NOVEMBER 1987, 

COMMISSION DECISIONS 

11-10-87 

11-30-87 

Ronald Tolbert v. Chaney Creek Coal Corp. 

Sec. Labor for Bryan D. Pack v. Maynard 

Branch Dredging Co. & Roger Kirk 

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-02-87 

11-02-87 

11-02-87 

11-06-87 

11-06-87 

11-06-87 

11-10-87 

11-13-87 

11-13-87 

11-16-87 

11-16-87 

11-16-87 

11-19-87 

11-20-87 

11-23-87 

11-23-87 

11-24-87 

11-27-87 

11-30-87 

11-30-87 

11-30-87 

11-30-87 

Eddie D. Johnson v. Scotts Branch Mine 

Emerald Mines Company 

Pittsburg & Midway Coal Mining Co. 

Sec. Labor for Brian S. Ousley v. Metric 

Constructors, Inc. 

H.D. Enterprises, Ltd. 

Owl Rock Products Company 

Otis Elevator Company 

Heldenfels Brothers, Inc. 

Sec. Labor for Jerry Rife v. Adkins Coal Co. 

Leonard W. Miller v. Florence Mining Co. 

Consolidation Coal Company 

Consolidation Coal Company 

NACCO Mining Company 

Sec. Labor for Roger Lee Wayne, Sr., v. 

Consolidation Coal Company 

Gladys B. Johnson v. Freeman United Coal 

Solar Fuel Company, Inc. 

Drillex, Incorporated 

Consolidation Coal Company 

Elmhurst-Chicago Stone Company 

Colorado Westmoreland, Inc. 

Sec. Labor for David Willis v. Babcock 

Mining Company and others 

Sec. Labor for Albert Halstead v. Babcock 

Mining Company and others 

KENT 86-123-D 

KENT 86-9-D 

KENT 

PENN 

WEST 

SE 

87-26-D 

85-298-R 

86-191 

87-85-DM 

WEVA 87-183-R 

WEST 86-124-M 

PENN 86-262 

CENT 87-39-M 

VA 87-29-D 

PENN 87-183-D 

WEVA 87-42 

WEVA 87-42(B) 

LAKE 85-87-R 

WEVA 87-89-D 

LAKE 87-53-D 

PENN 87-158 

SE 86-128-M 

SE 87-49-R 

LAKE 87-76-M 

WEST 87-219 

WEVA 87-106-D 

Pg. 1847 

Pg. 1850 

Pg. 

Pg. 

Pg. 

Pg. 

1851 

1904 

1908 

1922 

Pg. 1923 

Pg. 1927 

Pg. 1933 

Pg. 1944 

Pg. 1947 

Pg. 1948 

Pg. 1949 

Pg. 1950 

Pg. 1952 

Pg. 1958 

Pg. 1965 

Pg. 1966 

Pg. 1972 

Pg. 1983 

Pg, 1985 

Pg, 1987 

Pg. 1988 

WEVA 87-107-D Pg. 1992 

NOVEMBER 1987 

Review was granted in the following cases during the month of November: 

Secretary of Labor, MSHA v. Mid-Continent Resources, Inc., Docket No. 

WEST 85-19. (Judge Lasher, October 15, 1987) 

Local Union 1261, Dist. 22, UMWA v. Consolidation Coal Company, Docket 

No. WEST 86-199-C. (Judge Morris, October 22, 1987) 

Review was denied in the following case during the month of November: 

Ronald Tolbert v. Chaney Creek Coal Corporation, Docket No. KENT 86-123-D. 

(Motion to reopen case from Commission's June 22, 1987 Order denying Review) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RONALD TOLBERT 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 10, 1987 

Docket No. KENT 86-123-D 

CHANEY CREEK COAL CORPORATION 

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

Commissioners 

BY THE COMMISSION: 

In this discrimination case that arose under the Federal Mine 

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

for complainant Ronald Tolbert has filed a motion requesting the Commission to reopen the proceeding for purposes related to enforcement of the 

Commission's final decision. Respondent Chaney Creek Coal Corporation 

("Chaney Creek") has opposed the motion. For the following reasons, the 

motion is denied. 

This case was commenced by a discrimination complaint filed with 

the Commission. by Mr. Tolbert pursuant to section 105(c)(3) of the Mine 

Act. 30 U.S.C. § 815(c)(3). On March 16, 1987, Commission Administrative Law Judge Gary Melick issued a decision concluding that Chaney 

Creek had discriminated against Tolbert in violation of section 

lOS(c)(l) of the Act, 30 U.S.C. § 815(c)(l). by refusing to rehire him 

from layoff status because he had testified on behalf of Odell Maggard 

in the latter 1 s discrimination case before the Commission (Docket Nos. 

KENT 86-1-D, etc.). 9 FMSHRC 580 (M~rch 1987)(ALJ). The judge also 

ordered Chaney Creek to offer Tolbert employment. On May 12, 1987, the 

judge issued a remedial order directing Chaney Creek to pay Tolbert 

$14,453 in back pay and interest through April 8, 1987, as well as any 

additional back pay and interest to date of reinstatement, and $16,900 

in attorney's fees. 9 FMSHRC 929 (May 1987)(ALJ). The judge referred 

the case to the Secretary of Labor for the proposal of a civil penalty. 

On June 8, 1987, Chaney Creek petitioned the Commission for review 

of the judge's decision. The Commission issued a notice on June 22, 

1987, stating that review was not directed. Accordingly, pursuant to 

operation of the statute, the judge's decision became a final decision 

1847 
of the Commission on June 22, 1987, 40 days after its issuance. 30 

U.S.C. § 823(d)(l). Chaney Creek did not seek review of the judge's 

decision in a United States Court of Appeals. 30 U.S.C. § 816(a). 

Talbert's motion to reopen alleges that Chaney Creek reinstated 

Tolbert on May 28, 1987, but to date has paid him only $2,500 of the 

back pay and $1,000 of the attorney's fees owed under the Commission's 

final decision. The motion further alleges that Chaney Creek has 

claimed financial inability to pay and, on September 16, 1987, proposed 

settling the Commission's judgment by paying Tolbert 35-50 cents on the 

dollar. Tolbert asserts that two other mining corporations and John 

Chaney individually are successors and/or alter egos of Chaney Creek, 

possess the financial ability to satisfy the judgment debt, and should 

be brought into this proceeding as successors under the Commission's 

successorship doctrines as enunciated in Secretary on behalf of James 

Corbin et al. v. Sugartree Corp., et al., 9 FMSHRC 394 (March 1987), 

pet. for review filed, No. 87-3391 (6th Cir. April 29, 1987). Tolbert 

requests the Conunission to remand this matter to the formerly presiding 

administrative law judge for further proceedings. The operator has 

filed an opposition. 

The essential nature of the remedy sought by Tolbert is collection 

of a judgment debt. This relief involves, inter alia, enforcement and 

execution of the Conunission 1 s final decision in this matter. Such an 

enforcement request is properly directed to the Secretary of Labor. 

Under the Mine Act, the Secretary is empowered to seek compliance with 

Commission orders in the federal courts. See 30 U.S.C. §§ 816(b) & 818. 

We need not and do not express any opinion as to other avenues of relief 

that may be available to Tolbert. 

Accordingly, Tolbert 1 s motion to reopen is denied. 

~n 

~~/}~ Richard V. Backley~ Commissioner 

L. Clair Nelson, Commissioner 

1848 
Distribution 

Tony Oppegard, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P.O. Box 360 

Hazard, Kentucky 41701 

Thomas W. Miller, Esq. 

Miller, Griffin & Marks, P.S.C. 

700 Security Trust Bldg. 

Lexington, Kentucky 40507 

John Chaney 

Route 1, Box 286 

East Bernstadt, Kentucky 40729 

Billy Chaney, President 

B.D.C. Coal Corporation 

Route 1, Box 286-B 

East Bernstadt, Kentucky 40729 

Ann Rosenthal, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

1849 
• FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, &TH FLOOR 

WASHINGTON, D.C. 20006 

November 30, 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf 

of BRYAN D. PACK 

v. Docket No. KENT 86-9-D 

MAYNARD BRANCH DREDGING COMPANY 

and ROGER KIRK 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

On September 29, 1987, the Commission granted the petitions for 

discretionary review filed by complainant Bryan D. Pack and the Secretary 

of Labor, who has prosecuted the discrimination complaint involved in this 

proceeding on Mr. Pack's behalf. On November 12, 1987, the Commission 

received a request from Pack that his petition for review be dismissed 

because the Secretary is representing him on review in this matter. 

Pack 1 s petition for review was received before that of the Secretary 

and was filed to protect his review rights before us. The Secretary1 s 

subsequently filed petition adequately preserves and presents Pack 1 s 

position on review, Accordingly~ upon consideration of Pack1 s request, his 

petition for review is dismissed. The Secretary's petition remains for 

disposition by the Commission. 

L. Clair Nelson, Commissioner 

1850 
Distribution 

Bryan D. Pack 

Box 1212 

Gallipolis, Ohio 45631 

Vicki J. Shteir-Dunn, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Hugh M. Richards, Esq. 

134 East Fifth Street 

P .o. B.ox 905 

London, Kentucky 40741 

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 

NOV 2 1987 

EDDIE D. JOHNSON, DISCRIMINATION PROCEEDING 

Complainant 

v. Docket No. KENT 87-26-D 

MSHA Case No. PIKE CD 86-16 

SCOTTS BRANCH MINE, 

Appearances: 

Before: 

Respondent Scotts Branch Mine 

DECISION 

Mr. James Boyd, International Representative, 

UMWA, District 30, Pikeville, Kentucky, for 

the Complainant; 

Mr. Edward N. Hall, Robinson & McElwee, 

Lexington, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed 

on November 12u 1986, by the complainant Eddie D. Johnson pursuant to section 105(c) of the Federal Mine Safety and Health 

Act of 1977u· 30 u.s.c. § 801 et seq. Mr. Johnson filed his 

initial complaint with the Secretary of Laborv Mine Safety and 

Health Administration (MSHA), and following an investigation 

of his complaint, MSHA made a determination that a violation 

of section 105(c) had net occurred, and informed Mr. Johnson 

of this finding by letter of October 16, 1986. Mr. Johnson 

then filed a timely complaint with the Commission pro se, but 

subsequently retained the United Mine Workers of America 

(UMWA)v District 30v to represent him in connection with his 

complaint. A hearing on the merits of .the complaint was held 

in Pikeville, Kentucky, and the parties appeared and participated fully therein. The ~arties filed posthearing briefs, 

and the arguments presented therein have been considered by me 

in the adjudication of this matter. I have also considered 

the arguments advanced by the parties during the course of the 

hearing, as well as the testimony presented in the depositions 

of the complainant, which are a matter of the record herein. 

1851 
The complainant contends that he was transferred from a 

coal producing section (first right) of the mine where he was 

employed as a continuous-miner operator, and also served as a 

member of the mine safety committee, to a construction section 

in retaliation for withdrawing himself from unsafe places and 

for making complaints about certain unsafe conditions on the 

first right sectione He also contends that mine management 

has harassed and intimidated him for making safety complaints, 

and for exercising his rights as a safety committeeman, and 

that mine management is still harassing him and ~nterfering 

with his rights as a committeeman. Complainant's initial 

requested relief was to be transferred back to his job on the 

first right producing section, and an order prohibiting the 

respondent from further subjecting him to harassment because 

of his safety concerns and activities as a member of the 

safety committee. 

The respondent filed a timely answer to the complaint, 

and it denies that it has discriminated against the complainant or harassed ,him because of his safety complaints and his 

activities as a member of the safety committee. The respondent asserts that the complainant's transfer from a coal 

producing section to a construction section was part of an 

overall work force realignment which took place on June 2, 

1986, and that the realignment was the result of a management 

decision to realign its work force to increase production on 

its working sections, including the first right section, in 

preparation for the installation of a longwall mining machine. 

Respondent contends that even assuming that the realignment 

and transfer of the complainant could have been motivated in 

part by protected activity, which it denies, it nonetheless 

had a legitimate right and concern for increasing production 

on the complainant's section in order to retain its production schedule for the installation of the longwall mining 

machineo The respondent points out that although the complainant was admittedly transferred from a producing section 

to a construction crew as a continuous-miner operator, he was 

retained within his same union job classification as a miner 

operator" for the same working shiftv and with the same rate 

of payc 

The record in this case establishes that since the filing 

of the cornplaintv and subsequent to the realignment of June 2, 

1986y the first right producing section has been mined out and 

no longer exists. The complainant has conceded that any 

requested relief with respect to his return to that section is 

no longer available to him (Tr. 105). The record also establishes that the complainant is still gainfully employed by the 

respondent as a f aceman on the longwall coal producing section, that he successfully bid on that job subsequent to the 

1852 
realignment in question, and that he is still functioning as 

an active member of the mine safety committee (Tr. 106). 

The complainant concedes that assuming a finding is made 

by me that the respondent discriminated against him in violation of section 105(c), the only available remedy, aside from 

such a finding, would be an order directing the respondent to 

cease and desist from any further discrimination or acts of 

harassment against him. Further, dur~ng the course of the 

hearing the complainant's representative indicated that the 

complainant also seeks an award of monetary costs and expenses 

incident to the complaint and the hearing, including lost 

wages for the witnesses who appeared and testified on his 

behalf (Tr. 107-109}. 

Issues 

The critical issues in this case is whether or not the 

complainant's realignment and transfer from a producing section to a construction section was prompted or motivated in 

any way by his engaging in protected safety activity, whether 

the transfer was in retaliation for those safety activities, 

and whether or not the respondent harassed, or continues to 

harass, the complainant for those activities. Additional 

issues raised by the parties are identified and disposed of 

in the course of my adjudication of this case. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 301 et ~· 

2. Sections 105(c)(l)v (2) and (3) of the Federal Mine 

Safety and Health Act of 1977u 30 U.S.C. § 815(c)(l)r (2) and 

( 3) • 

3. Commission Rulesv 29 C.F.R. § 2700.1, 

Pretrial and Bench Rulings 

Respondent's pretrial motions for summary dismissal of 

the complaint on the ground that the complainant 1 s complaint, 

when considered in conjunction with his pretrial depositionsv 

did not establish a viable comolaint of discrimination, 

particularly in light of the r~spondent s offer to reinstate 

the complainant to the coal producing section from which he 

was transferred (which was rejected by the complainant), and 

his admission that he did not consider his transfer as a form 

of management "punishment 11 WERE DENIED. 

1853 
During opening statements at' the hearing, respondent's 

counsel renewed his motion for summary judgment and dismissal 

of the complaint. In support of his oral motion, counsel 

stated that since the complainant successfully bid on a job 

as a longwall faceman on a coal producing section, and since 

the first right section has been mined out, his requested 

relief to be transferred back to the first right producing 

section is moot. Counsel pointed out.that the complainant 

suffered no loss of pay or job status as a result of the 

transfer, and that he is still functioning as a member of the 

mine safety committee. Counsel further pointed out that in 

his pretrial depositions, the complainant admitted that mine 

management never indicated to him that he was being transferred because of his safety complaints, and that "the only 

thing the court could do--at least the only thing that seems 

plausible--would be just to say that the company discriminated 

against this individual" (Tr. 19-22). 

Complainant's representative agreed that the first right 

section no longer .exists.· He stated that he intended to establish that the complainant was discriminated against, and that 

at the time he bid on the longwall faceman's job, the respondent "used discriminatory actions against him to keep him from 

getting the job," and that the mine manager stated that the 

realignment, which resulted in the complainant's transfer, was 

motivated by "chicken shit complaints." Complainant's representative further asserted that Mr. Johnson's transfer was 

made by management to keep him off the new longwall section 

because management considered him to be a "troublesome" safety 

committeeman (Tr. 28-30). 

After consideration of the arguments presented on the 

record the respondent's renewed motion for summary judgment 

and dismissal of the complaint was DENIED ( ·rr. 34) o ·rhe 

parties agreed to incorporate by reference the deposition 

testimony of the complainant 1 s pretrial depositions (Tr. 37). 

At the close of the complainant's case presentation, the 

respondent renewed its motion for summary judgment and 

dismissal of the complaint {Tro 109)0 The motion was again 

DENIED (Tr. 114, Vol. II). 

Complainant 1 s Testimony and Evidence 

Burt Melton, Electrician and Chairman of the mine 

committee, testified that on May 27 or 28 1986, he attended 

1854 
a union-management meeting concerning the propos-ed realignment, and that when he returned to work the next Monday, 

June 2, 1986, the proposed realignment was not the same in 

that Mr. Johnny Damron, the union vice-president, Mr. Russell 

Ratliff, chairman of the safety committee, and Mr. Johnson 

were all taken off the first right section and assigned to 

the construction crew. Mr. Melton believed that none of 

these individuals were originally scheduled to be realigned 

as shown in the original posted realignment, and he believed 

that management had agreed not to move them off ~he production section (Tr. 41-44). 

Mr. Melton stated that during a meeting with Mine Manager 

Herbert "Tubby" Kinder, on Monday, June 2, he asked Mr. Kinder 

why he had taken Mr. Damron off the production section, and 

Mr. Kinder responded "because they had made too many chicken 

shit complaints and the production was not what it should be 

up there" (Tr. 45). Mr. Melton confirmed that he also participated in a meeting with management 2-weeks later and 

Mr. Kinder stated that M~. Johnson, Mr. Damron, and Mr. Ratliff 

had been realigned because "the section was not producing the 

way it should." Mr. Melton stated that Mr. Kinder again mentioned complaints, and while he did not specifically mention 

"safety complaints," Mr. Melton assumed and speculated that 

this is what Mr. Kinder had in mind (Tr. 48). Mr. Melton confirmed that he was involved in a grievance proceeding concerning Mr. Johnson's bid for a longwall faceman's job in March, 

1987, and that Mr. Johnson was awarded the job (Tr. 48, exhibit 

C-1). 

On cross-examinationv Mr. Melton confirmed that he first 

learned about the realignment of Mr. Johnson, Mr. Ratliff, and 

Mrc Damron on Monday, June 2, and that based on a prior 

realignment list which he had seen, these individuals were not 

scheduled to be affected. Mr. Melton stated that he usually 

represents all employees on behalf of the union in such 

realignments, and Mr. John Hodges, the respondent 1 s personnel 

director, represents the company (Tr. 58). Mr. Melton confirmed that when Mr. Hodges showed him the first list, 

Mr. Hodges did advise him that it was subject to change (Tr. 

59-60). Mr. Melton identified exhibit R-7 as a list simiiar 

to the one he saw, but indicated that it was not the "original 

list" (Tro 57)" 

Mr. Melton confirmed that the realignment was made in 

preparation of the installation of a longwall panel but that 

certain problems delayed the installation, setting it up, and 

that the realignment "mostly concerned producing coal on that 

panel" <Tr. 60). Mr. Melton also confirmed that management 

1855 
was concerned about production on the third shift right panel, 

and that he had discussed this with James Ratliff, the assistant mine manager who no longer works for the respondent, in 

an attempt to resolve what management perceived to be a production problem on that section. Mr. Melton stated that 

Mr. Ratliff advised him that the senior men would be retained 

on the production section, and that less senior men would be 

realigned to the construction crew. Since Mr. Johnson, 

Mr. Ratliff, and Mr. Damron did not sign off the production 

section voluntarily, Mr. Melton was surprised to learn that 

they had been realigned (Tr. 60-64}. -

Mr. Melton confirmed that mine management had discussed 

with him a request that men work on Saturday to catch up with 

the work, and that discussions regarding production on the 

section had taken place for several weeks prior to the 

realignment of June 2 (Tr. 69). Thirty-five to 40 men on 

three shifts were affected by the realignment, and all of the 

men, except for Mr. Johnson, Mr. Ratliff, and Mr. Damron 

"were pacified and everything was fine so far as they were 

concerned" (Tr. 75). 

Mr. Melton stated that Mr. Damron, Mr. Ratliff, and 

Mr. Johnson all filed discrimination complaints with MSHA, 

but that Mro Damron and Mr. Ratliff settled their dispute 

when the respondent agreed to put them back on the production 

section and the complaints were not further pursued (Tr. 76). 

Respondent's counsel confirmed that the two cases were 

settled and that the terms of the settlements were identical 

to the one offared Mr. Johnson, which he refused (Tr. 77, 

exhibit R-9). 

Mro James Boydv confirmed that no grievance was filed 

with respect to the realignmentv and that management was 

informed of the unionus decision to proceed with a section 

105(c) discrimination complaint instead. Mr. Boyd stated 

that the union decided against a grievance because of the 

cost involved and its belief that it would have received an 

adverse ruling (Tro 80)a The union believed it could prove 

discrimination (Tr 80)0 

Mro Melton stated that when he first learned about the 

realignment on May 27 or 28, and posted a listQ Mro Damron 1 

Mr. Ratliff v and Mro Jackson were shown as being retained in 

their jobs on the production sectionv and he dealt with their 

cases because they were the only ones who complained to him 

about the subsequent realignment on June 2 in which they were 

realigned off the production section to the construction crew 

(Tr. 82). Mr" Melton confirmed that all three individuals in 

1856 
question retained their pay and job classifications, and that 

the action taken by the respondent in this regard was legal 

(Tr. 84). Mr. Melton stated that he assumed and speculated 

that management "reached out to Damron, Johnson and Ratliff 

and proposed to switch them off one section to another 

·because of the safety problems," and that is why the union 

decided not to file discrimination complaints {Tr. 85-86). 

Mr. Melton stated that he decided to opt for the filing 

of discrimination complaints with respect to the .realignment 

of Mr. Damron, Mr. Johnson, and Mr. Ratliff because he could 

think of no legitimate reason why management would seek to 

realign the men in question. He stated that Mr. Ratliff "had 

several safety complaints," but he had no first knowledge 

that Mr. Damron ever caused any "safety problems" for management, although Mr. Damron has advised him that he has had 

"run-ins with his foreman 11 (Tr. 87). Mr. Melton confirmed 

that while he has had disagreements with his foreman, none. 

were related to safety matters {Tr. 88). He also confirmed 

that he has never .observed any safety complaints at the mine 

and that he does not work on a section where coal is produced 

(Tr. 89). However, he has been involved in "safety issues" 

that others have complained about in his capacity as an 

alternative safety committeeman, but he was not affected by 

the realignment (Tr. 90). 

Mr. Melton confirmed that the only other safety committeeman affected by the realignment was Mr. A. B. Thacker, but 

he lacked enough seniority to maintain his job. Mr. Melton 

also confirmed that after the realignment, his conclusion 

that Mr. Johnson, Mr. Damron, and Mr. Ratliff "were left out 

to dry by management because of their safety activities" was 

based on Mro Kinder 0 s statement about the "chicken shit complaints" (Tr. 92)o Mro Melton stated that he never discussed 

ML Kinder's statement with him (Tr. 93)o Howeveru when 

Mro Boyd met with Mr. Kinder to discuss the reasons from the 

realignment, Mr. Kinder stated "If I put them back, you will 

make me put them back, 11 and that Mr. Boyd advised Mr. Kinder 

that a section 105(c) discrimination complaint would be filed 

(TL 94)o 

Mr. Melton denied that he. was attempting to "put mine 

management in its place," and he stated that his concern was 

trying to find out why management realigned Mr. Johnson, 

Mr. Damron, and Mro Ratliff in the first place, and that 

management never gave him any legitima~e reasons for their 

action in this regard <Tr.· 95). Mr. Melton confirmed that in 

a statement which he gave to an MSHA investigator during the 

1857 
investigation of Mr. Johnson's complaint he told the investigator that Mr. Hodges did advise him that the first realignment list which he saw on May 27 or 28 was "spur of the moment 

thing and that there could be a change" (Tr. 97). Mr. Melton 

had no independent recollection that Mr. Hodges told him that 

the list was subject to change by General Mine Foreman Charles 

Morley or Second Shift Foreman Otis Slone, but if he so testifies, Mr. Melton could not say he would be lying (Tr. 97). 

Mr. Melton confirmed that Mr. Donny Saunders, the day shift 

continuous miner operator placed on the first right section 

after the realignment was senior in job class if ic'ation to 

Mr. Johnson (Tr. 97-98), but that it would have been customary 

for Mr. Saunders to have taken the lesser seniority miner 

operator's job on the second shift when he was transferred 

from the day shift (Tr. 102). 

Mr. Melton stated that as a result of the realignment, 

Mr. Johnson contacted the union because he believed that he 

had "been put upon" by manC3.gement, and that after mine manager Kinder indicated that he would not put Mr. Johnson back 

on his production section unless he was forced to, the union 

decided to file a section 105(c) discrimination complaint. 

Mr. Melton stated that during discussions with Mr. Kinder he 

was informed of the union's belief that Mr. Johnson was 

realigned because of his safety complaints. Mr. Melton also 

stated that in the past, Mr. Johnson had advised him that he 

"felt like he had had trouble with management," especially 

with Mr. Slone on the evening shift, and that Mr. Johnson had 

informed him of this "a year and a half ago, I guess." 

Mr. Melton stated that Mr. Russell Ratliff also informed him 

of a complaint he had made about water on the track, and that 

he did so "I guess it had to be a year and a half ago." However0 he could recall Mr. Damron making no such complaints. 

Mr. Melton confirmed that the union and Mr. Johnson decided 

to file a discrimination complaint because Mr. Johnson felt 

that he was realigned because of his safety complaints (Tr. 

105-111) 0 

Denver Thackeru roof bolter operatoro testified that in 

November 0 1986 0 during job bids on the longwall panelu section 

boss Glen Matheny offered to put him on a shift paying timeand-one-half if he would put his name back on the bid list for 

a longwall job that Mr. Johnson had bid on. Mr. Thacker 

stated that Mr. Matheny told him that he had discussed this 

with the 11 old man," namely Mr. Kinder. Mr. Thacker stated 

that he had taken his name off the bid because of some gas in 

the panel, and that Mr. Matheny explained that he wanted him 

to get the job because "if the wrong man got up there, that he 

could knock us all out of the job" (Tr. 118). Although 

1858 
Mr. Matheny gave no specific reasons for offering him the 

inducement of a time and one-half shift, Mr. Thacker speculated that Mr. Matheny did not want Mr. Johnson to get the job 

because "they did not want a safety man -- or him in particular up there on the longwall" (Tr. 118). Although Mr. Matheny 

did not specifically mention Mr. Johnson, Mr. Thacker stated 

that "I just took it he meant Eddie" (Tr. 118). 

Mr. Thacker stated that he removed his name from the job 

bid because "I knowed Eddie could take better car.e of it than 

I could. He knows more about safety business," and "I just 

know I had knocked him out of the job. That is the reason I 

took my name off 11 (Tr. 119-120). Mr. Thacker confirmed that 

he testified in the arbitration proceeding in December 1986, 

concerning the job bid in question (Tr. 123). 

Ricky Varner, roof bolter operator, stated that in 

December, 1986, he was working on a bolting machine with 

Mr. Thacker, and that Mr. ~atheny came to the working place 

to speak with Mr. Thacker. After their conversation, 

Mr. Thacker told him that Mr. Matheny stated to him that he 

"was wanting him to sign the longwall job to beat Eddie out 

of it" (Tr. 126). Mr. Varner stated that Mr. Thacker told 

him that Mr. Matheny had stated that "one man could ruin the 

whole thing up there," but that he did not identify "the one 

man" (Tr. 127). Mr. Varner stated that Mr. Thacker also told 

him that Mr. Matheny spoke to him again the next day and 

offered him a Saturday shift if he would take the longwall 

job (Tr. 128). Mr. Varner stated that in response to a question by Mr. Thacker as to why the respondent would ask him 

(Thacker) to bid on the job, Mr. Varner told Mr. Thacker that 

because of gas on the section, the respondent did not want 

Mro Johnson there because it thought Mro Johnson would shut 

the section down (Tro 129)" 

Mr. Varner was of the opinion that the respondent tried 

to persuade Mr. Thacker to bid on the longwall job to keep 

Mro Johnson off that section because he would take care of 

safety problemso Mro Varner stated that he has shut his 

bolter down because of methane on his section, and called it 

to the attention of management. Although he has been 

realigned in the past, he did not believe that this was done 

because of his complaints about methane. He was not part of 

the June 2 realignment involving Mr. Johnson (Tr. 132). 

Mitchell Mullins, head drive man, testified that in 

April, 1986, he overheard section foreman Randy Smith call 

out on a mine phone to shift foreman Otis Slone and inform 

him that the men in the section wanted to exercise their 

1859 
individual safety rights to be on the outby side before a 

shot was fired (Tr. 144). Mr. Mullins did not know whether 

the' men proceeded outby before the shot was fired because he 

was too far away to even hear the shot (Tr. 145). 

Representative Boyd introduced a copy of a grievance 

which was filed over this shot firing incident (Tr. 145; 

exhibit C-2). Respondent's counsel stated that the grievance 

was settled in order to avoid calling· in Federal and state 

inspectors to determine whether the shot was accomplished in 

accordance with the regulations, and to avoid further interruption to production (Tr. 147). He took the position that 

the shot was legal, and the parties agreed that MSHA was not 

called in to resolve the matter (Tr. 148). Mr. Boyd confirmed 

that the shot was fired 1,000 feet outby where the men were 

working on the section, but took the position that the men 

were not given the opportunity to be outby and that Mr. Slone 

went ahead and fired the shot before the men had an opportunity to be outby. Mr. Boyd confirmed that the grievance was 

filed during the next shift and that no section 103(g) inspection was requested (Tr. 151), and that no safeguard notices 

were ever issued covering the shot (Tr. 155). 

Mr. Mullins confirmed that he had no independent knowledge about the details of the shot, did not hear it, did not 

know whether the men actually left the mine, and that he did 

not leave. When asked whether he had any personal knowledge 

as to what this case is all about, Mr. Mullins responded "the 

harassment and trouble Otis Slone and the company has given 

Eddie on his job classification, if he is qualified to do the 

job or not or who is better qualified they want in there 

besides him." Mr. Mullins confirmed that he has no personal 

knowledge of any harassment of Mr. Johnson (Tr. 162). 

Donald Robinsonv general laborer, was called to testify 

as to his knowledge of an incident of January 8, 1986, 

referred to by Mr. Johnson in his complaint. Mr. Johnson 

stated that he filed a safety grievance over the alleged 

failure by shift foreman Otis Slone to follow a pillar plan. 

Mr. Boyd stated that this incident is part of "a pattern 

of discrimination charges and of acts that have been committed 

against Mr. Johnson by the company" (Tr. 166). Mr. Boyd 

asserted that Mr. Slone tried to get Mr. Johnson to cut the 

left-hand side after the right-hand side had already been cut, 

but that this was not done and "they finally pulled away from 

it and went to another block. They backed up, timbered it off 

and started mining again" (Tr. 167). Mr. Boyd conceded that 

Mr. Johnson exercised his safety rights, refused to cut the 

1860 
pillar, and withdrew himself. However, he was not assigned 

other work, and the crew simply backed out, set timbers, and 

continued mining in another area (Tr. 169). Mr. Boyd implied 

that Mr. Slone attempted to have Mr. Johnson cut a pillar 

which would have been in violation of the pillar plan (Tr. 

169). Mr. Boyd suggested that Mr. Johnson "took a lot of 

ribbing" over that incident (Tr. 170}. 

Mr. Robinson stated that he recalled the incident and he 

confirmed that he and the rest of the crew exerci%ed their 

safety rights and withdrew from the pillar area. However, he 

stated that Mr. Slone did not insist that the pillar be mined 

after they withdrew and that he could not recall "no big 

hassle" over the incident (Tr. 171). 

On cross-examination, Mr. Robinson stated that Mr. Slone 

simply asked the crew to mine the pillar, but they believed 

it was unsafe and chose not to. The crew withdrew, and the 

area was timbered, and mining continued in another area (Tr. 

17 4}. 

Lynville E. Johnson, general laborer, was called to 

testify about an incident which occurred during December, 

1985 to January 1986, during which section foreman Earl 

Matheny asked Mr. Johnson to take some coal cuts from an area 

which Mr. Johnson believed was unsafe. Mr. Slone was called 

in, and was mad, and both Mr. Matheny and Mr. Slone stated 

that Mr. Johnson did not want to work (Tr. 176). Mr. Johnson 

stated that Mr. Slone stated 11 God damn it. Eddie don't want 

to work no way" (Tr. 177). 

Mro Boyd stated that this incident is another example of 

a section foreman asking men to do work in an area which they 

believed was unsafe (Tr. 189)0 Mr. Boyd also alluded to a 

rock fall which covered up a continuous-mining machine (Tr. 

187) 0 

On cross-examination, Mr. Johnson alluded to another 

work force realignment which occurred during December, 1985, 

and respondentus counsel asserted that this realignment 

resulted in a union grievance 1 but that the arbitrator 

rejected any notion that the realignment resulted from any 

safety complaints (Tr. 181). 

