterpillar CT. 56-59, 81, 

84) and is powered by diesel fuel. The total amount of diesel 

fuel purchased by Sierra Aggregate Company in 1985 exceeded 7,000 

gallons CT. 83). Such was purchased from wholesale distributors 

of products manufactured by Chevron CT. 64) and Union Oil CT. 63). 

I take notice that these are businesses engaged in interstate 

commerce. 

Accordingly, it is concluded that Respondent mine operator 

owns and operates the mine in question at which volcanic material 

(cinders> is mined and processed for sale or use in or affecting 

interstate commerce. 

427 
4. Respondent's Mine in Operation. 

Respondent contends that the mine (plant) was not in 

operation and that the Citations thus should not have been issued. 

The record, however, is clear that the plant was in operation on 

and off during the period February through May, 1985, and that on 

the day of the inspection, Bret Redman, who was characterized by 

Mr. Jolly at the hearing as being a front-end loader operator and 

watchman, was engaged in work as were two other part-time 

employees. This contention simp~y lacks merit and is rejected. 

5. Preliminary Findings With Respect To Penalty Assessment 

Criteria. 

a. Respondent, a sole proprietorship owned by Donald Jolly 

and his wife, Janis, is a small mine operator engaged in the 

surface mining, crushing, sizing, loading, sale and shipment of 

volcanic cinder (T. 42-48, 63-66, 70). 

b. Respondent is a small mine operator (T. 31-33, 43, 53, 

69, 70). 

c. Respondent has no history of previous violations CT. 

9 7) • 

d. Payment of penalties in this matter will not jeopardize 

Respondent '.s ability to continue in business CT. 97, 98). 

e. With respect to Citations Nos. 2364580, 2364581~ 

2364582, 2364583, and 2364586, the Secretary concedes that 

Respondent, after notification of the violation, proceeded in 

good faith to promptly abate the violative conditions. With 

respect to Citations Nos. 2364584 and 2364585 the Secretary 

contends that Respondent did not proceed in good faith to 

promptly abate the violative condition; findings will be made in 

the separate discussion of these two violations which follows. 

With the exception of the first Citation litigated and 

discussed herein, No. 2364580, which subsequently herein I have 

vacated, the remaining Citations charge contravention of safety 

and health standards in Part 56 of Title 30 of the 1984 Code of 

Federal Regulations (Revised as of July 1, 1984) covering sand, 

gravel and crushed stone operations. 

The mandatory assessment factors of negligence, gravity and, 

where pertinent, abatement, will be taken up subsequently in the 

discussion of the separate alleged violations. 

Docket No. WEST 85-174-M (Citations Nos. 2364581, 2364582 and 

2364583) 

Citation No. 2364581 

The standard infracted, 30 C.F.R. § 56.12-28 provides: 

428 
Mandatory. Continuity and resistance of grounding systems 

shall be tested immediately after installation, repair 

and modification; and annually .thereafter. A record of 

the resi~tance measured during the most recent test shall 

be made available on a request by the Secretary of his duly 

authorized representative. 

'The violative condition (or practice) was described by the 

Inspector as follows: 

There was no record of a continuity and resistance of 

grounding check being done within the recent past or at 

least Mr. Redman could not produce them. 

The Respondent, Mr. Jolly, conceded on the record that the 

violation occurred CT. 90). Although the Inspector did not 

believe the violation was likely to result in the happening of 

the contemplated hazards (minor shock to electrocution), the 

gravity of the potential injury mandates a finding that the violation was at least moderately serious. Mr. Jolly, as previously 

noted, admitted the violation, and more specifically, conceded 

that the test itself had not been performed. Approximately one 

year prior to the issuance of the subject citation, Inspector 

Ainge advised Mr. Jolly that he was required to perform this test 

CT. 87, 88). Accordingly, Respondent is found to be negligent in 

the commission of this violation. The Secretary concedes that 

this violation was abated promptly and in good faith upon 

Respondent's notification thereof CT. 102). A penalty of $30.00 

is assessed. 

Citation No. 2364582 

The standard infracted, 30 C.F.R. § 56.4-12 CT. 136) 

provides: 

All flammable and combustible waste materials, grease, 

lubricants or flammable liquids shall not be allowed to 

accumulate where they can create a fire hazard. 

The violative condition Cor practice) was described by the 

Inspector as follows: 

There was a large amount of diesel fuel spillage on 

the ground at the fueling area. 

The Inspector testified that there was extensive diesel fuel 

oil on the ground inside Respondent's refueling shed and that the 

mine operator had been notified of the fire hazard created 

thereby on a previous inspection. There were fire ignition 

sources in the area as well as other materials which would burn 

in the event of a fire. Had a fire started in the area, the 

429 
violative condition observed, as a minimum, would have' contributed to and aggravated the hazard. Because diesel fuel is not 

as flammable as gasoline and since the possibility of a fire· occurring was relatively remote, this violation is found to be but 

moderately serious. The mine operator, having prior knowledge of 

the hazard created, was clearly negligent. The violation was 

abated in good faith by the Respondent upon notification thereof. 

A penalty of $20.00 is sought by the Secretary and such is found 

apptopriate and assessed. 

Citation No. 23683 

The standard infracted, 30 C.F.R. § 56.4-7 CT. 135-137) 

provides: 

"Means shall be provided to remove or control spilled 

flammable or combustible liquids." 

t The violative condition (or practice) was described by the 

Inspector as follows: 

"The buckets that were placed under the oil barrels on the 

oil rack had been turned upside down and oil had been 

allowed to contaminate the earth under the oil rack." 

The same violative condition had been cited on a previous 

inspection by Inspector Ainge. As to seriousness, the Inspector 

indicated that it would take "quite a fire" to get 'the oil-contaminated area to burn. Accordingly, this violation is found to 

be of a low degree of gravity and to have resulted from 

Respondent's negligence in allowing the condition to re-occur. 

Since this violation, like the previous one, was abated promptly 

and in good faith by the mine operator upon notification, the 

Secretary 6 s administrative "single penalty assessment" of $20.00 

is found appropriate and is assessed. 

bocket No. WEST 85-162-M 

Citation No. 2364580 

The standard infracted, 30 C.F.R. § 50.30Ca) provides: 

Preparation and submission of MSHA Form 7000-2 - Quarterly 

Employment and Coal Production Report. 

{a) Each operator of a mine in which an individual worked 

during any day of a calendar quarter shall complete a MSHA 

Form 7000-2 in accordance with the instructions and criteria 

in § 50.30-1 and submit the original to the MSHA Health and 

Safety Analysis Center, P.O. Box 25367, Denver Federal 

Center, Denver, CO 80225, within 15 days after the end of 

each calendar quarter. These forms may be obtained from 

430 
MSHA Metal and Nonmetallic Mine Health and Safety Subdistrict Off ices and from MSHA Coal Mine Health and Safety 

Subdistrict Offices. Each operator shall retain an 

operator•s copy at the mine office nearest the mine for 5 

years after the submission date. 

The violative condition (or practice) was described by the 

Inspector as follows: 

"Mr. Redman could not produce the quarterly reports that 

are to be maintained on file at the mine property as stated 

in Part 50, 30 Code of Federal Regulations." 

The regulation requires that the operator shall retain an 

operator•s copy of the required quarterly report form "at the 

mine office nearest the mine •••• " The record clearly establishes that this small mine operator's nearest-and only-mine 

"office" was in Bishop, California, and that indeed a copy of the 

form required retained there. The Inspector apparently was under 

the impression at the time he issued the Citation that the form 

was required to be kept at the mine site, since in the body of 

the Citation he mentioned that such reports ttare required to be 

maintained at the mine property." Since under the precise requirements of the regulation and in the perspective of the 

geographic configuration of this modest mine operation the form 

was kept where it was required to be, no violation is found to 

have occurred. 

Citation No. 2364584 

The standard infracted, 30 C.F.R. § 56.14-1 provides: 

Gears; sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings; shafts; sawblades; fan 

inlets; and similar exposed moving machine parts which 

may be contacted by persons, and which may cause injury 

to persons, shall be guarded. 

The violative condition Cor practice) was described by the 

Inspector as follows: 

"There were not any guards on either the head or tail 

pulley on the feed belt under the feed hopper. The plant 

was down for crusher repair." 

During his inspection on March 18, 1985, Inspector Ainge 

observed that neither the head pulley nor the tail pulley on the 

conveyor system had guards to protect employees from contacting 

the pinch point CT. 143). A guard would have prevented contact 

between the pinch point and an individual's body or clothing or 

any tools which the individual may be using (T. 144). According 

to Mr. Ainge, the most likely result of such contact would be a 

431 
loss of limb (T. 151). Since the plant was not in production at 

the time of the inspection, Mr. Ainge felt that an injury was not 

likely to occur CT. 151). The violation is thus found to be of 

only a moderate degree of seriousness. 

Inspector Ainge discussed the condition with Mr. Redman CT. 

151) and explained what modification would be required to abate 

the hazard CT. 152). An abatement date of April 2, 1985, was 

selected (T. 152). On May 10, 1985, the conveyor were reinspected by Inspector Ainge (T. 152). At that time, the head 

pulley was guarded but no work had been performed on the tail 

pulley CT. 153). A continuation was issued by the Inspector CT. 

153). 

Inspector Ainge reinspected the conveyor on May 30, 1985. 

No additional work had been performed on the tail pulley CT. 153). 

A Section 104{c) non-compliance order was issued by Ainge after 

which abatement was accomplished. 

While there was no specific evidence of Respondent's 

negligence attendant to the initial violation CT. 158), 

Respondent's failure to promptly abate the violation after 

notification thereof was willful; the plant was in operation at 

least four days during the interim period after the Citation was 

issued and before abatement was accomplished CT. 158; 2d 

Transcript, T. 17). A penalty of $200.00 is assessed. 

Citation No. 2364585 

The standard infracted, 30 C.F.R. § 56.14-1 provides: 

"Gears; Sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings; shafts; sawblades; fan 

inlets; and similar exposed moving machine parts which 

may be contacted by persons, and which may cause injury 

to persons, shall be guarded." 

The violative condition (or practice) was described by the 

Inspector as follows: 

"The head pulley on the 30" x 80' feed belt was not 

guarded. The plant was not working due to repair on the 

crusher." 

The Inspector testified that a miner could have been pulled 

into the head pulley with resultant severe injuries including the 

separation of a limb. It was also his opinion, however, that it 

was unlikely such an accident would occur. The Respondent only 

partially abated the violative condition even after the Inspector 

extended the original abatement time, and it was necessary for 

the Inspector to issue a Section 104(b) non-compliance order. No 

evidence of negligence or willfulness was proffered with respect 

432 
to the initial commission of the violation. A penalty of $200.00 

is assessed in view of the Respondent's intransigence - or 

substantial neglect - with respect to prompt abatement of the 

violation. 

Citation No. 2364586 

The standard infracted, 30 C.F.R. § 56.11-1, relating to 

travelways, provides: 

''Safe means of access shall be provided and maintained 

to all working places." 

The violative condition (or 'practice) was described by the 

Inspector as follows: 

"There is three elevated conveyor belts that have gear 

reduction boxes on them. This area must be serviced at 

regular intervals. The people have been walking up the 

conveyor belts to access these areas." 

The hazard foreseen by the Inspector was that miners 

servicing and lubricating would be required to walk up the 

conveyor belt to do so and there being no "safety means" present 

such personnel could fall to the ground- a distance of some 40 

feet. Had such an accident occurred, there was a "strong 

possibility" of a fatal injury, according to the Inspector. 

Although Respondent was given one month to abate the violation, 

such was not accomplished. The Inspector concluded, and I find, 

that Respondent knew of the violative condition/practice and was 

negligent in continuing such. While it does not appear that 

Respondent proceeded in good faith to promptly abate the violation after notification, Petitioner specifically makes no such 

contention, so it is found that Respondent did abate the 

violation in good faith. This violation is serious in view of 

the gravity of the hazard posed. Further, Respondent presented 

no rebuttal to the Secretary's allegation that this was a 

"serious and substantial" violation. In view of the severity of 

the hazard posed by the violation, the operator's apparent lack 

of concern for compliance with mine safety standards, and the 

Inspector's testimony as to the likelihood of the occurrence of 

an accident, it is concluded that the Secretary established the 

prerequisite elements of proof for "significant and substantial" 

violations mandated by the Federal Mine Safety and Health Review 

Commission in its decision in Mathies Coal Co., 6 FMSHRC 1 (1984, 

to wit: 

"(l) the underlying violation of a mandatory safety 

standard; (2) a discrete safety hazard--that is, a measure 

of danger to safety--contributed to by the violation: (3) 

a reasonable likelihood that the hazard contributed to will 

result in an injury~ and (4) a reasonable likelihood that 

the injury in question will be.a reasonably serious nature." 

433 
In the premises, the Citation is affirmed in all respects 

and a penalty of $150.00 is assessed. 

ORDER 

1. Citation No. 2364580 is vacated. 

2. The remaining 6 Citations hereinabove discussed are 

affirmed in all respects. 

3. Respondent shall pay the Secretary of Labor within 30 

days from the date hereof the six penalties hereinabove 

individually assessed in the total sum of $620.00. 

/Jud~'l': ct:~.;'.{/~' /Michael A. Lasher, Jr. 

Administrative Law Judge 

Distribution: 

Joseph T. Bednarik, Esq., Office of the Solicitor, U.S. Department of Labor, 3247 Federal Building, 300 North Los Angeles 

Street, Los Angeles, CA 90012 (Certified Mail) 

Sierra Aggregate Companv, Donald and Janis Jolly, ·2239 Sunrise 

Drive, Bishop, CA 935la (Certified Mail) 

/bls 

434 
FEDERAL MINe SAFETY AND HEALTH REVIEW COMMISSION 

ALFRED H. COX, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

t1AR 5 \987 

: DISCRIMINATION PROCEEDING 

Complainant 

: Docket No. WEVA 86-73-D 

: MSHA Case No. MORG CD 85-18 

PAMMLID COAL COMPANY, 

Respondent . . : No. 5 Mine 

Appearances: 

Before: 

DECISION 

Paul R. Stone, Esq., Charleston, 

West Virginia, for the Complainant1 

William c. Garrett, Esq., Garrett & van 

Nostrand, Webster Springs, West Virginia, and 

Laura E. Beverage, Esq., Jackson, Kelly, Holt 

& O'Farrell, Charleston, west Virginia, for 

the Respondent. 

Rebecca Betts, Esq., King, Betts & Allen, 

Charleston, West Virginia, for Carson Jackson 

and Rodney Blankenship (respondent's president 

and vice-president). 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint 

filed by the complainant Alfred H. Cox against the respondent 

pursuant to section 105(c) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et seq. Mr. Cox filed 

his initial complaint on June 11, 1985, with the Secretary of 

Labor, Mine Safety and Health Administration CMSHA), claiming 

that his discharge from his job as a scoop operator on or 

about May 11, 19 85, was based or, his "safety concerns" at the 

mine. In several subsequent statements submitted to MSHA in 

support of his complaint, Mr. Cox further alleged that he was 

discharged for making safety complaints to mine management 

concerning certain alleged unsafe mine conditions which he 

assertedly documented in a personal log or notebook. In addition, ·auring the course of the hearing, Mr. Cox alleged that 

his discharge was also prompted by certain alleged complaints 

that he made to MSHA inspectors. Following an investigation 

435 
of his complaint, MSHA determined that a violation of section 

105(c) had not occurred, and notified Mr. Cox of this finding 

by letter dated November 7, 1985. Mr. Cox then filed his 

pro se complaint with this commission on December 6, 1985. 

The matter was assigned to former Judge Joseph Kennedy for 

adjudication, but was subsequently reassigned to me upon 

Judge Kennedy's retirement. 

The respondent filed a timely answer to the complaint 

and denied tpat it discriminated against Mr. Cox in violation 

of section 105(c) of the Act. As an affirmative defense, the 

respondent· asserted that Mr. Cox was discharged for insubordination, and in support of its defense asserted that in a decision of the West Virginia Department of Employment Security, 

dated May 29, 1985, in connection with Mr. cox's application 

for unemployment benefits, Mr. Cox reportedly stated that the 

reason he was fired was for unsatisfactory service, and not 

because of his alleged complaints about unsafe mine practices. 

In a subsequently filed pleading in response to a pretrial 

order issued by Judge Kennedy, the respondent asserted that 

Mr. Cox was discharged for unsatisfactory service after making certain threats to the respondent's President Carson 

Jackson during a telephone conversation of May 11, 1985, and 

to one Neal Pleasants, Jr., Senior Vice-President for Brooks 

Run Coal Company, during a second telephone conversation that 

same day. The alleged threats concerned Mr. Cox's purported 

assertions that he would call the "Labor Board" and "Union" 

in to stop the men from working at the mine and that he would 

shut the mine down. 

A hearing was held in Charleston, West Virginia, on 

October 28-29, 1986, and the parties appeared and participated 

fully therein. The parties filed posthearing briefs, and the 

arguments presented have been fully considered in the course 

of my adjudication of this matter. 

Issue 

The critical issue in this case is whether Mr. Cox's 

termination by the respondent was prompted in any way by his 

engaging in protected activity, or whether it was the result 

of unsatisfactory services or other legitimate reasons as 

claimed by the respondent. Additional issues raised by the 

parties are identified and disposed of in the course of this 

decision. 

436 
Applicable Statutory and Regulatory Provisions 

1. The 'Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301 et seq. 

, 2. Sections 105(c)(l), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 815(c)(l), (2) and 

( 3 ) • 

3. Commission Rules, 29 C.F.R. § 2700.1, et seg. 

The respondent's motion to quash a subpoena duces tecum 

served on two of the respondent's operating officers for the 

production of certain records was denied, and the respondent 

produced copies of the'requested documents for the complainant's examination, including a mine map, an MSHA record of a 

battery explosion, fire boss records, and records of reported 

roof falls (Tr. 6-12, 10-28-86). The parties also stipulated 

to the admissibility of Mr. Cox's deposition, taken on May 28, 

1986 (Tr. 13). In addition, the posthearing deposition of 

Mr. Carson Jackson, respondent's president and general mine 

superintendent, was submitted and admitted as part of the 

record. 

The complainant's subpoena for the testimony of MSHA 

Inspector John G. Tyler, was withdrawn after the parties 

agreed to stipulate to his testimony were he to appear as a 

witness in this case (Stipulation, Joint Exhibit JE-1), (Tr. 

5, 10-28-86). The complainant subpoenaed MSHA Inspector Joey 

Adkins, and he appeared and testified. 

Complainant's Testimony and Evidence 

In support of his case, the complainant subpoenaed eight 

present employees of the respondent, including Mr. Carson 

Jackson, respondent's president and general mine superintendent, and Mr. Rodney Blankenship, respondent's vice-president, 

and general mine and section foreman. Respondent also subpoenaed two MSHA inspectors, and one testified. The parties 

agreed to stipulate to the testimony of the other inspector. 

Wayne Lee, Cutting Machine Operator, confirmed that roof 

falls have occurred in the mine, but "we done what we could3 

to support the roof by installing longer bolts and cribs. At 

times, when the roof. bolts were found to be too far from the 

face, company management took corrective action by installing 

more bolts and cribs where necessary (Tr. 20, 28-29). Mr. Lee 

could supply no details as to the roof falls, nor could he 

recall any of the details of the reported roof falls made by 

437 
the respondent (Tr. 18, 37). The roof conditions were 

discussed by the miners among themselves, including Mr. ·cox, 

and with company management. However, Mr. Lee never heard 

Mr. Cox discuss any roof conditions.with Mr. Jackson or 

Mr. Blankenship, and he did not know whether Mr. Cox complained to management about any roof conditions. Mr. Lee 

stated that there were "differences of opinion". as to the 

existing roof conditions (Tr. 34-37). 

Mr. Lee stated that on one occasion, when a miner complained to Mr. Jackson about the roof bolts being too far 

back from the face, and after he (Lee) confirmed that this 

was the case, Mr. Jackson assured them that he would take 

care of the condition, and after 2 or 3 days, the condition 

was corrected. Mr. Lee explained that while the roof bolter 

would install two rows of roof bolts, the roof-control plan 

required additional support at the discretion of management 

if they were required to make the place safe. If any miners 

believed that the roof bolting was inadequate, they would 

discuss it among themselves and would try to correct it, and 

Mr. Lee was aware of several occasions when Mr. Jackson 

required the roof bolter to go back and rebolt an area. 

Mr. Lee asserted that there were occasions when Mr. Jackson 

was not aware of the roof conditions, but that "maybe he was, 

I don't know" C Tr. 39-43). 

Mr. Lee confirmed that powder and caps were hauled in 

the mine on equipment and left there together, rather than 

being left in the explosives magazine, and that this was a 

common practice until 2 or 3 weeks before the hearing in this 

case. Although he denied that he ever engaged in such a 

practice, Mr. Lee named three shot firers and drillers who he 

claimed did (Tr. 21>. Mr. Lee explained that leaving the 

powder and caps on the drill machine or other equipment made 

it easier on the miners because it would save them time going 

back and forth from the magazine. Mr. Lee believed that 

management was aware of this practice, because the powder and 

caps were in full view of anyone in the area, and no attempts 

were made to conceal the practice. He was sure that Foreman 

Blankenship was aware of the practice, and Mr. Lee knew of no 

complaints to management about it (Tr. 44-45). 

Mr. Lee stated that ventilation curtains were often 

rolled up rather than being kept down, and that this was a 

common mine practice. He explained that leaving them up made 

it easier on the equipment operators who were tearing them 

down, and it made the mining cycle go faster. Mr. Lee 

believed that management was aware of the practice {Tr. 24). 

438 
Mr. Lee testified about a battery explosion incident 

involving Mr. Cox which occurred sometime in 1984 or 1985, 

and another similar incident involving another miner, but 

could not recall all of the details. However, he believed 

that the incident involving Mr. Cox was cause by lack of 

adequate battery ventilation, and Mr. Cox's failure to turn 

off the battery charger power when he plugged in the battery. 

This caused an arc which set off the explosion (Tr. 37-38). 

Mr. Lee confirmed that he has shut off his personal dust 

sampling device in order to obtain a "good sample," and that 

this was a common practice for him. However, he was not 

aware of any MSHA violations ever being issued because the 

respondent exceeded the applicable MSHA dust standards (Tr. 

31-33). 

Mr. Lee stated that he was aware that Mr. Cox was keeping a personal notebook, but never saw any of the entries 

until he was given an opportunity to review the book during 

MSHA's investigation of Mr. Cox's complaint. He had no 

independent personal knowledge of any of the incidents 

recorded by Mr. Cox in the book (Tr. 48-54). Mr. Lee stated 

that he never complained to any MSHA inspectors about the 

practices in question, and that he has never been threatened 

by mine management (Tr. 27). 

On cross-examination, Mr. Lee asserted that bad roof 

conditions can exist anywhere in the mine, and that he does 

what he can to protect himself and his fellow miners. He 

confirmed that the respondent uses roof bolts longer than 

those required by the roof-control plan, and also installs 

support straps and plates in some places (Tr. 58-59). On one 

occasion, management decided to leave longer coal pillars 

rather than taking all of the available coal, and this helped 

to support the roof. Although falls have occurred around 

belts and in some face areas, no men or equipment were 

involved. Although it is not done on a regular basis, 

Mr. Blankenship has discussed the roof plan with miners (Tr. 

60-62). Mr. Lee confirmed that he never heard Mr. Cox complain to management about roof or dust conditions, and that 

the miners simply discussed it among themselves (Tr. 65). 

Mr. Lee stated that the respondent rock dusts on a 

regular basis, and that the water sprays on h machine are 

operable. When they are not, the respondent takes the appropriate action to repair them and makes an effort "to go along 

with me on water to keep the dust down" (Tr. 65-66). 

439 
Mr. Lee stated that Mr. cox himself has kept powder and 

caps on his drilling machine, and he never heard anyone from 

mine management approving of this practice (Tr. 63). He has 

heard Mr. Blankenship tell people to keep the ventilation 

curtains rolled up (Tr. 64-65). When miner Cogar complained 

to Mr. Cox about the powder and caps, Mr. Cox responded that 

the company "was doing things wrong too" (Tr. 73). 

Mr. Lee stated that company policy dictates that all 

roof bolting be done in sequence and that Mr. Cox himself has 

bolted out ot sequence, and Mr. Lee was present when management advised Mr. Cox of the requirement that bolting be done 

in sequence (Tr. 70). On one occasion when miner Alva Cogar 

complained to management about the bolting being out of 

sequence, Mr. Jackson took care of the problem and Mr. Cogar 

still works at the mine (Tr. 68-69). 

Mr. Lee confirmed that Mr. Blankenship has shut off his 

(Lee's) personal dust sampler, and he has heard that this was 

done with other samplers (Tr 77-78). However, no one has 

ever complained to MSHA about the practice (Tr. 78-79). 

Further, Mr. Lee has never heard Mr. Cox state that he would 

take any of his complaints to MSHA or other mine agencies 

(Tr. 76). Mr. Lee stated that Mr. Jackson does what he can 

"for the most part" to run a safe mine, and that he can 

communicate with Mr. Jackson and Mr. Blankenship (Tr. 68). 

When asked why miners were not concerned about the dust 

samplers being shut off, Mr. Lee stated "it ain't that we 

don't care; its that we've got to make a living" and without 

decent dust samples, inspectors would always be there and 

shut the mine down for noncompliance and there would be no 

work (Tr. 79-80}. 

James Ramsey, Jr., roof bolter operator, stated that he 

was aware of roof falls between October, 1984 and May, 1985, 

but could not state how often they occurred. He does what he 

has to do to insure adequate roof support, and if longer 

bolts are needed he installs them. He would report bad top 

to his foreman, and was always instructed to install longer 

bolts or cribs. Mine management has never instructed him to 

work under bad top, and has never ignored him when he 

reported bad top to his foreman or to Mr. Blankenship. On 

occasion, when he (Ramsey) believed that more could be done 

to support the roof, he never advised his foreman about this, 

nor did he complain to ~r. Blankenship (Tr. 81, 95-99). 

Mr. Ramsey stated that he was aware of drillers keeping 

powder and caps on their machines, but no one ever complained, 

440 
and the practice has since stopped. He was also aware of 

ventilation curtains being rolled up, and a battery explosion 

involving Mr~ Cox, but he knew no details since he was not 

there when it happened, and he and Mr. Cox worked on different 

shifts (Tr. 81-84, 89, 106). 

Mr. Ramsey confirmed that he has shut off his own personal dust sampler, but was not aware of anyone else doing it 

or Mr. Blankenship's involvement. When asked why he shut his 

off, Mr. Ram~ey responded that "he just did" (Tr. 94). 

Mr. Ramsey stated that he has never complained to MSHA about 

any of these practices, and when asked why, he responded that 

he wants "to go along with everybody" (Tr. 92). 

On cross-examination, Mr. Ramsey remembered two roof 

falls on a belt, and he confirmed that management installed 

cribs and canopies over the belts, took steps to support the 

roof, and explained the roof control procedures to the miners 

(Tr. 102-103). In response to further questions, he confirmed that he has roof bolted out of sequence, but did not 

make a practice of it. He uses his own judgment in roof control after taking into account the prevailing conditions, and 

he never told management about bolting out of sequence and 

"just did it." He admitted that he took it upon himself to 

bolt out of sequence, and on occasions when Mr. Blankenship 

and Mr. Jackson observed him doing it, they instructed him to 

do it the proper way. Mr. Ramsey stated further that he 

bolted out of sequence only twice in the past 6 months, and 

that he did so because he believed it was safer, and not as a 

short cut (Tr. 110-115). 

Mr. Ramsey stated that ventilation curtains were rolled 

up because it increases production and made it easier on the 

crew. Although dust increases from this practice, the face 

areas are rock dusted every evening, and no excessive levels 

of methane have ever been detected in the mine (Tr. 103-105). 

He thought there "may be trouble" with management if he 

didn't go along with the curtains being rolled up, but did 

not know what management's reaction would be if he rolled 

them down. He was aware of his right to make complaints to 

MSHA, but never did, and never saw a need to do so (Tr. 

108-109) • 

Mr. Ramsey stated 

and has told him about 

encountered (Tr. 108). 

Alva Cogar with powder 

that he is not afraid of Mr. Blankenship 

adverse roof conditions when they were 

He confirmed that he observed miner 

and caps on his drill machine CTr. 107). 

441 
Roger Groves, electrician, stated that he was aware of 

roof falls in the mine, and they resulted from broken roof or 

areas where it was hard to hold. However, he believed the 

roof was bolted according to the approved roof-control plan 

(Tr. 127). He did report one bad top condition to 

Mr. Jackson, but mining continued in the area for a week CTr. 

131). He was aware of rolled up ventilation curtains, and 

believed that this was the rule rather than the exception 

CTr. 128). He has "heard talk" about dust samplers being 

turned off, but could not recall any details (Tr. 129). He 

was also aware of the battery explosion incident involving 

Mr. Cox CTr. 130). Mr. Groves stated that he never made any 

safety complaints to MSHA, and has no knowledge that Mr. Cox 

did (Tr. 132) • 

On cross-examination, Mr. Groves confirmed that he was 

responsible for the maintenance of the mining equipment, and 

that the respondent's policy is to keep all equipment in good 

operating condition. He does what is necessary to keep the 

equipment in good repair and proper operating condition. The 

ATRS and water sprays on the cutting machines were kept in 

good condition, and Mr. Blankenship frequently discussed the 

roof-control plan with the men, usually in the morning. 

Mr. Groves stated that he never observed any evidence that 

the respondent did anything to endanger miners under unsupported roof, or that the roof was not supported according to 

the approved plan (Tr. 135-139). 

Mr. Groves stated that during his 5 years of employment 

at the mine, he complained once about bad top. The roof had 

dropped in a roadway away from the face and the weight was 

pulling thru the bolts and half-headers. After he reported 

this to Mr. Jackson, mining continued for a week, but 

Mr. Jackson.took care of the condition in time, and he was 

not antagonistic because he had complained. Mr. Groves 

stated further that Mr. Jackson and Mr. Blankenship never 

left him with the impression that if he made safety complaints, his job would be in jeopardy, and he recalled a 

meeting at which Mr. Jackson stated that he would rather shut 

the mine down than have someone injured (Tro 144 46)9 

With regard to the battery explosion incident? Mr. Groves 

was of the opinion that it was caused by a gas buildup under 

the lids. Although the lids are vented, they were kept closed. 

He could not state whether Mro Cox was aware of the fact that 

the lids and vents should be opened for adequate ventilation, 

and when he plugged in the battery with the charger connected, 

442 
an arc resultedo Itvs possible that Mr. Cox forgot to deenergize the charger, and that this caused the arcing CTr. 

142-144). 

In response to further questions, Mr. Groves stated that 

while he never observed Mr. Jackson or Mr. Blankenship present when powder and caps were on the equipment, since they 

were in and out of the section, and were the bosses, he 

assumed that they knew of the practice, but he never discussed 

it with them_, nor did he bring it to their attention (Tr. 

148-150). Mr. Groves confirmed that he is a certified shot 

firer, and that he observed powder and caps on equipment, 

rather than stored in a box. Keeping the powder and caps on 

the equipment made it easier on the shot firer (Tr. 152-153). 

MrQ Groves was aware of the Holmes Safety Group sponsored 

by the respondent, and he has seen notices posted informing 

the men about meetings. He denied that he was concerned about 

his job or the mine shutting down if he complained, and he 

could not recall Mr. Cox ever complaining to Mr. Jackson or 

Mr. Blankenship about any safety matters. He also stated that 

Mr. Cox never told him that he had made any complaints (Tr. 

154-157). 

Aaron Bender, coal drill operator and shot firer, confirmed that he worked with Mr. Cox on the same shift when he 

was first employed, and then went to the evening shift in 

1984. Mr. Bender was aware of some roof falls because of bad 

top, and the top would fall above the roof supports CTr. 163, 

175). Mr. Bender admitted that he has kept powder and caps 

on his drill because it makes his work easier and faster. He 

was also aware of multiple powder bags or boxes being carried 

about, and admitted that he had done this and was aware of 

the fact that it is a violation. He denied any knowledge of 

any uncertified persons drilling or shooting. He was aware 

that ventilation curtains were not always maintained within 

10 feet of the face and in the down position, and admitted 

that he did not always keep the curtains down because it 

slowed him down. He has helped roof bolters and they always 

bolted in sequence, and he was not aware of any roof bolting 

being done out of sequence (Tr. 164 68). 

On cross-examination, Mr. Bender stated that he was 

familiar with the roof-control plan and has helped out on 

roof support. He stated that the roof-control plan was 

followed "pretty well, as close as we could," and that cribs 

or larger bolts were set if the roof "started working.'' 

There.were never occasions when nothing was done to attempt 

to keep the roof intact, and when he pointed out adverse roof 

443 
conditions to his foreman Dave Young, Mr. Young always cautioned him to watch the roof and to rebolt it when it was 

safe to do so. There were instances of roof falls in places 

which had been bolted, but this did not occur every day or 

every week. However, additional support was always installed 

in these areas, and he believed it was adequate. Additional 

support would be installed in those instances when he 

reported adverse conditions to Mr. Young CTr. 177-180). 

Mr. Ben~er stated that the respondent provides bags for 

carrying powder, and it is his understanding that he can 

carry enough in the bags to shoot three or four places. He 

also knew that he was not to keep the powder and caps on his 

drill, but he did so anyway because it made his work easier 

and saved him time because he did not have to walk back and 

forth from the powder magazine (Tr. 182). 

Mr. Bender explained that the ventilation curtains were 

kept rolled up to preclude knocking them down with equipment. 

If they are knocked down, the equipment operator is supposed 

to stop and put it back up, but many times he did not stop 

after knocking down a curtain, and usually, no one observed 

him. on one occasion, Mr. Young observed him tear down a 

curtain but did not stop him or order him to put it back up 

(Tr. 184-186). 

Mr. Bender stated that he never complained about the 

curtains being knocked down, but "us workers used to talk to. 

each other about it." He also stated that he was not concerned' about knocking down curtains because "you probably 

wouldn't run coal if you went by every law that you had to go 

by" (Tr. 186-187). Mr. Bender stated that he was not aware 

of anyone complaining to management about safety concerns, 

and he never complained to Mr. Jackson about safety or about 

any dissatisfaction with his job. Mr. Bender confirmed that 

anytime he believed something was not safe, he discussed it 

with his foreman CTr. 189-190). 

Steve Mullins, scoop operator, testified that he was 

aware of roof falls in the mine, but they were not frequent 

occurrences, and he recalled one or two a year in the 5 years 

he has worked at the mine. He was aware of powder and caps 

kept on equipment, and believed that it was a commonplace 

occurrence. He engaged in the practice because it made his 

work easier, and he never believed he was in any danger. 

Foreman Blankenship has sent him for powder and caps, and 

Mr. Mullins would bring it in and place it on the drill. 

Mr. Mullins was of the opinion that Mr. Blankenship was aware 

444 
of the practice because "he was there all day and so he'd 

have to have seen it" CTr. 195, 201). 

On cross-examination, Mr. Mullins stated that he has 

served as a substitute section boss, and has also served as a 

shot firer. He has cleaned up debris after a roof fall, and 

confirmed that adequate steps were taken to resecure any roof 

fall areas, and that headers, cribs, and canopies have been 

installed in these areas. He believed that most places where 

falls occurred were too high for the bolter to reach. He 

conceded that keeping powder and caps on his scoop was not a 

smart thing to do, and he would' never have done it if he 

believed he were in any danger (Tr. 211). 

Michael R. Poole, formerly employed by the respondent as 

a bratticeman, confirmed that Mr. Cox is his uncle and helped 

him get his job. Mr. Poole stated that he was fired by the 

respondent for failing to appear for work on Saturday, May 11, 

1985, and that he had worked for the respondent as a bratticeman for 3-years prior to his termination. Mr. Poole stated 

that during May 1984 to May 1985, the mine experienced eight 

roof falls in the working area. He also stated that the 

ventilation was not kept up to par, and that the only time it 

was is when an inspector was present for an inspection every 

6 months (Tr. 218-219). Curtains were rolled up and nailed to 

roof headers, and at times no curtains were installed unless 

an inspector was on his way into the mine. However, the permanent brattices and stoppings were installed and maintained 

properly CTr. ~22, 245). 

Mr. Poole confirmed that powder and caps were frequently 

kept on machinery underground and he named five management 

individuals who he claimed knew about this practice, including Mr. Jackson and Mr. Blankenship (Tr. 219). Mr. Poole 

stated that on occasion, he operated the coal drill and helped 

shot firer Alva Cogar, and Mr. Jackson and Mr. Blankenship 

would walk in and see the powder and caps on the machine CTr. 

210). 

Mr. Poole stated that he never wore any dust sampler, 

but they were made available to other miners. Although he 

never personally heard Mr. Blankenship order anyone to 

deactivate a sampler, two of his fellow workers told him 

Mr. Blankenship told them to turn off their samplers, and 

Mr. Poole stated that he observed samplers in a box on a 

rectifier and that they remained there during the entire 

shift (Tr. 223-225) •. 

445 
Mr. Poole stated that on one occasion during his last 

year on the job he complained to Mr. Blankenship about the 

practice of keeping powder and caps on the equipment when the 

top was bad, and that he often told Mr. Jackson's son Kit 

about the ventilation and float coal dust. Mr. Poole stated 

that he complained to Kit Jackson, and knew that he would 

tell his father about it (Tr. 232). Mr. Poole stated that 

on one occasion, Mr. Cox told Mr. Blankenship that the next 

time an inspector was in the mine, he (Cox) "would have a 

talk with hi~, 11 and a week later Mr. Cox was fired (Tr. 233). 

When asked whether he or the other men had ever threatened to go to an inspector with his complaints, Mr. Poole 

responded as follows (Tr. 233): 

A. I think we've all discussed it at one time 

or another, yes, but later, right before we 

got fi~ed, within a month or two months, 

maybe, before we got fired, I even told Kit 

that I might go and try to get the union in 

there to get it straightened out. And I'm 

sure that he went back and told Carson and 

Rodney. 

* * * * * * * 

A. I'm sure, while we was gathered around, 

you know, eating lunch or something, that a 

few of them has mentioned such things as bad 

top and things like that, but most of them was 

scared they was going to lose their jobs and 

they wouldn't ever threaten the company as far 

as going to the mine inspectors or anything 

because they was all afraid of losing their 

job. 

JUDGE KOUTRAS: Did they ever talk about doing 

it? 

THE WITNESS: A lot of them a lot of times, 

quite often, they'd say somebody needs to do 

something about it, you know. As a matter of 

fact, Alva Cogar, he's the one -- he runs the 

coal drill, and he was always complaining that 

something was needing done, too. 

Mr. Poole stated that although he is not a certified shot 

firer, he was required to shoot coal in the absence of the 

regular shot firer, and that he did so at Mr. Blankenship's 

446 
direction (Tr. 238-239). He also stated that he shot coal 

while a trainee, but was not sure who directed him to do it. 

However, he believed that foreman Euhl Damron and 

Mr. Blankenship knew .about it, and that Mr. Blankenship 

assigned him to help the coal driller and the firer (Tr. 240). 

Mr. Poole stated that there were occasions when Mr. Blankenship 

would leave the section, or would be late in arriving, and no 

foreman would be present, or he would assign scoop operator 

Steve Mullins to be in charge (Tr. 242). 

On cross-examination, Mr. Poole stated that after Mr. cox 

received a telephone call at his home from Mr. Jackson on 

Saturday morning, May 11, 1985, Mr. Cox informed him that 

Mr. Jackson fired him for not reporting to work that day. 

Mr. Poole confirmed that Mr. Jackson was the person who initially hired him, that Mr. Jackson is the person who decides 

when employees are required to work, and that he (Poole) was 

told by his foreman that he was scheduled to work that particular Saturday CTr. 247). However, Mr. Poole also stated that 

he was led to believe from Mr. Blankenship that he did not 

have to work that day (Tr. 248). Mr. Poole denied that either 

he or Mr. Cox attempted to convince other miners not to report 

for work that day (Tr. 249). Mr. Poole confirmed that because 

of certain personal problems with his spouse, he was staying 

at Mr. Cox's house and was sleeping when Mr. Jackson called, 

and he did not hear the telephone conversation. 

Mr. Poole stated that he and Mr. Cox went to the mine on 

Monday, May 13, 1985, and he did not understand that he had 

been fired until everyone else went into the mine. He and 

Mr. Cox were summoned to the office by Mr. Jackson, and 

Mr. Jackson handed them their paychecJcs and termination notices~ and the notices stated that they were fired for 

"services unsatisfactory" (Tr. 251). 

Mr. Poole confirmed that prior to his discharge, he had 

been late for work "a few times," and had two unexcused 

absences because of personal problems, and had been warned by 

Mr. Jackson and Mr. Blankenship that his absences would not 

be tolerated in the future. Mr. Poole denied that he was 

ever given a written warning about his absences, but admitted 

that Mr. Jackson or Mr. Blankenshl.p had given him "a slip of. 

paper" which recorded the dates of his unexcused absences and 

days that he was late for work. Mr. Poole stated that when 

he received this, he went to Mr. Jackson' home and informed 

him that he would understand it if Mr. Jackson fired him for 

his absences and tardiness, but that Mr. Jackson simply told 

him not to miss anymore work "if I could help it" (Tr. 252). 

447 
Mr. Poole confirmed that he filed a discrimination complaint with MSHA after he was fired, and later received a 

letter advising him of MSHA's findings that the respondent 

had not violated the law and that his case would not be 

pursued further. Mr. Poole stated that he moved out of state 

and did not pursue the matter further (Tr. 253-254; 270-271). 

With regard to his assertion that roof falls had occurred 

in virtually every entry during the period immediately before 

his discharg~ of May 11, 1985, Mr. Poole stated that the only 

evidence he has of this allegation is his word and the word of 

Mr. Cox, and "if a couple of the other guys hadn't left, their 

word" (Tr. 254). He further explained as follows at (Tr. 

255-257): 

Q. As far as you know, when the roof falls 

occurred were reports of the roof falls made 

to the proper governmental officials? 

A. As far as I know, no. As far as I know, 

they may have reported every one of them. 

Q. You don't know. 

A. As far as knowing, no, sir, I don't. 

Q. Did the investigators come while you were 

there and investigate the areas where the 

falls occurred? 

A. I think one time there was a mine inspector came and investigated. 

Qo When the falls were occurring, was 

Mr" Jackson doing anything? was he investigating it himself? 1 

A. He looked at a few of them, I do know 

that, but I was pretty well busy the times I 

was there. 

Q. The point I'm getting at is this: did the 

company -- you testified you were concerned 

and worried about the condition of the roof. 

Was the company management also concerned 

about the roof? 

A. I would say they was worried to where they 

didn't want their roadways blocked. They're 

448 
pretty well used to it. They've been underground twenty or thirty years, you know and 

it's just' normal i you hear popping and cracking, you know. You get used to it and you 

don't really worry that much about it. 

Q. Are you saying they had more knowledge 

about the condition of the roof than you did? 

Do you admit that? 

A. I'm- saying more experience. 

Q. In dealing with roof conditions? 

A. Right. 

Q. And were you aware that the company took 

steps to support the roof in the areas that 

they were having trouble with the roof? 

A. Not all of them, but in a lot of them, 

yes. 

Q. You admit that the company took extra 

added steps to ensure a supported roof? 

A. In a few places, yes. Not everywhere, 

though. 

Q. Did you point out bad roof areas to anyone 

in management that they ignored? 

A. Yes. 

Q. They ignored it? 

A. Yes. 

Q. They did nothing? 

A. Right. 

Q. All right. Can you give me specific 

instances? 

A. Like, most of the time we'd eat on the 

rectifier. Probably two weeks before we was 

fired, three weeks before we was fired, me, 

Kit, Rodney, probably Steve Mullins and my 

449 
uncle was sitting on the rectifier, and Wayne 

Lee came up there and I pointed out to Wayne, 

Kit and all of them the way that that rib was 

cutting -- they call it cutting but the top 

just keeps falling out in small pieces, and, 

you know, it's hard telling how much of it 

will fall out. And No. 5 entry, that was the 

only roadway going to the face passable by 

scoops or any big machinery. Wayne Lee looked 

at it two or three times with me; my uncle 

looked at it with me; Kit has looked at it 

with me and I showed them -- normally, when 

you have so much pressure on a bolt, the plate -- you have a half header above the bolt -- the half.header, ~o much weight will come 

against it, it will squeeze plumb in two and 

an end will even fall off. But these particular ones, the bolt head itself was ripping 

the plate and pulling the head of the bolt 

through the plate. That's how much weight was 

on them. 

Mr. Poole confirmed that the permanent stoppings were 

usually constructed and maintained in compliance with the 

law, and that when he shot coal as a trainee he never did it 

without being supervised, but he was not sure whether the 

person who supervised him was a certified shot firer. With 

respect to his shot firing after his training was over, 

Mr. Poole stated that he was still not a certified shot 

firer, and while Mr. Blankenship may have at times been 

present, he was not under his direct supervision (Tr. 260). 

With regard to his complaints about the coal dust, 

Mr. Poole confirmed that he made no direct complaints to mine 

management but that he "would be talking about it" (Tr. 262). 

He stated that management agreed with him "a lot of times," 

and conceded that he rock dusted the affected areas, and that 

the maintenance shift also rock-dusted in order to keep the 

dust down. Mr. Poole believed that rock dusting was done 

75-85 percent on his shift as well as on the maintenance 

shift (Tr. 263). 

Mr. Poole agreed that his shift 

the brattice cloth within 10 feet of 

that this was always done (Tr. 264). 

follows (Tr. 264-265): 

and the third shift kept 

the face, but disagreed 

He explained further as 

JUDGE KOUTRAS: Let me ask you this: what if 

I were to tell you hypothetically that six 

450 
miners testified in this case that the curtain 

was always hung up in the right locations, but 

it was rolled up. It was hung, but it was 

rolled up, and that way, it interfered with 

ventilation. Do you disagree with that? Are 

you saying it was never hung up in the right 

place? 

THE WITNESS: No, no, that's not what I'm -- a 

lot of ~imes it would be hung up in the right 

place and rolled up. But I would say at least 

forty percent of the time, especially if, like 

Monday, Tuesday and Wednesday a mine inspector 

came and he finished -- I think it's called a 

general inspection -- for two weeks, probably, 

there wouldn't be hardly any curtain put up. 

JUDGE KOUTRAS: At all? 

THE WITNESS: We'd go something like two 

breaks before any curtain would be put up 

again -- a lot of times. I'm not saying all 

the time or every time; I'm saying a lot of 

times. 

With regard to his asserted "complaints" to mine management, Mr. Poole stated as follows (Tr. 265-268): 

Q. Now, you said earlier you made complaints 

to management or you talked with management 

about the float dust. And you talked about 

the rock dust; you talked about the curtains. 

Did you make any other complaints to 

management? 

A. Yes. The more the top got bad the more 

everybody complained, more or less, but all of 

us would discuss the top getting worse, 

possibly falling on the drill and blowing us 

all up. There was a lot of people talking 

about it. 

Q. That's fine. A lot of people were getting 

concerned about the driller hauling shot and 

caps on his drill as the roof got worse, and 

that would be getting close to the time that 

you were discharged. Is that correct? 

451 
A. Right. 

* * * * * * * 

Q. Who are you talking about when you say a 

lot of people? 

A. I would say just about everybody that was 

an employee on the day shift: Roger Groves, 

Steve Mμllins, Wayne Lee, Alva Cogar, me, my 

uncle. 

Q. Were these conversations you had among 

yourselves or were these conversations you 

also had with members of management? 

A. Not all the time, but a lot of times, 

management would be there, too, yes. 

Q. Let's talk about that. Alva Cogar, 

Mr. Groves, Mr. Mullins, Mr. Lee, your uncle, 

yourself --did you say any more? 

A. We wouldn't all be there at one time, 

don't get me wrong. Three or four of us would 

talk about it at lunch, and three or four of 

us would talk about it when we was taking a 

break or something. 

Q. When you'd talk about it and management 

would be present, what would be management's 

response? 

A. A lot of times they wouldn't even comment 

on it. 

Q. Did they ever disagree that you can 

recall, about this driller hauling powder on 

his machine? 

A. As far as I can recall, no, but like I 

said, most of the time they wouldn't have any 

comment on the subject. 

Q. Besides complaining about the float dust 

and complaining about the powder and caps on 

the drill, were there any other complaints 

that either you or your uncle or other members 

made to management? 

452 
A. I can't think of any at this time. 

* * * * * * * 

Q. Let's talk about those complaints now, a 

minute. What was the nature of the complaints? 

How would they be made to someone from 

management? 

A. How would they be made? 

Q. How would you make the complaint? What 

form -- in what form were they made? 

A. Somebody needs to do something about the 

dust. Somebody needs to get the ventilation 

right so that this float dust will be taken 

out of here. Different things, different ways 

like that. 

When asked whether he had ever made any safe complaints 

to any Federal or state inspectors, Mr. Poole testified as 

follows at CTr. 269): 

Q. Did you ever make a complaint about these 

two areas· or any other safety concern that you 

had in the mine to an investigator from the 

federal government or state government? To an 

inspector? 

A. I went to Mr. Tyler's house. He's a 

federal mine inspector. I went along with my 

uncle, and we discussed what was going on at 

the mine. And he told us a couple of steps to 

take. 

Q. And did you take those steps? 

A. We tried 

fired, yes. 

right before 

what, but we 

to take them and then we was 

I don't remember if we got fired 

we started the procedures or 

did try to take the steps. 

Q. The question I'm asking you is, did you 

contact anyone from MSHA -- the right person 

from MSHA prior to your discharge? 

453 
A. I don't think prior to my discharge1 I'm 

not for sure. 

Q. You didn't then. 

A. I don't think so. 

Q. And after your discharge, you did. Is 

that right? 

A. Yes-~ 

With regard to his visit to the home of MSHA Inspector 

Tyler when Mr. Cox purportedly complained to him about safety 

violations,. Mr. Poole stated that he also complained to 

Mr. Tyler (T~. 275) •. Mr. Poole confirmed that this was the 

only time he went to see Mr. Tyler, and that he was aware of 

the MSHA publication informing him that he could complain to 

any MSHA inspector, and he assumed that seeing Mr. Tyler was 

adequate (Tr. 277). Mr. Poole stated that Mr. Cox had previously gone to Inspector Tyler's home during the summer of 

1984, in response to an ad that.Mr. Tyler had placed concerning some automative parts for a Subaru which he wanted to 

sell. Mr. Poole explained that his visit to Mr. Tyler's home 

came 3 months later when Mr. Cox again visited Mr. Tyler, and 

he was with him at that time {Tr. 278-279). Mr. Poole stated 

that the second visit was "just the other day" (Tr. 280). As 

far as he knew, no one from mine management knew about the 

first visit to Mr. Tyler's home (Tr. 280). 

Mr. Poole stated as follows at (Tr. 272-273): 

Q. Do you know of any instances where, prior 

to your discharge, employees were discharged 

or punished because they made complaints about 

safety? 

A. I can't think of any right off, no. 

Q. Did you ever hear Mr. Jackson, the 

president of the company, make any such claims? 

That he would lay off or fire or punish anyone 

because they were concerned about safety? 

A. No. 

Q. And it's a fact that you knew Mr. Jackson 

was the boss? 
A. Yes. 

Q. And he was the one that hired and fired 

the men? 

A. Yes. 

Q. And your purpose was to get your job back 

by trying to get Brooks Run to interfere with 

the management decision of Mr. Jackson. Is 

that correct? 

A. Yes. 

Q. Sir? 

A. Maybe not to interfere, but to talk to him 

and maybe ask him about getting it back, 

things such as this, not really to interfere 

with it. 

Q. Well, what hold did you and your uncle 

hold over Brooks Run to get them to get 

Mr. Jackson to change his mind and give you 

your job back? Weren't some threats made? 

A. Not really threats1 just my uncle told him 

that we were going to the MSHA off ice and see 

if there wasn't something could be done about 

it. 

Q. Didn't he also tell him that they weren't 

going to run no more coal and they were going 

to shut the mine down and have a walkout, work 

stoppage? Isn't that a fact, Mr. Poole? 

A. Not to my knowledge, no. 

Q. Not to your knowledge. 

A. No. 

Q. You're saying that your uncle did not tell 

Mr. Pleasants over the phone -- all you could 

hear was your uncle's part of the conversation 

-- that you'd better get his nephew's job back 

or he was going to have a work stoppage and 

stop running coal on that mountain? 

455 
A. No. 

Q. And he didn't mention anything about there 

was going to be trouble up there if you didn't 

get your job back. 

A. My uncle told Mr. Pleasants that he had 

trouble in one of his mines; that his nephew 

had been fired -- ref erring about me -- and 

that he_ was going to have trouble up there if 

something wasn't done. 

Q. And the trouble you mean is what we're 

doing today. Is that right? Because you 

didn't get your job back. 

A. Probably so, yes. 

With regard to Mr. Cox's telephone call of May 11, 1985, 

to Mr. Neil Pleasants, a business associate of Mr. Jackson, and 

the person to whom the respondent sells its coal, Mr. Poole 

confirmed that he heard one-side of the conversation, and he 

confirmed that he heard Mr. Cox tell Mr. Pleasants that he was 

planning to go to a federal mine inspector and complain about 

violations at the Pammlid Mine. Although he was not sure, 

Mr. Poole believed that Mr. Cox also mentioned that he would go 

to the "labor.board" with his complaints CTr. 274-275). 

Mr. Poole identified Mr. Pleasants as the "head honcho" 

at the Brooks Run Mine, and he believed that Mr. Pleasants 

had the authority to shut the respondent's mine down until 

"any problems were taken care of" (Tr. 281). Mr. Poole stated 

that after Mr. Cox informed him that he had been fired, he. 

(Poole) asked him to call Mr. Pleasants. Mr. Poole stated 

that he did not wish to call Mr. Pleasants because he (Poole) 

was "kind of hot headed" and did not know how to communicate 

with people, and believed that Mr. Cox could serve as his 

"mediator" (Tr. 282). 

Mitchell Nash, scoop operator, confirmed that he was 

aware of a roof fall on the belt because of bad top and inadequate support. He was also aware that ventilation curtains 

were rolled up most of the time, and stated that the only 

time they were down was when an inspector was in the mine. 

He explained a battery explosion incident in which he was 

involved, and stated that while the ventilation was adequate, 

a gas build-up under the battery which had been idle for 

2 day~ caused an explosion sparked by an arc when he plugged 

in the battery. Had the battery lids been lifted, he did not 

456 
believe an explosion would have occurred, and he was not 

instructed to lift them prior to the incident. After the 

incident, Mr. Jackson instructed him to open the lids for 

ventilation (Tr. 6-10). 

Mr. Nash was not aware of anyone turning off dust samplers, but was aware of powder and caps on equipment, and 

that he did it "to bring up pro(luction." He confirmed that 

the practice has since stopped. He was not aware of any 

miners compl~ining to management or MSHA, and Mr. Cox never 

spoke to him about complaining or threatening to make safety 

complaints to state or federal mine authorities. He stated 

that neither Mr. Blankenship or Mr. Jackson ever instructed 

him to store powder and caps on equipment, nor did they imply 

that this should be done (Tr. 11-18). 

On cross-examination, Mr. Nash stated that when the 

battery explosion occurred, Mr. Blankenship wanted him to go 

to the hospital but that he (Nash) said he was "all right" 

and wanted to return to work. Mr. Blankenship told 

Mr~ Jackson to file an accident report, and while Mr. Jackson 

was reluctant to do it at first, he did report the incident. 

Mr. Nash went to the hospital and was checked by a doctor who 

gave him aspirin and he was sent home. He had no follow-up 

care_and returned to work, and he identified exhibit R-1 as 

the accident r~port of May 17, 1985, relating to the incident 

(Tr. 23-27). 

Mr. Nash stated that the roof fall he mentioned could 

have been prevented because the roof was dribbling, and the 

foreman knew it was weak. However, it fell over a weekend 

when no one was in the mine, and it covered half of the belt 

feeder. After the fall, Mr. Blankenship began watching the 

roof closer and longer roof bolts were used for support. 

Mr. Nash did not know whether MSHA inspected the fall area. 

He confirmed that a state roof inspector has discussed roof 

conditions with the miners, and that his foreman and 

Mr. Blankenship discussed the roof plan with him and 

instructed him to check the roof bolt test holes (Tr. 29-35). 

Mr. Nash stated that he took it upon himself to keep 

powder and caps oa the equipment because it made his work 

easier, and no one from management suggested that he ·do so to 

speed up production.. He has torn down ventiiation curtains 

with his equipment, and has stopped to replace them only if 

an inspector were present. Stopping to replace curtains 

slows his work down. The curtains were always rolled up when 

an inspector was not present, and he never complained to 

management or any inspector about the practice. Since he is 

457 
paid by the hour, he is not concerned about production (Tr. 

35-41), nor is he concerned about his job if he were to 

complain CTr. 53). 

Mr. Nash stated that when he was hired by Mr. Jackson, he 

was told that he would be required to work some overtime. He 

,ponfirmed that Mr. Jackson is responsible for hiring, firing, 

and salaries, and that everyone knows it. He stated that when 

he was hired he went to the office of the Brooks Run Coal 

Company to inquire as to whether he would be paid or given the 

day off on hls birthday, and when Mr. Jackson found out about 

it he called a meeting of the men and told them that he runs 

the mine and that Brooks Run did not. Mr. Jackson also 

advised the men that if anyone contacted Brooks Run asking 

about Mr. Jackson's mine, he would fire them. Mr. Nash confirmed that "Mr. Jacks·on makes no bones about who runs the 

mine" (Tr. 44-46). 

In response to further questions, Mr. Nash stated that 

he went to Brooks Run because he assumed they operated the 

respondent's mine, and that when he was looking for a job he 

went to Brooks Run, and they sent him to Mr. Jackson (Tr. 

48). 

Joey Adkins, testified that he is an MSHA inspector 

assigned to the Mt. Hope District Four Office, and he confirmed that his office does not have enforcement jurisdiction 

of mines in Webster County. He confirmed that Mr. Cox visited 

him before his discharge and expressed some concerns about the 

safety conditions at the mine where he was then working. 

Mr. Adkins could not specifically state when the visit 

occurred, and he stated that Mr. Cox did not identify the mine 

in question. He stated that Mr. Cox complained about the 

hauling of explosives on electrical equipment, poor mine ventilation, and some roof problems (Tr. 112). 

Mr. Adkins stated that carrying or storing explosives on 

equipment is a violation of the law, and it could be an imminent danger. Mr. Cox also complained about the lack of line 

curtains and indicated that mine ventilation was poor. 

Mr. Adkins stated that the question as to whether this would 

be a violation would depend on the applicable approved mine 

ventilation plan. If he were to find a ventilation curtain 

rolled up in a mine which he inspects it would be a violation 

(Tr. 115). He explained further that Mr. Cox stated that the 

mine had "bad roof" and said something about a "double 

linear." Mr. Adkins stated that "anytime you go through 

those,- you've got a bad top anyway," but this condition is 

not of itself a violation, unless it is not taken care of. 

458 
The condition is corrected by roof bolting, cribbing, timbering, strapping, or "whatever is necessary." The condition 

could be a violation of section 75.200, but he did not see 

any of the reported roof conditions (Tr. 116). If a miner 

went under unsupported roof, this would be a violation of 

section 75.200 CTr. 117). 

Mr. Adkins stated that he has observed rolled up ventilation curtains which are kept out of the way in some mines 

which he has inspected, and he confirmed that he has issued a 

citation for· such a condition (Tr. 118-119). He was of the 

opinion that rolling up curtains and then rolling them down 

is a bad practice because air would not be sweeping the face 

to dispel methane, and he is aware of no ventilation plans in 

his office that allow this practice CTr. 120). 

Mr. Adkins stated that additional roof support such as 

cribs would be required if the top is pulling through the 

bolts and plates, and if the roof is taking weight and is not 

supported and "it's popping the plates off," this would be a 

violation (Tr. 120-121 ). 

Mr. Adkins stated that after discussing Mr. Cox's complaints with him, he advised Mr. Cox to file a section 103(g) 

complaint so that MSHA could look into the matter or to put 

the complaint in writing and give it to the MSHA inspector 

who inspects the mine (Tr. 121). Since Mr. Cox told him that 

the mine was near Summersville, Mr. Adkins advised him to go 

to the MSHA office in Summersville to lodge his complaint, 

and that they would help him out CTr. 126). 

Mr. Adkins confirmed that exhibit C-6, is an MSHA publication entitled in part "A Guide to Miner's Rights and Responsibilities," and stated that while he was not familiar with 

it, he may have seen it or "looked at it one time" (Tr. 122). 

Mr. Adkins stated that there is no particular MSHA "form" to 

fill out for filing a section 103(g) complaint, but it needs 

to be in some written form, and he simply advised Mr. Cox to 

file it, and did not discuss the matter with anyone else at 

that time (Tr. 128). Mr. Adkins confirmed that Mr. Cox came 

to see him a second time after he was discharged, and advised 

him that he was filing a discrimination complaint and would 

probably subpoena him if he needed him (Tr. 129). Mr. Adkins 

stated that after this second visit, he spoke with MSHA 

special investigator Leighton Farley about the matter (Tr. 

129) 0 

Mr. Adkins explained the procedure for taking personal 

dust samples, and he stated that once he puts a sampler on a 

459 
miner, he may or may not follow him around and observe him 

during the shift, but in any case, he would remain at the 

mine. The sampler is required to be checked during the first 

2 hours and last hour of the sampling period. Although not 

required to do so, Mr. Adkins checks the sampler at least two 

or three additional times during the day (Tr. 130-132). 

Mr. Adkins stated that shooting more than one place at a 

time may or may not be a violation, and that this would depend 

on the approved mine plan. With regards to any ATRS roof control requirement, he stated that MSHA does not require such a 

system, but if it is required by a state plan, the mine operator must keep them in a safe operational condition, but that 

this too would depend on a particular approved roof-co~trol 

plan (Tr. 132-133). He also stated that MSHA only requires 

that a section foreman "run his place every two hours," and 

that a foreman cannot be with his crew every minute they are 

underground. If a shift is over at 5:00, a foreman can leave 

at 3:30 as long as he's inspected the section within the last 

2 hours CTr. 134). 

On cross-examination, Mr. Adkins confirmed that he has 

known Mr. Cox since he was a child, and that he lives 3 miles 

from him. He does not socialize with Mr. Cox, and Mr. Adkins 

confirmed that everyone in the community knows that he is a 

Federal mine inspector. Mr. Adkins stated that he first 

learned about Mr. Cox's complaints when he spoke with him 

over the CB radio, and he told Mr. Cox to come to his home to 

speak to him about the matter. Mr. Adkins could not state 

precisely when this occurred, and that a day or so later 

Mr. Cox came to see him. Mr. Adkins confirmed that he took 

notes during his discussion with Mr. Cox, and Mr. Adkins did 

not believe that Mr. Cox was complaining to him, but simply 

wanted to know what he could do about it because he knew he 

was an inspector (Tr. 137). Mr. Adkins confirmed that he 

told Mr. Cox that transporting explosives on equipment was a 

violation. With regard to Mr. Cox's statements that the 

"ventilation wasn't being kept up, 11 that "it was poor," and 

that "curtains weren't kept up," Mr. Adkins stated that he 

would have to inspect the mine before he could determine any 

violations of the ventilation plan, and that he explained 

this to Mr. Cox (Tr. 139-140). 

With regard to Mr. Cox's complaint about "bad top, 11 

Mr. Adkins reiterated that "bad top" is not a violation, 

unless it is ignored and not taken care of, and that Mr. Cox 

was of the opinion that the roof needed more support (Tr. 

141). ·Mr. Adkins confirmed that he cannot determine whether 

460 
a roof is adequately supported without conducting an inspection (Tr. 141). The same is true for ventilation curtains. 

He would have to look at the ventilation plan and inspect the 

mine before he could conclude that there were any violations 

(Tr. 142). 

Mr. Adkins stated that after discussing the need for 

Mr. Cox to file a section 103Cg) complaint, he was confident 

tha~ Mr. cox understood him. Mr. Adkins confirmed that a 

complaint co~ld have been filed with any MSHA office (Tr. 

144). Mr. Adkins confirmed that he did not advise Mr. Cox 

that he could file such a complaint with him, but did advise 

him to stop by MSHA's Summersville office because it was convenient to him (Tr. 144). Mr. Adkins also stated that Mr. Cox 

advised him that he spoke to the inspectors at the mine, "but 

couldn't get anything out of those guys," and that he advised 

Mr. Cox about the "hot,line" and that the Summersville office 

could give him the telphone number (Tr. 146). 

Mr. Adkins stated that after Mr. Cox's first visit, he 

did not call him again about any safety complaints, and that 

during the period between the two visits, Mr. Adkins did not 

discuss Mr. Cox's visit with anyone (Tr. 148). However, he 

did mention it to Inspector Leighton in his office after 

Mr. Cox's discharge, and he did so because Mr. Cox advised 

him that he may subpoena him CTr. 149). 

Mr. Adkins confirmed that in the event Mr. Cox had filed 

a section 103(g} complaint with him, he would have had to 

turn it in. He reiterated that he simply told Mr. Cox of the 

need to file such a complaint, and advised him that it had to 

be in writing. He did not, however, quote the section 103(g) 

statutory provision to Mr. Cox (Tr. 151). 

NOTE: The complainant subpoenaed the attendance of 

Mr. Rodney Blankenship as an adverse witness for testimony in 

this case. In view of the testimony of the witnesses regarding certain alleged illegal mine practices implicating 

Mr. Blankenship, respondent's counsel advised him to seek 

additional counsel to advise him of his rights against selfincrimination and possible criminal liability for those 

alleged practices. Mr. Blankenship retained counsel to represent him in this matter, and counsel entered her appearance 

on his behalf (Tr. 161-162; October 29, 1986). In response to 

certain questions, and on advice of counsel, Mr. Blankenship 

declined to answer, and pleaded his Fifth Amendment right not 

to incriminate himself. His objections are noted below. 

461 
Rodney Blankenship, confirmed that he is employed by the 

respondent as a section foreman and general mine foreman. He 

is a one-sixth owner of the mine and serves as respondent's 

vice-president. Mr. Blankenship confirmed that he was 

Mr. Cox's supervisor on the first shift, which worked from 

7:00 a.m. to 3:00 p .. m .. , and that he is responsible for the 

logging of some MSHA and state mine reports, including 

onshift and fire boss reports, but denied that he was respon-

,9ible for any dust sample reports (Tr. 165). 

In response to questions as to whether anyone, including 

Mr. Cox, had ever made any complaints to him about any safety 

violations in the mine during 1984 and up to mid-May, 1985, 

Mr. Blankenship declined to answer (Tr. 165-166). He also 

declined to answer whether anyone ever reported or threatened 

to report, any mine safety violations to MSHA or state mining 

officials CT~. 166-169). Mr. Blankenship was then proffered 

as a witness for the respondent. 

Mr. Blankenship confirmed that Mr. Carson Jackson is the 

respondent's president, and in that capacity, he makes all of 

the decisions with respect to the hiring and firing of mine 

personnel, hours of work, and work and shift assignments. 

Mr. Blankenship stated that at one time in 1984, Mr. Cox 

worked as a roof bolter on his section, but was transferred 

to another job at Mr. Jackson's direction. Mr. Blankenship 

confirmed that at the time this decision was made, two jobs 

were open, and he gave Mr. cox a choice as to which job he 

would prefer. Mr. Cox informed him that he would prefer a 

scoop operator's job because it was an easier job, and 

Mr. Blankenship assigned him to that job, with Mr. Jackson's 

concurrence (Tr. 171-172). Mr. Blankenship explained that 

Mr. Coxvs transfer to the scoop operator's job was the result 

of a suggestion by an MSHA inspector (Tr. 172). 

Mro Blankenship stated that during the time Mr. Cox 

worked for him, Mr. Cox was "vocal and loud," made threats, 

and Mr. Blankenship considered him to be "a bully." Mr. Cox 

complained about working on Saturdays, as did other miners. 

Mr. Blankenship stated that Mr. Cox "threatened to whip me in 

front of the other men," and that this occurred at the time 

he was transferred from roof bolter to scoop operator (Tr. 

175). Mr. Cox was upset and unhappy over the transfer because 

he believed his work was being questioned, and Mr. Blankenship 

stated that the transfer had nothing to do with his work (Tr. 

17 5) • 

Mro Blankenship stated that on the Monday prior to 

Saturday, May 11, 1985, all mine personnel were notified that 

462 
they were required to work that Saturday. Mr. Jackson made 

the decision, and Mr. Blankenship informed the crew of this 

decision. Mr,. Cox informed him that he was the coach of his 

son's little league baseball team and that he could no longer 

work on Saturdays because he had to be with the team. 

Mr. Blankenship denied that he gave Mr. Cox permission to be 

off that Saturday, and stated that he did not have the authority to give him the day off. Mr. Blankenship could not recall 

specifically giving Mr. Cox any instructions as to what to do 

about his desire to be off on Saturdays, but confirmed that 

his general advice in such a situation was to instruct a crew 

member to "take it up with Carson Jackson," and that his decision would prevail (Tr. 176-177). 

With regard to any permission given to Mr. Poole that he 

did not have to work on Saturday, Mr. Blankenship stated that 

in view of the fact that Mr. Poole had missed so much work 

time, he warned him countless times that he would be discharged for not working. Mr. Poole advised him that he was not 

going to work on Saturday, May 11, 1985, and Mr. Blankenship 

stated to Mr. Poole that "I didn't want to hear it," that he 

did not make those decisons, and that he expected him to work 

that day. Mr. Blankenship stated that he was not aware that 

Mr. Poole was not going to work until he failed to show up for 

work that day (Tr. 177). Mr. Blankenship confirmed that he did 

not give Mr. Poole· permission to be off that day (Tr. 178). 

Had he given: him permission to be off, Mr. Blankenship would 

have so informed Mr. Jackson, and Mr. Poole would not have been 

fired (Tr. 179). 

Mr. Blankenship stated that apart from his absenteeism 

record, Mr. Poole was a good worker, and that he liked him, 

and still does. His only complaint about Mr. Poole was his 

irregular work habits, and he warned him many times about it. 

Mr. Blankenship stated that he and Mr. Jackson warned 

Mr. Poole that he would be discharged if he missed another 

day of work, and that Mr. Jackson prepared a written warning 

for Mr. Blankenship to give to Mr. Poole (Tr. 180). 

Mr. Blankenship stated that in addition to Mr. Poole and 

Mr. Cox, the only other person who did not work on Saturday, 

May 11, was Mr. Wayne Lee. Mr. Jackson gave Mr. Lee permission to be off, and Mr. Jackson's brother-in-law worked in 

his place (Tr. 180). Mr. Blankenship stated that he was not 

a party to the telephone conversation between Mr. Jackson and 

Mr. Cox on Saturday morning, May 11, 1985. He confirmed that 

Mr. Jackson consulted with him before placing the call, and 

informed him that he was going to fire Mr. Poola because of 

463 
his irregular work and Mr. Blankenship concurred in that decision. Mr. Blankenship confirmed that the sole reason for 

Mr. Poole's discharge was "because he wouldn't work" and had 

missed so many days and was late for work. He confirmed that 

Mr. Poole was having marital problems, and that he took this 

into consideration (Tr. 182). 

Mr. Blankenship stated that when Mr. Cox failed to come 

to work on Saturday, May 11, 1985, M~. Jackson filled in for 

him and ran the scoop that day. Mr. Blankenship heard about 

the telephone call from Mr. Pleasants to Mr. Jackson, but had 

gone home and was not a party to that conversation (Tr. 183). 

He learned of Mr. Cox's discharge from Mr. Jackson later that 

day when Mr. Cox telephoned him at his home asking for a meeting with the six mine owners. Mr. Blankenship stated that he 

informed Mr. Cox that he did not know he had been fired, but 

would try to find out what happened, and Mr. Cox never called 

back <Tr. 184). 

Mr. Blankenship stated that after Mr. Cox called him, he 

spoke with Mr. Jackson later that Saturday evening, and 

Mr. Jackson informed him that Mr. Cox had called Mr. Pleasants 

and "made some threats as far as our company, and he'd discharged him" {Tr. 185). Mr. Blankenship confirmed that 

Mr. Jackson had previously advised his personnel that Brooks 

Run Coal Company is independent from the respondent's company 

and had nothing ·to do with its management. Mr. Jackson also 

told his personnel that if anyone contacted or complained to 

Brooks, Run about wages or other company matters, he would discharge them (Tr. 185). Mr. Blankenship stated that everyone, 

including Mr. Poole and Mr. Cox knew about Mr. Jackson's 

policy, and the fact that he, and not Brooks Run, made company 

policy for the respondent (Tr. 186). 

Mr. Blankenship stated that he was at the mine when 

Mr. Poole and Mr. Cox came to the mine on Monday, May 13, 

1985. They were in the lamphouse getting dressed, and he told 

Mr. Cox "to get his coveralls on and let's go to work and he 

said he was fired. And I just put my clothes on and he went 

out" (Tr. 186). Mr. Blankenship stated that he thought "maybe 

it might blow over," but that the decision of Mr. Jackson to 

discharge Mr. Cox apparently stood and that he was going to· 

enforce it (Tr. 187). Mr. Blankenship denied that he had any 

imput into the decision to fire Mr. Cox, and that the decision 

was solely that of Mr. Jackson. When asked the reason given 

by Jackson for firing Mr. Cox, Mr. Blankenship responded as 

follows (Tr. 187-188): 

464 
THE WITNESS: He told llfe that Pete Cox had --

was going to -- called Neil Pleasants, Brooks 

Run Coal Company, and was going to shut down 

their operations and our operations, and he 

fired him for trying to take over the mines. 

JUDGE KOUTRAS: How was he going to do that? 

Do you have any idea how Mr. Cox planned to 

shut the mine down? 

THE WITNESS: No, I don't. All I'm telling 

you is what Mr. Jackson to·ld me. 

Mr. Cox's counsel declined to ask Mr. Blankenship any 

further questions (Tr. 188). 

NOTE: The complainant subpoenaed the attendance of 

Mr. Carson Jackson as an adverse witness for testimony in this 

case. In view of tqe testimony of the witnesses regarding 

certain alleged illegal mine practices implicating Mr. Jackson, 

respondent's counsel advised him to seek additional counsel to 

advise him of his rights against self-incrimination and 

possible criminal liability for those alleged practices. 

Mr. Jackson retained counsel to represent him in this matter, 

and counsel entered her appearance on his behalf CTr. 188-189; 

October 29, l986). In response to certain questions, and on 

advice of counsel, Mr. Jackson declined to answer, and pleaded 

his Fifth ·Amendment right not to incriminate himself. His 

objections are noted below. 

·carson Jackson confirmed that he is part owner of the 

mine and serves as the general mine superintendent, as well 

as president of the company. He confirmed that he is ultimately responsible for reviewing and counter-signing most 

official mine reports and documents, including dust sample 

reports (Tre 189-199)0 

When asked about his knowledge concerning the alleged 

mine practices testified to by the prior witnesses, 

Mr. Jackson declined to answer (Tr. 201). Mr. Jackson denied 

any knowledge of miners other than Mr. Cox either making complaints to MSHA or threatening to do so (Tr. 202). With 

regard to Mr. Cox, he confirmed that he never heard Mr. Cox 

threaten to go to MSHA about anything in the mine while he 

was employed there (Tre 201). He confirmed that none of his 

employees ever complained to him about any mine safety violations during 1984 and up to mid-1985 (Tr. 203). Mr. Jackson 

stated that he is not in the mine at all times, and if any 

complaints were made he might not hear all of them CTr. 205). 

465 
Mr. Jackson stated that Mr. Cox has upset him at times 

when he would arrive late for work, and that "quite a few 

times" they have exchanged words, and even cursed each other 

(Tr. 205-206). Mr. Cox also upset him "a few times" when 

"he's tried to tell me how to run the mines, that people 

didn't have to work on Saturdays" (Tr. 207). 

Mr. Jackson identified exhibit C-7 as a copy of the ter-

'mination notice given to Mr~ Cox, and he confirmed that he 

changed the discharge date on the form from May 13, 1985 to 

May 11, 1985, and that he did so because "I either had to do 

that or get him to knock my brains out." He also confirmed 

that the reason for Mr. Cox's discharge as shown on the form 

is "service unsatisfactory" (Tr. 201-208). Mr. Jackson stated 

that he actually fired Mr. Cox on Monday, May 13, 1985, and 

that when he called him at his home on Saturday, May 11, 1985, 

he only fired his nephew Mr. Poole. Mr. Jackson further 

explained that he changed the date to Saturday because Mr. Cox 

demanded that he do so, and that the date made no difference 

to him (Jackson) (Tr. 208-211). When asked when he decided to 

fire Mr. Cox, Mr. Jackson responded as follows (Tr. 211-213): 

A. I decided to fire him when he called Neil 

Pleasants. I run the scoop the day that this 

fellow was off. I didn't get outside until 

about three o'clock. And after the threats 

and stuff that he made over the telephone, -I 

told --

Q. About the labor board and that sort of 

stuff? 

A. Stopping the mines going to throw a 

picket line up around the mines. 

Q. It was after the telephone call, then, to 

Neil Pleasants, that you decided to fire him? 

A. I decided to fire him right then. 

Q. Did Neil Pleasants communicate the content 

of that telephone call on Saturday, May 11, 

1985, to you, just before you decided to fire 

Cox? 

A. Yes. 

466 
Q. You say you're doing it after the 

telephone call. Pleasants, then, must have 

called you. Is that correct? 

A. I decided it during the telephone call. 

Q. I mean, as a result of the telephone call. 

You weren't on a conference call. Pleasants 

had to call you and tell you that Cox had 

called μim? 

A. That's right. 

Q. And made some threats about closing the 

mine down, going to the labor board and such 

as that? 

A. He was going to cause a lot of trouble. 

Q. Did he say something about the labor 

board? 

A. He was going to throw a picked line up 

around there. He said he was going to go to 

all the agencies. 

Q. In other words; the mine enforcement 

agencies, like MSHA? 

A. I don't know what he meant by that. But 

when he said a picket line, I knew what it 

was. 

Q. He said he was going to the agencies. Is 

that right? Is that what you just said? 

A. Yes, he was going to the agencies. 

On cross-examination, Mr. Jackson stated that when he 

was upset with Mr. Cox he may have warned him, but he never 

threatened, reprimanded, or punished him in any way so as to 

effect his job security at the mine. Mr. Jackson did, however; warn Mr. Cox about his future with the company because 

of his frequent tardiness and his complaints about how 

Mr. Jackson was running the mine (Tr. 214). Mr. Jackson 

stated that Mr. Cox threatened "to whip his ass" several 

times, and that this would upset him. Mr. Jackson stated 

that he received information that other members of management 

and other workers were similarly threatened by Mr. Cox, and 

467 
that he (Jackson) had no similar probl~ms with any of the 

other men (Tr. 215). 

Mr. Jackson confirmed that he did not protest the 

unemployment claims filed by Mr. Poole and Mr. Cox after their 

discharge, and Mr. Jackson confirmed that he told Mr. Cox that 

he was tired of Mr. Cox trying to run the mine (Tr. 216>. 

Mr. Jackson denied that Mr. Cox's discharge had anything to do 

with any safety complaints, and that ~he decision to fire 

Mr. cox was his alone, and neither Mr. Blankenship or any of 

the other mine owners had nothing to do with it CTr. 217). 

Mr. Jackson stated that at no time during his employment 

did Mr. Cox or any other miner ask to review the mine fire 

boss records, or any records required to be kept by 

Mr. Blankenship (Tr. 218). Mr. Jackson expressed doubt that 

Mr. Cox could have asked to see those records without his 

being aware of it (Tr. 219). 

In response to further questions, Mr. Jackson stated 

that while work was required to be done on Saturdays, he did 

not like Saturday work because he had to pay time and a half. 

However, Mr. Cox and Mr. Poole did not like to work on 

Saturdays, and Mr. Cox attempted to influence his crew not to 

work on Saturdays. He did this by letting it be known that 

he had gone to the "labor board" and there was nothing 

Mr. Jackson could do about working on Saturdays, and that the 

men could leave. Mr. Jackson stated that Mr. Cox said "you 

can lay off, you can be off, there's nothing he can about it" 

(Tr. 22·3). When asked whether Mr. Cox had ever made that 

statement to him, Mr. Jackson replied "He didn't tell me 

nothing. He would tell it someplace where he knew I would 

get hold of it" CTr. 223). 

Mr. Jackson stated that when he first hired Mr. Cox, he 

informed him about Saturday work, and that Mr. Cox advised 

him that "I'll work on Saturday, Sunday, 16 hours a day 

anytime you want." Mr. Cox also stated to him "anytime you 

don't like my work or anything, you just tell me, you won't 

have to discharge me, just tell me and you'll never see me no 

more" CTr. 223). When asked whether Mr. Cox ever refused to 

work on Saturday, Mr. Jackson replied "he didn't refuse, he 

always had something to do" (Tr. 224). When asked why he did 

not fire Mr. Cox when he threatened him, Mr. Jackson replied 

"He was a good worker. I tried every way in the world to get 

along with him. Mr. Cox is moody. He'll get better for a 

week or two, then he's hell for a while" (Tr. 224). 

468 
In view of the unavailability of Mr. Jackson's private 

counsel, the parties agreed that Mr. Jackson could be deposed 

posthearing, and Mr~ Jackson's posthearing deposition was 

taken and filed as part of the record in this case. 

Mr. Jackson testified as to his background and experience and 

confirmed that he is a certified mine foreman. He confirmed 

that Mr. Cox and Mr. Poole were the only two miners ever discharged, but that others had been laid off as a result of a 

reduction in force (Tr. 7). Mr. Jackson reiterated that when 

he first hir~d Mr. Cox he informed him that Saturday work may 

be required, and Mr. Cox agreed, that he would work if called 

upon to do so. Mr. Jackson also confirmed that Mr. Cox was 

desperate for a job when he hired him. Mr. Jackson stated 

that Mr. Cox's starting pay was $100 a shift, and time-and-one 

half for work over 8 hours. All miners were paid the same 

regardless of their job classification, and whatever he 

instructed them to do was their job (Tr. 10). 

Mr. Jackson st~ted that Mr. Cox was first hired as a 

bratticeman, and when a roof bolter quit, he assigned Mr. Cox 

to a roof bolter's job. Mr. Jackson later decided to take 

him off the roof bolter's job after a discussion with MSHA 

inspectors, and Mr. Cox was assigned to do brattice work. 

However, Mr. Blankenship asked him to assign Mr. Cox to a 

scoop because his back was bothering him and lifting bratti.ce 

blocks was hurting him. Mr. Jackson stated that he accomodated Mr. Cox and allowed him to work as a scoop operator 

(Tr. 11). 

Mr. Jackson stated that he considered Mr. Cox to be a 

good worker, but "if you tell him to do something he don't 

always do it the way you want him to" (Tr. 12). Mr. Jackson 

also stated that Mr. Cox has always had a problem in taking 

orders and that he resented authority (Tr. 12). After he was 

taken off the roof bolter, Mr. Cox resented doing what was 

asked of him, and didn't want to work overtime. Although 

Saturday work was considered a regular work day and 

Mr. Jackson was not required to pay overtime pay, he always 

paid the men at the overtime rate, but Mr. Cox resented working on Saturday even though very few Saturdays were scheduled 

as a work day (Tr. 13). Mr. Jackson stated that he hired 

Mr. Poole after Mr. Cox asked him to give him a job (Tr. 14). 

Mr. Jackson confirmed that he had problems with 

Mr. Poole's work attendance and that he warned him about it 

at least three or four times before he finally fired him (Tr. 

15). Mr. Jackson identified a copy of the mine's attendance 

records beginning in February, 1984, through.June, 1984, and 

May, 1985, and he confirmed that Mr. Cox and Mr. Poole did 

469 
not work Saturday, May 11, 1985, and were terminated the 

following week (Tr. 19, deposition exhibit No. 1). 

Mr. Jackson confirmed that he excused Mr. Poole from work 

when he had a death in his wife's family, and advanced him 

money to purchase an airline ticket for his wife (Tr. 20). 

Mr. Jackson confirmed that Mr. Cox was late for work 

several times, and his policy is to allow employees who are 

1ate to work rather than go home. He warned Mr. Cox about 

being late. _Mr. Jackson stated that he had "kind of a feeling" that Mr. Cox was the cause of Mr. Pool's absence on 

May 11, but that he did not know that they were not going to 

work that day. Mr. Jackson "had some feedback" that none of 

the men would work that day, and that Mr. Blankenship told 

him that Mr. Cox was telling the men that since he and 

Mr. Poole were not going to work, the rest of the men didn't 

either (Tr. 23>~ 

Mr. Jackson stated that he did not give Mr. Cox permission not to work on Saturday, May 11, and that he did not ask 

him for such permission. Except for one miner who had permission to be off, and who was repl_aced by someone else, all 

employees except Mr. Cox and Mr. Poole reported for work. He 

called Mr. Cox because he had to arrange for replacements if 

he were not corning to work (Tr. 23-24). Mr. Jackson explained 

further as follows (Tr. 25-26): 

Q. So it's your testimony then that Cox and 

Poole did not ask you for permission to be off 

that Saturday but Mr. Blankenship told you 

that they didn't want to work, probably 

wouldn't come out to work, and they were 

trying to get the other men not to come out to 

work? 

A. Yes. They told me that Mr. Cox said there 

was no more Saturday work as far as he was 

concerned. So that encouraged me to be just a 

little bit strict on this. I just thought 

well, it looked like this was deliberate and 

I'll just let Mr. Poole go. 

Q. If he didn't show up? 

A. Yes. 

Q. And then you were going to deal with 

Mr. Cox in some other manner? 

470 
A. Well, I was going to give him a warning. 

It takes you a year, unless somebody misses a 

whole lot of work, before you can go through 

the steps discharging somebody for irregular 

work. 

Q. You had documented Mr. Poole missing work. 

Is that correct? 

A. Yes_~ 

Q. And that's shown in Exhibit 1 here? 

A. Yes. 

Q. The point is you had decided that if 

Mr. Poole didn't show up you were going to 

discharge him for missing another day? 

A. Yes. 

Q. After he had been warned? 

A. Yes. I told him so. 

Q. But you did not plan on discharging 

Mr. Cox if he missed work? 

A. No. 

Q. But you had given him warning? 

A. I would have. 

Q. Had you not fired him? 

A. Yes. 

Mr. Jackson explained the operation of the Holmes Safety 

Counsel, and confirmed that it is sponsored by the respondent 

and that its purpose is to afford an opportunity to the 

miners to discuss ~1arious mine safety matters. Meetings are 

held once a week in the evenings, and announcements are 

posted and miners are encouraged to attend. The meetings are 

not held on company time, and the miners are not paid to 

attend. Mr. Cox has never attended a meeting (Tr. 28-29). 

Mr. Jackson confirmed that he reprimanded Mr. Nash for 

going to the Brooks Run Coal Company with another miner to 

471 
ask about time off or pay for his birthday. Mr. Jackson 

explained that Brooks Run holds the mineral rights and that 

the respondent simply mines the coal and sells it to Brooks 

Run. Mr. Jackson stated that he met with his miners and made 

it clear to them that they were not to go to Brooks Run, and 

told them that Brooks Run has no\hing to do with the management of his mine. Mr. Jackson was certain that Mr. Cox was 

at this meeting since he was on the payroll. Mr. Jackson is 

the only mine owner who ordinarily deals with Brooks Run 

through Mr. ?leasants (Tr. 31). 

Mr. Jackson stated that when he spoke with Mr~ Cox over 

the telephone Saturday morning, May 11, 1985, he did not fire 

him, did not intend to fire him, nor had he made any decision 

to fire him. Up to that point in time Mr. Cox had never said 

anything to him about speaking with MSHA Inspectors Adkins or 

Tyler, or any other inspectors, and Mr. Cox said nothing to 

him about going to any inspectors (Tr. 32). 

Mr. Jackson confirmed that he called Mr. Pleasants from 

the mine office later in the day after speaking with Mr. Cox. 

Up to that point, he had not discussed Mr. Cox's and 

Mr. Poole's failure to show up for work with any of his mine 

co-owners (Tr~ 33). Mr. Jackson explained his telephone conversation with Mr. Pleasants as follows (Tr. 33-38): 

A. Well, we called him and he said what's 

going on up there. And I said nothing. And 

he said how many people did you fire. I said 

I fired one. He said well, there was a fellow 

called me and told me that Brooks Run had 

trouble and that -- he was more or less fearing about a work stoppage. And I said well, 

who was that. He said he didn't give me his 

name. I said well, what did he say. And he 

started repeating what he'd said. 

Q. Well, what did he tell you had been said? 

A. He said something about his son had little 

league ballgame that day and he had to be home 

with him to manage that little league team. I 

said well, I've fired two. I said that was 

Mr. Cox. 

Q. You knew it was Mr. Cox that called 

Mr. Pleasants? 

472 
A. We had already went over that morning when 

I was talking. 

Q. About his son playing in a baseball game? 

A. Yes. 

Q. So it was the only employee it possibly 

could have been? 

A. Yes. 

Q. And that's when you told Mr. Pleasants 

well, I fired two? 

A. Yes. Then, you know, he went on to tell 

me -- he said do you reckon the men will 

strike on you or go home, quit work. I said I 

don't think so. He said well, do you reckon 

he'll cause you any trouble. I said I'm sure 

he will. 

Q. What did you mean by that? 

A. Well, any way that he could -- I told him 

I said the Labor Board, according to him, 

he's told me at least twenty times the Labor 

Board wili eat me up. 

MR. STONE: Who is he? 

THE WITNESS: Mr. Cox. 

BY MR. GARRETT: 

Q. Go ahead. 

A. He told me that morning that the Labor 

Board would eat me up. 

Q. was he ever more specific with his threat 

to you than the Labor Board would eat you up? 

A. No. He just more or less said well, you 

can't do that •. That morning he told me, that 

Kit Jackson missed more work than Mike did. 

Q •. And that you couldn't fire a man for 

missing work on Saturdays? 

473 
A. Yes. 

Q. Did he tell you that? 

A. Yes, he did. 

Q. That you couldn't make men work on 

Saturdays if they didn't want to? 

A. That's right. 

Q. And in that context he said if you try it 

the Labor Board will eat you up? 

A. Yes, the Labor Board would eat me up. 

Q. Do you know who he was referring to when 

he used the word Labor Board? 

A. No, I didn't. In fact I didn't even know 

who the Labor Board was or anything. 

Q. Did you even care who the Labor Board was? 

A. No, I couldn 1.t care less. I just knew 

someone was going to eat me up. 

Q. Did you take his threats then seriously? 

A. I did't when I talked to him that morning. 

Now he may -- I knew what he said to Neil. 

MR. STONE: You're talking about the morning 

of May 11th? 

THE WITNESS: That's right. 

BY MR. GARRETT: 

Q. Did Mr. Pleasants also tell you he had 

made threats of going to federal agencies or 

going to agencies or something? 

A. Yes. 

Q. Did he tell you that after you'd decided 

already to fire him? 

474 
A. Yes. In my-mind I had fired him. I told 

him I'd fired him before --

Q. Did it make any difference if he made any 

threats at all about doing anything to you? 

A. No, it didn't make any difference. 

Q. Did that have any part to play in whether 

you mad~ a decision to fire him or not to fire 

him? 

A. No. It had no -- didn't have nothing to 

do with the firing. 

Q. Did you care if he was going to go to MSHA 

about anything that went on in that mine? 

A. He told me that morning he would -- that 

he would have every federal and every state -- everybody up there at that mine. I said hell, 

we've got them now1 you just might as well 

hire you some. I said I think we've got them 

all in the state up here anyway. 

Q. So did that matter making that threat to 

you? 

A. No, sir. 

Q. It didn't have any impact at all about you 

requiring the men to work on Saturday? 

A. No. 

Q. Did Mr. Pleasants ask you then if he was 

worried about putting out a work stoppage or 

pickets or trying to pull the men out? 

A. Yes. That was Mr. Pleasants' main concern 

and he threatened with the union throwing up 

the picket line. His brother-in-law was 

president of some local down there. But 

there's got to be a breaking point somewhere, 

the way I felt. And I felt like no matter 

what he does to me or how he does it or what 

else he's got to go. 

475 
Q. so you were not -- you did not decide to 

fire him as a retaliation or punishment for 

threatening to go to the Mine Safety and 

Health Administration? 

A. No, that had nothing to do with it, 

nothing at all. 

Q. In fact if you were afraid of 1him going to 

MSHA wh~t would have been your course to 

follow? Would it have been not to fire him? 

A. If I was afraid of it I guess I would be 

afraid to fire him. 

Mr. Jackson stated that he met with Mr. Cox and 

Mr. Poole at the mine on Monday, May 13, 1985, and told them 

that he was discharging them. Both of the termination 

notices stated "unsatisfactory service" as the reason for the 

discharge, and Mr. Jackson explained to Mr. Cox that he was 

being fired for "trying to take over management of the mine," 

and that Mr. Poole was told he was being fired for "irregular 

work." Mr. Jackson explained further that Mr. Cox was "trying to encourage the people to miss work telling people there 

wasn't nothing I could do about it. There's several different 

things, just like him threatening to put up a picket line" 

(Tr. 39). Mr. Jackson also stated that Mr. Cox's calling 

Mr. Pleasants was "the last straw" (Tr. 39). He further 

explained as follows (Tr. 40-41): 

Q. When you say management of the mine, that 

had nothing to do with making complaints about 

safety? 

A. No. That's every man's right. He can 

withdraw himself from the mines. They've got 

a hotline they can call and get them down 

there. They don't have to turn in their name 

or anything else if they want a federal mine 

inspector in. 

Q. Well, so it's every man's right to expect 

the mine to operate within the law. 

A. Yes. 

Q. Do you acknowledge that? 

A. Yes. 

476 
Q. And that had nothing to do with your 

decision to fire Mr. Cox? 

A. No. 

Mr. Jackson confirmed that Mr. Cox never asked to review 

the fire boss books, dust sampling books, or other records 

kep~ in the mine office (Tr. 41). He also confirmed that he 

holds safety meetings and annual training sessions for miners 

and that he has participated in the training. Mr. Jackson 

stated that miners are advised of their right to talk to 

Federal inspectors and he had no doubt that Mr. Cox knew his 

rights at the time he was discharged (Tr. 42). 

On cross-examination, Mr. Jackson confirmed that all of 

his coal orders are so+d to the Brooks Run Mining company 

(Tr. 44). He confirmed that he advised the men about not 

going to Brooks Run with their problems either in 1980 or 

1981, "when we first started the mine up," but he could not 

recall the specific date (Tr. 47). Since the incident concerning Mr. Nash, no one else ever went to Brooks Run or to 

Mr. Pleasants about any complaints (Tr. 50). 

- The parties stipulated to the testimony of MSHA Inspector 

John G. Tyler, and they agreed that if called, Mr. Tyler's 

testimony would be as follows: 

1. John Tyler is a surface coal mine 

inspector·with the Federal Coal Mine Health 

and Safety Administraton. He has· no underground experience. He has worked out of the 

Summersville, west Virginia field off ice since 

1982. He is not familiar with Pammlid Coal 

Company. 

2. Mr. Tyler became acquainted with 

Mr. Cox when Mr. Cox answered an advertisement 

to buy Subaru car parts from Mr. Tyler. 

Mr. Cox came to Mr. Tyler's home which is 

about six miles from Mr. Cox' home, inspected 

the parts, and purchased them. During the 

course of conversation, they exchanged information concerning what each did for a living. 

This occurred in Summer, 1984. 

3. Approximately three months later, 

Mr. Cox came to· Mr. Tyler's home and related 

information concerning alleged conditions in 

477 
his workplace. Mr. Tyler could not recall the 

exact nature of the complaints, but is relatively certain that Mr. Cox related information about hauling caps and powder on pieces 

of equipment. He is not certain about any 

other information related by Mr. Cox. 

Mr. Tyler did not offer comment with respect 

to the validity of any information offered by 

Mr. Cox. 

4. During the course of the conversation 

with Mr. Cox, Mr. Tyler explained to Mr. Cox 

that he is a 'surface mine inspector. Mr. Tyler 

told Mr. Cox that the Summersville field office 

did not have jurisdiction over the geographical 

area in which the mine where Mr. Cox worked was 

located. Mr. Tyler explained to Mr. Cox that 

the appropriate field office was in Clarksburg, 

West Virginia, or Bridgeport, West Virginia and 

that the district office for the area is in 

Morgantown, west Virginia. Mr. Tyler subsequently verified with his then supervisor, 

Clyde Perry, that he had given Mr. Cox correct 

and appropriate information and advice. 

Mr. Perry agreed with Mr. Tyler. Mr. Tyler did 

not contact anyone else with respect to his 

conversation with Mr. Cox, including anyone 

with Pammlid Coal Company or any other 

inspector. Mr. Tyler did not even recall the 

name of the company until he was contacted by 

Mr. Cox and told sometime during the week of 

October 13, 1986, that he would be subpoenaed. 

5. Mr. Tyler never saw Mr. Cox again or 

heard from him after the initial conversation 

took place until shortly after Mr. Cox was 

discharged, when Mr. Cox again came to 

Mr. Tyler's home. Mr. Tyler again recommended 

that Mr. Cox go to the proper district office 

if he had any complaint. Mr. Tyler even 

suggested that Mr. Cox go to the Mt. Hope MSHA 

district office since it was near Mr. Cox's 

home in Oak Hill, West Virginia. 

6. Mr. Tyler took no notes during any 

conversation with Mr. Cox and cannot remember 

specific dates on which they occurred, nor did 

he off er any opinion or have an opinion 

478 
whether any information Mr. Cox related had 

merit. 

Complainant Alfred H. Cox, testified as to his background 

and experience, and he explained that by "Labor Board," he had 

in mind the Mine Safety and Health Administration CTr. 5). 

Mr. Cox identified exhibit C-4, as a personal notebook he kept 

on certain mine conditions, and he testified as to some of the 

entries he made in the book, as well as to certain entries 

made on the mine fire boss records, exhibit C-8 (Tr. 5-26). 

He also testlf ied about the battery explosion incident which 

occurred on October 5, 1984 CTr. 26-37). 

Mr. Cox stated that he made few complaints to Mr. Jackson 

because "he flew off the handle", but that he did complain 

many times to his section foreman Rodney Blankenship. Mr. Cox 

stated that he complained about the roof in the number five 

entry taking weight and pulling through the plates, and about 

powder and caps kept on the drill. He also complained to 

Mr. Jackson's son, Kit, and he believed that he was part of 

mine management (Tr. 38). On one ocasion shortly before his 

discharge, Mr. Cox said that he advised Mr. Blankenship that 

he intended to talk to an MSHA inspector the next time one was 

in the mine, and that Mr. Blankenship told him that while he 

could not be fired for doing this, "we could always have a 

layoff and never call you back" (Tr. 39). Mr. Cox stated that 

he obtained an MSHA pamphlet discussing miners' rights on 

May 13, 1985, from MSHA's Clarksburg Office (Tr. 41). Mr. Cox 

conceded that he was aware of his right to complain to any 

MSHA inspector before he obtained the pamphlet (Tr. 44-45). 

In further reference to any safety complaints to mine 

management, Mr. Cox stated as follows (Tr. 85-87): 

JUDGE KOUTRAS: All the men sit around talking 

and threatening to blow the whistle on this 

mine operator and call the feds in, right? 

THE WITNESS: They didn't all threaten to. 

They was unsatisfied with the way things was 

running, but they didn't have enough guts to 

stand up and say anything to Carson Jackson 

about it. 

* * * * * * * 

JUDGE KOUTRAS: What are you getting from all 

that? What are they saying? What are they 

trying to tell me by all that? 

479 
THE WITNESS: The conversations I had with 

them and still have with a lot of my 

co-workers is that they need their jobs. 

Several of them said, well, more or less, to 

get by, to have a job. They didn't directly 

come out and say that --

JUDGE KOUTRAS: Well, isn't it a fact that 

nobody ~ver directly complained 1 to Mr. Jackson 

about safety? 

THE WITNESS: I have on very rare occasions. 

JUDGE KOUTRAS: Directly to Mr. Jackson. 

THE WITNESS: Directly to Mr. Jackson. 

Mr. Blankenship, like I say, is the one that 

was my section foreman. He was there most of 

the time. 

JUDGE KOUTRAS: And you would complain to him? 

THE WITNESS: And I would complain to him. 

Mr. Cox confirmed that he spoke with MSHA Inspectors 

Tyler and Adkins before his termination, and he confirmed 

that Mr. Adkins advised him to file a section 103(g) complaint 

with MSHA's Summersville Office. Mr. Cox stated that he did 

not show his notebook to Mr. Tyler or Mr. Adkins because he 

intended to tell them about the violations in the mine (Tr. 

51) • 

Mr. Cox stated that Mr. Jackson threatened to fire him 

in June, 1984, because he would not work on a Saturday when 

he had to bale hay. Although he was not fired, he was taken 

off the roof bolter and assigned to run the scoop. Mr. Cox 

stated that he then informed Mr. Blankenship that "the mines 

is going to be run in compliance with the law," and that 

Mr. Blankenship replied "you know we can't run coal like 

that" and "don't do something to make me have to fire you" 

(Tr. 59) . Mr. 'Cox th er: had some words with Mr. Jackson about 

being taken off the roof bolter, and while he did not specifically tell Mr. Jackson that he was going to turn him in for 

the way he was operating the mine, Mr. Cox stated that this 

was his intention (Tr. 59). Mr. Jackson then explained that 

he took Mr. Cox off the roof bolter after discussing the mine 

accident rate with an MSHA inspector, and Mr. cox confirmed 

that he had four roof bolting related accidents (Tr. 61). 

480 
Although Mr. Jackson intended to "issue him a slip" for 

unsatisfactory service, he changed his mind and told him to 

go back to work CTr. 64). 

Mr. Cox confirmed that after he was taken off the bolter, 

he was assigned to build stoppings, and was then assigned to 

loading coal with the scoop. He confirmed that the ventilation curtains were rolled up at that time and that he did not 

roll them down because he wanted to keep his job CTr. 68). 

Mr.' Cox believed that he was taken off the roof bolter because 

he refused to work on Saturday, and that Mr. Jackson did this 

to "spite" him. He conceded that it was possible that 

Mr. Jackson took him off that job because of his discussions 

with the MSHA inspector over his accidents (Tr. 71). 

Mr. Cox stated that Mr. Jackson and Mr. Blankenship have 

never told him that his services were unsatisfactory, and he 

confirmed that Mr. Jackson admonished him for riding the belt 

out of the mine. He could not recall Mr. Jackson warning him 

about working under·unsupported roof {Tr. 73-74). 

Mr. Cox stated that he agreed with all of the testimony 

by his fellow miners with regard to the violations which they 

testified to during the course of the hearing <Tr. 77). He 

explained the circumstances concerning his refusal to work on 

Saturday, May 11, 1985, and confirmed that he did not work 

because he had to coach his son's little league baseball team 

(Tr. 81-84) • 

Mr. Cox confirmed that he received a telephone call at 

his home from ~r. Jackson on Saturday morning, May 11, 1985, 

and he explained the conversation as follows CTr. 95-96): 

On May 11th at approximately three 

minutes after seven, I received a phone call 

from Mr. Carson Jackson. He asked me why that 

I wasn't working today. I told him, I said, 

well, you know, I've talked to Rodney about it 

already. I said I've got a Little League game 

today1 I'm the coach. And he said, where's 

Mike. I said he's in bed asleep. He said, 

well you tell him to come in and pick up his 

time. I'm tired of him laying off. And I 

said, well, Carson, you know that ain't right. 

I said Kit, your own son has missed more work 

than he has. And he said Kit is part owner of 

the mine. He can do what the hell he wants to. 

And I said, yes, anything that the comp~ny 

wants to do is just fine, if it's for tneir 

481 
own personal -- whatever. I said, but if it's 

to help the men any, if it's something that 

the men need, then to heck with it. And he 

said, well that's the way it is, and if you 

don't like it then you can come and pick up 

your time, too. And I said, well, if that's 

the way you feel, or I'm sorry that's the way 

you feel or something to that effect. And he 

hung up the telephone. 

Mr. Cox' stated that after his conversation with 

Mr. Jackson, it was not clear to him whether he had been 

fired, and that he first learned that he was fired when he 

was handed his termination slip by Mr. Jackson on Monday, 

May 13, 1985 (Tr. 97). Mr. Cox stated that Mr. Poole asked 

him to call Mr. Pleasants after his Saturday morning conversation with Mr. Jackson, and that he informed Mr. Pleasants 

that he had trouble at one of his mines. Mr. Cox stated that 

he asked Mr. Pleasants to speak to Mr. Jackson to see whether 

Mr. Poole could retain· his job. Mr. Cox stated that he also 

told Mr. Pleasants that if something wasn't done "we was 

going to the Mine Safety and Health Administration, to the 

Department of Labor." Mr. Cox stated that he informed 

Mr. Pleasants that he was planning to go to MSHA anyway 

"about the way the mines was run. He knew it was run out of 

compliance with the law" (Tr. 99). Mr. Cox denied that he 

mentioned any picket line to Mr. Pleasants (Tr. 100). 

Mr. Cox stated that it was clear to him that Mr. Jackson 

fired Mr. Poole on Saturday, May 11, 1985, and when asked to 

explain why he asked Mr. Jackson to change the date of the 

discharges from May 13 to May 11, Mr. cox stated that "It's 

immaterial as far as I'm concerned. I'm fired" (Tr. 103). 

Mr. Cox stated that he went to the mine on Monday, May 13, 

with the intention of going to work, and that Mr. Poole simply 

rode with him and would have dropped him off and returned to 

pick him up after work. However, Mr. Jackson asked to see 

both of them, and handed them their termination notices. 

Mr. Cox stated that when he asked Mr. Jackson to explain 

"unsatisfactory service," Mr. Jackson replied "you're trying 

to run the God damn mines" (Tr. 107). 

On cross-examination, Mr. Cox confirmed that he understood that Mr. Jackson was the person who hired and fired 

employees, and that when Mr. Jackson hired him he advised him 

that there would be times when overtime Saturday work would 

be required {Tr. 119-121). Mr. Cox confirmed that Mr. Jackson 

allowed him to trade shifts with another employee so he could 

482 
keep a doctor's appointment, and that he "respected him for 

it" (Tr. 122). 

Mr. Cox confirmed that between January and May, 1985, 

Mr. Poole was having an attendance problem at the mine, and 

that because of certain marital problems, Mr. Poole moved in 

with him (Tr. 123). Mr. Cox stated that early in the week of 

May 11, 1985, he was told that he would have to work on 

Saturday, May 11, and while he told Mr. Blankenship that he 

couldn't wor~ that day, Mr. Cox conceded that it was his 

intent not to work. Mr. Cox confirmed that he did not work 

on other Saturdays, and that Mr. Jackson did not give him 

permission to be off on May 11 (Tr. 124-125). Mr. Cox stated 

that he did not ask Mr. Jackson about being off because he 

believed that Mr. Blankenship led him to believe that he 

could be off (Tr. 127). However, Mr. Cox later stated that 

when he informed Mr. Blankenship on Friday, May 10, that he 

was not going to work on Saturday, Mr. Blankenship replied 

"I've done talked to you about it. I don't want to hear anything about it" (Tr. 131). When asked whether he had advised 

any other employees that they did not have to work on that 

Saturday, Mr. Cox replied as follows (Tr. 128-129): 

Q. During the course of that week, Mr. Cox, 

did you tell other men that you weren't going 

to work on Saturday -- other men on your section? I'm not talking about management 

employees. 

A. Yes, I did tell them that I wasn't going 

to be working Saturday. After I'd talked to 

Rodney. 

Q. Did you tell any other employees that they 

didn't have to work on Saturday either? 

A. Well, there was a bunch of employees complained about having to work on Saturday and 

stuff, and I did tell them that you know, if 

you didn't want to work, don't come in, you 

know. As simple as that. You want to work or 

either you don't. If you had a reason for not 

coming in --

Q. Did you tell them that there wasn't anything the company could do to them about not 

working on Saturday because of the labor board? 

483 
A. No, ma'am, I did not. 

* * * * * * * 

JUDGE KOUTRAS: Why would you tell other 

people that they didn't have to come to work 

on Saturday? Why was that your concern? 

I 

THE WITNESS: It wasn't my -- they complain on 

the section, they've got to work Saturday, 

they've' got other things they want to do, and 

I just simply said, well, if you've got other 

things that you want to do, just don't come in 

to work. You know. 

Mr. Cox confirmed that he disagreed with Mr. Jackson's 

decision to fire Mr. Poole, and told him so. Mr. Cox also 

confirmed that he got the impression from his telephone conversation with Mr. Jackson that he (Jackson) was fed up with 

Mr. Poole, but did not believe he was fed up over Mr. Poole's 

absences. Mr. Cox was of the opinion that Mr. Jackson found 

an opportunity to get rid of Mr. Poole because of his complaints over the conditions in the mine (Tr. 136-139). 

Mr. Cox confirmed that the purpose of his call to 

Mr. Pleasants on May 11, 1985, was to attempt to get 

Mr. Pleasants to influence Mr. Jackson to rehire Mr. Poole. 

Mr. Cox stated that he did not call Mr. Jackson because he 

(Jackson) was "hot headed" and Mr. Cox believed that he would 

definitely be fired if he called him (Tr. 147-148). 

Mr. Cox confirmed that when he called Mr. Pleasants on 

May 11, he told him that "there would be trouble in one of his 

mines," and that there would be trouble at Brooks Run Mine if 

Mr. Poole were discharged (Tr. 149-150). Mr. Cox stated that 

he did not identify himself to Mr. Pleasants when he placed 

the call because "it was still up in the air whether I had a 

job or not," and he was afraid that his job would be in jeopardy for making-the call (Tr. 158-159). Mr. Cox also stated 

that another reason for not identifying himself was that "if 

something wasn't straightened out, I was going to go to MSHA," 

and that he told Mr. Pleasants that he w~s thinking about 

going to MSHA before the telephone conversation. Mr. Cox 

explained that if Mr. Poole was not given his job back, he and 

Mr. Poole were going to go to MSHA. When asked whether he 

would have gone to MSHA if Mr. Poole were given his job back, 

Mr. Cox replied "not right at that time" (Tr. 161). 

484 
Mr. Cox confirmed that he also called Mr. Blankenship on 

May 11, 1985, and asked him whether or not all of the mine 

owners had collaborated to fire Mr. Poole, and that 

Mr. Blankenship informed him that they had not, and that the 

decision was made by Mr. Jackson alone. Mr. Cox confirmed 

that he called Mr. Blankenship because he always considered 

him to be a friend and was curious as to whether he had spoken 

with'Mr. Jackson (Tr. 164). Mr. Cox confirmed that when he 

asked Mr. Jackson for an explanation as to the meaning of his 11 unsatisfact9ry service, 11 Mr. Ja.ckson replied "You're trying 

to run the God damn mines," but did not elaborate further (Tr. 

166, 168). 

Mr. Cox examined copies of certain roof bolting accident 

report forms for January 16, and May 16, 1984, and 

December 14, and August, 9, 1983, in which he was involved 

(exhibit R-3, Tr. 177). Mr. Cox stated that he has no reason 

to doubt that he was'taken off the roof bolter in 1984, 

because an MSHA Inspector suggested to Mr. Jackson that this 

be done (Tr. 178). He conceded that he was upset because 

Mr. Jackson did not initially explain his decision to take 

him off the roof bolter, but that he later accepted the decision (Tr. 179-180). Mr. Cox confirmed that when he was 

assigned to the scoop, he informed Mr. Jackson that he would 

operate it in compliance with the law CTr. 180), and he conceded that "a lot of times" he did not operate the roof-bolter 

machine in c.ompl iance. with the law (Tr. 180) • Mr. Cox conceded that all times during his employment at the mine, he 

never refused to operate a piece of equipment because of any 

safety considerations, and that he voluntarily operated his 

scoop with the ventilation curtains rolled up "like everybody 

else" (Tr. 181-182). 

Mr. Cox confirmed that there have been lay offs at the 

mine for a week or so out of the month and for one 3-month 

period, because of production quotas, and that he has been 

laid off and called back to work for these reasons. He knows 

of no one who was laid off and not called back because they 

made safety complaints CTro 183-184). 

With regard to his complaint to Mr. Blankenship about 

bad roof conditions, Mr. Cox explained that Mr. Blankenship 

may have told Mr. Poole that "we was going through a double 

linear." Mr. Cox confirmed that he did not know what a 

"double linear" was until it was explained to him by an MSHA 

inspector in the Morgantown Office after he w~s terminated 

(Tr. 186). He also confirmed that most of his complaints 

about dust and the powder and caps on the coal drill were 

made to Mr. Blankenship more than once (Tr. 187). He also 

complained to Kit Jackson, and he believed that he would tell 

485 
his father Carson about them (Tr. 187). Mr. Cox also confirmed that he complained while riding out of the mine on the 

mantrip with Kit Jackson and other miners (Tr. 191). He also 

confirmed that he complained to Carson Jackson about the dust 

caused by the ventilation curtains being rolled up, but that 

Mr. Jackson did not respond (Tr. 192). 

, With regard to the use of the ATRS system on the roof 

bolter, Mr. Cox confirmed that he would use it when he encountered loose ~ock, and there were times when he did not use it. 

Any decision as to the use of the A'rRS was his, and he did 

not seek Mr. Blankenship's advice in this regard. Mr. Cox 

confirmed that most of the time he used a Galis 320 bolter 

which was not equipped with an ATRS system (Tr. 193-194). 

Mr. Cox admitted that he stored caps and powder on his 

drill, and wh"ile no on.e directed him to do it, he still complained to Mr. Blankenship about the practice CTr. 197-198). 

Mr. Cox also admitted that Mr. Jackson had warned him about 

riding the belt out of the mine, and that he tried to ride it 

out again after he was warned, but someone shut the belt off, 

and he had to walk out of the mine (Tr. 198). Mr. Cox denied 

that he was ever warned about operating his scoop with any 

part of his body out from under the canopy, and he could not 

recall being told by Mr. Jackson not to bolt off cycle. However, Mr. Cox confirmed that Mr. Blankenship told him on one 

occasion not to roof bolt out of sequence, but he could not 

recall whether he bolted out of sequence after that time (Tr. 