Since it appeared that the men exercised their safety 

rights and withdrew from areas which they believed to be 

unsafe, Mr. Boyd was asked to explain the relevance of these 

incidents to Mr. Johnson's complaint of discrimination. He 

responded "I am trying to show the integrity of the mine 

1861 
foreman, Otis Slone, and things he will do and the actions he 

has took11 (Tr. 190). Mr. Boyd stated that he did not believe 

that Mr. Slone was involved in the realignment decision made 

by management that is in issue in this case (Tr. 190}. 

Jerry D. Hicks, continuous miner operator, was called to 

testify about an incident concerning the use of 5-foot glue 

for 6-foot roof bolts. Mr. Hicks stated that this occurred 

approximately 2 years ago, and after eoncluding that the use 

of 5-foot of glue for 6-foot bolts may have been unsafe, 

Mr. Johnson asked Mr. Slone to send a 11 safety man·" in to make 

a determination. Mr. Slone came into the section and asked 

Mr. Hicks whether the use of the glue was safe. Mr. Hicks 

stated that he was of the opinion that additional "spot 

bolting" with 4-foot bolts, using 4-foot of glue, would make 

the area safe. Mr. Slone asked Mr. Johnson for his opinion, 

and Mr. Johnson told Mr. Slone that he was not qualified to 

make the decision and asked Mr. Slone "to have someone with a 

little more authority come·in and check it out." No safety 

man was called in, but Mr. Slone proceeded to spot bolt with 

4-foot bolts. Mr. Hicks confirmed that since it could not be 

determined how many breaks had been bolted with 5-foot glue, 

spot bolting was done for two breaks "to make sure they got 

it all" (Tr. 195-197). 

Mr. Hicks stated that Mr. Slone "was wanting us to run 

coal" and asked each crew member whether it was safe to 

continue mining with the area bolted with 5-foot of glue. 

Mr. Hicks stated that the section "was awful low on production" and that Mr. Slone informed the crew that "he thought 

we ought to pick it up a little" (Tr. 197). 

Mr. Hicks testified to an incident which occurred in 

September of 1985v when the men on the section were questioned 

in the mine office about low production on one evening. After 

listening to the explanations, foreman Charles Morley concluded that the low production resulted from "unsatisfactory 

work all the way across the board" and that everyone on the 

shift was given a warning. Howeveru Mr. Eddie Johnson was 

given an unsatisfactory work slip (Tr. 198). Mr. Hicks 

recalled that on one Saturday evening shift Mr. Slone made a 

statement that Mr. Johnson "was trying to slow things down," 

but he could not recall whether it was the same evening when 

the warnings were given out. He also stated that Mr. Slone 

"may not have been talking totally to Eddie. He might have 

been talking to all of us. I really can't remember. It has 

been a long time" (Tr. 201). 

1862 
Mr. Hicks identified the foreman in charge during the 

spot bolting-glue incident as Miles Robinson. He 3tated that 

Mr. Robinson was fired shortly after the spot bolting was 

done, and was replaced by foreman Randy Smith (Tr. 203). 

Although Mr. Robinson would make air readings and gas checks, 

Mr. Hicks stated that "he wasn't real thrilled about it," and 

that Mr. Smith would "shake his head and go ahead and take 

it" (Tr. 204). 

Mr. Hicks stated that when he and Mr. Eddie ~ohnson had 

an equipment break down with their mining machine, Mr. Slone 

seemed to question Mr. Johnson more, and would say little to 

him, and that Mr. Smith would not say much about it (Tr. 205). 

Mr. Hicks stated that Mr~ Slone told the men to cut out the 

"sweetie (coffee) breaks 11 and would sometimes get after the 

crew for waiting around for him to instruct them as to their 

work duties (Tr. 206). 

On cross-examination, Mr. Hicks stated that it was perfectly appropriate ,for someone other than the shift foreman 

to fireboss the section before energizing the equipment, and 

that the spot bolting which took place came about as a result 

of the complaints concerning the glue (Tr. 211). Mr. Hicks 

confirmed that he heard "rumors" that Mr. Eddie Johnson 

received an unsatisfactory work slip because he had previously 

received a verbal warning (Tr. 212). 

Tommy Tackett, electrician, was called to testify about 

an incident concerning a continuous-mining machine being 

worked on by Mr. Slone. Mr. Slone was working under the head 

the miner attempting to replace a conveyor chain, and the 

miner head was supported by a scoop bucket rather than being 

adequately blocked or otherwise supported with wooden crib 

blocks. When Mr. Johnson observed Mr. Slone under the miner 

head, he told him that "it didn't look very safe," and that 

Mr. Slone ~eplied to Mr. Johnson "If you got anything to say 

about this, Eddie, we will talk about it tomorrow. All you 

are wanting to do is hold up production 11 CTr. 223). 

Mr. Tackett stated that the power was not disconnected, and 

his opinion, Mr. Slone was engaged in an unsafe practice 

(Tr. 223-226). Mr. Boyd confirmed that the incident was not 

reported to MSHA, and no violation was issued (Tr. 233). 

Mr. Tackett confirmed that he has worked in the mine for 

7 years, and he indicated that durin~ this time period 

Mr. Johnson was reluctant to work under roof conditions which 

he believed were bad and needed additional support and a section foreman would take the opposite view and try to convince 

1863 
him or the crew that the roof was sound and work should continue (Tr. 234-236). Mr. Tackett stated that on one occasion 

he and foreman Randy Smith had a difference of opinion as to 

whether a roof area was sound. Mr. Smith thought the roof 

was sound and suggested that he continue bolting. Mr. Tackett 

refused, and after retreating from the area, the roof fell 

{Tr. 239). Mr. Tackett conceded that any time he and a 

foreman disagree as to whether work can proceed safety, he has 

exercised his safety rights to withdraw, and the foreman would 

assign him to some other work (Tr. 239). 

Mr. Tackett stated that on one occasion 2-months before 

the realignment, bad top was encountered at the feeder and 

Mr. Slone was called in to look at the area. Mr. Slone 

assured the crew that the feeder top would be taken care of 

on the next shift, and assigned the crew to work on the top 

in the intake. The feeder top was not corrected by the next 

shift, and Mr. Tackett's crew had to correct the condition 

when they next went to work (Tr. 241-242). 

Mr. Tackett testified about the incident concerning 

inadequate glue which was used in conjunction with resin roof 

bolts. Mr. Tackett confirmed that Mr. Slone was called into 

the section, and disagreed with Mr. Johnson's assessment that 

anything was wrong, and indicated that work should proceed. 

After arguments, Mr. Slone agreed to spot bolt the area, and 

assigned the crew to other work shoveling the belt (Tr. 244). 

Mr. Tackett alluded to another incident in which 

Mr. Johnson complained to foreman Randy Smith about a missing 

handle on a continuous-mining machine fire supp:cession device 1 

and after giving the respondent 24-hours to repair the device, 

it was repaired (Tr. 245)" Mro Tackett stated that he had 

previously reported the condition, but that it was not taken 

care of until Mro Johnson complained (Tr. 248). Mr. Tackett 

also alluded to another incident in which Mr. Johnson asked 

him to calibrate a methane monitor on a continuous-mining 

machine, and that he did ito Howeverv he indicated that materials were not always readily available on the section to do 

the calibration (Tr. 249)0 Mro Boyd conceded that in this 

instance, the calibration was done and that the necessary materials was "probably there" (Tr. 255) o 

Mro Tackett stated that anytime there was a safety 

problem or complaint on the section Mr. Slone would come in 

and always inquired of Mr. Johnson as to the problem (Tr. 

257), and that this occurred at times when Mr. Johnson was 

not the safety committeeman (Tr. 258). Mr. Boyd suggested 

that this occurred because Mr. Slone may have thought that 

1864 
Mr. Johnson was the spokesman for the men on the section (Tr. 

259). 

A. B. Thacker, continuous miner operator, and president 

of Local Union 2264, cunfirmed that he worked on the first 

right section with Mr. Johnson as a miner helper for approximately 6 months in 1984 and 1985. Mr. Thacker stated that 

there were safety complaints on first right "from the day it 

started from Eddie Johnson and the whole crew," and that the 

complaints dealt with 11 bad roof, methane gas. It was just 

that way all the time." Mr. Thacker confirmed that he was 

realigned on June 2, 1986, to the "hootowl" shift, but subsequently signed back to the evening shift (Tr. 266-267). 

Mr. Thacker alluded to the feeder bad roof condition 

incident, and stated that after the condition was reported to 

the section boss, the men withdrew from the area and foremen 

Slone and Herald Mullins were summoned to the area, and they 

asked Mr. Johnson aqout the· problem. Mr. Slone checked the 

roof test holes and agreed that the top was bad and assigned 

the men to other work. Although Mr. Slone assured the men 

that the roof condition would be subsequently taken care of, 

Mr. Tackett contended that this was not done and that the 

next shift did some work under the bad top (Tr. 270>. 

When asked about any "threatening statements" by 

Mr. Slone to Mr. Johnson over safety complaints, Mr. Thacker 

mentioned the incident concerning Mr. Slone doing some work 

under a continuous miner head which was propped up by a scoop 

bucket. Mr. Thacker described the encounter between Mr. Slone 

and Mro Johnson as follows (Tr. 271-272): 

* * * And Eddie asked them -- to the best of 

my remembrance right now, he asked them, he 

said, "Do you all feel that this is a safe way 

to work on that miner? Don't you think you 

should put a crib under it to protect yourself?" 

That kind of got Otis peed off. He got 

back. He come up in Eddie's face. He told 

Eddie, He said, "I want to know who you think 

you are and what gave you the right to tell me 

and the mechanic that we are doing our job 

unsafe." He said, "I have worked in the mines 

a long time. I 1 ve never gotten nobody hurt; 

ain't going to get hurt." 

And I told Otis then myself, I said, 

"Otis, he is a safety representative for 

1865 
United Mine Workers in this Local and he has 

got a right to ask that boy is he doing his 

job safe if he feels he is not. As a matter 

of fact, I think he ought to write you and 

Tommy Tackett both up for working in an unsafe 

condition." 

And Otis, he got all over him. He just 

kept on. And then I told him, I· said, "If you 

have got anything to say, we should wait ti~l 

we get outside." And Otis more or less, he 

said, "yeah, we will take it up tomorrow 

evening." But it never was mentioned no more 

that I know of. 

Mr. Thacker was of the opinion that Mr. Slone engaged in 

an imminently dangerous unsafe practice and violated the law 

by working under the miner head. Although he and Mr. Johnson 

observed him doing the work, Mr. Thacker admitted that no 

union safety committee complaint was filed, no imminent 

danger complaint or order was issued, no one complained about 

it, no one reported the matter to MSHA, the matter was not 

reported to mine superintendent Kinder, and no violation was 

ever issued {Tr. 274-276). Mr. Thacker stated further that 

Mro Slone took the position that he was not in any danger and 

stated "I have been mining a long time before you fellows 

ever got here" (Tr. 276). 

Mr. Thacker stated that when he worked with Mr. Johnson 

on the first right section in 1984 and 1985, Mr. Johnson made 

one or two safety complaints every day about the roof and 

ventilation problems (Tro 276-277). Mr. Thacker stated that 

he was present many times when Mr. Johnson requested foreman 

Smith to take air readingsv and after doing so, 

Mr. Slone would appear on the section and would argue about 

the amount of air on the section. Mr. Thacker also stated 

that when Mr. Johnson asked Mr. Smith about the "mean air 

velocity," Mr. Smith would reply that "he didnut know what it 

meant'" {Tr. 279). 

Russell Ratliff, roof bolter, confirmed that he was 

realigned on June 2, 1986, from the first right section to 

the construction section (Tr. 283, 298). He stated that when 

he worked on that section Eor a period of approximately 

8 months he often exercised his safety rights and made safety 

complaints to his section foreman Jerry Bentley, and that 

"the biggest part of the time, he wouldn 1 t agree with me" 

(Tr. 285). Mr. Ratliff estimated that he made approximately 

"a couple of dozen" complaints, and in those instances where 

1866 
Mr. Bentley disagreed with him, Mr. Bentley would call mine 

foreman Charles Morley and safety committeeman Charles 

Cantrell to the section to discuss the matters (Tr. 287). 

Mr. Ratliff confirmed that when he complained to 

Mr. Bentley, he sometimes agreed with him, and sometimes 

disagreed with him, but that Mr. Bentley did take corrective 

action (Tr. 288). Mr. Ratliff also confirmed that after 

discussions with mine management and ~nion safety committeeman about his complaints "we would work out a corrective 

means of fixing the roof conditions like putting collars up 

and cribs where it was needed 11 (Tr. 290). Mr. Ratliff stated 

that he never exercised his right to "walk off 11 the section 

because of his safety complaints and always waited for the 

arrival of mine management and a safety committeeman to 

resolve the question (Tr. 291). He confirmed that in those 

instances where disagreement still existed, Federal or state 

inspectors were called in (Tr. 292-293). 

Mr. Ratliff st~ted that he was present during a unionmanagement meeting concerning the June 2, 1986, realignment 

and that mine superintendent Kinder made a statement to him 

that he would not be put back on the first right section 

"because of our chicken shit complaints. That was his words 11 

(Tr. 294). Mr. Ratliff further stated that Mr. Kinder also 

stated that "if he put me back on the section, he would be 

made to put me back" (Tr. 295). 

Mr. Ratliff confirmed that he filed a section 105(c) 

discrimination complaint, and that the respondent settled the 

matter by putting him back on the first right section, and 

this was the only remedy that he sought (Tr. 295). When 

asked for his opinion as to why he was initially realigned 

off the section, Mr. Ratliff stated "I guess, you know, where 

we had so many problems and I would act on them. You know, 

where I was a roof bolter man, you know, the condition was 

extreme. That is the worst top I ever worked in" (Tr. 296). 

Mr. Ratliff confirmed that he lost no pay as a result of the 

realignment and worked the same shift and the same number of 

hours. He stated that he wanted to stay on the first right 

section because he knew the roof conditions and 11 ! feel like 

I can take care of the men that was on the section better 

than anyone else could." He confirmed that he was not a 

safety committeeman at that time, but subsequently became one 

on June 11, 1986 (Tr. 298-299; 305). 

Mr. Ratliff stated that he believed he was initially 

realigned because of his safety complaints, but conceded that 

other miners who were also working on his section, and who 

1867 
made safety complaints, were not affected by the realignment 

(Tr. 307). In response to further questions in this regard, 

Mr. Ratliff stated as follows (Tr. 307-308): 

Q. Did you have any clues as to why that was? 

Had anybody ever threatened you, called you 

out or showed anger toward you? 

A. The statement Tubby Kinder made, the mine 

manager, was proof enough to me. 

Q. When was that? 

A. In that meeting~ 

Q. I am talking about before this happened. 

Now, prior to this, had Mr. Kinder ever come 

to you and said, "Listen, what are you trying 

to do calling all the feds in, calling all the 

state people in. You are filing complaints 

left and right and most of these are chicken 

shit," as you put it -- or I mean as he put it. 

Did this sort of thing happen before the 

realignment? 

A. No. 

Q. Did Mr. Kinder explain what he meant about 

his comment? Did he indicate to you what kind 

of complaints he had in mind? 

Ao No, he did noto I guess it was all 

complaints in generalo 

Qo Excuse me? 

A. All the complaints in general. 

Johnny Damronv longwall shearer operator9 and union 

vice-president, testified that prior to the realignment he 

worked on the first right section for 6 months as a miner 

operator. He recalled one safety complaint he made concerning some unbolted roof placesF and other complaints which 

were made by the roof bolters. The complaints were made to 

section foreman Jerry Bentley, and Mr. Damron stated that 

Mr. Bentley ''always took the attitude~ you know, we were 

trying to slow production" (Tr. 316). Mr. Damron stated that 

Mr. Bentley would get mad when a union safety committeeman 

was called into the section in response to the complaints, 

1868 
and if the complaint was taken care of "it stopped at that 

point" (Tr. 316). 

Mr. Damron could not recall any instances when a Federal 

inspector came to the section to inspect the roof, but did 

recall one occasion when a state inspector came in to look at 

a roof fall (Tr. 317). Mr. Damron stated that on one occasion when he questioned the adequacy of the ventilation on 

the section, Mr. Bentley "just took the attitude he didn't 

see it as a serious problem or something" (Tr. 31,7). On 

another occasion, when a scoop man refused to go under bad 

top, mine foreman Charles Morley was called to the section, 

and he assigned him and a mechanic to set collars and timbers 

and Mr. Morley "sat there and made smart remarks" {Tr. 318). 

Mr. Damron recalled a meeting at which he was present 

along with Mr. Johnson, Mr. Ratliff, Mr. Boyd, Mr. Melton, and 

mine management personnel concerning the June 2, 1986, realignment. Mr. Damron stated that Mr. Kinder was informed that he, 

Mr. Johnson, and M.r. Ratliff believed that they were discriminated against because of their safety complaints. When asked 

about Mr. Kinder's responses, Mr. Damron stated "I can't 

recall exactly what he said, but he said there have been a lot 

of chicken shit complaints up there" (Tr. 319). Mr. Kinder 

specifically referred to a complaint about a trolley wire that 

came in contact with the mantrip, and Mr. Damron confirmed 

that the men refused to go under the wire and tried to get the 

foreman to move the track. Mr. Damron could not recall how 

that dispute was resolved, and stated that the section foreman 

"would try to get something to get back at you" (Tr. 320). 

Mro Damron stated that an initial realignment sheet did 

not reflect that he was being realignedv and when he found 

out on June 2 0 that he was to be realignedu he filed a discrimination complaint 0 but subsequently settled it when he 

was put back·on his original section (Tr. 320-321). He 

believed that the company tried "to get back at him" be 

attempting to realign him (Tr. 322)0 Mr. Damron stated that 

roof bolter Russell Ratliff also made complaintsu but that 

other than himself u Mr. Johnson, and Mr. Ratliff v he knows of 

no other complaining miners who were realigned (Tr. 324). 

Mr. Damron had no knowledge that foreman Bentley had 

anything to do with his realignment, and Mr. Boyd confirmed 

that Mr. Bentley himself was also realigned (Tr. 327). 

Mr. Damron confirmed that production on his section was low, 

but he attributed it to bad.top conditions (Tr. 326). 

Mr. Damron has no knowledge as to the number of complaints 

made by Mr. Ratliff on the section {Tr. 329). Mr. Damron 

1869 
confirmed that at least 17 men were relocated to other shifts 

as a result of the 382 section closing down on June 2, 1986 

(Tr. 330). 

Mr. Damron stated that no management person ever 

instructed him to go out under unsupported roof to work, and 

that when bad top was encountered the men had to withdraw 

from the area "and that is why I felt we were harassed was 

because you have to go in and set extra support" (Tr. 334). 

Mr. Damron claimed that during the 2 years he served as 

a safety committeeman, mine management, namely former assistant mine manager James Ratliff, was unhappy because of his 

safety complaints. When·asked when this occurred, Mr. Damron 

replied "it has been some years back," but he could not recall 

seeking out the mine superintendent or anyone else higher in 

management than Mr. Ratliff to complain about the purported 

treatment accorded him by Mr. Ratliff (Tr. 343-344). 

Complainant Eddie D. Johnson confirmed that he is presently employed by the respondent as a faceman on the longwall, 

and that prior to June 2, 1986, he was employed as a 

continuous-miner operator on the first right section (Tr. 13). 

Mr. Johnson's testimony included references to the safety 

complaints referred to in his discrimination complaint, as 

well as in prior depositions, which have been incorporated by 

reference in these proceedings. Mr. Johnson confirmed that a 

week or so before the realignment of June 2, 1986, he complained to section foreman Randy Smith about a missing handle 

on a fire suppression device and some bad top in the section. 

Mr. Johnson also confirmed that approximately 4 or 5 weeks 

before the realignmentu he also complained to Mr. Smith about 

a methane buildupQ and that he also had complained on prior 

occasions about additional levels of methane on the sectiono 

Mro Johnson stated that Mr. Smith on occasion became angry 

with him over the complaints, and he confirmed that he did not 

complain to MSHA or the safety committee. 

Mr. Johnson confirmed his prior statements made in his 

depositions that Mr. Smith had no knowledge of the impending 

realignment of June 2, 1986, and made~no statements to him 

indicating that his realignment had anything to do with his 

complaints. Howeveru Mro Johnson was of the opinion that 

Mr. Smith "has an influence on realignments" (Tr. 20). 

Mr. Johnson also confirmed that in each instance when he 

complained to Mr. Smith, his complaints were addressed and 

the conditions complained of were corrected, or he was 

assigned to other work. Mr. Johnson also confirmed that 

1870 
foreman Otis Slone was not present during these complaints 

made to Mr. Smith (Tr. 17-35; 45). 

Mr. Johnson confirmed that approximately 1 month before 

the realignment he complained to Mr. Smith about respirable 

dust which was coming back on the continuous miner operator, 

and the need for more ventilation and water sprays. In this 

instance, the water sprays were checked and repaired, the 

adequacy of ventilation curtains was reviewed, and the 

complaint was taken care of by Mr. Smith within 3? minutes, 

and he said nothing to Mr. Johnson which would lead him to 

believe that he would be transferred for complaining (Tr. 

41-43). 

With regard to the incident concerning Mr. Slone's working under the miner head, Mr. Johnson stated that Mr. Slone 

became angry with him when he confronted him about the matter, 

and Mr. Johnson conceded that he may have provoked Mr. Slone 

(Tr. 51-52). Mr. Johnson confirmed that when he received an 

unsatisfactory work slip on September 28, 1985, he was not a 

member of the safety committee. Although conceding that the 

slip was issued because management believed he was "goofing 

off" and not doing his work, Mr. Johnson believed that it was 

indicative of management's attitude toward him because "they 

don't like me for what I stand for" (Tr. 66), and he viewed it 

as a continued form of harassment. Mr. Johnson confirmed that 

the incident was resolved after he filed a grievance and the 

matter was settled (Tr. 60-70). Mr. Johnson denied that he 

ever received any verbal warnings about his work prior to the 

issuance of the slip in question, but admitted that he and 

Mr. Slone "had talked several times" about equipment problems, coal production, and "about my work" (Tr. 72-73). 

Mr. Johnson also testified about the incident concerning 

a premature shot which resulted in a grievance being filed, 

and he stated that after the shot was fired, Mr. Slone accused 

him of trying to slow down production (Tr. 74-82). He went on 

to testify about other complaints and confirmed that while he 

believed he was resented and not liked by management, management nonetheless addressed his complaints and took corrective 

action (Tr. 84-101). Mr. Johnson also believed that management had no legitimate right or reason for the realignment, 

and that it was done as a convenient way to get him off the 

producing section (Tr. 102-103). 

Respondent's Testimony and Evidence 

General Mine Foreman Charles Morley testified as to the 

circumstances surrounding the work force realignment which 

1871 
took place on June 2, 1986. Mr. Morley confirmed that there 

have been several realignments during his tenure as mine 

foreman, and with regard to the June 2 realignment he stated 

that in preparation of that personnel action, Mr. John Hodges, 

respondent's supervisor of human resources (personnel director), prepared a list of mine personnel according to their 

union job classifications, and that this was given to him for 

the purpose of determining the composition and establishment 

of particular work crews which would be effected by the 

realignment. 

Mr. Morley stated that the realignment came about' in 

order to establish a crew to increase production so as to 

speed up the advancing of the first right section in anticipation of the completion of the installation of the longwall 

system. Mr. Morley stated that the decision to purchase the 

longwall system was made in approximately, 1985, that the 

decision was communicated to the union, and that the advancement of the first right section in anticipation of the longwall had been the topic of many discussions. The scheduled 

date for the longwall installation was September, 1986, and 

it was imperative that the first right and second sections be 

driven up and connected before the longwall could be installed 

and made operational (Tr. 116-122). 

Mr. Morley confirmed that the respondent hired three 

consultants for the planning of the longwall installation, 

and that certain projections, including production and roof 

control problems, had to be addressed. He confirmed that 

production on the first right section had fallen behind, and 

he testified as to certain production data compiled on the 

sections (Tr. 122-127u exhibit R-1). He stated that production on the first and second right longwall sections was 

lower in comparison to production on the other sections (Tr. 

130)0 Mr. Morley confirmed that the second right section had 

a three-entry system, and that the second right section began 

as a five-entry system, and then dropped to a four-entry 

system within the past 2 monthso Although one would expect 

better production from a five-entry systemv this was not the 

case {Tr. 131)0 Mro Morley identified exhibit R-11 as a 

representation of mine production for all working sections, 

as of Mayp 1986p a month before the realignment, and he 

confirmed that it indicates lower cumulative coal production 

figures for the first and second right sections CTro 145). 

Mr. Morley confirmed that the initial realignment list 

prepared by Mr. Hodges was not final, and that it was subject 

to his (Morley's) review and consideration, and that in 

compiling the crews, he would take into consideration the 

1872 
personalities and work habits of the personnel to insure a 

good mix of people who could get along with each other (Tr. 

129). He confirmed that in order to improve production, he 

determined that there should be a different mix of people on 

the first right section for both the day and second shifts, 

and this was discussed with Otis Slone, the second shift foreman, and changes were made not only for Mr. Johnson's shift, 

but also included the second right section. Mr. Morley denied 

any discriminatory intent in the shift changes, and he stated 

that they were made in order to pick up producti~n and to get 

the mine back on schedule (Tr. 131-132). After further discussions with Mr. Slone and assistant mine manager Jim Ratliff, 

the realignment changes were made, effective June 2, 1986, and 

they are reflected on exhibit R-7 (Tr. 133-135). Mr. Morley 

confirmed that he had no idea what happened to the initial 

list compiled by Mr. Hodges (Tr. 137), and stated that it contained only names and occupations (Tr. 137, 144). He further 

explained the realignment information which appears on exhibit 

R-7, and confirmed that after making the necessary adjustments 

and changes, he returned it to Mr. Hodges who finally prepared 

it to show who would be on the sections in question (Tr. 

144-145). 

Mr. Morley confirmed that as continuous miner operators, 

Mr. Damron and Mr. Johnson filled critical positions with 

respect to the advancement of their sections in anticipation 

of the installation of the longwall system, and in his opinion 

their work performance was less than adequate. Mr. Morley was 

of the opinion that many union people were afraid that the 

longwall system would cost them jobs, when in fact it kept 

them working (Tr. 150). He confirmed that at the time of the 

realignment, the development of the first right section was at 

least one-third away from its final completion 1 and was at 

least 2 months behind in its anticipated completion (Tr. 153). 

Mr. Morley conceded that Mr. Johnson's safety complaints 

caused delays in the anticipated completion of the first 

right sectionff and he believed that many of the roof control 

complaints were invalid. However 1 he insisted that all of 

Mr. Johnson's complaints were addressed, and if management 

agreed that they were legitimate, corrective action would be 

taken. Mr. Morley agreed that a safety committeeman has the 

right and obligation to make safety complaints, and he confirmed that Mr. Johnson never came directly to him with his 

complaints, and that they were usually made to section 

foremen Otis Slone and Randy Smith, or safety director Jerry 

Ratliff. Mr. Morley also confirmed that he never went into 

the section to look into the complaints, and that this responsibility was delegated to the section foremen (Tr. 153-156). 

1873 
Mr. Morley confirmed that any information he had with 

respect to any frivolous or invalid complaints by Mr. Johnson 

would have come from the section foremen, and he stated that 

Mr. Slone believed that Mr. Johnson was slowing down the section by cutting slow, and that both Mr. Slone and Mr. Smith 

"couldn't get things going the way they should" (Tr. 157). 

Mr. Morley further confirmed that he was aware of this at the 

time of the realignment, and that he considered the fact that 

"the section is not moving like it should be and production 

is not like it should be" at the time he made his realignment 

decisions (Tr. 158). 

Mr. Morley confirmed that he personally checked on some 

roof safety complaints made by Mr. Russell Ratliff, and that 

he did so in the company of safety committeeman Charles 

Cantrell, and at times they differed on the merits of the 

complaints, and in those cases where the roof was bad, corrective action was always taken (Tr. 161). Mr. Morley was not 

personally aware of any safety complaints made by Mr. Damron, 

and he confirmed that many times, he had no knowledge as to 

who was complaining (Tr. 162). 

Mr. Morley denied that he ever harassed Mr. Damron with 

regard to the placement of roof cribs, and he confirmed that 

a complaint about a man trip trolley wire was corrected as 

soon as it came to his attention (Tr. 166-168). Mr. Morley 

denied that he ever contemplated moving or realigning 

Mr. Johnson because of any safety complaints, and it made no 

difference to, him who worked on the sections as long as he 

was satisfied that he had a good mix of personnel to get the 

job done. He confirmed that union personnel, as well as section foremen, were moved during the realignment in an effort 

to "get a better chemistry or something going up there and 

get production going" (Tr. 169). 

Mr. Morley stated that after the realignment, production 

"picked up some," but that subsequent problems and bad top 

conditions, including a roof fall, delayed matters further. 

With regard to the results of the realignment, Mr. Morley 

stated "I don°t know if it accomplished a whole lot. It 

picked up some." However, he indicated that the intent of 

the realignment was aimed at an effort to pick up production 

(TL 172) o 

On cross-examination, Mr. Morley stated that he considered Mr. Slone to be a "pretty good" foreman, and he denied 

any personal knowledge of Mr. Slone ever committing any 

1874 
unsafe acts (Tr. 180). He answered certain hypothetical questions concerning the incident involving Mr. Slone's work under 

the continuous miner head, including roof control violations 

and complaints on the section (Tr. 180-194). 

Mr. Morley confirmed that he discussed the realignments 

made on the second shift with Mr. Slone, and that he and 

Mr. Slone made the decisions in that regard. Mr. Morley 

could not recall speaking with Mr. Ratliff with regard to the 

day shift realignments, and indicated that he (Mo~ley) would 

have made the decisions alone in the absence of Mr. Ratliff 

(Tr. 195). 

Mr. Morley stated that he was not present at any meeting 

held by the union with Mr. Hodges on May 28, or 29, 1986, and 

that any decision regarding job classifications would have 

been made by Mr. Hodges (Tr. 195-196). During the course of 

a colloquy with the parties, respondent's counsel indicated 

that the realignment shown on exhibit R-6 reflects the line-up 

prior to the actual ~ffective date of the realignment, and 

that exhibit R-7 reflects the line-up after the realignment 

became effective on June 2, 1986. Complainant's representative Boyd contended that exhibit R-6 was presented to the 

union mine committee by mine management at the mine on either 

May 27 or 28, 1986, and the committee wa;;:; informed that "This 

realignment will go into effect June 2nd" (Tr. 198). Respondent's counsel disagreed (Tr. 198). Mr. Boyd stated that R-6 

was the list posted on the mine bulletin board, and Mr. Hall 

insisted that the list which was posted was similar to R-6, 

and that it cannot be located (Tr. 200). 

Mr. Morley stated that exhibit R-6 was similar to R-7, 

and he confirmed that he was not aware that R-6 was given to 

the union committee by Mr. Hodges. Mr. Morley suggested that 

Mr. Hodges would have given the union such a list in order to 

let them know who was in any job classification, but he confirmed that Mr. Hodges could not align the particular crews~ 

and that this was done by him (Morley) (Tr. 199). 

Mr. Morley stated that his decision to realign 

Mr. Johnson, Mr. Damron, and Mr. Ratliff was made on Friday, 

May 30u 1987F and that Mr. Slone was present. Mr. Morley 

then advised Mr. Hodges as to his realignment decision, and 

Mr. Hodges compiled the realignment list shown on exhibit R-7 

(Tr. 200), and he explained what was re~lected on that list 

(Tr. 206-214). 

Mr. Morley confirmed that during his discussions with 

Mr. Slone prior to the realignment, Mr. Slone advised him that 

1875 
the miner operators should be changed because he believed this 

was necessary in order to increase production. At no time did 

Mr. Slone mention any safety complaints, and he did not mention that the complaints may have been slowing down production 

(Tr. 215). 

Mr. Morley could not recall attending any meeting with 

members of the mine committee and mine management subsequent 

to the realignment, but that he was a~are that such a meeting 

took place through "talk. 11 Mr. Morley stated that he had to 

attend to his business of running the mine, rather than 

attending meetings concerning labor-management contractual 

matters (Tr. 219). Mr. Morley did recall being present at a 

meeting at which Mr. Boyd and Mr. Kinder were present when 

Mr. Boyd advised Mr. Kinder that a discrimination complaint 

would be filed, and he recalled Mr. Kinder commenting to 

Mr. Boyd to file the complaint "if he felt that way" (Tr. 

220). Mr. Morley denied hearing Mr. Kinder make any statement to the effect that the realignment came about "because 

he was tired of the.c-hicken shit complaints 11 (Tr. 221). 