200). 

Mr. Cox confirmed that he made entries in his personal 

notebook for approximately 2 weeks from August 18 to 

September 4, 1984, and he confirmed that he never showed it 

to any inspector or to anyone from mine management. He stated 

that he kept the book so that he could use it as a threat to 

"implicate them before the Mine Safety and Health Administration," and in the event management found out that he was 

keeping the book and tried to fire him (Tr. 205). Mr. cox 

confirmed that he never told Carson Jackson that he was keeping the book, but did tell his son Kit, and he thought that 

he also told Mr. Blankenship. He also stated that he "might 

have" intended that by telling Kit Jackson about the book, he 

would inform his father about it (Tr. 205). 

Mr. Cox confirmed that at no time during his employment 

at the mine did he ever go to any mine inspector who inspected 

the mine about his complaints <Tr. 208). He confirmed that he 

was first acquainted with Inspector Tyler when he went to his 

home during the summer of 1984 to buy. a car engine from him. 

486 
Mr. Cox also confirmed that Mr. Tyler advised him that he was 

not an underground inspector, and advised him where he could 

file any complaint (Tr. 209). He also understood Inspector 

Adkins' instructions as to where to file any complaint (Tr. 

210). Mr. Cox explained that he did not follow up on the 

advice given him by the inspectors to file his complaint with 

the appropriate MSHA off ice because he did not believe he 

would get a "fair shake" from MSHA inspectors. He explained 

further that when MSHA inspectors come to the mine, it takes 

them 2 or 3 bours before they go underground, and that once 

underground, they are not in the mine very long (Tr. 211-214). 

Mr. Cox also believed that Mr. Tyler and Mr. Adkins would be 

more concerned about his complaints and pass them on to the 

appropriate MSHA office (Tr. 217-218). 

Mr. Cox confirmed that when he was laid off after the 

mine production was in, Mr. Jackson gave him "low earnings 

slips" so that he could draw unemployment. Mr. Cox also confirmed that the respondent sponsored his daughter in a beauty 

contest and donated money so that she could participate in 

the pageant (Tr. 222). He also confirmed that there were 

some Saturdays when he was not required to work (Tr. 223). 

Michael Poole was called in rebuttal, and he stated that 

_during.Mr. Cox's telephone conversation of May 11, 1985, with 

Mr. Pleasants, he heard Mr. Cox tell Mr. Pleasants that since 

he (Pleasants) has been in the respondent's mine and has 

observed how it was run, "if something wasn't done that we 

was going to the labor board" (Tr. 332). Mr. Poole stated 

further that Mr. Cox stated "If something wasn't done somebody was going to get killed in that mine and my uncle and I 

was going to the Department of Labor board, MSHA, or whatever 

it is ••. whatever we had to do in order to get the mine 

back within the specifications of the law" (Tr. 333). 

Mr. Poole stated that he and Mr. Cox were going to the 

Labor Board or to "governmental authority" regardless of 

whether they were fired, and that he and Mr. Cox had made 

plans to do so because their complaints to management were 

being ignored (Tr. 333-334). In response to further questions, Mr. Poole confirmed that his initial request that 

Mr. Cox call Mr. Pleasants was made in order to convince 

Mr. Pleasants to tell him that Mr. Jackson was running an 

unsafe mine, and that if Mr. Jackson had not called Mr. Cox 

on May 11, he (Poole) would not have thought to call 

Mr. Pleasants to complain about safety or to express his 

concern about anyone getting killed in the mine (Tr. 336). 

Mr. Poole conceded that he knew that Mr. Jackson ran his 

487 
mine, but thought that Mr. Pleasants had the authority to 

speak to Mr. Jackson on his behalf (~r~ 338). 

Respondent's Testimony and Evidence 

Alva Cogar, drill operator and shot firer, confirmed 

that he worked on the same shift with Mr. Cox during the last 

3 years, and prior to that he worked the night shift. He 

confirmed that powder and caps were stored on his equipment 

during mining, and that all o~ the drillers engaged in this 

practice, including Mr. Cox. Mr. Cogar stated that he would 

find powder and caps on the drill machine at the end of 

Mr. Cox's shift (Tr. 61-65). He engaged in the practice 

because it made his job easier, and it was not done at the 

respondent's direction (Tr. 71). 

Mr. Cogar confirmed that he has encountered bad top in 

the mine, but stated that it was worse in other mines that he 

has worked. He stated that during the first 4 or 5 months of 

1985, when bad top was encountered, extra long bolts and 

cribs were used, and Mr. Blankenship would have the affected 

areas rebolted and would instruct him to watch the roof. 

Loose coal would be barred down and proper roof bolting 

procedures were followed. In addition, bad top would be 

cribbed and dangered off (Tr. 66-70). The section boss would 

review the roof-control plan every day before starting work 

underground, and Mr. Jackson talked to the men about safety 

and cautioned them to be careful of bad top (Tr. 74-76). 

Mr·. Cogar stated that he has observed Mr. Cox operate 

the scoop with his feet up on the canopy, and he has "heard 

talk among the crew" that Mr. Cox was taken off the roof 

bolter because he was bolting the wrong way and management 

became concerned for his safety (Tr. 72-73). Although he has 

never observed Mr. Cox walk out under unsupported roof, he 

believed that Mr. Jackson caught Mr. Cox doing this, and also 

cautioned him about riding the belt out of the mine (Tr. 

76-78). 

Mr. Cogar confirmed that when he was first hired by 

Mr. Jackson he was told that Saturday work would be required. 

He stated that everyone complains about Saturday work, including Mr. Cox. He has heard Mr. Cox state that he would 11 jack 

Jackson's jaw" and would "whip the man fired him." Mr. Cogar 

believed that Mr. Cox was kidding when he made these statements, but he could offer no other explanation as to why they 

were made (Tr. 82-83, 99). Mr. Cogar stated that he is not 

reluctant .to speak to mine management about mine conditions, 

488 
is not afraid of losing his jbb, and he never heard management state that anyone could quit if they did not like the 

working conditions (Tr. 84-85). He also confirmed that he 

has observed mine inspectors in the mine after roof falls 

(Tr. 85). 

On cross-examination, Mr. Cogar confirmed that ventilation curtains were rolled up, and that he "took shortcuts." 

Alth0ugh Mr. Jackson and Mr. Blankenship did not order that 

the curtains be rolled up, Mr. Cogar believed they were aware 

of the practice because they were on the section all of the 

time (Tr. 87). He confirmed that Mr. Blankenship did order 

the curtains to be rolled up and out of the way so that they 

would not be torn down by equipment, but that this was always 

after an inspector had left the section (Tr. 92). Mr. Cogar 

stated that he had adequate water on his machine to keep the 

dust down, but that the curtains were up more often than down 

during the start of his' shift (Tr. 90-91). 

Mr. Cogar stated that he overheard Mr. Cox state that he 

could not work on Saturday, May 11, 1985, because he had a 

ball game, but does not know whether he informed management 

that he could not work. Mr. Cogar believed that everyone 

except Mr. Cox and Mr. Poole worked on that Saturday (Tr. 90, 

9 3). 

Mr. Cogar confirmed that he has shot more than one place 

at a time, but did not believe that this was a violation. He 

stated that he has never shot under unsupported roof, except 

for a corner where the roof bolter could not reach, but he 

would be no further than 30 inches from unsupported roof (Tr. 

92). He confirmed that Mr. Blankenship has instructed him to 

shoot three places at one time (Tr. 99). He also confirmed 

that there were occasions when his hand-held methane detector 

would not work, but that he would borrow another one from his 

foreman {Tr. 95). 

Mr. Cogar stated that he has heard Mr. Cox complain 

about the lack of brakes on the mantrip they were riding, and 

that Kit Jackson was present on some of these occasions. At 

times, Mr. Blankenship was aware of the lack of brakes, but 

they would either be repaired on a subequent shift, or another 

mantrip would be used. Management always repaired his equipment when needed, but at times the brakes on the mantrip would 

not be repaired on the next shift (Tr. 100-102). 

Mr. Cogar stated that he never complained to Mr. Jackson 

or Mr. Blankenship about safety, and did not know whether 

Mr. Cox did. He confirmed that he "jawboned" with his fellow 

489 
miners about dust, powder and caps on equipment, and walking 

under unsupported roof. Mr. Cogar stated that Mr. Cox mentioned these conditions to him, and that the miners complained 

to each other about these conditions (Tr. 103-105). Mr. Cogar 

stated that since Kit Jackson rode the mantrips with the men, 

he believed that the complaints would be taken to Carson 

Jackson by Kit Jackson and he believed the two Jacksons would 

discuss them with each other (Tr. 109-110). 

Donnie Crum, belt man, testified that he worked the 

first shift and was primarily responsible for maintaining the 

belt system. He confirmed that a roof fall occurred on the 

No. 4 belt, but he did not know when. He recalled seeing 

Mr. Cox operating his scoop with his legs outside of the protective canopy on more than one occasion (Tr. 228). He also 

confirmed that Mr. Jackson warned the men about riding the 

belt out of the mine, and that he told them he would fire 

them if he caught them. Mr. Jackson shut the belt down and 

became upset when he found that some of the men were not on 

the mantrip coming out.of the mine. Mr. Cox had not used the 

mantrip when he (Crum) rode it out of the mine (Tr. 225-229). 

Mr. Crum confirmed that his foreman Blankenship or 

Mr. Jackson would hold safety meetings in the lamphouse "once 

or twice a week, or maybe once every two weeks" (Tr. 230). 

Mr. Jackson discussed and stressed safety with the men, and 

advised them that they were to keep their minds on their job. 

Mr. Crum stated that he has never had any difficulty in discussing mine problems with Mr. Jackson or Mr. Blankenship, 

and they were responsive to his concerns about the roof or 

anything that needed to be repaired (Tr. 231). 

Mr. Crum confirmed that he worked on the Saturday that 

Mr. Poole and Mr. Cox did not show up for work, and that he 

had been told earlier that he would have to work that day. 

Mr. Crum stated that he understood that work was required on 

Saturdays, and knew this when he was first hired. Mr. Crum 

stated that Mr. Cox told him he was not going to work on that 

particular Saturday, and that Mr. Cox told him "if they tried 

to make me work Saturday, he said the labor board would take 

care of it" and that "the company couldn't do anything about 

it" (Tr. 233). 

Mr. Crum stated that dust samples are taken on the belt, 

and that Kit Jackson "sets the pump" and is in charge of that 

procedure. Mr. er.um knew of "no talk among the crew" that 

the dust pump does not run all day and that it is tampered 

with (Tr. 234). Mr. Crum confirmed that he is the son-in-law 

of Euhl Damron, a part owner of the mine CTr. 234). 

490 
On cross-examination, Mr. Crum stated that Mr. Cox told 

him that the men did not have to work on Saturday sometime 

during the week, and he assumed that Mr. Cox believed that 

the Department of Labor had some sort of requirement that men 

did not have to work on Saturdays (Tr. 236). 

In response to further questions, Mr. Crum confirmed 

that he was aware of ventilation curtains being rolled up and 

that "it was.difficult to rock dust around them." With the 

curtains rolled up, more dust was present, and he was aware 

of powder or explosives transported and stored on drills. 

However, he never complained to anyone about these conditions, 

and he never heard Mr. Cox make any complaints, nor did he 

ever discuss any safety concerns with him. Mr. Crum stated 

that Mr. Cox "had a playful way," but "didn't act like a 

bully" (Tr. 238). He confirmed that at times, Mr. Cox 11 kidded 

around a lot," but that he did hear him tell Mr. Jackson's 

son, Kit, that "if he ever fired him, he'd whip his ass" (Tr. 

242). Mr. Crum could not say whether Mr. Cox was serious or 

just "fooling around." He simply heard him make the statement 

(Tr. 242). 

Mr. Crum stated that Mr. Cox complained about wage 

increases, and once told him that he should make the company 

buy a "golf cart" for Mr. Crum to ride on while examining the 

belt (Tr. 239). Mr. Crum confirmed that there are no ventilation problems on his belt system, and that it is inspected 

and is in compliance (Tr. 241). 

David Huffman, third shift (midnight) electrician, stated 

that his shift is responsible for hanging curtains, rock dusting, moving the water line, and roof bolting. He confirmed 

that he works for an excellent foreman, and that curtains are 

hung and the water line is extended for the cutting machine 

and drill sprayers. He confirmed that the curtain must be 

kept within 10 feet of the face, but that it is rolled up. 

Rock dusting is done on a regular basis every night, and it is 

seldom not finished (Tr. 247). 

Mr. Huffman stated that he never had any dealings with 

Mr. Cox because they work on different shifts. Mr. Huffman 

stated that he was in the mine office on Saturday morning, 

May 11, 1985, after his shift was over, and he overheard 

Mr. Jackson on the telephone. He heard Mr. Jackson tell the 

person on the other end of the line to "tell Michael Poole 

not to come back to work, just to come pick up his time 

because he don't have a job here any more" (Tr. 249). 

Mr. Jackson. was not mad or cursing, and spoke in a normal 

491 
tone of voice. Mr. Huffman did not know who was on the phone 

with Mr. Jackson (Tr. 249). 

On cross-examination, Mr. Huffman stated that the curtains were rolled up "in order to work in the places," and 

that he is the only person working in the face area. However, roof bolting is also being done~ and the curtains are 

moved up for the men to use at the face (Tr. 252). 

Mr. Huffman believed the ventilation to be adequate and that 

there was enough air, and he had no complaint with the 

ventilation (Tr. 253). 

Robert Massey, purchasing agent, stated that he works in 

the mine office and never goes underground. He confirmed 

that his duties include the maintenance of records such as 

purchase orders, citations, accident reports, roof falls, 

inspection reports, fire boss reports. Kit Jackson takes 

care of the dust sample reports. Mr. Massey stated that at 

no time has any miner or Mr. Cox asked to review any of these 

reports CTr. 256). 

Mr. Massey confirmed that Mr. Jackson is the "boss," and 

that he made it clear to him that he was expected to work on 

Saturday if it is required. Mr. Massey confirmed that he was 

in the mine office on Saturday, May 11, 1985, when Mr. Poole 

and Mr. Cox failed to report for work, and that Mr. Jackson 

asked him to call them at their home. Mr. Massey placed the 

call to Mr. Cox and handed the phone to Mr. Jackson. He 

heard Mr. Jackson tell Mr. cox "to tell Mike not to come out 

to work Monday, just to come out to pick up his time." 

Mr. Massey stated that Mr. Cox and Mr. Jackson "crosswords 

for a while," and he heard Mr. Jackson tell Mr. Cox "if you 

want an order for your time, too, you can come in Monday and 

pick it up. 11 Mr. Jackson then hung up the phone (Tr. 259). 

Mr. Jackson then went underground, and Mr. Massey stayed in 

the off ice. 

Mr. Massey_stated that at approximately the noon hour on 

that same Saturday, he received a telephone call from 

Mr. Pleasants, and that he wanted to talk to Mr. Jackson. 

Mr. Massey took the message, and gave it to Mr. Jackson when 

he came out of the mine. Mr. Massey stepped out of the 

office and did not hear the conversation (Tr. 261). 

Mr. Massey identified exhibit C-2(e) and Cf) as MSHA 

accident report forms, and he confirmed that he filled them 

out and submitted them, and that the information on the forms 

would normally come from Mr. Jackson. He identified the 

reported incidents as roof falls, and confirmed that an MSHA 

492 
inspector usually comes to inspect the area where the falls 

occur, and that Mr. Jackson goes wi.th him. He confirmed that 

these incidents occurred before Mr. Cox was fired, and stated 

that as long' as he has been employed at the mine he is not 

aware of any MSHA citations being issued because of the 

·reported roof falls in question CTr. 263). 

Mr. Massey confirmed that he has filed MSHA accident 

reports when it was not necessary to do so, and he confirmed 

that MSHA had advised him that ·

11 band aid" incidents need not 

be reported,- and that only lost time injuries are required to 

be reported {Tr. 264). He confirmed that he has filed accident reports for minor injuries, including the reported 

battery incident involving Mr. Cox, and no citations ever 

resulted from these reported incidents. Citations have been 

issued, but not for the reported roof falls anc accidents CTr. 

265-266). 

Mr. Massey stated that shortly after going to work with 

the respondent in June, 1984, there was a conference in the 

mine office between MSHA Inspector Bob Wilmoth and Mr. Jackson 

about Mr. Cox and his duties as a roof bolter. According to 

the inspector, 50 percent of the reported mine accident frequency rate involved Mr. Cox. Although he did not hear it 

specifically, Mr. Massey believed that the inspector recommended to Mr. Jackson that Mr. Cox be taken off the roof 

bolter. Although Mr. Massey was further aware that Mr. Jackson 

spoke to Mr. Cox about the matter, he left the office and did 

not hear the discussion (Tr. 269). 

On cross-examination, Mr. Massey confirmed that 

Mr. Jackson told him that Mr. Cox was involved in 50 percent 

of the reported accidents. Mr. Massey confirmed that he would 

call underground to advise the crew that an inspector was 

coming underground but that he has never worked in the mine 

(Tr. 270). He also confirmed that MSHA inspected the reported 

roof fall areas during April, 1985, and that no citations were 

issued as a result of those incidents (Tr. 271). Mr. Massey 

was aware of citations for unguarded belts and lack of protective rubber mats in the shop (Tr. 273). Copies of all citations are posted on the bulletin board and are kept there until 

the next inspection (Tr. 277). 

Bobby Carpenter, roof bolter operator, testified that he 

worked with Mr. Cox on the roof-bolting machine. He stated 

that Mr. Blankenship reviews the roof-control plan with the 

bolters everyday, and explains the bolting sequence. He confirmed that he and Mr. Cox have bolted out of sequence, and 

that on more than one occasion Mr. Jackson and Mr. Blankenship 

493 
have "chewed them out" about bolting out of sequence (Tr. 

254-258). Mr. Carpenter also confirmed that bad top has been 

encountered in the mine "off and on," but that management has 

corrected the conditions by using longer bolts to make it 

safe, and has never ignored the condition (Tr. 258). 

Mr. Carpenter stated that he does not believe he "would 

be in trouble" if he made safety complaints to management, 

and confirmed that he has often discussed mine conditions 

with Mr. Bla~kenship, and that "he always said correct it, 

••• make it safe for us to work" (Tr. 259). Mr. Carpenter 

stated that Mr. Cox did not "have to good an attitude" toward 

management, and that he has heard him say he would "whip 

Carson." Mr. Carpenter believed that Mr. Cox might have been 

kidding but sometimes he may have been serious. 

Mr. Carpenter stated that he gets along with Mr. Jackson, 

and that Mr. Jackson has never threatened or cursed him. 

Mr. Carpenter never heard Mr. Cox complain to management about 

safety, but has heard him talk to the crew about it (Tr. 261). 

Mr. carpenter stated that Mr. Blankenship has advised the crew 

that they could roll the ventilation curtains down if they 

needed more air, and Mr. Carpenter did not believe he "would 

be in hot water" if he did so. The roof bolter operator is 

responsible for using the ATRS which is on the machine, and 

Mr. Cox used it on occasion when bad top was encountered. The 

ATRS has always been maintained properly (Tr. 263). 

On cross-examination, Mr. Carpenter identified exhibit 

C-9 as a prior statement which he gave to the MSHA investigator during the investigation of Mr. Cox's complaint, and he 

confirmed that he stated that Mr. Cox "did a lot of hollering" 

to Mre Blankenship and Mr. Jackson, and that Mr. Cox "complained several times." Mr. Carpenter stated that Mr. Cox 

"had a lot of complaints about different things," and that he 

heard him talk about air at the face and the ventilation curtains being rolled up. He also understood that Mr. Cox spoke 

about powder and caps on equipment, but did not hear him make 

such statements. Mr. Carpenter also confirmed his prior statement that on one occasion when Mr. Jackson threatened to fire 

Mr. Cox, Mr. Cox told Mr. Jackson that "they would run the 

mine according to the law." Mr. Carpenter construed this to 

mean that the mine should run without any safety violations 

(Tr. 264). Mr. Carpenter also confirmed his prior statement 

that everyone on the day shift knew that Mr. Cox was keeping 

"a book" on mine ety violations (Tr. 265). 

Mr. Carpenter stated that he heard Mr. Cox state that he 

did not like Saturday work, but never heard him complain about 

494 
his pay. When asked what Mr. cox's complaints were about, 

Mr. Carpenter stated "·odds and ends. He was always complaining about a lot of things ••• to some extent a lot of it 

did have to do with health and safety." Mr. Carpenter also 

confirmed that some of the complaints were about how the mine 

was being managed, and management decisions not necessarily 

related to safety (Tr. 268-269). 

Mr. Carpenter did not know what prompted·Mr. Jackson's 

prior threat to fire Mr. Cox, but he confirmed that 

Mr. Jackson had warned Mr. Cox about riding the belt out of 

the mine after being told by Mr. Jackson that he should not 

do so CTr. 269). Mr. Carpenter confirmed that on one occasion, while riding the mantrip, he heard Mr. Blankenship tell 

Mr. cox "don't do anything to make me fire you" (Tr. 271). 

William J. Griffin, roof bolter, testified that he has 

been off the job for a year due to a non-work related condition, but that he is still employed by the respondent. He 

confirmed that sometime in June, 1984, he traded shifts with 

Mr. Cox for 2 weeks, and that they were both working as roof 

bolters at the time. At that time, MSHA inspectors were conducting roof control inspections of the mine, and he heard an 

inspector recommend to Mr. Jackson that Mr. Cox be taken off 

the roof bolter, but did not know why CTr. 275). After that 

time, Mr. Cox operated a scoop, and Mr. Griffin stayed on the 

bolter (Tr. 276). 

Mr. Griffin confirmed that he worked on Saturday, May 11, 

1985, but that Mr. Cox did not, and they had no conversation 

about not working that day (Tr. 277). Mr. Griffin confirmed 

that the ATRS systems sometimes does not work, but that 

repairs are usually made within two shifts (Tr. 279). He has 

never known the system to be down for weeks at a time. 

Mr. Griffin never heard Mr. Cox complain to management about 

safety, but he (Griffin) has discussed safety matters with 

Mr. Jackson and Mr. Blankenship, and they always checked it 

out and took corrective action (Tr. 279-280). Mr. Jackson was 

"all the time saying something about safety. 11 On one occasion, Mr. Jackson told the men "to look out for their accident 

rate or he was going to shut the mine down," and that he was 

upset over a lot of minor injuries (Tr. 281-282). Mr. Griffin 

confirmed that working on Saturdays was a condition of employment, and that he worked a lot of overtime on Saturdays, and 

that Mr. Cox called him a "company suck" for doing so (Tr. 

2 84). 

In response to further questions, Mr. Griffin confirmed 

that when he complained to Mr. Blankenship about roof cracks, 

495 
he would inform Mr. Jackson, 

then be installed (Tr. 285). 

powder and caps were kept on 

curtains were rolled up (Tr. 

and longer bolts or cribs would 

Mr. Griffin confirmed that 

the drill, and that ventilation 

288). 

Johnny Stafford, outside man, testified that he is 

married to the sister of Kit Jackson's wife. He stated that 

he had "a run in" with Mr. Cox in the lamphouse after Mr. Cox 

threw his shoes off a bench during a ~shift change. He stated 

that Mr. Cox threatened "to·kick my butt," and challenged him 

to a fight (Tr. 292). Nothing came of the threat, but 

Mr. Stafford stated that Mr. Cox often made remarks to him 

about sleeping on the job and that he was loud (Tr. 293). 

Neil J. Pleasants stated that he is the senior 

vice-president of the Brooks Run Coal Company. He confirmed 

that his company does not mine coal, but does operate a preparation plant, and has six contractors who mine coal on lands 

leased by the company. He confirmed that the respondent has 

a contract to mine coal on one of the leases, and to deliver 

the coal to the plant at a fixed contractual price. The 

respondent is responsible for hiring and firing its miners, 

and fixing wages. The Brooks Run engineering department does 

fix the spads and direction of mining underground to assure 

itself that mining is being conducted in accordance with the 

mine plan, and does have an input as to whether mining should 

be discontinued or abandoned, and does have the authority to 

fix or limit mine production (Tr. 299-300). However, Brooks 

Run has no control over any management decisions made by the 

respondent, nor does it dictate any Saturday work. Brooks 

Run simply asks the respondent for so much coal, and "it's 

left up to them how they work to do it" (Tr. 301). 

Mr. Pleasants stated that he received a telephone call 

on the morning of May 11, 1985, from an individual who he 

later determined was Mr. Cox. He never previously met Mr. Cox 

or Mr. Poole, and Mr. Cox did not give his name when he spoke 

with him. Mr. Pleasants stated that Mr. Cox told him that 

"there was some trouble at our mine." Mr. Cox also informed 

him that Mr. Jackson was forcing the men to work on Saturday, 

and that Mr. Cox did not think this was right. Mr. Cox also 

informed him he was involved with little league baseball and 

needed to be off on Saturdays, and that Mr. Jackson was going 

to discharge someone for missing work. Mr. Pleasants believed 

that Mr. Cox was concerned because and Mr. Poole were in 

trouble for not working on Saturday, and that Mr. Cox called 

him to see if he could do something about it. Mr. Pleasants 

informed Mr. Cox that he would call Mr. Jackson, and he was 

concerned because Mr. Cox indicated that he could cause 

496 
Mr. Jackson some trouble if he didn't take them .back. 

Mr. Pleasants was also concerned because he was not sure of 

the kind of trouble Mr. Cox had in mind, and he speculated 

that it may involve miners walking off the job or refusing to 

work (Tr. 302~305). 

Mr. Pleasants stated that Mr. Cox also informed him that 

he did not believe that the labor law required him to work on 

Saturday against his will, and that he also mentioned "something about :ip.aking complaints." In this regard, Mr. Pleasants 

stated as follows CTr. 306-307): 

Q. Did he mention anything about making complaints to anyone? 

A. That he had made them or would make them? 

Q. would make them. 

A. Yes, he said something about making complaints -- he would complain to the -- well 

maybe to the labor regulators to -- he talked 

about maybe going to some of the enforcement 

agencies and making some complaints also. 

Q. Did he tell you what the nature of the 

complaints would be? 

A. I can't remember that he told me anything 

specifically. He may have but I can't 

remember. 

Q. Did he say he was going to do that regardless of what Mr. Jackson did? Or did he tie 

it to a threat if he didn't get a job back? 

A. To me, as I remember, he didn't say either 

way. I guess I kind of got the indication 

that maybe he, if things didn't work out to 

suit him, that he didn't get his job back, 

that he would go. He didn't say either way 

he'd go or wouldn't go if he didn't. 

Q. He said he might go? 

A. Yes. 

497 
Mr. Pleasants reviewed a copy of a memorandum of June 18, 

1985, which he prepared in connection with his telephone conversation with Mr. Cox on May 11, 1985, and he indicated that 

in referring to Mr. Jackson, Mr. Cox stated "that old man has 

pushed me as far as I'm going to be pushed" (exhibit C-11: Tr. 

308). Mr. Pleasants stated that he was not concerned about 

Mr. Cox going to any "regulatory agencies" because he knew 

that regular inspections of the mines are always done, and 

that under the contract with the respondent, Mr. Jackson is 

required to operate the mine in accordance with the law. 

Mr. Pleasants stated that his primary concern was whether or 

not Mr. Cox's belief that he should not be required to work on 

Saturdays would escalate into a work stoppage and possibly 

affect other nearby mines (Tr. 309). 

Mr. Pleasants confirmed that he telephoned Mr. Jackson 

after speaking with Mr. Cox, but Mr. Jackson was underground 

and returned his call later in the afternoon. In response to 

questions about his conversation with Mr. Jackson, 

Mr. Pleasants stated as follows (Tr. 310-314}: 

Q. Do you recall that conversation with 

Mr. Jackson? 

A. Well, again, not word for word, but I 

remember when he called me back I asked him 

what was going on at the mines. Had he fired 

some people? How many people had he fired 

that day? Or what kind of problems he was 

having at his mine. 

Q. What did he say? 

A. He said that, yes, he had discharged one 

man, and he may have got a little bit worried 

about it. He got a little excited or a little 

worried about maybe losing the work force. 

And he said, tell me what the problem is. So 

I told him that a man had called me. I didn't 

know who the man was, but he said he was upset 

about having to work on Saturday, and that I 

guess maybe it was his nephew that had been 

discharged and he felt maybe he was too. And 

I told him about the fellow coaching little 

league. And from that Carson said, well, he 

knew who it was. He could tell me who it was. 

Q. What se did he tell you? 

498 
A. He said then I discharged one man, but now 

there will be two. 

Q. When he said this was this before you had 

told Carson Jackson the complaints that 

Mr. Cox had made known to you? 

A. I believe it was, because I think I just 

now told you what I said to Carson before 

then. 

Q. That he said he was upset about working 

Saturdays. 

A. Yes. 

Q. And he was upset about his nephew being 

fired? 

A. Right. 

Q. And then that's when he told you he'd 

figured out who it was, and Mr. Jackson said, 

well, I fired two? 

A. Right. 

Q. Did you go on to tell Mr. Jackson after 

that the other things that Mr. Cox had told 

you? 

A. Pretty much so, yes. I told him -- well I 

asked him about the other men. 

* * * * * * * 

THE WITNESS: Well I went on to ask Carson 

then if the rest of his men were upset, or if 

he thought because he had discharged these two 

men that they would get upset, and possibly 

that we'd have a work stoppage. And I did go 

on to tell him that 

BY MR. GARRETT: 

Q. Did you discuss that with Mr. Jackson? 

A. Yes, sir. 

499 
Q. And did he -- what did he tell you about 

the possibility of a work stoppage? 

A. well he said he didn't believe so. But he 

said, I feel I have to take this action anyway. 

And of course it's his mine. 

Q. It was his decision? 

A. It was his decision. 

Q. Now after that what all did you all talk 

about, if anything? 

A. Well I'm trying to think what else he 

said. I went on to tell him that Cox -- I 

didn't know who it was, but the fellow that 

called me had said he would try to cause him 

some trouble, I thought, from the remarks that 

he had made there. 

Q. If he got fired he'd cause him some 

trouble? 

A. Yes. 

Q.· And did you tell him what Mr. Cox had 

said, what kind of trouble he'd cause him? 

A. Yes. He said he would of course cause him 

trouble with the men, because he felt some of 

the other people felt that way, so he'd go to 

the agencies -- to the regulatory agencies and 

try to cause him some trouble that way. I 

kind of got the idea anyway he'd cause some 

trouble. 

Mr. Pleasants stated that Mr. Jackson explained to him 

that he had fired Mr. Poole because he missed work and that 

he had previouisly warned him that he would be fired if he 

missed the next scheduled work shift. Mr. Pleasants further 

stated that Mr. Jackson advised him that he was going to fire 

Mr. Cox "because he had come to me making a complaint, and he 

felt by doing that he was going over his head and managing 

that mine and coming to somebody else to make a complaint, 

somebody that maybe he thought he could get Carson in trouble 

with" (Tr. 315). 

500 
Mr. Pleasants confirmed that Mr. Poole and Mr. Cox came 

to his office on Monday, May 13, 1985, after they had been 

fired, and Mr~ Pleasants believed that they expected him to 

intercede in their behalf with Mr. Jackson. Mr. Pleasants 

could not recall whether Mr. Cox said anything about what he 

would do if he didn't get his job back, but after reviewing 

his memorandum he confirmed the accuracy of his prior statement indicating that Mr. Cox told him that "they were going 

to take this matter to the Labor. Board and r~gulatory agencies." Mr. Pleasants also confirmed that on Saturday, May 11, 

1985, Mr. Cox told him that if he was discharged he was going 

to cause trouble by going to the agencies (Tr. 317). 

On cross-examination, Mr. Pleasants confirmed that his 

recollection of his telephone conversation with Mr. Cox was 

better as of the dat~ of his memorandum than it was during 

his hearing testimony. Mr. Pleasants testified further as to 

the sequence of his conversation with Mr. Jackson vis-a-vis 

his prior conversation with Mr. Cox, and he explained as 

follows (Tr. 320): 

Q. Would it be perhaps the same sequence in 

which you relayed this conversation from Cox 

to you to Mr. Jackson? Would that be a fair 

conclusion that the same sequence in which you 

were told this would be the same sequence that 

you relayed this to Mr. Jackson? 

A. The way I -- what I related to Mr. Jackson 

first was I asked him what was going on at the 

mines. Then I told him that a fellow had 

called me, worried about his nephew's job, 

also a little worried about his own job, and 

that he played little league ball and couldn't 

be there on Saturday. And at that time 

Mr. Jackson stopped me and told me that he was 

now firing two people. 

In response to further questions, Mr. Pleasants confirmed 

that any adverse ruling against the respondent in this case 

will not affect its coal supply to Brooks Run, but the threat 

of a work stoppage would be a legitimate business concern of 

his company, and that he had this concern on May 11, 1985 (Tr. 

325-326). Mr. Pleasants also indicated his concern for mine 

safety, and he did not believe in mining coal:using "shortcuts," and that to do so is not cost effective (Tr. 327). 

501 
Complainant's Arguments 

In his posthearing brief, complainant's counsel asserts 

that the evidence in this case establishes numerous instances 

of mine safety violations on the part of the respondent, and 

that they provide an ample predecate or base to support a conclusion that Mr. Cox would have justifiably reported these 

v,tolations to mine management as well as to the appropriate 

mine enforcement agencies. Counsel also asserts that there is 

testimony by_Mr. cox and others, that Mr. Cox reported safety 

violations to mine management officials, and that within a 

week or two prior to his discharge on May 13, 1985, Mr. Cox 

threatened to his foreman, Rodney Blankenship, to talk to the 

next MSHA mine inspector to come into the mine. Counsel also 

cites the November 4, 1986, deposition of respondent's president, Carson J~ckson, at transcript page 35, where counsel 

claims that Mr. 'Jackson. admitted that Mr. Cox threatened at 

least twenty times to go to MSHA. 

Counsel points out further that prior to his discharge, 

Mr. cox had "taken the steps of complaining" to two different 

MSHA inspectors about certain mine safety violations, and that 

the final nexus regarding his protected activity occurred on 

Saturday, May 11, 1985, when Mr. Cox communicated his threat 

"to go to the agencies" to Mr. Neil Pleasants, a business associate of Mr. Jackson. Counsel argues that this threat was 

communicated to Mr. Jackson by Mr. Pleasants during a telephone conversation following Mr. Cox's call to Mr. Pleasants, 

and that the decision by Mr. Jackson to discharge Mr. Cox was 

made after Mr. Pleasants advised Mr. Jackson of Mr. Cox's 

threats "to go to the agencies." Counsel rejects any notion 

that Mr. Jackson decided to discharge Mr. Cox before it was 

made known to him by Mr. Pleasants that Mr. Cox had threatened 

"to go to the agencies," and argues that the sequence of 

events as communicated by Mr. Pleasants to Mr. Jackson, and as 

documented by Mr. Pleasants in his prior statement of June 

1985, more accurately reflects that Mr. Jackson decided to 

discharge Mr. Cox after the phone call from Mr. Pleasants, 

and after Mr. Pleasant's informed Mr. Jackson of Mr. Cox's 

threats to "go to the agencies." 

In addition to Mr. Cox's purported safety complaints to 

mine management, and his threats to "go to the agencies," as 

communicated by Mr. Pleasants to Mr. Jackson, counsel asserts 

that Mr. Cox was a particularly vociferous individual in 

respect to voicing his views on safety matters, and that one 

witness called by the respondent during the hearing, Bobby 

Carpenter, testified that at one time Mr. Jackson threatened 

to fire Mr. Cox, and on another occasion, he overheard 

502 
Mr. Blankenship tell Mr. Cox "don't do anything to make me 

fire you." 

Counsel asserts that even though Mr. Cox's initial motivation for his telephone call to Mr. Pleasants on Saturday, 

May 11, 1985, may have been to help save his nephew's (Michael 

Poole) job, Mr. Cox unequivocally told Mr. Pleasants that he 

was going to complain to "MSHA, 11 the "agencies," or the "labor 

board. 11 Counsel asserts that once these threats were communicated to Mr. Jackson, they formed the basis for Mr. Jackson's 

decision to discharge Mr. Cox, and coupled with Mr. Cox's 

prior complaints and threats to discharge him some 2 weeks 

before his actual discharge, was the motivating reason for his 

discharge, and that but for these threats Mr. cox would not 

have been fired. Counsel concludes that all of the foregoing 

series of events, including Mr. Cox's antecedent threats to 

talk to an MSHA inspector, his reporting of safety complaints 

to his foreman Rodney Blankenship within the last 2 weeks of 

his employment with the respondent, and the final transmission 

to Mr. Jackson of Mr. cox's threats to go to the mine enforcement authorities, more than meet the threshold requirement of 

"protected activity" under the Act. 

Counsel does not concede that this is a "mixed motive" 

case. Assuming that it is, counsel concludes that the respondent has not established that it would have discharged Mr. cox 

in any event for any unprotected activities alone, and that it 

has failed to meet the test enunciated by the Pasula line of 

cases. Counsel concludes further that Mr. Cox has established 

that he was discharged, not for the contradictory diverse 

reasons advanced by the respondent, but because of protected 

activity within the meaning of section 105(c) of the Act. 

Respondent's Arguments 

In its defense, the respondent states that while it had 

no complaints concerning Mr. Cox's work as a roof bolter operator during 1984, he was involved in four accidents during 

the course of the year while operating the bolter, and that 

he was taken off the bolter and given a different work assignment because of these repeated accidents. Respondent asserts 

that after missing a regularly scheduled Saturday work day in 

June, 1984, and his removal as a roof bolt operator, Mr. Cox 

became disenchanted with Mr. Jackson's management of the mine. 

Respondent asserts that Mr. Cox made no secret of his belief 

that the "labor board" would not condone management's Saturday 

work requirement, and that he attempted to incite other miners 

not to work on Saturdays, and made statements that he would 

"whip" Mr. Jackson or any other member of management who 

503 
attempted to discharge him. As examples of Mr. Cox's resentment of authority, responde.nt states that Mr. Cox continued to 

ride the belt out of the mine after being warned by Mr. Jackson 

not to, and challenged management's authority to reassign him 

after he was taken off the roof bolter. 

The respondent points out that although Mr. Cox professed 

a keen interest in alleged safety vi~lations, and went so far 

as to record the believed violations in a journal for 2 weeks 

commencing o~ Saturday, August 18, 1984, he never showed it to 

management. Further, although Mr. Cox had two informal discussions with MSHA inspectors who advised him of his rights and 

of the appropriate procedure for filing a complaint, Mr. Cox 

never filed a complaint with MSHA. Mr. Cox also failed to 

participate in a company sponsored safety program because he 

would not be paid overtime, and by his own admission, rarely, 

if ever, made any safety complaints to Mr. Jackson. 

The respondent states that Saturday, May 11, 1985, was 

a regularly scheduled work day, and that both Mr. Poole and 

Mr. Cox were aware of this, and they were not excused from 

working by management, nor did they discuss their intention 

not to appear for work with Mr. Jackson. After telephoning 

Mr. Cox on the morning of Saturday, May 11, 1985, to ascertain 

whether he and Mr. Poole were coming to work, Mr. Jackson was 

informed by Mr. Cox that Mr. Poole did not intend to work that 

day. Mr. Jackson then advised Mr. Cox to inform Mr. Poole 

that he was discharged because of his absenteeism and to come 

to the mine on Monday, May 13, 1985, "to pick up his time." 

When Mr. Cox became argumentative and challenged the propriety 

of the discharge of Mr. Poole, Mr. Jackson advised Mr. Cox 

that it was his decision to make, and that if Mr. Cox was not 

sati ied with the decision, he should also "pick up his time." 

Respondent states that despite the fact that all of its 

employees, including Mr. Cox, had been advised that the management of the Brooks Run Coal Company was separate from the 

management of the respondent's mine and were warned not to 

discuss management decisions with officials of Brooks Run, 

Mr. Cox decided on May 11, 1985, to contact Mr. Neal Pleasants, 

the vice-president of Brooks Run, concerning Mr. Poole's discharge, and did so to enlist his assistance in influencing 

Mr. Jackson to reconsider his decision to discharge Mr. Poole. 

Realizing that Mr. Jackson would not appreciate this contact, 

Mr. Cox did not identify himself to Mr. Pleasants, and he 

advised Mr. "Pleasants that there would be "trouble" at his mine 

if Mr. Poole was not reinstated. Mr. Cox also complained to 

Mr. Pleasants about the respondent's decisions requiring 

Saturday work, threatened to go to the "labor board," generally 

504 
discussed the dissatisfaction of the workforce at the respondent's mine, and also discussed his intention "to go to the 

agencies" (presumably MSHA) about the way Mr. Jackson ran his 

mine. 

Respondent asserts that after receiving the call from 

Mr. Cox, Mr. Pleasants became concerned about the threat to 

the Brooks Run operations, and he believed that the "trouble" 

referred to by Mr. Cox would be a work stoppage at Brooks 

Run's contra~tors' mines which supplied coal to its preparation plant. For this reason, Mr. Pleasants called Mr. Jackson 

to inquire about the matter. Upon learning of the phone call 

to Mr. Pleasants, Mr. Jackson decided to discharge Mr. Cox, 

and that his decision was without input from any other management officials. Thereafter, on the morning of May 13, 1985, 

Mr. Jackson summoned Mr. Poole and Mr. Cox to his office and 

gave them their discharge slips. Mr. Jackson explained to 

Mr. Poole that he was ~ischarged for excessive absenteeism, 

and he explained to,Mr. Cox that he was discharged for trying 

to take over the management of the respondent's mine. 

Respondent maintains that on the facts of this case, 

Mr. Cox has not demonstrated a prima facie case, much less 

carried his ultimate burden of proof that he was discharged 

for protected activities. Even assuming that Mr. Cox has 

established a prima facie case, the respondent asserts that 

Mr. Cox has failed to establish that he was discharged for 

protected activity rather than a legitimate business purpose, 

i.e., insubordinate and offensive conduct which culminated in 

his attempt to· interfere with the decision to discharge 

Mr. Poole. 

Respondent asserts that Mr. Cox was discharged for interferring with mine management's decisions to discharge Mr. Poole 

and to schedule work on Saturday which was made a condition of 

employment at the mine. Respondent also maintains that Mr. Cox 

had a history of poor work attitude and resentment of authority, and that the reason for his discharge has been consistently maintained and established by the respondent. 

Respondent suggests that Mr. Cox has had a difficult time 

in deciding precisely what the protected activity was that he 

engaged in that formed the basis of his claims of alleged 

discrimination. With regard to any communicated safety complaints by Mr. Cox, a requirement enunciated by the Commission 

in Simpson v. Kenta Energy, Inc., 8 FMSHRC 1034 (July 1986), 

the respondent takes the position that Mr. Cox has a serious 

problem with this aspect of his case. Respo:ndent points out 

sos 
that while Mr. Cox produced a journal of alleged safety violations maintained for a 2-week period in 1984, he failed to 

establish that he ever shared the information with mine management or mine inspectors. Similarly, although Mr. Cox was 

advised of his rights to file safety complaints with MSHA, he 

failed to carry out his threat to do so and gave no intention 

that he intended to do so. With regard to his asserted complaints to his section foreman Rodney Blankenship, concerning 

a variety of alleged unsafe conditions involving roof control, 

ventilation,_ and explosives, the respondent concludes that the 

weight of the credible evidence establishes that Mr. Cox did 

not overtly make specific complaints to Mr. Blankenship or to 

Mr. Jackson, and that he himself engaged freely in the alleged 

unsafe practices of which he complained. 

Respondent asserts that Mr. Cox expressed many of his 

safety concerns defacto, and that they cannot form a nexus 

between his discharge and his alleged protected activity, 

Cantrell v. Gilbert Industrial, 4 FMSHRC 1164 (June 1982). 

As an example, respondent points out that Mr. Cox alleged for 

the first time during the hearing that certain preshif t and 

onshift reports were improperly kept and that dust records 

were allegedly incorrect or altered. However, he never 

reviewed these records prior to his discharge and never 

reviewed the mine bulletin board for the posting of MSHA 

enforcement action prior to his discharge. 

Respondent asserts that it would appear that anytime a 

complaint may have been raised by Mr. Cox, it was in the context of a threat resulting from his own dissatisfaction with 

a management decision involving unprotected activity <i.e., 

his removal from the roof-bolting machine; the discharge-of 

Mr. Poole: the requirement to work on Saturdays). Mr. Cox's 

intention to expose alleged violative conditions was always 

expressed in conditional terms, and respondent concludes that 

Mr. Cox could be persuaded not to complain if managerial 

decisions involving unprotected activity could be altered to 

suit Mr. Cox. Respondent further concludes that Mr. Cox's 

admitted and repeated participation in the alleged violative 

conduct belies any true concern on his part for mine safety. 

Respondent further concludes that an employee attempting to 

demonstrate:-· a discriminatory motive must show that he at 

least intended to notify appropriate authorities. Baker v. 

North American Coal Company, 8 IBMA 164 (1977). Assuming 

Mr. Cox had any intention, it could only be interference with 

decisions concerning unprotected activity, which ultimately 

led to his discharge. 

506 
Even assuming that Mr. Cox linked some protected activity 

with his discharge, the respondent maintains that his discharge was motivated by unprotected activity and would have 

taken place regardless. Certainly, the repeated demonstration 

of a poor work attitude, such as the general hostility toward 

management, contempt for Saturday work assignments, coupled 

with the refusal to work on Saturdays, and attempts to incite 

others not to work on Saturdays, are sufficient reasons alone 

to discharge an employee. Klimczak v. General Crushed Stone 

Company, 5 F~SHRC 684 (April 1983), aff'd sub. nom. 732 F.2d 

142 (2d Cir. 1984) <miner failed to make out a prima facie 

case of discrimination where the record indicated his discharge resulted from a series of unexcused absences and a poor 

work attitude including refusal to work on Saturdays)~ 

Walter A. Schulte v. Lizza Industries, Inc., 6 FMSHRC 8 

(January 1984), (although prima facie case was made out, the 

miner's discharge was proper because it was also motivated by 

the employee's insubordinate conduct and attitude problem 

which resulted after his removal from the operation of a bulldozer and his reassignment to a different position). 

Respondent argues that the evidence in this case establishes that Mr. Cox's attitude problem and resentment of 

authority grew after his removal from the roof bolter in 1984, 

and that this resentment manifested itself in a variety of 

ways, which Mr. Cox maintains were related to protected activity under section 105(c) of the Act. However, respondent 

points out that Mr. Cox's blatant defiance of Mr. Jackson's 

specific warning that Mr. Cox's comments concerning Mr. Poole's 

discharge on May 11, 1985, were not welcome, and Mr. Cox's call 

to Mr. Pleasants with the sole intention of interferring with 

Mr. Jackson's decision to discharge Poole for excessive absenteeism, goes beyond any form of protected activity under section 105. Mro Cox's conduct in contacting Mr. Pleasants was so 

offensive and disruptive that Mr. Jackson was left with no 

other course but to discharge Mr. Cox. Mr. Cox's alleged protection in undertaking this action by calling Mr. Pleasants 

rests on the slim reed of the fortuitous mentioning of "going 

to the agencies 11 (presumably MSHA) regarding the way 

Mr. Jackson's mine was run. However, the primary gist of 

Mr. Cox's conversation, as understood by Mr. Pleasants, and as 

conveyed by him to Mr. Jackson, was to threaten a work stoppage 

at Brooks Run's contract mines of which the respondent is one. 

Respondent cites a case decided under the National Labor 

Relations Act which it believes is similar to the one at bar 

involving a threatening call made by an employee to a business 

associate of his employer. The first Circuit held that "an 

507 
employee• s conduct may be so offensive., disruptive, or destructive of the employer's business as to go beyond the protection 

of Section 7, [of the NLRA] even if the goals of the conduct 

are within the protection of Section 7." Keosaian v. National 

Labor Relations Board, 630 F.2d 36, 38 Clst Cir. 1980). In 

Keosaian, an employee's conduct in unilaterally telephoning 

his employer's bank, representing himself as an attorney for a 

proposed credit union, telling the bank's attorney that his 

employer had engaged in misrepresent~tions, and threatening 

legal action_ went well beyond, the boundary of protected activity under the NLRA. In other words, the threatening call was 

grounds for discharge even if less offensive conduct by the 

employee in furtherance of engaging in protected activity 

would have been protected. 

Respondent concludes that on the facts of his case, 

Mr. Cox cannot even claim that the purpose of his phone call 

to Mr. Pleasants was aimed at furthering any protected activity. Rather, his conduct was disruptive, offensive, and in 

contravention of a direct order, and as such, was a permissible basis for discharge, particularly when viewed in the context of his poor work attitude and contempt for authority. 

Certainly the prior warnings not to engage in such conduct 

provide indication of the fact that the discharge of Mr. Cox 

was related to unprotected activity alone. See, Bradley v. 

Belva Coal Co., 4 FMSHRC 982 (Rev. Comm. 1982). Respondent 

further concludes that it is not the function of the trier of 

fact to pass upon the wisdom or fairness of the basis for the 

prior warning. It is the trier of fact's responsibility only 

to determine if the employee violated the warning and his 

action in doing so motivated his discharge. 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish Cl> that he 

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

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev 1 d on other grounds sub. nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 <3d Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510-2511 (November 1981), rev'd on other grounds sub. nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (0.C. C~l983). 

The operator may rebut the prima facie case by showing either 

508 
that no protected activity occurred or that the adverse action 

was in no way motivated by protected activity. If an operator 

cannot rebut the prima facie case in this manner it may nevertheless affirmatively defend by proving that (1) it was also 

motivated by the miner's unprotected activities alone. The 

operator bears the burden of proof with regard to the affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC 1935 

(1982). The ultimate burden of persuasion does not shift from 

th~ complainant. Robinette, supra. See also Baich v. FMSHRC, 

719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford 

Construction'company, No. 83-1566 D.C. Cir. (April 20, 1984) 

(specifically-approving the Commission's Pasula-Robinette test). 

See also NLRB v. Transportation Management Corporation, ~- U.S. , 76 L.ed.2d 667 (1983), where the Supreme Court approved the 

NLRB's virtually identical analysis for discrimination cases 

arising under the National Labor Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if 

the facts support a'reasonable inference of discriminatory 

intent. Secretary on behalf of Chacon v. Phelps Dodge Corp., 

3 FMSHRC 2508, 2510-11 (November 1981), rev'd on other 

grounds sub. nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 

(D.C. Cir. 1983); Sammons v. Mine Services Co., 6 FMSHRC 

1391, 1398-99 (June 1984). As the Eight Circuit analogously 

stated with regard to discimination cases arising under the 

National Labor Relations Act in NLRB v. Melrose Processing 

Co., 351 F.2d 693, 698 (8th Cir. 1965): 

It would indeed be the unusual case in 

which the.link between the discharge and the 

(protected] activity could be supplied exclusively by direct evidence. Intent is subjective and in many cases the discrimination can 

be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the [NLRB] is 

free to draw any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a 

mine operator against a complaining miner include the following: knowledge by the operator of the miner's protected 

activities; hostility towards the miner because of his protected activity; coincidence in time between the protected 

activity and the adverse action complained of; and disparate 

treatment of the complaining miner by the operator. 

In Bradley v. Belva Coal Company, 4 FMSijRC 982, 993 

(June 1982), the Commission stated as follows: 

509 
As we emphasized in Pasula, and recently 

re-emphasized in Chacon, the operator must 

prove that it would have disciplined the miner 

anyway for the unprotected activity alone. 

Ordinarily, an operator can attempt to demonstrate this by showing, for example, past 

discipline consistent with that meted out to 

the alleged discriminatee, the miner's unsatisfactory_ past work record, prior warnings to 

the miner, or personnel rules or practices 

forbidding the conduct in question. Our function is not to pass on the wisdom or fairness 

of such asserted business justifications, but 

rather only to determine whether they are credible and, if so, whether they would have motivated the particular operator as claimed. 

Mr. Cox's Protected Activity 

Section 105(c)(l) prohibits a mine operator from discharging a miner, or otherwise discriminating against him for 

making safety complaints to MSHA or to mine management. That 

section also prohibits a mine operator from discriminating 

against a miner, or otherwise interferring with any of his 

statutory rights under the Act. A miner is protected against 

any retaliatory action by the respondent because of any safety 

complaints he may have made to MSHA or to mine management. He 

is also protected against retaliation for exercising his section 103Cg) right to request an inspection of the mine by MSHA 

when he has reasonable grounds to believe that violations 

exist in the mine. Further, I believe that section 105(c)(l) 

is broad enough to protect a miner against retaliation for 

threatening to contact or inform mine enforcement agencies 

about perceived safety violations in the mine. 

It is clear that a miner has an absolute right to make 

safety complaints about mine conditions which he believes 

present a hazard to his health or well-being, and that under 

the Act, these complaints are protected activities which may 

not be the motivation by mine management for any adverse personnel action against him: Secretary of Labor ex rel. Fasula 

v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), 

rev'd on other grounds sub E..£!!!· Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981), and Secretary of 

Labor ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 

803 (April 1981). Safety complaints to mine management or to 

a section foreman constitutes protected activity, Baker v. 

Interior Board of Mine Operations Appeals, 595 F.2d 746 

510 
(D.C. Cir. 1978); Chacon, supra. However, the miner's safety 

complaints must be made with reasonable promptness and in 

good faith, and be communicated to mine management, MSHA 

ex rel. Michael J. Dunmire and James Estle v. Northern Coal 

Company, 4 FMSHRC 126 (February 1982); Miller v. FMSHRC, 

687 F.2d 194, 195-96 C7th Cir. 1982)~ Sammons v. Mine Services 

Co., 6 FMSHRC 1391 (June 1984). The fact that a mine operator 

addresses a miner's safety concerns or complaints, and which 

are later determined not constitute violations, or the fact 

that the complaining miner filed no safety complaints with any 

governmental' enforcement agencies, does not remove the Act's 

protection from any preceding complaints, Sammons v. Mine 

Services Company, supra, at 6 FMSHRC 1396-97. 

In this case, Mr. Cox claims that his safety complaints 

to mine management, coupled with his threats to go to MSHA or 

to other governmental "agencies" with his complaints, were 

the motivating factors which prompted Mr. Jackson to discharge 

him on May 13, 1985. While it is clear from the record that 

Mr. Cox never filed any safety complaints with MSHA or any 

state mining inspectors prior to his discharge, although he 

was advised to do during conversations with two MSHA inspectors, and that he never disclosed the contents of a safety 

journal he was keeping some 8 months before his discharge, 

Mr. Cox claims that shortly before his discharge he intended 

to file safety complaints with MSHA. He also claims that he 

had always intended to file such complaints but simply did not 

know the procedure for doing so. In order to address these 

issues, a review of Mr. Cox's purported safety complaints, and 

the alleged safety violations which he claims were rampant in 

the mine, all of which he claims served as a basis for his 

discharge, is in order. 

The evidence in this case establishes that miners were 

engaged in unsafe practices during the time that Mr. Cox was 

employed at the mine, and that mine management may have been 

aware of them. Some of these practices, if proved, would 

constitute violations of MSHA's mandatory safety standards, 

and possibly, state mining laws. For example, the admissions 

and testimony of several miners reflects that powder and caps 

were stored and kept on equipment rather than in the required 

storage magazines, ventilation curtains which were required 

to be in the down position to control the air flow and dust 

were kept rolled up and out of the way during mining, and 

respirable dust sampling devices may have been turned off or 

tampered with. However, the record also establishes that 

Mr. Cox himself freely engaged in some of these practices 

long before he was discharged. The record establishes that 

Mr. Cox operated his scoop with the ventilation curtains 

511 
rolled up, stored powder and caps on his roof-bolting machine, 

failed to always use his ATRS system, rode the belt out of the 

mine after being warned by Mr. Jackson not to do so, and was 

admonished at least once by his foreman not to bolt out of 

sequence or work under unsupported roof. 

Although Mr. Cox alluded to certain violations concerning 

the roof bolter ATRS system, no evidencp was forthcoming to 

establish any violations, or that mine management was involved 

in any unsafe practices concerning the ATRS. As a matter of 

fact, Mr. Cox conceded that the ATRS was used at his discretion, depending on the roof conditions, and I can only conclude that any failure to use that system when roof conditions 

may have warranted it was the result of Mr. Cox's personal 

decision not to use it. 

With regard to Mr. Cox's assertions concerning the preshift and onshift books, his allegations that they contained 

erroneous entries and did not accurately reflect mine violations, made for the first time at the hearing, are unsubstantiated. As a matter of fact, although he had a right to do 

so, Mr. Cox never reviewed those mine records prior to his 

discharge, and during the hearing he presented no credible 

evidence to support any violations for erroneous or illegal 

entries. 

In his original complaint, Mr. Cox asserted that 

Mr. Jackson "got rid of any miners who stood up for their 

safety rights." However, no evidence was forthcoming to even 

suggest that any miners were ever fired or disciplined by 

mine management for making safety complaints or "standing up 

for their safety rights." As a matter of fact, Mr. Jackson's 

testimony that Mr. Poole and Mr. Cox were the only two miners 

that he has ever fired at the mine stands unrebutted. 

With regard to Mr. Cox's allegations concerning unsafe 

roof conditions, Mr. Poole testified that roof falls occurred 

in virtually every entry during the period immediately prior 

to his discharge. However, Mr. Poole could offer nothing 

further to substantiate his statement, and he had no knowledge 

as to whether any of the falls were reported by mine management to MSHA or to any state officials. When asked to be 

specific about any unsafe roof conditions, Mr. Poole referred 

to a "double linear," and to an area near a rectifier in the 

No. 5 entry, which he believed had some loose rock. Mr. Cox 

could offer no specific information with respect to any roof 

violations, and his testimony, as well as that of Mr. Poole is 

general and nonspecific, and no evidence was forthcoming with 

512 
respect to any roof control violations or unsafe roof conditions either immediately prior to Mr. Cox's discharge or in 

the past. 

Practical+y all of the witnesses who testified in this 

case alluded to "bad top" or "adverse roof conditions" to one 

degree or another in the mine. However, I find no evidence 

of any consistently bad top or unsafe roof conditions, nor do 

I find any basis for concluding that the respondent totally 

ignored the roof conditions or received any violations or 

citations for roof control violations. All of the witnesses 

called by Mr. Cox confirmed that mine management addressed 

their roof concerns by either installing longer roof bolts, 

or constructing cribs and belt canopies in certain areas where 

roof falls had occurred. Cutting machine operator Wayne Lee 

confirmed that roof conditions were freely discussed among the 

miners and Mr. Jackson apd Mr. Blankenship, and that corrective action was always taken, albeit on one occasion, 2 or 

3 days passed before a roof condition was corrected. Mr. Lee 

indicated that in certain instances when bad top was encountered, Mr. Jackson ordered additional roof bolting and rebolting, and also instructed that more coal pillars be left to 

support the roof. Mr. Lee also confirmed that Mr. Blankenship 

discussed the roof-control plan with his crew. 

Roof bolter operator Ramsey confirmed that anytime he 

reported bad top conditions to his foreman, the foreman would 

instruct him to install longer bolts or cribs. On two occasions where there were roof falls on a belt, management took 

steps to support· the area with cribs and canopies, and 

instructed the men as to the proper roof control procedures. 

On several occasions when he was observed bolting out of 

sequence, both Mr. Jackson and foreman Blankenship instructed 

him to do it the proper way. 

Coal drill operator Aaron Bender testified that management never left adverse roof conditions unattended, and that 

his foreman always addressed his concerns when bad top was 

encountered by ordering the installation of longer bolts and 

cautioning him to watch the roof, and to rebolt any adverse 

roof areas. 

Scoop operator Steve Mullins testified that steps were 

taken to resecure any areas where falls had occurred, and 

that cribs, headers, and canopies were installed in fall 

areas to secure the roof. 

Mr. Poole himself conceded that management took steps to 

support the roof in "a lot of the areas," took extra steps to 

513 
insure supported roof "in a few places," and while he alleged 

that some of his complaints about adverse roof conditions 

were ignored, the only specific information he had to offer 

was that discussed earlier. 

The miners called by the respondent consistently testified that adverse roof conditions called to the attention of 

mine management were always addressed and corrective action ~as taken to support the roof. Respondent produced copies of 

reported roo~ falls which occurred in the mine on April 4, 

10, 19, and May 7, 1985, and none of them involved any injury 

or damage to equipment (Exhibits C-2(a), (b}, (c), Cd)). 

These falls were reported to MSHA, and they were investigated 

(exhibits C-2(e), (f), Cg)). However, there is no evidence 

that any citations or violations were ever issued, and this 

fact was corroborated by Mr. Robert Massey, the responsible 

company official who maintains the mine records. 

The only instance· of record of any failure by management 

to promptly address any adverse roof condition was supplied by 

electrician Roger Groves, who testified for Mr. Cox. 

Mr. Groves testified that in the 5 years he has worked in the 

mine, he had one occasion to complain about bad top where the 

roof had dropped in a roadway and was taking weight. After 

he called the condition to Mr. Jackson's attention, Mr. Groves 

stated that mining continued for about a week before corrective action was taken. However, Mr. Groves could supply no 

further details about this incident, and he confirmed that the 

roof was otherwise always bolted in accordance with the. 

roof-control plan, and that foreman Blankenship frequently 

discussed the plan with the miners. Mr. Groves also confirmed 

that he saw no evidence that management ever did anything to 

endanger miners under unsupported roof. 

The record establishes that at no time during his employment at the mine did Mr. Cox formally complain to any mine 

inspector about any purported unsafe conditions in the mine. 

Although he claimed he never had an opportunity to do so 

because someone from mine management was always present, 

Mr. Cox never availed himself of the opportunity to use the 

MSHA "hotline," even though he was aware that he could do so. 

Further, although he spoke with two MSHA inspectors prior to 

his discharge about his safety concerns and the manner in 

which Mr. Jackson was running the mine, at no time did Mr. Cox 

follow their suggestions that he file a safety complaint with 

the apppropriate MSHA office. 

Most of the miners who testified in this case confirmed 

that they often discussed mine conditions among themselves, 

514 
and that Mr. Cox was included in these group discussions. 

Eight miners testified that they either never heard Mr. Cox 

specifically or overtly complain to mine management, or ·they 

had no knowledge of, such complaints. None of them were aware 

of any safety complaints by Mr. Cox to state or Federal mine 

safety officials, and only one miner was aware that Mr. Cox 

was keeping a journal of purported mine violations. 

Although roof bolter Bobby Carpenter testified that he 

never heard ~r. Cox complain to management about safety, he 

acknowledged that in a prior statement given to MSHA during 

its investigation of Mr. Cox's complaint, he stated that 

Mr. Cox "did a lot of hollering" to Mr. Jackson and foreman 

Blankenship, and that Mr. Cox "was always complaining about a 

lot of things ••• to some extent a lot of it did have to do 

with health and safety." Mr. Carpenter also confirmed that 

Mr. Cox talked about "air at the face and the ventilation 

curtains being rolled up" Mr. Carpenter also confirmed that 

Mr. Cox also complained about how the mine was being managed, 

questioned management decisions not necessarily related to 

safety, and the fact that he did not like Saturday work. 

Mr. Cox testified that while he did complain to 

Mr. Jackson about his safety concerns, these complaints were 

"few" and "rare." Mr. Cox stated that most of his complaints 

were made to Mr. Blankenship, his foreman and part owner of 

the mine, and that the complaints concerned the roof taking 

weight in the No. 5 entry, and the fact that powder and caps 

were kept on equipment. Mr. Blankenship declined to testify 

as to whether Mr. cox or anyone else had ever made safety 

complaints to him. Mr. Jackson denied that miners other than 

Mr. Cox ever directly complained to him, and he confirmed 

that in the event complaints were made, he probably would not 

hear all of them. 

After careful consideration of all of the testimony and 

evidence adduced in this case, I conclude and find that 

Mr. Cox has established that he made safety complaints to 

mine management prior to his discharge on May 13, 1985. I 

believe Mr. Cox's assertions that he complained to his section foreman Blankenship about the bad top, the ventilation 

curtains being rolled up, and the practice of storing powder 

and caps on the equipment. I also believe that Mr. Cox has 

established that he made similar complaints when he spoke 

with two MSHA inspectors prior to his discharge. All of these 

complaints, albeit made informally during conversations with 

mine management and the inspectors, constitutes protected 

activity under section 105(c) of the Act, and the respondent 

515 
is prohibited from retaliating against Mr. Cox for making the 

complaints. 

With regard to Mr. Cox's alleged threats to go to MSHA 

or to any other mine enforcement agencies with his complaints 

prior to his discharge, there is a difference of opinion among 

the parties as to whether those threats were safety related, 

or whether they were made in connection with Mr. Jackson's 

discharge of Mr. Poole and the respondeAt 1 s Saturday work 

requirement policy. If Mr. Cox can establish that his threats 

were safety related, they were protected activity, and the 

respondent would be prohibited from retaliating against 

Mr. Cox for those threats. A discussion of these issues 

appears later in this decision. 

Mr. Jackson's Motivation for Mr. Cox's Discharge 

The evidence in this case establishes that the respondent 

operates a small, non-union mine, and it is undisputed that as 

its president, Mr. Jackson exercised practically autonomous 

authority to hire, fire, and discipline the work force, and 

that he fixed company policy with respect to work assignments 

and other personnel matters. The evidence also establishes 

that the only management official involved in the decision to 

discharge Mr. Cox was Mr. Jackson. Mr. Cox has not rebutted 

the fact that Mr. Jackson acted alone in making that decision, 

nor has he rebutted the fact that all employees were aware of 

the fact that notwithstanding the presence of other co-owners 

who worked the mine, Mr. Jackson was "the boss." 

The record establishes that both Mr. Jackson and Mr. Cox 

are men of limited educational backgrounds. Further, after 

viewing them on the stand during the course of the 3-days of 

hearing in this case, they impressed me as strong-willed personalities who do not shy away from making their respective 

points of view known to the court or to trial counsel who represented them. During the course of the hearing, Mr. Jackson 

was quick to personally respond to Mr. Cox's counsel's suggestion that he may have been under the influence of tranquilizers during his testimony, or that he was not telling the 

truth (Tr. 203-205). Likewise, Mr. Cox displayed a similar 

temperament in responding to some questions from the court, 

and during certain periods of cross-examination testing his 

credibility. In short, they impressed me as two individuals, 

who given the right conditions, are prone to anger, and would 

not hesitate to become argumentative in their efforts to persuade each other as to the correctness of their respective 

516 
positions. Under the circumstances, I find credible the testimony in this case that although Mr. Cox and Mr. Jackson generally got along with each other, they were both prone to losing 

their temper, and at times cursed each other and otherwise 

took out their anger and frustrations on each other. 

Although the record indicated some prior differences 

between Mr. Cox and Mr. Jackson, I cannot conclude that there 

is any evidence to support any overt hostility or animus by 

mine managem~nt towards Mr. Cox, or any disparate treatment of 

Mr. Cox because of his asserted safety concerns. To the contrary, I conclude that Mr. Jackson exhibited a high level of 

tolerance towards Mr. Poole and Mr. Cox. Mr. Jackson hired 

Mr. Cox when he was out of work, and he subsequently hired 

Mr. Cox's nephew Michael Poole after Mr. Cox asked Mr. Jackson 

to give him a job. The respondent advanced Mr. Poole money 

when he was in need after a death in his wife's family, and 

also sponsored Mr. Cox's daughter in a beauty contest with a 

~onetary donation. During a lay-off period, Mr. Jackson accommodated Mr. Cox through certain earnings statements to enable 

him to draw unemployment, and took him back after the lay-off. 

Mr. Jackson also allowed him to change shifts to meet a doctor's appointment. Although Saturday work was treated as a 

regularly scheduled work day by management, it nonetheless 

compensated miners for Saturday work by paying them premium 

pay. 

The record establishes that between February, 1984 and 

May, 1985, Mr. Poole had an absenteeism problem, and he was 

warned on several.occasions that he would be discharged if 

his attendance did not improve. Although both Mr. Poole and 

Mr. Cox were aware of the fact that occasional Saturday and 

overtime work were conditions of employment, they nonetheless 

voiced their displeasure over Saturday work, and made it 

known to management and their fellow miners that they did not 

like to work on Saturdays. Mr. Cox went further and advised 

several of his fellow miners that they did not have to work 

on Saturdays if they didn't want to. 

Although Mr. Jackson considered Mr. Cox to be a good 

worker, he had several encounters with him over certain work 

assignments, and had to speak to him on several occasions about 

certain unsafe practices. On one occasion, after warning 

Mr. Cox not to ride the belt out of the mine, Mr. Cox continued 

to ride the belt, and Mr. Jackson had to resort to shutting 

down the belt, forcing Mr. Cox to walk out of the mine. On 

other occasions, either Mr. Jackson or Mr. Blankenship warned 

Mr. Cox about working under unsupported roof and bolting out of 

sequence. On yet another occasion when Mr. Cox failed to show 

517 
up on a scheduled Saturday work day, and was taken off a roof 

bolter at the suggestion of an MSHA inspector because he had 

been involved in four roof bolt accidents, Mr. Cox became upset 

to the point where Mr. Jackson threatened to give him an 

"unsatisfactory work slip," only to recant and allowed him to 

return to work. As a matter of fact, after this incident, 

Mr. Cox was reassigned to work building stoppings. However, 

out of consideration for his back condition, Mr. Blankenship, 

whqm Mr. Cox considered his friend, interceded on his behalf 

and· transferred him to work on a scoop, and Mr. Jackson agreed 

to the transfer. 

In his original complaint filed with MSHA, Mr. Cox 

admitted that he and Mr. Jackson "had been at odds before 

because of the way the mine run." Bobby Carpenter testified 

that Mr. Cox "did a lot of hollering" to Mr. Jackson and to 

Mr. Blankenship, and that Mr. Cox complained about how the 

mine was being managed, qnd about management decisions that 

were unrelated to safety (Tr. 269). Foreman Blankenship testified that he considered Mr. Cox to be "a bully," and that 

Mr. Cox had at one time "threatened to whip me in front of 

the other men" (Tr. 157). Johnny Stafford testified that on 

one occasion, Mr. Cox "threatened to kick my butt," and 

challenged him to a fight (Tr. 292). Mr. Jackson testified 

that he warned Mr. Cox about his tardiness to work and his 

complaints about how Mr. Jackson was managing the mine. 

Mr. Jackson confirmed that Mr. Cox was the only employee who 

caused him problems, and that Mr. Cox's threats "to whip his 

ass" upset him. Mr. Jackson also confirmed that while he 

considered Mr. Cox to be a good worker, Mr. Cox had problems 

in taking orders, did things the way he wanted to, resented 

authority, and that after the incident in June 1984 when he 

was taken off the roof bolter, Mr. Cox resented doing what 

was asked of him, and resisted any Saturday work. Yet, given 

all of these prior incidents which I believe would give mine 

management reasonable pause to reflect as to whether or not 

Mr. Cox should continue in its employ, Mr. Jackson did not 

fire Mr. Cox. 

In his initial complaint filed with MSHA, Mr. Cox made a 

statement that Mr. Jackson "tried to fire me on June of 1984 

because of safety in the mines." Mr. Cox also asserted that 

miners have been laid off because of their safety complaints. 

However, during the hearing, Mr. cox admitted that 

Mr. Jackson's purported attempts to fire him amounted to 

Mr. Jackson's intent to give Mr. Cox an "unsatisfactory work" 

slip for not working on a scheduled Saturday, and because of 

Mr. Cox's protests after being taken off the roof bolter. 

Mr. Cox admitted that Mr. Jackson's proposed disciplinary 

action resulted from Mr. Cox's refusal ~o work on Saturday 

518 
because he had to bale hay. Mr. Cox further admitted during 

the hearing that he knew of no miner who was ever laid off 

and not called back to work because of any safety complaints 

made to management (Tr. 183-184). Thus, Mr. Cox's testimony 

during the hearing belies his prior complaint statements that 

Mr. Jackson threatened to fire him for safety reasons, and 

that miners have been laid off for making safety complaints, 

and raises a serious question as to his credibility. 

The afo+ementioned June 1984 incident took place approximately 8 months before Mr. Cox's discharge. It was at that 

time that Mr. Cox purportedly made the statement to 

Mr. Jackson that "we are going to run the mine the way the 

law says," and when foreman Blankenship purportedly told 

Mr. Cox "don't do anything to make me fire you." I cannot 

conclude that the purported statement by Mr. Cox was a threat 

to complain to MSHA, nor can I conclude that Mr. Blankenship's 

purported response amounted to a threat to fire Mr. Cox for 

any threats to go to MSHA. The June 1984 incident resulted 

from Mr. Cox's refusal to work on a Saturday when he had other 

things to do, and his removal from the roof bolter at the suggestion of an MSHA inspector because he was "accident prone." 

Mr. Cox was angry because he first believed Mr. Jackson took 

him off the bolter to punish him for not working on Saturday, 

and Mr. Jackson was angry because Mr. Cox would not work and 

because an MSHA inspector had to speak to him about his accident frequency rate involving Mr. Cox's work as a bolter. 

Although Mr. Jackson assigned Mr. Cox to work on stoppings, a 

job requiring much physical labor, he recanted after foreman 

Blankenship interceded on his behalf, and out of consideration 

for Mr. Cox's back condition, Mr. Jackson assigned him to a 

scoop. Given all of these circmnstances, I conclude that the 

June 1984 incident had nothing to do with Mr. Cox's safety 

concerns or complaints. 

After the June 1984 incident, Mr. Cox began keeping a 

journal in which he made entries concerning mine conditions 

which he believed were unsafe and in violation of the law. 

The journal was kept for only 2 weeks, beginning in mid-August 

through September 2, 1984, some 8 months before Mr. Cox's discharge. Mr. Cox testified that he kept the journal at home 

and intended to use it as "insurance" in the event of any 

future adverse action against him. However, Mr. Cox admitted 

that he never showed the journal to anyone, including the MSHA 

inspectors to whom he spoke, and there is absolutely no evidence that Mr. Jackson or anyone else in management ever knew 

about the journal. Although Mr. Cox testified that he mentioned the journal to Mr. Jackson's son, Kit, and that he 

"might have intended" for the son to tell his father, I doubt 

519 
that Mr. Cox would disclose his "insurance," which he kept at 

home, at a time when his job was not in jeopardy. Given the 

lack of any credible evidence or inference that Mr. Jackson 

knew about the journal or Mr. Cox's visits with the i~spectors, I conclude and find that these events played no role in 

Mr. Jackson's decision to discharge Mr. Cox. 

Mr. Cox admitted that he told some of his fellow miners 

that they did not have to work on Saturdays. Although he 

denied telliQg them that the company could do nothing about it 

because of the "labor board," Mr. Cox fulrther admitted that he 

told the miners "if you've got other things that you want to 

do, just don't come in to work" (Tr. 128-129). Donnie Crum 

testified that Mr. Cox told him that he was not going to work 

on Saturday, May 11, 1985, and that if the respondent farced 

him to, "the labor board would take care of it and the co~pany 

couldn't do anything about it" (Tr. 233). William Griffin 

testified that he worked a lot of overtime on Saturdays, and 

that Mr. cox called him a "company suck" for doing so (Tr. 

284). I find all of this testimony to be credible, and it 

lends credence and support to Mr. Jackson's assertions that 

Mr. Cox was trying to undermine his authority with respect to 

his policy concerning Saturday work requirements. 

During his direct testimony, Mr. Cox confirmed that 

Mr. Jackson told him on Saturday, May 11, 1985, that he was 

tired of Mr. Poole "laying off" the job, and that Mr. Cox was 

to inform Mr. Poole to come in and "pick up his time." 

Mr. Cox also confirmed that he placed the call to Mr. Pleasants 

in an attempt to get Mr. Poole's job back. At that point in 

time, I am convinced that Mr. Cox knew that Mr. Jackson had 

discharged Mr. Poole because of his absenteeism, and I so find. 

On cross-examination, however, Mr. Cox stated that he was not 

under the impression that Mr. Jackson "was fed up" with 

Mr. Poole over his absences, and he believed that Mr. Jackson 

found an opportunity to get rid of Mr. Poole because of his 

safety complaints. I find Mr. Cox's impression of his conversations with Mr. Jackson to be contradictory, and find nothing in 

the record to support Mr. cox's opinion that Mr. Poole was 

fired for any reason other than an absenteeism problem for 

which he was warned many times by Mr. Jackson. 

Mr. Cox admitted that he disagreed with Mr. Jackson's 

decision to fire his nephew, and that he told him so during 

their conversation on Saturday, May 11, 1985. During that 

conversation, Mr. Cox questioned Mr. Jackson's treatment of 

Mr. Poole, and made some comments about the attendance record 

of Mr. Jackson's son, Kit. This provoked Mr. Jackson to the 

point where he informed Mr. Cox that if he were unhappy with 

520 
his decision to fire his nephew, he too could "pick up his 

time." At that point in time, I believe one could reasonably 

conclude that Mr. Jackson was ln a mood to fire Mr. Cox along 

with his nephew, subject only to Mr. Cox's following through 

with Mr. Jackson's comment that he could "pick up his time." 

I have carefully reviewed all of Mr. Cox's statements 

made to MSHA after his discharge and during the investigation 

of his complaint, and nowhere do I find any statements by 

Mr. Cox that.he ever threatened to go to the "Labor Board" or 

any other mine enforcement agencies, that he ever intended to 

do so, or that he ever told anyone in mine management about 

any such purported threats. Mr. Poole's prior statements 

likewise contain no such information. The only prior statement by Mr. Cox raising any inference of a threat to go to 

MSHA is his assertion that "during April 1985" he told 

Mr. Blankenship that he was going to speak to an MSHA inspector on his next visit to the mine about the roof conditions. 

However, there is no ev~dence that Mr. Jackson knew about 

this statement, and I cannot conclude that it had anything to 

do with Mr. Cox's discharge. 

At page four of his brief, Mr. Cox's counsel finds it 

"significant" that in his deposition of November 4, 1986, 

Mr. Jackson implied that Mr. Cox had threatened 20 times to 

go to MSHA. I have carefully reviewed Mr. Jackson's testimony in that deposition and cannot conclude or infer that 

Mr. Cox threatened to go to MSHA. Mr. Jackson testified that 

Mr. Cox threatened to go to the "Labor Board" about his discharge of Mr. Poole, and that Mr. Cox told him that he could 

not require anyone to work on Saturday if they did not want 

to, and that he ·could not fire Mr. Poole for refusing to work 

on Saturday. Mr. Jackson further testified that it was in 

this context that Mr. Cox threatened that the "Labor Board 

will eat me up," and Mr. Jackson further testified that he 

had no idea who Mr. Cox was talking about when he used the 

term "Labor Board" (Tr. 35-38). I find Mr. Jackson's testimony to be credible, and I conclude that Mr. Cox's prior 

threats to go to the "Labor Board" concerned matters unrelated 

to any safety concerns on his part. 

I find that the respondent's policy prohibiting its 

employees from contacting the Brooks Run Coal Company on managerial decisions and policies made by the respondent was well 

known among the workforce, including Mr. Cox. Mr. Jackson had 

previously warned the workforce that any further contacts with 

Brooks Run would be viewed by him as an effort to question or 

undermine his operational authority to run his own mine and 

would be considered a dischargeable offense. Mr. Cox admitted 

521 
that at the time he placed the call to Mr. Pleasants on 

May 11, 1985, he did not identify himself to Mr. Pleasants out 

of fear that his job would be jeopardized for placing the call 

(Tr. 159). This supports my conclusion that Mr. Cox was aware 

of the policy and that he was concerned that his violation of 

this policy could cost him his job. 

The crux of Mr. Cox's case lies in the telephone call he 

placed to Mr. Pleasants on Saturday, May 11, 1985, after a 

heated telephone exchange with Mr. Jackson over the discharge 

ofi.Mr. Poole: At that time, Mr. Cox said nothing to 

Mr. Jackson about going to MSHA or "to the agencies" about 

any of his complaints, or about Mr. Jackson's discharge of 

Mr. Poole. Mr. Jackson came close to discharging Mr. Cox at 

that point in time, but did not do so. However, Mr. Jackson 

told Mr. Cox in no uncertain terms that if he (Cox) were not 

satisfied with his decision to fire Mr. Poole, that he too 

could "pick up his time." Had Mr. Cox taken up the offer and 11 picked up his ~ime," I believe one could reasonably conclude 

that Mr. Jackson 'also fired Mr. Cox for questioning his decision to fire Mr. Poole, and for questioning his Saturday work 

policy. 

Mr. Cox's assertions that he and Mr. Poole had always 

intended to go to MSHA and to other appropriate mine enforcement agencies are rejected as self-serving declarations made 

by Mr. cox after he found himself out of a job. When called 

in rebuttal at the hearing after testifying on direct, and 

after Mr. Cox's testimony, Mr. Poole asserted that he and 

Mr. Cox had always intended to go to the 11 labor board or the 

governmental agencies" regardless of whether or not they were 

discharged. When asked whether he would have gone to MSHA if 

Mr. Poole were given his job back, Mr. Cox relied "not right 

at that time" (Tr. 161). This raises serious doubts in my 

mind that but for his discharge, Mr. Cox ever intended to 

file any complaints with MSHA or anyone else. 

Mr. Cox admitted that he placed the call to Mr. Pleasants 

in order to attempt to influence him to intercede with 

Mr. Jackson and save his nephew's job. Mr. Cox also admitted 

that he told Mr. Pleasants that there would be trouble at his 

mine if Mr. Poole were discharged (Tr. 158). Mr. Poole conceded that Mr. Cox placed the call to Mr. Pleasants in an 

effort to convince Mr. Pleasants to intercede with Mr. Jackson 

over his discharge. Mr. Poole confirmed that Mr. Cox told 

Mr. Pleasants that there would be trouble at his mine if something was not done about getting Mr. Poole's job back (Tr. 

282-283). 

522 
Mr. Pleasants expressed serious concerns over Mr. Cox's 

threats of trouble at his mine, as well as the other mines 

which supplied coal to Brooks Run, and his concerns were over 

what he viewed to be threats of labor trouble by Mr. Cox over 

the discharge of Mr,. Poole and the respondent's Saturday work 

policy. Although Mr. Cox and Mr. Poole denied that Mr. Cox 

made any statements to Mr. Pleasants whch may have led 

Mr. Pleasants to conclude that Mr. Cox was threatening a 

possible work stoppage at the mines supplying coal to Brooks 

Run, I simply do not believe them. Given the background of 

Mr. Cox's reluctance to work on Saturdays, his prior threats 

to take that issue to the "labor board," and his prior corroborated statements to other miners that they did not have to 

work on Saturdays and that management could do nothing to 

force them to work, I find Mr. Pleasant's version of his conversation with Mr. Cox to be credible. 

I conclude that Mr. Cox's telephone call to Mr. Pleasants 

had nothing to do with any safety concerns on the part of 

Mr. Cox or Mr. Poole. The call was clearly made in an attempt 

to influence Mr. Pleasants to intercede on behalf of Mr. Poole 

and to pressure Mr. Jackson to rescind his discharge of 

Mr. Poole. Mr. Cox's threats of trouble at the mines which 

supplied coal to Brooks Run, and his threats to "go to the 

agencies" if Mr. Poole were not given his job back, were not 

made by Mr. Cox out of any safety concern. I conclude and 

find that Mr. Cox's telephone contact with Mr. Pleasants, and 

his threats in connection with Mr. Poole's discharge and the 

respondent's Saturday work policy, were clearly in violation 

of Mr. Jackson's policy that no one was to contact Brooks Run 

questioning managerial policy decisions made by the respondent, and constituted unprotected activity for which Mr. Cox 

could be justifiably dismissed. 

Mr. Pleasants testified that when he advised Mr. Jackson 

of Mr. Cox's telephone call, Mr. Jackson confirmed that he had 

fired Mr. Poole because of his absenteeism. When Mr. Pleasants 

advised Mr. Jackson that the caller had also complained that 

the respondent's Saturday work policy was interferring with his 

little league coaching duties, Mr. Jackson immediately recognized that the caller had been Mr. Cox and stated to 

Mr. Pleasants that "I discharged one man, but now there will be 

two." Mr. Jackson explained to Mr. Pleasants that he was discharging Mr. Cox for "going over his head" with his complaints 

to Mr. Pleasants. I believe that Mr. Jackson made the decision 

to discharge Mr. Cox as soon as he learned that it was Mr. Cox 

who had placed the call to Mr. Pleasants, and that he did so 

because of that contact, and not because of any threats by 

Mr. Cox to "go to the agencies" with any safety complaints. I 

523 
believe that Mr. Jackson was fed up wi'th Mr. Cox and Mr. Poole, 

and that Mr. Cox's call to Mr. Pleasants, which came shortly 

after Mr. Jackson's call to Mr. Cox in which they exchanged 

heated words over Mr. Poole's discharge, and the Saturday work 

policy, was simply too much for Mr. Jackson to tolerate, and he 

reacted swiftly by making the decision to fire Mr. Cox. 

The complainant's arguments that Mr. Jackson decided to 

fire Mr. Cox only after being informed by Mr. Pleasants of 

Mr. Cox's threats "to go to the agencies" with his complaints 

of unsafe practices in the respondent's mine are rejected. I 

have reviewed Mr. Pleasants prior memorandum of June 18, 1985, 

documenting his telephone conversation with Mr. Cox, and find 

nothing inconsistent with Mr. Pleasants' testimony during the 

hearing. The memorandum is not a verbatim record of the conversation in question, and it was prepared over a month after 

the call. I believe the memorandum is a simply record of the 

call, and I cannot conclude that it supports any inference 

that Mr. Jackson decided to fire Mr. Cox after being advised 

of Mr. cox's threats "to go to the agencies." Given 

Mr. Jackson's frustration with Mr. Cox and Mr. Poole because 

of their failure to work on Saturday, Mr. Jackson's prior 

exchange with Mr. Cox over the discharge of Mr. Poole, and 

Mr. Cox's telephone contact with Mr. Pleasants, I believe 

Mr. Jackson's testimony that Mr. Cox's threats to go to the 

agencies or to MSHA had nothing to do with his decision to 

fire Mr. cox. 

I find Mr. Jackson's version as to why he discharged 

Mr. Cox to be credible. I further conclude and find that 

Mr. Jackson was justified in discharging Mr. Cox for 

attempting to undermine and interfere with his authority with 

respect to the Saturday work policy, his decision to 

discharge Mr. Poole, and Mr. Cox's violation of company policy 

with respect to contacts with the Brooks Run Coal Company. I 

further conclude and find that each of these occurrences, 

taken as a whole, constituted "unsatisfactory service," and 

support Mr. Cox's discharge. 

CONCLUSION AND ORDER 

In view of the foregoing findings and conclusions, and 

after careful consideration of all of the credible evidence 

and testimony adduced in this case, I conclude and find that 

the complainant has iled to establish a prima facie case of 

524 
discrimination on the part of the respondent. Accordingly, 

the complaint IS DISMISSED, and the complainant's claims for 

relief ARE DENIED. 

Distribution': 

~ /~ ,d'.7 ~ ·~- ,,,. 9,~~Kout ~~ 1/1' ·" 

as ~~ 

~dministrative Law Judge 

Paul R. Stone, Esq., 239 Peoples Building, P.O. Box 2828, 

Charleston, WV 25330 (Certified Mail) 

William C. Garrett, Esq., Garrett, Garrett & Van Nostrand, 

P.O. Box 786, Webster Springs, WV 26288 {Certified Mail) 

Laura E. Beverage, Esq., Jackson, Kelly, Holt & O'Farrell, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail} 

/fb 

525 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 9 1987 

HARLAN L. THURMAN, 

Complainant . . DISCRIMINATION PROCEEDING 

v. Docket No. SE 86-121-D 

QUEEN ANNE COAL COMPANY, 

Respondent 

BARB CE 86-51 

CORRECTED DECISION 

Appearances: James c. Shastid, Esq., K.noxville, Tennessee, for 

Complainant1 

Charles A. Wagner, Esq., Knoxville, Tennessee, for 

Respondent 

Before: Judge Weisberger 

Statement of the Case 

Complainant filed a complaint with the Commission under 

Section 105(c) of the Federal Mine Safety and Health Act of 1977 

30 u.s.c. § 815Cc> (the Act) alleging that he was illegally discriminated against in that, in essence, he was forced to quit his 

job with Respondent due to the danger to him as a consequence of 

harassment from co-workers and his foreman. 

Pursuant to notice of September 16, 1986, the case was set 

for hearing in Knoxville, Tennessee on November 4, 1986. On 

October 22, 1986, Respondent filed a Motion for Continuance. on 

October 29, 1986, a Order was issued granting the Motion for 

Continuance and scheduling the case for hearing on December 2, 

1986. On November 24, 1986, Respondent filed a Motion to Dismiss 

on the ground that Cl) the Complaint was not timely filed, and 

(2) the Complaint failed to state a violation of 30 u.s.c. 

§ 815(c)(l)o At the hearing on December 2, 1986 an oral argument 

was presented by the Parties as to Respondent's Motion. After 

listening to the arguments, I denied the Motion to Dismiss that 

was based upon the ground that the complaint was not timely filed. 

I reserved decision on the Motion to Dismiss which was made on 

the grounds that the complaint failed to.state a violation of 

Section 815(c)(l), supra. 

526 
The case was subsequently heard in Knoxville, Tennessee on 

December 2, 1986. At the hearing complainant was represented by 

James c. Shastid, and Respondent was represented by Charles A. 

Wagner, III. Harlan Thurman and Deborah Thurman testified for 

Complainant. Robert Swisher, Dempsey Lindsey, Crawford Harness, 

Jeffry Mason, and Dewayne Mason testified for Respondent. On 

December 9, 1986, a letter was received from Complainant in which 

he advised that·Attorney James Shastid was no longer representing 

him. This was confirmed in a letter from Mr. Shastid received on 

December 12, 1986. Subsequent to the hearing, the Parties, on 

February 2, 1987 filed posthearing briefs. On February 17, 1987, 

a reply brief was filed by Complainant. On the same date a 

letter was received from Counsel for Respondent who, in essence, 

waived his right to file a Reply Brief. 

Findings of Fact 

The Complainant, Harlan L. Thurman, had been employed as a 

miner by the Respondent, Queen Anne Coal Company, for 3 years 

prior to March 1986. During that time, he worked the night shift 

with the same personnel. · 

The Complainant testified that in the 3 years that he worked 

for the Respondent there was no outside man. Robert Swisher, the 

President, and one of the owners of Respondent testified that 

there has not been any outside man at Respondent's mine for 

approximately 9 or 10 years. Thurman, in essence, testified that 

during the 3 years he worked for Respondent, his co-workers and 

foreman continuously harassed him. He said that they put urine 

in his tea, that his clothes were tied up, that dishwashing 

liquid was poured over his clothes, that there was grease placed 

on the seat of his vehicle, there were logs placed under the 

vehicle's wheels, and a headlight was broken on his vehicle. He 

also said that in the summer of 1985 he was sent to work alone by 

his foreman Crawford Harness. It also was Thurman's testimony 

that when he started to work for Respondent there was an incident 

when only four men were on the shift and a miner was being 

operated. In the summer of 1985 Complainant made a complaint to 

Dempsey Lindsey, the Respondent's superintendent, that Crawford 

had cursed him over a mistake in transporting certain supplies. 

Complainant also made a complaint to Lindsey, in the summer of 

1985, that the men had left him alone when he had to get a scoop 

cart out of the mud. 

Complainant's work shift usually commenced at 4:00 p.m. and 

concluded at 1:30 a.m. On March 6, 1986, the Complainant started 

to work on the shift at 4:30 p.m. and left early at 10:30 p.m., 

in essence, because he felt that the harassment from his foreman 

and co-worker, coupled with the lack of an outside man, created a 

527 
dangerous condition to him underground. Prior to March 6, 1986, 

the Complainant had not made any safety complaints to MSHA 

Officials, or company management officials. 

On March 7, 1986, the Complainant went to see Emroy Haggard, 

the bookkeeper and part-owner of the Respondent, and told him, in 

essence, that Respondent's employees were taking coal. He also 

"explained to him what had been going on and some of the stuff that 

had been happening". (Tr. 32). Haggard theq set up a meeting for 

the Complainant with Swisher the f 01·1owing Monday. At that meeting 

Complainant indicated that the men on the shift were harassing him. 

Thurman had told him that at one time that Crawford stuck his fist 

in his face and threatened to whip him. Swisher also said that 

Thurman told him that the men on the shift were: stealing company 

coal, had broken the headlight on his truck while it was on 

Respondent's site, had urinated in his food, and had locked him 

inside the gate. Thurman also told Swisher that there was no 

outside man. He also told Swisher that Harness does not have any 

education. Thurman had also told hi~ that when he first started to 

work for Respondent his shift ran a miner with only four people on 

the shift. 

Swisher than convened a meeting the following Thursday with 

himself, Thurman and the men on the shift along with Foreman 

Dempsey. At that meeting, in essence, Complainant's complaints 

were reiterated, then Swisher told the men on the shift that he 

would not tolerate any horseplay. According to Thurman, Swisher 

told him then to go back to work. Swisher also asked Lindsey to 

find Thurman ·a job on the day shift. 

After the meeting Thurman intended to return to work. However, shortly after he left, Thurman returned to the office and 

told Dempsey and Swisher that, in essence, that he could no 

longer work underground with the men on the shift. Thurman gave 

his reason that he feared for his safety because Dempsey and 

Harness were "like they were a clique". (Tr. 107). Swisher told 

Lindsey to try to get Thurman a job on the day shift. However, 

Lindsey has testified that in general it is difficult to get men 

from the day shift to transfer to the night shift, and that in 

this case none of the day shift men wanted to trade with Thurman 

and work on the nigh~ shift. Lindsey also talked to the president and manager of another mining company, where Thurman had 

previously worked, with regard to obtaining a job for Thurman. 

Thurman did not return to work after he left early on March 6, 

and subsequently obtained other nonmining employment. 

Issues 

1. Whether the Complainant has established that he was 

engaged in an activity protected by the Act. 

528 
2. If so, whether the Complainant suffered adverse action 

as the result of the protected activity. 

3. If so~ to what relief is he entitled. 

Conclusions of Law 

Complainant and Respondent are protected by and subject to 

the provisions of the Act, Complainant as a miner and the 

Repondent as the operator. 

The Commission, in a recent decision, Goff v. Youghiogheny 

& Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated 

the legal standards to be applied in a case where a miner has 

alleged acts of discrimination. The Commission, Goff, supra, at 

1863, stated as follows: ~~ 

A complaining miner establishes ,a prima facie case of 

prohibited discrimination under the Mine Act by proving 

that he engaged in protected activity and that the 

adverse action complained of was motivated in any part 

by that activity. Pasula, 2 FMSHRC at 2797-2800; 

Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-18 (April 1981). The operator 

may rebut the prima facie case by showing either that 

no protected activity occurred or that the adverse 

action was not motivated in any part by protected activity. Robinette, 3 FMSHRC at 818 n. 20. See also 

Donovan v. S·tafford Constr. 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-Robinette test). 

Protected Activity 

Thurman's complaints to Swisher on or about March 10, 1986, 

with regard to the lack of an outside man, and complaints the 

following Thursday that there was an incident whereby a miner was 

operated with only four men in the section, both contained allegations of safety violations and as such are considered protected 

activities. The balance of the complaints made to Swisher, 

Haggard, and Lindsey, all had to do with allegations of harassment by Thurman's co-employees, were not protected activities 

(see Jimmy Sizemore and David Rife v. Dollar Branch Coal Company, 

5 FMSHRC 1251 (July 1983)). In the same way, complaints to 

Swisher and Haggard with regard to co-workers taking Respondent's 

coal, are not safety related and thus are not protected 

activities. 

529 
Adverse Action 

Complainant, in essence, complains of four adverse actions 

by Respondent: 

1. Swisher told Thurman to go back to work on about 

March 13, 1986, after Swisher had heard Thurman's various complaints. 

1. The fact that Respondent had not found a job for Thurman 

on its day shift. 

3. The fact that the Respondent had not cured its alleged 

violation of not having an outside man. 

4. Swisher threatened Thurman by telling him about a former 

employee of Respondent who was killed when a tank that he had put 

a torch to had blown up. 

There is no evidence that Respondent took any adverse action 

against Thurman which was motivated in any part by safety complaints. Indeed, I find that although Thurman at the hearing 

complained of unsafe practices such as not having an outside man 

and operating a miner with only four men, there is no evidence 

that Thurman made any complaint about these conditions to any 

government official, or agent of Respondent prior to the date 

that he left work, i.e., March 6, 1986. Thurman alleges that 

after he made various complaints to Swisher on or about March 10 

and March 13, 1986, Swisher told him to go back to work. I hold 

that Swisher's comments to Complainant, in indicating on or about 

March 10, 1986, that Thurman should go back to work, did not constitute any adverse action. Surely, having Thurman return to his 

usual job can not be found to be an adverse action. Similarly, 

although Thurman might reasonably have felt that for him to 

return to his section, where he was subject to harassment, would 

be a danger to him,, this can not constitute any type of constructive discharge. In this connection, it is manifest that the Act 

does not contemplate protecting a miner from harassment from a 

co-worker, when that harassment is not motivated by the miner's 

safety complaints. In this case, there is no evidence that 

harassments from Thurman's co-workers were motivated in any part 

by Thurman's complaints about not having an outside man. Indeed, 

all evidence indicates that Thurman's complaints in this regard 

occurred subsequent to the date that he left work. Also there is 

no evidence that the harassment from co-workers were abetted or 

encourged by management. Indeed, Swisher's uncontradicted testimony was to the effect that at the meeting with Thurman's 

co-workers on March 6, 1986, after Thurman had complained of 

harassment, he (Swisher) told them to stop engaging in horseplay. 

530 
Also, it is clear that Respondent did not commit any adverse 

action in not finding Thurman a job on the day shift. Not only 

is there no evidence that this was not in any way motivated by 

Thurman's protected activities but to the contrary, the only 

evidence in record, testimony by Dempsey, is that none of the day 

shift wanted to switch shifts with Thurman. To require Respondent 

to create a position for Thurman on the day shift, would unduely 

interfere with its business decision in managing its mine. 

Thurman might have felt threatened by hearing Swisher 

telling him of· a former miner, who had some type of emotional 

problem, who was killed in an accident at the mine. However, 

there was not evidence that Swisher, in telling of this incident, 

had any intent to threaten Thurman. " Nor is there any evidence 

that his telling of this incident in ~ny way was motivated by 

Thurman's protected activities. Indeed, Swisher testified that 

he told of the incident in order t9 relate his care for his 

employeeso 

Complainant appears to· be arguing that inasmuch as 

Respondent continues to operate without an outside man at the 

mine, that this is an adverse action against him. It is clear 

that although failure to provide a miner with a safe work place 

might be a violation under the Act but that "such a failure does 

not without more consititute discrimination." (Lund v. Anamax 

Mining Company 4 FMSHRC 249, 251 (February 1982)-)-.~ 

Therefore, based upon the above I conclude that Thurman 

failed to establish the second element of a prima facie case 

i.e., that he did not show that there was an adverse action by 

Respondent motivated by in any part by safety complaints. I 

conclude that accordingly Complainant has not established that he 

was discriminated against under Section 105{c) of the Act. 

Order 

Based upon the above Findings of Fact and Conclusions of 

Law, it is ORDERED that this proceeding be DISMISSED. As such, 

Respondent's Motion to Dismiss is GRANTED. 

~is Administrative be~ Law Judge 

531 
Distribution: 

Mr. Harlan L. Thurman, P. O. Box 561, Norris, TN 37828 (Certified 

Mail) 

Charles A. Wagner, Esq., 1801 Plaza Tower, P. o. Box 1308, 

Knoxville, TN 37901-1308 (Certified Mail) 

Robert Swisher, Queen Anne Coal Company, ' P. O. Box 498, 

Lake City, TN 37769 (Certified Mail) 

dcp 

532 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 111987 

JIM WALTER RESOURCES, INC., 

Contestant 

. 

. 

. . CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. SE 86-139-R 

Citation No. 2810267; 9/22/86 

No. 5 Mine 

DECISION 

Appearances: R. Stanley Morrow, Esq., Birmingham, Alabama, 

for Contestant~ 

William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, 

for Respondent. 

Before: Judge Melick 

This case is before me under section 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et. ~, the 11 Act 11 to challenge Citation No. 2810267 issued 

to Jim Walter Resources Inc. (Jim Walter) by the Secretary of 

Labor on September 22, 1986. 

The citation as amended at hearing charges a 11 signi 

icant and substantial" violation of the standard at 30 C.F.R. 

§ 75.309(a) and reads as follows:~/ 

Methane from 1.1% to 1.2% was detected with a G-70 

methane detector, in the main return aircourse of 

the No. 3, 5, 6 and 7 sections from spad No. 2821 

outby to spad No. 2174, the overcast of No. 5 and 

No. 7 section track. Also the main return aircourses from spad No. 2242 extending inby to spad 

No. 2827 where the No. 5 section t return joins 

the left return of the No. 7 section. Also extending up the No. 5 section t return from spad 

No. 2827 to the working face. Bottle samples were 

taken to substantiate this citation. 

l/As further amended at hearing without objection, the citation also charges a violation of the regulatory standard at 

30 C.F.R. § 75.316. 

533 
The regulatory standard at 30 C.F.R. § 75.309(a) 

reads,as relevant hereto, as follows: "if, when tested, a 

split of air returning from any working section contains 1.0 

volume per centum or more of methane, changes or adjustments 

shall be made at once in the ventilation in the mine so that 

such returning air shall contain less than 1.0 volume per 

centum of methane." 

The mere discovery of l~O volume per centum or more of 

methane in a split of air returning from a working section is 

clearly not sufficient to constitute a violation of this part 

of the standard. See Secretary v. Mid Continent Coal and 

Coke Company, 1 IBMA 250 (1972). The essence of the violation is the failure to make "changes or adjustments ••• at 

once in the ventilation in the mine so that such returning 

air shall contain less than 1.0 volume per centum of methane." 

In this case it is not disputed that methane gas in 

excess of 1.0 volume per centum was found by Carl Early, an 

inspector for the Federal Mine Safety and Health Administration (MSHA) on September 22, 1986. While the citation shows 

on its face that it was issued by Inspector Early at 

7:00 a.m. on September 22, 1986, there is no statement or 

evidence as to the time lapse between the discovery of the 

cited methane readings and the issuance of the citation or 

regarding what, if any, efforts were made to correct the 

problem. Indeed Inspector Early testified that he did not 

know when the operator began action to correct the cited 

condition but conceded that he was told by Ray Hutchins, the 

Mine Foreman upon notification that the methane readings were 

in excess of 1% and the citation at bar was being issued, 

that he "would start immediate action to improve ventilation." 

Early also acknowleged that "mine management" told him that 

they had idled another section and erected an equalizing 

overcast.~/ 

MSHA Supervisory Inspector Donald Mize accompanied Early 

on his September 22, inspection. Mize could not recall 

whether he had asked the foreman whether or not he was 

planning on taking any other action to improve the ventilation. Mize told Early to issue the subject citation because 

he "thought" mine management was not making progress toward 

correcting the problem. 

~I Although the Secretary alleged at hearing that the mine 

operator also failed to make "changes or adjustments ••• at 

once 11 following the discovery of methane in excess of 1% on 

the Thursday, Friday and Sunday preceding the issuance of the 

citation at bar those alleged violations were not set forth 

in the citation and accordingly are not before me. In any 

event the Secretary produced no evidence to show that the 

methane had not been reduced to below 1% subsequent to those 

excess readings on the preceding Thursday, Friday and Sunday. 

534 
According to both Thomas McNider, Deputy Manager for 

ventilation, and Ronny Ganey, a ventilation engineer, work to 

improve ventilation had been ongoing before and after the 

instant citation was issued. More specifically Ganey 

testified that when he arrived at the mine at 7:00 a.m. on 

September 22, 1986, he found that Foreman Jerald Thomas had 

been working to correct the ventilation for that entire night. 

The problem was eventually corrected by placing overcasts in 

service, correcting leaky line curtains, erecting a check 

curtain and patching brattices. 

Within this framework of evidence I cannot find that the 

Secretary has sustained his burden of proving that the 

operator failed to make "changes or adjustments ••• at once 

in the ventilation in the mine so that such returning air 

shall contain less than 1.0% volume per centum of methane," 

upon the discovery of methane at 7:00 a.m. on September 22, 

1986 in excess of that concentration. The credible evidence 

shows that the citation was issued immediately upon the 

discovery of the violative methane and Respondent was given 

no opportunity to make the requisite changes or adjustments. 

Accordingly the citation was issued prematurely and cannot be 

sustained for the alleged violation of the standard at 30 

C.F.R. § 309Ca). 

The Secretary also maintains in its amended citation 

however that the facts alleged in the original citation also 

constitute a separate violation of the operator's Ventilation 

System and Dust Control Plan (Ventilation Plan) under the 

standard at 30 C.F.R § 75.316. It is not disputed that the 

alleged violation is based upon the last paragraph of page 2 

of the Secretary's cover letter approving the operator's 

Ventilation Plan. Those provision require that "when methane 

content in a main return exceeds 1.0 volume per centum of 

methane, mine management shall submit a plan detailing 

additional evaluation procedures and safeguards which will 

be utilized to insure safety." 

Based on the factual allegations in the citation that 

the methane content in the main return air course exceeded 

1.0 volume per centum of methane and the notation that the 

citation was issued at 7:00 p.m. on September 22, 1986, it is 

apparent that under the noted provisions mine management was 

then required to "submit a plan detailing additional evaluation procedures and safeguards which will be utilized to 

insure safety." 

The evidence in this case shows that a plan was indeed 

submitted to MSHA on the following day i-0e., Septmeber 23, 

1986. That plan was returned to the mine-operator for 

535 
"necessary correction(s)" by letter da~ed September 24, 1986 

(Exhibit G-8). In an attachment to that letter MSHA specified 

the "corrections" that the operator should address in any 

further submissions. By letter dated September 26, 1986, and 

received by MSHA on September 30, 1986, the operator again 

submitted a "plan" but, it appears did not specifically 

address the corrections deemed "necessary" by MSHA. 

There is no evidence however that at the time the mine 

operator wrote its letter of September 3b, that it then had 

received the MSHA letter dated September 24. The amended 

citation charging the instant violation was issued October 7, 

1986. The record shows that on October 15, 1986, after the 

issuance of that amended citation, MSHA responded to the mine 

operator specifying, for the first time, certain detailed. 

requirements that the operator "shall include, [in its plan] 

but [was] not necessarily limited to." 

Since no time is specified within which "mine management 

shall submit a plan" that time must been deemed to be a 

"reasonable time." Under the circumstances of this case I do 

not find that a reasonable time was provided by the Secretary 

between the notification to mine management by the issuance 

of the citation on September 22, 1986, of methane in excess 

of 1%, and the failure to submit a.plan meeting the Secretary's approval. 

The evidence shows that mine management submitted what 

may be copstrued to be a "plan" on September 23, 1986, the 

day after the citation was issued. It followed with another 

submission on September 26, 1986. Although these submissions 

were not "approved" by MSHA it is apparent that the specific 

reasons for disapproval (or the specific changes needed in 

these submissions to obtain MSHA approval) were not communicated to the mine operator until MSHA sent its letter dated 

October 15, 1986, some 8 days after it had issued its amended 

citation. Under these circumstances I do not believe the 

mine operator was given a reasonable time to have its plan 

approved. The operator must be given reasonable time to 

develop and submit a plan acceptable to the Secretary before 

a citation can properly be issued under the cited provisions" 

Accordingly the violation is not proven and the allegations 

in this regard must be dismissed. 

Since I have found no violation in regard to matters 

alleged by the Secretary in the citation at bar there is no 

need to decide whether or not the Secretary had the legal 

authority in the first instance to require the mine operator 

to comply with the provisions set forth in the last paragraph 

of page 2 of his cover letter approving the operator's Ventilation Plan. It is clear however that the Secretary has the 

authority to require the inclusion of reasonable requirements 

in such a Ventilation Plan pursuant to section 303(0) of the 

536 
Act and that those requiremertts are enforceable under the Act 

as a mandatory standard. See Ziegler Coal Company v. Kleppe, 

536 F.2d 398 CD.C.C.A. 1976). See also Secretary v. Jim 

Walter Resources, Inc., Docket No. SE 86-83, Judge Broderick, 

January 21, 1987, petition for review granted February 25, 

1987. 

Under all 

the amendments 

is granted. 

Distribution: 

the circumstances, Citation N • 2810267 (and 

thereto) is dismissed and th herein I 

,LJ 1[,l\_; ! 

GJy Meli k ! 

Adininistirtive Ll 

/! 

R. Stanley Morrow, Esq., Jim Walter/Resources, Inc., P.O. Box 

C-79, Birmingham, AL 35283 {Certified Mail) 

William Lawson, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 201, 2015 2nd Avenue, North, Birmingham, 

AL 35203 (Certified Mail) 

rbg 

537. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 111987 

JIM'WALTER RESOURCES, INC., 

Contestant 

CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

Docket No. SE 86-141-R 

Order No. 2811695; 9/22/86 

Docket No. SE 86-142-R 

Order No. 2811621; 6/23/86 

No. 5 Mine 

Appearances: R. Stanley Morrow, Esq., Birmingham, Alabama, 

for Contestant; 

William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, 

for Respondent. 

Before: Judge Melick 

These consolidated cases are before me upon the applications for review filed by Jim Walter Resources Inc., (Jim 

Walter) pursuant to section 107Ce)(l) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et. ~, the 

"Act," to challenge the issuance by the Secretary of Labor of 

two 11 imminent danger" withdrawal orders under section 107(a) 

of the Act.l/ At hearing the parties elected to proceed on 

stipulations of fact. The issue before me is whether an 

"imminent danger" existed as alleged and within the framework 

of the stipulated evidence. 

~/ Section 107(a) of the Act provides as follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger 

exists, such representative shall determine the extent of the 

area of such mine throughout which the danger exists, and 

issue an order requiring the operator of such mine to cause 

all persons, .except those referred to in section 104(c), to 

be withdrawn from, and to be prohibited from entering, such 

area until an authorized representative of the Secretary 

determines that such imminent danger and the conditions or 

practices which caused such imminent danger no longer exist. 

The issuance of an order under this subsection shall not 

preclude the issuance of a citation under section 104 or the 

proposing of a penalty under section 110. 

538 
DOCKET NO. SE 86-141-R 

The order in this case, No. 2811695, issued September 22, 

1986, reads as follows: 

Methane in excess of 1.5 per centum was detected 

not less than 12 inches from the roof face and ribs 

in the face of the No. 4 entry in the 005 section. 

A G 70 methane detector with a probe was used7 

however a bottle sample could not be taken due to 

the face being cut beyond the last row of roof 

bolts and the area was not supported with roof 

bolts. 

The agreed stipulations of fact are as follows: 

In the face area in the No. 4 entry, inby the last 

open crosscut, 3 measurements of methane were taken. 

Those 3 measurements in the face area were 1.7% 

methane, 1.8% methane and 2.0% methane, and that 

the miners had not been withdrawn from this 

area •••. the readings were taken with a 

hand-held methanometer; they were not bottle 

samples." (Tr. 71) . 

It was subsequently also stipulated that "the air was 

tested in a working place." 

Section 3(j) of the Act defines "imminent danger" as 

"the existence of any condition or practice in a coal or 

other mine which could reasonably be expected to cause death 

or serious physical harm before such condition or practice 

can be abated." The Secretary argues in his post-hearing 

brief that the presence of 1.5 volume per centum or more of 

methane in the air at any working place constitutes such an 

"imminent danger" per se. According to the Secretary an 

"imminent danger" is thereby established and warrants the 

issuance of a section 107(a) withdrawal order under the 

authority of section 303(h)(2) of the Act.~/ 

2/ Under section 303(h)(2) of the Act when the air at any 

working place contains 1.5 volume per centum or more of 

methane "all persons, except those referred to in section 

104(d) of [the] Act, shall be withdrawn from the area of the 

mine endangered thereby to a safe area, and all electric 

power shall be cut off from the endangered area of the mine, 

until the air in such working place shall contain less than 

1.0 volume per centum of methane." 

539 
The Secretary argues that the former Department of 

Interior Board of Mine Operations Appeals (the Board) found 

in Pittsburgh Coal Co., 2 IBMA 277 (1973), that the issuance 

of an "imminent danger" withdrawal order under section 104(a) 

of the Federal Coal Mine Health and Safety Act of 1969 (the 

virtually identical predecessor to section 107(a) of the Act) 

was mandated by the presence of the factors set forth in 

section 303(h)(2). In the Pittsburgh Co~l Co. decision the 

Board adopted the analysis in the decision of the judge below 

concerning the relationship between an "imminent danger" 

withdrawal order and section 303Ch)(2) (of the 1969 Act). 

The judge's analysis was as follows: 

Under section 104(a) an inspector "shall 

issue" a withdrawal order to clear designated mine 

areas if upon inspection a condition of imminent 

danger is found to exist. In similar language the 

latter part of section 303(h)(2) provides for a 

withdrawal of miners, though it does not express 

itself in terms of imminent danger. By requiring a 

withdrawal of miners upon the detection of a 1.5 

volume per centum the Act seems to be recognizing a 

condition of imminent danger. 

As defined in section 3(j) of the Act, 

"imminent danger includes a condition which could 

reasonably be expected to cause death or serious 

physical harm before such condition * * * can be 

abated." If Congress has determined by statute 

that a 1.5 volume per centum reading is sufficient 

to require the drastic action of withdrawal, then 

it must be because the situation was viewed as one 

of imminent danger. Congress in 303(h)(2) has 

intentionally left no room for doubt or discretion 

in what it viewed as an imminent danger. Considering the nature of the gas, the perilous conditions created by it, and insignificant quantum of 

energy necessary to cause an ignition - there is a 

sufficient b~sis to characterize a 1.5 percent 

concentration as one of imminent danger. 