Mr. Morley confirmed that Mr. Kinder did state that the 

realignment would be made in order to try and speed up production and the mining advance rate on the first right section 

so that the longwall could be set up (Tr. 222}. Mr. Morley 

stated that Mr. Johnson, Mr. Damron, and Mr. Ratliff never 

indicated to him that they believed they were being realigned 

because of their safety complaints (Tr. 222>. 

During the course of the hearing, complainant's representative Boyd asserted that the only three employees affected 

by the realignment whose job classifications were not changed, 

but nonetheless realigned on their shift, were ~r. Johnson 1 

Mro Ratliff and Mr" Damron. Howeveru Mr. Boyd conceded that 

all three suffered no changes in their job classifications as 

a result of the realignmentv and suffered no loss in pay. They 

were simply moved to different mine locations (Tr. 223-225). 

Mr. Boyd further contended that everyone else shown on the 

realignment lists (exhibits R-6 and R-7) remained within their 

job classifications and same work locations. However, he subsequently conceded that everyone from the section as shown on the 

lists were affected by the realignment, and either had their 

job classifications changed or were physically assigned to 

other locations in the mine (Tr. 225-228). 

Mr. Morley testified as to the work being performed by 

the construction crew on the construction section after the 

realignment, and he confirmed that hazardous conditions could 

be encountered anywhere in the mine, including the construction area, and he could not state that the construction area 

1876 
exposed miners to more hazards than on a producing section 

(Tr. 239). 

Mr. Morley again denied that Mr. Johnson was moved to 

the construction section because of his safety complaints, 

and he confirmed that Mr. Johnson has filed safety complaints 

since the realignment and that "we try to take care of them 

as quick as we can" (Tr. 242). Mr. Morley denied that he has 

ever harassed Mr. Johnson, and he confirmed that Mr. Johnson 

is still serving as a safety committeeman. Mr. Morley denied 

any knowledge of any offers made to anyone to bid on a job 

for which Mr. Johnson had bid (Tr. 243). 

Gary Puckett, respondent's office supervisor, confirmed 

that part of his duties include the tabulation and maintenance 

of certain mine production records. Mr. Puckett confirmed 

that he was familiar with the production records as reflected 

by exhibits R-1, R-2, and R-11, and he explained the data 

reflected therein (Tr. 253-258). He confirmed that the differences in production could b~ caused by adverse roof conditions 

or other factors not reflected in the production information, 

and that any differences in production with regard to the 

first and second right sections, as reflected in the data, may 

not be conclusive unless one knows or takes into account the 

prevailing mining conditions in those sections (Tr. 259). 

Mr. Puckett testified as to certain daily carload production data maintained in his notebooks, and respondent's counsel confirmed that this data does not take into account any 

prevailing conditions on the sections. Based on his review 

of the production information as recorded in his books, 

Mro Puckett concluded that for the period February 28, 1986, 

to May 30, 1986~ the first right section had less than half 

of the production as compared with all the other sections 

noted (Tr. 260-261)0 For the period June 2, 1986, to July 30, 

1986, the data reflects that mine production did not pick up 

(Tr o 261-265) o 

Jerry Ratliff mine safety director, confirmed that he 

has worked at the mine 10 years, and he stated that he has 

daily contact with the mine safety committee, and that he can 

work with ~ro Johnson, who makes safety complaints on a 

regular basis. Mr. Ratliff confirmed that he has no reason 

to believe that mine management was motivated to realign the 

work force in order to punish Mr. Johnson for making safety 

complaints, and he was never at any meetings or heard any 

discussions among management that Mr. Johnson was realigned 

because of his complaints (Tr. 266-268, 273>. 

1877 
With regard to an incident in Wlhich Mr. Slone fired a 

shot to clear hanging draw rock from the roof, Mr. Ratliff 

stated that when Mr. Johnson brought this to his attention, 

he (Ratliff) called the state and Federal regulatory agencies 

to determine whether any laws may have been violated. He 

confirmed that there was no violation in this instance (Tr. 

269), and he assumed that what Mr. Slone did was correct (Tr. 

270). 

Mr. Ratliff confirmed that Mr. Johnson regu~arly calls 

to his attention mine conditions which he observes on his 

shift, including any violations, and that he addresses these 

matters and takes Mr. Johnson to the appropriate mine production or maintenance departments to ascertain the facts "so 

they get something done about it" (Tr. 279, 282). Mr. Ratliff 

stated further that he has never refused any safety complaints 

from Mr. Johnson or any other miner, nor has he ever refused 

to immediately communicate any such complaints to the appropriate mine departments (Tr. 293). He also confirmed that he has 

many times personally taken· Mr. Johnson to the places he 

complained about, and while he sometimes disagrees with 

Mr. Johnson's assessment of the situation, he and Mr. Johnson 

resolved the matters (Tr. 294). 

Mr. Ratliff stated that he had no knowledge concerning 

Mr. Denver Thacker's allegation that a section foreman tried 

to bribe another employee to bid on a job that Mr. Johnson had 

bid on, and Mr. Ratliff confirmed that he had some reservations about Mr. Thacker's credibility, and he explained why 

(Tr. 298-302). 

Mro Ratliff confirmed that he had nothing to do with the 

realignment in question, was in no way connected with that 

decision, and that Mro Morley and Mro Slone never consulted 

with him in this regard CTro 311)0 Mr" Ratliff discounts any 

"conspiracy theory" that the realignment was in some way 

designed to isolate Mr. Johnson as a safety committeeman, and 

he stated as follows in this regard (Tr" 312)~ 

A. * * * I have person~lly not had any problems with Eddie other than -- heck, we 1 re 

going to disagree on things. But r 1 ve never 

sat in -- I 9 ve spent a lot of my time with 

Charles Morley, Herbert Kinder, Otis Slone, 

Gerald Mullins" I 9 ve never heard anybody say, 

"hey, we 1 re going to screw Eddie and move him 

because of a safety complaint.n I've never 

heard that. 

1878 
Otis Slone testified that he has worked in UDderground 

mines for 34 years, has served as a second shift foreman at 

the mine for over 10-1/2 years, and has known Mr. Johnson 

most of his life "since he was a kid" (Tr. 313). Mr. Slone 

confirmed that he participated in the determination as to the 

make-up of the work crews in connection with the June 2, 1986, 

realignment, and that he discussed the matter with Mr. Morley 

as is the usual practice during such realignments. Mr. Slone 

stated that he absolutely did not suggest to Mr. Morley that 

Mr. Johnson should be reassigned because of his s.afety complaints, and indicated that he has worked closely with 

Mr. Johnson since he became a safety committeeman. Mr. Slone 

was of the opinion that some of the complaints made by 

Mr. Johnson were not legitimate, and he confirmed that at 

times during their discussion on safety matters they became 

heated and he became upset with Mr. Johnson (Tr. 317). 

Mr. Slone stated that on a day-to-day basis, the first 

right section was "way behind" in production, and that the 

realignment was made in an effort to increase production. 

Mr. Johnson's safety complaints had nothing to do with that 

decision, and safety complaints were made by individuals 

other than Mr. Johnson (Tr. 318). 

Mr. Slone testified as to the circumstances under which 

he fired the shot which has been testified to in this case, 

and he confirmed that no violation of any safety law resulted 

from the manner in which he conducted that shot (Tr. 318-323). 

He also testified about the incident in which he performed 

work under a continuous miner head, and concluded that it was 

not unsafe (Tr" 326-328). 

Mr. Slone testified as to the circumstances surrounding 

s issuance of an 8 Unsatisfactory work slip" to Mr. Johnson 

sometime in 1985, and indicated that the entire production 

crew was taken out of the mine so that he could talk to them 

about production and his belief that they "were all laying 

down." A day or two later, he spoke with Mr" Johnson and 

issued the slipf and he did so because he believed that 

Mr. Johnson was "goofing off." He confirmed that he had 

previously spoken to Mr. Johnson at least one time about not 

doing his job (Tr. 331). Mr. Slone confirmed that he has 

stated from time-to-time that "Eddie Johnson just doesn't 

want to work anywhere," and that he made that statement to 

Mr. Johnson on at least one occasion (Tr. 335). 

Mr. Slone confirmed that he recommended that Mr. Johnson 

be moved off the first right section, but denied that he made 

any recommendations with respect to Russell Ratliff, who 

1879 
worked on a different shift. Mr. Slone confirmed that 

Mr. Johnson has made quite a few safety complaints, and has 

been "a burr in his saddle." Mr. Slone further confirmed 

that if Mr. Johnson observes something on his section that 

needs to be done, he will contact him and he will then go 

into the section to take care of the problem. Mr. Slone 

stated that "sometimes I may not take care of all he wants 

done, but we work on it" (Tr. 355). 

Mr. Slone confirmed his belief that Mr. John.son has made 

quite a few so-called "chicken shit complaints," and he cited 

several examples (Tr. 357). He also confirmed that coal production picked up "very little" after the realignment, and he 

attributed this to bad top and draw rock conditions encountered in the section (Tr. 357). 

Randy Smith, stated that he has served as a section 

foreman in the mine for approximately 2 years, and that he 

has 16 years of mining experience. He confirmed that he was 

Mr. Johnson's foreman on the first right section for approximately 9-months prior to the June 2, 1986, realignment. He 

also confirmed that he had many occasions to discuss mining 

conditions and safety matters with Mr. Johnson and that at 

times he disagreed with Mr. Johnson's evaluation of the mining conditions. Attempts were always made to resolve any 

differences, and Mr. Smith indicated that if he could not 

resolve them "I would always contact the mine foreman" (Tr. 

361). 

Mr. Smith stated that he has discussed Mr. Johnson's 

work and slow production with him, as well as with his entire 

crew, and that he was receptive to Mr. Johnson's complaints 

in his attempts to address them and take corrective action. 

Conceding that he may have sometimes overlooked some complaints which he characterized as "little" or "nothing," 

Mro Smith confirmed that "we would take care of them as we 

could" (Tr. 363). 

Mr. Smith stated that at no time did he ever suggest to 

Mr. Slone or Mr. Morley that Mr. Johnson should be transferred 

to some other section because of hid safety complaints, or 

because he "was a problem." Mr. Smith stated that "me and 

Eddie had between ourselves--I thought we done all right about 

working them out between us" (Tr. 364). Mr. Smith stated that 

he holds no animosity towards M.r. Johnson and he confirmed 

that Mr. Johnson no longer works with him (Tr. 366). 

Mr. Smith denied that Mr. Slone ever indicated to him 

directly or indirectly that "if we had Eddie off the section, 

1880 
we could do better" (Tr. 371-372). Mr. Slone did mention 

that he and Mr. Johnson sometimes had differences of opinion 

about roof conditions, and he confirmed that production continued "about the same" after Mr. Johnson left the section 

because the conditions worsened (Tr. 372). 

Glen Matheny, section foreman, stated that at one time 

he served as president of the local union at another mining 

operation. He denied that he was sent to speak with Denver 

Thacker about re-bidding for a job as a f aceman qn the longwall machine in order to insure that Mr. Johnson would not be 

afforded an opportunity to take that job. He also denied 

that he had ever offered anyone an opportunity to work a 

shift and a half to re-bid the job that Mr. Johnson desired, 

or that he had any discussions with anyone which could be 

interpreted that such an offer was ~ade (Tr. 374-375). 

Mr. Matheny had no idea as to why Mr. Thacker would make 

up "this big story." Mr. Matheny further stated that he is 

familiar with the union contract, and he confirmed that once 

Mr. Thacker had removed himself for consideration for the 

faceman's job, it was not possible under the contract to 

re-bid for that job, and that this would be prohibited under 

the contract. Mr. Matheny confirmed that he had Mr. Thacker 

take his name off the bid for the faceman's job in the first 

place because he discussed the matter with him and advised 

him that he wished to keep him on the section as a roof 

bolter operator since pillaring work was anticipated {Tr. 

377-378). He confirmed that Mr. Thacker remained on the section as a roof bolter (Tr. 378). 

Mr. Matheny denied that he ever took Mr. Thacker aside 

underground at his working place in the presence of Mr. Varney 

to speak th him, and indicated that "I 0 ve never had anything 

to say to Denver that I wouldn't have to say to Rick," and that 

they were both roof bolters. Mr. Matheny also denied that he 

spoke with Mr. Thacker in the bath house about re-bidding for 

the faceman°s job (Tr. 379). Mr. Matheny stated that there is 

no truth in any statement by Mr. Thacker that he (Matheny) told 

Mr. Thacker that any offer to re-bid the faceman°s job had been 

"cleared by the old man," namely mine manager "Tubby" Kinder 

(Tr. 381). 

Herbert E. "tubby" Kinder, testified that he has served 

as mine manager for approximately 3 years and has been 

involved in mining for 47 years. He stated that he did not 

participate to any great extent in the realignment of June 2, 

1986, and that the realignment was the general mine foreman's 

responsibility. Mr. Kinder confirmed that mine production 

1881 
was down on the first right section and that he discussed 

this with Mr. Morley, but did not indicate to him that "the 

mix of people needed to be changed or looked at." Mr. Kinder 

denied that he ever indicated to anyone that Mr. Johnson 

should be transferred to another section because he had made 

safety complaints or because he was a safety committeeman 

(Tr. 386). 

Mr. Kinder stated that Mr. Hodges takes care of personnel 

grievances, and with respect to Mr. Russell Ratli.ff, he confirmed that he had been suspended with intent to discharge on 

two occasions because of absenteeism (Tr. 387). 

Mr. Kinder denied that he ever instructed Glen Matheny 

or anyone else to bribe Denver Thacker to re-bid a longwall 

job so that Mr. Johnson would not get it. Mr. Kinder stated 

that while he might know Mr. Thacker, he could not recall who 

he is (Tr. 390). Mr. Kinder could not recall any realignment 

list which may have been posted in the bathhouse on May 29, 

30, and June 2, 1986, and he confirmed that Mr. Hodges handles 

such matters (Tr. 3~8). 

Mr. Kinder recalled meeting Mr. Melton, Mr. Damron, 

Mr. Hodges, and safety committeeman Charles Cantrell in the 

hallway outside the mine foreman's office after the realignment on June 2, 1986, and he confirmed that he did make the 

comment that "I was tired of those chicken shit complaints" 

(Tr. 385, 399). He also recalled a subsequent meeting 2 weeks 

later with members of the union when the realignment was discussed, and that Mr. Johnson, Mr. Damron, and Mr. Ratliff 

stated that they believed they were realigned because of their 

safety complaints. Mr. Kinder denied stating that before 

putting these individuals back on their sections "somebody 

will make me do it." He did recall remarking that "everything 

you do at Scotts Branchq you ask somebody to do something 1 

was discrimination or harassment" (Tr. 400). 

Mr. Kinder confirmed that he made the decision that a 

realignment was necessary and did so in order to provide a 

third shift made up of perscnnel from the other two shifts to 

speed up the advance rate on the two sections. Mr. Kinder 

denied that he had anything to do with the details of the 

realignment regarding actual shift-or job selections, and he 

confirmed that these details were left to Mr. Hodges and the 

shift and mine foreman. Mr. Kinder denied that any management 

personnel ever discussed with him that Mr. Johnson or 

Mr. Ratliff would be realigned "to keep the old man happy," 

and that he never discussed such a matter with anyone (Tr. 

403-404). 

1882 
John E. Hodges, respondent's Supervisor of Human 

Resources, testified that he has been so employed since 1980, 

and that prior to this time, he served as chairman of a UMWA 

mine committee and a field representative for District 19. 

Mr. Hodges stated that the decision to install the longwall 

was made in early 1985, and a longwall coordinator was hired 

in August of that year. The decision was communicated to the 

Qnion in approximately June, 1985. On March 27, 1986, he discussed with the union the need to increase produc~ion on the 

first and right panels, and asked it to speak to its membership about working the first and right panels on Saturdays so 

as to speed up the advance of those panels for the installation of the longwall (Tr. 409-410). Another meeting was held 

on May 1, 1986, and the union was advised that unless it 

agreed to work the two panels on Saturdays, the entire 382 

working section would be eliminated in order to put another 

crew on the third shift to operate the first and second right 

panels. However, the membership would not agree (Tr. 411). 

Mr. Hodges stated that· 35 to 40 people were affected by 

shift changes and reassignments resulting from the June 2, 

1986, realignment, and the elimination of the 382 section 

affected the job classifications of 18 people (Tr. 412). 

Mr. Hodges confirmed that he gave mine committee chairman 

Melton a list similar to exhibit R-7 to let him know who was 

going to be realigned, but that he made it clear to Mr. Melton 

there may be some changes as to the placement of personnel 

because he (Hodges) had not spoken to Mr. Slone or Mr. Morley 

at the time he gave Mr. Melton the list (Tr. 414). 

Mr. Hodges confirmed that he lacks the authority to make 

actual crew assignments, and that in past alignments and 

realignments sufficient time was allowed so that he could 

communicate the assignment of personnel to Mr. Melton. However v in the case of the June 2v 1986, realignment, he did 

not have enough advance notice, and made that clear to 

Mr. Melton when he gave him the list. He also made it clear 

to Mr. Melton that the list was subject to change because he 

had not met with Mr. Morley or Mr. Slone (Tr. 414, 416). 

Mr. Hodges indicated that he first learned about the 

final decision to make the realignment on May 28, 1986, when 

Mine Manager Kinder and Frank McGuire, Division Manager of 

Mines, informed him of their decision to eliminate the 382 

section and put a crew on the third shift. They informed him 

that they would need 10 miner operators, and informed him of 

the positions which had to be eliminated and others which 

1883 
needed to be filled. Mr. Kinder explained that he then prepared some sheets similar to R-7, "slotting" the necessary 

positions, but that he did not make the actual crew assignments. Mr. Hodges denied that he delivered exhibit R-6 to 

Mr. Melton before the crew selections were made by the production people, and respondent's counsel pointed out that this 

was the case because the 382 section was still shown on that 

list (Tr. 416). Mr. Hodges confirmed that the R-6 list is 

his work product, but that it was prepared by his secretary 

at his direction. He confirmed that he did give Mr. Melton 

another list similar to R-6 and that Mr. Melton put it up on 

the mine bulletin board (Tr. 417). · 

Mr. Melton confirmed that the "lists" he put up on the 

bulletin board in the bathhouse were roughly eight or nine 

sheets of paper which he taped individually on the board to 

inform the men in the event they were affected by the realignment. Mr. Melton confirmed that the list was torn down by 

the bathhouse man, and he did not keep a copy. Mr. Hodges 

was not sure that he saw the list posted on the board, and he 

explained that following his normal procedure, after such 

lists are finalized, and any problems concerning reassignments 

are resolved, he makes out a final list which he personally 

posts on the board (Tr. 420). 

Mr. Hodges stated that he gave lists similar to the ones 

he gave to Mr. Melton to Mr. Slone and to Mr. Morley, and 

that the only thing he attempted to do was to list personnel 

in their proper job titles. Mr. Morley and Mr. Slone made 

the actual crew assignments because he (Hodges) had no authority to make those assignments (Tr. 421). Mr. Hodges denied 

that Mr. Morley ever said anything to him about an assignment 

for Mr. Johnson or that he wanted to get rid of him (Tr. 421). 

Mro Hodges confirmed that he did object to Mro Morley 1 s 

original placement of Mr. Ratliff on the fourth left section 

working with foreman Paul Fouts, because they had a prior 

personality "run-in," and Mr. Ratliff received a 15-day sussion for refusing to obey orders and threatening and abusng Mr. Fouts. Mr. Hodges confirmed further that Mr. Ratliff 

had previously received another suspension for threatening 

another supervisor and himself, and was also suspended for 

absenteeism" As a result of these incidents, and aftec several meetings with him, ~r. Ratliff was given "a last chance 

agreement" (exhibit R-12), and Mr. Hodges did not consider 

him to be a credible individual (Tr. 426-428). 

Mr. Hodges identified exhibit R-5, as a part of the 

realignment sheets showing how various people were affected 

1884 
by the realignment (Tr. 429, 431). He confirmed that at least 

16 hourly employees on the 382 section were affected by the 

realignment, and that most of them stayed in the same job title 

(Tr. 432). Mr. Hodges denied that Mr. Johnson, Mr. Ratliff, 

and Mr. Damron were the only three people, other than the 382 

section, that were moved from their jobs on their shift (Tr. 

433), and referring to exhibits R-6 and R-7, he named several 

(Tr. 433-434). 

Mr. Hodges confirmed that he met with Mr. M~lton on 

May 28 or 29, 1986, during a "24/48 hour meeting" and gave 

him a list of the personnel who would be moved out of their 

job classifications, and he explained the purpose of the 

meeting (Tro 447-449). 

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.- product1on 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 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~· 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 wav motivated by protected activity. If an 

operator cannot rebut the prima f acie case in this manner it 

may nevertheless affirmatively defend by proving that (1) it 

was also motivated by the miner 1 s unprotected activities alone. 

The operator bears the burden of proof with regard to the 

affirmative defense. Haro v. Magma Copper Companyv 4 FMSHRC 

1935 (1982), The ultimate burden of persuasion does not shift 

from the complainant. Robinettep supra. See also Boich v. 

FMSHRCv 719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford 

Construction Companyv No. 33-1566 D.C. Cir.(April 20, 1984) 

(specifically-approving the Commissionvs 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. 

1885 
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 !!.2!!!· 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 discrimination 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. 

Mr. Johnson's Protected Activities 

It is clear that Mr, Johnson enjoys a statutory right to 

serve on the mine safety committee, and the respondent may 

not discriminate against him because of his safety duties as 

a committeeman. Mr. Johnson also has a right to file safety 

complaints, request MSHA to perform section 103(g) safety 

inspections, to inform state or Federal mine inspectors of 

conditions which he believes are hazardousu and to complain or 

inform mine management of mine conditions which he believes 

present hazards to himself or to his fellow miners. 

Mr. Johnson 1 s safety complaints and related duties incident to 

his service as a safety committeeman are protected activities 

which may not be the motivation by mine management for any 

adverse action against him. Further, management is prohibited 

from interfering with Mr. Johnson 1 s protected safety activities, and it may not harass, intimidate, or otherwise unduly 

impede his participation in those activities. Secretary of 

Labor ex rel. Fasula v. Consolidation Coal Co., 2 FMSHRC 2786 

1886 
(October 1980), rev'd on other grounds sub nom. 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 (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 (7th Cir. 1982); Sammons v. Mine 

Services Co., 6 FMSHRC 1391 (June 1984). 

The record in this case establishes that Mr. Johnson 

frequently made safety complaints to' his section foremen about 

mine conditions which he believed constituted hazardous conditions or violations of certain mandatory standards. As a 

matter of fact respondent's safety director Jerry Ratliff confirmed that Mr. Johnson has made safety complaints to him on 

a regular basis i~ his capacity as a member of the safety 

committee, and that Mr. Johnson rather routinely brings to 

his attention mining conditions on his shift which he believes 

are either questionable, hazardous, or violations. The record 

also establishes that the complaints often resulted in a foreman being called to Mr. Johnson's section to discuss the conditions, and that they sometimes had heated discussions or 

differences of opinions as to whether or not the conditions 

were in fact hazardous or not in compliance with the applicable safety regulations. 

The record also establishes that Mr. Johnson has filed 

union safety and other job-related grievances against the 

respondent during his employment, some of which went to 

formal arbitration, and others which were settled by the 

parties pursuant to the labor-management agreement (Exhibits 

C-1, C-2, C-4, C-5, C-11, R-3, R-4). 

Although there is no direct evidence that Mr. Johnson 

made any specific complaints to any MSH..~ or state mine inspectors, the testimony presented on his behalf r as well as his 

depositionv suggests that on occasions 1 MSHA inspectors may 

have been called to the mine to resolve safety questions or 

"disputes" resulting from Mr" Johnson's safety involvement 

with the union and/or the mine safety committee. Some of 

Mr. Johnson 1 s complaints to. management resulted in refusals 

by Mr. Johnson or his crew to work in the areas deemed by 

1887 
them to be hazardous, thereby necessitating their reassignment to other work while management addressed their safety 

concerns. 

In view of the foregoing, I conclude and find that 

Mr. Johnson has established that both in his capacity as a 

miner, and as a member of the mine safety committee, he made 

and communicated safety complaints to mine management prior 

to the June 2, 1986, realignment which resulted in his transfer from a producing section to a construction s~ction. 

Further, under all of these circumstances, it seems clear to 

me that Mr. Johnson's safety complaints and safety-related 

activities in bringing these complaints to the attention of 

management in his capacity as a miner or safety committeeman 

are protected activities under section 105(c) of the Act, and 

that the respondent is prohibited from retaliating against 

Mr. Johnson for making the complaints. 

Management's Alleged Harassment and Intimidation of 

Mr. Johnson 

Mr. Johnson's original complaint makes no mention of any 

specific instances of harassment or intimidation by management because of his safety complaints. Mr. Johnson's pretrial 

depositions of January 16, and June 9, 1987, are also devoid 

of any credible references concerning instances or acts of 

management harassment or intimidation toward Mr. Johnson 

because of his safety activities. Quite the contrary. The 

record in this case, including past grievances filed by 

Mr. Johnson on safety and non-safety matters, reflects that he 

was a rather active and combative safety committeeman who did 

not shy away from confrontations with his supervisors over 

safety issueso As a matter of fact, after the realignment, 

Mr. Johnson continued, and still continues, to function as a 

viable saf committeeman on a coal producing section, and he 

still brings his safety concerns and complaints to the attention of the mine safety director. 

The record in this case establishes that in each instance 

when Mro Johnson or other safety committeemen brought their 

saf complaints or concerns to the attention of their foremen, they and their fellow miners were allowed to withdraw 

from the affected areas and were assigned other work while 

management ultimately addressed their concerns and took correcti~e action. While it may be true that in some instances, 

management disagreed with Mr. Johnsonvs safety assessments and 

opinions and the discussions may have been rather heated, I 

find no credible basis for concluding that management ignored 

Mr. Johnson's complaints or retaliated against him because of 

1888 
his complaints. While it may also be true that some foremen 

may have initially attempted to convince a working crew that 

certain conditions were not unsafe and suggested that they 

should continue working, the issues were either resolved 

through further involvement of management and the safety 

committee, or the miners were allowed to withdraw and were 

assigned other work. I find no credible evidence that miners 

were ever forced or coerced to work under unsafe conditions. 

In his deposition of January 16, 1987, Mr. Johnson conceded that he did not consider his realignment transfer to be 

a form of "punishment" because of his safety complaints (Tr. 

13). In his June 9, 1987, deposition, Mr. Johnson confirmed 

that no one from management has ever made any statements to 

him, or suggested to anyone else, that his transfer resulted 

from his safety complaints (Tr. 55). Mr. Johnson alluded to 

a complaint concerning roof bolts which he made to safety 

director Jerry Ratliff, and indicated that Mr. Ratliff 

expressed some dissatisfaction with his filing a grievance. 

Mr. Johnson conced~d that Mr. Ratliff never abused him 

verbally, and never threatened him because of his complaints, 

but that he did give him some "dirty or hateful looks" (Tr. 

87-89). 

Mr. Ratliff 1s unrebutted testimony, which I find credible, reflects that while he and Mr. Johnson sometimes had 

differences of opinion over the substance and merits of 

Mr. Johnson's complaints, Mr. Ratliff always addressed them 

in any effort to take corrective action, and that ~~r. Johnson 

still brings safety matters to Mr. Ratliff's attention in his 

capacity as a safety committeeman. Further, Mr. Ratliff's 

unrebutted testimony establishes that he had nothing to do 

with the realignmentv and took no part in that decision. 

In his deposition of June 9u Mro Johnson alluded to a 

complaint he made to section foreman Randy Smith concerning a 

bad roof condition. While he asserted that Mr. Smith had a 

"bad attitude" against him, Mr. Johnson confirmed that 

Mr" Smith allowed him to withdraw his mining machine from the 

bad top area and assigned him to work in another area until 

the roof conditions were subsequently corrected. Conceding 

that Mr. Smith disagreed with his safety assessment of the 

bad top 1 Mr. Johnson confirmed that Mr. Smith displayed no 

anger towards himu did nothing to suggest that "he would get 

back to him,~ or in any manner suggested that he would transfer him because of his complaint (Tr. 26-27). 

With regard to his encounter with foreman Otis Slone 

when Mr. Johnson confronted Mr. Slone and questioned the 

1889 
wisdom of his working under the ripper head of a mining 

machine, Mr. Johnson stated in his deposition that Mr. Slone 

displayed his anger towards him. However, he conceded that 

neither Mr. Slone, Mr. Ratliff, or Mr. Gerald Mullins ever 

threatened him, or in any manner indicated that they would 

transfer him because of this complaint (Tr. 52-53). As a 

matter of fact, during the course of the hearing, Mr. Johnson 

admitted that he may have provoked Mr. Slone during this 

encounter (Tr. 51-52). Mr. Johnson also admitted that he too 

is prone to anger and that he sometimes loses his. temper when 

dealing with his foremen (Tr. 33). 

Mr. Johnson alluded to his 1985 receipt of an "unsatisfactory work slip" from Mr. Slone as an example of past 

harassment. The record shows that when the slip was issued 

Mr. Johnson was not a safety committeeman, and that the slip 

was issued because Mr. Slone believed that Mr. Johnson was 

"goofing off" and that he and his entire work crew were slowing down production. Mr. Johnson filed a grievance, and it 

was subsequently withdrawn 'after Mr. Johnson showed improvement in his work (Exhibits C-11, C-12). Mr. Slone testified 

that Mr. Johnson had previously been warned about his work, 

and Mr. Johnson denied that was the case, but did admit that 

Mr. Slone had previously "talked to him" about his work performance. Upon review and consideration of the facts surrounding this "work slip" incident, I cannot conclude that 

the slip was issued by Mr. Slone to harass Mr. Johnson. 

During the course of the hearing, when pressed for 

details concerning any acts of harassment, threats, or hostility exhibited by management towards him, Mr. Johnson responded 

with his conclusory beliefs that management did not like him 

"for what I stand for" (Tr. 66), and that it displayed resentment, anger, and rejection because of his safety concerns (Tr. 

95-96). Mr. Johnson stated that "nine times out of ten, with 

myself, you end up with a big argument" over his safety complaints (Tr. 93-94). Notwithstanding these beliefs of resentment by management, Mr. Johnson conceded that it nonetheless 

addressed his safety complaints and took appropriate corrective action (Tr. 84-101). 

Although not specifically pleaded as incidents of alleged 

management acts of harassment, during the course of the hearing Mr. Johnson and Mr. Boyd implied that management 1 s harassment of Mr. Johnson resulted inu or forced Mr. Johnson to file 

formal safety and other grievances. A discussion of these 

grievances follows. 

1890 
In a prior grievance arbitrated in August, 1985, in connection with a job posting issue, the arbitrator noted that 

when Mr. Johnson expressed fear in operating his mining 

machine in a pillar section to which he was being transferred, 

the respondent accommodated his concerns and reassigned him 

elsewhere. The arbitrator found that by virtue of a company 

favor, rather than a contractual right, Mr. Johnson was transferred from normal work of which he had a fear to temporary 

duties while awaiting an appropriate opening to which he could 

be assigned on a permanent basis (Arbitration Decision, pg. 7, 

exhibit R-4). · 

In a grievance filed on January 15, 1984, Mr. Johnson 

protested his assignment-to a "floater joo" after the respondent assigned an employee junior to him as a permanent equipment operator while Mr. Johnson was designated a "floater." 

Mr. Johnson contended that his assignment as a "floater" was 

made in retaliation for safety complaints he had lodged. The 

arbitrator rejected this contention and found no evidence of 

retaliation by management because of Mr. Johnson's safety 

complaints (exhibit R-3, pg. 5). Citing numerous instances 

where Mr. Johnson was reassigned during January and February, 

1984, the arbitrator further found no evidence of a pattern 

of abuse and concluded that management acted within its contractual authority in making the reassignments (pgs. 11-13). 

After consideration of all of the testimony and evidence 

adduced in this case, I find no probative or credible evidence 

to support Mr. Johnson's assertions that mine management 

harassed or intimidated him because of his complaints or the 

exercise of any protected safety rights incident to his 

service as a safety committeeman, and Mr. Johnson's assertions 

in this regard ARE REJECTED. 

Mine Managementus Motivation for the Realignment of June 2v 

1986 

In my view, the thrust of Mr. Johnson's complaint is the 

claim that shift foreman Charles Morley and mine foreman Otis 

Slone exhibited a disregard for safety through their "attitude" towards him as the safety committeeman, and by their 

efforts to transfer him from a producing section to a nonproducing construction area, thereby effectively restricting the 

area of the mine where he could effectively function as a 

safety committeeman on behalf of his fellow miners who looked 

to him as their leader. 

In support of the claimed discrimination in this case, 

Mr. Johnson believes that Mr. Morley and Mr. Slone, the two 

1891 
key principals who made the realignment decision with respect 

to the make-up of the newly aligned work crews, aided and 

abetted by other key management officials, conspired to transfer Mr. Johnson in order to isolate him and to restrict his 

safety activities. 

In his posthearing brief, and in further reliance on his 

claims of past and ongoing discrimination, Mr. Johnson's representative Boyd points to the fact that after the realignment, 

production on the longwall section showed no improvement, and 

that this does not support the respondent's asser.tion that the 

realignment was prompted out of management's concern for production. Mr. Boyd further relies on the testimony of 

Mr. Thacker and Mr. Varner in support of his argument that 

mine management, through Mr. Matheny, and with the "blessing" 

of mine manager Kinder, attempted to "bribe" Mr. Thacker to 

bid on the longwall faceman's job with an offer of extra shift 

work, in order to prevent Mr. Johnson from getting the job. 

Conceding the fact that this purported "bribe" came well after 

the realignment, Mr. Boyd concludes that this was simply 

another discrimiriatory management attempt to prevent 

Mr. Johnson from effectively functioning as a safety committeeman. Finally, Mr. Boyd points to the statement by Mr. Kinder 

after the realignment, that the realignment was the result of 

''too many chicken shit complaints, 11 in support of his conclusion that the realignment was retaliatory. 

Mr. Kinder's statement must be taken in context. 

Mr. Melton testified that during one meeting with Mr. Kinder 

and the union concerning the realignment, and in response to 

a question from Mr. Melton as to why Mr. Damron was realigned, 

Mr. Kinder responded "because they had made too many chic~en 

complaints and the production was not what it should be up 

_:_...:.:...;:...;;;;,...=. n (Tr. 45). In a subsequent meeting with Mr. Kinder, and 

n response to a question from Mr. Melton as to why 

Mr. Johnson, Mr. Damron, and Mr. Ratliff had been realigned, 

Mr. Melton testified that Mr. Kinder responded "because the 

section was not producing the way it should" (Tr. 48). 

Mr. Melton admitted that at no time did Mr. Kinder mention 

safety complaints and he conceded that he simply assumed ana 

speculated that Mr. Kinder had in mind safety complaints (Tr. 

48), Furtherg there is absolutely no testimony or evidence 

that Mr. Kinder ever mentioned safetv complaints as the basis 

fer the realignment. 

Mr. Russell Ratliff confirmed that at the time of the 

realignmentu he was not a safety committeeman, and while he 

was of the opinion that his prior safety complaints resulted 

in his realignment, he conceded that other miners who made 

1892 
safety complaints were not affected by the realignment. 

Mr. Ratliff also confirmed that at no time prior to the 

realignment did Mr. Kinder aver mention anything to him about 

making any "chicken shit complaints," and when asked about 

the types of complaints Mr. Kinder may have had in mind when 

he made his statement, Mr. Ratliff replied "all the complaints 

in general." 

Mr. Damron, who also serves as uaion vice-president, 

stated that he heard Mr. Kinder's comment, but indicated that 

"I can't recall exactly what he said, but he sai~ there have 

been a lot of chicken shit complaints up there." Mr. Damron 

confirmed that other miners also made complaints, but he could 

think of no other complaining miners who were realigned, and 

he confirmed that 17 others were relocated to other work 

shifts as a result of the section closing down and the 

realignment. 

The record in this case shows that both prior to, and 

after the realignment, the union met with management to discuss the proposed realignment. The record also shows that 

management's concern to increase production on the first and 

second right sections in anticipation of placing the longwall 

section in production prompted it to seek help from the union 

by having the men agree to work extra shifts on Saturdays, but 

that this suggestion was rejected by the union. Mr. Kinder 

testified that he made the decision that the realignment was 

necessary in order to add a third shift composed of personnel 

from the other two shifts in order to speed up the production 

rate of those sections in preparation for the longwall. 

Mr" Kinder testified that he had nothing to do with the 

selection or make-up the realigned crews 1 that such decisions are made by Mr. Hodges and the respective foremen, and 

he denied that he ever discussed the particular make-up of 

the crews with his foremen or Mr. Hodges. Having viewed 

Mr. Kinder during his testimony at the hearing, he impressed 

me as a candid and straightforward individual, and I find him 

to be a credible witness. Given the fact that the initial 

purchase of the longwall, and the anticipated realignment, 

was the subject of much debate among management and the 

union, and given the obvious past and ongoing tensions that 

existed and still exists between management and the union 

over past grievances complaintsv and controversies as 

reflected by the record in this case, L am convinced that 

Mr. Kinder, as the mine manager responsible for the overall 

operation of the mine, found himself frustrated over his 

attempts to solve his production problems. In this setting, 

I am further convinced that Mr. Kinder's statement concerning 

1893 
.. chicken complaints," which was made in conjunction with his 

stated concerns over the lagging production rate of the two 

sections which were driving towards completion in anticipation of the longwall, and which was made subsequent to the 

realignment in a rather off-handed fashion, was the result of 

his legitimate concern and frustration over production, rather 

than any concern over past safety complaints. 

I conclude and find that Mr. Kinder's decision to implement the work force realignment in question was well within his 

management prerogative, and that his decision in this regard 

was prompted by his intent to attempt to increase production 

rather than to isolate Mr. Johnson as a safety committeeman, or 

to otherwise retaliate against him for his activities as a 

safety committeeman. 

The record in this case establishes that the realignment 

affected miners other than Mr. Johnson, and that rank-and-file 

miners, as well as foreman ·were moved. Miners other than 

Mr. Johnson were moved from their jobs on the second shift 

production section to the construction section, and the entire 

382 working section was eliminated. Mr. Melton conceded that 

at least 25 to 40 miners were affected by the realignment; 

Mr. Damron believed that at least 17 miners were relocated to 

other shifts as a result of the elimination of the former 

producing section; and Mr. Boyd conceded that miners working 

with Mr. Johnson on the second shift producing section were 

affected by the realignment. Given these circumstances, and 

the fact that Mr. Johnson is still serving as a safety committeeman, with no loss of pay or other job rights on the same 

work shift, I find it most difficult to believe that mine 

management would have conspired to engineer the realignment 

simply to restrict Mro Johnsonns safety activities. I find no 

credible evidence of any disparate treatment of Mr. Johnson. 

Mr. Boyd argued that as a result of the realignment, 

everyone else affected with the exception of Mr. Johnson, 

Mr. Ratliffv and Mr. Damronu were realigned by seniority and 

job classification. Mr. Boyd took contradictory positions on 

this issue during the hearing. On the one hand, he insisted 

that the realignment was illegal because seniority was not 

followed, and he asserted that the union had prevailed in 

prior grievances on the issues of realignment, job classification, and seniority rights. On the other hand, Mr. Boyd confirmed that there was no requirement for seniority and job 

classification considerations during such realignments. 

Mr. Boyd was invited to present further arguments in his posthearing brief with regard to these issues, as well as the 

1894 
contractual implications of the realignment, but he did not 

do so. 

Mr. Hodges confirmed that the respondent need not consider seniority when making work force realignments, and that 

numerous arbitration decisions have sustained management's 

prerogative to make job assignments (Tr. 441-442). Respondent's counsel introduced two such arbitration decisions, 

(exhibits R-3 and R-4), and he indicated that one such case 

(R-3), concerned the precise issue as to whether the respondent may align by seniority, and that the arbitrator rejected 

Mr. Johnson's contentions that he was realigned because of 

his safety complaints (Tr. 441-442). 

Mr. Melton confirmed that Mr. A. B. Thacker, was the 

only other safety corrunitteeman affected by the realignment. 

Yet, there is no suggestion that Mr. Thacker believed his 

realignment resulted from his service as a safety committeeman. Mr. Melton explained_ that Mr. Thacker lacked enough 

seniority to maintain his job after the realignment. One may 

conclude from this that the Union's position with respect to 

the realignment, focused on the seniority rights of those 

affected, rather than on any safety complaints. Further 

support for this conclusion may also be found in the position 

taken by Mr. Johnson's representative Boyd with respect to 

the merits of the realignment. Although he first indicated 

that there was no requirement that seniority be followed in 

the realignment, he insisted that the entire realignment was 

illegal because the respondent failed to follow the applicable contractual seniority and job classification requirements. 

Given this position, I find it rather strange that the union 

failed to file a grievance challenging the purported illegality of the realignment. 

In his posthearing briefv Mr. Boyd suggested that coal 

production on the first right section was low because of 

adverse roof conditions, and that subsequent to the realignment? production did not pick up. While this may be true, I 

am not convinced that production was consistently low on the 

section because of roof conditions. Although the respondent 

stipulated that shortly before and after the realignment, the 

top in the first right section was bad (Tr. 139l1 the cecord 

reflects that managementvs concern for lagging production had 

been a long-standing concern for at least a year or so prior 

to the realignment, and it was out of this concern that 

Mr. Slone took the entire crew out of the mine in 1985 at the 

time he gave Mr. Johnson an unsatisfactory work slip. 

1895 
Miner operator Jerry Hicks, who•worked on Mr. Johnson's 

section, confirmed that the section "was awful low on production," and that Mr. Slone spoke to the crew about picking up 

their production rate. He also confirmed that Mr. Slone mentioned eliminating the coffee breaks, and would sometimes 

admonish the crew about "waiting around" for their work 

instructions. 

Mine foreman Morley's unrebutted·testimony was that the 

first right section was at least 2 months behind .its anticipated completion, and that at the time he realigned the crews, 

production was not moving like it should have (Tr. 153-156). 

Section foreman Slone testified that the production on the 

section was "way behind", on a day-to-day basis (Tr. 318). 

Mr. Damron confirmed that production was low on his section, and he too attributed it to the roof conditions (Tr. 

326). However, he confirmed that he only made one complaint 

about the roof conditions, and that this occurred several 

weeks before the re~lignment (Tr. 328). 

Although Mr. Melton initially indicated that he could 

find no legitimate reason for the realignment, he subsequently 

conceded that it was made in preparation for the longwall, 

that management was concerned with production, and that he had 

discussed management 1 s concern over the low production on the 

advancing section with management several weeks before the 

realignment, including management's request for Saturday work 

by the crew to pick up their production rate in anticipation 

of the longwall installation. I find nothing in Mr. Melton's 

testimony to suggest that low production was the result of 

adverse roof conditions. While it is true that Mr. Melton did 

not work on a producing section and may not have been aware of 

any adverse roof conditionsu I find it hard to believe that in 

his capacity as chairman of the mine committee, he would not 

have been aware of any consistently bad top conditions or complaints from miners in this regard. 

In response to a hypothetical bench question as to 

whether or not mine managementr believing that Mr. Johnson, 

Mr. Damron, and Mr. Ratliff were "non-producers," could 

legally and contractually reassign them to a non-producing 

section, Mr. Melton responded in the aEfirmative so long they 

were retained in their job classification at the same rate of 

pay. In Mr. Johnson 1 s case, Mr. Melton conceded that 

Mr. Johnson was realigned with his pay and job classification 

intact, on the same work shift, and that he still remained a 

saf '3ty committeeman ('fr. 83-84). 

1896 
I have carefully reviewed the testimony of the miners 

who testified in this case, and while it was true that adverse 

roof conditions were encountered from time-to-time, I find 

nothing to suggest that such conditions prevailed for any long 

period of time, or that any such adverse roof conditions 

regularly impacted to any great degree on the low production 

rate or low advance rate which was of concern to management. 

The testimony of mine management.personnel Hodges, 

Kinder, Morley, and Slone, which I find credible, corroborates 

management 1 s production concerns, and reflects ma'nagement 1 s 

concern that the production on the first right section needed 

to be addressed and speeded up so as to insure its timely completion and connection with the anticipated longwall. I conclude and find that the realignment of June 2, 1986, resulted 

from management's legitimate concern that the production 

needed to be improved, and that in deciding to proceed with 

the realignment, management was motivated by its intentions to 

increase the rate of speed at which the production section was 

advancing, rather than to attempt to isolate any safety committeemen because of their complaints. 

With regard to the actual implementation of the realignment and the role played by Mr. Slone and Mr. Morley in the 

selection and assignment of the crews, the record establishes 

that they alone made the crew selections on Friday, May 30, 

1986, and Mr. Boyd confirmed that they had the authority to 

make such decisions (Tr. 451). Mr. Hodges testified that when 

he gave Mr. Melton the list, it was not a list showing the 

actual realigned work force, and that he informed Mr. Melton 

that the list was subject to changes after Mr. Slone and 

Mr. Morley reviewed for the purpose of "slotting" employees 

to their realigned positions. Mr. Melton admitted that 

Mro Hodges advised him in advance of the actual realignment 

that the list was subject to change. Although the list in 

question no longer exists and was apparently destroyed after 

Mr. Melton posted it, I accept as credible and plausible 

Mr. Hodgesn explanation with regard to his role in the realignment, eluding the use of the personnel data and "lists" 

reflected by exhibits R-5 through R-7). 

All of the management individuals who were either directly 

or indirectly involved in the realignment (Hodges, Morley, 

Slone>r testified that no effort was made to assign Mr. Johnson 

to the construction crew because of his safety complaints or 

service as a safety committeeman. Mr. Kinder testified that he 

made his realignment decision without regard to personalities, 

did not discuss the make-up of the crews with Mr. Slone or 

Mr. Morley, and that his realignment decision was in no way 

1897 
motivated by any desire to get rid of Mr. Johnson. Likewise, 

section foreman Randy Smith denied that he ever spoke with 

Mr. Slone about transferring Mr. Johnson, or that he harbored 

any animosity toward Mr. Johnson, or sought to retaliate 

against him because of his safety complaints. Safety Director 

Jerry Ratliff, who has had, and continues to have, regular contact with Mr. Johnson, testified that he was unaware of any 

discussions or suggestions that Mr. Johnson be transferred to 

the construction section because of his safety complaints, or 

that mine management sought to punish Mr. Johnson. for his 

safety complaints. 

Although it is true that Mr. Morley and Mr. Slone were 

aware of Mr. Johnson's past safety complaints at the time they 

made up the realigned work crews, they both denied that 

Mr. Johnson's safety activities influenced them, or played any 

part in their decision to transfer him to the construction 

section. The record reflects that both Mr. Morley and 

Mr. Slone had in the past,_ experienced differences of opinions 

with Mr. Johnson's-asserted safety concerns and complaints. 

Mr. Slone readily admitted that some of his discussions with 

Mr. Johnson were "heated" and that he became upset over some 

of Mr. Johnson's complaints which Mr. Slone believed were 

invalid. Likewiser Mr. Morley considered some of Mr. Johnson's 

complaints to be invalid, and he conceded that Mr. Johnson's 

complaints did cause delays in production. Given these circumstances, and notwithstanding Mr. Morley's and Mr. Slone's 

denials to the contrary, there is an inference that 

Mr. Johnson's safety activities did influence Mr. Morley and 

Mr. Slone in their collective decision to transfer Mr. Johnson 

to the construction section. Nevertheless, if it can be shown 

by a preponderance of the evidence that the decision by 

Mro Morley and Mro Slone with respect to the make-up of the 

work crews was motivated by their legitimate concern to 

increase production~ the motivational factor behind management's initial decision for the need of a realignment, any 

inference of discriminatory intent may ba successfully 

rebuttedo 

Mr. Morley testified that his primary concern in assigning miners to particular work crews was to insure a good mix 

of productive people who could work together harmoniously in 

order to achieve mine management 1 s production objectives. 

Mro Morley candidly conceded that he considered the personalities and work habits of all available personnel, concluded 

that there should be a different mix of people, including 

foremen, in order to improve production, and that he freely 

discussed this with Mr. Slone. With regard to the slotting 

of Mr. Johnson, as well as Mr. Damron, Mr. Morley believed 

1898 
that their past work performance was less than adequate. 

Mr. Morley further believed that the continuous miner positions in the realigned section would be most critical to any 

attempts to increase production and he concluded that those 

9ositions which had previously been occupied by Mr. Johnson 

and Mr. Damron should be filled by someone else on the newly 

created production section. 

Mr. Morley stated that Mr. Slone-shared his view with 

respect to the past work performance of Mr. Johnspn, and in 

fact it was Mr. Slone who suggested that changes should be 

made in the crew assignment of continuous miner operators, 

and it was Mr. Slone who informed Mr. Morley that Mr. Johnson 

was a slow machine operator and that he and section foreman 

Smith had problems keeping Mr. Johnson's section moving at a 

pace to suit him. Further, as indicated earlier, Mr. Slone 

had previously warned and spoken to Mr. ·Johnson about his 

work, issued him an unsatisfactory work slip, and had made 

previous statements to Mr. Johnson that he did not want to 

work. Mr. Morley was directly involved in the prior warning 

to Mr. Johnson, and miner operator Jerry Hicks corroborated 

the fact that Mr. Morley believed that the low production on 

the section was the result of unsatisfactory work by the 

entire crew, and that Mr. Morley gave them all a warning in 

this regard. Mr. Slone confirmed that he recommended to 

Mr. Morley that Mr. Johnson be moved off the first right section, and he corroborated the fact that he discussed the 

make-up of the crews with Mr. Morley. 

Mr. Morley asserted that his decision with respect to 

his desire to obtain a different mix or personalties on the 

newly aligned work crews was equally applied to personnel on 

the second right section shift, as well as Mr. Johnson's 

shift, and that foremen, as well as union personnel were 

moved in his attempts to "get a better chemistry or something 

going up there an get production going" (Tr. 169). Conceding 

that production did not substantially increase after the 

realignment, Mr. Morley insisted that his intent in making up 

the particular work crews was aimed at increasing production. 

I conclude and find that Mr. Morley and Mr. Slone were 

simply carrying out their management responsibilities in implementing the realignment decision made by Mr. Kinder. There is 

nothing to suggest that Mr. Morley or Mr. Slone initiated the 

realignment or made any suggestions to Mr. Kinder that a 

realignment was necessary in order to isola±e Mr. Johnson. As 

a matter of fact, Mr. Boyd conceded that he had no reason to 

believe that Mr. Slone had anything to do with the initial 

realignment decision (Tr. 190). 

1899 
Having viewed Mr. Morley and Mr. Slone during their testimony at the hearing, I find them to be credible individuals. 

I find no credible basis for concluding that Mr. Johnson was 

treated any differently from other miners with respect to the 

selections and decisions made by Mr. Morley and Mr. Slone in 

realigning the available work force. The record clearly 

establishes that one entire section was abolished, and that 

foremen as well rank-and-file miners,- including other miners 

on Mr. Johnson's shift, were affected by realignment, and 

that some miners who had complained about safety ~ere not 

realigned. Mr. Melton confirmed that with the exception of 

Mr. Johnson, Mr. Ratliff, and Mr. Damron, the remaining miners 

affected by the realignment were "pacified and everything was 

fine as far as they were concerned" (Tr. 75). 

With regard to the purported "adverse" decision by management to realign the work forcer I take note of the Commission's 

decision in Bradley v. Belva Coal Company, 4 FMSHRC 982 (June 

1982). Citing its Fasula and Chacon decisions, the Commission 

stated in pertinegt part ~s follows at 4 FMSHRC 993: "* * * 

Our function is riot 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." 

I conclude and find that Mr. Morley and Mr. Slone acted 

well within their managerial and discretionary authority in 

deciding upon which particular personnel at their disposal 

would be transferred or realigned. Acting within their 

authority as managers, they were fr:~e to a1ake j:1dgmenl:s 3.nd 

decisions with respect to the relative work performance levels 

of the lable personnel, including any personality traits 

or work habits which they believed were required to assure 

that a productive and harmonious group of workers were available to achieve management's production objectives. 

I find Mr. Morley's explanation as to the factors which 

he and Mr" Slone chose to follow in making their crew selections to be reasonable and plausible, and that their seleccion sions were motivated by their good faith intentions 

to attempt to increase production in anticipation of the lon'::]-

wall r rather than to discriminate against Mr. Johnson or to 

isolate hiin .Eor his safety complaints or his activities as a 

safety committeeman. I reject Mr. Johnson 1 s assumptions and 

conclusions that management somehow conspired to realign him 

out of iation for his safety activities. Mr. Johnson's 

service as a safety committeeman does not insulate him from 

legitimate managerial business-related non-discriminatory 

1900 
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). 

With regard to the issue raised for the first time at 

the hearing by the union concerning an alleged "bribe" by 

management as an indication of its purported attempt to keep 

Mr. Johnson off of the producing longwall section, I take 

note of the fact that this alleged incident occui~ed well 

after the realignment, and there is absolutely no evidence to 

suggest that Mr. Morley or Mr. Slone were involved in that 

alleged incident. 

The issue concerning the bidding for the longwall faceman' s job which Mr. Johnson now occupies was the subject of 

arbitration. The record establishes that after a formal arbitration hearing held on February 18, 1987, Mr. Johnson was 

awarded the job (exhibit C-1). In that proceeding, Mr. Hodges 

and Mr. Matheny appeared on behalf of management, and 

Mr. Melton, Mr. Johnson, Mr. Thacker, and Mr. Varney appeared 

on behalf of Mr. Johnson. 

The union's position with respect to Mr. Johnson's grievance, as reflected by the arbitrator's decision, was that the 

respondent was attempting to circumvent the contract and not 

award the job to Mr. Johnson because he was a safety committeeman. In sustaining Mr. Johnson's grievance and awarding 

him the job, the arbitrator based his decision on a finding 

that the respondent failed to follow established company 

policy prohibiting anyone but the actual job bidder from adding or deleting a bidder's name from the bid sheet. The arbitrator rejected the claim that the respondent attempted to 

bypass Mro Johnson because he was a safety committeeman. In 

doing so, the arbitrator found that there was no evidence 

which even suggested that this was the case (exhibit C-1, pg. 

5) 0 

Although I am not bound by decisions of arbitrators 9 I 

may nonetheless give deference to an arbitrator 1 s '

1 specialized 

competence" in interpreting a provision of any applicable 

labor-management agreements. Chadrick Casebolt v. Falcon Coal 

Company, Inc. 1 6 FMSHRC 485v 495 (February 1984); David Hollis 

v. Consolidation Coal Company, 6 FMSHRC 21, 26-27 (January 

1984); Secretary on behalf of Fasula v. Consolidation Coal Co.r 

2 FMSHRC 2786 (October 1980), rev'd on other grounds sub~· 

Consolidation Coal Co., v. Marshall, 663 F.2d 1211 (3d Cir. 

1981). 

1901 
I take particular note of the arbitrator's comments at 

page four of his decision that a full and complete hearing was 

conducted and that the parties had an ample opportunity to 

present evidence in support of their claims. I note the arbitrator's comment that the union's assertion that Mr. Johnson 

was bypassed because he was a committeeman was made in closing 

arguments, and his conclusion that the union submitted no evidence to even suggest that Mr. Johnson's status as a safety 

corrunitteeman had anything to do with the job bid .in question. 

Neither party presented any posthearing discussion with 

regard to the prior arbitration hearing. The respondent 

simply characterized the alleged "bribe 11 as an "incredible" 

pretexual fabrication by the union to discredit management. 

The complainant simply concludes that the arbitrator's ruling 

that the bid made by the employee in competition with 

Mr. Johnson was too late, and that a foreman could not add a 

bidder's name on the job bid, "shows true signs of discrimination on the company's part." 

In this case, Mr. Thacker's testimony is devoid of any 

credible statements to indicate or even suggest that at the 

time Mr. Matheny may have discussed the job bids with him, 

Mr. Matheny said anything directly or indirectly that would 

lead Mr. Thacker to conclude that Mr. Matheny made any job 

overtures to him with the intent to isolate or get rid of 

Mr. Johnson. Mr. Thacker admitted that his belief that 

Mr. Matheny did not want Mr. Johnson to get the longwall 

faceman's job was based on speculation, and that Mr. Matheny 

did not mention Mr. Johnsun by name. 

Mr. Varner first testified that Mr. Thacker told him 

that Mr. ~atheny wanted him to bid for the faceman's job in 

order "to beat Eddie out of it." He later stated that 

Mr. Thacker indicated to him that Mr. Matheny did not identify Mr. Johnson as the individual who he was trying to keep 

out of the section. Thus, Mr. Varner not only contradicts 

himself, but he contradicts Mr. Thacker's testimony that 

Mr. Johnson did not mention Mr. Johnson's name at all. 

Mr. Varner also testified that it was he who suggested 

to Mr. Thacker that Mr. Matheny was trying to keep Mr. Johnson 

off the section for fear he would shut it down because of 

methane. Mr. Varner confirmed that he made the suggestion in 

response to an injury from Mr. Thacker as why anyone would ask 

him to bid for the job. This also contradicts Mr. Thacker's 

statement indicating that it was he who told Mr. Varner that 

Mr. Matheny wanted to get Mr. Johnson off the section. 

1902 
After careful consideration of the testimony of 

Mr. Thacker and Mr. Varner, which I conclude is contradictory, 

and lacking in credibility, and taking into consideration the 

arbitrator's finding with respect to the merits of the alleged 

"bribe," I reject the complainant's assertion that Mr. Matheny, 

or anyone else, made an offer to Mr. Thacker with the int~nt to 

exclude Mr. Johnson from the longwall section in order to prevent him from functioning as a safety-committeeman or to prevent him from making complaints. 

ORDER 

In view of the foregoing findings and conclusions, and 

on the basis of a preponderance of all of the credible testimony and evidence adduced in this case, I conclude and find 

that the complainant has failed to establish that the realignment of June 2, 1986, was in any way discriminatory, or was 

motivated by the respondent's intent to prevent him from exercising any protected rights with respect to his employment as 

a miner or in his capacity as a member of the safety committee. Even had the complainant established a prima facie case, 

I conclude that it was clearly rebutted by the respondent's 

credible evidence which established that the realignment constituted a reasonable and plausible business-related and 

non-discriminatory effort by management to increase production 

in order to facilitate and expedite the installation of the 

longwall. Accordingly, the complaint IS DISMISSED, and the 

complainant's claims for relief, including costs, ARE DENIED • 

/G~ige 

. ···Lt~~ ~ Koutras 1!1/~ Administrative Law Judge 

Distribution~ 

Mro James Boyd, UMWA District 30 Representativev Safety 

Department 7 Williamson Road, Pikeville, KY 41501 

(Certified Mail) 

Edward No Hall, Esq" 7 Robinson & McElweeu PoOo Box 1580, 

Lexington 1 KY 40592 (Certified Mail) 

/fb 

1903 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 1987 

EMERALD MINES COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR., 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA), 

Respondent 

and 

LOCAL UNION 1889, DIS·l'RICT 17 

UNITED MINE WORKERS OJ? 

Ai.\1ERICA, 

Intervenor 

. . 

. . 

. . 

. 

. 

. 

. 

DECISION 

CONTEST PROCEEDING 

Docket No. PENN 85-298-R 

Citation No. 24018631 8/8/85 

Emerald No. 1 Mine 

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll 

Professional Corporation, Pittsburgh, Pennsylvania 

for Emerald Mines Company; 

Edward H. Fitch, Esq., Office of the Solicitor, 

U. S. Department of Laboru Arlingtonu Virginia for 

the Secretary of Labor, 

Mary Lu Jordanu Esq.u United Mine Workers of 

Americau Washingtonv DoCo for the Intervenor 

Before~ Judge Gary Melick 

This case is before me upon re.nand by a majority of 

the Co:nmission far further proceedings consistent with its 

decision dated September 30v 1987. On October 27v 1987u the 

following stipulations were filed with the undersigned~ 

1. On August 8 l985v at a~oo a.rn., Inspector Koscho 

issued Citation No. 2401863 cncitation") purportedly 

pursuant to Section 104Ca} of the Federal Mine Safety 

and Health Act of 1977 ("the Act"), 30 O.S.C. § 814(a), 

alleging a violation of 30 c.F.R. 75.308. 

2. Under the heading and caption "Condition or Practice," 

the Citation alleged as follows: 

1904 
During a l03(G)(l) investigation it is determined that 

power from the continuous miner Serial No. JM 2567 was 

not immediately de-energized when 2.5% to 2.6% methane 

was detected; also changes were made in the ventilation 

in the working places before the continuous miner in 

the working place was de-energized. The incidence 

[sic] took place in No. 1 Haulage 002 section in a 

crosscut being driven· from 3 Room to 2 Room on 7/29/85. 

3. The Citation alleged that the alleged violation was of 

such a nature as could significantly and substantially 

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

health hazardc 

4. On August 23, 1985, at 8:15 a.~., Inspector Koscho 

modified the Citation to a Section 104(d) citation, thereby 

alleging an unwarrantable failure to comply with the 

mandatory standard. 

5. On Septernber,6, 1985, Emerald filed a Notice of Contest 

challenging the Citation and the modification of the 

Citation to a Section 104(d) citation and the special 

finding of "unwarrantable failure." 

6. A proposed penalty was issued for the 104(a) Citation 

in September, 1985, and was paid by Emerald on October 11, 

1985. 

7. On November 18, 1985, the Secretary filed a Motion to 

Dismiss Proceedings on the basis that the Notice of Contest 

was moot because Emerald paid the proposed penalty. Emerald 

filed a response to the Secretary's Motion to Dismisso 

80 On November 15, 1985, Emerald filed a Motion for 

Partial Summary Judgment as to the unwarrantable failure 

allegation. · The principal ground for this Motion was that 

the Citation was based upon an after-the-fact investigation 

and, thereforeu could not properly be based upon Section 

104(d) of the Acto The Secretary filed a response to 

Emerald's Motion" 

9 0 A hearing was held before the Administrative Law Judge 

on January 22, 19860 The hearing was limited to the issues 

raised by the parties' Motionso 

10. On March 5, 1986, the .Administrative Law Judge issued 

his decision. He granted the Secretary's Motion to Dismiss 

as to the fact of the violation and the significant and 

substantial finding but denied it as to the unwarrantable 

failure allegation and the allegation of a violation of 

1905 
Section 104Cd)(l) of the Act. He also granted Emerald 1 s 

Motion for Partial Summary Judgment, modified the Citation 

to a Section 104(a) Citation and deleted the unwarrantable 

failure finding. 

11. Intervenor, the United Mine Workers of America, 

petitioned the Federal Mine Safety and Health Review 

Commission for discretionary review of the Judge's decision 

granting Emerald's Motion for Partial Summary Judgment, and 

the Commission granted review on April 14, 198,6. 

12. After briefing and oral argument, the Commission issued 

a decision on September 30, 1987, reversing the 

Administrative Law Judge's decision as to Emerald's Motion 

for Partial Summary Judgment and vacating' his modification 

of the Section 104{d) Citation to a Section 104(a). The 

Commission remanded the case to the Administrative Law Judge 

for further proceedings. 

13. Emerald wishes in 'the near future to seek review by the 

United States Court of Appeals of the Commission's decision 

on the issue of whether a Section 104(d) violation and 

unwarrantable failure finding may be based on an 

after-the-fact investigation. It is unable to do so until a 

final order is issued in this matter, and, for that reason, 

it has entered into this Stipulation to facilitate and 

expedite such review. 

14. Emerald withdraws all its allegations challenging the 

modification of the Citation to a Section 104(d) citation 

except insofar as it has challenged such modification as 

improperly based upon an after-the-fact investigationu 

rather than an inspection and actual observance of the 

conditions described in the Citationo Emerald now limits 

its challenge of the unwarrantable failure finding and the 

allegations of a violation of Section 104(d) to those issues 

which the Administrative Law Judge addressed in deciding its 

Motion for Partial Sununary Judgment and which were involved 

in the Commissionus review of such decisionv ioeov whether a 

Section 104Cd> violation can properly be based upon an 

after-the-fact investigation rather than an inspection and 

actual observance of the cited conditionso 

150 With this limitation of the basis of Emerald~s 

challenge to the modification of the Citation, the 

Corrunission 1 s resolution of the issues raised by Emerald 1 s 

Motion for Partial Summary Judgment as to whether a Section 

104{d) violation may be based upon an after-the-fact 

investigation is dispositive of Emerald 1 s Notice of Contest 

and, on that basis, it is stipulated that it would be 

1906 
appropriate that a finding be entered denying Emerald's 

Notice of Contest on the basis of the Commission's decision 

in this matter. 

16. No further hearings are necessary in this matter. 

17. An order may be entered denying Emerald's Notice of 

Contest on the basis of the Commission's decision in this 

matter since there are no other issues to be addressed in 

this matter. 

The above stipulations are accepted for purposes of these 

proceedings. The Contest herein is accordingly denied and 

dismissed on the basis of the Commission's decisi n in this case 

rendered September 30, 1987. 