The seriousness with which congress viewed the 

methane problem can be seen by the 303(h)(l) 

requirement of an initial preshift examination for 

the gas to be repeated at twenty minute intervals 

thereaftero The deadly history of the gas in the 

last thirty years bears ample witness to the intent 

of Congress to reduce this major cause of death. 

[footnote omitted] It can reasonably be inferred 

that the withdrawal requirement of 303(h)(2) 

presumes the existence of a condition of imminent 

danger. This being the case, the issuance of an 

104(a) order would appear to be the appropriate 

540 
method of notifying an operator of what is required 

of him under the Act, where he has not upon his own 

initiative withdrawn the miners from the area 

affected·by the methane. 

In addition the Board observed in its decision that: 

' 11 [I]n the section-by-section analysis of section 

204{h){2), subsequently enacted as section 

303Ch)C2) of the Federal Coal Mine Health and 

Safety Act of 1969, the report of the Senate 

Committee [footnote omitted] states as follows: 

* * * If the air contains 1.5 percent of methane, 

withdrawal of the miners by the operator or 

inspector, if he is present, is required * * * Long 

experience has shown that the methane, when present 

is dangerous. ~he explosion range is between 5 and 

15 percent. Once it reaches 1.5 percent it can 

accumulate rapidly. Thus, action must be taken 

promptly before it reaches 1.5. percent. (Emphasis 

added) 

In our view this expression of Congressional 

intent is sufficient to override the arguments 

advanced by the appellant and to sustain the 

Judge's decision on this point." 

While this.Commission has stated in Secretary v. 

Pittsburgh and Midway Coal Mining Company, 2 FMSHRC 787 

(1980) that it would examine anew the question of what 

conditions and practices constitute an "imminent danger" the 

legal analysis of the Board concerning the issuance of 

"imminent danger" withdrawal orders under the conditions set 

forth in section 303(h)(2) is persuasive and I accordingly 

apply that analysis to this case. 

It is not disputed in this case that there was at least 

105 volume per centum of methane in the air in the face area 

in the No. 4 entry inby the last open crosscut and that the 

miners therein had not been withdrawn. Within the above 

framework of law an nimminent danger" therefore existed and 

the withdrawal order was properly issued in this case 

pursuant to sections 303(h)(2) and 107(a) of the Act. See 

also Consolidation Coal Company v. Secretary of Labor, -4~ 

FMSHRC 1960 (Judge Kennedy, 1982). 

DOCKET NO. SE 86-142-R 

The order in this case, No. 2811621, also issued under 

section 107(a) of the Act reads as follows: 

541 
The methane content when tested not less than 12 

inches from the roof face or ribs was in excess of 

1.5 volume per centum in the No. 1 entry 1.5%, No. 

2 entry 1.3%, No. 3 entry 1.5% and No. 4 entry 1.8% 

on the Noc 3 section. Air sample was collected. 

The order was modified on June 24, 1986, the date 

fo1i9wing its issuance, to identify the area affected as the 

"No. 3 entry inby spad No. 4386 crosscut right and face of 

No. 4 entry inby No. 4386 spad." 

The parties again stipulated the facts at issue and 

those stipulations are as follows: 

Methane concentrations in the No. 1 entry was 1.5%; 

in the No. 2. entry 1.3%; in the No. 3 entry 1.5%; 

in the No. 4 entry 1 •. 8%. • • • the section was not 

producing coal at the time of the inspection; that 

power was energized on the battery charger, ••• 

that the crew of miners was inby the last open 

crosscut working on a rock fall which occurred in 

the face of No. 4 entry. No. 5 mine is subject to 

the 5-day spot inspections pursuant to section 

103(i) of the Act and Mr. Gaither was inspecting 

the mine subject to spot inspection." (Tr. 60, 61, 

6 7) 0 

It was later further stipulated that the "air was tested 

in ••• working place[s]. 11 

Within the framework of these stipulations and the 

applicable law previously noted it is clear that an "imminent 

danger~ existed in those entries cited in Order No. 2811621 

on June 23v 1986. Accordingly this order was also properly 

issued under section 107(a) of the Act. 

Order No. 2811621 was again modified on September 22, 

1986, and that modification (No. 2811621-2) reads as follows: 

Methane in excess of 1.5 per centum was detected in 

the left and right split of air current returning 

off the No. 3 section beginning at spad No. 2856 on 

left side in No. 1 entry and spad No. 3855 on right 

side in No. 4 entry and extending inby to the Nos. 

1, 2, 3, and 4 faces in No. 3 section. Bottle 

samples were taken to substantiate the findings. 

Order No. 2811621 dated 6-26-86 is hereby modified 

to show area or equipment to be closed. Nos. 

1, 2, 3, and 4 entries beginning at %Pad No. 2856 

in No. 1 entry across to spad No. 3855 in No. 4 

entry and extending inby to the Nos. 1, 2, 3, and 

4, faces in No. 3 section. 

542 
The parties stipulated the essential facts as follows: 

[A]t Spad Number 3713, bottle sample revealed 1.65 

percent methane. At Spad Number 3897, bottle 

sample revealed 1.67 percent methane. At the left 

regulator, Number 3 section, bottle sample revealed 

lo7 percent methane. At Spad Number 4238, bottle 

sample revealed 1.76 percent methane. Power was on 

power center located at intake air. Power center 

was energized running a drill for degasification 

under an MSHA approved supplement to the ventilation plan, which was approved on 8-18-86. At the 

time methane content was less than 1.0 percent in 

the area where the drill was placed, and the aforementioned areas where all within the areas closed 

by the modification dated 9-22-86 (Tr. 69). 

It was subsequently further stipulated that the air was 

tested "in a split of air returning from a working section." 

The Secretary here argues that section 303(i)(2) of the 

Act requires the issuance of an "imminent danger" withdrawal 

order when the factors cited therein are found to exist, just 

as section 303Ch)(2) has been found to require the issuance 

of such an ,order. 

Section 303Ci)(2) provides as follows: 

If, when tested, a split of air returning from any 

working section contains 1.5 volume per centum or 

more of methane, all persons, except those persons 

referred to in section 104(d) of this Act, shall be 

withdrawn from the area of the mine endangered 

thereby to a safe area and all electric power shall 

be cut off from the endangered area of the mine, 

until the air in such split shall contain less than 

1.0 volume per centum of methane. 

I agree with the Secretary. Section 303(i)(2) sets 

forth criteria under which miners are to be withdrawn under 

conditions of "imminent danger" equivalent to those set forth 

in section 303(h)(2). The rationale of the Pittsburgh Coal 

Co. case in issuing "imminent danger" withdrawal orders under 

the authority of section 303Ch)(2) is accordingly applicable 

here as well. Thus when the conditions set forth in section 

303(i)(2) are found to exist an "imminent danger" also exists 

and a withdrawal order pursuant to section 107(a) may 

properly be issued. 

Accordingly order of withdrawal No. 2811621 and its 

modification dated September 22, 1986, were both properly 

issued under section 107(a) of the Act and are hereby 

affirmed. 

543 
ORDER 

Orders of withdrawal No. 2811698 and No. 2811621 (and 

the modification thereto dated Septemb~r 22, 1986) 1are hereby 

aff ~rmed. The contests of those order~' are accord ngly 

denied. \ j 

\ I \ J~_,,v'J ~ Gary elick 

Judge 

Distribution: 

Adm~n1· trati 

. \ ' R. Stanley Morrow, Esq., Jim W~l r Resou .ces, Inc., P.O. Box 

C-79, Birmingham, AL 35283 (Certified Maii}> 

William Lawson, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 201, 2015 2nd Avenue, North, Birmingham, 

AL 35203 (Certified Mail) 

rbg 

544 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 111987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

. . 

Respondent : 

CONSOLIDATION COAL COMPANY, 

Contes.tant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-386 

A.C. No. 46-01455-03630 

CONTEST PROCEEDING 

Docket No. WEVA 86-339-R 

Order No. 27132221 4/22/86 

Osage No. 3 

DECISION 

Appearances: Therese I. Salus, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Secretary of Labor1 

Michael R. Peelish, Esq~, Pittsburgh, 

Pennsylvania, for Consolidation Coal Company. 

Before: Judg~ Melick 

These consolidated cases are before me under section 

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

30 u.s.c. § 801 et~, the "Act", to challenge a withdrawal 

order issued by the Secretary of Labor under section 104(d)(l) 

of the Act, and for review of civil penalties proposed by the 

Secretary for the violation alleged therein. For the reasons 

that follow I find that Consolidation Coal Company (Consol) 

did not violate the cited standard and accordingly that the 

withdrawal order and the civil penalty proceedings herein 

must be dismissed. 

The order at bar~ No. 2713222, alleges a1violation of 

the standard at 30 C.F.R. § 75.305 and charges as follows: 

A weekly examination of the abandoned areas of 11 

North inby the 1 West Junction; which, insofar as 

safety considerations permit are safe to be traveled 

by the weekly examiner are not being examined by a 

certified person as required by 30 C.F.R. 75.305 in 

545 
that, the intake and return airways which were safe 

to travel when inspected 4/21/86 showed no evidence 

that examinations have been being [sic] made. Last 

date observed in the return airways was September 1985. 

The cited standard, as relevant hereto, provides as 

follows: 

• examinations for hazardous conditions, 

including tests for methane, and for compliance 

with the mandatory health or safety standards, 

should be made at least once each week by a certified person designated by the operator ••• insofar 

as safety considerations permit, abandoned 

areas •••• The person making such examinations 

and tests shall place his initials and the date and 

time at the places examined, and if any hazardous 

condition is found, such condition shall be 

reported to the operator promptly. Any haz.ardous 

condition shall be corrected immediately ••• The 

record of these examinations, tests and actions 

taken shall be recorded in ink or indelible pencil 

in a book approved by the Secretary kept for such 

purpose in an area on the surface of the mine 

chosen to minimize the danger of destruction by 

fire or other hazard, and the record shall be open 

for inspection by interested persons. 

It is undisputed in this case that the cited areas were 

indeed "abandoned areas" within the meaning of the cited 

standard. The parties disagree however concerning whether 

"safety considerations-permit[ed]" the examinations in the 

abandoned areas at issue. The Secretary argues that safety 

considerations did in fact permit such examinations and 

Consol argues that safety considerations did not permit such 

examinations. 

The testimony of Inspector Lynn Workley of the Federal 

Mine Safety and Health Administration CMSHA) is inconsistent. 

On the one hand Workley testified that he walked, along with 

a representative of the mine operator, Don Morrison and a 

union representative, some 2 thousand feet into the abandoned 

area, and that it was not unsafe. On the other hand Workley 

maintained that it was hazardous for anyone to proceed in 

that area because of the likelihood of fatal roof falls from 

"bad roof" and the possiblity of a trolly wire in the 

abandoned area becoming energized and causing a fire. 

Mine Superintendant Joseph Pride agreed that the 

abandoned area was unsafe. According to P'ride the cited area 

had been abandoned 5 years before and had not been inspected 

under the provisions of the cited regulation because it was 

deemed to be an unsafe area. 

546 
John Morrison, Consol's mine safety escort who 

accompanied Workley on April 21, 1986, considered the 

abandoned area to be "highly unsafe." He observed that in 

many locations the bottom had "humped up" and that the roof 

and rib conditions were "bad." In some places rock had 

already fallen from the roof and ribs. Indeed, in order to 

penetrate the abandoned area it was necessary for the inspection party to "zig-zag" and "backtrack" around the most 

dangerous conditions. 

Joseph Jimmie, a union safety escort accompanying 

Workley when he abated the order on April 26, 1986, also 

considered/ the abandoned area to be a serious hazard. He 

also found the "top" to be "bad" with evidence of roof falls 

in many of the headings. Jimmy recalled that the inspection 

party therefore had to "zig-zag" back-and-forth around the 

entries in order to penetrate the abandoned area. 

Within this framework of evidence it is quite clear that 

the mine operator could reasonably have found that "safety 

considerations" did not permit the examinations set forth in 

section 75.305 to be conducted in the cited area. In reaching 

this conclusion I have not disregarded the Secretary's argument that one could infer from the fact that the operator did 

not "danger off" the cited area that it considered to be 

abandoned and not safe to inspect (under section 75.305), 

that it did not in fact consider that area unsafe. It is 

readily apparent however that the inspector himself did not 

deem it necessary that such abandoned·area be "dangered off" 

since no such violation was cited and no such requirement was 

made a condition of abatement. Under the circumstances I 

find no violation and the order must therefore be vacated. 

ORDER 

.1 

I 

Pe~alty c;htest 

Proceeding 

Proceedin<i. 

/, I , \ '· I I 

.· L~"" \ 

Order No. 2713222 is vacated, Civil 

Docket No. WEVA 86-386 is dism'ssed, and 

Docket No. WEVA 86-339-R icy1 gr nted. 

4ary .Melick \ Admin'~strative \Law 

I I 

/\,_, '"", \ - \, """'·, 

547 

' \ 

i, 

\i 

I' ii 

:1 

Judge 
Distribution: 

Therese I. Salus, Esq., Office of the Solicitor, U.S. Department of Labor, Room 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation C~al Company, 1800 

Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

rbg 

548 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 12 1987 

JAMES H. HARMON, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. WEVA 86-375-D 

: MSHA Case No. MORG CD 85-9 

CONSOLIDATION COAL COMPANY, 

Respondent Humphrey No. 7 Mine 

Appearances: 

Before: 

DECISION 

Jeff Harris, Esq., Morgantown, West Virginia, 

for the Complainant; 

Thomas N. McJunkin, Esq., Jackson, Kelly, Holt 

& O'Farrell, Charleston, West Virginia, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed 

by the complainant James H. Harmon against the respondent pursuant to section 105(c) of the Federal Mine Safety and Health 

Act 1977, 30 u.s.c. § 801 et seq. Mr. Harmon filed his 

initial complaint with the Secretary of Labor, Mine Safety and 

Health Administration (MSHA). Following an investigation of 

his complaint, MSHA determined that a violation of section 

105(c) had not occurred, and so advised Mr. Harmon by letter 

dated May 12, 1986. Mr. Harmon then filed a pro se complaint 

with this Commission, and he subsequently obtained counsel to 

represent him in this matter. A hearing on the merits of the 

complaint was held in Morgantown, west Virginia, and the parties appeared and participated fully therein. The respondent 

filed a posthearing brief. Mr. Harmon's counsel withdrew from 

the case after the hearing, and did not file a brief. However, I have considered the oral arguments made by Mr. Harmon's 

counsel during the course of the hearing, as:well as the respondent's arguments. 

The complainant alleges that he was removed as a member 

of the mine safety committee by mine management because of 

his safety concerns and activities as a member of the safety 

549 
committee, and that his removal constitutes discrimination 

under the Act. The respondent asserts that the complainant 

was removed from the safety committee because he and the other 

members "arbitrarily and capriciously" shut down a track haulage area of the mine, and that his removal from the safety 

committee was in full compliance with the terms of the applicable National Bituminous Coal Wage Agreement of 1984. The 

respondent states that the complainant's removal from the 

safety committee was also challenged pursuant to the applicable contractual binding arbitration procedures, and that his 

removal was upheld. In addition, respondent states that the 

complainant's state discrimination complaint challenging his 

removal from the safety committee was rejected after protracted hearings before the West Virginia Coal Mine Safety 

Board of Appeals. 

Issues 

The principal issue in this case is whether or not the 

complainant's removal from the mine safety committee by the 

respondent was discriminatory under section lOSCc) of the Act. 

Additional issues raised by the parties are disposed of in 

the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 301 et seq. 

2. Sections 105(c)(l), (2) and (3) and llO(a) and (d) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§§ 815Cc)(l), (2) and (3). 

3o Commission Rules, 29 C.F.R. § 2700.l et seq. 

Factual Background 

Mr. Harmon has been a member of the United Mine Workers 

of America and an employee of the respondent for approximately 

10 years. In May of 1984, he was elected by the local union 

at the mine to serve on the Mine Health and Safety Committee, 

an entity which exists at mines covered by the National 

Bituminous Coal Wage Agreement of 1984 (Wage Agreement) by 

virtue of Article·III(d)(l) of that contract which provides in 

pertinent part as follows (exhibit R-1): 

ARTICLE III- HEALTH AND SAFETY 

Section (d) Mine Health and Safety Committee 

550 
(1) At each mine there shall be a Mine Health 

and Safety Committee made up of miners 

employed at the mine who are qualified by mining experience or training and selected by the 

local union • • • • 

* * * * * * * 

(3) The Mine Health and Safety Committee may 

inspect any portion of a mine • • . if the 

Committee believes conditions found endanger 

the lives and bodies of the Employees, it 

shall report its findings and recommendations 

to the Employer. In those special instances 

where the Committee believes that an imminent 

danger exists and the Committee recommends 

that the Employer remove all Employees from 

the involved area, the Employer is required to 

follow the Committee's recommendations and 

remove the Employees from the involved area 

irnmedia tely • • 

* * * * * * * 

(5) If the Mine Health and Safety Committee 

in closing down an area of the mine acts 

arbitrarily and capriciously, a member or 

members of such Committee may be removed from 

the Committee. An Employer seeking to remove 

a CoTIUnittee member shall so notify the 

affected Committeeman and the other members of 

the Mine Health and Safety Committee. If the 

Committee objects to such removal, the matter 

shall be submitted to and decided by the appropriate panel arbitrator. If the Employer 

requests removal of the entire Committee, the 

matter automatically shall be submitted to 

arbitration and the Committee will continue to 

serve until the case is submitted to and 

decided by the arbitrator. A Committee member 

shall not be suspended or discharged for his 

official action as a Committee member. 

(Emphasis added.) 

On the morning of December 12, 1984, Mr. Harmon and two 

other safety committeemen, Mr. Thomas Turpin and Mr. David 

Laurie, acting in their capacities as safety committeemen, 

closed a section of the mine's main haulage track line under 

551 
the purported authority of Article ITICd)(3) of the Wage 

Agreement. The area affected was the location of a derailment 

which had occurred the previous day. On December 14, 1984, 

mine management exercised its rights under Article IIICd)(5) 

of the wage Agreement to remove the three committeemen from 

the safety committee for acting arbitrarily and capriciously 

in shutting down the track haulage 2 days earlier. 

The removal of the safety.committeemen was challenged 

and submitted to binding arbitration pursuant to the terms of 

the Wage Agreement. On January 28, 1985, Arbitrator Thomas M. 

Phalen rendered a decision upholding the removal of Mr. Harmon 

and his co-committeemen from the safety committee. 

By a letter dated January 7, 1985 to Mr. Richard Bassick 

of the Mine Health and Safety Administration, Mr. Harmon, 

Mr. Turpin, and Mr. Laurie filed a complaint in connection 

with the incident alleging discrimination under section 105(c) 

of the Act. By letter of May 12, 1985, MSHA advised the complainants that review of the matter revealed no basis for 

their complaint. 

On January 21, 1985, the three aggrieved committeemen 

filed another complaint challenging their removal from the 

safety committee, this time alleging discrimination under 

state law. After hearings, the West Virginia Board of Mine 

Safety Appeals rejected the complaint in a decision dated 

June 17, 1986. 

This matter is presently before me on the complaint of 

Mr. Harmon that his removal from the safety committee constitutes discrimination under section 105(c) of the Act. The 

two other individuals who were removed from the safety committee with Mr. Harmon have not joined in this complaint. 

Complainant's Testimony and Evidence 

James H. Harmon, the complainant in this case, stated 

that he has been employed by the respondent for over 10 years, 

and that he works at the Bowers Portal of the Humphrey No. 7 

Mine. He confirmed that he was working the day shift on 

December 11, 1984, as a pumper, and that he was a member of 

the mine safety committee, and had been a member since May, 

1984. On that day he learned that a derailment accident had 

occurred, with possible serious injuries to a miner. He 

learned about the accident by overhearing the mine dispatcher 

on the radio calling supervisors to make them aware of the 

accident. Since he was a member of the ety committee, 

Mr. Harmon wanted to go to the scene of the accident, but 

552 
before doing so, he had to have the permission of his shift 

foreman so that he could be relieved from his regular duties. 

He travelled the main track trying to locate his immediate 

supervisor to. excuse him from work to go to the accident 

scene, and after doing so, he eventually arrived at the scene 

of the accident approximately and hour and a half later (Tr. 

15-23). 

Mr. Harmon confirmed that during his tenure as a safety 

committeeman, he was never refused permission to be excused 

from work to perform his safety·committeeman's duties (Tr. 

23). Mr. Harmon conceded that he was not refused permission 

on December 11, 1984, but questioned why he had to be "passed 

around," and had to go through so many supervisors to obtain 

permission to be excused from work to go to the scene of the 

accident (Tr. 24). 

Mr. Harmon stated that when he arrived at the scene of 

the accident at the Sandstone Portal, he learned that the 

injured man had been taken out of the mine, and that after 

walking some distance, he was taken out by jeep and taken to 

the hospital by ambulance for treatment of his injuries. 

Mr. Harmon identified the injured miner as Dennis Van Kirk, 

and he stated that Bowers Portal Superintendent Blaine Myers 

informed him that Mr. van Kirk had a hand injury and had been 

struck by a piece of rock (Tr. 26). Mr. Harmon stated that 

he observed rock which was about to fall, and some rock falling in the area where the cars had left the track, and clean 

up work was in'progress. Mr. Harmon stated that "everything 

seemed to be going in order, just some minor things, but they 

were taken care of" {Tr. 30). 

Mr. Harmon stated that he observed four roof arches that 

were badly damaged in the accident, observed some bad roof, 

and he described the conditions which he observed. He confirmed that he was concerned about the exposed roof top conditions, gob which had fallen on the track, and he believed 

that another derailment could occur as equipment was allowed 

to run through the area. He believed that the bad top conditions had existed prior to the accident, and that the roof 

had been exposed when the derailment damaged the arches and 

knocked out the roof cribs and planks (Tr. 32-34). Mr. Harmon 

stated that the derailed empty cars had been removed, but he 

was concerned that people were working around the bad top conditions. The gob had been cleaned off the track "pretty 

fair," but one of tne laborers, Joe Pattotta, complained to 

him that "they're gciing to try and bring another trip up 

through." Mr. Harmon was concerned that another trip of cars 

would be brought through the area, and since cleanup had not 

553 
been finished, and the top was still exposed, and he had no 

doubt that attempting to bring another trip of cars through 

would cause another derailment (Tr. 35). 

Mr. Harmon stated that Mr. Turpin complained to him that 

there was a lack of adequate self rescuers available, and not 

enough transportation to take the men working on the shift 

out of the mine. Mr. Harmon confirmed that he ascertained 

that there were sufficient self-rescuers and adequate transportation available, and that Mr. Turpin's complaints were 

not valid. Mr. Harmon stated that Mr. Turpin was concerned 

that there was not enough transportation available for the 

men to leave the mine since it was quitting time and the men 

wanted to go home (Tr. 37). 

Mr. Harmon stated that "Everything was going smooth" and 

that "they was making an honest attempt to correct the situation. I had ho problem with that" (Tr. 38). However, 

Mr. Harmon said that he was upset when he heard general mine 

foreman Clarence Amick order Sandstone Portal superintendent 

George Krynicki to clear the area so that a trip of coal cars 

could be brought through. Mr. Harmon explained his efforts 

to prevent additional coal car trips from coming through the 

accident area as follows (Tr. 39-43): 

I requested Blaine to not run no equipment through this area. He asked me if it was 

dangerous. I repeated back to him, "I request 

no equipment through this area." He said, 

"Well, do you feel it is dangerous?" I said, 

"Yes, I feel it's dangerous." He refused. He 

said, "Jim, we want to run this trip through 

here." I said, "No." For the third time I 

said, "I request that you not run no equipment 

in here until you get the boards up and arches 

tied together, so that there ain't going to be 

anymore accidents. If I have to, I'll use the 

threat of hanging a danger board." I use that 

expression of hanging a danger board as a bluff 

in my mind, because I am not allowed, even as a 

safety committeeman, to hang a danger board, 

according to the state law. The only person 

that can do so is a certified person of the 

state. Knowing that, I used the threat. I 

wanted to make my point clear that I wanted the 

area closed down. He still refused, he said, 

554 
"Jimmy, you get out of the area because we're 

bringing a trip up right now." 

* * * * * * * 

THE WITNESS: Well, I asked him three times. 

As you have stated, I have been on the Safety 

Committee, at that point, seven or eight 

months. We've been on safety runs, estimated 

ten or twelve safety runs up until that point, 

that I had participated on. We had shut the 

areas down throughout the mines for different 

reasons. Rather, Dave Laurie has, as he is 

spokesman. He is the chairman of the Safety 

Committee, and I am under him. We had no problem. He asked to shut this area down long 

enough to have the problem taken care of. I 

had to ask him three times. After the first 

time I was shocked. It just seemed after 

Mr. Amick gave the orders, something just 

snapped in Mr. Krynicki and Blaine. They were 

taking care of the area, I had no problem with 

that. Then, I was shocked after I asked them 

the first time, and I was shocked after I 

asked them the second time, and I asked them 

the third time, and even using the threat of 

hanging the danger board. 

JUDGE KOUTRAS: Let me ask you this now. If 

they were taking care of the problem, if it 

were taken care of there, you had no problem. 

What was the problem? That you felt that they 

should have--? 

THE WITNESS: The top was exposed, sir. There 

was no roof support over that top. 

JUDGE KOUTRAS: were they aware of that? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Did they have some difference 

of opinion with you as to the condition of the 

top? 

THE WITNESS: They apparently, after the order 

of Mr. Amick, was going to do what Mr. Amick 

said. 

555 
JUDGE KOUTRAS: was Mr. Amick th·ere? 

THE WITNESS: He was outside using the phone 

for communications. 

JUDGE KOUTRAS: So, Mr. Amick was outside telling them where to run the trip through. Was 

he aware of the situation and what the conditions were? 

THE WITNESS: I don't know if George or Blaine 

made him aware of the situation. 

JUDGE KOUTRAS: Let us assume that they did. 

THE WITNESS: If they made him aware of the 

situation, of the bad top, and he run the coal 

through anyways--. 

JUDGE KOUTRAS: No. Let us assume that they 

told Mr. Amick that the top is not that bad, 

or whatever. Let us assume that Mr. Krynicki 

and Mr. Myers felt that the top was all right, 

contrary to what you felt. And they communicated that to Mr. Amick. Do you think that 

when Mr. Amick said to run coal, that he took 

them at their word? 

THE WITNESS: I could agree with that, yes. 

Mr. Harmon confirmed that on prior occasions when 

Mr. Laurie requested mine management to shut down an area of 

the mine until it could be cleaned up, management agreed and 

had no problem. In the case at hand, Mr. Harmon agreed that 

there was a difference of opinion as to whether or not the 

prevailing conditions after the accident warranted the closing of the area (Tr. 44). Mr. Harmon confirmed that after 

his unsuccessful efforts to have the area closed, he advised 

Mr. Myers that he was going to call in the Federal and state 

agencies, and on his way out of the area, he went to the 

track spur and attempted to contact the motorman who was 

bringing in a trip at slow speed by radio to make him aware 

of the situation, and to possibly convince him to invoke his 

own miner's rights and not bring in the trip (Tr. 45). However, he could not contact the motorman by radio, and by that 

time the coal trip had gone through the area (Tr. 45). 

Mr. Harmon stated that after the coal trip passed through 

the area, Mr. Turpin, who was the union president, advised him 

556 
that he would contact safety ·committee chairman David Laurie 

at his home to advise him of the situation. Mr. Turpin had no 

authority to act as a safety committeeman at that time on the 

day shift because he was filling in as the safety committeeman 

on the midnight shift (Tr. 46). Mr. Laurie could not be 

located, and Mr. Harmon left the mine and went home to await a 

call from Mr. Laurie, but he did not call him that day (Tr. 

47). Mr. Harmon confirmed that he did not initially call any 

Fede~al or state mine officials because he wanted to clear it 

first with Mr. Laurie. Mr. Harmon also confirmed that he was 

aware of the fact that he could have called in the mine inspectors on his own, but opted not to do so without first consulting Mr. Laurie (Tr. 49). 

Mr. Harmon stated that before leaving the mine, he heard 

Mr. Krynicki give orders for the oncoming shift to continue 

doing cleanup work at the accident scene, and Mr. Harmon 

assumed that additional coal trips would continue to travel 

through the area (Tr. 50). Although he could have returned 

to the area on the mldnight shift to talk to the miners about 

any dangerous conditions, and possibly advise them of their 

individual rights not to work in the area that he considered 

to be dangerous, Mr. Harmon stated that "that thought never 

entered my mind." Mr. Harmon stated that his intent was to 

contact Mr. Laurie so that they could both visit the area to 

decide what to do. Mr. Harmon confirmed that he did not 

return to the mine during the next intervening afternoon 

shift, and was still trying to contact Mr. Laurie. He 

returned to the mine on the next midnight shift, which was 

his next sheduled "safety run," and encountered Mr. Laurie at 

that time (Tr. 53). 

Mr. Harmon stated that after making Mr. Laurie aware of 

the situation, they went to the accident area and observed 

the work that had been done. Several men were still working 

in the area, and safety precaution lights had been installed. 

Most of the arches were not strapped, and Mr. Laurie climbed 

up and looked at the roof conditions, and agreed with 

Mr. Harmon's assessment that the roof over the arches was 

still bad. Mr. Harmon stated that he was concerned that the 

arches were not completely installed, and since the bad top 

was still there, he was afraid that if it fell, it would 

affect the arches. Mr. Laurie was of the opinion that the 

work could have been completed within an hour or so, and he 

wanted to close the area down until the work was finished. 

Company safety escort Ben Strahin advised Mr. Laurie that a 

coal trip was coming, and it passed through the area. At 

that point in time, Mr. Turpin and Mr. Harmop advised 

Mr. Laurie that they would back him up in any decision to 

557 
close the area down, and Mr. Laurie advised Mr. Strahin that 

"we want to shut this area down until we get the arch work 

finished." Mr. Strahin replied that he did not have the 

authority to close the area down, and Mr. Harmon stated that 

their intent was to request mine management to stop production and shut the area down until the work on the arches 

could be completed (Tr. 59-60). Mr. Harmon explained the 

procedure for requesting management to close an area down as 

f,qllows (Tr. 61-62) : 

THE WITNESS: * * * Up until that point we 

never had a problem. They disputed whether 

it's a violation, or if it needed to be 

corrected. But, they always took care of the 

situation. Because a copy of the safety runs 

is sent to the district of the union, and one 

to MSHA, and if necessary, to the state. If a 

serious sl.tuation .still exists after we make a 

request to the company, we inform MSHA or the 

state that the situation exists, and they come 

in. 

We asked then to close the area down. 

Ben said, "I don't have the power to do so." 

He asked him again, in good faith, he wanted 

the area shut down so that the work could be 

done and nobody would get hurt. That was what 

our main concern was, that nobody get hurt. 

Or a fatality. Ben again said, "I don't have 

the power to do so." * * * 

Mr. Harmon stated that after Mr. Strahin declined to 

shut the area down, Mr. Laurie requested that foreman Rusty 

Tingler do so. Mr. Tingler also declined, and after requesting Mr. Strahin to contact Mr. Amick at his home, Mr. Strahin 

advised them that they would have to go outside to telephone 

Mr. Amick. Before leaving the area, Mr. Laurie told 

Mr. Strahin "I want the area shut down, call Amick on the 

Phone." Mr. Strahin again declined and replied to Mr. Laurie 

" you want me to shut that area down you are going to have 

to put it down on paper." Mr. Laurie then wrote out a statement which he signed along with Mr. Harmon and Mr. Turpin 

(Tr. 63, exhibit R-2), and the statement reads as follows: 

I fill (sic) this safety committee is acting 

in good faith. In that where they had the 

wreck on day shift they put in four new arches 

and did not tie them together. We fill (sic) 

they could vibrate loose and fall since they 

558 
are not tied together. Also we fill (sic) 

that additional support should be put on top 

of the arches. Once the arches are tied 

together we will allow them to start running 

coal again. 

After executing the statement, Mr. Laurie asked 

Mr. Strahin to call the dispatcher to stop all trips from 

coming through the area, but Mr. Strahin declined. Mr. Laurie 

then called the dispatcher himself and requested him to stop 

all traffic. One trip which was on the way was allowed to 

pass through, and after it passed through, the dispatcher shut 

the area down as requested by Mr. Laurie (Tr. 64). Mr. Laurie 

then called the state and federal mine inspectors. When they 

arrived, Mr. Harmon, Mr. Laurie, and Mr. Turpin went back to 

the area with the inspectors, and the conditions had been 

corrected. Mr. Harmon estimated that it took an hour and a 

half to perform the work, and he stated that "they called a 

lot of people up there to correct the situation" (Tr. 68, 73). 

Mr. Harmon stated that a safety committeeman had the 

authority to request management to shut an area of the mine 

down, and he was of the opinion that as a certified person, 

Mr. Laurie had the authority to shut an area down under state 

law (Tr. 70). Mr. Harmon confirmed that management had not 

given Mr. Laurie permission to shut the area down, nor did 

management agree that the area should be shut down. He also 

confirmed that Mr. Laurie called the dispatcher and shut the 

area down (Tr. 71). 

Mr. Harmon stated that while the majority of the corrective work was finished when the inspectors arrived, MSHA 

Inspector Boleck issued a citation 11 on strap and some guarding," and the state inspector also issued a citation for a 

welding violation (Tr. 72-73). The inspectors did not look 

over the arches to examine the roof conditions as Mr. Laurie 

had done because the arches wera all in place and the inspectors accepted them as roof support and issued no roof violations (Tr. 74). Inspector Boleck asked Mr. Laurie if he was 

satisfied with the condition of the roof arches, and 

Mr. Laurie stated that he was. The inspector also agreed, 

and he permitted the area to be reopened, and everything went 

back to normal (Tr 75-76}. 

Mr. Harmon stated that on December 14, 1984, at a regular 

safety meeting between management and the safety committee, 

Mr. Amick gave him and Mr. Turpin a letter stating that they 

acted "arbitrary and conspicuously" and that he wanted them 

removed from the safety committee (Tr. 75}. Mr. Harmon 

559 
asserted that after his removal from the safety committee, he 

felt that management, through Mr. Krynicki did not like him, 

assigned him certain uncomfortable job tasks, made disparaging 

remarks about him, and that the company safety escort would 

"dog him" during the inspection rounds with inspectors (Tr. 

86-90). Prior to his removal from the safety committee, 

Mr. Harmon had disagreements with management, and he asserted 

that his shift foreman cursed him se~eral times because he 

complained to him about certain safety violations and upset 

him (Tr. 91). Mr. Harmon also stated that Mr. Myers remarked 

that he spent a lot of time in his office complaining (Tr. 92). 

Mr. Harmon stated that he felt intimidated by Mr. Myers' statement that he made more complaints than the other safety committeemen, and that Mr. Myers "frowns when I go back to see him 

about a safety complaint" (Tr. 93). Mr. Harmon confirmed that 

he could think of no incidents of intimidation prior to his 

removal from the safety committee (Tr. 94). 

When asked by the Court to explain his reasons for filing 

his complaint, Mr. Harmon responded as follows (Tr. 94-95): 

THE WITNESS: I felt like I'm innocent of the 

situation and that I have been discriminated 

against though. The main reason why I was 

removed was because I fought for the miner's 

rights and stood up, and was back in Blaine's 

office more, probably, than anybody else. I 

feel that they, I don't know the right word to 

say. I filed that because I felt that was the 

proper way to do things. 

JUDGE KOUTRAS: No, but the point is, do you 

understand the company's theory, and why they 

removed you and the other two safety 

committeemen. 

THE WITNESS: They said that I am acting arbitrary and conspicuously. I don't 

JUDGE KOUTRAS: Capriciously, all right. 

THE WITNESS: Yes. 

JUDGE KOUTRAS: That is conspicuous too, in 

that context, but go ahead. 

THE WITNESS: But, there was no underhandedness, there was no sneaking around, nothing 

like that. I just wanted to get the situation 

560 
corrected, and by trying to correct the situation over a safety matter, they removed me off 

the Safety Committee. Now, we have shut areas 

down before, and they never tried anything, 

had us removed over situations of that nature. 

Even, as I mentioned, when we had to call the 

federal inspector, Mitchell, up that one time, 

they never said nothing to us. 

JUDGE KOUTRAS: They never said anything? 

THE WITNESS: They never tried removing us or 

nothing like that. What's the difference now? 

JUDGE KOUTRAS: On these past incidents, did 

they ever do things that you felt were harassing or intimidating? 

THE WITNESS: No, not really. I don't think 

so. 

And, at (Tr. 97-98): 

JUDGE KOUTRAS: Do you think that the company, 

in this case, that Consolidation removed the 

three safety committeemen because they called 

the state. and federal people in? Or do you 

think they removed you for some other reason? 

THE WITNESS: I believe they removed us 

because we shut the area down, as Mr. Amick 

has stated, that that is the bottleneck of the 

mines, and by shutting that down, in a sense, 

close the whole mines down. Even though they 

can remain working back there. 

JUDGE KOUTRAS: I understand that. But, the 

company took the position that you had no 

authority to shut it down. That you acted 

contrary to the wage agreement, and the arbitrator found the company was right on that 

score. So did the State of West Virginia 

Board of Appeals, when they reviewed the case. 

Did they not sustain the company's position 

that they felt that the committeemen acted 

outside their authority, by shutting the mine 

down? 

THE WITNESS: That's what they say. 

561 
JUDGE KOUTRAS: You do not--

THE WITNESS: I don't agree with it. 

JUDGE KOUTRAS: Why do you not agree with it? 

THE WITNESS: Because, we done everything 

legal, and normal. Just like the past safety 

runs, and shut areas down, we done everything. 

JUDGE KOUTRAS: But, you never shut them down 

in the past, have you? 

THE WITNESS: Yes, we have. Yes. 

JUDGE KOUTRAS: How did you shut it? You mean 

Mr. Laurie has called up somebody and shut an 

area down? 

THE WITNESS: Yes. We've had other areas shut 

down, yes sir. 

JUDGE KOUTRAS: But, is this with the agreement of management? Did you request management to shut it down, and then they shut it 

down? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: Give me an incident where you 

requested management to shut it down, they did 

not, and the safety committeemen shut it down 

anyway. 

THE WITNESS: I canvt. I don't know of any. 

JUDGE KOUTRAS: Never been any, have there? 

THE WITNESS: No. 

JUDGE KOUTRAS: This is the first one? 

THE WITNESS: Yes. 

In response to questions from the respondent's counsel, 

Mr. Harmon stated as follows (Tr. 104-106): 

562 
Q. I was wondering, Mr. Harmon, if it is 

correct; the discrimination that you are seeking here is the removal from the Safety 

Committee? 

A. Yes. 

Q. What, in your view, was the reason that 

you were removed from the Safety Committee? 

What conduct did you engage in that resulted 

in that conduct, that response by management, 

which you believe is discriminatory? 

A. I tried to get the situation corrected on 

dayshift. I even approached, in a sense, used 

the danger board type threat, to have the situation corrected. And, it was not. We have 

always asked management in the past to correct 

things, and they went ahead. But, it seemed 

that after they got an order. Mr. Blaine Myers 

and Mr. Krynicki, got the order from Amick to 

run coal through there anyway, they just went 

from safe to being unsafe. My next response 

was to get ahold of Dave Laurie, and have him 

act upon it. 

Q. Excuse me. I probably did not ask the 

question very clearly. You went through that 

very well before. Do you believe that you 

have been removed from the safety committee if 

the mine had not been shut down by the safety 

committee? 

A. We never had any action brought before us 

before by shutting the haulage down for other 

situations. 

Q. The question was, do you believe, you 

alleged you would have not been removed from 

the Safety Committee, if the mine had not been 

shut down. The Safety Committee had not 

closed the mine, would you have been removed 

from the safety committee, in your view? 

A. I don't know. 

Q. It is your view that the action that was 

taken, the removal from the Safety Committee, 

563 
was related to your action in closing the mine 

down, is that correct? 

A. Yes. 

Q. Have there been other occasions on which 

you have notified federal or state officials, 

pursuant to your state or federal mine rights? 

A. Like I said, notified Mr. Mitchell one 

time, on that particular track on the Seven 

North country. 

Q. In those occasions, was anyone removed 

from the Safety Committee? 

A. No. 

Q. The major difference here, was that the 

safety committee acted under Article Three of 

the contract, to close the mine down? 

A. That's what Dave stated, and that's the 

first time I ever heard him use that phrase, 

so to speak. He never used that phrase in 

other situations. 

Q. You are aware in the testimony to the 

state that Mr. Laurie testified that his statement was, it was under Article Three? 

~. Yes. 

Q. So, is that a fair statement? Under 

Article Three you were acting to close the 

mine down? 

A. That's what Dave said to Ben Strahin. 

Q. What I am trying to get to, that it was 

your exerci'se of your rights under the contract, to close the mine down, that resulted 

in the management's response, which was to 

remove you from the safety Committee. Is that 

correct? 

A. Yes. 

564 
Mr. Harmon confirmed that as a safety committeeman, he 

made more safety complaints to mine management than did 

Mr. Laurie or Mr. Turpin, and he estimated that he brought 50 

safety violations or complaints to management's attention, 

and wrote up.about 20 section 103(g) inspection requests (Tr. 

124). He confirmed that the remedy he is seeking is his reinstatement as a safety committeeman (Tr. 126). 

Mr. Harmon confirmed that on one occasion when he had a 

mine inspector close a track area for an hour or two and 

issued citations, no action was taken against any of the 

safety committeemen by management (Tr. 127). On another occasion when he threatened to shutdown the parking lot because 

of pot holes, management corrected the conditions CTr. 125). 

Mr. Harmon stated that while he considered the conditions 

at the accident scene ;to be an imminent danger, "something 

that could cause a fatality right away," he did not use the 

phrase· "imminent danger" but used "dangerous or hazardous" 

(Tr. 129). Even so, he conceded that he then went home to 

await a call from Mr. Laurie, and that 8 hours had passed 

since he initially viewed the conditions and men were still 

working there (Tr. 130-131). He also conceded that he 

travelled through the area and did not warn anyone about any 

"imminently dangerous" conditions (Tr. 134), and that 

Mr. Laurie permitted a trip of cars to pass through the area 

{Tr. 162). 

Although Mr. Harmon was of the opinion that under section 103(g) of· the Act, a safety committeeman has the authority to shutdown any mine area, he conceded that under that 

section of the law, he is only authorized to request an immediate inspection of the area by an MSHA inspector, as opposed 

to shutting the area down himself (Tr. 137-138). When asked 

why he did not exercise his section 103Cg) rights on 

December 11, Mr. Harmon responded "we were trying to get the 

work done within the mines, instead of having to go as far as 

calling a state or federal inspector in there" (Tr. 139). 

Mr. Harmon acknowledged that at the time he requested 

Mr. Myers to shut the area down, he did not refer to Article 

Three of the Wage Agreement, nor did he use the phrase 

" imminent danger" (Tr. 14 6) • 

Mr. Harmon confirmed that other than being removed from 

the safety committee, he was not removed from his normal job 

classification, was not discharged, and was not otherwise 

disciplined (Tr. 163). He also confirmed that his removal 

from the safety cominittee was made pursuantito the terms of 

565 
the contract, and that on past occasions when state inspectors were called to the mine by safety committeemen, no 

action was taken against them by management (Tr. 163-164). 

Mr. Harmon conceded that in all of the prior instances when 

he made safety complaints or requested section 103(g) inspections, management reacted favorably to his complaint and took 

corrective action to his satisfaction and did not harass or 

intimidate him (Tr. 173-174). 

Respondent's Testimony and Evidence 

Clarence Amick, General Mine Superintendent, testified 

as to his background and responsibilities. He stated that 

under the Wage Agreement the mine safety committee has the 

right to request mine management to shutdown an area of the 

mine if they determine that an imminent danger exists, and 

management is obligated to do so (Tr. 184). In the instant 

case, Mr. Amie~ stated that any imminent danger which may 

have existed at the time of the accident at 11:00 a.m., 

certainly did not exist at 4:00 p.m. when Mr. Myers and 

Mr. Krynicki spoke with him. Corrective action had been 

taking place since the accident, and it was safe to proceed 

with caution through the area at the time the committeemen 

shut the area down (Tr. 186). 

Mr. Amick confirmed that Mr. Harmon and the other safety 

committeemen were removed pursuant to contract provision 

Article Three, Section (d)(5) for arbitrarily and capriciously 

shutting down the area in question. He denied that the 

removal was in any way connected with the committee calling in 

the state and federal inspectors, and he confirmed that they 

had done this in the past on many occasions and were not 

removed. He stated that in all of his years in mining, he has 

never before had to remove any members of a mine safety committee (Tr. 187). He was aware of no state or federal law that 

gives the safety committee the right to close an area of the 

mine (Tr. 188). 

Mr. Amick stated that mine management has never taken 

any action against any committeemen for bringing safety 

matters which need to be corrected to its attention, and he 

confirmed that the committeemen in question did not lose their 

jobs 1 and their job classifications were not changed in any 

way. Once the committeemen were removed, they were allowed to 

stay on until the arbitrator ruled on their case (Tr. 188-189). 

On cross-examination, Mr. Amick confirmed that he sent 

letters to the safety committeemen in question advising them 

of their removal, and informing them of the reasons for his 

566 
action (Tr. 190). Mr. Amick believed that Mr. Harmon and the 

other committeemen used bad judgment, and they had no right 

to close the area. Mr. Amick stated that he relied on the 

judgment of Mr. Myers and Mr. Krynicki, who have many years 

of mining experience, in assessing any hazard or danger which 

may have existed in the area at the time it was closed down 

by the safety committee (Tr. 191). 

Mr. Amick stated that he treated all three committeemen 

equally, and since they all signed the statement at the time 

they closed the area, he believed that it was a collective 

decision and that they should all be removed from the safety 

committee (Tr. 193). Mr. Amick stated that he has always 

encouraged the safety committee to bring things that are 

wrong to his attention so that corrective action may be taken. 

However, by shutting down the mine area, the safety committee 

took charge of directing the work force, which is solely 

management's prerogative (Tr. 195). At the time the area was 

closed, no one mentioned any "imminent danger," and since the 

mine was closed as a result of the accident, and it was physically impossible to move any equipment through the area. It 

remained closed until his superintendents, Mr. Myers and 

Mr. Krynicki, "gave me the O.K. that it was safe to proceed 

through at that time" (Tr. 197). The superintendents are 

competent, and he relied on their judgment that the area was 

safe, and no one informed him that Mr. Harmon felt differently 

until sometime later (Tr. 199). 

Mr. Amick confirmed that he made the decision to remove 

Mr. Harmon and the other committeemen from the safety committee (Tr. 201-202). Although other options were discussed 

with his staff, it was decided to remove them pursuant to the 

contract provision in question (Tr. 203). He did not discuss 

the matter with the affected committeemen because he didn't 

believe it was necessaryu and he believed that their position 

was clear by the statement which they signed at the time they 

acted to close the area (Tr. 204). 

In response to further questionsv Mro Amick confirmed 

that the area in question was closed for approximately an 

hour and forty-five minutes as a result of the action of the 

committeemenu and the committee had no right to order the 

dispatcher not to permit further trips through the area (Tr. 

207). Mr. Amick stated that he has never faulted Mr. Harmon 

for any actions he has taken as a safety committeeman, and he 

confirmed that he has spoken to his staff about some of the 

incidents of alleged harassment alluded to by Mr. Harmon, and 

that he do.es not condone it (Tr. 209) • 

567 
Mr. Amick stated that his decisio·n to remove Mr. Harmon 

from the safety committee was not influenced by his prior 

activities as a member of the committee, and that "the main 

crux of the problem, was, what happened that night" CTr. 213). 

He stated that he has always worked with the safety committees, but could not tolerate the committee's action in 

shutting down the haulage on the evening in question, and 

that this is the first time this had ever happened (Tr. 215). 

He stated further as follows (T~. 216>:' 

A. They shut the mine down. They did it by 

directing the work force, and they had no 

authority to do either one. Even Section 

Three, that gives him the authority to request 

that management shut the mine down, and management has to do it, even then they don't 

shut the mine down. Even when they exercise 

Article Three, if you'll read it. 

Q. That was your consideration then, in terms 

of removal? 

A. Yes. 

Q. That was your only consideration? 

A. That was my consideration at the time. 

Mr.'Amick stated that had the committee declared the 

area to be an imminent danger, the superintendents on the 

scene, after consultation with him, would have been obligated 

to close the area. In addition, any individual miner could 

have exercised his individual rights not to work in the area 

if he believed he was in danger. If the committee had not 

acted arbitrarily and capriciously in shutting down the area, 

he would not have removed them from the safety committee. 

The committeemen did not declare the area in question an imminent danger. On a prior occasion when the committee called 

in a federal inspector on the Seven North haulage area, they 

did not consider .it an imminent danger, but no action was 

taken against them for contacting the inspector (Tr. 219). 

Mr. Amick stated that the men who were delayed coming out of 

mine at the time of the accident were paid time and a 

half for having to stay over their regular shift (Tr. 220). 

Blaine K. Myers, Bowers Portal Superintendent, explained 

his contacts and discussions with Mr. Harmon at the time of 

the derailment on December 11, 1984. Mr. Myers confirmed 

that the individual who was injured did not suffer any lost 

568 
time, and he worked the next day (Tr. 221-222). Mr. Myers 

stated that he and Mr. Krynicki were at the scene of the 

derailment looking over the situation and directing the rehabilitation of the area, and the area had been closed until 

shortly after 4:00 when the first trip was allowed through 

(Tr. 223). Mr. Harmon was concerned about s9me spillage, and 

mentioned no other conditions which he believed to be hazardous.• Mr. Myers stated that he asked Mr. Harmon whether he 

considered the situation to be an imminent danger, and that 

Mr. Harmon replied, "Well, I' 11 have the state and federal 

inspectors here in the morning and we'll see" and left the 

area (Tr. 225). At that point in time, Mr. Myers stated that 

the top was not exposed, and that work had been done on the 

arches, and he climbed up on the arches and he observed no 

top areas which were not covered with wood (Tr. 226). 

Mr. Myers further expl~ined as follows (Tr. 227-229): 

Q; Now, he testified earlier, that he demanded 

three times that the area be closed down, 

because of conditions of the roof which he says 

was exposed. How do you respond to that? 

A. I've got two responses. Number one, it's 

absolutely untrue. He made no mention of any 

bad top to me, throughout the day. Number 

two, when the roof was exposed, the area was 

shut down. We were in the process of rehabilitating the area, it was shut down. There was 

nothing done in that area except the rehabilitation work. It's beyond me, to understand 

where that comment came from. 

Qo After he turned and walked away, after you 

had asked him whether or not there was an imminent danger, what happened? 

A. we moved the supply cars into the side 

track, called the dispatcher and told him that 

the area was open, and ready for traffic. 

Q. Had Mr. Turpin been in the area during the 

day? 

Ao Mr. Turpin worked on the rehabilitation 

work the entire day, yes" 

Q. would he have seen the top during the time 

it was exposed? 

569 
A. Yes, he would have. 

Q. Did he, you testified that Mr. Harmon did 

not, did Mr. Turpin express to you, on the 

afternoon of the 11th, concerns that there was 

a dangerous condition, as a result of the condition of the roof? 

A. No. 

Q. Did that area have to be fire bossed 

before it was reopened? 

A. Yes, it did. 

Q. was it fire bossed? 

A. Yes, it was. 

Q. Who was the fire boss? 

A. Dill Kendall. He's the rank and file 

pumper who portals at Mt. Morris, who fire 

bossed that area that day. 

Q. Did anybody, during the rehabilitation 

work, or afterwards, during the haulage, once 

it was recommenced, suggest that the conditions were unsafe and invoke the rights not to 

work in the area? 

A. No. 

Q. Let us go back. After the haulage was 

started .back up, about what time was that? 

A. Right at the four o'clock area, a few 

minutes before, a few minutes after. 

Q. Where was Mr. Harmon at this time? 

A. At this time he was at Three North 

Junction waiting for the trip to pass so he 

could proceed on to Bowers Portal. 

Q. Did traffic continue through the evening 

shift, to your knowledge? 

A. Y~s, it did. 

570 
Q. Throughout that time, were there any complaints regarding the safety of the haulage 

area? 

A. Not to my knowledge. 

Mr. Myers confirmed that on December 12, he was aware of 

the fact that Mr. Amick was going to send Mr. Harmon and the 

other committeemen letters removing them from the safety 

committee. Mr. Myers was also aware that Mr. Harmon has contacted federal and state mine officials, and no disciplinary 

action was taken against him. He confirmed that the action 

taken against him to remove him from the committee was solely 

pursuant to the contract (Tr. 230). 

On cross-examination, Mr. Myers reiterated that 

Mr. Harmon made no mention of any bad top, and although the 

top was exposed at the time of the accident for 3 or 4 hours, 

repairs were made and the area was rehabilitated. During the 

rehabilitation work where there was some unsupported roof, 

the men doing the work were cautioned not to work in those 

areas or the top was supported. He stated that "we didn't 

ignore the top. We paid attention to it, and took care of 

what needed to be taken care of in order to safely rehabilitate the area" (Tr. 233). 

Mr. Myers stated that Mr. Harmon works out of his portal, 

and he was aware of the fact that he was an active committeeman and had made numerous complaints. Mr. Myers confirmed 

that most of the complaints were made to him, and that the 

inspectors to whom complaints were made were at his portal. 

Mr. Myers did not believe that Mr. Harmon was taking his job 

"too seriously, 11 and he stated that he encouraged him to bring 

any safety problems to his attention so that they could be 

taken care of. He stated that he had no bad feelings or 

resentment towards Mr. Harmon, and that he was not the only 

one who complained (Tr. 236). Mr. Myers believed that 

Mr. Harmon was sincere in carrying out his safety committee 

duties, but believed that he 11 over-reacted11 when he demanded 

that "we clean up this little pile of spillage there, beside 

the track11 (Tr. 238). He further explained as follows (Tr. 

2 39): 

Q. Do you think, in joining as a member of 

the safety committee, in the closure of that 

area of the mine after it had already been 

reopened, was a case of his being mistaken, 

going overboard, if you will? 

571 
A. Well, when he agreed that that area should 

be shut down, yes, that's going overboard. 

That's going out of bounds. 

Q. You would agree that the committee exercised their Article Three rights,1and management's response under the' Article was 

appropriate? 

A. Absolutely. 

Q. Would that response, in your view, be 

appropriate regardless of who the individuals 

involved were? 

A. Yes. 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105Cc) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

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

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub~· 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Company, 3 FMSHRC 801 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Doge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no 

way motivated by protected activity. If an operator canpot 

rebut the prima facie case in this manner, it may nevertheless 

affirmatively defend by proving that it was also motivated by 

the miner's unprotected activities alone. The operator bears 

the burden of proof with regard to the affirmative defense. 

Haro v. Magma Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of persuasion does not shift from the Complainant. 

Robinette, supra. See also Baich v. FMSHRC, 719 F.2d 194 

(6th Cir. 1983); and Donovan v. Stafford Construction Company, 

No. 83-1566, D.C. Cir. (April 20, 1984) (specifically-approving 

the Commission's Fasula-Robinette test). See also NLRB v. 

Transportation Management Corporation, ~- U.S. -;-76 L.Ed.2d 

572 
667 (1983), where the Supreme Court approved the NLRB's virtually identical analysis for discrimination cases arising under 

the National' Labor Relations Act. 

The crux of Mr. Harmon's complaint lies in his belief 

tha~ the respondent removed him from the mine safety committee 

in retaliation for his vigorous activities as a member of the 

safety committee. With regard to the safety committee's 

unilateral closing down of the.haulage section in question on 

December 12, 1984, the incident which precipitated his removal 

from the safety committee, Mr. Harmon asserted that the committee had closed down areas of the mine in the past and no 

action was taken by management to remove them from the safety 

committee. Under the circumstances, Mr. Harmon concludes that 

the respondent discriminated against him by removing him from 

the safety committe~, and he implies that he was removed 

because of his overall safety concerns and activities as a 

member of the safety committee. Further, although stated in 

general and nonspecific terms, Mr. Harmon also alleged that 

the respondent sought to intimidate or harass him prior to his 

removal because of his activities as a member of the safety 

committee, and he views his removal from the safety committee 

as yet another incident of intimidation by mine management. 

Mr. Harmon's counsel conceded that Mr. Harmon's allegations of intimidation and harassment prior to his removal 

from the safety committee, made for the first time during the 

hearing, were not included as part of his original discrimination complaint (Tr. 113). When asked how Mr. Harmon intended 

to substantiate these allegations, counsel responded "he has 

no direct testimony, or anything like that. I guess, he is 

more, seemingly to me, indicated that it was more of an attitude of just expressions that were made to him, that kind of 

thing, that indicated to him at the time" (Tr. 144). 

The record establishes that Mr. Harmon was an aggressive 

and active member of the mine safety committee. He alluded 

to some fifty safety complaints which he filed with mine management, and to the initiation of some 20 section 103(g) 

inspections which resulted in at least 15 inspection visits 

to the mine by MSHA inspectors (Tr. 173-174). However, 

Mr. Harmon conceded that mine management always attended to, 

and took care of his complaints, and in those instances where 

he and mine management had differences of opinions as to the 

existence of any vi0lative conditions, he f~eely requested 

section 103Cg) inspections by MSHA with no interference by 

mine management (Tr. 173-174). 