Distribution: 

Gary Mel 

Administl ative 

(703) 7; -6261 

R. Henry Moore, Esq., Buchanan Ingersoll Professio al 

Corporation, 57th Floor, 600 Grant St., Pittsburgh, PA 15219 

CCerti.Eied Mail) 

Edward Ho Fitchv Esqo, Office of the Solicitorv Uo S. Department 

of Laborv 4015 Wilson Blvd., ~rlingtonv VA 22203 (Certified 

Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, DC 20005 (Certified Mail> 

npt 

1907 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COlFAX AVENUE. SUITE 400 

DENVER. COlORADO 80204 NOV 2 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

Docket No. WEST 86-191 

A.C. No. 48-00086-03508 

Kemmerer Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioffer; 

John' A. Bachmann, Esq., The Pittsburg & Midway Coal 

Company, Denver, Colorado, 

for Respondent. 

Before~ Judge Morris 

The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, charges Pittsburg and Midway Coal Company, 

(P & M), with violating three safety regulations promulgated 

under the Federal Mine Safety and Health Act, 30 u.s.c. § 801 et 

~., (the Act). 

A hearing on the merits took place on January 6 1987 in 

Salt Lake C , Utah. The parties filed post-trial briefs" 

Issues 

The issues presented are whether the violations occurred; if 

so, what penalties are appropriate. 

Citation No. 2831954 

This citation alleges a violation of 30 C.FoR. § 77.603 

which provides~ 

§ 770603 Clamping of trailing cables to equipment" 

Trailing cables shall be clamped to machines in a manner 

to protect the cables from damage and to prevent strain 

on the electrical connections. 

The violative condition is described in the subject citation 

as follows: 

1908 
The junction box located in pit #1-VD supplying power 

to the #809 overburden shovel does not have a straining 

clamp on the 7200 Volt A.C. trailing cable. The cable 

is very tight and not preventing a strain on the electrical 

connections. 

Summary of the Evidence 

Melvin Potter, a person experienced in mining, has been an 

MSH~ electrical inspector for eight years. On May 6, 1986, he 

inspected the Kemmerer Mine operated by P & M (Tr. 5-7). 

During the course of his inspection, as he went by a 

junction box in the 1-VD pit, he could not see a straining 

clamp l; on it (Tr. 7). The restrained cable was the trailing 

cable for the shovel. The voltage in the cable was 7200 AC (Tr. 

7 fl 8) • 

A company electrician opened the junction box. Inside the 

box he observed a wopden clamp, but it was not fastened and it 

was loose from the cable (Tr. 8, 9). If it had been fastened it 

would have served as a straining clamp for the 1000 or more foot 

cable. When the inspector observed the trailing cable it was 

taut and there was strain on it (Tr. 10). 

Failing to secure the trailing cable could cause a phase to 

ground fault or a phase to phase fault. ~ phase to phase would 

energize the junction box and the rest of the system with 7200 

volts (Tr. 13-15). If a miner touched the box he would be 

electrocuted (Tr. 14). 

In the inspector 0 s opinionu it was reasonably likely that an 

injury could occur if the condition was not remedied. 

In cross examination the inspector agreed that the citationv 

as writtenv states there was no straining clamp on the cable (Tr. 

40) 0 

However there was a wooden block clamp in the box. But 

the clamps were laying down in the box and not around the cable 

(Tr o 42) • 

When the inspector pointed out the failure to have a 

restraining clamp in the box the electrician immediately put on a 

wooden clamp {Tro 56-58) 0 The electrician said they had worked 

on the box before the inspection and had apparently left the 

clamp off. 

Photographs, Exhibits Rl and R2, were not taken at the time 

of the inspection (Tr. 56). 

ll A straining clamp goes on the cable to prevent strain on the 

cable inside the box itself (Tr. 7). 

1909 
Called as a rebuttal witness, Inspector Potter identified 

his notes made at the inspection. They indicated there was no 

clamp on the cable (Tr. 242). 

Richard Dovey, testifying for respondent, serves as P & M's 

manager of safety and training (Tr. 60, 61). 

The witness accompanied the inspection team. They initially 

discussed the necessity of P & M placing firefighting equipment 

on a utility's substation. 

On two occasions the morning of the inspection the inspector 

had driven by the 1-VD area. There was no external clamp on the 

box. They called the electricians to shut down the shovel. A 

photograph was taken on a identical junction box (Tr. 65, 55: Ex. 

R3). The witness, Dave Ravnikar, Rex Playstead and Inspector 

Potter were present at the time of the inspection. 

When we approached the box Mr. Potter directed the inspection party to stop because he could not see a strain clamp. 

However, when the box was opened he observed the wooden blocks 

were located in their proper place. That is, two wooden blocks 

with a hole cut in them held the cable (Tr. 68). The blocks 

measure 8 inches by 8 inches with a hole approximately two and 

one eighth inch (Tr. 69). The blocks cannot come out when the 

lid is closed. 

Company policy requires the shock blocks and straining 

clamps on the trailing cables. This protects strain from the 

inner mechanism of the box and it protects the cable against 

scuffing on the metal edges of the boxes CTr. 71). 

In the opinion of the witness the clamp qualifies as a 

trailing clamp under § 7706030 The connectors inside the box 

were protected from strain as a result of the clamp (Tr" 71, 72)" 

After the inspection an external Clellen grip was installed. The 

company representatives didn't tell the inspector they already 

had a clamp in place because they hadn't decided if the inside 

clamp in place was a legitimate cable strain (Tro 73)" 

Witness Dovey~s basic statements to MSHA 1 s supervisory mine 

inspector in Sheridan, Wyoming was the same as his testimony (Tr. 

182-185)" However, the supervisor indicated that all of the 

citations would stand as written (Tro 185, Ex. R7) o 

Dovey didn 1 t disagree that the screws in the restraining 

clamps were missing (Tr. 186). 

Discussion 

The evidence is conflicting as to whether a violation of the 

regulation occurred. 

1910 
Inspector Potter testified the junction box did not have an 

external straining clamp. He agrees the citation was written in 

this fashion. But when the junction box was opened it was found 

the box contained wooden blocks around the cable. These blocks 

suffice as a straining clamp. Since the wooden blocks serve as a 

restraining clamp it follows that P & M did not violate the 

regulation. 

I credit respondent's evidence that the cable was resting on 

the two wooden blocks. I disregard the inspector's evidence that 

blocks were unfastened and loose from the cable. Blocks measuring 8 11 x 8 11 in a junction box are not likely to become loose in a 

box of this type. In addition, it was not shown how any screws, 

even if missing~ would affect the ability of the blocks to serve 

as a straining clamp when the junction box was closed. 

Citation No. 2831954 should be vacated. 

Citation No. 2831955 

This citation alleges a violation of 30 C.F.R. § 77.701 

which provides: 

§ 770701 Grounding metallic frames, casings, and other 

enclosures of electric equipment. 

Metallic frames, casings, and other enclosures of 

electric equipment that can become "alive" through 

failure of insulation or by contact with energized 

parts shall be grounded by methods approved by an 

authorized representative of the Secretary. 

The violative condition is described in the citation as 

follows~ 

A 110 volt AC space heater located in the electrical 

supervisor vs office is not equipped with a proper ground. 

The heater was energized and in use. 

Summary of the Evidence 

On the same inspection Mro Potter found an ungrounded 110 

volt AC metal-cased heater in the electrical supervisorvs office. 

It had two phase wires plugged into a 110 v9lt outlet. It lacked 

a third wire for grounding (Tr. 16). In addition, there was no 

solid connection to any metal water lines having a low resistance 

to earth. Further, there was no grounding of any other type (Tr. 

17)0 Failure to ground this type of heater could cause shock, , 

serious burns or a fatality. If this condition continued and a 

fault occurred you could reasonably expect a shock or serious 

burn (Tr. 18, 19). 

1911 
The inspector did not check the inside of the heater to see 

whether or not it was double insulated (Tr. 43). The back of 

this appliance had a "UL" stamp of approval on it (Tr. 43). 

The methods approved by the Secretary for grounding 

equipment (30 C.F.R. 77.701-1) are the methods to be used for AC 

equipment (Tr. 43, 44). 

The inspector did not check to see whether the power system 

from which this heater received its power was ungrounded. 

However, he explained that the heater itself was not grounded. 

And if a fault occurred on the heater, the fault could not go to 

ground (Tr. 46, 48) • 

The inspector was not sure if MSHA has a policy concerning 

the grounding of appliances (Tr. 49). 

In the inspector's opinion, the metal heater could have 

been grounded by an extra wire back into the wall socket. Also a 

three prong plug would have ,grounded it (Tr. 50, 51). 

Witness Dovey, testifying for respondent, confirmed that 

the heater lacked a three prong plug. However, the building 

where the device was plugged was grounded and equipped with 

circuit breakers (Tr. 111). 

Witness Dinkel, called as an expert witness for the Secretary in rebuttal, indicated that equipment of this type must be 

grounded regardless of UL approval (Tr. 220-222). 

Witness Veneskey, testifying for P & M, expressed the 

opinion that § 770701 applies to appliances (Tro 159) o The 

witness expressed his views as to the § 770516 and the National 

Electrical Code (Tro 160-162)0 The heater fits into the NEC 

criteria (Tro 162} o The witness was not aware of any MSHA 

requirement that appliances when brought out to the mine be 

modified to include a ground plug if they do not have one from 

the manufacturer (Tro 163)0 

In cross exarninationu the witness, agreed the possibility 

existed that the metal frame might become alive through a failure 

of insulation or a contact or an energizing of the parts (Trc 

164v l65u 168)0 

Discussion 

Section 770701 is not applicable or that it applies only to 

electrical equipment from ungrounded AC power system. P & M, in 

1912 
support of its positioni cites the Secretary's regulations, 

§ 77.516 and 77.701-1. ~/ 

An analysis of relevant regulations indicates that § 77.516 

was enacted under "Subpart F - Electrical Equipment - General". 

I would be inclined to agree with P & M's views but § 77.701, 

violated here, was enacted in "Subpart H - Grounding". In sum, 

the Secretary has enacted general regulations relating to 

equipment as he did in Subpart F and he may generally require 

that such equipment meet the NEC. He may then impose stricter 

limitations, as he did, in relation to the grounding of such 

equipment as in§ 77.700. 

P & M further states that § 77.701-1 controls the scope of 

§ 77.701. It contends that § 77.701-1 by its terms limits § 77.-

701 to ungrounded equipment. I do not agree. Section 77.701 by 

its terms generally covers grounding. There is no indication the 

subsequent regulation was enacted so as to limit§ 77.701. 

The cases and textbook cited by P & M deal with general 

rules of statutory qonstruction and they are not inopposite the 

views expressed herein. 

P & M's final argument is that MSHA has issued no policy or 

interpretation requiring the replacement of two-prong plugs. 

~/ § 77.516 Electric wiring and equipment; installation 

and maintenance. 

In addition to the requirements of §§ 77.503 and 77.506, 

all wiring and electrical equipment installed after June 

30u 197lu shall meet the requirements of the National 

Electric Code in effect at the time of installation. 

§ 770701-1 Approved methods of grounding of equipment 

receiving power from ungrounded alternating 

current power systems. 

For purposes of grounding metallic framesu casings and 

other enclosures of equipment receiving power from ungrounded alternating current power systems, the following 

methods of grounding will be approved. 

(a) A solid connection between the metallic frame~ casing 

or other metal enclosure and the grounded metallic sheathu 

armor or conduit enclosing the power conductor feeding 

the electric equipment enclosed; 

{b) A solid connection to metal waterlines having low resistance to earth: 

Cc) A solid connection to a grounding conductor extending 

to a low-resistance ground field; and, 

(d) Any other method of grounding, approved by an authorized 

representative of the Secretary, which insures that there 

is no difference in potential between such metal enclosures 

and the earth. 

1913 
Therefore, the inspector's abatement requirements amount to 

nothing more than his personal preference. 

The regulation, in effect, provides that potentially 

energized parts shall be grounded by methods approved by the duly 

authorized representative of the Secretary, that is, the 

inspector. 

Several methods of grounding were available but in the 

instant case a three way plug was required. It was not shown in 

this case that the inspector exceeded his authority. 

Citation No. 2831955 should be affirmed. 

Citation No. 2831956 

This citation alleges a violation of 30 C.F.R. § 77.502 

which in its entirety provides: 

§ 77.502 Electric equipment; examination, testing, and 

maintenance. , 

Electric equipment shall be frequently examined, tested, 

and properly maintained by a qualified person to assure 

safe operating conditions. When a potentially dangerous 

condition is found on electric equipment, such equipment 

shall be removed from service until such condition is 

corrected. A record of such examinations shall be kept. 

The violative condition is described in the citation as 

follows: 

The electrical equipment located in the Sorenson Draw 

tunnel is not being properly inspected and maintainedu in 

that the 24 volt telephone system has electrical wires 

exposed and a toggle switch added allowing coal dust to 

enter inside the telephoneo 

Sununary of the Evidence 

Inspector Potter inspected the 24-volt telephone in the 

Sorenson Draw tunnel" He found the metal encased battery powered 

system had a switch and two connectors on the outside of the 

phone, It also had external connecting terminals that run to the 

surface (Tro 19Q Ex. Rlu R2) a There was coal dust on the 

terminals and on the batteries (Tro 20, 32). The external bare 

clamps which carry 24-volt current and the toggle switch were not 

on the phone. This allowed coal dust to enter the phone where 

the wires were located. The bare wires were attached to a bare 

clamp on the outside of the phone (Tr. 21, 22). There was also 

coal dust in and around the clamps. The terminals, an inch and 

half apart, could have provided a source of ignition (Tr. 22). 

Coal dust would provide the fuel for the explosion. Small 

explosions can keep expanding throughout an area (Tr. 24). 

1914 
The tunnel has conveyor belts; also one or two maintenance 

people work there (Tr. 24). 

The toggle switch was on the outside of the phone (Tr. 24, 

25). It was not dust tight. You could see through to the 

switch when you opened the door of the telephone (Tr. 25). 

In the inspector's opinion, there was sufficient coal dust 

on the interior of the phone to create a hazard (Tr. 26). The 

opening in the phone could create a flame path to the exterior of 

the phone CTr. 27). Most phones have a sealed rubber type boot 

over the switch (Tr. 27, 28). The boot prevents dust from 

entering into the electrical components of the phone. The 

inspector had never seen a telephone with an unprotected toggle 

switch (Tro 28)" The telephone was tagged "approved for methane 

only". Approval for methane is not equivalent to approval for 

dust (Tro 29). coal dust is more violatile than methane. 

Methane will burn itself out but coal dust just "keeps going" 

(Tr. 30). 

This was a permanently installed phone and the tunnel was 

always dusty (Tr. 30, 31). In view of these conditions you could 

reasonably expect a mine explosion. This tunnel has been cited 

for coal dust in the past (Tr. 31}. 

In cross examination, the inspector read from the definition 

§ 30 C.F.R. Part 23(d) (Tr. 34). Under the definition a permissible phone could or could not be permissible in both gassy 

and dusty locations (Tr. 36, 37). This particular phone was 

methane proof, a higher standard than dust proof. 

Witness Dovey, testifying for respondent, described the use 

of the telephone. During the inspection Dovey did not see any 

light coming through the toggle switch hole. Furtheru there was 

no hole at the toggle switch (Tr. 9l)o 

After the citation was issued Dovey researched the telephone. 

He produced the maintenance manual for the telephones in the 

tunnel. The manual had been obtained from the electrical 

departmento Dave Ravnikar also stated that the toggle switch had 

not been added (Tr" 93, 94)" Dovey copied the identifying number 

from the telephoneo But he didn't recall the manufacturer (Tr. 

96) o Further, he didn't recall the ID number. In addition, he 

couldn 1 t say if it was the number that appears on the front page 

of the exhibito Howeverv he took the document down to compare it 

to see if he had exactly the same phone (Tr. 96). Dovey didn't 

know who published the exhibit (RS). The maintenance department 

maintains manuals for the equipment at the mine (Tr. 97). Such 

records are generally maintained with a mine issuance number but 

there is no such number on the phone (Tr. 97, 98). But he had 

taken the information from the door on the phone (Tr. 98). A 

manufacturer's name was present but Dovey did not recall it (Tr. 

98). Dovey also didn't know if there had been any after acquired 

phones (Tr. 98) • 

1915 
Comparisons between Exhibit R5 and photographs of the 

telephone previously received in evidence indicates there was no 

speaker, nameplate or labels on the telephone as depicted in the 

offered exhibit~/ (Tr. 94-102, Ex. R5). 

Dovey is familiar with the concept of permissible 

communication systems in coal mines. Such a system can be placed 

in a dusty, gaseous area. This particular tunnel has never been 

classified (Tr. 106). According to the company brochure the 

phone system was permissible (Tr. 107). This particular phone 

has a sticker saying it is "MESA - approved permissible." 

Permissible equipment is sealed to prevent dust or gas from 

entering (Tr. 108). It is, accordingly, dust ignition proof. 

The telephone was maintained in a proper operating condition 

(Tr. 109). The connectors on the telephones were in the proper 

holes (Tr. 109, 110). The toggle switch was intact and tight. 

There was no dust in the telephone. It was a 12 volt phone and 

the batteries were connected in parallel <Tr. 110). 

TERRANCE DINKEL~ called as an expert rebuttal witness by the 

Secretary, was identified as an electrical engineer for MSHA (Tr. 

193-195). 

In Dinkel vs opinion the telephone system was not 

intrinsically or inherently safe. Intrinsically safe means a 

device has insufficient energy to ignite the atmosphere present. 

A 24-volt or a 12-volt, or a flashlight battery can ignite coal. 

The light coming through the switch indicates the units were not 

sealed (Tr. 197, 198, 203). Section 27-7Cd) of C.F.R. 30 requires batteries to be in sealed containers. Since there was 

dust inside the cabinet it was not sealed (Tr. 199u 201) o 

The telephone, as inspected by Mr. Potter, was potentially 

dangerouso L~ is a matter of time before moisture and dust 

accumulate and cause a short (Tro 205). 

Protection from methane does not constitute protection from 

coal dusto Coal can conduct current from one terminal to another 

Tro 2 ) c Even though approved for methane a faulted circuit 

could ignite the coal dust lying in its path (Tr. 219). 

Witness Dinkel further stated that a device designated 

permissible by MSHA is permissible in both dusty and gassy 

locations (Tr. 22 6) " 

In rebuttal Inspector Potter testified the telephone was 

tagged as "permissible MESA for methane only" (Tr. 240). 

3/ The judge sustained the Secretary's objection and excluded 

Exhibit RS (Tr. 103, 105, 191-192, 248). 

1916 
The inspector's notes made at the time of the inspection 

stated there was dust on the inside of the compartment. You 

could rub your fingers and they would come up black {Tr. 242, 

243, Ex. P2). However, the wind and coal dust was blowing in the 

tunnel but the dust in the telephone did not go into suspension 

(Tr. 245). There was some coal dust in suspension in the tunnel 

(Tr. 246). 

James T. Veneskey, a person experienced in mining, serves as 

the director of safety for P & M (Tr. 152-154). 

In the opinion of the witness a 12 or 24 volt system will 

not ignite coal dust. Coal dust must be in suspension before it 

will explode {Tr. 157). With the MSHA approval label the 

telephones were intrinsically safe but not designed to be totally 

dust proof. But they were to be used in a dusty and gassy atmosphere (Tr. 157-159). The enclosure was not permissible so as to 

reduce a flame path (Tr. 158). 

Witness Dovey t~stif ied there was a sticker on the telephone 

stating "MESA permissible" (Tr. 239). 

Discussion 

The pivitol issue here concerns whether the telephone was 

"potentially dangerous" within the meaning of § 77.502. 

In connection with this citation I credit the testimony of 

Inspector Potter and witness Dinkel. Briefly, the inspector 

found coal dust on the terminals and on the batteries in the 

telephone. In addition, bare wires were attached to a bare clamp 

on the outside of the phone. Both witnesses concluded the 

terminals, an inch and a half apart, could provide a source of 

ignition for the coal dusto The telephone, with a hole at the 

toggle switch, .in a coal dusty tunnel, was ~potentially 

dangerous" within the meaning of the regulation. 

P & M contends MSHA is attempting to penalize it through the 

use of conjecture and deceit. Specifically, it contends MSHA's 

case is based on the failure to maintain electrical equipment, 

i.e., exposed electrical wires and a defective toggle switch. 

But at the trial MSHA mutated the case into allegations of a 

dangerous accumulation of coal dust. 

I disagree with P & M's claim. The facts presented at the 

hearing are fairly within the allegations of the citation. The 

violative condition is described as follows: 

The electrical equiptment [sic] located in the Sorenson 

draw off tunnel is not being properly inspected and 

maintained, in that the 24 volt telephone system has 

electrical wire's exposed and a toggle switch added 

allowing coal dust to enter inside the telephone. 

1917 
P & M states that, in any event, MSHA's evidence is woefully 

lacking of proof to establish the conditions necessary to create 

a hazardous condition. P & M cites The Pittsburg and Midway Coal 

Mining Company, 7 FMSHRC 2072 (1985). It is true that in the 

above case Judge Koutras concluded that accumulations of coal 

dust which are merely black in color are not dangerous. 7 FMSHRC 

at 2104. 

The evidence in the instant case shows a minimal amount of 

coal dust accumulation. Inspector Potter saw dust over the 

inside of the phone. You could rub your fingers across the 

compartment and they would come up black (Tr. 242, 243). 

However, the potentially dangerous condition consisted of all of 

the facets involved here. These were the hole at the toggle 

switch, the coal dust between the terminals of the batteries Can 

ignition source) and the coal dust blowing in the 14 foot by 20 

foot tunnel (Tr. 245, 246) • 

More persuasive than Judge Koutras' decision is the 

Commission decision in Pittsburg and Midway Coal Mining Company 8 

FMSHRC 4 (1986). In this case the Commission was dealing with a 

related standard, 30, C.F.R. § 77.202 ~/ 

Specifically, the Commission stated as follows: 

P & M argues on review that the judge erred in finding 

a violation because the judge did not require the Secretary 

to establish the existence of a present, actual ignition 

source in the vicinity of the accumulation at the time of 

the inspection. Rather, the judge concluded that under 

section 77.202, if a 11 potential" ignition source is present 

in the vicinity of an accumulation, the accumulation is 

dangerous within the meaning of the standard. 6 FMSHRC at 

13490 We agree with the judge 1 s conclusiono It is well 

established that the Mine Act and the standards promulgated 

thereunder are to be interpreted to ensureu insofar as 

possibleu safe and healthful working conditions for miners. 

Furtheru the Commission observed that: 

Section 77a202u like most coal mine safety standardsu 

is aimed at the elimination of potential dangers before 

they become present dangers. 

8 FMSHRC at 60 

In sum, in the instant scenario, the telephone was "potentially dangerous". 

4/ The standard reads: Coal dust in the air of, or in or on the 

surfaces of, structures, enclosures, or other facilities shall 

not be allowed to exist or accumulate in dangerous amounts. 

1918 
P & M also contends the telephone was permissible for this 

location and therefore complied with 30 C.F.R. § 23.2(d). ~/ 

On this issue the credible evidence shows that the telephone 

was marked as "approved for methane only" (Tr. 28, 29). Further, 

according to MSHA's electrical engineer, Dinkel, methane gas is 

not a conductor but coal dust can be (Tr. 210, 211, 217). Even 

though permissible for methane the presence of coal dust would 

still present a potentially hazardous situation (Tr. 218, 219). 

In addition, to the above factors, the telephone was obviously 

not permissible in view of the hole at the toggle switch. 

P & M further argues that it was impossible for Inspector 

Potter to see a hole at the toggle switch. He did not have a 

flashlight and the location of the telephone and its position in 

the tunnel preclude such an observation. 

I disagree. Witness Davey indicated there was light in the 

tunnel behind the telephone as well as directly overhead (Tr. 89, 

90). Inspector Potter indicated there were lights on the 

ceiling, sides and behind (Tr. 39, 40). When the telephone door 

was opened you could see through the hole at the toggle switch 

(Tr. 39). 

For the foregoing reasons Citation 2831956 should be 

affirmed. 

Civil Penalties 

The statutory criteria to assess civil penalties is 

contained in Section llO(i) of the Act. 

The evidence establishes that P & M has a minimal adverse 

prior historyo The company has three violations for the two year 

period ending May 5, 1986 (EXo Pl)o The record fails to disclose 

the size of the operator. The record does not present any information concerning the operator's financial condition. Thereforev in the absence of any facts to the contraryu I conclude 

that the payment of penalties will not cause the operator to 

discontinue its businesso Buffalo Mining COou l IBMA 226 (1973) 

and Associated Drilling, Inc.u 3 IBMA 164 (1974). The operator 

was negligent as to the ungrounded space heater inasmuch as this 

condition was open and obviouso The operator also was negligent 

as to the telephone equipmento Periodic checks, such as are required by§ 77.502, would have disclosed these defects. The 

gravity of each violation was high. A miner could have been 

~/ The cited definition reads: 

(d) "Permissible" as used in this part means completely 

assembled and conforming in every respect with the 

design formally approved by MSHA under this part. (Approvals under this part are given only to equipment for 

use in gassy and dusty mines.) 

1919 
burned or electrocuted by the electrica~ space heater. The 

defective telephone could have caused an explosion. The operator 

is to be credited for statutory good faith since the violative 

conditions were abated. 

On balance, I deem that a civil penalty of $150 is proper 

for each citation affirmed herein. 

Briefs 

The parties 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 Commission has jurisdiction to decide this case. 

2o Respondent did not violate 30 C.F.R. § 75.603 and 

Citation No. 2831954 should be vacated. 

3. Respondent violated 30 C.F.R. § 77.701 and Citation No. 

2831955 should be affirmed. 

4. Respondent violated 30 C.F.R. § 77.502 and Citation No. 

2831956 should be affirmed" 

Based on the foregoing findings of fact and conclusions of 

law I enter the followingg 

ORDER 

lo Citation Noo 2831954 and all penalties therefor are 

vacatedo 

2" Citation Noc 2831955 is affirmed and a civil penalty of 

$150 is assessedo 

3" Citation No" 2831956 is affirmed and a penalty of $150 

is assessedo 

Law Judge 

1920 
Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 CCertif ied Mail) 

John A. Bachmann, Esq., The Pittsburg & Midway Coal Company, 1720 

South Bellaire Street, Denver, CO 80222 (Certified Mail) 

/bls 

1921 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 6 1987 

SECRE'rARY' OF LABOR, DISCRIMINA'rION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA)' Docket No. SE 87-85-DM 

ON BEHALF OF 

BRIAN S. OUSLEY MD 86-18 

Complainant 

v. C.P.L. Plant 

METRIC CONSTRUCTORS, INC., 

Respondent 

DECISION APPROVING SETTLEMENT 

The Parties, on Nov~nber 2, 1987, filed a Motion for 

Decision and Order Approving Settlement which was signed by 

Complainant and the Attorney for Respondent. A Settlement 

Agre5~ent signed by the Parties was attached to the Motion. 

I find that the terms of the settlement agreement are just 

to both Parties. 

Accordingly v the Motion Approving Settlement is GRAN'rEo, and 

it ORDERED that the settlement agreement of October 15u 1987, 

is APPROVED; and the Parties shall be bound by all its terms" 

Distribution~ 

(~~ 

,/fY I /) . 

~vrarn Weisberger 

Administrative Law Judge 

Frederick W. Moncrief, Esq., Office of the Solicitor, U. S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Mary A. Lau, Esq., Lau, Lane, Pieper & Asti, P.A., P. 0. Box 838, 

Tampa, FL 33601 (Certified Mail) 

dcp 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

H. D. ENTERPRISES, LTD., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFE·rY AND HEA.LTH 

ADMINISTRATION CMSHA), 

Respondent 

NOV 6 1987 

. . 

: 

. . 

. . 

DECISION 

CONTEST PROCEEDING 

DocRet No. WEVA 87-183-R 

Order No. 2909306; 4/15/87 

Birchfield No. 1 Mine 

Appearances: William o~ Stover, Esq., Beckley, West Virginia, 

for Contestant; 

Jack E. Strausman, Esq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia, for 

Respondent. 

Before: Judge Melick 

This case is before me upon the application for review filed 

by n. D. Enterprises, Ltd. (H.D.) pursuant to section 107Ce>Cl) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et. seq., the "Act" to challenge an "imminent danger" 

withdrawal order issued by the Secretary of Labor pursuant to 

section 107(a) of the Act.~/ 

~/Section 107(a) of the Act provides in part as follows: 

Ltg 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 througho'ut 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 represantative 

of the secretary determines that such imminent danger and 

the conditions or practices which caused such imminent 

danger no longer exist. 

1923 
The order at bar, No. 2909306, issued April 15, 1987, 

charges as follows: 

The boom and masts of the Grove TMS475A crane was [sic] 

being swung back and forth underneath the energized 

high voltage power lines in order to lift cement to the 

top of the Fan building. It was raining and the boom 

could easily contact the power lines. When measured 

with range finder the masts was [sic] 13 feet ·below the 

line. Men were also working on top of this building 

and contacting crane to empty cement. 

Section 3Cj) 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 limited issue before me in this case is 

whether such a condition or practice existed at the time the 

order at bar was drafted.2/ 

According to· Ernest Thompson, a coal mine inspector for the 

Federal Mine Safety and Health Administration (MSHA), H. D. 

Enterprises, a contractor at the BirGhfield No. 1 Mine, was in 

the process on pouring cement on the roof of a new fan building 

on the morning of April 15, 1987. Thompson observed that a crane 

was swinging a cement bucket beneath and at "close clearance" to 

what he presumed were high voltage powerlines. The crane itself 

was positioned under the powerlines and three workmen were 

standing on a metal decking onto which the concrete was being 

poured. The workmen would contact the cement bucket lever as 

they unloaded the bucket. The metal bucket was, in turn attached 

to metal ropes suspended from the boom of the crane. 

Thompson testified that he did not know the distance between 

the boom ~nd the powerlines at the time he issued the order but 

subsequently measured the distance and found that the boom came 

no closer than 13 feet to the closest powerline. Thompson also 

acknowledged that he did not know the voltage in the powerlines 

at the time he issued the order but presumed that there was 

fie voltage to cause electrocution to the workers on the 

;::-oaf should the boom contact the powerlines while someone was 

touching the lever on the cement bucket. Thompson also believed 

that an electrical ~arc" could occur so that electric current 

~/While the ordec was terminated shortly after its issuance, 

questions regarding the validity of that order are not moot. See 

Zeigler Coal Co., l IBMA 71 (1971). 

1924 
sufficient to cause electrocution could jump 8 to 10 feet through 

the air. 

Wayne Milan, a graduate electrical engineer and MSHA 

electrical inspector, testified however that the lowest in height 

of the series of powerlines at issue was a low voltage ground 

wire transmitting no more than 40 volts and which could not cause 

electrocution if contacted. The MSHA expert also opined that 

electrical arcing could not occur over A distance of more than a 

few inches. In view of Milan's qualifications I find his 

testimony to be entitled to significant weight. 

Considering Milan's testimony along with the uncontested 

evidence that the distance between the lower low-voltage ground 

wire and the high voltage wires was four feet, it is apparent 

that in reality the hazard about which Inspector Thompson was 

concerned i.e. the crane boom contacting the high voltage lines 

and electrocQting the workmen, was not as imminent as first 

thought. The closest distance between the boom and the high 

voltage lines was a'ctually some 17 feet and the applicable 

regulatory standard (30 C.F.R. § 77.807.2) permits that distance 

to be as little as 10 feet. It is also apparent that the 

inspector was operating under the erroneous belief that 

electrical arcing could occur over a distance of 8 to 10 feet. 

The credible testimony of MSHA's electrical expert was that such 

arcing can occur over a distance of only a few inches. With the 

benefit of this additional information, which was not known to 

Inspector Thompson when he issued the order, I cannot find, that 

the Secretary has met his burden of proof that an "imminent 

danger" did in fact exist. 

I also note that in abating the order; the inspectoc 

permitted the crane to continue operating in the same location 

which he had just found to be iaimminently dangerous" (See 

Government Exhibit 2). This is confirmed by the testimony of 

crane operator Clinton Stover. The evidance also shows that 

during this stage of abatement Inspector Thompson was himself 

standing atop the metal roof of the fan building while the crane 

was operating in the noted manner. This evidence is not 

consistent with an ;u imminent danger'g. 

1925 
ORDER 

Order No. 2909306 is hereby VACATED. 

Distribution: 

Jack E. Strausman, Esq., Office of th Solicitor, U. s. 

Department of Labor, Room 516, 4015 Wilson Blvd., Arlington, VA 

22203 (Certified Mail) 

William D. Stover, Esq., 41 Eagles Road, Beckley, WV 26801 

(Certified Mail) 

npt 

1926 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMAJ\ISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE "'00 

DENVER, COLORADO 80204 NOV 6 1987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OWL ROCK PRODUCTS COMPANY, 

Respondent 

Before: Judge Morris 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-124-M 

A.C. No. 04-03821-05506 

.Azusa Plant 

The Secretary of Labor .on behalf of the Mine Safety and 

Health Administration, charges respondent with violating 30 C.F.R. 

§ 56.9087, a safety regulation promulgated under the Federal Mine 

Safety and Health Act, 30 u.s.c. § 801, et seq., (the Act). 

The parties waived their right to a hearing and submitted the 

case for a decision on stipulated facts. 

Issues 

The issues are whether respondent violated the regulation, if 

sov what penalty is appropriate. 

Stipulation 

The parties stipulated as follows~ 

lo Respondent is subject to the Federal Mine Safety and Health 

Act of 1977 (hereinafter called the Act) and the Federal Mine Safety 

& Health Review Commission (FMSHRC) has jurisdiction over the subject 

matter of this action and over the partieso 

2o A citation was issued to Respondent alleging a violation of 

30 CoF.R. § 56.9087 in that a number 8247 service repair truck, Ca 

one-ton Ford pickup) v which had a partially obstructed rear view was 

operated without an audible reverse signal alarm on the day of the 

inspection" A proposed civil money penalty of $56.00 was assessed 

and timely contested. 

1927 
3. The standard allegedly violated, 30 C.F.R. § 56.9087 provides as follows: 

§ 56.9087 - Audible warning devices and back-up alarms. 

Heavy duty mobile equipment shall be provided with audible 

warning devices. When the operator of such equipment has 

an obstructed view to the rear, the equipment shall have 

either an automatic reverse signal alarm which is audible 

above the surrounding noise level or an observer to signal 

when it is safe to back up. 

4. The payment of $56.00 civil money penalty will not affect 

respondent's ability to stay in business. 

5. The size of respondent,'s company was 233,367 production tons 

or hours worked per year at the time of the citation. 

6. The size of respondent's mine was 29,526 production tons or 

hours worked per year at the time of the citation. 

1o In the 24 months preceding the issuance of the instant 

citation the total number of assessed violations against respondent 

is one. 

8. Respondent abated the instant citation by installing an 

electric back-up alarm on the truck. 

9o The truck in issue which is equipped with extended side 

mirrors on both sidesv is a number 8247v Ford one-ton pickup trucko 

10. Respondent uses this t~uck as a service repair vehicle. As 

such it loads and carries service equipment where needed throughout 

the mine. The majority of the time it is parked by the mechanics' 

shopo 

11. The vehicle is not used for loading, hauling or dumping 

activitieso 

120 The driversi tools are carried in the bed of the pickup. 

The bed is in the back. The driver can observe hazards to the rear 

prior to moving the pickup, when he replaces the tools, after completing whatever job he was performing. 

1928 
13. The judge may consider MSHA's policy memorandum (Exhibit Rl) 

in ruling on respondent's position. 

14. The Mesa Health and Safety report, Exhibit P2, may be considered by the judge concerning the issue of gravity if a violation 

is established. 

Discussion 

The issue in this case focuses on whether a one-ton Ford pickup 

truck qualifies as heavy-duty mobile equipment within the meaning of 

30 C.F.R. § 56.9087. 

I conclude it does. In King Knob Coal Company, Inc., 3 FMSHRC 

1417 (1981) the Commission construed a similar regulation, 30 C.F.R. 

§ 77.410. l; In that case the Commission ruled that ["t]ruck is a 

generic term and, of course, pickups are a familiar type of light 

truck." Further, the Commission observed that 

"the obvious ·purpose of §77. 410 is to protect 

miners from vehicles of various size moving in reverse. 

The standard is premised on the general recognition 

that a driver's rear view is ordinarily not as good, 

and hence as safe, as the forward view. Even if their 

role at a mine is primarily auxiliary, three-quarter 

ton pickups are nevertheless medium-sized vehicles 

whose relative speed compared with heavier vehicles 

constitutes a hazard in the busy mine setting." 

!/ The standard reads: 

Mobile equipmentf automatic warning deviceso 

Mobile equipmentf such as trucksu forkliftsu front-end 

loaders, tractors and graders, shall be equipped with 

an adequate automatic warning device which shall give 

an audible alarm when such equipment is put in reversec 

1929 
Respondent argues that MSHA's policy memorandum excludes the 

necessity of compliance. The policy memorandum provides as follows: 

§ 12,258 MSHA Policy Memorandum Explains 

Mobile Equipment Reverse Alarm 

Requirements for Metal and NonMetal Mines 

Mobile equipment engaged in "loading, hauling 

and dumping" at surface mines or surface areas of underground mines must have either back-up alarms or signalmen to comply with 55/56/57.9-87 if rear view is obstructed, according to the March 26, 1981, MSHA Policy 

Memorandum No. 81-3 MM. Text is as follows: 

Subject: Program Directive: Citation of Standard 

55/56/57.9-87, Audible Reverse Alarms 

This document provides guidance for the uniform 

application of standard 55/56/57.9-87 and reflects 

recent Administrative Law Judge decisions which relate 

to the subject matter. 

The standard is applicable only to surf ace mines 

and surface operations of underground mines. The heavy 

duty mobile equipment addressed by the standard must be 

engaged in "loading, hauling, dumping" activites and 

must present an obstructed view to the rear. 

(Exhibit Rl) 

In King Knob the Commission noted that MSHA 1 s policy is not 

nding on the Commissionp 3 FMSHRC at 1420 

Respondent's further argument is that the pickup was not engaged 

in any U!loading, hauling or dumping." Particularly, respondent relies on the scope-note containing 30 C.F.R~ § 56.9087. Specifically/! 

the scope-note reads, 11 Subpart H - - Loading I! Hauling and Dumping o 11 

As a general rule of statutory construction a scope-note does 

not prevail over the text of a regulationo 

Finally, respondent argues that the truck driver can ouobserve" 

hazards to the rear prior to moving the pickup when he replaces the 

tools after completing whatever job he was performing. 

1930 
Respondent's argument on this issue arises from paragraph 12 

of the stipulation. However, observations by the truck driver prior 

to moving the truck do not assist him when he is actually moving the 

vehicle to the rear. It is at that point that his vehicle must have 

an unobstructed view to the rear or a backup alarm. 

For the foregoing reasons, Citation No. 2671370 should be 

affirmed. 

Civil Penalty 

The statutory authority to assess a civil penalty is contained 

in Section llO(i) of the Act. 

The stipulation of the parties addresses most of the statutory 

criteria. However, the issues of negligence, gravity and abatement 

should be considered. 

The operator's negligence is minimal since it relied on MSHA's 

policy memorandum in determining potential liability. The gravity 

is high. Exhibit P2 focuses on a MESA investigation of a fatality 

involving the failure to have an audible backup alarm on an International "Cargo-Star" Model 1950 maintenance truck. The operator is 

to be credited with statutory good faith in promptly abating the 

violative condition. 

Considering all of the statutory criteria, I conclude that a 

civil penalty of $25 is appropriate. 

conclusions of Law 

Based on the entire record and the stipulation of the parties 

t.he following conclusions of law are entered: 

lo The Commission has jurisdiction to decide this caseo 

2o Respondent violated 30 C.F.R. § 56.9087 and Citation No. 

2671370 should be aff irmedo 

Based on the stipulation of the parties and the conclusions of 

law I enter the following: 

1931 
ORDER 

Citation No. 2671370 is affirmed and a civil penalty of $25 is 

assessed. 

Law Judge 

Distribution: 

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

of Labor, 3247 Federal Building, 300 North Los Angeles Street, 

Los Angeles, C~ 90012 (Certified Mail) 

Mro David Lindquistp Chief Safety Engineerv Owl Rock Products 

Company" 5435 Peck Roadv PoOo Box 330v Arcadiav CA 91006 (Certified 

Mail) 

/ot 

1932 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 NOV 101987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 86-262 

A. C. No. 36-02405-03501 B70 

v. Greenwich No. 1 Mine 

OTIS ELEVATOR COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

James H. Swain, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, fqr Petitioner; 

Ga~y L. Melampy, Esq., Reed, Smith, Shaw & Mcclay, 

Washington, DC, for Respondent. 

Judge Maurer 

STATEMENT OF THE CASE 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to § 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, 

et seq., (the "Act") for an alleged violation of the regulatory 

standard found at 30 C.F.R. § 75.1725(a). l:.f 

The issues before me are the respondent 1 s status as an 

"operator" under the Act, the alleged vagueness of the cited 

standard, whether the respondent, if properly charged as an 

operator in this instance with violating a valid regulation, 

violated that regulation as alleged, and, if so, whether that 

violation was of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety 

or health hazard, i.e., whether the violation was "significant 

and substantial." If a violation is found, it will also be 

necessary to determine the appropriate civil penalty to be 

assessed in accordance with section llO(i) of the Act. 

The case was heard in Pittsburgh, Pennsylvania, on 

March 31, 1987. The parties ~ave filed pq_st-hearing briefs 

and proposed findings and conclusions, and they have been 

considered by me in the course of this decision. 

1/ § 75.1725{a) Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from 

service immediately. 

1933 
Section 104(a) "S&S" Citation No. 2689913, issued on 

March 3, 1986, cites a violation of 30 C.F.R. § 75.1725(a) 

and the cited condition or practice is described as follows: 

Gary Belks and John Namestrik employees of the 

Otis Elevator Co. installed a govenor (sic) 

rope on the North Portal Elevator that created 

a hazard to the employees at this.mine because 

this govenor (sic) rope was not installed properly. 

The smelter socket termination and Crosby Clamp 

termination were not properly made because the basket was not poured with smelter to the top of the 

small end of this basket and holes in the smelter 

existed on the wide end of this basket. The Crosby 

Clamp termination was made with the (2) 1/2" 

saddles on the dead end of this wire rope and 

there should be (3) three Crosby Clamps used on 

this 1/2" wire rope termination. 

RESPONDENT'S STATUS AS OPERATOR 

All during 1986 the Otis Elevator Company (Otis) had a 

contract with the Pennsylvania Mines Corporation (PMC) to 

furnish and provide supervision, labor, equipment, tools, 

materials and spare parts to inspect and maintain two elevators, 

including the North Portal Elevator, at PMC's Greenwich No. 1 

Mine. This maintenance and service contract provided that Otis 

would maintain the elevator equipment in safe operating condition and more specifically that Otis would regularly and systematically examine, adjust, lubricate, repair or replace 

elevator parts, as required. Under the terms of this contract, 

Otis was further obliged to examine periodically all safety 

devices and governors and make periodic no load and full load 

safety tests. As a practical matter, this amounted to Otis 

conducting weekly inspections of the elevators, performing bimonthly safety tests and responding to trouble calls and repairing the elevators on an as-required basis. In consideration for the performance of this service, Otis received 

$2,600.60 per month for the North Portal Elevator and $2,646.64 

per month for the other elevator at the Greenwich No. 1 Mine. 

Interestingly, an attachment to this contract, signed 

for Otis by one Carl M. Dick as Branch Manager, arguably 

registers Otis as an independent contractor, including providing an address for service of MSHA citations. 

The Act contains a rather broad definition of "operator" 

at section 3(d): 

1934 
For the purpose of this Act, the term--

* * * 

(d) "operator" means any owner, lessee, or other 

person who operates, controls, or supervises a 

coal or other mine or any independent contractor 

performing services or construction at such mine 

(emphasis added) . 

Against the background that Otis is an elevator service 

company whose employees, pursuant to a service contract between Otis and PMC performed inspections and conducted safety 

tests on a regular basis on the two elevators at the Greenwich No. 1 Mine as well as performing more extensive maintenance and repair work on those elevators on an as-needed basis, 

it seems patently clear to me that the language of section 3(d) 

of the Act intended to include them within the definition of 

"operator." 

Otis, however, contends that, on average, their employees 

are only in the mine once a week, for an average visit of 1.5 

hours. The argument being that this is a minimal presence 

which is insufficient to bring them under the Mine Act. I 

note, however, that the very citation at bar was issued as a 

result of elevator repair work done by their employees on one 

of those visits. Otis also alleges and I am satisfied that 

they do not perform construction work at the mine nor control 

any area of the mine. Contrary to their assertion, however, 

that they do not maintain a continuing presence at the mine, 

I disagree and find that in the performance of their contractual obligations to PMC at Greenwich No. lv they did indeed have a continuing presence at the mine for all of 1986. 

For legal authorityv Otis cites National Industrial Sand 

Association v. Marshall, 601 F.2d 689 (3rd Cir. 1979), and 

Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985). 

Both cases are distinguishableo In National Industrial 

Sand Association, the issue the court was faced with was substantially differento The issue before the Third Circuit was 

whether the Secretary was statutorily authorizeo to include 

fewer than all independent contractors as operators for purposes of the training regulationso The Court, however, at 

the beginning of analysis did set fort~ some general 

guidance: 

'Operator' is defined in the Mine Act as 'any 

owner, lessee, or other person who operates, controls or supervises a coal or other mine or any 

independent contractor performing services or 

1935 
construction at such mine. 1 As this definition 

indicates, some, if not all, independent contractors are to be regarded as operators. The reference 

made in the statute only to independent contractors 

who 'perform[] services or construction' may be understood as indicating, however, that not all independent 

contractors are to be considered operators. There 

may be a point, at least, at which an independent 

contractor's contact with a mine rs so infrequent or 

de minimis that it would be difficult to conclude 

that services were being performed. 601 F.2d at 

701 (footnote omitted). 

Old Dominion, supra, while an enforcement proceeding 

similar to the instant case, presents a very different 

situation factually. In Old Dominion, the utility's contacts 

with the mine were truly de minimis. 

The sole revenue derived by Old Dominion from its 

relationship with Westmoreland is for the sale of 

electric power. Old Dominion does not perform any 

maintenance at the substation, or of the transmission or distribution lines leading to and from the 

substation. Old Dominion's employees install equipment to measure voltage and amperage for its meter, 

maintain the meter and read it approximately once 

per month for purposes of billing. 772 F.2d at 93. 

In holding that the MSHA regulations do not apply and 

were not intended to apply to electric utilities whose sole 

relationship to the mine is the sale of electricity, the Court 

stated that~ 

Old Dominion 1 s only contact with the mine is the 

inspection, maintenance, and monthly reading of 

a meter for the purpose of sending a bill to a 

mine company for the sale of electricity. Petitioner1 s employees rarely go upon mine property 

and hardly, if ever, come into contact with the 

hazards of mining. 

* * * 

MSHA seeks to regulate those few moments every 

month when electric utility wor~ers rep.d or maintain meters on mine property. 

* * * 

1936 
Plainly, Congress intended to exclude electric 

utilities, such as Old Dominion, whose only 

presence on the site is to read the meter once a 

month and to provide occasional equipment servicing. 

772 F.2d at 96-97. 

In stark contrast to the Old Dominion factual situation, 

I find as a fact that Otis's contractual obligations and performance thereof constituted a substantial, as opposed to a 

de minimis continuing presence at the Greenwich No .. 1 Mine. 

Further, although the elevator is not used to transport coal 

and is not per se a part of the coal production or extraction 

process, I nonetheless find and conclude that because the North 

Portal elevator transports approximately 20% of the work force 

into and out of the mine on a daily basis and is additionally 

a designated escapeway, it is an essential ingredient involved 

in the coal extraction process. 

I also find and conclude that the party responsible for 

the cited condition and who was in fact in the best position 

to eliminate the hazard, if there was a hazard, and prevent it 

from recurring was none other than the Otis Elevator Company. 

Inspector Niehenke, in his discretion, exercised his judgment 

and cited Otis for the alleged violation as the operator responsible for the installation of the governor rope on the 

North Portal elevator. I concur in at least that portion of 

his decision. 

VAGUENESS OF THE CITED REGULATION 

Respondent Otis also asserts that 30 C.F.R. § 75.1725(a) 

is unconstitutionally vague because it does not establish any 

standards by which a person can determine what the regulation 

requires of them in order to comply with its terms" There is 

no doubt that the regulation is a very subjective standard 

which on its face simply requires that machinery and equipment 

"be maintained in safe operating condition." 

Broadness, however, is not necessarily a fatal defect 

in a safety standard" The Commission has previously held that 

many such standards must of neces~si ty be "simple and brief in 

order to be broadly adaptable to myriad circumstances." 

Kerr-McGee Corp.v 3 FMSHRC 2496 1 2497 (1981)" Furthermore, in 

a case involving this very same regulation, Alabama By-Products 

Corpo 1 4 FMSHRC 2128 (1982) / the Commission rejected the 

operator's contentions of unconstitutional vagueness and 

stated the following test: 

(I]n deciding whether machinery or equipment is 

in safe or unsafe operating condition, we conclude 

that the alleged violative condition is appropriately 

1937 
measured against the standard of whether a reasonably 

prudent person familiar with the factual circumstances 

surrounding the allegedly hazardous condition, including any facts peculiar to the mining industry, would 

recognize a hazard warranting corrective action within 

the purview of the applicable regulation. 4 FMSHRC at 

2129. 

Applying this test to the facts or this particular case, I 

specifically reject Otis' argument that this standqrd is so 

overbroad and/or vague so as to be unenforceable, and so will 

instead decide the fact of violation of the cited standard 

in this case on the merits. 

FACT OF VIOLATION-30 C.F.R. § 75.1725(a) 

MSHA electrical Inspector Leroy Niehenke testified as 

to his training and experience, and he confirmed that he had 

conducted an inspection of the North Portal elevator at the 

Greenwich No. 1 Min~ on February 27, 1986. As a result of 

this inspection, he felt that the governor rope should be 

replaced, and it subsequently was, by Otis Elevator Company 

personnel. 

On March 3, 1986, Inspector Niehenke returned to see to 

it that the governor rope had been replaced, and he determined 

that it had. He got on top of the elevator car and checked 

the suspension rope and governor rope terminations. He 

noticed that the newly babbitted socket termination on the 

governor rope attached to the safety linkage on the top of 

the elevator car had several holes in the babbitt material 

on the larger end of the basket termination. He testified 

further that the babbitt material was not adhering to the 

res that came through the socket and there was also no 

babbitt visible from the small end of the basket, which 

indicated to him that there was a void of babbitt material 

inside the basket, adversely affecting the efficiency of the 

termination. 

The governor is attached to the elevator car by a onehalf inch diameter steel governor rope attached at the top 

and bottom of the car. At the top of the car, t.he rope is 

attached by means of a babbitted socket termination. This 

socket is a tapered basket approximately 2 1/2 inches long 

with a small end and a larger end. The small end of the 

socket is provided with an opening that is slightly larger 

than one-half inch in diameter so that the 1/2-inch rope can 

pass through it. The socket termination is made by unravelling approximately five inches of the rope at one end to 

spread out the lays of the rope, turning them inward to form 

1938 
• 

a rosette, and pulling them into and towards the small end of 

the tapered socket. Once the rosette is pulled into the 

socket, a molten alloy of tin, copper and antimony ("babbitt") 

is poured into the socket. At the bottom of the car, the 

governor rope is attached to the car by means of U-bolts 

known as "Crosby clamps." 

Inspector Niehenke found fault with this lower termination 

of the governor rope also because he felt there should be three 

(3) Crosby clamps on the termination vice the two .(2) he found 

there and they were installed with the U-bolts on the live-end 

of the rope as opposed to the dead-end as he stated they are 

supposed to be installed. The "live-end" of the rope being the 

end of the rope that is attached to the equipment as opposed to 

the "dead-end" where the rope is merely turned around and cut 

off. There is nothing attached to the "dead-end." The problem 

being, according to the inspector, that the U-bolts will crush 

these wires and the termination can fail. Even the Otis expert 

testi ed that the U-bolts ,should be placed on the dead-end of 

the rope to prevent,· kinking the live-end, damaging the rope 

lays and losing strength in the rope. 

The basic facts concerning the top and bottom terminations 

as testified to by Inspector Niehenke have not been rebutted in 

any manner by Otis. The more difficult issue is what do those 

now established facts mean vis-a-vis the safety of the elevator 

or any component of it. In order to establish the regulatory 

violation cited herein, the Secretary bears the burden of proof 

that the equipment, the elevator or some part of it, was rendered "unsafe" by Otis' installation of the governor rope. 

The elevator in question is supported by nine suspension 

ropes during normal operationv any one of which is capable of 

supporting the entire weight of the car. The governor rope 

performs no hoisting or suspension function. It is attached 

at the top of the car to a lever which activates the mechanical 

safeties for the elevator if the car exceeds 125% of its rated 

speed. The governor senses the speed of the elevator through 

the governor rope. As the elevator moves up and down, the 

governor rope runs over two sheave wheels located at the top 

and bottom of the elevator shaft. This movement of the rope 

causes the wheels to turn and the f lyballs on the governor to 

spin. As the elevator speed increases, the centrifugal force 

on the flyballs causes them to rise, If and when the elevator 

speed would exceed 125% of its rated speed, it would cause the 

flyballs to se to the point where two m~~al jaws in the 

governor mechanism would release and clamp down on the governor 

rope, causing the rope to pull up the governor rope lever 

situated on top of the elevator car, activate the safeties, 

and stop the car. 

1939 
During normal operations, the load on the lower termination (the Crosby clamps} is the weight of the lower sheave 

wheel and the weight of the rope. In the event the safeties 

are activated in an overspeed condition, there is no load on 

the rope termination on the bottom of the car because the tension on the governor rope at that time would be exerted between the governor jaws and the safety lever on the top of the 

car (the socket termination) . The load exerted on the socket 

termination on the top of the car to set the mechanical 

safeties is on the order of 250-300 pounds of pull. (force}. 

That is the force required to pull up the governor rope lever 

on top of the car, which in turn activates a spring which applies the safeties and stops the car. The maximum possible 

tension on the socket termination would be approximately 1000 

pounds, as the governor jaws are designed to release the rope 

when the level reaches 1000 pounds, by which time the safeties 

should have been activated. I find that if it were possible 

for either end termination to fail under any load it would 

ever be subjected to in no~mal or emergency conditions, I 

would find that condition to be an "unsafe" one, and in 

violation of 30 c:F.R. § 75.1725(a). 

Inspector Niehenke uses the American National Standard for 

Wire Rope for Mines as a guideline for inspecting mine elevators. 

More specifically, in this case, he used portions of these ANSI 

standards to check and ultimately reject as unsatisfactory the 

two terminations made on the governor rope. Neither of the 

terminations were done in accordance with the ANSI standards, 

as the unrebutted testimony of the inspector clearly establishes. 

There are no objective mine safety regulations establishing 

standards for elevator governor rope terminations Neither are 

the ANSI standards incorporated by reference therein. Thereforef 

non-compliance with the ANSI standards does not in and of itself 

establish either a violation of the regulations or a finding 

that an unsafe condition exists on a piece of machinery or 

equipment. However, the ANSI standards do provide some guidance 

for the inspector and myself as to the proper configuration of 

rope terminations. 

The ultimate issue in this case isv however, did those 

terminations render the governor rope assembly unsafe. The 

fact that the terminations did not comply with the ANSI standards is but a single piece of the equation. 

Two individuals testified as expert witnesses in this case. 

Mr. Ronald Gossard, an MSHA engineer, testified for the Secretary. In response to a hypothetical question framed based on 

the facts in evidence, he opined that the elevator as it existed 

at the time the citation was written would operate safely until 

1940 
such time as the governor was needed to apply the safeties. 

At that point, the terminations, especially the one at the top 

of the car, could fail. He testified that because the small 

end of the socket termination basket was not filled with babbitt material and since that is the end of the rope termination 

that faces upward in the shaft, moisture could collect inside 

the termination and quickly corrode the rope at that point. 

He further testified that the way the socket termination was 

described in the record, if and when the elevator car ever went 

in to an over speed condition and the governor jaws c.lamped down 

on the governor rope, the shock load on the poorly made termination could cause it to fail in service. With regard to 

the lower termination made with Crosby clamps, his concern was 

that if the clamps came loose prior to an overspeed operation 

of the governor, you would have a loose rope dangling in the 

hoistway which could become entangled with the suspension 

ropes or the elevator counterweight. 

Mr. James Beattie, a maintenance supervisor for Otis, 

testified as an expe~t- for the respondent. He stated unequivocally that it is impossible to pull a rope such as the one 

in question that has been "rosetted" back through a socket 

termination like the one at bar, even if that termination 

has no babbitt poured into it at all. He stated that when 

you turn the lays of the rope back and make the rosette, you 

increase the diameter of the rope. Thereafter, if you pull 

on that rope to attempt to force it back through the basket, 

all you accomplish is to wedge it tighter into the socket. 

Once it tightens up in the socket, that is all the further 

it will move. He further opined that before you would pull 

the rope back through the socketp you would either first 

break the rope or the socket. 

Mr. backed up his opinion with a test which essentially confirmed his opinion. The test was not, however 1 

performed on the installation that Inspector Niehenke cited 

as unsafe. The test was performed in controlled conditions 

at a machine shop in Pittsburgh. He made up a 1/2-inch wire 

rope installation with a socket termination on one end and a 

s le Crosby clamp on the other end. At the socket end, he 

unraveled and looped the wire lays into a rosette and pulled 

it handtight into the socket. No babbitt was poured into the 

socket to secure the rope. On the other end, a single Crosby 

clamp, correctly installed, however, was used to secure the 

rope. He then imposed a load of approximately 3200 pounds on 

this assembly, with no slippage once the ro~ette fully 

tightened up inside the socket termination. There was no 

slippage noted whatsoever at the Crosby clamp end. From this 

test he concluded that an unbabbitted socket termination 

would sufficiently withstand the load required to activate 

the governor rope lever and therefore the safeties on the 

elevator car. 

1941 
On cross-examination, however, Mr. Beattie allowed that 

to do a quality job on the socket termination you would have 

to use babbitt in the socket termination and you should 

fill it to the top of the shackle and be able to see babbitt in 

the small end of the basket. He also conceded that if the 

job was as Inspector Niehenke testified, and that is unrebutted, 

he would recommend that it be changed out. On redirectexamination, he reiterated that even so, it was not unsafe. 

Weighing the totality of the evidence in this record, I 

find that the elevator governor assembly and therefore the 

elevator, should the governor ever have been needed at some 

future time, were in an unsafe condition within the meaning of 

30 C.F.R. § 75.1725(a). In so holding, I find that the condition of the wire rope terminations at both the babbitted and 

clamped ends of the governor rope were as Inspector Niehenke 

described them. This factual evidence was unrebutted by Otis. 

I credit the expert testimony of Mr. Gossard concerning the 

hazards he associated with the condition as described, particularly the likelihood of corrosive damage to the rope because 

of the poorly made .socket termination in an area where acidic 

moisture could quickly corrode the rope, and his opinion that 

the emergency operation of the governor would introduce an 

initial shock load on the babbitted termination that could 

fail a poorly made one. These points were unrebutted by 

Otis as well. Also persuasive is the fact that although 

respondent's expert did not think the situation as described 

in the record was "unsafe" he nevertheless would recommend 

that it be changed out. 

The respondent's case consisted of the expert testimony of 

Mr" Beattie and video-taped evidence of a stress test performed 

on a wire rope with an unbabbitted socket termination on one 

end and a single Crosby clamp termination on the other. This 

test demonstrated that the assembly as configured should withstand a force on the order of ten times as great as the force 

necessary to pull the lever that activates the safeties. However, neither Mr. Beattie or the stress test dealt with the 

corrosion issue or the effect that the imposition of an 

initial shock load would have on the poorly babbitted termination. I agree with the Secretary that the stress pull test 

performed under what might be considered laboratory or "ideal" 

conditions is an entirely different situation than what 

actually sts in the mine given the environmental conditions that the equipment must operate in there. ,, 

The Commission has stated in Mathies Coal Co., 6 FMSHRC 1 

(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 

1942 
reasonable likelihood, result in an injury of a reasonably 

serious nature. The inspector and the Secretary's expert 

were of the opinion that the hazard contributed to here was 

ultimately the failure of the elevator governor assembly to 

halt an overspeeding car because of the failure of one or 

the other of the governor rope terminations. Of particular 

concern was the babbitted socket termination on top of the 

car. Had the governor failed to halt the car in such an 

emergency, the inspector would expect fatal injuries to the 

miners on board the elevator. I find the evidence.establishes 

that if the violative condition had been allowed to continue 

unabated, the defects found in the terminations by Inspector 

Niehenke combined with the corrosive environmental factors 

the equipment would be exposed to over time would indeed 

contribute to a hazard reasonably likely to result in injury 

and/or death should the elevator's governor assembly system 

be needed in an emergency to halt an overspeeding car. 

Therefore, I find the violation to be a "significant and 

substantial" one and serious .. 

Furthermore, the violation clearly resulted from the 

respondent's negligence since it was their employee who was 

directly responsible for the inadequate and as found herein, 

unsafe, installation of the governor rope. Considering all 

of the above and the rest of the statutory criteria enumerated 

in section llO(i) of the Act, including the respondent's good 

history of prior violations and good faith abatement of the 

violation herein, I find that an appropriate penalty for the 

violation is $750, as proposed. 

ORDER 

It is therefore ORDERED that Citation Noo 2689913 IS 

A?FIRMEDo It is further ORDERED that Respondent pay the sum 

of $750 within 30 days of the date of this decision as a 

civil penalty for the violation found hereino 

1 

I J .1 

Distribution: 

I ~.l/;f/(/J/ uA11,,~,{j-,/' I I ' l/ WVVVV'f" 

Roy Jf. • aurer 

Admin~ttative Law Judge 

James Ho Swain, Esq., Office of the Solicitor, u. S. Department 

of Labor, 3535 Market Sto, Philadelphia, PA 19104 (Certified 

Mail) 

Gary Lo Melampy, Esq., Reed, Smith, Shaw & Mcclay, Suite 900, 

1150 Connecticut Aveo, NW, Washington, DC 20036 (certified 

Mail} 

yh 1943 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 131987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE S~..FETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

HELDENFELS BROTHERS, INC., 

Respondent 

Docket No. CENT 87-39-M 

A.C. No. 41-00035-05503 

Crusher No. 9101 

DEFAULT DECISION 

Before: 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 $80 for four alleged violations of certain 

mandatory safety standards found in Part 56, Title 30, Code of 

Federal Regulationso The citations and proposed civil penalty 

assessments are as follows~ 

30 C.FoRo 

Citation No. Date Section Assessments 

2868074 12/04/86 56.6042 $ 20 

2868076 12/04/86 5609022 $ 20 

2868077 12/04/86 56.14007 $ 20 

2868078 12/04/86 56 .1800 (a) (b) $ 20 

On October 2, 1987, I issued an Order to Show Cause 

directing the respondent to state why it should not be held in 

default and a summary order entered in accordance with the 

applicable Commission rules because of its failure to file a 

timely answer in this case. The order directed the respondent 

to respond by October 17, 1987. On October 21, 1987, respondent's counsel contacted me by telephone, and after explaining 

the circumstances concerning the respondent's failure to file 

1944 
a timely response, counsel indicated that he was contemplating 

paying the proposed civil penalty assessments in full, or in 

the alternative, would attempt to settle the matter with the 

petitioner's counsel. Respondent's counsel was advised that he 

would have an additional week within which to decide how to 

proceed further, but that any decision in this regard should be 

made within that time frame, and that he was to communicate his 

decision to me in writing, with a written response to my showcause order. On November 9, 1987, petitioner's counsel advised 

me that the respondent has not further communicated with his 

office, and the respondent's counsel has not communicated with 

me, nor has he filed any written response to my show cause order. 

Discussion 

The applicable Commission Rules in this case provide as 

follows: 

29 C.F.R. § 2700.27 

§ 2700.27 Proposal for a penalty. 

(a) When to file. Within 45 days 

of receipt of a timely notice of contest 

of a notification of proposed assessment 

of penalty, the Secretary shall file a 

proposal for a penalty with the Commission. 

29 C.F.R. § 2700.28 

§ 2700.28 Answer. 

A party against whom a penalty is 

sought shall file and serve an answer 

within 30 days after service of a copy of 

the proposal on the party. An answer 

shall include a short and plain statement 

of the reasons why each of the violations 

cited in the proposal is contested?. 

including a statement as to whether a violation occurred and whether a hearing is 

requested. 

29 C.F.R. § 2700.63 

§ 2700.63 Summary disposition of proceedings. 

(a) Generally. When a party fails 

to comply with an order of a judge or these 

1945 
rules, an order to show cause shall be 

directed to the party before the entry of 

any order of default or dismissal. 

(b) Penalty proceedings. When the 

judge finds the respondent in default in a 

civil penalty proceeding, the judge shall 

shall also enter a summary order assessing 

the proposed penalties as final, and 

directing that such penalties be paid. 

The pleadings in this case reflect that the respondent was 

served with a copy of the petitioner's complaint proposing the 

assessment of civil penalties for the alleged violations in 

question on April 1, 1987. Respondent's answer was received by 

the petitioner on July 27, 1987. As a result of the untimely 

answer, petitioner filed a .motion for default judgment, and my 

show-cause order followed. 