573 
Mr. Harmon conceded that prior to his removal from the 

safety committee, mine management addressed his safety complaints in a manner that was to his satisfaction. He also 

conceded that he performed his safety committeeman's job 

unimpeded by mine management, and that he did so with no 

harassment or intimidation by management (Tr. 174). Although 

he alluded to certain cursing by a shift foreman, and certain 

'temarks and "frowns" by superintendent Myers over his safety 

committeeman's duties, Mr. Harmon confirmed that he could 

think of no incidents of intimidation by mine management 

prior to his removal from the safety committee (Tr. 94). 

Mr. Harmon conceded that in his capacity as a safety 

committeeman he had occasions to call in state and federal 

inspectors, and that mine management did nothing to harass or 

intimidate him .(Tr. 94). Mr. Harmon also conceded that management never attempted to remove him from the safety committee as a result of these past incidents (Tr. 95, 105). He 

also conceded that when past requests for shutting down any 

mine area were made to mine management, management reacted 

favorably to the requests and never attempted to remove the 

safety committeemen for making the requests (Tr. 97-98). 

Mr. Harmon also confirmed that during his tenure as a committeeman, he was never refused permission to be excused from 

work to perform his safety committeeman's duties (Tr. 23). 

After careful review of the record as a whole, I find no 

credible testimony or evidence to support any conclusion that 

Mr. Harmon was harassed, intimidated, or otherwise impeded by 

mine management in the exercise of his duties as a member of 

the mine safety committee prior to the time that he was 

removed from that committee, and his allegations in this 

regard are rejected. I conclude and find that Mr. Harmon has 

failed to make out a prima facie case on this aspect of his 

complainto 

With regard to the concerted action by the safety committee in shutting down the track haulageway, although the record 

reflects that committee chairman David Laurie actually gave 

the order to the dispatcher to shutdown the track haulage, and 

then called in the state and federal mine inspectors, 

Mr. Harmon and the other member of the safety committee were 

at the scene, concurred and agreed with the decision to close 

the area, signed the statement reflecting their joint responsibility for their action, and they all waited for and accompanied the inspectors back to the area after it was closed. 

574 
Under the circumstances, I conclude that each of the committeemen, including Mr. Harmon, bear equal individual responsibility and accountability for their collective action in shutting 

down the area in question. 

It is clear that Mr. Harmon had a protected right to 

serve on the safety committee, and the respondent may not discriminate against him because of his duties as a committeeman. 

Mr. Harmon had a right to file complaints, request section 

103(g) inspections, and inform mine inspectors of conditions 

which he believed were unsafe, and management is prohibited 

from interferring with these activities, and may not harass, 

intimidate, or otherwise unduly impede Mr. Harmon's participation in those activities. However, Mr. Harmon's service as a 

member of the safety committee does not insulate him from nondiscriminatory personnel actions, UMWA ex rel Billy Dale Wise 

v. Consolidation Coal Company, 4 FMSHRC 1307 (July 1982), 

aff'd by the Commission at 6 FMSHRC 1447 (June 1984); Ronnie 

R. Ross, et. al v. Monterey coal Company, et. al., 3 FMSHRC 

1171 (May 1981). 

The facts in this case do not suggest a situation in 

which Mr. Harmon sought to exercise his own personal right to 

refuse to work or to walk away from a condition which he 

believed to be unsafe. Acting in concert with the other two 

members of the safety committee, Mr. Harmon effectively closed 

the mine. Mr. Harmon believes that he acted within his committeeman's authority in shutting down the track haulage area, 

and he disagrees with the two prior determinations which are 

adverse to his position. Mr. Harmon's belief that he acted 

properly is based on his assertion that the safety committee 

had closed the mine before with no adverse reaction from mine 

management. However, Mr. Harmon could cite no prior instances 

where the safety committee closed any area of the mine, and he 

conceded that this had not been done, and admitted that the 

incident which prompted his removal from the safety committee 

was the first one (Tr. 97-98). 

The respondent's assertion that the Commission lacks 

jurisdiction with respect to any contractual matters under 

the Wage Agreement, and has no jurisdiction to restore 

Mr. Harmon to the safety committee are not well taken. If it 

can be established that Mr. Harmon's removal from the safety 

committee was discriminatory, the Commission and its Judges 

have broad authority under section 105(c) of the Act to order 

an "appropriate" remedy to abate any violation of that section, Brock v. Metric Constructors, Inc., 766 F.2d 469, 472-73 

Cllth Cir. 1985). 

575 
It seems clear to me from the record in this case that 

Mr. Harmon's removal from the safety committee was prompted 

by his actions which resulted in the shutting down of the 

track haulage area in question. It is also clear that the 

committee's action in calling in state and federal inspectors 

to inspect the area after they had shut it down had nothing 

to do with Mr. Harmon's removal from the committee. 

Mr. Harmon conceded that the respondent removed him from the 

safety committee because he and the other members closed the 

track haulage area (Tr. 97). This action by the committee 

effectively closed the mine and interrupted production. 

Mr. Harmon also conceded that his removal from the safety 

committee was made pursuant to the terms of the Wage 

Agreement, and that he was not otherwise disciplined, and 

suffered no change in his normal job classification.(Tr. 163). 

Under the circumstances, the critical issue presented is 

whether or not Mr. Harmon had a protected right to close the 

track haulageway. 

Although Mr. Harmon voiced his displeasure over being 

"passed around" so many layers of supervisors before finally 

being permitted to go to the scene of the derailment, I find 

nothing to suggest that management was deliberately or unduly 

trying to prevent Mr. Harmon from going there, and he was 

ultimately allowed to go, and arrived there later than he 

would have liked. Mr. Harmon confirmed that during his 

tenure as a committeeman, he was never refused permission to 

be excused from work to attend to his safety committeeman's 

duties (Tr. 23). In this regard, I take note of the fact 

that a safety committeeman may not necessarily need management's permission to absent himself from work to attend to 

his mine safety committee duties, Local Union 1110 and 

Robert L. Carney v. Consolidation Coal Company, 1 FMSHRC 338 

(May 1979). 

It is obvious that Mr. Harmon disagrees with the result 

of the two prior adverse determinations affirming mine management's action in removing him from the safety committee. 

Mr. Harmon's disagreement with those decisions lies in his 

apparent lack of understanding or failure to comprehend why 

he was not removed from the committee in the past when the 

safety committee closed certain areas of the mine. However, 

under the applicable Wage Agreement provision in question, it 

is clear that the safety committee has no authority to unilaterally close any area of the mine. The committee's authority 

is limited to making recommendations to mine management that 

miners be withdrawn in those special instances where the 

committee believes that an imminent danger exists. Once the 

committee communicates its belief to mine management that an 

576 
imminently dangerous condition exists in any area of the mine, 

management i~ obligated and required to follow the committee's 

recommendations and remove the miners. 

The respondent asserts that it was acting entirely within 

its•rights under the Wage Agreement in removing Mr. Harmon 

from the safety committee, and that its action was an appropriate and legitimate exercise of its contractual authority 

and discretion to remove a safety committeeman who exceeded 

his authority in shutting down an area of the mine, conduct 

which the respondent views as clearly neither authorized nor 

protected by section 105 of the Mine Act. In support of its 

conclusions, the respondent relies on the January 28, 1985, 

decision of Arbitrator, Thomas M. Phelan, and the June 17, 

1986, decision of the West Virginia Coal Mine Safety Board of 

Appeal·, denying Mr •. Harmon's discrimination complaint under 

state law (Exhibits R-5 and R-11). 

In the arbitration proceeding, the arbitrator concluded 

as follows at page 17 of his decision: 

For the reasons stated in the above 

analysis, I find that there was no imminent 

danger in the area closed down by the Safety 

Committee and there was no reasonably based 

belief on the part of the Committeemen that an 

imminent danger existed there. The action of 

the Committeemen was therefore arbitrary and 

capricious and warrants their removal from the 

Safety Committee. They shall be removed for 

the duration of the 1984 National Agreement. 

In its decision dismissing Mr. Harmon's state discrimination complaint, the state board concluded in pertinent part 

as follows in its order dismissing his complaint: 

Mr. Kelleman and Mr. Snyder find, by a 

preponderance of the evidence, that the case 

presented by the Petitioners did not demonstrate that there was an "imminent danger" 

under the law which would allow the removal of 

the men and therefore there was no discrimination involving any Petitioner in this case and 

deny Petitioner Robert Harmon and Petitioner 

John David Laurie their request to be placed 

back on the Mine Safety Committee at the 

Humphrey Number Seven Mine. 

577 
Although I am not bound by the prior decisions of the 

arbitrator or the state board of appeals, I may nonethele~s 

give deference to an arbitrator's "specialized competence" in 

interpreting a provision of the controlling Wage Agreement, 

Chadrick Casebolt v. Falcon Coal Company, Inc., 6 FMSHRC 485, 

495 (February 1984)1 David Hollis v. Consolidation Coal 

Company, 6 FMSHRC 21, 26-27 (January 1984)1 Secretary on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

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

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

The issue with respect to the existence of any "imminent 

danger" at the scene of the derailment, and the asserted justification for the safety committee's action in shutting down 

the haulage area, was painstakingly considered during the two 

prior proceedings concerning Mr. Harmon's complaints. I have 

carefully reviewed the·voluminous record of those prior proceedings, and I am favorably persuaded as to the correctness 

of these decisions, particularly with respect to the issue of 

the existence of any imminent danger. 

As pointed out by the respondent at pages 7-8, of its 

posthearing brief, although Mr. Harmon asserted that the conditions he observed on the afternoon of December 11, 1984, 

constituted an "imminent danger," he showered, went home, 

permitted 8 hours to pass, and was aware of the fact that men 

were working in and travelling through the area, before taking 

action to close it down. Mr. Harmon himself travelled through 

the area, the area had been firebossed by the UMWA before haulage was reestablished, and no miners, including Mr. Harmon or 

the other members of the safety committee, exercised their 

individual right not to work in the area (Tr. 132-136). Further, the record establishes that traffic was moving through 

the area while Mr. Harmon was at home, men were working to 

correct the conditions, and in fact, after the area was 

ordered closed down by Mr. Laurie, he permitted a trip of coal 

cars to pass through the area. 

Mr. Harmon conceded that he never used the term "imminent 

danger" during his discussions with Mr. Myers, nor did he use 

that term in his discussion of the contractual provision with 

Mr. Myers (Tr. 139, 146). Mr. Amick and Mr. Myers corroborated that neither Mr. Harmon or any other members of the 

safety committee mentioned anything about any "imminent danger" at the time the committee shut the haulage area down, and 

I take note of the fact that the joint statement signed by 

Mr. Harmon and the other two committeemen (exhibit R-2), justifying their action, makes no mention of any "imminent danger." 

578 
Under all of the aforementioned circumstances, and on the 

basis of the entire record as a whole, I conclude and find 

that it does not support any conclusion of the existence of 

any imminent danger at the time of the closing of the track 

haulage area by the safety committee. Since no imminent danger existed, I further conclude and find that the action by 

the safety committee was unauthorized and contrary to the 

clear terms of the applicable Wage Agreement provision relied 

on by the respondent to remove Mr. Harmon from the safety 

committee, and that Mr. Harmon's participation in that decision was not protected activity. I further find no credible 

evidence to support any conclusion that the respondent's 

action in removing Mr. Harmon from the safety committee was 

motivated in any way by management's desire to punish him, or 

to otherwise retaliate against him, for his vigorous enforcement activities as a member of the safety committee. I also 

conclude that the respondent's removal of Mr. Harmon from the 

safety committee was well within its discretionary managerial 

rights to direct the workforce and manage its own mine. 

CONCLUSION AND ORDER 

In view of the foregoing findings and conclusions, and 

after careful consideration of all of the credible evidence 

and testimony adduced in this case, I conclude and find that 

the complainant has failed to establish a prima facie case of 

discrimination by the respondent. Accordingly, the complaint 

IS DISMISSED, and the complainant's claims for relief ARE 

DENIED. 

,, Ge'Orgt¥ d~d·~.u::~ A. /Koutras 

Adminitrative Law Judge 

Distribution: 

Jeff Harris, Esq., 436 Melrose Street, Morgantown, WV 26505 

(Certified Mail) 

Thomas N. McJunkin, Esq., Jackson, Kelly, Holt & O'Farrell, 

1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322 

(Certified Mail) 

Mr. James H. Harmon, Jr., Rt. 2, Box 145, Rivesville, WV 

26588 (Certified Mail> 

/f b 

579 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW. JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 161987 

RONALD TOLBERT, 

Complainant 

. . DISCRI¥INATION PROCEEDING 

v. Docket No. KENT 86-123-D 

CHANEY CREEK COAL CORP., 

Respondent 

Dollar Branch Mine 

DECISION 

Appearances: Tony Oppegard, Esq., Appalachian Research & 

Defense Fund of Kentucky, Inc., Hazard, 

Kentucky, for Complainant~ 

Thomas w. Miller, Esq., Miller, Griffin & 

Marks, Lexington, Kentucky, for Respondent. 

Before: Judge Melick 

This case is before me upon the Complaint by Ronald 

Tolbert under section 105(c)C3) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act" 

alleging ~hat Chaney Creek Coal Corporation (Chaney Creek) 

failed to hire him (or rescinded its February 25, 1986, 

hiring of him) in violation of section 105(c)(l) of the Act 

because he testified in a discrimination proceeding against 

Chaney Creek on behalf of another coal miner.~/ 

!7 Section 105Cc)(l) of the Act provides in part as follows: 

"No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the statutory rights of any miner • • • or applicant for employment in 

any coal or other mine subject to this Act because such miner 

••• or applicant for employment ••• has instituted or 

caused to be instituted any proceedings under or related to 

this Act or has testified or is about to testify in any such 

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

himself or others of any statutory right afforded by this 

Act." 

580 
In order for the Complainant to establish a prima facie 

violation of section 105(c)(l) of the Act he must prove by a 

preponderance.of the evidence that he engaged in an activity 

protected by that section and that the discriminatory action 

taken against him was motivated in any part by that protected 

activity. Secretary on behalf of Pasula v. Consolidation 

Coal'Company, 2 FMSHRC 2786 (1980), rev'd on other grounds 

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

1211 (3rd Cir. 1981). The Respondent may rebut the prima 

ie case by showing either that no protected activity --- occurred or that the adverse action was not motivated in any 

part by protected activity. Secretary on behalf of Robinette 

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

If the Respondent cannot rebut the prima facie case in 

this manner it nevertheless may defend affirmatively by 

proving· that Cl> it was also motivated by the miner's unprotected activities, and (2) it would have taken the adverse 

action in any event for the unprotected activities alone. 

The Respondent bears the burden of proof with regard to the 

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

1935 Cl982). The ultimate burden of persuasion does not 

shift from the Complainant. Donovan v. Stafford Construction 

Company, 732 F.2d 954 CD.C. Cir. 1984); Boich v. FMSHRC, 719 

F.2d 194 (6th Cir. 1983). The Supreme Court has approved the 

National Laoor Relation's Boards virtually identical analysis 

for discrimination cases arising under the National Labor 

Relation's Act.· NLRB v. Transportation Management Corp., 462 

U.S. 393 (1983). 

The Complainant herein was laid off from his underground 

mining job with Chaney Creek in February, 1985. On January 15, 

1986, while still on layoff status, Tolbert testified on behalf of former co-worker Odell Maggard in a section 105Cc} 

case against Chaney Creek. (See Maggard v. Chaney Creek Coal 

Corp., 8 FMSHRC 806 (1986)). Tolbert testified in that case 

that he had been shocked in Chaney creek's White Oak mine by 

the same electrical trailing cable which Maggard claimed had 

shocked him and which led to Maggard's protected work refusal. 

Tolbert 1 s testimony therefore provided important corroboration for Maggard who subsequently prevailed in his case 

against Chaney Creek. It is not disputed that Tolbert, by 

testifying in Maggard's 105(c) case, thereby engaged in 

protected activity. 

The issue then whether Chaney Creek was motivated in 

any part by this protected activity. Pasula, supra. The 

evidence in this regard is circumstantial. Tolbert maintains 

that he was hired by Superintendent Clyde Collins at the mine 

site and told to report for work later that day after 

581 
completing some administrative paperwork at Chaney Creek's 

off ice in London, Kentucky. He further maintains that it was 

the standard practice for Collins to hire the men he wanted 

before sending them over to complete the paperwork. According 

to Tolbert it was only after Chaney Creek personnel director 

Steve Shell was told of Talbert's participation in the 

earlier 105(c) trial against Chaney creek that he was 

sutldenly denied employment. Chaney Creek on the other hand 

has advanced several different reasons for its failure to 

hire (or its discharge of) Tolbert but in any event denies 

that it relied in any part on Talbert's protected activity. 

For the reasons set forth in this decision I find Talbert's 

allegations to be credible. At the same time I find Chaney 

Creek's purported defenses to be without credible evidentiary 

support. 

It is essentially undisputed that on February 25, 1986, 

approximately six weeks after his testimony in Maggard's 

case, Tolbert went to the White Oak mine seeking employment. 

He arrived around 9:30 or 10:00 a.m., and asked Richard 

Woodard the "outside man" if Chaney Creek was hiring. 

Woodard told Tolbert that he would have to talk to Clyde 

Collins, the mine superintendent who was then underground. 

While Tolbert was waiting for Collins he helped Woodard 

shovel around the outside beltline. When some rocks from the 

moving beltline fell onto the head drive, Woodard climbed 

onto the hopper to remove them. In doing so, Woodard fell 

into and became wedged in the hopper. Unable to get out and 

afraid he would be carried over the top of the stacker, 

Woodard hollered for help. Tolbert heard Woodard's cries for 

help, cut off the power to the beltline and helped him get 

out. 

Because Tolbert had come to Woodard's rescue, Woodard 

said he would talk to Collins about hiring Tolbert. When 

Collins later came out of the mine, Woodard reported what 

Tolbert had done, and told Collins that he would be appreciative if Collins would give Tolbert a job. 

The evidence about subsequent events is in dispute. 

According to Tolbert, he waited in the parts shed while 

Collins, Woodard and Terry Wilson, the "outside foreman", met 

in the adjoining mine off ice. After a few minutes, Wilson 

motioned for Tolbert to come to the off ice. According to 

Tolbert, Woodard then told him that he had a job servicing 

equipment and helping with the roof bolting on the third 

shift. Woodard gave Tolbert directions to Chaney Creek's 

office in London, Kentucky, and told Tolbert to report there 

582 
to have his "paperwork filled out." Tolbert says that he 

then asked Collins what time he should report to work that 

night, and Collins allegedly told him to "be sure and be here 

no later than 20 'til eleven" with his work gear "to start 

work. 11 

I find that the credible evidence supports Talbert's 

testimony that Clyde Collins indeed told him on February 25th 

to report to work that night on the 3rd shift. In this 

regard Terry Wilson confirmed that "Clyde Collins told 

[Tolbert] to go to London [the location of Chaney Creek's 

offices] to sign up and come out on 3rd shift that night." 

Woodard also tends to corroborate Tolbert. Although Woodard 

claims he did not hear Collins tell Tolbert to report to work 

that night, he nevertheless testifed that he had the 

impression on February 25th, that Tolbert "had a job if 

everything was approved and he went over [to the Chaney Creek 

offices] and done the paper work." In addition Woodard 

acknowledged that he stated at his deposition that Collins 

"indicated that he would hire [Tolbert] if he went over there 

and everything was approved. 11 ~/ 

The evidence also shows that Collins had good reason to 

hire Tolbert that day. It is not disputed that Tolbert had 

just saved Woodard from possible serious injuries and Woodard 

had asked Collins to reward him with a job. Woodard acknowledged that Tolbert 11 really helped me out" and testified that 

he told Collins he would appreciate it if Collins gave 

Tolbert a job. 

While Collins denied at hearing that he had hired 

Tolbert I do not find Collins' testimony to be credible in 

critical respectso It is significant to note that on 

February 25th the date Tolbert maintains he was hired by 

Collins, Collins did not know that Tolbert had testified 

2/ Woodard testified at his deposition that Collins said he 

;ould hire Tolbert "if he went over there and everything was 

approved"o He testified at hearing on the other hand that 

Collins said he would hire Tolbert after he filled out an 

application at Chaney Creek office but only "if he needed 

him." If Collins did not know whether he needed Tolbert at 

that time it is unlikely under the procedure then followed by 

Chaney Creek that Collins would have bothered to send Tolbert 

to the mine off ices to fill out an application. Under the 

circumstances I g but little credence to Woodard's testimony that Talbert's hiring was subject to essentially a 

second determination by Collins of whether he was 11 needed 11 • 

583 
against the interests of Chaney Creek in Maggard's section 

105(c) case. Collins' motivation for his testimony at 

hearing arose only after Chaney Creek officials had failed to 

hire Tolbert because of his prior testimony. 

A number of inconsistancies between Collins' testimony 

and the testimony of other witnesses called on behalf of 

Chaney Creek also shed doubt on Collins credibility. Thus, 

contrary to Woodard's admission, Collins ~enied that Woodard 

had even asked him to give Tolbert a job. Collins testified 

that he "never discuss~d hiring [Tolbert]" with Woodard. 

Collins also testified that Steve Shell, Chaney Creek's 

Personnel Director, had informed him that Tolbert's miner 

identification card was not up to date, while Shell testified 

that had never discussed the matter with Collins. In · 

addition the· evidence shows that Collins told the special 

investigator for the Federal Mine Safety and Health Administration (MSHA) that he did not even know if Tolbert had gone 

to the London off ice to fill out an application after he left 

the mine on February 25, whereas Collins admitted at hearing 

that Tolbert had called him from Chaney Creek's London office 

that same afternoon. Collins' testimony that he simply told 

Tolbert to fill out an application at the London off ice 

because he might hire him in a day or two is also not 

consistent with Talbert's failure to have checked back with 

Collins as Collins alleges. 

Moreqver the credible evidence in this case clearly 

demonstrates that Clyde Collins regularly told prospective 

employees that they were hired and that they were hired 

before he told them to fill out a job application at Chaney 

Creek's London offices. Indeed six miners who began work at 

the White Oak mine from the beginning of January through the 

beginning of March 1986 all testified that they were not 

instructed to fill out a job application until after Collins 

told them they were hired.3/ Before the date these miners 

were hired and instructed to report to the London off ice all 

had previously asked Collins for a job and were simply told 

to check with Collins again. None were told to submit a job 

application on the occasion or occasions they were not hired. 

Thusv for example, Bobby Hensley had asked Collins for a job 

5 or 6 times before being hired and was not told on those 

occasions to fill out a job application. In addition Matt 

Gross had spoken with Collins 20 to 25 times before the date 

3/ See the testimony of James Miracle, Elmer Davis, Robert 

Hensley, Lawrence Shepherd, Gleniss Nelson, and Matt Gross. 

584 
he was hired without being told to report to the London 

off ice. 

The record also shows that 19 of the 30 miners hired 

during the weeks ending January 5, 1986 through March 9, 

1986, began work on the same date they filled out their job 

application. The record further shows that another 7 miners 

started work the next workday after their application was 

completed. Thus 26 out of the 30 miners who were hired 

during the relevant period begarr work either the same day or 

the next work day after their employment application was 

completed. Of the 4 remaining miners, 3 began 2 workdays 

after submitting their job application, and 1 began 6 days thereafter.~/ 

Consistent with this pattern or practice at Chaney 

Creek, ·outside Foreman Terry Wilson, who is familiar with 

Collins' hiring procedures, testified that when Collins 

"decided to hire [new employees] he would tell them to go to 

London and fill out an application." Thus it may reasonably 

be inf erred that Tolbert had indeed already been hired by 

Collins before he went to the London off ice. Within this 

framework of evidence I conclude that Collins had indeed 

offered Tolbert a job on February 25th subject only to 

Talbert's completing the formalities of filling out a job 

application.form at Chaney Creek's offices in London, and to 

a rarely exercised disapproval by that off ice. 

In any event after Tolbert left the White Oak Mine after 

being told to report to work that night, he stopped at his 

home, then drove to Chaney Creek's London office. Tolbert 

says that he told Personnel Director, Steve Shell at Chaney 

Creek's office that he had been hired to begin work on the 

third shift that night at White Oak mine. Shell told Tolbert 

to come into his off ice to complete his paperwork. Shell 

filled out Talbert's employment application in his office, 

and then gave Tolbert a Chaney Creek Coal Corporation 

employee handbook.~/ Shell than asked Tolbert for a copy of 

4; Although there were actually 33 miners hired at the White 

Oak mine during this period, the record shows that employment 

applications for 3 of the miners could not be located by 

Chaney Creek. 

5/ It is stated in the introduction to the mandbook that 

"[t]his handbook is to familiarize the employee of Chaney 

Creek Coal Corporation with the company policies in mining 

practices, personnel management and safety rules." (emphasis added). · 

585 
his Kentucky miner identification card.6/ Tolbert, apparently 

gave Shell an out-of-date 1984 card. Shell then told Tolbert 

that he would be back in a few minutes, and left his office. 

While Shell was completing Tolbert's application, but 

before leaving his office, Daryl Napier walked by Shell's 

office and saw Tolbert. Napier was Chaney Creek's representative.at the Odell Maggard discrimination hearing and was 

present during Tolbert's testimony at that proceeding. Shell 

was gone from his office, out of Talbert's sight, for about 5 

minutes. When he returned, Shell reviewed the employee 

handbook with Tolbert for 5 or 10 minutes. After reading 

through the handbook with Tolbert, Shell told Tolbert that he 

could not hire him "because he'd hired too many men that day." 

When Tolbert told him that Collins had already given him a 

job on the third shift, Shell repeated that he could not hire 

Tolbert because he had hired too many men that day. 

As Tolbert was leaving to return home he saw Daryl 

Napier loading supplies. Tolbert approached Napier and told 

him that Collins had hired him for the third shift and had 

instructed him to come to London to get his paperwork filled 

out, but now the company would not hire him. Tolbert asked 

Napier if the fact that he had testified against the company 

was being held against him, and Napier purportedly replied, 

"I wouldn't think so, that would be hard to say." 

Napier suggested that Tolbert call Clyde Collins at the 

White Oak mine to be sure he had been hired. When Tolbert 

told Napier that there was no point in calling Collins 

because Collins had already told Tolbert he'd been hired 

Napier insisted that Tolbert call. Napier and Tolbert then 

went back into Chaney Creek's office, where Napier dialed the 

White Oak mine from a telephone on the receptionist's desk by 

6; This card is issued annually by the Kentucky Department 

of Mines & Minerals to miners who have completed their annual 

retraining. The card lists the miner's name, identification 

number, qualified occupations, and an expiration date. The 

card expires on the last day of the given calendar year. 

586 
the front door.7/ Tolbert says that he then explained to 

Collins that Shell had said Chaney Creek could not hire him, 

and he asked Collins "what was going on." Collins then told 

Tolbert that he could not hire him because the continuous 

miner had broken down and he was going to have to lay some 

men off. Tolbert then left the Chaney Creek office and 

returned home. 

The following day, February 26, 1986, Tolbert returned 

to the White Oak mine to talk again with Clyde Collins. 

Tolbert again asked Collins "what was going on," and he asked 

the superintendent if the company had decided not to hire him 

because of his prior testimony. Collins purportedly told 

Tolbert that he did not know. Although Collins had told 

Tolbert the previous afternoon that the continuous miner had 

broken down, the mine was producing coal on the 26th. 

Indeed, Chaney Creek's production reports for February 25 and 

26, 1986 suggest the continuous miner did not require any 

major repairs on those dates. 

Although Tolbert had given Shell his expired 1984 miner 

identification card at Chaney Creek's office on February 25, 

1986, Shell failed to notice that the card was out-of-date 

and did not discuss the matter with Tolbert. Indeed Shell 

readily acknowledged at hearing that the fact that Talbert's 

miner identification card was expired had nothing to do with 

the decision not to hire him. 

According to Terry Wilson, on February 26th he asked 

Collins if Tolbert had reported to work the night before. 

Collins purportedly told Wilson that the company had called 

him "from the office" and told him not to put Tolbert to work 

because Tolbert "had testified in a case against them."V 

~/ While Shell testified that he, not Napier, suggested that 

Tolbert call Collins, he was vague and equivocal as to why he 

wanted Tolbert to make the call. Shell testified at one 

point that it was because he wanted to save Tolbert the trip 

of driving back to the mine so Tolbert could find out "when 

he might be hired or something along that line" and at 

another point testified that it was because he (Shell) was 

just "curious [about] what was going on." 

~/ Even assuming, arguendo, that Wilson had been subsequently fired from Chaney Creek for allegedly stealing gas 

and thereby may have been motivated by ill will, I nevertheless find his testimony internally consistent, forthcoming 

and credible. 

587 
Although Chaney Creek hired approximately 47 new miners from 

February 25, 1986, through July 7, 1986, Tolbert was not 

among those hired. In fact, although given opportunity to do 

so Chaney Creek had still not hired Tolbert as of the date of 

the hearing. 

In defense Chaney Creek argues in i~s post hearing brief 

that Tolbert was not hired for two independent and unprotected reasons i.e., that there was a temporary hiring freeze 

in effect on February 25, 1986, and that Tolbert did not have 

a current miner's card. The former reason was advanced only 

after Tolbert had been given an employee handbook on 

February 25th, when Shell purportedly told Tolbert that 

Chaney Cree~ could not hire him because it had hired too many 

men that day. However, when Tolbert called Collins at the 

White oak mine shortly therafter, Collins said that he could 

not hire him because the continuous miner had broken down and 

he would have to lay some miners off. 

Shell testified that he told Tolbert on February 25th 

that there was a "hiring freeze" at the White Oak mine. 

However in Shell's sworn statement to an MSHA investigator on 

May 1, 1986, he failed to even mention any such hiring freeze 

as a reason Tolbert was not hired. Rather, Shell stated that 

he told Tolbert to call Collins in order to get a starting 

date, but that Collins did not give him a date. Shell's 

complete ~tatement to MSHA is as follows: 

"On February 25, 1986, Ronald Tolbert came into the 

office and said they told me to come in and fill 

out an application. I asked Tolbert if they 

(whoever sent him to fill out an application1 I 

don't remember who he said sent him) told him when 

he was to report for work. Tolbert said that they 

did not give him a date. 

I filled out Talbert's application, then I gave him 

the telephone to call the mine and talk to Clyde 

Collins, Supe~intendent, to get a starting date as 

to when he would start to work. After Tolbert 

talked to Collins, he said Collins told him that he 

would not be starting to work at Chaney Creek. No 

date was given as to when he would start to work. 

During the week of February 11, 1986, there had 

been five employees laid off at [Chaney Creek]. 

Tolbert then went outside of the off ice and talked 

to Daryl Napier, Production Manager. I did not 

talk to Tolbert anymore. 

588 
It is the policy of this company for anyone to fill 

out an application before they are hired." 

Collins, on the other hand, testified that when Tolbert 

called him on February 25th from the London off ice, Tolbert 

"asked me about a job and I told him to check back with me." 

However, this assertion likewise contradicts the sworn statement that Collins gave to the MSHA investigator on April 30, 

1986. That statement is as follows: 

"On February 25, 1986, Ronald Tolbert came to the 

mine and asked me for a job. I told Tolbert that I 

was not hiring at the time, but maybe later. I 

told him if he wanted to he could go to the main 

of~ice in London, Kentucky, and fill out an application. I did not tell Tolbert he was hired. 

Tolbert then left the mine. I don't know if he 

went to the main off ice and filled out an application or not. 

This is all I know about Tolbert." 

Although neither Shell or Collins mentioned a hiring 

freeze when .they gave their sworn statements to the MSHA 

investigator, Chaney Creek raised this defense in its 

October 8, 1986, response to the prehearing order issued by 

the undersigned.in this proceeding. In that part of its 

response entitled "Statement of Issues," Chaney Creek stated 

that when Tolbert filled out his job application on February 

25th, "Chaney Creek was not hiring any new miners, but rather 

was in the process of laying off several miners." · 

It may reasonably be inf erred from this failure of the 

two principal members of Chaney Creek's management involved 

in this case to even mention a hiring freeze when questioned 

about the case approximately two months after Tolbert was 

denied employment, that the purported excuse was nothing more 

than a pretextual afterthought. In addition the underlying 

evidence refutes Chaney Creek's claim that there was a hiring 

freeze in effect on February 25th. 

Shell testified that the freeze began "less than a week" 

before February 25th and lasted "approximately a week after 

February 25th." Kenneth Gilliam, Chaney Creek's safety 

director, testified that the hiring freeze had been in effect 

for "about a week" prior to February 25th and that Chaney 

Creek had not hired any employees or taken any job applications during that week. Chaney Creek's answers to Talbert's 

requests for admissions reveal however that 13 miners were 

589 
hired at the White Oak mine between February 24th and March 

4th, all during the alleged freeze. Indeed, three miners 

(Glennis Nelson, Lawrence Shepherd, and Tony A. Smith) were 

hired on February 24th, and one miner (Bobby Howard) was 

hired on February 25th, the same day that Tolbert was turned 

away. Two more miners (Alvin Caldwell and Gerald Lawson) 

were hired on February 28th, and 7 additional miners were 

hired the following week. Although Shell stated that it was 

their practice for Collins to call him when he hired a miner 

to replace another miner Cwho had quit, been discharged, or 

injured), and that he (Shell) would receive this information 

before the miner reported to the Chaney Creek off ice, Shell 

did not know whether any of the 13 miners hired between 

February 24th and March 4th had in fact replaced other 

miners. 

It is also significant that Chaney Creek's prehearing 

assertion that it was "in the process of laying off several 

miners" on February 25th is contrary to the evidence of 

record. The evidence shows that not only were 13 miners 

hired during the alleged hiring freeze, but that no miners 

were laid off at the White Oak mine from mid-February to 

mid-April, 1986. 

If there had been a hiring freeze at the White Oak mine 

on February 25th, as Respondent now alleges and if Shell had 

told Collins about the freeze as Shell testified, it is not 

reasonable to believe that Collins would have failed to tell 

Tolbert about the hiring freeze either when Tolbert was at 

the mine on the morning of February 25th, or when Tolbert 

called Collins later that day from the London off ice. Moreover, if there had been a hiring freeze, it is not reasonable 

to believe that Shell would then have told Tolbert to call 

Collins to get a starting date. 

Collins testified that when Tolbert called him from the 

London off ice, Tolbert "asked about a job" and Collins told 

Tolbert to check back with him. Howeverv if Collins had told 

Tolbert that morning to submit an application and then to 

check back with him in a couple daysr as Collins claims, 

it is not reasonable that Tolbert would have called Collins 

again a few hours later to ask about a job. 

It is also noted that when Shell was first asked at 

hearing why Tolbert was not hired by Chaney Creek, Shell 

replied, "[a]t that period of time there was a ••• temporary hiring freeze." However, after it was established at 

hearing that many miners had been hired after February 25, 

1986, Shell advanced another explanation. Thus when asked 

why Tolbert was not hired when the freeze was lifted, Shell 

590 
replied, 11 [h]e didn't go back to the mine is the only thing I 

can tell you." 

The argument that Tolbert was not hired because he did 

not report back to the White Oak mine is not however reasonable under the circumstances. Although he denied hiring 

Tolbert, Collins testified that he did tell Tolbert on 

February 25th that he might hire him 11 in a day or two," and 

that Tolbert should check back with him. Shell testified 

that he told Tolbert on February 25th that Chaney Creek would 

not be hiring for only 11 a short period of time." Under the 

circumstances, it is not reasonable to believe that Tolbert, 

who was looking for a job, would not have reported back to 

the White Oak mine and/or to the London office in the next 

few days. It defies common sense to believe that a miner who 

is seemingly on the verge of obtaining a needed job would 

ignore instructions to contact his prospective employer again 

in a couple of days, b~t rather would opt for filing a discrimination complaint against that company. 

Finally even assuming, arguendo, that there was a temporary hiring freeze at the White Oak mine in effect on 

February 25th, as Chaney Creek alleges, the fact remains that 

Tolbert was not hired when the freeze was admittedly lifted 

approximately one week later. Chaney Creek had hired approximately 47 new miners other than Tolbert between February 

25th and July 7th. Moreover, 14 of these new employees were 

hired as either servicemen or roofbolters, the two jobs which 

Tolbert said he was told on February 25th that he would be 

performing. In addition, another 12 miners were hired during 

this period to perform unskilled work watching (and shovelling) 

either the belt drive or the beltline. These are jobs for 

which Tolbertu or any miner with 6 years experience would be 

well qualified. 

Under the circumstances I find the Respondent's argument 

herein that it did not hire Tolbert because of a "hiring 

freeze 11 , to be without credibility and a pretext. 

Chaney Creek also argues in its posthearing brief that 

Tolbert was not hired because he did not have a current 

miner's card. Chaney Creek explains that it has had a policy 

that miners must be eligible to go underground i.e., they 

must ~ave an up-to-date Kentucky miners identif 1cation card, 

showing that the miner has received his annual retraining 

sometime during the previous calendar year, before the 

company will hire them. However, the question of whether 

Tolbert had an up-to-date miner identification card when he 

went to the Chaney Creek office on February 25, 1986, is not 

material to this proceeding because the question of Talbert's 

591 
training admittedly did not enter into Chaney Creek's 

decision not to hire him. See Pasula, supra.~/ 

Shell, Chaney Creek's personnel director, admitted at 

hearing that the fact that Talbert's miner identification 

card was not up-to-date on February 25, !1986, had nothing to 

do with why Tolbert was not hired. Indeed, Shell admitted 

that he did not even notice at that time that Talbert's card 

was expired, and that he did not discuss the matter with 

Tolbert. 

Moreover neither Shell nor Collins even mentioned 

Talbert's eligibility to go underground as a basis for not 

hiring him in their statements to the MSHA investigator. It 

may reasonably be inferred therefore that this issue was not 

considered by Chaney Creek as a factor in not hiring Tolbert. 

Indeed, Chaney Creek did not even raise the issue of 

Talbert's eligibility to go underground as a defense in its 

Answer filed June 30, 1986; nor did the company raise the 

question in its "Statement of the Issues" in its October 8th 

response to the Prehearing Order. At that time, one week 

before the scheduled hearing, Chaney Creek's sole defense to 

Talbert's claim was that it simply was not hiring on 

February 25th, but rather was "was in the process of laying 

off several miners." It is plainly apparent that this new 

defense arose for the first time at hearing only after it was 

discovered that the evidence would not support the earlier 

alleged defense.lo; 

9; The Commission stated in Fasula that: 

It is not sufficient for the employer to show that 

the miner deserved to have been fired for engaging 

in the unprotected activity; if the unprotected 

conduct did not originally concern the employer 

enough to have resulted in the same adverse action, 

we will not consider it. The employer must show 

that he did 'in fact consider the employee deserving 

of discipline for engaging in the unprotected 

activi alone and that he would have disciplined 

him in any event. 

10/ It is not disputed in this case that Chaney Creek 

ordinarily did require its new employees to be current in 

their training" The application forms submitted into 

evidence show that Chaney Creek customarily did verify 

whether its new employees had received their annual 

retraining. However, in this case, it is clear that Chaney 

Creek did not consider the matter and it is accordingly not 

relevant. 

592 
It is apparent moreover, that even if Chaney Creek 

officials had noticed that Talbert's miner identification 

card was expired, it would have, according to prior prac~ices, simply instructed Tolbert to obtain his annual 

retraining so that he could begin work. Both Shell and 

Collins admitted that Shell had never vetoed or rejected for 

employment any miner who Collins, had sent to the London 

off ice to be formally hired. In fact, in only one instance 

did Shell not formally approve Collins' hiring decision. 

That instance involved two brothers, Elmer and Kermit 

Sizemore, whom Collins hired at the same time, but whose 

training was not up-to-date when Collins sent them to the 

London off ice. When Shell noticed that their training was 

not up-to-date, he simply instructed the miners to obtain 

their training. Botn men then received their training within 

a few days and started to work immediately thereafter. 

Under all the circumstances it is clear that the 

profferred defense, first proposed at the hearings in this 

case, that Tolbert was not qualified to be hired on 

February 25, 1986, because he did not then have an up-to-date 

miner's card is nothing more than another afterthought and 

pretext. Accordingly I find that Chaney Creek did indeed 

ref use to hire Tolbert solely because of his protected 

activity and th~t it was therefore in violation of section 

105(c) (1) of the Act. 

ORDER 

Chaney Creek Coal Corp. is hereby directed to offer 

employment to Ronald Tolbert at no less than the current rate 

of pay in effect for the position of serviceman. The parties 

are further directed to confer to attempt to reach stipulations as to costsu damages, and attorney's fees in this case. 

If they are unable to reach stipulations as to all such 

matters on or before March 20, 1987, f~th.er hearing. will be 

held on such matters on April 1, 1986, t 2:00 p.m. i-n 

London, Kentucky. . , ' 

~ p .. /' J H . I'\:..,~ j \,_) \_./' 

• I Gary Meli k 

Administrative La~ \\ 

\. '\ . 

593 
Distribution: 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified 

Mail) 

Thomas w. Miller, Esq., Miller, Griffin & Marks, 700 Security 

Trust Building, Lexington, KY 40507 (Certified Mail) 

rbg 

594 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

MAR 161987 

EMERY MINING CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

CONTEST PROCEEDINGS 

Docket No. WEST 86-101-R 

Order No. 2835373; 3/20/86 

Docket No. WEST 86-102-R 

Order No. 2835374; 3/20/86 

Deer Creek Mine 

Appearances: Timothy Biddle, Esq. and Susan Chetlin, Esq., 

Crowell & Moring, Washington, D.C., 

for Contestant; 

Edward J. Fitch, IV, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Respondent. 

Before: Judge Morris 

This is a consolidated contest proceeding initiated by 

contestant pursuant to Section 105(d) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq., (the Act). 

In WEST 86-101-R Emery contested a 104(d) (1) order. The 

order, number 2835373, charges respondent with violating 30 C.F.R. 

§ 75.1003(a)o The order reads as follows: 

The trolley cut-out switches in 3rd West 

at the following locations were not guarded where 

persons normally work or are required to cross 

under to throw the switch handles: 3rd West 

switch, bottom of 3rd West hill, top of 3rd 

West hill, underground shop switch, "B" North, 

between 30 & 31 crosscut, "C" North, 3rd South 

switch, 3rd West North drive. There are some 

cut-out switches that are guarded in this entry. 

This condition was known by the company. 

595 
In WEST 86-102-R Emery similarly contested a Section 104(d) (1) 

order, number 2835374, which reads as follows: 

The energized trolley line was not guarded 

at the cut-out switches where men normally work 

or are required to cross under to work or throw 

the switch handles at the following locations in 

1st South; numbers 53, 63, 69, 74, and 78 crosscuts. This condition was known by the company 

to exist. 

The standard allegedly violated, § 75.1003, in its entirety, 

provides as follows: 

Trolley wires, trolley feeder wires, and 

bare signal wires shall be insulated adequately where they pass through doors and 

stoppings, and where they cross other power 

wires and cables. Trolley wires and trolley 

feeder wires shall be guarded adequately: 

(a) At all points where men are required to work or pass regularly under the 

wires; 

(b) On both sides of all doors and stoppings; and 

(c) At man-trip stations. 

The Secretary or his authorized representatives 

shall specify other conditions where trolley wires 

and trolley feeder wires shall be adequately protected to prevent contact by any person, or shall 

require the use of improved methods to prevent 

such contact. Temporary guards shall be provided 

where trackmen and other persons work in proximity 

to trolley wires and trolley feeder wires. 

After notice to the parties, a hearing on the merits took 

place in Denver, Co~orado on July 29, 1986. 

Stipulation 

The parties stipulated that if the Secretary prevails on 

the issue of whether a violation occurred and on the issue of 

unwarrantability then the citation as issued is procedurally 

correct. Further, it was stipulated that exhibits of each party 

were authentic (Tr. 6, 7). It was also agreed that the handles 

on all of the switches 1/ were insulated (Tr. 57). 

1/ The switches are sometimes referred to as blade switches, line 

switches or cut-off switches. 

596 
Issue 

The issue focuses on the applicability of the regulation 

to blade switches on trolley wires. 

Summary of the Evidence 

The evidence is essentially uncontroverted. 

William Ponceroff, a person experienced in mining, has 

been the supervisor of the MSHA Orangeville, Utah office since 

January 1986 (Tr. 12-15). His experience has included six 

months' dealing with trolley haulages (Tr. 15). 

In February 1986 he accompanied MSHA Inspector Jones to 

Emery's Deer Creek Mine. While inspecting with Jones and Gary 

Christensen, the company representative, he observed a line 

switch that had been thrqwn but wasn't guarded. The inspector 

indicated they are regularly used because the rock dust car moves 

in and out of this area (Tr. 15, 16). A miner's hand is close to 

the wire when he reaches up to pull the switch. Christensen 

felt the switch didn't have to be guarded (Tr. 17). On leaving 

the mine into Main West, Ponceroff observed two switches. One 

was guarded and one was not (Tr. 17). Track problems included 

missing and loose bolts as well as gaps in the track (Tr. 18). 

On February 27 Ponceroff discussed the blade switch guarding 

with Dixon Peacock, the company's Deer Creek representative. 

Ponceroff indicated that belt shovelers and supply people were 

operating along the track without a temporary guard (Tr. 19). At 

any time their vehicle could get off the track. If this occurred 

miners could only deenergize the trolley wire by throwing the 

blade switches. The miners could also contact the wire with a 

shovel handle or a scale bar. In some places portions of a miner's 

body could come in contact with the wire (Tr. 20). Since they 

didn't provide a temporary guard, the switches would be reqularly 

used because miners could only perform their duties by pulling a 

line switch (Tr. 20). Ponceroff also observed miners unloading 

timbers under a trolley wire without deenergizing the wire (Tr. 

21) • 

Dixon Peacock indicated he didn't know anything about using 

an MSHA approved temporary guard (Tr. 21). Emery was not cited 

when this condition was first observed in order to give the company 

time to install guards. Ponceroff made it clear that MSHA would 

enforce the regulation (Tr. 22). 

To some extent P9nceroff's interpretation of the regulations 

is stricter than that of his predecessor. The company has cooperated 

with MSHA at the Wilberg and Cottonwood mines (Tr. 23 - 25). 

597 
Poncerof f agreed that on the February 14 inspection he 

observed miners working under the trolley wire where the blade 

switches were guarded (Tr. 28). In the inspector's view some 

of the line switches were installed in such a fashion that miners 

would have to pass under the trolley wire to throw them. This is 

because the handle was on the rib side of the switch (Tr. 29). 

All of the blade switches had to be guarded because miners were 

removing longwall shields and face equipment. In addition, they 

were required in areas where work was being done with scale bars 

and when timbers were installed on the rib side of the wire (Tr. 

29 - 31). In the inspector's opinion it would constitute regularly working or passing under within the meaning of the regulation 

if the switch had to be thrown. The regulation does not require 

guards for all of the trolley lines {Tr. 30, 31). 

The potential· for derailment in this mine was great (Tr. 32). 

In the event of a derailment the line switch would be regularly 

used. Every switch, whether facing the rib or track side, should 

be covered along the main line because of the condition of the 

track {Tr. 33). 

Between February 27 and March 30, Ponceroff did not receive 

any objections to his directive (Tr. 35). 

The inspector believed that every blade switch would be used 

in the course of the life of the mine {Tr. 36). Some would be 

used more than others (Tr. 36). If a miner leaves an area where 

there is no actual mining he would normally use the switch to cut 

off the power {Tr. 36). 

Photographs of an unguarded and a guarded line switch were 

received in evidence (Tr. 37, 42, 43; Ex. Cl, C2, C3). If a 

miner reaches for the switch a guard prevents his hand from contacting the energized trolley wire (Tr. 37 - 39). In pulling the 

switch handle a miner's forearm would be above and within five or 

six inches of the energized trolley wire (Tr. 39, 41). This constitutes a significant shock or electrocution risk (Tr. 42). 

If the blade switch is in place, normally energy flows in 

the energized line (Tr. 40). If the switch is disconnected then 

normally there is power to only one side of the switch (Tr. 41). 

Vern Boston is an MSHA inspector at the Orangeville, Utah 

office (Tr. 46). At a staff meeting in March 1986, Boston was 

advised by his supervisor, Bill Ponceroff, that the blade switches 

on the trolley had to be guarded. The supervisor explained that 

there was exposure to hazards because they were regularly used 

(Tr. 46). Mr. Ponceroff also indicated to Boston that the company 

officials were correcting the condition {Tr. 47). 

598 
• • I On entering the mine, 1 Inspector Boston observed that no 

guards had been installed on any of the line switches on 1st 

South or 3rd West. In addition, no guards had been installed 

along the trolley lines (Tr. 48). The company indicated they 

were working to install the guards but the inspector saw no evidence to support this view. The inspector decided to issue a 

closure order when he counted the 14 unguarded switches. 

However, some were guarded (Tr. 49). 

Mr. Peacock, without further explanation, only stated that 

the company was working to install the guards (Tr. 50). The 

inspector considered the company lacked due diligence because 

they were aware of the condition and permitted it to exist (Tr. 

52) • 

The inspector discussed the situation with Dave Lauriski, a 

company safety director (Tr. 52). 

In Boston's opinion blade switches would be used in the 

normal course of mining activity. These activities would include 

any belt maintenance, as well as greasing, shoveling spills and 

installing timbers (Tr. 55). In addition, he considered a derailment to be a regular occurrence (Tr. 68). In the inspector's 

opinion the violative condition constituted a significant hazard 

with a potential for shock (Tr. 57). 

Inspector Boston felt that every blade switch should be 

guarded (Tr. 57). The very act of throwing the switch requires 

men to pass underneath the trolley wire (Tr. 58). 

Inspector Boston issued order number 2835373 (contested 

in WEST 86-101-R) and order number 2835374 (contested in WEST 

86-102-R) (Tr. 48; Govt. Ex. 1, 2, 3). 

Dixon Peacock identified himself as the senior safety 

engineer for the company (Tr. 69, 70). He assists management 

in making the mine more productive as well as safe (Tr. 70). 

On February 27, 1986, Peacock and Ponceroff discussed the 

guarding of all switches. Peacock discussed it with his immediate 

supervisor who felt no violation existed because the situation 

did not constitute "regular passage" (Tr. 71, 72). No further 

discussions took place with Mr. Ponceroff. 

Peacock was later advised by Dick Jones and Ken Callihan 

that they were going to make a concentrated effort to install 

the sw~tches (Tr. 72, 73, 78). The workers corrected 13 to 18 

switches. It takes about an hour to install a guard (Tr. 74). 

There are about 50 to 65 switches in the mine (Tr. 74). 

Approximately 600 employees work in the mine (Tr. 75). 

599 
The company tries to comply with the MSHA inspectors 

(Tr. 7 6) • 

Dominic William Oliveto, called as a witness by Emery, 

identified himself as the maintenance superintendent for the 

Deer Creek Mine (Tr. 81). The 50 blade sw~tches in the mine 

disconnect the power inby or outby the switch or isolate the 

power at the beginning of each branch circuit (Tr. 82, 83). 

A certified electrician, trained in electrical work and 

wearing protective gloves, throws these switches (Tr. 83, 85). 

All of the electrical equipment is inspected weekly (Tr. 83, 84). 

In most cases ,the electricity flows in both directions in the 

lines (Tr. 84) • 

Title 30, Section 75.509 provides that only a qualified 

person can work on energized equipment (Tr. 84). Other miners 

are instructed not to contact the wire. However, they are instructed to handle emergency situations; in addition, they are 

directed to cross under where ever the trolley is guarded (Tr. 

86, 87). 

Prior to March 20, 1986, the switches were guarded at the 

man trip and material stations. In addition, guards were used 

whenever the switch happened to be in front of a belt crossover 

or in a crosscut with a mandoor through it. These are regularly 

travelled areas (Tr. 94). 

During the blitz electrical inspection of April 1985 no 

mention was made about guarding switches unless they were 

travelled under (Tr. 96). 

Mr. Boston stated he wrote the citation because he had to 

cross under the switch to throw it on or off. Oliveto objected 

because it would prevent you from driving the trolley through 

it because the pull has to ride on it from the bottom (Tr. 97}. 

Oliveto described the hazards involved in connection with some 

of the power guarding (Tr. 99). 

One hand is used to throw an unguarded switch (Tr. 100). 

Oliveto wasn't advised about the situation until after the 

citations were written on March 20 (Tr. 102). 

No temporary guards have been used at the mine (Tr. 102). 

Section 310(d) of the Act requires temporary guards where trackmen and other persons work in proximity to trolley wires or 

trolley feeder wires (Tr. 103). When working on the track, 

the trolley wires are isolated by throwing one or two blade 

switches (Tr. 103). 

600 
Blade switches are required at various locations and intervals (Tr. 103, 104). 

There were two methods available. to guard the blade switches 

(Tr. 106). A various number of electricians are assigned to 

tracks and belt lines (Tr. 108). 

The mine normally operates three shifts a day for a five-day 

week (Tr. 113) • 

Derailing is not uncommon but it is not a daily occurrence 

(Tr. 118) • 

Between February 27 and March 7 the blade switch problem was 

discussed with the mine foreman (Tr. 119, 120). 

Discussion 

Emery asserts that Section 75.1003(a) does not apply to blade 

switches because the regulation does not specifically mention 

switches. In the alternative, Emery states that the Secretary has 

failed to establish the applicability of the regulation in this 

factual setting. 

Emery's threshold contention lacks merit. The relevant 

portion of the regulation requires that "trolley wires ••• shall 

be guarded" under certain circumstances. The evidence establishes 

the trolley wires enter the cut-off switch at each side. By 

pulling the swit9h handle a miner can deenergize the trolley line 

(inby or outby depending on the flow of electricity). The switch 

is accordingly an integral unit of the trolley wire. In sum, the 

switch is merely a conduit through which the trolley wire passes. 

Accordingly, the switches are a part of the trolley wires. They 

They must be guarded at those locations mandated in the regulation. 

Specifically, these are the locations stated in paragraphs (a), 

(b) and (c) of Section 75.1003. 

Emery in this case was cited for violating paragraph (a) 

which requires guarding "where men are required to work or pass 

regularly under the wires." 

The Secretary has failed to offer any evidence to establish 

the violation. In WEST 86-101-R the Secretary's order encompassed 

nine specific locations. In WEST 86-102-R the order encompassed 

five specific locations. 

There is no persuasive evidence that min,ers either worked 

or were required to pass regularly under the trolley wires at 

the locations cited in the orders. Inspector Boston testified 

there were no guards on any of the line switches on 1st South or 

3rd West. But a mere lack of guards does not constitute a violation of the regulation. 

601 
Inspector Boston also described circumstances where the 

normal course of mining would require the use of switches. However, the regulation requires evidence of where miners either 

worked under or passed regularly under the trolley wires. The 

Secretary also contends that merely throwing the blade switch 

constitutes regularly passing under. In addition, the Secretary's 

representatives believe each switch would at some time or other 

be thrown. The Secretary seeks to stretch the regulation beyond 

its plain meaning. To support the Secretary's view would mean 

that "pass regularly" includes circumstances where miners merely 

occasionally cross under a trolley wire. If this were so the 

regulation would require that every trolley wire be insulated 

its entire length. There is no such requirement. 

There is no allegation here that Emery left its trolley 

wires unguarded at critical locations and there is no evidence 

that Emery's miners worked around or regularly passed under the 

switches cited in these cases. To like effect see Southern Ohio 

Coal Co., 1 FMSHRC 1642 (1979) (Koutras, J.). 

I agree with the case law cited in the Secretary's brief 

that the Act and its regulations should be liberally construed to 

achieve its purposes. But I cannot rewrite this regulation to 

read that "all trolley wires must be guarded adequately at all 

cut-out switches". 

Briefs 

Counsel have filed detailed briefs which have been most 

helpful in analyzing the record and defining the issues. I have 

reviewed and considered these excellent briefs. However, to the 

extent they are inconsistent with this decision, they are rejected. 

Conclusions of Law 

Based on the entire record and the factual findings made 

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

1. The Conunission has jurisdiction to decide this case. 

2. Respondent did not violate 30 C.F.R. § 75.1003(a). 

602 
Based on the foregoing findings of fact and conclusions of 

law I enter the following·: 

ORDER 

1. In WEST 86-101-R: Order number 2835373 is vacated. 

2. In WEST 86-102-R: Order number 2835374 is vacated. 

Law Judge 

Distribution: 

Timothy Biddle, Esq. and Susan E. Chetlin, Esq., Crowell & Moring, 

1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004 {Certified 

Mail) 

Edward J. Fitch, IV, Esq, Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

(Certified Mail) 

603 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 17, 1987 

JIM WALTBR RESOURCFS, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINB SAFETY AND HF.ALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

.ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALT'FR RESOURCES, INC., 

Respondent 

SECRFTARY QF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

JIM WALTER RESOURCES, INC., 

Contestant 

v. 

SF.CRF.TARY OF LABOR, 

MINF SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRF:TARY OF LABOR, 

MINB SAFETY AND HFALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RF'SOURCES, 1.:NC., 

Respondent 

. . . 

604 

CONTFST PROCEEDING 

Docket No. SF 86-125-R 

Order No. 2811604; 7/21/86 

No. 4 Mine 

CIVIL PFNALTY PROCEEDING 

Docket No. SE 87-5 

~. C. No. 01-01247-03726 

No. 4 Mine 

CIVIL PRNALTY PROCEEDING 

Docket No. SE 86-136 

A. C. No. 01-01247-03719 

No. 4 Mine 

CONTEST PROCEBDINGS 

Docket No. SE 87-1-R 

Citation No. 2810255; 9/26/86 

Docket No. SF 87-2-R 

Citation No. 2810256; 9/26/86 

No. 4 Mine 

CIVIL PE~ALTY PROC~~DING 

Docket No. SB 87-21 

A. C. No. 01-01247-03735 

No. 4 Mine 
JIM WALTER RESOURCES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINF SAFFTY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SF.CRETARY OF LABOR, 

MINE SAFETY AND HFALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RFSOURCES, INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA), 

P.etitioner 

v. 

JIM WALTER RESOURCFS, INC., 

Respondent 

SFCRFTARY OF LABOR, 

MINE SAFETY AND HEALTH ADMINIS~RATION (MSHA), 

Petitioner 

v. 

JIM WALTER RFSOURC~S, INC., 

Respondent 

JIM WALT?R RESOURCES, INC., 

Contestant 

v. 

SF.CRFTARY OF LABOR, 

MINR SAFETY AND. HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. SE 87-3-R 

Citation No. 2810510; 9/22/86 

No. 7 Mine 

CIVIL PFNALTY PROCBEDING 

Docket No. SF. 87-55 

A. C. No. 01-01401-03661 

No. 7 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. SF 87-14 

A. C. No. 01-01247-03734 

l'llo. 4 Mine 

CIVIL PENALTY PROCEEDING 

Docket ~o. S~ 87-18 

A. C. No. 01-01247-03731 

l\Jo. 4 Mine 

CONTFST PROCEFDING 

Docket No. SB 87-26-R 

Citation No. 2811239; 11/25/86 

No. 4 Mine 

605 
SECRF~ARY OF LABOR, 

MINE SAFF.TY AND HEAL~H 

ADMINISTRA~tON (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCF.S, INC., 

Respondent . . 

CIVIL PENALTY PROCF~DING 

Docket No. SF. 87-48 

A. C. No. 01-01247-03747 

No. 4 Mine 

DECISION 

Appearances: William Lawson, Bsq., Office of the Solicitor, 

u,.s. Department of Labor, Birmingham., Alabama, 

for ·Petition~r; R. Stanley, Morrow, Esq., and 

Harold D. Rice, Esq., Birmingham, Alabama, for 

Respondent. 

Before: Judge Merlin 

The above-captioned cases were set for hearing pursuant to 

duly issued notices of hearing of various dates. When they came 

on for hearing as scheduled, counsel for both parties advised 

that the penalty cases had been settled and that the notices of 

contest would be withdrawn subject to approval by the 

Administrative Law Judge. Other matters which also were set for 

hearing on the same date and which preceded to hearing on the 

merits, are contained in a separate transcript and are the 

subject of a separate decision. 

In these cases the parties agreed to the following 

stipulations: Cl) the operator is the owner and operator of the 

subject mine; (2) the operator and the mine are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977; 

(3) the Administrative Law Judge has jurisdiction of this case; 

(4) the inspectors who issued the subject citations and orders 

were duly authorized representatives of the Secretary; (5) true 

and correct copies of the subject citations and orders were 

properly served upon the operator; (6) the operator's size is 

medium; (7) imposition of penalties herein will not affect the 

operator's abi~ity to continue in business; (8) the violations 

were abated in good faith; and (9) the operator's history of 

prior violations is average for its size. 

SB 87-5 involves two citations. Citation No. 2811709 was 

issued for a violation of 30 C.F.R. § 75.SOO(a). ~he Solicitor 

advised that a non-permissible switch bo~ and starter box were 

used in the last open cross-cut of the No. 5 section. ~ccording 

to the Solicitor, the gravity of the violation was serious and 

negligence was high. ~he original assessment was $800 and the 

proposed settlement was for that amount. Operator's counsel 

expressed agreement to pay the proposed settlement. Order No. 

606 
2811604 was originally a section 104Cd)(2) order issued for a 

violation of 30 C.F.R. § 75.200. The original assessment was 

$800 and the proposed settlement was $400. The violation was for 

missing ribs bolts. The Solicitor advised at the hearing that 

the (d) order had been modified to an (a) citation because the 

operator had already begun replacing the bolts when the violation 

was cited. Accordingly, neglience was much less than originally 

thought. I approved the proposed settlements from the bench. 

Operator's counsel then moved to withdraw the related notice 

of contest, SE 86-125-R. This motion was granted and the case 

dismissed from the bench. 

SB 86-136 involves five citations. All were based upon a 

1981 notice of safeguard. In accordance with a prehearing order, 

the parties submitted extensive prehearing statements. Upon 

further review of the matter, the operator agreed to pay $259 for 

each citation, which was the original assessment. The Solicitor 

accepted this proposal and recommended settlements based thereon. 

At the hearing, the Solicitor advised that although sanding 

devices are not always used, they are necessary on occasion and 

that, therefore, the violations were serious. He further stated 

that the operator was negligent. Based upon the representations 

of the Solicitor and operator's counsel, I accepted the proposed 

settlements. 

SF 87-21 involves two citations. Citation No. 2810255 was 

issued for a violation 30 C.F.~. § 75.1722(b). According to the 

Solicitor, an inadequate guard was being used around the No. 4 

belt conveyor drive. The violation was serious. The negligence 

of the operator was mitigated because it was using a fence 

enclosure as a guard. The inspector found that the fence was 

inadequate, even aside from the fact that its gate was missing. 

The operator promptly abated the violation by constructing 

localized guards immediately around the conveyor drive's moving 

parts. t accepted the Solicitor's representations that the 

operator's negligence was less than originally thought because it 

did, in £act, have some guarding around the belt conveyor. ~he 

original assessment was $249 and the proposed assessment was $150. 

I approved the proposed settlement from the bench. Citation No. 

2810256 was issued for a violation 30 C.F.R.§ 75.1403(5)(j) for a 

failure to guard an area outby the ~o. 4 section belt conveyor 

drive. Tn this instance, the operator had the required crossover 

which employees could have used to get from one side of the belt 

to the ·other. However, the crossover was 70 feet away from the 

conveyor drive and therefore, too inconvenient for its purpose. 

~he operator abated the condition by constructing a crossover 

guard in the immediate area of the conveyor drive. The violation 

was serious; but here again, the Solicitor represented that the 

operator's negligence was less than originally thought since it 

did have a crossover, although not in the most suitable location. 

~he original assessment was $192 and the proposed sectlement was 

$150. I approved the proposed settlement from the bench. 

607 
Operator's counsel then moved to withdraw the related notice 

of contest proceedings, SF 87-1-R and SE 87-2-R. This motion was 

granted and the contest cases were dismissed from the bench. 

SE 87-55 involves Citation No. 2810510 which was issued for 

a violation of 30 C.F.R. § 75.400 because of accumulations of 

coal dust including float coal dust deposited on rock dust 

surfaces and loose coal accumulated in va~ious locations. ~he 

Solicitor advised that for the most part these were not typical 

accumulations, but rather resulted from horizontal drilling into 

the coal seam by the operator in an attempt to liberate methane. 

The operator's activities were permitted under applicable 

ventilation and dust plans which at that time allowed it to inert 

coal shavings left from its drilling with rock dust. 

Subsequently, applicable plans were changed so that such 

activities were not allowed. The original assessment was $136, 

but in light of the unusual circumstances, the parties 

recommended a settlement in the amount of $50, which I approved 

from the bench. 

Operator's counsel then moved to withdraw the related notice 

of contest, SE 87-3-R. This motion was granted and the case 

dismissed from the bench. 

SE 87-14 involved one citation which the Solicitor advised 

had been vacated since it was improperly predicated upon a prior 

safeguard. The Solicitor moved to dismiss and the motion was 

granted from the bench. 

SE 87-18 involved Citation No. 2353478 issued for a 

violation of 30 C.F.~. § 75.200 because employees went under 

unsupported roof. ~he Solicitor advised that the presence of men 

under unsupported roof was an instantaneous reaction to the 

sudden occurrence of a methane ignition. ~he original assessment 

was $500 and the proposed settlement was $200. Tn view of the 

emergency nature of the situation, 1 approved the recommended 

settlement from the bench. 

SE 87-48 involved Citation No. 2811239 which was issued for 

a violation of 30 C.F.R. § 75.1403 when an individual operating a 

personnel carrier on the track haulage, prcceeded without 

obtaining the right-of-way from the dispatcher. ~he Solicitor 

advised that the operator had in effect a well-established 

dispatcher method of controlling underground rail traf£ic and 

that all employees were familiar with this system and were aware 

that they should obtain right-of-way clearance p.cior to traveling 

on the rail system. In addition, the company's ety program 

required that all vehicles obtain clearance from the dispatcher. 

Here the employee's actions were contrary to safety rules 

enforced by the operator. In an effort to deter such behavior in 

the future, the operator issued a formal reprimand to the 

employee for his misconduct. Accordingly, the Solicitor 

608 
represented that although the·violation was serious, the 

negligence of the operator was low. Operator's counsel advised 

that under the contract with the union, reprimand was the 

strongest action the company could take against the individual in 

this instance. The original assessment was $371 and the proposed 

settlement was $150. Based upon the information furnished by 

counsel, the proposed settlement was approved from the bench. 

Operator's counsel then moved to :withdraw SE 87-48, the 

related notice of contest. This motion was granted and the case 

dismissed from the bench. 

In light of the foregoing, the operator is Ordered to Pay 

the amounts as set forth above. 

It is further Ordered that the penalty petition and notices 

of contest be Dismissed as set forth above. 

-- Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

R. Stanley Morrow, Fsq., Harold D. Rice, Esq., Jim Walter 

Resources, Inc.,. P.O. Box C-79, Birmingham, AL 35283 

William Lawson, Bsq., Office of the Solicitor, U.S. Department of 

Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 

35203 (Certified Mail) 

H. Gerald Reynolds, Fsq., Jim Walter Corporation, 1500 North 

Dale Mabry 'Highway, Tampa , Fl 33607 (Certified Mail) 

/js 

609 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 181987 

RICKY VERNON HEIN, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

PUSKARICH LIMESTONE COMPANY, 

Respondent 

Docket No. LAKE 87-22-DM 

MD 86-10 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

The parties have mov~d for approval of a settlement 

agreement and an order dismissing this proceeding. 

FOR GOOD CAUSE SHOWN, the motion is GRANTED. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The parties will fully comply with the terms of 

the Settlement Agreement filed herein on March 9, 1987, and 

confirmed by letter of March 5, 1987, from counsel for 

Complainant. 

2. Based upon the foregoing, this proceeding is 

DISMISSED. 

Distribution: 

I.,. . ~ 

u)~ j~V'f/'\.__. William Fauver 

Administrative Law Judge 

Mr. Ricky Vernon Hein, 4030 Avon Road, Carrollton, OH 44615, 

(Certified Mail) 

Daniel M. Jonas, Esq., Black, McCuskey, Souers & Arbaugh, 

1000 United Bank Plaza, 220 Market Avenue South, Canton, OH 

44702 (Certified Mail) 

John R. DeBonis, Corporate Director of Human Resources, Black, 

McGuskey, Souers & Arbaugh, 1000 United Bank Plaza, 220 Market 

Avenue South, Canton, OH 44702 (Certified Mail) 

kg 

610 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 191987 

RUSHTON MINNING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTR~TION (MSHA), 

Petitioner 

v. 

RUSHTON MINING COMPANY, 

Respondent 

. . 

. . 

. . 

: ' 

. . 

. . 

CONTEST PROCEEDING 

Docket No. PENN 86-44~R 

Order No. 24042611 11/5/85 

Rushton Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-92 

A.C. No. 36-00856-03554 

Rushton Mine 

DECISION 

Appearances: Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for the Secretary of Labor. 

R. Henry Moore, Esqo, Buchanan Ingersoll Professional Corporation, Pittsburgh, Pennsylvania, 

for Rushton Mining Company. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Rushton Mining Company (Rushton) filed a Notice of Contest 

challenging the propriety of Order 2404261 issued under 

§ 104(d)(l) of the Federal Mine Safety and Health Act (Act) at 

its Rushton Mine. The Secretary of Labor (Secretary) has filed a 

petition for the assessment of a civil penalty for the violation 

alleged in the order. The penalty proceeding also involves five 

other alleged violations concerning which the parties have 

submitted a settlement motion which I am approving. Because the 

two cases involve the same withdrawal order, they were 

consolidated for the purposes of hearing and decision by order 

issued May 6, 1986. Pursuant to notice, the cases were heard in 

611 
State College, Pennsylvania, on November 18 and 19, 1986. 

Joseph E. Colton, Ralph Hamilton and Ronald J. Gossard testified 

on behalf of the Secretary. Daniel J. Kerfoot, Frank Petriskie, 

and Raymond G. Roeder testified on behalf of Rushton. Both 

parties have filed post hearing briefs. I have considered the 

entire record and the contentions of the parties and make the 

following decision. 

FINDINGS OF FACT 

At all times pertinent to this proceeding, Rushton was the 

owner and operator of an underground coal mine in Centre County, 

Pennsylvania, known as the Rushton Mine. The mine has 260 

employees, and produces approximately 660,000 tons of coal 

annually. It is a subsidiary of the Pennsylvania Mines 

Corporation. It is a large operator. During the 24 months prior 

to the violations being considered here, it had a history of 257 

violations. This history is not such that penalties otherwise 

appropriate should be increased because of it. The alleged 

violative condition was promptly abated in good faith. 

On November 5, 1985 at about 9:45 a.m., Federal Mine 

Inspector Joseph Colton issued a withdrawal order under 

§ l04(d)(l) of the Act charging a violation of 30 C.F.R. 

§ 75.1434(a)(2). The order alleged that the wire rope attached 

to a mantrip car had broken wires in one strand of one lay which 

exceeded 15 percent of the total number of wires in the strand. 

The rope was attached to a drum in the hoist house and was used 

to lower the mantrip, containing up to 34 miners, into the 

working section of the mine at the commencement of the shift, and 

to remove them at the conclusion of the shift. The hoist was 

operated by Frank Petriskie, an employee of Rushton for 21 years, 

and a hoist operator for more than 6 years. Mr. Petriskie is 

regarded as an extremely conscientious employee. 

The rope runs from the drum in the hoist house to the bottom 

of the slope, a distance of approximately 700 feet. The grade is 

approximately 17 percent. The mantrip has electrical mechanical 

brakes with sensors which set the brakes automatically in the 

event of "an overspeed condition." The rope used in this 

operation is 1,100 feet long, 1 inch in diameter, and has a 

"breaking strength" of in excess of 50 tons. A fully loaded 

mantrip puts a load of about 5 tons on the rope. It is the 

policy at Rushton to change the rope every 6 months and more 

of ten if broken wires are discovered. 

Prior to the issuance of the contested order on 

November 5, 1985, Petriskie examined the drum, the rope, the 

clamps attaching the rope to the brake car, and the other 

components of the hoisting system while the mantrip was being 

612 
lowered into the mine. He checked the rope by draping a rag over 

it to catch any. breaks in the rope and by visually examining it. 

The examination was performed by Mr. Petriskie alone. He then 

recorded the results of his examination in the hoist examination 

record book at 8:35 a.m. The book was later countersigned by 

Andy Moriarity, a surface foreman. 

The evidence is very clear and not contested by Rushton that 

at the time of Inspector Colton's·examination the rope had more 

than the number of broken wires required to meet the "retirement 

criteria." Under Rushton's procedures, it was due to be changed 

November 9, 1985 (when it would have apparently been on the hoist 

for 6 months). 

I find as a fact that the number of broken wires in one 

strand of the rope totalled seven. These were crown or surface 

wires and the breaks were visible. There were five broken wires 

in another area of the rope. In addition, a number of other 

areas had in excess of three broken wires. There are 

approximately nineteen wires to a strand and six strands in the 

rope. The seven broken wires represent 36.8 percent of the total 

number of wires in the strand. 

Following the issuance of the order, the wire was promptly 

replaced, and' the alleged violation abated. Some time after the 

order, Mr. Petriskie asked if he could have assistance in 

inspecting the rope. The request was granted and it is now 

inspected by two miners. Petriskie "checks it out" before 

7:00 a.m. and with another person inspects it at about 7:45 a.m. 

when the mantrip is lowered into the mine. 

REGULATION 

30 C.F.R. § 75~1434 provides in part: 

Unless damage or deterioration is removed by cutoff, 

wire ropes shall be removed from service when any of 

the following conditions occurs: 

(1) The number of broken wires within a 

rope lay length, excluding filler wires, 

exceeds either 

* * * * * * * 

(2) Fifteen percent of the total number of wires 

within any strand: 

* * * * * * * 

613 
ISSUES 

1. Does the evidence show a violation of a mandatory safety 

standard? 

2. If a violation is established, did it result from 

Rushton's unwarrantable failure to comply within the regulation? 

3·. If a violation is established, was it significant and 

substantial? 

4. If a violation occurred, what is the appropriate 

penalty? 

CONCLUSIONS OF LAW 

VIOLATION 

Rushton contends that the standard is violated only if it is 

shown that it knew or should have known of the defective 

condition in the rope and failed to retire it. It thus would 

require a finding of negligence before a violation could be found. 

The situation is likened to cases involving methane liberation 

under 30 C.F.R. § 75.308 where it has been held that the presence 

of excessive methane does not constitute a violation, but rather 

the failure to take appropriate steps to reduce or eliminate it. 

See Mid-Continent Coal and Coke Co., 1 IBMA 250 (1972); 

Youghiogheny and Ohio Coal co., 5 FMSHRC 1581 (1983), vacated 

7 FMSHRC 200 (1985). The analogy is not apt. Methane is 

liberated in the cutting of coal, and excess methane can suddenly 

and unexpectedly appear, in spite of an operator's care in 

following appropriate ventilation requirements. For this reason 

constant examinations for methane are mandated by the Act. When 

excess methane is detected, remedial steps must be taken 

immediatelyo The violation charged here, however, involves 

defects in equipment which occur through usage over time. I 

conclude that the existence of defects in a wire rope sufficient 

to require its retirement in itself 'constitutes a violation of 

the standard if the operator continues to use the rope, 

regardless of whether he knew or should have known of the 

defects. 

UNWARRANTABLE FAILURE 

In the United States Steel Corporation case, 6 FMSHRC 1423, 

1437 (1984), the Commission stated that "an unwarrantable. failure 

••. may be proved by a showing that the violative 

condition ••• was not corrected or remedied, prior to the 

issuance of a citation or order because of indifference, willful 

lntent or a serious lack of reasonable care." 

614 
Because a mantrip car is involved, the hoisting equipment is 

required to be examined daily. 30 C.F.R. § 75~1400Cd). This is 

in addition to the requirement that the wire rope be examined at 

least every 14 calendar days. 30 C.F.R. § 75.1433(a). 

I have found that prior to the order issued here, Rushton 

examined the rope daily. It examined it only little more than an 

hour prior to the issuance of the order on November 5, 1985. On 

the basis of these findings, I conclude that the failure to 

correct the violative condition here did not result from 

indifference or willful intent. The question remains whether it 

resulted from a serious lack of reasonable care. 

I have found that Petriskie examined the rope on November 5 

and failed to see the defects. I have further found that the 

defects were substantial and clearly visible on careful 

examination. Petriskie was a conscientious employee. I can 

account for his failure to find the broken wires only by finding 

that the method of examination was seriously inadequate: he 

examined the wire alone while lowering the mantrip car, with up 

to 34 miners on board, to the working section. He was asked to 

perform alone too many tasks in a limited time, and was forced to 

neglect the inspection task. The inadequacy was recognized by 

Rushton after the order when it assigned a person to help 

Petriskie perform the rope examination. I conclude that the 

evidence shows a serious lack of reasonable care on Rushton's 

part. I am not concluding that Petriskie's examination was 

inadequate and that Rushton should have known this. Rather, I am 

concluding that the procedure for examinining the rope was 

seriously flawed and that Rushton was responsible for this. The 

violation was caused by Rushton's unwarantable failure to comply 

with the regulation. 

SIGNIFICANT AND SUBSTANTIAL 

The Commission stated in Mathies Coal Co., 6 FMSHRC l 

(1984), that to establish a significant and substantial violation 

the Secretary must show that the violation contributed to a 

hazard, and that the hazard contributed to would, with reasonable 

likelihood, result in an injury of a reasonably serious nature. 

The inspector was of the opinion that the hazard contributed to 

here was the failure of the rope which would subject the persons 

in the mantrip to injuries from derailment of the car or from 

attempts to evacuate the car. However, the evidence does not 

establish that the defects found in the rope would be likely to 

cause it to break. Respondent's general maintenance supervisor 

testified that the rope had a "reserve strength" of 31 percent of 

its original capacity, that is, if all the crown wires were worn 

out, the core would have 31 percent of its original capacity. 

61S 
The original capacity was 50 tons, and a ~ully loaded mantrip car 

was 5 tons. Therefore, I could not conclude that the failure of 

the rope was reasonably likely in view of the limited number of 

broken wires cited. Furthermore, the Inspector did not address 

the effect the automatic braking system would have on the 

likelihood of injury should the rope fail. I conclude that the 

Secretary has not established that the violation was significant 

and substantial. 

PENALTY 

Although I concluded that the violation was not significant 

and substantial under the Mathies test, nevertheless, I believe 

it was moderately serious: the safety of 34 people was involved 

each time the mantrip was lowered. A defective rope to some. 

degree put that safety at risk. The violation resulted from 

Rushton's negligence. Considering the criteria in § llO(i) of 

the Act, I conclude that an appropriate penalty for the violation 

is $400. 

ORDER 

Based on the above findings of fact and conclusions of law, 

and on the Secretary's motion to approve settlement, IT IS 

ORDERED: 

1. Order 2404261 is AFFIRMED, including the special 

findings that it was caused by unwarrantable failure. The order 

is MODIFIED to delete the special finding of significant and 

substantial.' The Notice of Contest is thus DENIED in part and 

GRANTED in part. 

2. Citation 2404251 charging a violation of 30 C.F.R. 

§ 750516 is VACATEDo 

3. Citation 2404252 charging a violation of 30 C.F.R. 

§ 75. 03-4(a) is VACATED. 

4. Citation 2404253 charging a violation of 30 C.F.R. 

§ 75.326 is VACATED. 

5. Rushton shall within 30 days of the date of this 

decision pay the following civil penalties: 

616 
CITATION/ORDER 

2404227 

2547350 

2404261 

Distribution: 

Total 

PENALTY 

$ 58.00 

98.00 

400.00 

$556.00 

)

,, ,,,, .. / -,.:: . / 1.1' 'I' / . l ,<'; / ,(.,'fv'-"' .., /j-IJ i- ~- (JA,-. L r..:::..-fl.__ 

James A. Broderick 

Administrative Law Judge 

R. Henry Moore, Esq., Buch?nan Ingersoll Professional 

Corporation, 600 Grant Street, 58th Floor, Pittsburgh, PA 15219 

(Certified Mail) 

Joseph T. Kosek, Jr., P.O. Box 367, Ebensburg, PA 15931 

(Certified Mail) 

Covette Rooney, Esq., U.S. Department of Labor, Office of the 

Solicitorf 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

slk 

617 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 201987 

GARY K. RATCLIFF, 

Complainant 

v. 

CROCKETT COAL COMPANY, INC., 

Respondent 

DECISION 

Before: Judge Melick 

DISCRPHNATION T)ROCF:EDING 

Docket No. KENT 86-159-D 

PIKE CD 86-18 

By order dated February 27, 1987, Respondent was held in 

default as to the issue of liability in this case. In accordance with that order the Complainant, Gary K. Ratcliff, 

thereafter filed a statement of costs and damages and served 

a copy of that statement upon Respondent by certified mail on 

March 9, 1987. Respondent has not contested the costs and 

damages asserted therein. 

Accordingly, it is hereby ordered that Respondent, 

Crockett Coal Company, pay within 30 days of the date of this 

decision those amounts for which payment may be authorized 

under section 105(c) (3) of the Federal Mine Safety and Health 

Act of 1977, namely, $10,043.00 plus interest computed in 

accordance with the for~ula set forth in this Commission's 

decision in Secretary ex rel. Bailey v. Arkansas Carbona 

Company, 5 FMSHRC 2042 (1983) (copy attached). Th~s order 

constitutes the final disposition of this proceedi,r\g be 

this Judge. L 

1 (I ' 

I ! 

I

f / I A\ ..... ·--·, 

. 

. ' '. \ \ 

··, , 

"\ 

I 

~ \ ~-

Gaky MEj "ick \ - --\.._) . 

Adminis rative Law ,Judge 

j I , 1 I \ Distribution: l 1 \ I i , ; ' ; 

Gary K. Ratcliff, 105 Bedford Court, Summe lle, SC 29483 

(Certified Mail) 

William Miracle, Superintendent; Jerry Davis, President, 

Crockett Coal Co., Inc., P. O. Box 2880, Wise, VA 24293 

(Certified Mail} 

yh 

618 
FEDERAL MINE SAFETY AND HEALTH R£VIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 201987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

UNITED STATES STEEL MINING 

COMPANY, INCORPORATED, 

Respondent 

. . 

. . 

. . 

. '". 

DECISION 

Docket No. WEVA 86-231 

A. C. No. 46-01329-03637 

Morton Mine 

Appearance: Mark R. Malecki, Esq., Office of the Solictior, 

u. s. Department of Labor, Arlington, Virginia, for 

Petitioner; 

Billy M. Tennant, Esq., Pittsburgh, Pennsylvania 

and Carl Peters, Senior Mine Inspector, Chesapeake, 

west Virginia, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

The Secretary (Petitioner) seeks a Civil Penalty for an 

alleged violation by Respondent of 30 C.F.R. § 75.1106. Pursuant 

to notice, the case was heard in Charleston, West Virginia on 

December 9, 1986. Charles Knotts and Carl E. Jenkins testified 

for Petitioner, and Theodore Cobb and Thomas Cummings testified 

for the Respondent. The Parties filed Proposed Findings of Fact 

and Briefs on February 17, 1986. No reply briefs were filed. 

Findings of Fact 

1. On October 29, 1985, at 10:00 aem., at Respondent's 

Morton Mine, Charles Knotts (in his capacity as a Federal Coal 

Mine Inspector for the Mine Safety and Health Administration) 

arrived at the 047-0 section, and proceeded to a scoop to determine whether a citation written concerning that scoop had been 

abated. , He then proceeded to an area marked "B" on Petitioner's 

Exhibit 3. He paused for approximately 5 minutes at this spot 

and noticed sparks from welding opertions, which were going on in 

619 
the second crosscut outby the face areq, some 140 feet away from 

him. Knotts approached the area where the welder was working on 

a continuous mining machine. Knotts testified that he observed 

the welder, Theodore Cobb, from a distance of 5 or 6 feet welding 

on the continuous miner for a period of 5 to 6 minutes. During 

this time Cobb did not take a reading for methane with a methanometer. No other individual was observed making a methane test 

either. {Cobb testified that he had taken a methane test that 

morning before he started welding, and t~is was corroborated by 

the testimony of Thomas Cummings; Respondent's electrical foreman. 

Cobb also testified that he made frequent and regular tests 

during the welding operation. His testimony also differed from 

Knotts' version concerning what occurred after Knotts approached 

the area in which Cobb was working. I adopted Knotts' testimony 

that when he observed Cobb for 5 to 6 minutes, from a distance of 

5 to 6 feet there was no testing of methane. My conclusion, in 

this regard, is based on observations of the witnesses' demeanor 

while testifying about this is~ue.) 

2. The Morton Mine liberated 700,000 cubic feet of methane 

per day in the first quarter of the inspection year 1986, and 

1,000,000 cubic feet per day in the last quarter of the inspection year 1985. 

3. If the methane level accumulates to 5 percent of total 

air or more and no methane checks are being made, the gas could 

be ignited by welding and cause an explosion. Coal dust increases 

the likelihood of explosion and would cause the ensuing explosion 

to travel .beyond the section in question. 

4. The ventilation system at the Respondent's Morton Mine 

circulates over 1,000,000 cubic feet of air per minute. On the 

date of the citation there was sufficient air in the area to keep 

it clear of methane. 

5. In the 047-0 section there are fans located on both 

sides to keep the air free of methane gas. 

6. Methane could accumulate in the mine in the event of a 

failure in the ventilation control system if the lime stone 

blocks get "out of kilter" (Tr. 53.), or if a fan stops working. 

A failure of one fan would have only a "miniscule" effect on the 

ventilation in the section. (Tr. 146.) 

7. The ventilation system could also fail if there is a 

roof fall on an overcast, or there is a curtain interruption 

which could occur if it is knocked down with a piece of mobile 

machinery. There was no testimony presented as to whether these 

occur in nor~al mining operations. A block stoppage, causing a 

failure of a ventilation system, could be crushed in a "moving 

action," from the mine roof or bottom. (Tr. 186.) There is no 

evidence that this is a common occurrence in the subject mine. 

620 
8. Knotts was asked whether it is possible that there can 

be interruptions in the Respondent's ventilation system and he 

stated "all things are possible, but it is not probable that 

there is going to be any major ventilation change." (Tr. 135.) 

9. There was no evidence of any interruptions in the 

ventilation system on the date the citation was issued. 

10. On October 29, 1985, when Cobb first began to weld, 

prior to the issuance of the citation, he made a gas test with a 

methanometer and no methane was detected. Immediately after 

Knotts determined that a violation had occurred in the welding 

area, no methane was detected in a check for methane. 

11. Cobb was asked in direct examination whether he conducted a search for fire during the period in question and he 

answered in the affirmative " • ._ •• but it was too wet to worry 

about fire." (Tr. 241.i In essence, he further testified that 

he always looks for fire and that whenever he puts a rod in and 

takes his hood up he will look at the immediate area and see if 

there is a fire. (In contrast, it was the testimony of Knotts 

that when he stood for 5 or 6 minutes near Cobb, who was welding, 

the floor of the mine was not felt by the latter to see if there 

were burning pieces of slag. I adopted Knotts' testimony due to 

my observations of the witnesses' demeanor, and also because this 

testimony is directed specifically to what occurred while Knotts 

observed Cobb welding.) 

12. Sparks falling on coal and coal dust could present a 

fire hazard. 

13. Knotts testified that on the day in question the mine 

floor was damp to dryu but not wet. On the other hand, Cobb 

testified that the area beneath where he had worked on the miner 

was wet. I adopted this testimony as it was corroborated by 

Cummings, and also in light of the fact that both Cobb and 

Cummings testified that before Cobb started to weld on the mining 

machine it was washed off with a water hose. 

14. Cobb was asked whether he saw any float coal dust and he 

answered in the negative. Knotts on the other hand testified 

that he saw float coal dust on the machine and that there were 

"combustibles" on the floor. (Tr. 105.) I have adopted the 

testimony of Knotts with regard to "combustibles" on the floor, 

as it was not contradicted. Also, Cobb and Cummings testified 

that before the machine was washed off it was scraped. It is 

thus conceivable that some coal dust might have been formed in 

the scraping process. 

621 
15. The welding, performed by Cobb on October 29, was to the 

head (front) of the mining machine which was located at a crosscut between two entries. I accepted Knotts' version placing the 

head of the miner almost flush with the entry. Knotts testified 

that, in essence, after he stopped Cobb from welding, rock dust 

was brought from a distance of approximately 140 feet, and that 

the fire extinguisher was 4 or 5 breaks away. On the other hand, 

Cobb testified that the fire extinguisher was on a header adjacent to the power center in the next entry to the right of the 

tail ~nd of the mining machine, and outby the break (crosscut) in 

which 'the miner was located• His testimony placed the rock dust 

in that same entry along the welding machine to the right of the 

power center. I accepted Cobb's testimony, in this regard, as it 

was corroborated by Cummings. Also, it is noted, that Knotts 

testified that he was not in that specific area, and did not 

recall where the power center was located, and even said that it 

was possible that there was a fjre extinguisher and rock dust in 

the area as indicated by Cobb and Cummings. 

16. The blocks or pillars between entries are approximately 

60 to 70 feet in length, and the entries are approximately 20 

feet in length. 

17. The failure to have a fire extinguisher or rock dust 

immediately available during welding could reasonably have led to 

an increased fire or explosion hazard since a fire would not have 

been immediately put out. 

18. An ignition, due to an accumulation of methane at the 

site of welding, without the presence of coal dust would cause 

severe burns to persons in the immediate area. If coal dust is 

present, and an explosion results, it would cause serious injury 

or fatalities. 

19. There are generally 10 miners in a section crew, and 

approximately 200 miners were at the Morton Mine the day the 

citation was issued. 

20. On the date the citation was issued, Cummings, the 

electrical foreman, was present in the area the entire time that 

Cobb was welding and was supervising him. 

The Parties stuplated that: 

1. The Morton Mine had an annual hours worked or tonnage of 

11,130,942 in 1985 and the Respondent had an annual hours worked 

or tonnage of 814,854 in 1985. 

622 
2. The Respondent had 783 inspection days in the period 

November 1, 1983 through October 31, 1985, and was assessed 536 

violations other than single penalty assessments timely paid. 

3. The fine proposed by Petitioner will not adversely 

effect the Respondent's ability to continue in business. 

4. The violation was timely abated. 

Regulatory Provisions 

30 C.F.Ro § 75.1106 provided as follows: 

ee• Welding, cutting or soldering with arc or flame in 

other than a fireproof enclosure shall be done under 

the supervision of a qualified person who shall make a 

diligent search for fire during and after such operation and shall, immediately before and during such 

operations, continuously test for methane with means 

approved by the Secretary for detecting methane. 

Welding, cutting, or soldering shall not be conducted 

in air that contains 1.0 volume per centum or more of 

methane. Rock dust or suitable fire extinguishers 

shall be immediately available during such welding, 

cutting or soldering. 

Issues 

1. Whether Respondent made a diligent search for fire 

during welding on October 29, 19850 

2o Whether Respondent continuously tested for methane 

during welding on October 29, 19850 

3o Whether rock dust was immediately available during 

welding on October 29, 1985. 

4. Whether a fire extingusher was immediately available 

during welding on October 29p 1985. 

5. If a violation of § 75.1106, supra, occurred, was it of 

such a nature as could have significantly and substantially contributed to the cause and effect of a safety hazard. 

6. If a violation of § 75.1106, supra, occurred, whether 

such violation was caused by Respondent's unwarrantable failure 

to comply with § 75.1106, supra. 

623 
Conclusions of Law 

Jurisdiction 

Respondent, as owner and operator of the Morton Mine, is 

subject to the provisions of the Federal Mine Safety and Health 

Act of 1977, and I have jurisdiction over the Parties and subject 

matter in this proceeding. 

Violation of Section 75.1106 

Based on my observations of the demeanor of Knotts and Cobb, 

I found Knotts' testimony credible that during the 5 or 6 minutes 

that he watched Cobb welding, the latter did not test for methane. 

Section 75.1106, supra, provides that during welding methane 

should be tested for "continuously. 11 Webster's New Collegiate 

Dictionary (1979 edition), defines continuous as "marked by 

uninterrupted extension in space, time, or sequence." Inasmuch 

as neither Cobb or anyone else tested for methane during the 

5 minutes of welding, observed by Knotts, I conclude that the 

testing was not done "continuously," and as such§ 75.1106, supra, 

was violated. 

I found Knotts' testimony credible that during the 5 or 

6 minutes that he observed Cobb welding, the latter did not feel 

the floor of the mine to see if there were burning pieces of slag. 

Cobb testified that, in essence, whenever he changed the rod he 

had his hood up, and he would notice whether there was a fire in 

the area under him. He indicated that he always looks for fire 

"but it was too wet to worry about a fire." (Tr. 241.J Section 

75.1106, supra, requires that during welding the search for fire 

be "diligent." Webster's New Collegiate Dictionary, (1979 

edition), defines "search" as " ••• to look into or over carefully 

or thoroughly in an effort to find or discover something •••• " 

[Emphasis added.] This same source defines "diligent" as 

"characterized by steady, earnest, and energetic application and 

effort." Based on these definitions, I conclude that although 

Cobb would have noticed a fire when he removed his hood, he did 

not make a diligent search for fire during the time that he was 

observed by Knotts. As such, a violation of § 75.1106, supra, 

has occurred. 

I found credible the testimony of Cobb and Cummings that a 

fire extinguisher and rock dust, on October 29, 1985, were 

located at the next entry and outby the areas by which Cobb was 

welding. Specifically, I adopted Knotts 1 testimony which placed 

the area in which Cobb was working, one entry removed from the 

areas Cummings and Cobb testified to be the location of the fire 

extinguisher and rock dust. Accordingly, one would have to traverse the length of a pillar, approximately 50 feet, and then 

travel some distance outby to reach the fire extinguisher and 

.rock dust. 

624 
Webster's New Collegiate Dictionary (1979 edition), defines 11 immediately" as, 11 ( 1) in direct connection or relation ••• .; ( 2) 

without interval of time •••• " Due to the distance involved 

between the welding site where Cobb was welding, and the fire 

extinguisher and rock dust on October 29, 1985, I find that the 

latter two items were not "immediately available," as required in 

§ 75.1106, supra, and as such that section was violated. 

Significant and Substantial 

The Petitioner has, in essence, alleged that the nature of 

Respondent's violations of § 75.1106, supra, fall within the 

purview of§ 104(d)(l) of the Act, as they " ••• could significantly and substantially contribute to the cause and effect of a 

coal ••• mine safety or health hazard •••• " (§ 104(d), supra) In 

Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission set 

forth the elements of a hsignificant and substantial" violation 

as follows: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure 

of danger to safety--contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed 

to will ·result in an injury; and, (4) a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. (6 FMSHRC, supra, at 3-4.) 

As discussed above, infra, I have already found that a mandatory safety standard, i.e., 30 C.F.R. § 75.1106, has been violated. 

Accordingly, the first element of Mathies, supra, has been 

satisfied. 

Knotts' testimony was not contradicted that, in essence, if 

as a result of not testing for methane, undetected methane 

increases to five percent of total air, a fire or explosion could 

occur in the event the ventilation system fails. Thus, it is 

concluded that not testing for methane contributed to some extent 

to the hazard of a fire or explosion. It has already been found, 

infra, that neither a fire extinguisher nor rock dust were "immediately available," at the site of Cobb's welding. Accordingly, in 

the event of a fire or explosion, caused by excess methane being 

ignited, the hazard would be increased because, due to the placement o~ the fire extinguisher and rock dust, the fire would not 

be immediately put out. 

625 
Cobb testified that while welding, upon lifting up his hood 

he would be able to check the exact area in which he was working. 

However, that there was no evidence that specifically there was 

any search for fire, or welding sparks, on or about the miner. 

Although Cobb and Cummings testified, in essence, that there was 

not coal dust on the miner, I adopted Knotts' testimony as to the 

presence of coal dust on the miner. Inasmuch as Cobb had testified that prior to the welding he and another miner had scraped 

the Jtdning machine of coal, it is likely that coal dust, to some 

extent, had remained, even after it was washed down. I concluded 

that Cobb did not make a diligent search for fire. Thus, there 

is a likelihood that some sparks might have remained undetected 

on the floor or on the miner. I accepted Knotts' testimony that 

there were combustible items on the floor, and that there was 

coal dust on the miner. Thus, I conclude that the failure to 

make a diligent search for sparks did, in combination with the 

evidence of coal dust and combustible items, contribute to a fire 

hazard. 

Accordingly, I conclude that the second element of Mathies, 

supra, has been established in that the violation did contribute 

to a discrete safety hazard. 

As interpreted by the Commission in Secretary of Labor v. 

Consolidation Coal Company, 6 FMSHRC 189, at 193 (February 1984), 

the third element articulated by the Commission in the Mathies, 

supra, "embraces a showing of a reasonable likelihood that the 

hazard will occur, because, of course, there can be no injury if 

it does not." 

According to the testimony of Carl E. Jenkins, Federal Coal 

Mine Supervisor, the Morton Mine is considered to liberate more 

methane then many other mines in the area, and, indeed, in the 

last quarter of the inspection year 1985, it was found to liberate 1,000,000 cubic feet per day. Knotts has indicated that an 

accumulation of methane in concentrations of more than 5 percent 

of total air, could lead to an ignition or explosion. Jenkins 

testified that, in essence, although the area in which Cobb was 

welding is not considered to be a high liberator of methane, 

there was a "possibility," that methane could accumulate between 

5 and 15 percent. However, Jenkins indicated that, at the location where Cobb was working, a couple of breaks outby the face, 

normally he would not expect to find methane. Furthermore, 

Knotts indicated that Respondent's ventilation system, which has 

the purpose of keeping the air free of methane gas, is very 

effective, and that on the day that he issued the citation there 

626 
was sufficient air in the area to keep it free of methane. It 

appears further, from Knotts' testimony, that the only way in 

which methane would increase to the point to where it would constitute a fire or explosion hazard, would be in the event of a 

failure of the ventilation system. In essence, it was the testimony of Knotts and Jenkins that a failure of the ventilation 

system could occur: if a fan would stop working, if the check 

curtains would become interruped, if the lime stone blocks would 

get "out of kilter," (Tr. 53.J if the block stoppings would get 

crushed, or if there would be a roof fall on an overcast. However, Knotts indicated that "it's not probable that there is 

going to be any major ventilation change." (Tr. 135.) He further 

stated that the failure of one fan would have only a "miniscule" 

effect on the ventilation in the section. {Tr. 135-136.) Jenkins 

said that usually interruptions of a block curtain could occur if 

it is knocked down with a piece of mobile machinery, but he did 

not offer any opinion on the likelihood of this event occurring. 

Also, there was no evidence presented as to the likelihood of the 

lime stone block getting "out of kilter," (Tr. 53.) the roof 

falling on an overcast, or the crushing of block stoppings. In 

this connection, Knotts testified that the latter condition occurs 

from a "moving action11 from the mine roof or bottom, (Tr. 186.) 

but there was no evidence presented that this is a common 

occurrence in the Respondent's mine. 

There was evidence presented that there have been at least 

12 cited violations of the Respondent's ventilation plan in the 

last 2 years. However, Jenkins, in essence, testified that there 

was no way that he could ascertain whether any of these violations 

were specifically for any failure of the ventilation system. 

Accordingly, it must be concluded that Petitioner has failed 

to establish that there was any reasonable likelihood of a failure 

of Respondent 1 s ventilation system to the extent that it would 

cause methane to accumulate in a high enough concentration as to 

constitute a hazard. Therefore, it must be concluded that it has 

not been established that there was a reasonable likelihood that a 

fire or explosion will occur as a result of Cobb's failure to 

continuously test for methane. 

I have adopted the testimony of Cobb and Cummings that on 

the morning of October 25, 1985, prior to welding, the miner was 

washed down. It is likely that the washing would have caused the 

miner and the area around it on the floor, to be somewhat wet. 

Taking this factor into account, I find that the Petitioner has 

not met its burden in establishing that there was any reasonable 

likelihood of combustible materials or coal dust on the floor or 

on the miner, being in a dry enough state to have been ignited by 

sparks caused by the welding operation. It thus is not established that as a result of the failure of Cobbs to make a diligent 

search for fire, there was a reasonable likelihood of a fire. 

627 
Therefore, based upon on all of the above, I conclude that 

it has not been est~blished that the violations herein were 

"significant and substantial." 

CI conclude, based upon the testimony of Jenkins, that in 

the unlikely event of a fire or explosion either could have ~e~sonably been expected to result in fatalities or serious 

injuries to miners in the blast or fire area.> 

Unwarrantable Failure 

At the date the citation was issued, Cummings, the electrical 

foreman, was supervising Cobb directly and was in the area the 

entire time that Cobb was welding. As such, he was in the position to observe Cobb, and thus should have known of his f ail'Ure to 

continuously test for methane during the welding. He also should 

have known that no one else was testing for methane. In the same 

fashion, he should have known that Cobb was not making a diligent 

search for fire during the welding. Further, inasmuch as he knew 

the location of the fire extingusher and rock dust, he thus should 

have known that it was not "immediately available," during the 

welding. As such, I conclude that the violation of § 75.1106, 

supra, was due to Respondent's "unwarrantable failure." 

Civil Penalty 

I have considered all of the criteria in § llOCi) of the Act. 

All criteria have been stipulated to except the Respondent's 

negligence a'nd the gravity of the violation. I conclude that 

Respondent, in violating§ 75.1107, supra, acted with a high 

degree of negligence. Further, since I found that the violation 

was not "significant and substantial," I conclude that its 

gravity was only moderately serious. I conclude that a fine of 

$400 is appropriate. 

ORDER 

It is ORDERED that Order Number 2717216, is modified to a 

·§ 104(a} Citation. It is further ORDERED that Respondent pay the 

sum of $400 within 30 days of the date of this decision as a 

civil penalty for the violation found herein. 

bsberlr;vtr 

Administrative Law Judge 

628 
Distribution: 

Mark R. Malecki, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203 

(Certified Mail) 

Billy M. Tennant, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15230 (Certified Mail) 

Carl Peters, Senior Mine Inspector, u. s. Steel Mining Company, 

Incorporated, 13905 Mac Corkle Avenue, SE, Chesapeake, WV 25315 

(Certified Mail) 

dcp 

629 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 251987 

RUSHTON MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RUSHTON MINING COMPANY, 

Respondent 

. . 

: 

. . 

. . 

. . 

: 

. . 

. . 

. . 

. . 

CONTEST PROCEEDING 

Docket No. PENN 85-279-R 

Citation No. 2403981; 7/17/85 

Rushton Mine 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-113 

A.C. No. 36-00856-03557 

Rushton Mine 

DECISION 

Appearances: Covette Rooney, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for the Secretary of Labor (Secretary); 

R. Henry Moore, Esq., Buchanan Ingersoll 

Pro~essional Corporation, Pittsburgh, Pennsylvania, 

for Rushton Mining Company (Rushton). 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Rushton filed a notice of contest challenging a citation 

issued July 17, 1985, alleging a violation of 30 C.F.R. 

§ 75.301-5. On July 22, 1985, the citation was modified to 

charge a violation of 30 C.F.R. § 75.316 rather than § 75.301-5. 

After a number of extensions, an order was issued on November 13, 

1985 under§ 104(b) of the Act because of Rushton's failure to 

abate the alleged violative condition. The Secretary filed a 

petition for the assessment of a civil penalty for the violation 

charged in the contested citation. Because the two cases involve 

the same citation and order, they were consolidated for the 

purposes of hearing and decision. 
Pursuant to notice, the case was called for hearing in State 

College, Pennsylvania on November 18, 1986. Donald J. Klemick 

and Alex O'Rourke testified on behalf of the Secretary. 

Raymond G. Roeder and Lemuel Hollen testified on behalf 

Rushton. Both parties have filed post-hearing briefs. 

considered the entire record and the contentions of the 

and make the following decision. 

FINDINGS OF FACT 

of 

I have 

parties 

Rushton is the owner and operator of an underground mine in 

Centre County, Pennsylvania, known as the Rushton Mine. The mine 

has 260 employees and an annual production of 660,000 tons of 

coal. The annual dollar volume of sales in 1984 exceeded 22 and 

one-half million. Rushton is a subsidiary of Pennsylvania Mines 

Corporation. On the basis of the foregoing, I find that Rushton 

is a large operator. Rushton had a history of 257 violations in 

the two years prior to the violation involved here, 12 of which 

were violations of 30 C.F.R. § 75.316. This history is not such 

that a penalty otherwise appropriate should be increased because 

of it. 

Rushton had an approved ventilation system and methane and 

dust control plan in effect for the subject mine. The basic plan 

was not introduced into evidence, nor were any revisions or 

Secretary-imposed additional requirements except those directly 

involved in this proceeding. Rushton is required to submit 

ventilation plans for MSHA's review every 6 months. Such plans 

were submitted in June 1985, December 1985, and June 1986. None 

of these plans contained provisions related to the installation 

of a CO monitor in the intake shaft. However, it is common to 

submit proposed additions or modifications to the plan between 

the regular 6 month submissions. When approved they are 

generally incorporated in the mine map accompanying the next 

6 month submission. The CO detector, however, does not appear in 

the mine map as part of the ventilation plan. 

Rushton had problems during the winter months with its 

intake air shaft in that the concrete lining of the shaft was 

deteriorating because of acidic water dripping into the shaft and 

freezing. Rushton decided in early 1985, to reline the shaft 

with an insulating material to prevent the freezing and ice 

buildup. Its intention was to have the work performed in July 

during the miners' vacation. 

On April 6, 1985, Rushton wrote to MSHA District Manager 

Donald Huntley seeking approval of a proposal to reline the shaft 

using a sandwich-type panel composed of a corrugated FRP sheet 

against the wall, a sheet of heavy gauge polyethylene film, a 

631 
4 inch thick polyisocyuranate foam sheet, and a 28 gauge 

corrugated steel sheet to complete the panel. The request 

indicated that the work could be done only during the miners' 

vacation period in July. On April 10, 1985, MSHA declined to 

approve the plan on the ground that combustible material is not 

permitted in an intake air shaft. This referred to the 

polyisocyuranate foam sheet. The MSHA letter of disapproval was 

signed by Alex O'Rourke for District Manager Huntley. On 

April 24, 1985, MSHA and Rushton officials met in Pittsburgh to 

discuss the problem. An MSHA Tech Support !chemical engineer 

recommended using a polystyrene foam insulating material. On 

May 22, 1985, Rushton submitted a revised plan, proposing the use 

of a foam panel fabricated from modified polystyrene beads 

instead of the polyisocyuranate. On June 4, 1985, MSHA approved 

the revised plan with the additional requirements that a 

continuously monitoring carbon monoxide detector be installed in 

the shaft bottom area, and a plan detailing what action Rushton 

will take if carbon monoxide is detected. This plan was required 

prior to completion of the shaft work. On July 8, 1985, Rushton 

submitted a letter enclosing a copy of its plan for installation 

of the carbon monoxide monitor and a copy of the purchase order 

for the monitor. The letter stated that the monitor would be 

installed as soon as it is received. 

On July 17, 1985, Inspector Donald Klemick issued a citation 

charging a violation of 30 C.F.R. § 75.301-5 because "the 

approved plan for repairing the intake shaft was not being 

followed •••• A continuously monitoring carbon monoxide 

detector was not installed nor were precautions being taken to 

test for carbon monoxide while work was being conducted in the 

shaft and men were underground." The citation fixed the time for 

abatement as August 9, 1985. It also required that Rushton test 

for CO on each shift and record the results. The record is not 

clear as to the dates the construction began and was completed. 

The work was in progress when the citation was issued (Wednesday, 

July 17), and the Inspector was under the impression that it was 

to be completed by the end of the ·week (July 20). Rushton's Mine 

Superintendent Raymond Roeder stated that he believed the work 

was performed during the last two full weeks in July. At any 

rate, it is clear that the relining was being performed on 

July 17, and was completed on or before July 27, 1985. There 

were miners working underground on July 17, changing a belt drive 

unit near the bottom of the slope. 

On July 22, 1985, after discussion with his supervisor, 

Inspector Klemick modified the citation to charge a violation of 

30 C.F.R. § 75.316. On the same day, MSHA wrote to Rushton "to 

clarify the portions of the Law that were reviewed in approving 

[the] plan submitted on May 22, 1985, and approved on June 4, 

1985." The letter stated that the work and materials in the 

632 
shaft were covered under 30 C.F.R. § 77.1900 and the requirements 

for a CO detector were covered under the mine ventilation system 

and methane and dust control plans, 30 C.F.R. § 75.316. This was 

the first notice to Rushton that the CO plan was required under 

§ 75.316. 

On July 30, 1985, MSHA approved the plan for the 

installation of a CO detector with certain stipulations. On 

August 16, 1985, the time for abatement was extended to 

October 23, 1985, because a revised plan for the installation of 

a CO monitor was submitted for approval, and the detector had 

been ordered but had not arrived at the mine. On September 16, 

1985, Rushton submitted a revised plan for installing the CO 

monitor after discussing the prior plan with Inspector Klemick. 

On October 28, 1985, MSHA wrote that the revised plan "is not 

acceptable in the present form. 11 Further information concerning 

the protection of the miner who will test for CO if the CO 

detector becomes inoperable was required. on October 29, 1985, 

the abatement time was_ further extended to November 8, 19 85, 

because the CO detector had arrived and "installation procedures 

are in effect." 

On November 13, 1985, Inspector Klemick issued an order of 

withdrawal under § 104(b) of the Act because the condition cited 

had not been abated. The order stated that "the revised plan 

submitted September 16, 1985, was not acceptable per the District 

Manager's letter of October 28, 1985, which requested a response 

from the ope~ator to complete the evaluation of the plan. Since 

a response had not been submitted another extension of time 

cannot be justified." The order directed that testing with an 

approved CO detector be continued and the results recorded. 

On November 15, 1985, a revised plan for the installation of 

the CO monitor was submitted to MSHA by Rushton. On December 2, 

1985, MSHA notified Rushton that the revised plan was acceptable. 

On December 13, 1985u Inspector Klemick terminated the order 

because the CO detector was installed and a plan was approved by 

MSHA on December 2. 

REGULATION 

30 C.F.R. § 75.316 provides as follows: 

[STATUTORY PROVISIONS] 

A ventilation system and methane and dust control 

plan and revisions thereof suitable to the conditions 

and the mining system of the coal mine a~d approved by 

the Secretary shall be adopted by the operator and set 

out in printed form on or before June 28, 1970. The 

633 
plan shall show the type and location of mechanical 

ventilation equipment installed and operated in the 

mine, such additional or improved equipment as the 

Secretary may require, the quantity and velocity of air 

reaching each working face, and such other information 

as the Secretary may require. Such plan shall be 

reviewed by the operator and the Secretary at least 

every 6 months. 

ISSUES 

1. Does the evidence establish a violation of 30 C.F.R. 

§ 75.316? 

2. If a violation is established, was it abated timely? 

3. If a violation is established, was it significant and 

substantial? 

4. If a violation is established, what is the appropriate 

penalty? 

CONCLUSIONS OF LAW 

JURISDICTION 

Rushton was subject to the provisions of the Mine Act in the 

operation of the subject mine. I have jurisdiction over the 

parties and subject matter of this proceeding. 

VIOLATION 

A mine operator is required to adopt and have approved by 

the Secretary a ventilation system and methane and dust control 

plan suitable to the conditions and the mining system of the mine 

in question. The Secretary may require "additional or improved 

equipment" and "other information" before approving a submitted 

plan. When a plan has been approved, the mine operator is 

required to follow itp and failure to do so may be cited as a 

violation of a mandatory standard. Ziegler Coal Company, 4 IBMA 

30 (1975)u aff 2 d sub. nom. Ziegler Coal Company v. Kleppe, 536 

F.2d 398 (D.C. 1976); Mid-Continent coal and Coke Company, 3 

FMSHRC 2502 (1981). Because a ventilation plan creates, in 

ef F mandatory health and safety standards, and possible 

penalties, it is imperative that the scope and meaning of the 

plan be clear and unambiguous. In this case, on the day the 

citation was issuedp neither Rushton nor the Inspector considered 

the shaft repair work to be covered under the approved 

ventilation plan. Although MSHA officials apparently treated it 

as a ventilation matter, none of the correspondence or 

634 
discussions between MSHA and Rushton prior to the date of the 

citation referred to the ventilation plan. Because of these 

facts, I conclude that as of July 17, 1985, the Secretary's 

requirements concerning the relining of the intake air shaft and 

the installation of a CO detector were not made part of the 

approved ventilation plan: adequate notice was not given to the 

mine operator that the requirements were imposed as part of the 

ventilation plan. Therefore, the citation did not properly 

charge a viola.tion of 30 C.F.R. § 75.316 and must be vacated. I 

am not holding that the relining of the shaft and the 

installation of the CO detector could not properly be brought 

within the ventilation plan requirements, but only that notice to 

the mine operator of MSHA's intention to do so is a prerequisite 

to enforcement of the requirement by citation and imposition of a 

penalty. Because such notice was not given in this case, the 

citation was issued in error, and no penalty may be imposed. 

Because I am vacating the citation, the issues with respect to 

the § 104(b) order are moot. 

ORDER 

Based on the above findings of fact and conclusions of law, 

citation 2403981 issued July 17, 1985, charging a violation of 30 

C.F.R. § 75.316 is VACATED. No penalty is assessed. The 

proceedings are DISMISSED. 

Distribution: 

}tln tt6 /ud v'!!duvtj_ 

) 

James A. Broderick 

Administrative Law Judge 

Covette Rooney, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll Professional 

Corporation, 57th Floor, 600 Grant Street, Pittsburgh, PA 15219 

(Certified Mail) 

slk 

635 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 251987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 86-23-M 

A.C. No. 09-00265-05506 

v. . . 

: Junction City Mine 

BROWN BROTHERS SAND COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Ken s. Welsch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, 

for the Petitioner~ 

Carl Brown and Steve Brown, Brown Brothers 

Sand Company, Howard, Georgia, pro se, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns proposals for assessment of 

civil penalties filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 820(a), seeking civil penalty 

assessments in the amount of $1,940, for four alleged violations of certain mandatory safety and reporting standards 

found in Parts 50 and 56, Title 30, Code of Federal Regulations. Hearings were held in Macon, Georgia, on September 15, 

1986, and February 19, 1987. The petitioner filed posthearing 

briefs, but the respondent did not. However, I have considered the oral arguments made by the respondent during the 

course of the hearings in the adjudication of this matter. 