The respondent has failed to respond in writing to my 

show-cause order, and its counsel has not further communicated 

with me in this matter. Under the circumstances, I conclude and 

find that the respondent is in default and has waived its right 

to be further heard in this matter. I see no reason why the 

petitioner's proposed civil penalty assessments should not be 

made the final order of the Commission, and the motion for 

default judgment IS GRANTED. 

ORDER 

Pursuant to Commission Rule 63p 29 C.F.R. § 2700.63v 

judgment by default is herewith entered in favor of the petitioner, and the respondent IS ORDERED to immediately pay to the 

petitioner the sum of $80, as the final civil penalty assessment 

for the violations in question. 

Distribution: 

;J/ A///~ -/~J14/fl 

Geo~g'r"A. ?f Kotltras 

/ I~ 

Administrative Law Judge 

Jack F. Ostrander, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 South Griffin Street, Suite SOl, Dallas, TX 75202 

(Certified Mail) 

John 0. Heldenfels, President, Heldenfels Brothers, Inc., and 

H. C. Heldenfels, Jr., Attorney-at-Law, P.O. Box 4957, 

Corpus Christi, TX 78469 (Certified Mail) 

/fb 

1946 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 131987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

JERRY RIFE 

Complainant 

Vn 

ADKINS COAL CORPORATION, 

Respondent 

DISCRIMINATION PROCEEDING 

Docke~ No. VA 87-29-D 

Sol. No. 87-29617 

No. l Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Melick 

This case is before me upon a Complaint of 

Discrimination filed by the Secretary of Labor on behalf of 

Jerry Rife. The parties including the individual Complainant 

have agreed to settle the case. 

WHEREFORE, the motion for approval of set are 

GRANTED, and this case dismissed. 

I i I ;\_/ 1 

! 

I • 

\_/~i'·'~ Gary Melick 

Administrat ve Law udge 

(703) 756-6161 \ 

l I \ \ f ' . 

Jonathan Kronheimv Esq., Office of th~; Solicitor, U.S. 

Department of Labor; 4015 Wilson Blvd~, Arlington, VA 

(Certified Mail) · 

J\i\ . I \ . 

Distribution~ 

22203 

Charlie R. Jessee, Esq., c. R. Jessee & Associates, P.C., 180 

East Main Street, Abingdon, VA 24210 (Certified Mail) 

npt 

1947 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 161987 

LEONARD W. MILLER, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

THE FLORENCE MINING CO., 

Respondent 

Docket No. PENN 87-183-D 

Florence No. 2 Mine 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On November 13, 1987, Complainant moved to withdraw 

his complaint because he has amicably resolved the matter 

with Respondent. , 

The complaint, filed under 105(c) (3) of the Act, alleges 

that Complainant received a verbal warning for not operating 

his shuttle car fast enough. The relief he sought was an 

apology from his foreman. 

I have considered the motion in the light of the purposes 

of section 105(c) and conclude that it should be approved. 

Accordingly, the motion to withdraw is GRANTED, and 

this proceeding is DISMISSED. 

Distribution: 

) , 

J ltl tzu· ~ /f I jh ck t,;, (,I_ j James A. Broderick 

Administrative Law Judge 

David Jo Tulowitzki, Esq., United Mine Workers of America, 

District No. 2 Legal Counsel, 521 West Horner Street, Ebensburg, 

PA 15931-0538 (Certified Mail) 

William M. Darr, Esq., The Florence Minin9 Co., P.O. Box 729, 

Indiana, PA 15701 (Certified Mail) 

slk 

1948 i 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 161987 

CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. WEVA 87-42 

A.C. No. 46-01453-03735 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Humphrey No. 7 Mine 

ORDER OF DISMISSAL 

Before: Judge Broderick 

The only citation remaining in this docket, 2703915, 

was transferred to Docket WEVA 87-42(B) and is included in 

a decision approving settlement and dismissing the proceeding, 

issued today. 

Therefore, this proceeding is DISMISSED. 

j "v'/vlLS /+t-:fi'cYf~ {c ~i_ James A. Broderick 

, Administrative Law Judge 

Distribution~ 

Susan M. Jordan, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

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

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

slk 

1949 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 161987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} , 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 87-42(B} 

A.c: No. 46-01453-03735 

Humphrey No. 7 Mine 

DECISION APPROVING SETTLEMENT 

AND DISMISSING PROCEEDING 

Before: Judge Broderick 

Two citations remain in this docket, 2703915 and 2713101. 

Citation 2713124, transferred to this docket from 

WEVA 87-42(A) by order of May 19, 1987, was actually a part 

of the settlement approved by order of May 20, 1987, in 

Docket WEVA 87-42(A). See letter from Michael Peelish, Esq., 

dated October 30, 1987, together with copies of the payments 

made for the approved settlement. Docket WEVA 87-42(A) is 

closed. 

The Secretary moved to withdraw this civil penalty 

petition with respect to citation 2713101 and to vacate the 

citationo The citation alleged a violation of 30 CoF,R. 

§ 50ol0 because Consol did not irrunediately contact MSHA 

upon the occurrence of an 11 accidento 11 The term accident is 

defined as an injury which has a reasonable potential to 

cause death. It was originally assumed that the injury 

involved here was a serious electrical shocko Further 

investigation? including hospital and medical reports and a 

written statement from the injured employee, disclosed that 

grease burns to his hands were the only injuries he sustained 

and that he did not suffer electrical shock. Therefore, the 

motion contends that the injury involved was not life 

threatening. Based on the representations in the motion, 

it is GRANTED" The penalty proceeding is r:ISMISSED as it 

relates to citation 2713101 and the citation is VACATED. 

Citation 2703915 alleges a violation of 30 C.F.R. 

§ 75.1003 because a trolley wire was not adequately guarded. 

The violation was originally assessed at $1000, and the parties 

1950 
propose to settle for $800. The motion states that the 

employee who was injured, a certified electrician, was 

directed to guard the wire before performing the work on 

the track, but he failed to· ,~o .so •. 1:i~his mitigates Consol's 

negligence. I have considered 'the' ·motion in the light of 

the criteria in section llO(i) of the Act, and conclude that 

it should be approved. 

Accordingly, the settlement agreement is APPROVED, 

and subject to the payment by Consol of the $800, .this 

proceeding is DISMISSED. 

Distribution: 

;:/ttA1t£5~ ~fl~1-tA1t/_ J' James A. Broderick 

Administrative Law Judge 

Susan M. Jordan, Esq., U.S. Department of Labor, Office of 

the Solicitor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

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

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

slk 

1951 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, &TH FLOOR 

WASHINGTON, D.C. 20006 

November 19, 1987 

NACCO MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA}, 

Intervenor 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

MACCO MINING COMPANY 9 

Respondent 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 9 

Intervenor 

CONTEST PROCEEDING 

Docket No. LAKE 85-87-R 

Citation No. 2330657; 6/5/85 

Modified to 

Citation No. 2330657-02; 6/24/85 

Powhatan No. 6 Mine 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 86-2 

A. C. No. 33-01159-03668 

Powhatan No. 6 Mine 

DECISION 

Appearances: Thomas C. Means, Esq., Crowell & Moring, Washington, D. C. for Contestant/Respondent; Patrick M. Zohn, Esq., Office of the Solicitor, 

U. S. Department of Labor, Cleveland, Ohio for 

Respondent/Petitioner; 

Thomas M. Myers, Esq.~ United Mine Workers of 

America, Shadyside, Ohio for Intervenor. 

1952 
Before: Judge Merlin 

This case is before me pursuant to the Commission's decision 

and order of remand dated September 30, 1987. 9 FMSHRC 1541. A 

subsequent conference in chambers was held with counsel for all 

parties on October 22, 1987, at which time counsel advised they wished to submit stipulations covering the issues which had been 

remanded for further consideration. Permission to submit 

stipulations was granted. 

The stipulations were received on November 16, 1987 and they 

read as follows: 

1. Because NACCO Mining Company ("NACCO") wishes to obtain prompt review of 

the Commission's September 30, 1987 decision 

but is unable to d~ until a final order is 

issued in this matter, it has entered into 

this Stipulation to eliminate the less 

important issues which remain in order to 

facilitate and expedite such review. 

2. NACCO hereby agrees to withdraw its 

Notice of Contest to the extent that NACCO no 

longer challenges the finding of 

unwarrantability. 

3. NACCO no longer alleges that MSHA 

Subdistrict Manager William H. Reid improp- erly modified Citation No. 2330657 from a 

§ 104(a) citation to a § 104(d)(l) citation 

based solely upon a general policy consideration. 

4. Subdistrict Manager William H. Reid 

modified the citation in liaht of his view of 

applicable legal standards after he reviewed 

the facts as recited in the citation and the 

memorandum summarizing the events upon which 

the citation was based and considered prior meetings that he conducted with NACCO 

officials concerning prior alleged violative 

incidents such as the one contained in the 

citation. 

NACCO, despite the Commission's 

September 30, 1987 decision in this case, 

continues to contest the § 104(d) citation on 

the grounds that it was based on an investigation of a past already abated violation 

instead of an inspection of an existing 

1953 
violation as NACCO contends § 104(d)(l) 

requires. 

A voluminous record, including the transcript of a de novo 

hearing of substantial duration, has been compiled in the-instant 

matter. Because of this and in light of the Commission•s remand, 

I believe it incumbent upon me to review the stipulations in 

order to determine whether they are in accordance with the 

record. Cf. 30 U.S.C. § 820(k) and 29 C.F.R. § 2700.30(c). Such 

review is()articularly called for with respect to the issue of 

the sub-district manager's actions because after vigorously challenging this conduct at the trial level, the operator now has 

done a complete volte face by not only seeking to drop its protest {Paragraph No. 3):-DLJt further by endorsing with great particularity the sub-district manager's behavior (Paragraph 

No. 4). 

Accordingly, I have again reviewed the record to determine 

whether the sub-district manager acted correctly within the statutory framework. Up~n such additional consideration, I now 

conclude that the sub-district manager's mode of action in 

modifying the citation was proper. I accept his testimony that 

after he scrutinized the citation he telephoned the supervisory inspector and went through with him the violation and its 

particulars (Tr. 350-351). This telephone conversation was 

confirmed by the supervisory inspector (Tr. 215, 224). The 

sub-district manager further stated that his finding of 

unwarrantable failure was based upon prior meetings with mine 

management and the violation itself (Tr. 359). From reading the 

citation he concluded the continuous miner operator had to have 

known he was under unsupported roof (Tr. 372). The sub-district 

manager stated he would have ordered the modification even if 

there were no policy considerations (Tr. 376}. In his opinion, the facts in the citation met the criteria for unwarrantable 

failure (Tr. 390-391). In light of this evidence, I believe a 

substantial basis exists to support the conclusion that the 

sub-district manager•s modification action was based upon the 

specific facts of this case 0 as the operator now admits. In 

addition 0 I believe it was appropriate for the sub-district 

manager to evaiuate the facts of this citation in light of the 

prior meetings he had held with mine management regarding the 

problem of deep cuts (Tr. 353-354~ 357-358, 367, 376). Finally, when the sub-district manager's statement that he did not know 

what the section foreman was doing at the time of the violation 

is viewed in context~ it becomes clear t~at this statement does 

not mean the manager acted without reference to the facts of the 

case. This remark concerned the brief period the foreman was 

absent because he was performing the pre-shift examination (Tr·. 

399). The sub-district manager testified that the foreman could 

have been legitimately absent because of his pre-shift responsibilities, but that he nevertheless should have known what was 

going on in his section especially since he had only five entries 

1954 
(Tr. 373, 398-399). In this respect also, therefore, the 

conclusions of the sub-district manager were premised upon the 

circumstances of the violation. 

In view of the foregoing, the agreement of the parties that 

the sub-district manager acted correctly is accepted. 

In Paragraph No. 1 the operator advises it no longer challenges the finding of unwarrantable failure. I conclude the 

record supports a finding of unwarrantability and that therefore, 

the operator's present stance regarding this issue is in 

accordance with the evidence and consistent with governing interpretations of the term "unwarrantable failure" in effect at this 

time. In Zeigler Coal Corporation, 7 IBMA 280, 295-296 (1977), 

unwarrantable failure was cast in terms of what the operator "knew or should have known" or a failure to abate because of "a 

lack of due diligence, or because of indifference or lack of 

reasonable care". More recently, it has appeared that the Commission is engaged in a prQcess of refining the concept of 

unwarrantability ~~d perhaps moving towards a higher level of 

fault. In U. S. Steel Corporation, 6 FMSHRC 1423, 1437 (1984) 

the Commission noted that the Zeigler interpretation had been 

specifically approved in the legislative history of the 1977 Mine 

Acto However, the Commission stated that an unwarrantable 

failure to comply could be proved by a showing that the violative 

condition or practice was not corrected or remedied, prior to 

issuance of a citation or order because of "indifference, willful 

intent, or a serious lack of reasonable care" (emphasis supplied). Subsequently, in Westmoreland Coal Company, 7 FMSHRC 1338, 1342 

(1985) the Commission again spoke of the degree of "aggravated conduct" intended to constitute unwarrantable failure as 

"indifference, willful intent, or serious lack of reasonable 

ca.re' 0 (emphasis supplied)o Assuming: that the Commission°s recent 

decisions embody something more than the Zeigler standard which 

was akin to ordinary negligence, there can be no doubt that the 

operator's conduct here falls well within the concept of 

"aggravated conduct" as it has been articulated thus far 

by the Commissiono 

In my original decision, I reviewed the evidence of record 

and concluded as follows: 

It was to such an individual [Palmer, a fast 

and careless continuous miner operator] that 

Sikora [section foreman] assigned the task of 

cutting coal in the crosscut near the end of 

the shift. But Sikora turned his back on the 

time element and on the off sight nature of 

the pre-existing first cut, both of which 

increased the pressure on the continuous 

miner operator to complete- the cro-sscut on 

that shift in one cut. When the circumstances under which this task was assigned 

1955 
are combined with the nature of the 

individual to whom the job was given, what 

happened was all but inevitable, i.e. the 

taking of all coal on one cut and the 

continuous mine operator in violation by 

going far beyond supported roof. The union 

safety committeeman testified the circumstances made it "tempting" to take all the 

coal on one cut (Tr. 329). To an individual 

like Palmer it would be virtually irresistible to get the extra 10 tons in the one cut 

(Tr. 720). Sikora must have realized this. 

He knew Palmer and he knew the conditions 

under which he was assigning him this task. 

Sikora 1 s conduct is far worse than mere lack 

of supervision. It was he who created the 

circumstances under which the violation was 

all but bo~hd to happen. And it was he whose 

first priority was not safety but getting 

home as fast as he could at the end of the 

shift. The operator put Sikora in his 

position of supervisory and managerial 

responsibility. His careless, reckless and 

wilful behavior is attributable to the 

operator which must bear the consequences. 

Southern Ohio Coal Company, 4 FMSHRC 1459 

(1982). *** 

It is clear therefore, that the section foreman's conduct 

n this case not only constituted, but indeed far exceeded, 

'"unwarrantable failure" under any of the descriptive terms used 

the Commission to define that concept. His extraordinary and 

egregious departure from what reasonably could be required of one 

in his position clearly justified issuance of a § 104(d)(l) 

citation with its attendant serious sanctions. 

In light of the foregoing and pursuant to the Commission 1 s 

decision that a § 104(d)(l) citation could be issued under the 

circumstances presented here. the subject citation is AFFIRMED 

and the operator's notice of contest is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

1956 
Distribution: 

Thomas C. Means, Esq., Crowell and Moring, 1001 Pennsylvania Avenue, N.W., Washington, DC 20004 (Certified Mail) 

Patrick M. Zohn, Esq., Office of the Solicitor, U. S. Department of Labor, 881 Federal Office Building, 1240 East Ninth Street, 

Cleveland, OH 44199 (Certified Mail} 

Ann Rosenthal, Esq., Vicki Shteir-Dunn, Esq., Office of the 

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

Arlington, VA 22203 (Certified Mail) 

Thomas Mo Myers, Esq., United Mine Workers of America, 56000 

Dilles Bottom, Shadyside, OH 43947 (Certified Mail) 

Mary Lu Jordan, Esq., UMWA, 900 15th Street, N.W., Washington, DC 

20005 (Certified Mail) 

I gl 

1957 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 201987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA·rroN (MSHA) I 

ON BEHALF OF 

ROGER LEE WAYNE, SR., 

Complainant 

v. 

CONSOLIDA'rION COAL COMPANY, 

Resp9ndent 

. . 

. . 

0 

. 

DECISION 

DI~CRIMINATION PROCEEDING 

Docket No. WEVA 87-89-D 

MORG CD 86-13 

Ireland Mine 

Appearances~ Linda M. Henry, Esq., Office of the Solicitor, 

U. s. Department of Labor, Philadelphia, 

Pennsylvania, for the Complainant; 

Michael R. Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for the 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me based upon a Complaint filed by the 

Secretary of Labor on February 9, 1987, on behalf of Roger Lee 

Wayneu Sr.u alleging discrimination under Section 105Cc} of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 185(c) 

(the Act). The United Mine Workers of America filed a Notice of 

Intervention on February 12u 1987. Consolid~tion Coal Company 

(Respondent) filedF on February 25, 1987u its Answer and a Motion 

to Dismiss on the ':Jround that the complaint was untimely filed. 

An Ordec was entered denying Respondentvs Motion to Dismiss on 

March 17~ 1987. 

The Complainant filed a Motion for Leave to A.mend Complaint 

on March 23, 1987. This motion was not opposed. Complainant's 

Amended Complaint seeks an Order assessing a civil penalty 

against Respondent in the amount of $300 to $500. 

1958 
Pursuant to notice, this case was scheduled for trial for 

June 9, 1987. Respondent filed a Motion for Continuance of the 

trail on June 2, 1987. This Motion was not opposed and pursuant 

to notice the case was rescheduled for August 4, 1987, in 

Wheeling, West Virginia. At'. 1t.he. hearing, David Wolfe, Roger Lee 

Wayne, Sr., David Miller, Leo Connor, and Billy Wise testified 

for the Complainant. Hestel B. Riggle, Jr., and George Carter 

testified for the Respondent. Respondent filed its Posthearing 

Brief on October 27, 1987. Petitioner filed its proposed 

Findings of Fact and Memorandum on October 28, 19870 

Stipulations 

At the hearing, the following stipulations were entered 

into: 

••• [T]hat the Federal Mine Saf~ty and Health 

Administrative Law Judge has jurisdiction over the 

matter; the size of the operator, Consolidation Coal 

Mine as reflectec;i-on the proposed Complainant's Exhibit 

Number 82 was 37,808,900 and the size of the mine at 

the Ireland Mill was 1,962,774 tons; that the proposed 

assessment of the specific penalty is $3,500.00 and 

will not affect the operator's ability to stay in 

business •••• [T]hat the complaint in this matter was 

timely filed; that Roger Wayne, Complainant, is an 

employee of the Ireland Mine and-that Consolidation 

Coal Company operates in this case. CTr. 3) 

•.• [T]hat the Committeemen or Safety Committeeman 

who was on the shift of an MSHA Inspector present as 

possible inspection conferences as defined by the Act 

would be the first choice as the authorized representave of the miners on that shift. (sic) ••• [T ]hat it 

is the respon bility of the safety committeeman to 

communicate to the other miners, to other members of 

the Unionp safety problems at the mine, results of any 

conferences or communications with the Federal Mine 

Safety and Health Administrationf and the results of 

inspections. (s ) (Tr. 100-101). 

Findings of Fact 

The ventilation plans at the Respondentis Ireland Mine are 

reviewed every 6 months by MSHA Insoectors and Respondent. Prior 

to the review, MSHA conducts an on-~ite inspection to determine 

if the mine conditions are suit~ble to the plan and if the mine 

is adequately ventilated. MSHA Inspector David Wolfe conducted 

an on-site ventilation inspection on March 3, 4, 5, and 6. Subsequently, Wolfe contacted Respondent's superintendent of mines 

1959 
to arrange for a review of the ventilation plan on March 25, 1986. 

According to Wolfe, in general, in a 6 month review of the ventilation plan MSHA officials meet with Respondent's personnel and 

miners to review the compliance record of Respondent in the past 

6 months, review revisions of the ventilation plan proposed by 

Respondent, and discuss comments by those present as to the plan. 

Roger Lee Wayne, Sr., a first class mechanic employed by 

Respondent, was a member of the safety committee in March 1986. 

Hestel Riggle told Wayne on March 24, 1986, that the following 

day there would be a ventilation plan review meeting. Wayne 

informed Riggle that he would probably go with him to the meeting 

as he (Wayne) was working the day shift. Prior to the commencement of the day shift at 8:00 a.m., on March 25, 1986, according 

to Riggle, Wayne informed him that he was to be the Union 

Representative at the meeting at 9:00. Riggle told Wayne to go 

to his work section and that if he was needed at the meeting he 

will be called. 

When Wolfe met with ~espondent's representatives on the 

morning of March 25, 1986, to conduct a 6 month review of the 

ventilation plan, David Shreve of the United Mine Workers of 

America was present, along with David Miller and Leo Conner, both 

miner members of the safety committee, and both of whom were not 

on the day shift. Also in attendance was Billy Wise, another 

miner and member of the safety committee, who according to the 

uncontradicted testimony of Miller was not on the day shift. 

Riggle asked Wolfe if a walkaround was needed and Wolfe said 

that one was not needed at the meeting, as the miners had sufficient representatives~ Miller requested of George Carter, 

Respondentus Supervisor of Industrial and Employee RelationsQ 

that Wayne attend the meeting as he was the designated representative of the minerso Wolfe said that a representative was not 

necessary at the meeting as the meeting was not an inspection. 

Carter told Miller that Wayne could be brought out to the meeting 

on Union business. Miller insisted that Wayne be called and the 

dispatcher notified Wayne to go to the meeting. Subsequentlyu 

Respondent asked that the meeting be postponed for a day so they 

could have a corporate representative inasmuch as Shreve from the 

UMWA was presenta Miller requested a postponement of 10 days to 

allow the safety committee to study the revision to the ventilation plane The meeting was then adjourned, and when Wayne 

arrivedv he was told by Carter that he was on Union business and 

could not go back to the min~. 

196Q: 
Issues 

The issues are whether the Respondent discriminated against 

Wayne, in violation of Section 105(c) of the Act, and, if so, 

what is the appropriate relief to be awarded Wayne, and what are 

the appropriate civil penalties to be assessed against the 

Respondent for such discrimination. 

Laws 

S€ction 105(c)(l) of the Act provides, in essence, that no 

person shall in any matter discriminate against or cause discrimination against, or other wise interfere with the exercise of the 

statutory rights of any miner or representative of miners because 

of the exercise by such miner of any statutory right forded by 

the Act. In essence, Section 103(f) of the Act, provides that 

" ••.• a representative authorized by his miner shall be given an 

opportunity to •••• participate in pre-or post-inspection conferences held at the mine." 

Discussion 

Complainant and Respondent are protected by, and subject to, 

the provisions of the Mine Safety Act, and specifically Section 

105(c) of the Act. I have jurisdiction to decide this case. 

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 

Coou 3 FMSHRC 803f 817-18 (April 1981)0 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 activityo 

Robinette, 3 FMSHRC at 818 n. 20. See also Donovan Vo 

Stafford Constr. Co.p 732 F.2d 954, 958-59 (D.C. Cir 

1984) 0 Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 

1983) (specifically approving the Commission's PasulaRobinette test). 

1961 
Protected Activities 

Wolfe's uncontradicted testimony established that, in 

general, a 6 month review of Respondent's ventilation plan, is 

preceded by an on-site inspection to see if the mine is being 

properly ventilated. Indeed, Wolfe conducted such an inspection 

on March 3, 4, 5, and 6, 1986. According to the uncontradicted 

testimony of Wolfe, the 6 month meeting to review the ventilation 

plan is held to review the compliance record of the Respondent 

and review revisions proposed by Respondent to the ventilation 

plan. Accordingly, I find that the meeting scheduled for 

March 25, 1986, was a "post-inspection conference," within the 

purview of Section 103(f) of the Act, inasmuch as it is likely 

that conditions observed in the on-site inspection of March 3, 4, 

5, and 6, would have been discussed. It is also clear, based 

upon the testimony of Wolfe, that miner attendance and 

participation at this meeting is critical to further safety at 

the mine, as the latter would have an opportunity to discuss the 

revision to the ventilation plan, and then to inform other miners 

of these changes. 

Based upon all the above, I conclude that Wayne's participation in the March 25 conference, as an authorized representative 

of the miners, is to be considered a protected activity within 

the purview of Section 105Cc) of the Act. 

In essence, the uncontradicted evidence presented by 

Complainant establishes that Wayne, on March 25, 1986, was a 

safety committeeman, and that Miller had requested that the 

latter, as the designated representative of the miners, be 

present at the March 25 conference concerning the revision of the 

ventilation Plano Furtheru I note that the Parties at the 

hearing stipulated that the safety committeeman who was on the 

shift at the time of a post inspection conference would be the 

first choice as the authorized representative of the miners on 

that shift. I thus conclude that, although three other safety 

committeemen were already present at the conference, that Wayneu 

was the "authorized" representative within the purview of Section 

103(f) of the Act, as he was working on the shift during which 

the conference occurred. 

In this connection, I find that there is no relevance to the 

comments that MSHA Inspector David Wolfe made at the March 25 

conference that, in essence, a "walkaround" was not required by 

him and that the miners were already represented by the three 

safety committeemen who were present. 

1962 
Adverse Action 

Respondent, in essence, argues that it had no legal obligation to provide Wayne with an opportunity to attend the March 25, 

1986 conference. In this connection, Respondent maintains that 

it reasonably relied upon the statements by Wolfe that a 

walkaround was not needed inasmuch as the miners already had 

three safety committeemen present. However, the critical issue 

is not Respondent's good faith in asserting that it had no 

obligation to allow Wayne to participate in the meeting, but 

rather, its actions against Wayne, when confronted with th& 

request that he attend the meeting. Respondent argues, in 

essence, that Miller, in asking for Wayne to be present at the 

meeting, placed the latter on Union business, and thus Wayne did 

not suffer any loss of pay. Wolfe testified that Miller 

initially requested of Respondent that Wayne be placed on Union 

business (Tr. 23, 24). However, I accept Miller's version, as it 

was essentially corroborated by Riggle and Carter (Tr. 141, 158), 

that George Carter, Respondent 1 s Supervisor of Industrial and 

Employee Relations told him that Miller would not be brought out 

of the mine unless he went on Union business (Tr. 105, 106). 

Miller then insisted that Wayne be brought out of the mine 

to attend the meeting. When Wayne arrived the conference had 

been adjourned, but Carter told Wayne that he could not go back 

to the mine as he was on Union business. This had the effect of 

causing Wayne to loose his pay for the balance of the day. 

Accordingly, it is clear that Respondent's refusal to allow Wayne 

to return to the mine after the March 25 conference had been 

adjourned, constitutes an adverse action. 

Motivation 

The record tends to support a conclusion that Respondent did 

not have any improper motive in concluding, in essence, that it 

did not have any obligation to have Wayne attend the March 25 

conferenceu as it relied upon the comments by Wolfe that such 

attendance was not necessaryo Howeveru once the conference was 

adjourned 0 there does not appear to be any basis for Carter 1 s 

action in refusing to allow Wayne to return to the mine, other 

than to punish him for attempting to attend the meeting. 

Accordingly~ is concluded that Respondent's action in not 

allowing Wayne to return to the mine, .was motivated solely by 

Wayne 1 s asserting his rights under Section 105(c) and attempting 

to attend the March 25 conferenceo Accordingly, it is concluded 

that Respondent did violate Section 105(c) of the Act, as it did 

commit an act of discrimination against Wayne within the purview 

of Section 105(c) of the Act. 

1963 
In assessing a penalty to be imposed against Respondent, I 

have considered the size of Respondent's mining operation as 

stipulated to by the Parties. I have also taken into account the 

gravity of the violation committed wherein. Also, although it 

might be concluded that Respondent acted in good faith in 

·initially refusing to permit Complainant to attend the March 25 

conference, I find that the adverse action committed by Carter 

against Wayne in not allowing him to return to the mine, was 

intentional. Based on these factors, I· find that a penalty of 

$300 is appropriate. 

ORDER 

It is ORDERED that. 

1. Respondent shall, within 15 days from the date of 

this Decision, post a copy of this Decision at the Ireland Mine 

where notices to miners are normally placed, and shall keep it 

posted there for a period of, 60 days. 

2. Respondent, shall within 15 days from the date of 

this Decision, pay Complainant for the 6 1/2 hours he would have 

worked on March 25, 1986, had he not been refused permission to 

return to work. 

3. Respondent 

days of this Decision. 

Distribution~ 

shall pay a penalty of $300 within 30 

/fZ_ 

Avram 

Administrative 

Weisberger 

~ Law Judge 

Linda M. Henryv Esq., Office of the Solicitor, U. s. Department 

of Laborv Room 14480-Gateway Building, 3535 Market Street 

Philadelphia, PA 19104 (Certified Mail) 

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

Washington Road 1 Pittsburgh, PA 15241 (Certified Mail) 

Thomas M. Myersu Esq., 56000 Dilles Bottom, Shadyside, OH 43947 

(Certified Mail) 

dcp 

1964 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203. LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 23 1987 

GLADYS B. JOHNSON, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

FREEMAN UNITED COAL MINING 

COMPANY, 

Respondent 

. . Docket No. LAKE 87-53-D 

VINC CD 87-04 

Orient No. 4 Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainant requested to withdraw her Complaint of 

Discrimination in the captioned case on the grounds that she 

is unable to pursue the matter because of financial and other 

problems. She states that she understands the consequences 

of withdrawal and dismissal and that it is a final 

disposition of these proceedings. Under the circumstances 

herein, permission to withdraw is granted. 29 C.F.R. § 

2700.11. This case is therefore dismissed with prejudice and 

the hearing scheduled for November 24, 1987, is cancelled. 

Respondent's request for costs, attorney's 

other sanctions for the Complainant 9 s failure to a 

scheduled depositions is denied for failure to mee 

conditions set forth in FEDo R. CIV P.37o 

Distribution: 

Ms. Gladys B. Johnsonv P. 0. Box 103, 

(Certified Mail) 

lp, IL 62921 

Harry M. Coven, Esq., Gould & Rather, Freeman United Coal 

Mining Company, 222 North LaSalle Street, Suite 800, Chicago, 

IL 60601 (Certified Mail) 

npt 

1965 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOLAR FUEL COMPANY, INC., 

Respondent 

NOV 231987 

: 

. . 

CIVIL PENALTY PROCEEDING. 

Dockst No. PENN 87-158 

A. C. No. 36-06289-03522 

No. 10 Mine 

DECISION 

Appearances: James~. Culp, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania for Petitioner, 

David C. Klementik, Esq., Windber, Pennsylvania for 

Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to section 105(d) of the 

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

seq., the "Act", charging Solar Fuel Company, Inc. (Solar Fuel) 

with three violations of regulatory standards. The general 

issues before me are whether Solar Fuel violated the cited 

regulatory standards as allegedu andu if sou whether those 

violations were of such a nature as could significantly and 

substantially contribute to the cause and effect of a mine safety 

or health hazard, i.e. whether the violations were "significant 

and substantial." If violations are found, it will also be 

necessary to determine the appropriate civil penalty to be 

assessed in accordance with section llO(i) of the Acto 

Citation No. 2695362 charges a "significant and substantial" 

violation of the mandatory standard at 30 C.F.R. § 75.1725(a) and 

alleges as followsg 

The top and bottom belt rollers of the No. 1 main belt were 

not maintained in a safe operating condition in that from 

station spad No. B-71 and extending inby to station spad No. 

193, 9 bottom rollers were found frozen and worn into the 

rollers from the bottom belt and seven top rollers were 

worn, broken and badly damaged. Coal dust, float coal dust 

and combustible material was present on, under and around 

1966 
the bottom rollers. This belt was in operation at the time. 

This citation was one of the factors that contributed to the 

issuance of imminent danger order No. 2695361 dated 

12-30-86: therefore, no abatement time was set. 

The cited standard, 30 C.F.R. § 75.1725Ca), provides that 

"[m]obile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery or equipment 

in unsafe condition shall be removed from service immediately". 

Citation No. 2695363 charges a "significant and substantial" 

violation of the mandatory standard at 30 C.F.R. § 75.400 and 

alleges as follows: 

Coal dust, including float coal dust, loose coal, and 

combustible material, in the form of empty rock-dust bags 

are present on, under, and around bottom belt rollers, the 

jabco power cable and belt structures beginning at spad No •. 

B-71 and extending inby.a distance of approximately 1,200 

feet to the be1t tail Cspad No. 193) of the No. 1 main belt. 