Issues 

The issues presented in this proceeding are as follows: 

1. Whether the respondent violated the 

cited mandatory safety and reporting standards, 

636 
and if so, the appropriate civil penalty to be 

assessed for those violations based on the 

criteria found in section llO(i) of the Act. 

2. Whether the inspector's "significant 

and substantial" (S&S) findings concerning the 

violations are supportable. 

Applicable Statutory and Regulatory Provisions 

l. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 U.S.C. § 801 et seg. 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.1 et. seq. 

Stipulations 

The parties stipulated that the respondent is subject to 

the Act, as well as to the jurisdiction of MSHA and the 

Commission. They also agreed that the respondent is a small 

sand mine operator employing 9 to 10 employees, and that the 

proposed civil penalty assessments will not adversely affect 

the respondent's ability to continue in business. They agreed 

that the respondent's history of prior violations for the 

period October 3, 1983 through October 2, 1985, is reflected 

in exhibit P-1, an MSHA computer print-out listing 18 violations. They also agreed that three of the violations issued 

in this proceeding were timely abated, but MSHA asserted that 

Citation No. 2521411, concerning the lack of service brakes on 

a welding truck was not (Tr. 16-18). 

Bench Rulings 

I ruled that the question concerning the alleged "unwarrantable failure" on the part of the respondent as stated in 

the section 104(d)(l) and (2) orders and citations issued by 

the inspector was not an issue in this civil penalty proceeding. See: MSHA v. Black Diamond Coal Mining Company, Docket 

No. SE 82-48, 7 FMSHRC 1117 (August 1985) (Tr. 12-13). 

MSHA's oral motion to modify section 104(d)(l) Order 

No. 2007656, July 19, 1985, 30 C.F.R. § 50.30(a), to a section 104(a) non-"S&S" citation was granted (Tr. 12, 14). 

637 
MSHA's motion to amend its proposed civil assessment for 

section 104(d)(2) Order No. 2521411, 30 C.F.R. § 56.9087, 

from $400 to $150 was granted (Tr. 4, February 19, 1987). 

Findings and Conclusions 

History of Prior Violations 

'· Exhibit P-1 is an MSHA computer print-out summarizing 

the respondent's compliance record for the period October 3, 

1983 through October 2, 1985. That record reflects that the 

respondent was issued 18 citations and orders, for which 

civil penalties in the amount of $3,031 were assessed. The 

information submitted reflects that the respondent has paid 

no civil penalty assessments for the 2-year period in question, and has either contested the violations or has been 

issued deliquency letters by MSHA for non-payment of some of 

the violations. ·For an. operation of its size, I cannot conclude that respondent's compliance record is such as to 

generally warrant any increases in the civil penalties which 

I have assessed for the violations which have been affirmed 

in this case. 

With respect to the respondent's past non-compliance 

with the reporting requirements of 30 C.F.R. § 50.30(a), I 

have taken this into consideration in the civil penalty 

assessment for the violation of that standard which has been 

affirmed in this case. 

Size of Business and Effect of Civil Penalties on the 

Respondent's Ability to Continue in Business 

The parties have stipulated that the respondent is a 

small operator and that the civil penalty assessments proposed 

by the petitioner in this case will not adversely affect the 

respondent's ability to continue in business. I adopt this 

stipulation as my finding and conclusion on this issue. 

Section 104(a) non-"S&S" Citation No. 2007656, issued on 

July 19, 1985, cites a violation of 30 C.F.R. § 50.30(a), and 

the condition or practice is described as follows: "The operator failed to file a quarterly employment MSHA Form 7000-2 

on time for the 1st and second quarter of 1985 as implemented 

by Part 50.30A of title 30 C.F.R. The operator constantly 

fails to submit the man hours report to MSHA. This is an 

unwarrantable failure." 

638 
MSHA's Testimony and Evidence 

MSHA Supervisory Inspector Reino Mattson confirmed that 

he issued the citation in question. Mr. Mattson produced a 

blank MSHA Form 7000-2, and explained the information required 

(exhibit P-4). He confirmed that the respondent filed two 

signed report forms for the first two quarters of 1985, but 

failed to fill in the required information, including the 

employee man-hours worked during these time periods. The 

forms contain the signature of Carl Brown, and the following 

typewritten statements: 

This report is average for and any report filed 

by Reino Mattson's forced upon me and my 

company (exhibit P-4). 

This is an average of any and all previous 

reports forced upon me and my company by Reino 

Mattson Supervisor for MSHA (exhibit P-5). 

Mr. Mattson explained the reasons for requiring information concerning a mine operator's working personnel, hours 

worked, and production, and stated that it is required to 

compile statistical reports reflecting the accident incident 

rate nationwide and for the State of Georgia. The information which is compiled is used to increase enforcement 

efforts and to assist mine operator's in reducing the 

accident incident rate. Mr. Mattson produced copies of the 

type of reports compiled by MSHA, utilizing the information 

submitted by mine operator's on MSHA Form 7000-2, (exhibits 

P-6 and P-7). 

Mr. Mattson stated that the reporting citation which he 

issued is the fifth citation issued to the respondent for 

non-compliance with section 50.30(a). He cited two prior 

decisions by Commission Judges who affirmed two prior citations and imposed civil penalties for these violations (Tr. 

21-34). 

On cross-examination, Mr. Mattson confirmed that the 

respondent submitted the forms, but failed to provide the 

information on the form as required by section 50.30(a). He 

reiterated the necessity for providing the required information so as to enable MSHA to assist mine operators in their 

safety efforts to reduce mine reportable accidents. 

·Mr. Mattson confirmed that to his knowledge the respondent has had only one reportable accident incident during all 

of the years it has been in operation, but he was unable to 

639 
provide any specific information with respect to this 

incident. 

Mro Mattson confirmed that he personally had nothing to 

do with the "special civil penalty assessment" made by MSHA's 

Office of Assessments with respect to the citation in question. He expressed his view that the 1 proposed penalty 

reflected the fact that the respondent has in the past refused 

to file the form with the required information, or simply 

ignored the filing requirements of section 50.30(a). 

Mr. Mattson denied that he has ever threatened the respondent with any criminal sanctions for its refusal to comply 

with section 50.30(a). He explained that several years ago he 

simply brought to the respondent's attention the printed information which appears in the first paragraph on the face of 

MSHA Form 7000-2, concerning possible criminal sanctions for 

non-compliance. 

Mr. Mattson confirmed that he issued the citation on the 

basis of information received from MSHA's Health and Safety 

Analysis Center in Denver, Colorado. He explained that MSHA's 

computerized compliance records confirmed that the respondent 

had failed to submit the required man-hour and mine personnel 

information as required for the first and second quarters of 

calendar year of 1985, and that he issued the citation on the 

basis of this information which reflected non-compliance. He 

also inaicated that the forms were not timely filed as 

reflected on the face of the submitted forms. 

Mr. Mattson confirmed that due to certain personnel and 

funding reductions, including a suspension of funding for the 

enforcement of the Act against sand and gravel mine operators, 

the respondent's mine was not inspected oy his office for a 

period of 4 years. He also confirmed that the first regular 

inspection of the respondent's mine during this period was 

initiated in July, 1985 {Tr. 34-52). 

With the court's permission, respondent operator Carl 

Brown produced a 45 minutes taped conversation concerning a 

conference held in Inspector Mattson's office on January 22, 

1985, concerning a citation for another alleged violation of 

the reporting requirements of 30 C.F.R. § 50.30(a). Excerpts 

from the tape, which was played off the record, reflect that 

the respondent failed to file the required reports for the 

first three quarters of 1984, and that the single contested 

citation was issued for this reason. 

640 
Fact of Violation 

The respondent here is charged with a violation of mandatory reporting requirement 30 C.F.R. § 50.30(a), which states 

as follows: 

(a) Each operator of a mine in which an 

individual worked during any day of a calendar 

quarter shall complete a MSHA Form 7000-2 in 

accordance with the instructions and criteria 

in § 50.30-1 and submit the original to the 

MSHA Health and Safety Analysis Center, P.O. 

Box 25367, Denver Federal Center, Denver, 

Colo. 80225, with~n 15 days after the end of 

each calendar quarter. These forms may be 

obtained from MSHA Metal and Nonmetallic Mine 

Health and Safety Subdistrict Offices and from 

MSHA Coal Mine Health and Safety Subdistrict 

Offices. Each operator shall retain an 

operator's copy at the mine office nearest the 

mine for 5 years after the submission date. 

Aside from his displeasure with the requirements of section 50.30Ca), and unsupported allegations of reprisals on 

the part of· the inspector, the respondent offered no testimony in defense of the citation, nor has it rebutted MSHA's 

prima facie case (Tr. 68). 

The respondent has not rebutted the fact that it failed 

to file the completed forms as required by section 50.30(a). 

During the course of cross-examining Inspector Mattson, 

respondent's representative Steve Brown, part owner of the 

company, implied that since the quarterly reports were filed, 

it has complied with section 50.30Ca). This defense is 

rejected. It seems clear from the evidence in this case that 

the information required to be included on the form by section 50.30(a), and the instructions for completing the form 

found in section 50.30-1, was not submitted by the respondent. 

I conclude and find that MSHA has established a legitimate enforcement need for requiring the submission of the 

information required by mandatory standard section 50.30(a), 

and that the submission of such information will enable the 

Secretary of Labor to prepare and disseminate statistical 

analyses of mine injury frequency rates as m~ndated by the 

Act. 

In view of the foregoing findings and conclusions, I 

conclude and find that MSHA has established a violation of 

641 
section 50.30(a) by a preponderance of the credible evidence 

adduced in this case. Accordingly, the citation IS AFFIRMED. 

Gravity 

Inspector Mattson was of the view that the failure by 

the respondent to file the necessary reporting information 

would not result in the likelihood of an injury. He confirmed 

that he did not consider the violation to be significant and 

substantial. I agree with these findings by the inspector, 

and I conclude and find that the violation is non-serious. 

Negligence 

This is not the first time this respondent has been 

charged with a failure to comply with the mandatory reporting 

requirements of section 50.30(a). In a prior decision issued 

by me on May 1, 1981, Docket No. SE 80-124-M, 3 FMSHRC 1203 

(May 1981), a violation was affirmed and a civil penalty of 

$10 was assessed. In a decision rendered on December 7, 1983, 

Docket No. SE 83-42-M, 5 FMSHRC 2065 (December 1983), Judge 

Broderick affirmed a violation and assessed a civil penalty of 

$100. 

MSHA's computer print-out, exhibit P-1, includes two 

section 104(a) citations issued on February 29, 1984, and 

January 3, 1985, for failure by the respondent to comply with 

the requirements of section 50.30(a). The first citation was 

assessed at $20, and the second at $150, and the print-out 

reflects that the respondent failed to pay these assessments 

and was issued deliquency letters by MSHA far its failure to 

pay. I assume that the January 3, 1985, citation was the 

subject of the MSHA canf erence alluded to by the respondent 

in the tape referred to earlier. 

The tape in question also reflects Mr. Brown's displeasure with the reporting requirements of section 50.30{a), the 

fact that other mine operators purportedly have not responded 

to MSHA's reporting requirements, and his assertion that 

Inspector Mattson "threatened" him with possible criminal 

sanctions some 8 years ago when he discussed with him the 

reporting requirements of section 50.30(a). 

It seems clear to me that MSHA has been more than patient 

with the respondent with respect to its continued refusal to 

comply with the reporting requirements of section 50.30{a). 

As a matter of fact, in at least two instances, including the 

instant case, where the respondent has failed to file more 

than one quarterly report, MSHA has issued single citations, 

642 
when it could have issued separate citations for each required 

quarterly report which was not filed. 

The respondent has not presented any mitigating excuses 

for its continued failure to comply with section 50.30Ca). 

As pointed out in my prior decision of May 1, 1981, Mr. Carl 

Brown considers MSHA Form 7000-2 to be so much "junk mail," 

and he does not take kindly to being "coerced or forced" to 

file these forms. I find no such coercion in this case, and 

Mr. Brown's claims of threats by Mr. Mattson were rejected in 

my prior decision, and they are rejected here. 

I believe the time has come for the respondent to realize 

the serious consequences which may flow from his continued 

refusal to comply. As previously stated by Judge Broderick, 

the fact that the respondent believes the required reports are 

onerous or unnecessary is no defense to the citations which 

have been issued by MSHA for its continued non-compliance. 

I conclude and find that the evidence adduced in this 

case, including the respondent's history of non-compliance, 

reflects a conscience and deliberate disregard and flaunting 

of the requirements of section 50.30(a). Under the circumstances, I conclude and find that the respondent has exhibited 

a reckless disregard for the mandatory requirements stated in 

section 50.30{a), and that its failure to comply is the result 

of gross negligence on its part. 

Good Faith Abatement 

MSHA has stipulated that the respondent exhibited good 

faith in timely abating the violation after the issuance of 

the order, and I adopt this as my finding. 

Civil Penalty Assessment 

Although MSHA has modified the original order to a section 104(a) non-"S&S" citation, I am not bound by the $20 

civil penalty assessment which is normally assessed by MSHA 

for such citations. MSHA's proposed civil penalty for the 

violation is $250. Based on the respondent's history of 

non-compliance with this standard, and my finding of gross 

negligence, I conclude and find that a civil penalty of $250 

is reasonable and appropriate. Accordingly, I accept and 

adopt MSHA's civil penalty proposal for the violation in question,· and I assess a civil penalty of $250 for the violation 

which has been affirmed. 

643 
Section 104(d)(2) "S&S" Order No. 2521412, issued on 

September 4, 1985, cites a violation of 30 C.F.R. § 56.14006, 

and the condition or practice is described as follows: 

The guard for the tail pulley on the railroad car loadout belt conveyor was 1left off. 

The guard was laying across the walkway and 

the belt conveyor was operating. This violation is an unwarrantable failure and this 

equipment shall not be operated for any purpose until inspected and released by an MSHA 

inspector. 

MSHA's Testimony and Evidence 

MSHA Inspector Steve Manis confirmed that he issued the 

order, and he described the location of the belt conveyor in 

question. He stated that the conveyor runs horizontally out 

of a tunnel onto an elevated conveyor belt used to load material onto railroad cars. He identified two photographs of 

the cited conveyor belt, and identified the location of the 

tail pulley and unguarded pinch-point, as well as a nearby 

walkway. He also identified the guard which was left off the 

tail pulley, and stated that it was lying to the right of the 

tail section approximately 15 feet across the walkway on the 

ground (exhibit P-91 Tr. 96-99). He stated that Mr. Greg 

Brown confirmed that the guard was in fact the guard for the 

tail pulley, but that he did not know how long it had been 

· off C Tr • 10 0 ) • 

Mr. Manis stated that the conveyor belt was running when 

he observed the cited condition, and he believed that the 

failure to replace the guard presented a hazard of someone 

getting caught in the pinch points between the tail pulley 

and the conveyor belt. He stated that employees would have a 

reason to be in the area adjusting idlers, performing welding 

work, cleaning up, or greasing or servicing the moving parts 

of the belt. Although there was no one exposed to the hazard 

when he discovered the condition, Mr. Manis confirmed that he 

observed footprints in the area, and that there was evidence 

that someone had been there to clean around the conveyor that 

morning or late in the afternoon (Tr. 102). He stated that 

no one knew how long the guard had been off, but since it was 

partially covered with sand, "it appeared to be off some 

time." The guard was replaced, and while it may have been 

put back that same day, he terminated the violation the next 

day (Tr. 102). 

644 
On cross-examination, Mr. Manis stated that the walkway 

was about 3 feet from the tail pulley, and that it was guarded 

by a handrail. He stated that someone could get into the 

unguarded pulley pinch point while cleaning up on the side of 

the pulley, and that cleanup could not be done in that area 

from the walkway. Upon examination of three photographs taken 

by the respondent purporting to be the cited conveyor belt 

area, Mr. Manis could not state whether they were in fact of 

the area he cited (exhibits R-1. through R-3; Tr. 102-105). 

In response to further questions, Mr. Manis identified 

the steel structure across that portion of the belt tail 

where the guard had been removed, and while he agreed that .it 

provided some protection on the sides, the required guard 

should cover the entire tail section. He agreed that the 

"square box-type" guard which had been removed would be adequate for this purpose. Although he did not know the specific 

procedures followed by the respondent in cleaning the area, he 

stated that the correct procedure is to lock out the belt and 

shutdown the power before servicing it, and then replacing the 

guard after the work is completed (Tr. 113). He confirmed 

that he cited a violation of section 56.14006, because the 

tail pulley was guarded at one time, but was removed and not 

replaced (Tr. 114). He did not consider the cited tail pulley 

area to be ."guarded by location" because someone could simply 

walk up to it, as he did, and it was not up in the air where 

no one could g~t to it or reach it (Tr. 116). 

Mr. Manis stated that anyone could walk up to the 

unguarded tail pulley and stick their hand or foot into it 

"if they wanted to" while cleaning or servicing it, or doing 

welding work (Tr. 117). He believed someone could do this by 

bending over while cleaning the belt with a shovel, and he 

did not believe that one had to get on their hands and knees 

to reach the pinch point. He stated that while the tail 

pulley was 3 feet off the ground, the pinch point was at the 

bottom "right on the ground" {Tr. 119). He stated that 

clean-up would be done by a long-handled shovel, and the 

removal of the guard while cleaning would depend on whether 

there was any sand "runover" (Tr. 121). He confirmed that in 

order for someone to reach the pinch point, he would have to 

reach in over or under the steel structure of the conveyor 

belt as shown in photographic exhibits P-9 (Tr. 121). 

Respondent's Testimony and Evidence 

Greg Brown testified that the cited area is normally 

cleaned up by a water hose which sprays water up through the 

tail pulley and anywhere on the walkway. A shovel is not 

645 
usually used unless the belt is "overloaded so much that it's 

got spillover.'* In that case the clean-up man "gets as much 

as he can out.with a shovel •• ·• and we use water as much as 

possible" (Tr. 123). Mr. Brown identified the three photographs (exhibits R-1 through R-3) as the identical cited area 

in question. He identified the location of the unguarded 

pinch-point as the area at the bottom and behind the steel 

belt tail structure at the approximate same location identified by Inspector Manis (Tr. 124). 

Mr. Brown stated that since water is used to wash off 

the tail pulley area, the only reason for removing the guard 

would be to loosen or tighten the belt, and that this would 

be done with the belt turned off. He stated that the pinch 

point in question was an inch or two off the ground, and that 

someone would·hqve to be on their hands and knees below ground 

level in order to stick his hand into the tail pulley (Tr. 

126). 

On cross-examination, Mr. Brown stated that when the 

belt is cleaned with water, it may or may not be running, but 

that when shovels are used, it is turned off. When asked 

whether it makes a difference to the clean-up man whether it 

is turned off while cleaning it with water, he replied "I 

don't reckon it does to them" (Tr. 127). He confirmed that 

any accumulated material which is cleaned from the belt tail 

by water goes out of a drain pipe located some 5 or 6 feet 

away and out of the view of the photographs (Tr. 127). He 

confirmed that the cited tail pulley area has always been 

guarded during the 2 years he has been at the mine, and he 

agreed that the photograph of the guard which was removed as 

depicted in exhibit P-9, looks like the same guard (Tr. 128). 

The only reason for the removal of the guard would be to 

tighten the belt, and he confirmed that the walkway is approximately a foot or a foot and a half from the the pinch point 

area. He stated that the belt is on roller wheels and is 

swung away from the walkway when it is not in use. He confirmed that the belt was operating when the inspector issued 

the citation (Tr. 130). 

Mr. Brown stated that to reach the pinch point area from 

the walkway, one would have to be kneeling on the walkway and 

reaching down for a distance of 1 to 2 feet. He stated 

further that any washing down of the tail section is done 

from the walkway because the clean-up man can reach just about 

every spot from that location, and he knows of none which 

cannot be reached from the walkway. The walkway has a standard 4-foot high guardrail that extends the full length, and 

it also has a mid-rail (Tr. 133). 

646 
Mr. Steven Brown confirmed that the tail section guard 

was initially installed because MSHA required it, and he 

agreed that unless it is taken off to make some adjustments 

to the belt, it is required to stay on. He also agreed that 

if the guard is taken off after the belt is adjusted, it 

should be put back on (Tr. 135). He stated "that may have 

been what he was doing that morning. I don't know" (Tr. 136). 

With the Court's permission, the respondent produced a 

video tape showing the cited tail pulley area in question, 

and pointed out the pinch point area below the adjacent walkway. Mr. Carl Brown confirmed that he made the video the 

night before the hearing, and MSHA counsel Welsch pointed out 

that the video reflects that the cited tail pulley was a 

"wing pulley" rather than a "smooth cylinder pulley" (Tr. 

141). 

MSHA's Arguments 

In its posthearing brief, MSHA asserts that there is no 

question that at the time of the inspection, the guard for 

the tail pulley section of the railroad car loader was off 

and no testing was being conducted. In fact, the conveyor 

was operating and loading sand. Although the pinch point of 

the tail pulley was close to floor level, MSHA states that it 

is important to note that it was close to the walkway and 

capable of catching loose clothing. Also, it may have been 

hazardous to employees doing cleanup around the conveyor, and 

without the guard, there was nothing to prevent an employee 

from being caught in the pinch point. 

MSHA asserts that it is relevant to note that the cited 

standard only requires the guard to be securely in place, and 

does not require a showing of any hazard to employees. Since 

the guard had been removed and not replaced, MSHA concludes 

that a violation has been established. 

MSHA concludes further that in accordance with the criteria of National Gypsum co., Cement Division, 3 FMSHRC 822 

(April 1981), it is clear that the lack of a guard would 

likely have caused serious injury to employees who worked in 

maintaining the tail pulley and to employees who regularly 

used the walkway in the area. Therefore, MSHA further concludes that the violation should be considered "significant 

and substantial." 

647 
Fact of Violation 

The respondent here is charged with a violation. of mandatory safety standard 30 C.F.R. § 56.14006, which provides 

that "Except when testing the machinery, guards shall be 

securely in place while machinery is being operated." 

After careful consideration of all of the testimony and 

evidence adduced with respect to this v~olation, I conclude 

and find that MSHA has established a violation by a preponderance of the credible evidence in support of its case. The 

respondent has not rebutted the fact that the guard which is 

normally in place at the tail pulley location was not in place 

at the time the inspector observed it, and that the conveyor 

belt was indeed operating loading sand. As correctly stated 

by MSHA, no testing was taking place and the guard was not in 

place. Accordingly, the violation IS AFFIRMED. 

With regard to the "significant and substantial" finding 

by the inspector, MSHA's assertion that it was likely that 

someone could catch their clothing in the exposed pinch point 

from the walkway, is rejected. The walkway was guarded by a 

handrail, and I find it highly unlikely that anyone standing 

on the walkway while hosing down the tail pulley, or simply 

walking by, could inadvertently catch their clothing in the 

pinch point. Such a person would have to fall through or 

over the protective railing, and contort their body under the 

steel framework of the conveyor to reach the pinch point. 

With regard to the likelihood of anyone reaching the 

pinch point while servicing or cleaning the tail pulley area 

while inside the protective walkway immediately adjacent to 

the unprotected tail pulley assembly, I conclude and find 

that the facts here support the inspector's "significant and 

substantial" finding in that respect. Although Greg Brown 

testified that normal cleaning is conducted by means of a 

water hose, he confirmed that the cleaning of belt spillage 

or overloading is also done by means of a shovel, and that 

the clean-up person "gets as much as he can with a shovel." 

Any cleanup would require the person handling the shovel to 

get in and behind the tail pulley apparatus beyond the steel 

conveyor framework. 

I am not convinced that any cleanup with a shovel would 

always be done from the walkway, but would require the cleanup 

person to be in close proximity of the pulley assembly itself. 

Further, any belt adjustments would necessarily be made by 

someone in close proximity to the tail pulley assembly rather 

than from the walkway. More importantly, although Mr. Brown 

648 
stated that any cleanup work accomplished by means of a shovel 

would normally be done with the belt turned off, he conceded 

that it made no difference to the cleanup person whether the 

belt was turned on or off while it was being cleaned with 

water. Under these circumstances, any cleanup person who 

would be indifferent as to whether the belt was shutdown or 

not, would likely place himself in a hazardous situation 

should he venture close to the unguarded tail pulley assembly 

while attempting to hose it down or clean it up by means of a 

shovel, and would reasonably likely suffer injuries if he were 

to contact the unguarded tail pulley assembly. The fact that 

it may require him to be on his ·hands and knees to reach the 

particular pinch point in question, does not detract from the 

fact that he could become entangled in the tail pulley assembly which is normally guarded by a large "box-type" steel mesh 

guard which is required to be in place. Under these circumstances, the inspector'~ "significant and substantial" finding 

IS AFFIRMED. 

Gravity - The violation was serious in that the lack of 

guarding could have contributed to an accident. The pinch 

point, and more so the unguarded conveyor tail pulley assembly, were readily accessible to any cleanup or maintenance 

man in the area. 

Negligence - The violative condition was readily observable and should have been detected by the respondent exercising reasonable care. I conclude and find that the violation 

was the result of ordinary negligence on the respondent's 

part. 

Good Faith Compliance 

MSHA agrees that the respondent abated the violation in 

good faith, and I adopt this as my finding on this issue. 

Civil Penalty Assessment 

Taking into account the requirements of section llO(i) 

of the Act, I conclude and find that a civil penalty assessment in the amount of $175 is reasonable for the violation 

which has been affirmed. 

Section 104Cd)(l) "S&S", Citation No. 2521744, issued on 

July 19, 1985, cites a violation of 30 C.F.R. § 56.9003, and 

the condition or practice is described as follows: "The Dodge 

welding truck was not provided with service brakes and the 

brake pedal was missing. This welding truck Mas cited for 

649 
service brakes in the past and was taken out of service for 

termination. This is an unwarrantable failure." 

On September 4, 1985, Inspector Steve Manis issued section 104(b) Order No. 25221410, removing the truck from 

service. The order reads: "No apparent effort was made by 

the mine operator to repair the service brakes on the Dodge 

welding truck. This equipment shall not be operated for any 

purpose until inspected and released by an MSHA inspector." 

MSHA's Testimony and Evidence 

MSHA Inspector Ron Grabner confirmed that he inspected 

the respondent's mine on July 19, 1985, and issued the citation on the welding truck. He also confirmed that during a 

subsequent inspection of the truck conducted with Inspector 

Manis on September 4, 1985, three photographs of the truck 

were taken, and he identified them as exhibit P-11. Other 

than the repair of certain axle bolts that were loose and 

missing on July 19, he was aware of no other changes made to 

the truck from July 19 to September 4, and the truck looked 

the same on both days (Tr. 147-151). 

Mr. Grabner stated that the truck was converted so that 

it could be used as a "welding truck," and that it was moved 

about the plant to service and repair equipment. When he 

first observed it in July, it was located at the new shaker 

screen which was under construction, and when he observed it 

in September, it was located at the old shaker screen. He 

confirmed that the service brake which normally activates the 

rear wheels to stop the truck was completely removed from the 

truck, and the brake pedal itself was missing {Tr. 151-154). 

Mr. Grabner stated that during his inspection on July 19, 

lead.man Jim Miller informed him that the truck had been driven 

to the new shaker screen location (Tr. 154-166). Mr. Grabner 

believed that 'the missing brake condition constituted a significant and substantial violation because it was reasonably 

likely that an accident resulting in serious injuries could 

occur before the condition was corrected (Tr. 155). When he 

returned to the mine in September, the brakes had not been 

repaired, and Mr. Manis issued an order. At that time, Greg 

Brown confirmed that no effort had been made to repair the 

truck (Tr. 157). 

On cross-examination, Mr. Grabner confirmed that he has 

never observed the cited truck moving, but that Mr. Miller 

advised him that it would run. However, when he was there in 

September the battery was dead, and the truck could not be 

650 
started. He confirmed that section 56.9003, does not specifically require a brake pedal, but does require the truck to 

have "adequate brakes" that will stop the truck within a reasonably safe distance. He agreed that a truck travelling 

10 miles an hour would stop quicker than one going at 40 miles 

an hour CTr. 159). 

In response to further questions, Mr. Grabner stated 

that the truck had a hand brake which is used to hold the 

truck after it is stopped, but he did not consider this to be 

the service brake (Tr. 160). He believed that the loose axle 

bolts which he detected on July 19, would affect the hand 

brake if they came loose from the axle and the truck would 

not stop (Tr. 161-163). He confirmed that no citation was 

issued for the axle condition (Tr. 164). 

Mr. Grabner agreed that the truck is moved from one location to another at the plant as needed for the purpose of 

performing construction work that requires welding, and that 

it may remain in one location for days before being moved to 

another location. He confirmed that he was told the truck 

was driven to the first location on July 19, and towed by 

means of a front-end loader to the second location on 

September 4 (Tr. 168-169). The truck did not have any doors, 

windshield, and one of the headlights was broken. However, 

no citations were issued for these conditions (Tr. 171). He 

cited it because it had no service brakes or a brake pedal to 

indicate that service brakes were indeed on the truck (Tr. 

173). 

Mr. Grabner stated that the truck at one time was a 

four-wheel drive truck, and he identified respondent's photographs, exhibits R-4 through R-6 as the sited truck (Tr. 174). 

Mr. Grabner confirmed that the axle condition was repaired 

when he returned to the plant in September, but he could 

recall no explanation by the respondent as to why the brakes 

were not repaired. He also confirmed that during a conference 

with Carl Brown, Mr. Brown took the position that the hand 

brake was sufficient to stop the truck, and that it is driven 

in first or second gear at low speed (Tr. 177, 181). Although 

the truck was never tested, and Mr. Grabner did not ride in 

it, Mr. Miller did show him in July how the hand brake was 

used, and Mr. Grabner had no reason to believe that the hand 

brake would not hold the truck once it was stopped (Tr. 178). 

However, he would not accept the hand brake as compliance 

because it was not intended to be used for stopping the truck 

when i_t' s moving (Tr. 180-181) • 

651 
Mr. Grabner was not aware of any thorough MSHA inspection 

of the truck to determine whether or 'not it was otherwise 

equipped with a braking system or parts (Tr. 182) •. However, 

he was not aware of anything inside the cab of the truck which 

could be used to activate any service brake system, and the 

respondent never informed him of any mechanism inside the 

truck which could be used to activate any such brake system 

(Tr. 183). 

Inspector Reino Mattson testified 1that he first became 

familiar with the cited truck in June, 1977, when MSHA Inspector Michael Denny cited it as an imminent danger because it 

was operating without service brakes, and the brake pedal was 

cut off {exhibit P-13). Since the truck was drivable, 

Mr. Mattson would not permit the installation of a tow bar to 

serve as abatement, and the order remained in effect. 

Eighteen months later, the respondent was advised by MSHA 

that the installation of the tow bar for the purpose of towing the truck would serve as compliance, but that the order 

would remain in effect in case the truck were driven under 

its own power. Subsequently, in November, 1978, the welding 

apparatus was removed from the truck, and it was parked with 

the engine frozen. Under the circumstances, since the truck 

was out of service, the order was terminated (Tr. 184-187). 

Mr. Mattson stated that after the order was lifted, he 

met Mr. Carl Brown at a subsequent hearing sometime in 1980, 

and Mr. Brown asked him about putting the truck back in service. Mr. Mattson stated that he informed Mr. Brown that if 

he repai'red the brakes there would be no problem. Mr. Brown 

replied "I'm not touching the brakes," and Mr. Mattson 

informed him that "we're probably going to have some more 

problems." Subsequently, when Mr. Mattson was at the plant 

with Mr. Grabner on July 19, 1985, he discovered that the 

welder and cutting torches were put back on the same truck, 

and Mr. Miller and Greg Brown informed him that the truck had 

been driven to the location where it was discovered and that 

it had also been used around the plant. Under the circumstances, Mr. Grabner issued the citation (Tr. 187-188). 

Mr. Mattson could not state when the truck was actually put 

back into service (Tr. 191). 

On cross-examination, Mr. Mattson confirmed that from 

the time the truck was taken out of service in 1978, until 

the inspection of July 19, 1985, he never observed the truck 

being driven and it was parked "in the bone yard. And the 

weeds were as high as the truck and it was not in operation" 

(Tr. 192). 

652 
Respondent's Testimony and Evidence 

' 

Carl Brown testified that he acquired the truck in question 18 to 20 years ago as government surplus. He described 

the truck as a four-wheel drive 1935 Army weapons carrier. 

He exchanged scrap iron worth $50 for the truck, and when he 

got it, it did not have a brake pedal or a windshield, and it 

was used to transport the welder. He stated that the hand 

brake was used and "it would drag the wheels in that sand." 

Even without a hand brake, with four-wheel drive travelling 

at 3 or 4 miles an hour, the truck would stop itself (Tr. 

192-193). 

Mr. Brown stated that after the truck was cited as an 

imminent danger it "was parked in the weeds," and the order 

was lifted when a tow bar was installed to the truck, but the 

truck still "sat in the weeds." Subsequently, his grandson 

Daryl, who was then 15, years old, performed some work on the 

motor and got the truck running again and drove it to the 

plant office area (Tr. 194). Mr. Brown did not know whether 

the truck was driven to the location where it was found by 

the inspectors on July 19, 1985 (Tr. 196). 

MSHA's counsel Welsch stated that the truck was cited on 

July 19, 1985, because it had no service brakes, and the 

inspectors were led to believe that it was driven from the 

weeded area to the location where they observed it, and the 

tow bar had been removed (Tr. 199). MSHA was previously 

under the impression that the truck was to be towed or moved 

around by a front-end loader using the tow bar (Tr. 200-201). 

Mr. Brown confirmed that the cited truck has never been 

involved in an accident and has never run into anything (Tr. 

2 08) • 

Greg Brown confirmed that when the inspectors came to 

the plant in September 1985, he informed them that the truck 

"would not run or crank." He confirmed that the truck was 

towed to the old screen location a week prior to the inspection, and it remained there until it was again towed to the 

shop sometime in December and the back axle would not roll 

free because the "rear end gummed up on us." He confirmed 

that the truck was used to haul a welder, and when it was 

moved from the shop to the plant it travelled less than a 

guarter of a mile. If it were driven, the top speed was 10 

to 15 miles an hour, and he never had any trouble stopping it 

with the hand brake, and it never ran into anything or anybody (Tr. 211-212). If the clutch were engaged, the truck 

would "roll free" depending on its speed (Tr. 213). 

653 
On cross-examination, Mr. Brown admitted that either he 

or Mr. Miller drove the truck from the shop to the location 

where it was observed by the inspectors on July 19, 1985. He 

confirmed that he started working at the plant 2 years ago, 

and that the truck was in operation when he got there. He 

did not know how long it had been operational prior to that 

time. The truck would be "towed some 11 .and depending on the 

distance, it would also be driven, "if it cranked" (Tr. 217). 

The truck had a hand brake, and it was driven in four-wheel 

low gear drive at speeds less than 10 to 15 miles an hour 

because of the muddy and sandy conditions and for traction. 

Mr. Brown stated that the mine grounds do have hills, 

inclines, and declines, and the main road areas consist of 

hard compacted dirt. When the truck is driven, it is kept in 

four-wheel drive and it is slowed down by use of the hand 

brake and normal deceleration, and he does "what's necessary 

to stop the vehicle 11 (Tr. 220). One of the "hired hands 11 

who did the welding usually drove the truck, but if he were 

not available, he and his brother, or Mr. Miller would drive 

it. He confirmed that the truck had no brake pedal or service brake, and while he has never examined the truck to 

determine whether it had a master cylinder or brake pads, 

there was no way to engage such a system from the cab while 

driving it. He confirmed that the hand brake is a system 

separate from any service brake system, but that the truck 

can be driven with the hand brake on, and it will stop the 

truck. He never experienced any trouble travelling down an 

incline using the hand brake (Tr. 221-223). 

Mr. Brown confirmed that since the 104(b) order was 

issued, the truck has been parked at the shop and has not 

been used. The welder was removed and another portable 

welder has been purchased (Tr. 224). Counsel Welsch confirmed that the order has never been terminated, and as long 

as the truck is out of service, the respondent is in compliance with that. order. Mr. Welsch confirmed that he is satisfied that the truck has been taken out of service (Tr. 225). 

Jim Miller testified that he has worked for the respondent for 10 years, and confirmed that he has driven the truck 

in question during this period but never had any trouble stopping it with the hand brake. The truck has never run into 

anything, and it can possibly travel at a speed of 15 miles 

an hour. The distance from the shop to the pit area is a 

quarter of a mile. The truck was towed from the new screen 

area to the old screen area and remained there for a couple 

of months. Since the rear end was locked up, it would not be 

used for welding, and it was taken to the shop where it has 

654 
been parked ever since (Tr. 227). Mr. Miller stated that he 

has never "demonstrated" the truck to any inspector, and has 

never been asked to (Tr. 227). 

Daryl Brown, testified that he is 20 years of age, and 

that he was 14 or 15 when he discovered the cited truck "in 

the weeds 11 in the pit during the summer. He confirmed that 

he cleaned the plugs, filed the points, cleaned out the gas 

tank, and installed a new battery and drove the truck to the 

plant office to show his grandfather, Carl Brown. His grandfather had him drive the truck "to the edge of the hole" 

where he took a picture of him in the truck. He had no trouble stopping the truck with the hand brake. Since that time, 

he has driven the truck while working at the site 2 months a 

year and has had no trouble stopping it (Tr. 230). 

Mr. Carl Brown stated that the truck has not been used 

since the order was issued in September, 1985, that it has 

been taken out of service and he does not intend to use it 

again. He conceded that on the basis of the testimony 

adduced in this case, the truck was operated and driven prior 

to the time it was inspected and cited, but he insisted that 

it had an adequate hand brake (Tr. 238-239). 

At the conclusion of the testimony, Mr. Carl Brown 

informed the Court that the truck in question was on a 

flat-bed truck parked across the street from the courtroom, 

and he requested that I view it. In the presence of the 

parties and all of the witnesses, I climbed onto the flat-bed 

truck and looked into the cab and the truck and observed that 

it was equipped with a handbrake, but that the foot pedal for 

the service brakes was missing. I also observed that the 

doors, windshield, and one headlight were missing. Mr. Steve 

Brown demonstrated the hand brake, and I observed the hand 

brake mechanism in place on the undercarriage of the truck 

(exhibit R-6; Tr. 249). 

MSHA's Arguments 

During oral argument at the conclusion of his case, MSHA 

counsel Welsch took the position that as long as the truck in 

question is towed and not driven, and complies with mandatory 

standard 30 C.F.R. § 56.9-70 (now 56.9070), with respect to 

the installation of a substantially constructed tow bar, the 

truck would not have to be equipped with service brakes. It 

was counsel's understanding that this was precisely the compromise agreed upon by MSHA when the previously issued imminent danger order was terminated in 1978, after the truck was 

taken out of service, and MSHA was under the assumption that 

655 
the truck would thereafter be towed and never driven (Tr. 

233-237). 

Mr. Welsch took the further position that even though 

the truck may have been driven a short distance at low speed 

and could be stopped by means of the hand brake, in order to 

comply with the cited standard, the truck must be equipped 

with separate service brakes, notwithstanding the fact that 

the broad language of section 56.9003 requiring "adequate 

brakes" does not specifically di.fferenti'ate between hand 

brakes or service brakes. Mr. Welsch stated further that the 

hand brake was not designed to stop the truck while it is 

moving (Tr. 239-241). 

In its written posthearing arguments, MSHA argues th.at 

it is uncontroverted that the cited welding truck was being 

operated without any service brakes, and that the brake pedal 

had been removed and had not been replaced during the 20 years 

the truck had been owned by the respondent. In order to stop 

the truck, the driver operated the truck in the low gear and 

used the clutch and hand brake. However, this should not 

replace the need for service brakes as required by the standard, and as conceded by the respondent, the hand brake was 

designed as an emergency brake to hold the truck once stopped. 

It was not designed to be used as a service brake to stop the 

truck. 

MSHA maintains that the phrase "adequate brakes" as used 

in the standard clearly implies that service brakes exist and 

are used 'as designed by the manufacturer, and that the respondent's use of hand brakes or any other means to stop the 

truck is beyond the manufacturer's design and should not be 

considered compliance with the standard. The fact that 

respondent's employees testified that they had no problem in 

stopping the truck, using a variety of methods, should be 

considered irrelevant to finding a violation. 

MSHA further maintains that the purpose of the standard 

is to prevent accidents. "Adequate brakes" as required by 

the standard should be given its commonly used meaning which 

would include service brakes on the vehicle designed for stopping, as well as hand brakes to hold the vehicle in emergencies. Section 56.9-3 prohibits operator conduct unacceptable 

in light of common understanding and experience in the industry or when the operator has actual knowledge that a condition or practice is hazardous. Concrete Materials, Inc., 

2 FMSHRC 3105 (October 22, 1980). "Adequate brakes" clearly 

requires at least service brakes and not the use of other 

methods or the ingenuity of the employee to stop a vehicle. 

656 
To hold otherwise would negate the intent of the standard and 

place compliance within the whimsical imagination of the operator. Medusa Cement Company, 2 FMSHRC 819 (April 8, 1980). 

MSHA con9ludes that the respondent's violation of section 

56.9-3, was cited as "significant and substantial" within the 

meaning of section 104 of the Act and the Commission's decision in National Gypsum Co., Cement Division, 3 FMSHRC 822 

(April 1981). In support of this conclusion, MSHA asserts 

that clearly, the lack of any service brakes presented a "significant and substantial" hazard to the driver and employees 

working in the vicinity, and, as noted by the respondent, the 

plant had hard compact roads and steep inclines which would 

require a good braking system. Respondent's need for service 

brakes was substantial. 

Fact of Violation 

The respondent here is charged with a violation of mandatory safety standard 30 C.F.R. § 56.9003, which provides that 

"Powered mobile equipment shall be provided with adequate 

brakes." 

I conclude and find that MSHA has clearly established 

that the cited truck in question was not equipped with any 

service brakes, and that the only means of stopping it while 

it was being driven was by the use of the hand brake and low 

gears and clutch. The respondent's suggestion that the hand 

brake constituted an "adequate" braking system within the 

meaning of section 56.9003, is rejected. As correctly argued 

by MSHA, the hand brake was designed to hold the truck once 

it was stopped, and it was not designed to be used as a 

regular service brake to stop the truck while it was being 

driven about the plant site. The fact that the respondent 

used a variety of methods to stop the truck is irrelevant, 

and MSHA's interpretation and application of the facts here 

presented to the requirements stated in the cited standard 

are correct and I adopt them as my findings and conclusions 

on this issue. The violation IS AFFIRMED. 

Significant and Substantial Violation 

I agree with MSHA's assertion that the lack of service 

brakes on the truck was a significant and substantial violation. In view of the condition of the truck, including the 

total lack of a brake pedal or service brakes, and the fact 

that it was driven periodically over a long period of time 

with no service brakes, I believe it is reasonably likely 

that the lack of brakes could contribute to a potential 

657 
hazard to anyone driving it, particularly on inclines. In 

the circumstances, I conclude that the cited condition would 

likely contribute to the hazard. Accordingly, the inspector's "significant and substantial" finding IS AFFIR.i.\1ED. 

Gravity 

While it is true that the truck in question was sometimes 

towed and left for several days at several construction sites 

where it was used for welding and repairs, the tow bar had 

been removed, and it seems clear to me from the testimony in 

this case that it was also driven without a service brake by 

Greg and Daryl Brown, leadman Miller, and the person who was 

doing the welding work. 

Although the distance from the shop to the pit area was 

approximately a quarter of a mile, I am not convinced that 

the use of the.truck was restricted to that particular route 

as a matter of routine.· Daryl Brown testified that for the 

2 years he has worked at the site, he has driven the truck 

while working there during time off from school. As a matter 

of fact, he admitted that his grandfather had him drive the 

truck to the edge of the pit, using only the hand brake to 

stop it, so that he could take his picture. Mr. Miller testified that he has driven the truck during the 10-years he has 

worked at the site. Greg Brown testified that "depending on 

the distance," the truck would be driven rather than towed, 

and that he had no problem stopping it while driving down 

inclines. 

Although the respondent has established that the truck 

may not have been driven faster than 10 to 15 miles an hour, 

the total lack of any service brakes exposed the driver to a 

potential hazard likely to cause serious injury in the event 

of an accident. Having personally viewed the truck, I am of 

the view that the lack of doors, no windshield, and a makeshift driver's seat were conditions that posed additional 

hazards to the driver. Further, the position of the hand 

brake is such that the driver would have to bend down to 

reach it, rather than simply engaging a foot pedal, and in an 

emergency situation, this would impact on his reaction time. 

Under all of these circumstances, I conclude and find that 

the violation is serious. 

Negligence 

I agree with MSHA's argument that the respondent 

exhibited a high degree of negligence with respect to this 

658 
violation. The evidence clearly establishes that the respondent has for many years known that the truck should not be 

operated without service brakes. 

Good Faith Compliance 

The evidence establishes that the respondent failed to 

repair the service brakes or to otherwise abate the conditions cited on July 19, 1985, and that an order had to be 

issued on September 4, 1985. Further, I believe it is clear 

from the facts in this case that the respondent has exhibited 

total indifference with respect to the conditions cited. 

Under the circumstances, I conclude and find that the respondent has demonstrated a lack of good faith with respect to 

the violation in question. 

Civil Penalty Assessment 

Taking into account the requirements of section llO(i) 

of the Act, particularly the respondent's high degree of 

negligence and lack of good faith compliance with respect to 

the violation, I believe a civil penalty assessment in the 

amount of $600 is reasonable and appropriate. 

Section 104(d)(2) Order No. 2521411, issued on 

September 4, 1985, cites a violation of 30 C.F.R. § 56.9087, 

and the condition or practice is described as follows: 

The automatic warning device which would 

give an audible alarm when the 644 C John Deere 

Front-end loader was put into reverse was not 

operating. Greg Brown stated that an electrical short was causing the back-up alarm not to 

work. This violation is an unwarrantable failure and this equipment shall not be operated 

for any purpose until inspected and released 

by an MSHA inspector. 644C John Deere 

Front-end loader, Serial No. 644 CB 4033930. 

MSHA's Testimony and Evidence 

MSHA Inspector Ronald Grabner stated that while conducting an inspection at the mine on July 19, 1985, he observed 

the front-end loader in operation that morning at the load 

out bins and the back-up alarm was working. Later in the day 

when the loader was inspected, the alarm was not working. 

Mr. G~eg Brown determined that a fuse had burned out, and he 

replaced it. However, the new fuse burned out, and Mr. Brown 

surmized that there was a short circuit in the system. Since 

659 
the loader was parked, and since it appeared that something 

had malfunctioned between the time the loader was first 

observed in operation and the time it was inspected, no citation was issued. Mr. Brown stated that he would correct the 

condition (Tr. 9-15). 

On cross-examination, Mr. Grabner stated that the loader 

was originally equipped with a backup alarm, and since there 

is an obstructed view to the rear, a backup alarm is required. 

When asked why he did not cite a second 644-B loader, 

Mr. Grabner stated that when he observed it operating in the 

stock pile area near the service tunnel, he did not believe 

that the view to the rear from the driver's seat was · 

obstructed (Tr. 15, 17). 

MSHA Inspector Steve c. Manis confirmed that during an 

inspection on September 4, 1985, he observed the front-end 

loader in question in operation, and he identified a photograph of the loader which he took that day (Tr. 23, exhibit 

P-1). Mr. Manis stated that the loader was operating at the 

surge tunnel area pushing sand into the surge pile where it 

falls through the tunnel top and is carried away on conveyor 

belts. Although the tunnel is not a normal travelway to get 

from the front of the plant to the back, it could be used as 

a travelway since it is closer than walking around the surge 

pile and bins. The loader was equipped with a back-alarm, 

but it· was not working. Mr. Greg Brown confirmed that the 

alarm had a short, and when asked why it had not been 

repaired, Mr. Brown replied that "he just hadn't had time." 

Mr. Manis issued the citation, and subsequently terminated it 

on September 6, 1985, when repairs were made (Tr. 28). 

Mr. Manis confirmed that he got into the loader next to 

the operator and looked out the rear view window and found 

that the engine hood, air cleaner container, and the muffler 

and tailpipe constituted an obstructed view to the rear of 

the machine (Tr. 29). Mr. Manis observed no one serving as 

an observer, and the machine was not equipped with rear view 

mirrors. He believed the violation was "significant and substantial" because the loader was operating in an area where 

there was a potential for people walking through the area, 

and there is a blind spot to the rear of the machine (Tr. 

31). 

On cross-examination, Mr. Manis confirmed that he saw no 

one around the loader while it was in operation. He also 

confirmed that the photograph he took was in connection with 

a broken windshield violation, and that it was not taken to 

support the backup alarm violation (Tr. 32-34). Mr. Manis 

660 
also confirmed that he did not observe the loader at the end 

of the surge tunnel, but saw it operating in the surge pile 

area (Tr. 37). He also confirmed that he made a notation of 

the serial number of the cited loader (Tr. 39). 

Mr. Manis confirmed that he was aware of the fact that 

the,loader in question had previously been inspected by 

Inspector Grabner, and that Mr. Greg Brown assured Mr. Grabner 

that he would repair the defective backup alarm (Tr. 51). 

Respondent's Testimony and Evidence 

Greg Brown confirmed that he accompanied Inspectors 

Grabner and Manis during their inspections on July 19 and 

September 4, 1985. He confirmed that he advised Mr. Grabner 

that the 644C loader may have had a short, but that he also 

advised him that he,was not sure and that "it could be anything11 (Tr. 55). Mr. Brown stated that none of the equipment 

operators have ever advised him that their view to the rear 

is obstructed, and he confirmed that he has operated both 

loaders and has had no problem with any obstructed view to 

the rear (Tr. 57). Mr. Brown conceded that if someone 5 feet 

8 inches tall were to stand behind the machine "jam up to the 

radiator," he would probably not be seen by the equipment 

operator (Tr. 58-59). Mr. Brown could not state how far back 

from the machine the person would have to stand before he 

could be seen by the operator (Tr. 59). He confirmed that 

when he backs up the loader, he looks to the rear because "I 

don't want to hit nobody, or hit anything else. I run over a 

chainsaw before, like that" (Tr. 62). 

Mr. Brown confirmed that the respondent traded the 664-B 

end-loader, and purchased another 644-C model which was not 

equipped with a backup alarm, and no citation has been issued 

for a lack of a backup alarm (Tr. 63). MSHA counsel Welsch 

explained that this new 664-C end-loader has factory equipped 

convex backup mirrors, and supervisory Inspector Reino Mattson 

confirmed that ~SRA's district office has given verbal 

approval for the use of the mirrors in lieu of a backup alarm, 

as long as the visibility to the rear is good and there are no 

obstructions to the rear (Tr. 65-69). 

Carl Brown stated that 40 to 50 trucks are on his property every day, and they are regulated by OSHA and have no 

backup alarms. Mr. Brown claimed that loaders and tractors 

received by other operators regulated by OSH~ have told him 

that when they receive this equipment they take the backup 

alarms off "because it's a nuissance around the working place" 

(Tr. 20). · For demonstration purposes, Mr. Brown played a 

661 
video tape of several front-end loaders, included the one 

cited in this case, operating in the same area of the mine·as 

the one which was cited (Tr. 75-76). 

Inspector Grabner was called in rebuttal, and he confirmed that the day prior to the hearing, he and Inspector 

Manis observed a John Deere front-end loader model 644-C, 

similar to the one cited in this case, at another sand mining 

operation. They took measurements to determine the distance 

of any obstructed view to the rear in relation to any foot 

traffic to the rear of the machine. Mr. Grabner stated that 

he sat in the driver's seat and Mr. Manis, who is 5-feet 

10-inches tall, stood at the rear of the machine, and after 

taking measurements, they determined that looking over 

Mr. Grabnet•s left shoulder, Mr. Manis first came into view 

at a distance of. 8 feet 5 inches from the rear of the machine 

to where he was standing when the measurement was taken. 

Although the distance to the rear looking over his right 

shoulder was not measured, Mr. Grabner believed that it would 

have been considerally further back from where Mr. Manis was 

standing because of the obstruction of the muffler and air 

cleaner (Tr. 77-78). 

On cross-examination, Mr. Grabner stated that the 

front-end loader in question is used for a multitude of purposes and at different locations at the mine site and is not 

used solely for one job at one particular location. He could 

not state whether he observed anyone around the loader in 

question when he first observed it. While it may operate in 

an area with no people around it, the next day it may be operating in an area where there may be people or other equipment 

working around it. Under these circumstances, he believed 

that the lack of an operable backup alarm on the cited loader 

constituted a "significant and substantial" violation, and he 

agreed with Inspector Manis' finding in this regard (Tr. 

81-87). 

Fact of Violation 

The respondent here is charged with a violation of mandatory safety standard 30 C.F.R. § 56.9087, which provides as 

follows: 

Heavy duty mobile equipment shall be provided with audible warning devices. When the 

operator of such equipment has an obstructed 

view to the rear, the equipment shall have 

either an automatic reverse signal alarm which 

is audible above the surrounding ,noise level 

662 
or an observer to signal when it is safe to 

back up. 

I conclude and find that MSHA has established by a clear 

preponderance of the evidence that the cited end-loader in 

question had an inoperable backup alarm at the time the 

inspector cited it. I also conclude and find that MSHA has 

established that the view to the rear of the cited end-loader 

is obstructed, and that an operable backup alarm was required. 

This conclusion is supported by the testimony of the inspectors who made measurements of a similar end-loader, and it is 

corroborated as well by the photograph produced by the respondent, exhibit R-2, which shows that the air cleaner, muffler, 

and tailpipe behind the operator's compartment constitute 

obstructions to the operator's view to the rear of the 

machine. The respondent has not rebutted this fact, and the 

inspector's findings are further corroborated by the testimony of Greg Brown who testified that he ran over a chainsaw 

while operating the machine in reverse because he obviously 

did not see it, and that he always looks to the rear because 

he does not want to run over anyone or hit any equipment 

which may be operating to the rear of the machine. The violation IS AFFIRMED. 

Significant and Substantial Violation 

I agree with the inspector's finding that the lack of an 

operable backup alarm constituted a significant and substantial violation. While it may be true that the inspector 

could not recall observing anyone working the proximity of 

the machine while it was operating, the respondent had not 

rebutted the fact that the machine is used for a multitude of 

purposes at different locations at any given time. Under 

these circumstances, it is reasonably likely that tha lack of 

an operable backup alarm could contribute to a potential 

hazard to equipment operating in the same area on any given 

day, or to mine personnel working in the area. Accordingly, 

the "S&S" finding by the inspector IS AFFIRMED. 

Gravity 

I conclude and find that the lack of an operable backup 

alarm constituted a serious violation. Although the respondent had two serviceable end-loaders, there is no evidence 

that ~t only used one of them, and I believe that given the 

volume of truck traffic on the site on any given day, one may 

reasonably conclude that both end-loaders were regularly used 

by the respondent in the course of its mining operation. 

Further, since it would appear that the defective backup 

663 
alarm was not repaired for over a month after it was first 

noted by the inspectors, one may reasonably conclude that the 

hazard exposure continued during this same time frame. 

Negligence 

I conclude and find that the kespondedt exhibited a high 

degree of negligence with respect to this violation. Respondent was put on notice on July 19, 1985, that the defective 

backup alarm needed attention, and Mr. Greg Brown knew that 

this was the case and assured the inspectors that it would be 

taken care of. However, more than a month past before any 

repairs were made, and they were made only after the inspector issued an unwarrantable failure order during his next 

visit to the mine. 

Good Faith Compliance 

Petitioner has stipulated that the violation was abated 

in good faith after the order was issued, and I accept this 

as my finding on this issue. 

Taking into account the requirements of section llOCi) 

of the Act, particularly the respondent's high degree of negligence, I believe a civil penalty assessment in the amount 

of $100 is reasonable and appropriate. 

ORDER 

On the basis of the forgoing findings and conclusions, 

the respondent IS ORDERED to pay to the petitioner the following civil penalty assessments within thirty (30) days of the 

date of this decision: 

Citation 

Order No. Date 

2007656 07/19/85 

2521412 09/04/85 

2521744 07/19/85 

2521411 09/04/85 

30 C.F.R. 

Section Assessment 

50.30(a) $ 250 

56.14006 $ 175 

56.9003 $ 600 

56.9087 $ 100 

LI /,)L/ . - ~;; (/., '-· -J/ L f'.'< ;t(;,.~{/---7~ ~rge if Koutras 

Administrative Law Judge 

664 
Distribution: 

Ken s. Welsch, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 339, 1371 Peachtree Street, N.E., Atlanta, GA 

30367 (Certified Mail) 

Mr. Carl Brown, Brown Brothers Sand Company, P.O. Box 82, 

Howard, GA 31039 (Certified Mail) 

/fb 

665 
666 

*U, S. GOVERNMENT PRINTING OFFICE 1,e7: 181-224/63003