These accumulations measured from 1 to 12 inches in depth 

and from 12 to 72 inches in width under this belt. Coal 

float dust accumulations also existed on the mine floor from 

No. 2 main belt inby to the tail of No. l main belt. This 

area measured approximately 10 feet wide for a distance of 

approximately 360 feet. This belt was in operation at the 

time. Measurements were made with a six foot standard rule 

and 50 foot tape measure. 

The cited standard provides that "(c]oal dust, including 

float coal dust deposited on rock-dusted surfaces, loose coal, 

and other combustible materialsg shall be cleaned up and not be 

permitted to accumulate in active workingsu or on electric 

equipment thereino~ 

Vincent Jardina, a Coal Mine Safety and Health Inspector for 

the Federal Mine Safety and Health Administration CMSHA), was 

conducting a regular inspection of the Solar Fuel No. 10 Mine on 

December 30u 1986u when he observed float coal dust accumulations 

and combustible materials consisting of empty rock dust 

bags, beginning at spad B-71 and continuing for some 1,200 feet. 

The accumulations were dry, mostly dark in color and from 1 to 12 

inches deep and from 12 to 72 inches wide. The area had not been 

rock dustedo According to Jardina the accumulations were more 

than normal and most likely were caused by excess air flow 

through an air lock door frozen open. Exce~sive coal dust was 

thus blown off the conveyor belt causing rapid accumulation of 

the dust. · 

1967 
Jardina believed the condition to be dangerous and could 

contribute to a fire or explosion. In particular he observed 

that the conveyor belt was operating with 16 damaged and/or 

frozen rollers within close proximity to the coal dust. (See 

discussion of Citation No. 2695362) According to Jardina, seven 

top rollers were damaged (some of which were not rotating) and 

nine bottom rollers were "frozen". Indeed one of the "frozen" 

bottom rollers had been rubbed flat from the belt. In addition 

the area of the conveyor structure near..one of the suspect 

rollers felt "very warm" to Jardina. Under these conditions 

Jardina thought it likely that the heat generated by friction 

from the damaged rollers would ignite the coal dust causing a 

fire or explosiono Energized power cables and electrical 

installations also provided ignition sources. The fire hazard 

was further aggravated by the undisputed fact that if the 

conveyor belt itself caught fire it would give off carbon 

monoxide and toxic phosgene gases even before smoke appeared. 

The noted hazard was even further aggravated by the fact 

that the belt air was vented directly into the return 

aircourse--the secondary escapeway. Thus fire, toxic fumes and 

smoke could very well bar the safe use of that escapeway. If an 

explosion should blow out critical stoppings the entire work area 

would also likely be contaminated with smoke and toxic gases. 

Jardina also observed that the primary escapeway had been 

rendered impassible to vehicles because of icing conditions. 

Miners attempting escape would thus be forced to crawl over ice 

in a coal height of only 30 to 32 inches in the last 150 to 200 

feet of the primary escapeway. With eight miners working inby at 

the time it may reasonably be inferred that fatalities would 

occuro 

Within the framework of this undisputed evidence I am 

convinced that a disaster of major proportions was imminento The 

violations were unquestionably of the highest gravity and 

"significant and substantial"o Secretary v. Mathies Coal Co. 

6 FMSHRC l (1984)0 In reaching these conclusions I have not 

disregarded the evidence that an increased number of fire sensors 

had been placed along the subject beltline and indeed were on 

40-foot centerso Thus in the event of a fire an alarm would more 

likely be triggeredo I have also considered the evidence that 

Solar Fuels had provided self rescuers and personal oxygen 

supplieso In addition I recognize that the subject coal was of 0 low volatility" Nevertheless these factors are not of a 

magnitude to significantly impact on the overall severity of the 

cited violationso 

Inspector Jardina also concluded that the violations were 

the result of high negligence. He opined that the accumulations 

had developed over one complete work shift and the last work 

1968 
shift had been from 3:00 p.m. to 11:00 p.m. the night before. 

The conditions were cited around 6:41 a.m. shortly after the 

beginning of the 6:00 a.m. to 2:00 p.m. work shift. In addition 

the mine examiner's book showed that the belt had been examined 

between 9:00 a.m. and 10:45 a.m. and again between 3:00 p.m. and 

6:00 p.m. the day before but the examiners had not reported any 

accumulations. Jardina also noted that the examiners had 

reported that the belt rollers "should be replaced" but in fact 

defective rollers still remained at the.time of his inspection. 

Solar Fuel Safety Director Alvy Walker also told the 

inspector that they were having difficulty obtaining a type of 

roller needed for the belt. Walker said that in any event he 

would not stop the belt to replace any single defective roller. 

At the same time Walker admitted to the danger of accumulations 

of "fine coal" near a frozen roller and acknowledged that they 

had problems with dust accumulating because of the high air 

velocity. Indeed in certain locations they had found it 

necessary to clean up_the dust twice a day. He also acknowledged 

that they had only one man responsible for cleaning up 5,000 feet 

of belt line and that no one was working on the subject belt at 

the time of the citation even though it had been operating for at 

least 40 minutes before he met with the inspector. 

Solar Fuels argues in defense that they had a "clean up" 

plan that, in essence, permitted them to clean up accumulations 

during the following shift. The alleged clean-up plan, which had 

been submitted by a predecessor company to the Mine Safety and 

Health Administration on May 12, 1982, provided that 

accumulations would be "cleaned up during the shift or the 

following shift"o Howeverv while it is true that the regulatory 

standard at 30 CoFoRo § 750400-2 does require that a program for 

regular clean up and removal of accumulations of coal and float 

coal dustv loose coal and other combustibles be established and 

maintained there is no process set forth for the approval of such 

a plan by the Secretary of Labor. The regulatory requirement for 

a clean up program thus cannot provide a basis to estop the 

Secretary from enforcing the requirements of the standard at 30 

CoFoRo § 7504000 The Secretary is in any event not subject to 

the doctrine of equitable estoppal. See Secretary Vo King Knob 

Coal Company Inc. 3 FMSHRC 1417 (1981)0 Solar Fuel's argument, 

thereforev that it was not subject to the cited standard because 

it had a clean-up plan 0 is devoid of merit. 

Within this framework of evidence I find therefore that the 

violations are proven as charged, that the violations were 

serious and "significant and substantial" and were the result of 

high operator negligence. 

1969 
Citation No. 2695425 alleges a non-significant and 

substantial violation of the standard at 30 C.F.R. § 70.508 (a) 

and charges as follows: 

A periodic survey of the noise exposure to which each miner 

in the active workings of the mine is exposed was not 

received by the Mine Safety and Health Administration. The 

survey was required to be conducted during the three month 

period ending December 31, 1986. 

The citation was issued January 16, 1987, by Inspector 

Jardina and the operator was given until January 30, 1987, to 

abate the violation. However, on February 19, 1987 ~· the 

condition had still not been abated and Inspector Jardina 

therefore issued a withdrawal order under section 104(b) of the 

Act. The survey was finally conducted and the order terminated 

on the following day. According to Jardina the violation was not 

serious and he considered that the operator could have forgotten 

to have completed the survey.prior to the initial citation. The 

operator furnished qo excuse however for to failing to abate the 

violative condition within the period set for abatement in the 

initial citation. Solar Fuels admits to the violation and 

provided no satisfactory reason for its failure to abate the 

violation in a timely manner. 

In assessing penalties herein, I have also considered that 

the operator is relatively small in size and has a modest history 

of violations. I have also considered that the operator abated 

the violations charged in Citations No. 2695362 and 2695363 in a 

good faith manner. 

ORDER 

Citations Noo 2695362v 2695363 and 2695425 are affirmed and 

Solar Fuel Company InCov is directed to pay ci~il penalties of 

$500v ~500, and $100 respectively for the viol tions charg~d 

therein within 30 days of the date of this dee sion. 

~ i~ ~. 1 I I \ !] 

r \ 

/ ~~~l~~ .. :~;~~ive Judge 

{703)~56-626i 

1970 
Distribution: 

James E. Culp, Esq., Office of the Solicitor, U. S. Department of 

Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

David c. Klementik, Esq., 1206 Graham Avenue, Windber, PA 15963 

(Certified Mail> 

npt 

1971 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 24 1987 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA) , 

Petitioner 

Docket No. SE 86-128-M 

A.C. No. 54-00271-05501 J7Y 

v. 

Cantera Metro 

DRILLEX, INCORPORATED, 

Respondent 

Appearances: 

Before: 

DECISION 

Jane Brunner, Esq., Office of the Solicitor, 

U.S. Department of Labor, New York, New York, 

for the Petitioner; 

Antonio Garcia-Soto, Esq., Santurce, 

Puerto Rico, for the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of 

civil penalty filed by the petitioner against the respondent 

pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977u 30 U.S.C. § 820(a)u seeking a civil penalty assessment of $68 for an alleged violation of mandatory 

safety standard 30 C.F.R. § 56.6047, as stated in a section 

104(a) "S&S" Citation No. 2655924, served on the respondent by 

an MSHA inspector on May 28, 1986. 

Issues 

The issues presented in this proceeding are as follows: 

1. Whether the respondent violated the 

cited mandatory safety standard, and if so, the 

appropriate civil penalty to be assessed for 

the violation based on the criteria found in 

section llO(i) of the Act. 

1972 
2. Whether the inspector's "significant 

and substantial" (S&S) finding concerning the 

violation is supportable. 

3. Additional issues raised by the 

parties are identified and disposed of in the 

course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 20 C.F.R. § 2700.l et seq. 

Stipulations 

The parties stipulated to the following (Tr. 3-6): 

1. The respondent is a contractor engaged 

in a business performing blasting and drilling 

services for mine operators engaged in the 

business of mining aggregates. 

2. The respondent is subject to the jurisdiction of the Mine Act. 

3. For purposes of the Mine Act, the 

respondent is a small operator, employing four 

to five people in its operations covered by the 

Act, and its annual blasting and drilling 

activities consists of 557 man-hours" 

4. Respondent's history of prior violations consists of one order issued in May 1985, 

for which the respondent paid an uncontested 

civil penalty assessment of $180. Two citations issued in February 1987v have not been 

assessed as yet by MSHA, and the respondent 

confirmed that it will not contest the citations and will pay the civil penalty 

assessments. 

5. Payment of the proposed civil penalty 

assessment for the alleged violation in this 

case will not adversely affect the respondent's 

ability to continue in business. 

1973 
Discussion 

Section 104(a) "S&S" Citation No. 2655924, issued on 

May 28, 1986, cites a violation of mandatory safety standard 

30 C.F.R. § 56.6047, and the condition or practice is 

described as follows: "Company, Drillex, Inc., transported 

565 electrical blasting caps from the dealer to Cantera Metro 

(54-00271), inside the pick-up cab, mark Isuzu, tag 

no. 299879, where blasting caps were exposed to sparking metal. 

A person was driving the pick-up." 

MSHA Inspector Juan Antonio Perez, testified that he has 

been employed as an inspector since 1975, and that he is a 

professional licensed engineer with a background in chemical 

and metallurgical engineering. He confirmed that his duties 

include compliance inspections of sand and gravel quarries and 

cement plants, and that he has conducted approximately 2,000 

inspections during his tenure with MSHA. 

Mr. Perez con~irmed that he issued the contested citation 

du.ring the course· of an inspection he was conducting at the 

Cantera Metro quarry operated by Metro Industry, Inc. During 

the course of that inspection, he observed a pickup truck 

arriving at the mine site, and upon observation of the truck 

he determined that it was carrying a load of blasting caps in 

the driver's compartment or cab. Upon questioning the driver 

of the truck, Mr. Perez learned that the truck was owned by 

the respondent and that the driver was one of the respondent's 

employees. 

Mr. Perez stated that he determined the number of electrical blasting caps present in the cab of the truck by reviewing the delivery documents produced by the driver. Mr. Perez 

believed that the blasting caps presented a hazard in that 

they were exposed to the "sparking metal" of the cab of the 

truck, including the doors, and that is why he cited section 

56.6047 of the regulations. He confirmed that he observed 

ammonium nitrate in the cargo bed of the truck. 

Mr o Perez believed that-. the respondent was negligent in 

that the detonator caps in question were readily observable in 

the cab of the truck" He also believed that the caps presented a hazard in that they are considered to be explosive. 

He believed that an accident was reasonably likely to occur 

because all of the ingredients for such an event were present, 

namely, explosive caps, sparking metal, and the driver in the 

cab of the truck. 

1974 
Mr. Perez confirmed that the electrical blasting caps in 

question are considered to be explosives under MSHA's regulations, and were not "blasting agent's" within the exception 

found in section 56.6047. 

On cross-examination, Mr. Perez stated that ammonium 

nitrate, in its natural state, is a fertilizer and not an 

explosive. In order to be considered an explosive, it must be 

combined with a fuel oil. He concedea that his citation makes 

no reference to any such explosive material being transported 

in the back cargo area of the truck. 

Mr. Perez confirmed that abatement was achieved by transferring the remaining cited detonator caps to another truck 

after the initial delivery, and that the citation was terminated approximately an hour after it was issued. Mr. Perez 

further confirmed that his enforcement jurisdiction over the 

respondent is limited to any trucks actually found on quarry 

or mine properties, and that in the instant case, he inspected 

the truck after it: was driven onto the mine site in question. 

Mr. Perez confirmed that he has no particular expertise 

or knowledge with respect to the use of explosives or blasting 

materialsv and that his general knowledge of explosives is 

from his "on the job" work experience as an inspector and from 

his attendance at MSHA training sessions and seminars. He 

agreed that the manner in which the cited detonator caps were 

being transported did not violate any local explosive laws or 

regulations or other Federal laws or regulations. 

The parties agreed that at the time the citation was 

issued, the driver of the pickup trucku who was an employee of 

the respondent, was delivering electrical detonator caps to a 

mine quarry operated by Metro Industries Inco The pickup used 

to deliver the detonators was owned by the respondentu and the 

driver was making the first of two deliveries scheduled for 

that day. The first delivery consisted of 245 detonators, and 

the scheduled second delivery to another site consisted of 

320 detonators7 thus accounting for the total of 565 detonators cited by the inspectoro 

Respondent produced copies of a form issued by the local 

police department dated May 28u 1986, granting permission to 

one Jose Collazo Bonilla, the driver of the truck in questionu 

to transport two loads of electrical detonators along a designated route specified on the face of the forms. The forms 

reflect that they were issued at 6:58 and 7:06 a.m., and the 

information describing the pickup truck in question, including 

1975 
the tag number, is identical to that• stated by the inspector 

on the face of the citation (exhibit R-1). 

Although the police permit in question is in Spanish, 

respondent's counsel translated it for the benefit of the 

Court and petitioner's counsel, and upon review of the form by 

Inspector Perez, he confirmed that the permits are in fact as 

represented by the respondent. 

Mr. Perez explained the general procedures normally 

followed in the transportation of explosives, and he conceded 

that he made no determination as to whether those procedures 

were in fact followed in this case. He explained that it was 

his understanding that local police regulations required 

separate trips when multiple deliveries of detonators are made 

to local mine sites. He confirmed that his principal concern 

in issuing the citation was his belief that the detonators 

were exposed to the truck "sparking material," namely, the 

interior metal cab framing. 

Mr. Perez st~ted that the detonators in question were 

packed inside their original manufacturer's cardboard containers and that the boxes were stacked in the cab of the 

truck from the floor to halfway up the front cab window. He 

could not state how many containers he observed, and denied 

that the boxes were stored inside another container. However, 

he later stated that they were inside another non-conductive 

container as required by section 56.6057, but that it had no 

top. Petitioner's counsel asserted that the detonator containers were inside the type of container required by section 

56.6057, and if they were not, the inspector would have cited 

a viol~tion of that standard. Mro Perez conceded that this 

was trueo 

Mro Perez admitted that he did not inspect the interior 

of the truck cab to determine the actual composition of the 

metal interior framework and did not determine whether it was 

aluminum or painted with a "non-sparking" painto He also 

admitted that he had no knowledge as to whether or not the 

truck ignition Key was aluminum and did not inspector or look 

at the key" He admitted that aluminum material is 

"non-sparkingo" 

Mro Perez stated that the electrical detonators were 

classified as a "class C explosive," but he conceded that they 

could not explode while packed inside the manufacturerqs 

original boxed containers. 

1976 
At the close of MSHA's case, respondent's counsel made a 

motion for summary dismissal of the citation on the ground 

that MSHA had failed to produce any evidence, or to otherwise 

establish, that the interior of the truck cab where the electrical detonators were located and observed by the inspector 

was composed of sparking metal, or that the detonators were 

otherwise exposed to any sparking metal (Tr. 65-66). The 

motion was initially taken under advisement, subject to any 

re-dirct or rebuttal testimony by MSH~ (Tr. 66). Respondent's 

motion was again renewed (Tr. 83, 99), and it was tentatively 

granted from the bench, subject to the filing of a posthearing 

brief by MSHA, and the receipt of the final hearing transcript 

(Tr. 99-102, 107). Respondent was also afforded an opportunity to file a brief {Tr. 107). 

MSHA 1 s Arguments 

In its posthearing brief, MSHA views the single issue in 

this case to be whether or not its mandatory standards permits 

the carrying of explosives in the passenger cab of a truck. 

MSHA submits that such a practice is prohibited by 30 C.F.R. 

§ 56.6047 and by its overall regulatory scheme pertaining to 

the transportation of explosives. MSHA points out that section 5606047 plainly requires that there be no sparking metal 

exposed "in the cargo space," that the cargo space be equipped 

with "suitable sides and tail gates," and that the explosives 

"shall not be piled higher than the side or end enclosures." 

MSHA asserts that if the standard is construed to permit the 

transportation of explosives in the cab of a vehicle, or in 

any area other than the acknowledged cargo space, the quoted 

provisions of the standard would be rendered meaningless. 

MSHA maintains that the standard obviously contemplates that 

the "cargo space" of the vehicle is only that area which is 

enclosed by the sides and tailgate of the vehicleq and not the 

area within the passenger cab" MSHA concludes that the standard only addresses the presence of exposed sparking metal in 

the cargo space because that is the only area of the vehicle 

where it is permissible to place explosive materialsr and to 

hold otherwise would authorize the placement of explosives in 

the passenger cab, which is not a cargo space, where the explosives could indeed be exposed to sparking metal" Consequentlyu 

MSHA believes that the placement of explosives in the cab of a 

pickup truck constitutes a clear violation of the cited 

standard" 

With regard to its overall regulatory scheme concerning 

the transportation of explosives, MSHA cites section 56.6050, 

which provides as follows: "Other materials or supplies shall 

1977 
not be placed on or in the cargo space of a conveyance containing explosives, detonating cord or detonators, except for 

safety fuse and except for properly secured, nonsparking equipment used expressly in the handling of such explosives, 

detonating cord or detonators." (Emphasis added). 

MSHA argues that the presumptive placement of explosives 

in the cargo space of a vehicle forms the only conceivable 

basis for excluding other materials or supplies "on or in the 

cargo space." Similarly, the standard's exception for 

"nonsparking" equipment would serve little purpose if there 

was no requirement to transport explosives in the same cargo 

space. MSHA concludes that a contrary interpretation of the 

standard would curiously subject covered employers to possible 

citations in circumstances where sparking equipment was present in the cargo space of a vehicle while explosives were present in the passenger cabr and submits that the standard has no 

such intent. 

MSHA also cLtes section 56.6040, which provides as 

follows: "Expl6sives and detonators shall be transported in 

separate vehicles unless separated by 4 inches of hardwood or 

equivalent." 

MSHA argues that section 56.6040 contemplates that all 

explosives and detonators are to be transported in the cargo 

space where they are to be separated as specified. MSHA 

points out that the standard does not mention, or imply, that 

these materials may be separated merely by placing the explosives or detonators in the passenger cab of a vehicle, and 

that absent the required separation inside of the cargo space, 

employers are required to utilize separate vehicles. Since 

this standard sets forth the only alternative available to 

employers engaged in the transportation of explosives and 

detonatorsu MSHA concludes that the standard would indeed 

reference the use of the passenger cab if such a practice was 

deemed appropriate. MSHA maintains that the respondent in 

this case was engaged in transporting explosives and detonators in the same vehicleo Since the cargo space was fullu 

MSHA suggests that the respondent was attempting to avoid 

having to make two trips or the use of two vehicles. 

At the hearing, MSHA s counsel took the position that 

while the cited standard section 56.6047? makes reference LO 

sparking metal exposed in the cargo space of vehicles used to 

transport explosives; since the detonators in question were in 

the passenger cab of the truck, rather than the normal rear 

truck cargo bed, the cab of the truck would be considered the 

cargo space for purposes of the standard. At the close of the 

1978 
hearing, counsel conceded that the essence of the alleged violation is whether or not the truck cab contained sparking 

metal, and whether the blasting caps were exposed to any such 

sparking metal (Tr. 103). 

Findings and Conclusions 

Fact of Violation 

The respondent is charged with an alleged violation of 

mandatory safety standard 30 C.F.R. § 56.6047, which provides 

as follows: 

56.6047 Vehicle construction 

Vehicles used to transport explosives, 

other than blasting agents, shall have substantially constructed bodies, no sparking metal 

exposed in the cargo.space, and shall be 

equipped with suitable sides and tail gates; 

explosives shall not be piled higher than the 

side or end enclosures. 

Respondent produced copies of two permits issued by the 

local police department on the day the citation was issued, 

attesting to the fact that the transportation of the electrical blasting caps in question satisfied local police regulatory requirements, and MSHA did not dispute this fact (exhibit 

R-1, Tr. 52). 

MSHA's conclusion that the respondent was transporting 

explosives in the rear of the truck in question is unsupported 

by any credible or probative evidencev and it is rejected. 

The record reflects that Inspector Perez was not sure what he 

observed in the rear of the truck. Although he alluded to 91 other explosives 11 in the back of the truck, he obviously made 

GO effort to identify them. Although he further alluded to 

ANFO, an explosive brand name, he stated that "I cannot testify as to anfo" (Tr. 22, 26). 

The only specific "explosive" material referred to by 

Mr. Perez were bags of ammonium nitrate (Tr. 22). However, 

conceded that this material was not an explosive (Tr. 23). 

also conceded that the citation he issued makes no mention 

any explosives being carried in the rear of the truck (Tr. 

Mr. Perez explained that ammonium nitrat~, in its natural 

state, was a fertilizer and not an explosive, and in order to 

he 

He 

of 

23). 

1979 
make it an explosive, one must add diesel fuel oil. He reiterated that the ammonium nitrate he may have observed was not an 

explosive (Tr. 26). 

Mr. Perez confirmed that ammonium nitrate is considered a 

"blasting agent," under MSHA's regulations. However, he conceded that section 56.6047 provides for an exception for blasting agents, and that the transportation of such materials in 

the truck in question was not prohibiced by that standard (Tr. 

25, 28). He also confirmed that the transportation of the 

blasting caps in question in the cab of the truck did not violate any local laws or any regulations of the Federal Treasury 

Department, Alcohol, Tobacco and Firearms (ATF} Agency (Tr. 

37-38). Mr. Perez suggested that the reason the blasting caps 

were carried in the cab of the truck was that there was no 

room in the back of the truck (Tr. 28). 

Mr. Perez confirmed that the detonators in question were 

not exposed, but were packed in their original manufacturer's 

cartons. The cartons were in turn located in non-conductive 

containers as required by section 56.6057, and both Mr. Perez 

and MSHA's counsel conceded that the manner in which they were 

stored was in compliance with that mandatory standard (Tr. 76, 

77). 

Although one may conclude that it may have been imprudent 

for the respondent to transport electrical detonator caps in 

the cab of the truck, I find no regulatory or evidentiary 

basis for finding a violation in this case. Aside from the 

fact that MSHA produced no evidence to establish that the cab 

of the truck was constructed of non-sparking metal, MSHA's 

posthearing argumentsu which I find to be rather strained, and 

which I rejectu would require the respondent to consider two 

or three mandatory standards together before reaching any 

rational conclusion that transporting blasting caps in a cab 

of a truck was or was not prohibited. 

In my viewr the regulatory intent of section 56.6047 is 

to establish minimum construction standards for vehicles used 

to transport explosives. Contrary to MSHA's arguments, I 

cannot conclude that the standard is intended to prohibit the 

transportation of explosives in the cab of a truck. As a 

matter of factu as pointed out earlier, MSHA's position during 

the hearing was that the cab of the truck was in fact the 

cargo space since the explosives were located there, and since 

the interior of the cab was of metal construction, which MSHA 

assumes was exposed sparking metal, a violation was established. MSHA's counsel stated that "once you put the cargo in 

the cab of the truck, then you've by d~finition made the cab 

1980 
of the truck the cargo space" (Tr. 61). When asked to define 

the term "sparking metal," Inspector Perez replied "I don't 

know, its zinc, iron, ••• whatever the truck is made of" 

(Tr. 60). When asked whether or not the inspector had in mind 

the phrase "no sparking metal" as stated in section 56.6047, 

when he issued the citation, MSHA's counsel replied in the 

affirmative (Tr. 62). 

Although Mr. Perez indicated thal he was a licensed metallurgical engineer, his experience in explosives was limited to 

several seminars, and his experience and training in applying 

MSHA's mandatory standards (Tr. 30-31). MSHA's counsel conceded that Mr. Perez failed to inspect the interior of the 

truck cab to determine whether it was in fact constructed of 

sparking metal. Counsel further conceded that Mr. Perez 

simply assumed that the interior of the truck was constructed 

of sparking metal, and took the position that this was common 

knowledge. Counsel acknowledged that aluminum metal, and 

metal which is treated or painted with non-sparking paint, 

would be considered non-sparking and in compliance with the 

standard. However, counsel took the position that the burden 

was on the respondent to establish this (Tr. 81-82). I disagree. In my view, the burden of proof here lies with MSHA 

and not the respondent. MSHA must establish all elements of 

the cited standard, particularly the fact that the interior of 

the truck was constructed of sparking metal. 

On the facts of this case, MSHA's evidentiary proof is 

totally lacking to support any conclusion that the interior of 

the truck was constructed of sparking metal. Mr. Perez considered "sparking metal" to be any metal that can heat and produce a spark. As an exampleu he explained that if a truck 

dr ng down a road hit a stone; and the stone hit the truck 

body and produces a sparku then he would consider the metal to 

be sparking metal (Tr. 78-79). Yet, he simply looked at the 

metal door, and in a less than cursory way, determined that it 

was constructed of sparking metal. He made no inspection of 

the cab interior to determine whether it was constructed of 

aluminumu or whether it was coated or painted with non-sparking 

paint. As for the dooru he candidly admitted that "I didngt 

prove that it can produce a sparking material on that 11 (Tr. 81). 

He also made no determination as to whether or not the truck 

ignition key was made of alumimlffi, and acknowledged thac he has 

heard of such keys (Tr. 98). Given his asserted metallurgical 

background, I would think that it would have been a simple 

illatter for Mr. Perez to make a determination as to the composition of the interior of the truck to determine whether it was 

constructed of sparking metal. The fact is that he did not do 

so. 

1981 
Under all of the aforesaid circumstances, I conclude and 

find that MSHA has failed to establish a violation of section 

56.6047. Accordingly, the respondent's motion to dismiss, 

made at the hearing, IS GRANTED, my previous tentative bench 

ruling in this regard IS AFFIRMED, and the citation IS VACATED. 

ORDER 

In view of the foregoing findings and conclusions, section 104(a) Citation No. 2655924, issued May 28, 1986, citing 

an alleged violation of 30 C.F.R. § 56.6047, IS VACATED, and 

MSHA's proposal for assessment of civil penalty IS DISMISSED. 

Distribution: 

/'f 

,/'J 

/Af'14!/ if, ~ . ·<<George" A. :Koutras 

''Administrative Law Judge 

William G. Staton and Jane Brunner, Esqs., Office of the 

Solicitor, U.S. Department of Labor, 1515 Broadway, Room 3555, 

New York, NY 10036 (Certified Mail) 

Antonio Garcia Soto, Esq., P.O. Box 10165, Santurce, PR 00908 

(Certified Mail) 

/f b 

1982 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 271987 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

: 

CONTEST PROCEEDING 

Docket No. SE 87-49-R 

Ord~r No. 2842983; 1/7/87 

Matthews Mine 

CIVIL PENALTY PROCEEDING 

Docket No. SE 87-86 

A.C. No. 40-00520-03620 

Matthews Mine 

DECISION APPROVING SETTLEMENT 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On October 27, 1987, the parties filed a joint motion 

to approve settlement together with exhibits. On November 9u 

and November 19v 1987u the Secretary filed supplements to the 

motion at my request. 

In the contest proceeding, Consol seeks review of an 

imminent aanger withdrawal order issued under section 107(a) 

of the Ac~. The penalty case seeks penalties for four alleged 

violations of 30 C.F.R. § 75.1704v each originally assessed 

at $500. The motion states that the parties agree to settle 

each violation for $300. The l07(a} order was issued because 

the Inspector concluded that the four violations collectively 

constituted an imminent danger. 

The violations resulted from rock falls which blocked four 

separate areas in the intake escapeways in the subject mine. 

The motion states that the Secretary now believes that the 

107(a) order was issued in error, and that the gravity of 

the violations was not as serious as originally thought because 

there were two travellable escapeways for all persons to 

exit the mine. 

1983 
I have considered the motion in the light of the criteria 

in section llO(i) of the Act and conclude that it should 

be approved. 

Accordingly, the settlement is APPROVED and Respondent 

'is ORDERED TO PAY the sum of $1200 within 30 days of the 

date of this order. 

IT IS FURTHER ORDERED that Order No. 2842983 is VACATED, 

and the review proceeding is DISMISSED. 

Distribution: 

/J~11u§ .P:£vdtt1~} t/ ~ames A. Broderick 

Administrative Law Judge 

Joseph B. Luckett, Esq., U.S. Department of Labor, Office of 

the Solicitor, 2002 Richard Jones :Road, Suite B-201, Nashville, 

TN 37215 (Certified Mail) 

Michael R. Peelish, Esq., Consolidation Coal Co., 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

slk 

19 84 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA}, 

Petitioner 

v. 

ELMHURST-CHICAGO STONE COMPANY~ 

Respondent 

November 30, 1987 

CIVIL PENALTY PROCEEDI.NG 

Docket No. LAKE 87-76-M 

A. C. No. 11-02707-05510 

Elmhurst Underground No. 1 

.DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Broderick 

The Solicitor has filed a motion to approve a settlement of 

the one violation involved in this case. The original assessment was $7,000 and the proposed settlement is for $4,500. 

The Solicitor's motion discusses the violation in light of 

the six statutory criteria set forth in section llO(i) of the 

Act. The subject citation was issued for a violation of 30 C.F.R. 

§ 57.3022 because loose ground was not taken down or supported before other work was done in drift EE easto An MSHA investigation concluded that this violation caused a fatal fall-of-face 

accident when two miners entered the area to survey for the 

center line to be used by the drillers to establish a drilling 

pattern. A slab of rock, 12 feet by 7 feet and 30 to 36 inches 

thick, fell from the face and struck both miners. One miner 

received fatal injuries, and the other was seriously injured. The Solicitor represents that a reduction from the original 

assessment is warranted because the cited area had been marked 

off following a blast, but the scaling crew had not barred the 

loose material" Thus9 the miners should not have entered the 

area 9 especially in light of the operator 1 s rule against working 

in unscaled areas and the fact that the cited area was marked. I 

accept the foregoing representations and approve the recommended 

settlement. 

1985 
Accordingly, the motion to approve settlement is GRANTED and 

the operator is ORDERED TO PAY $4,500 within 30 days from the 

date of this decisian. 

t;;:. ~;:f:;:eL Acting Chief Administrative Law Judge 

Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department of labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 

60604 (Certified Mail) 

Robert H. Brown, Esq., Laner, Muchin, Dombrow and Becker, Ltd., 

350 North Clark Street, Chicago, IL 60610-4796 (Certified Mail) 

Mr. Charles Hammersmith, Jr., Executive Vice President, Elmhurst 

Chicago Stone Company, 400 West First Street, Elmhurst, IL 60126 

(Certified Mail) 

I gl 

1986 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

MB1E SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

COLORADO WESTMORELAND 

INCORPORATED, 

'Respondent 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

NOV 301987 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 87-219 

A.C. No. 05-04184-03504 

Orchard Valley West Mine 

ORDER GRANTING PETITIONER'S MOTION TO VACATE CITATION AND 

PROPOSAL FOR PENALTY AND ORDER OF DISMISSAL 

Before: Judge Cetti 

On March 19, 1987, respondent was issued an order (later 

modified to a citation) for a violation of 30 C.F.R. § 75.400. 

That standard required combustible materials be cleaned up and 

not permitted to accumulate. Respondent cleaned up the combustible material based on its understanding of what was 

acceptable to MSHA. 

Because of respondent's reliance on its understanding of 

MSHA 0 s requirements, petitioner moves that the citation and 

proposed penalty be vacatedo 

Good cause having been shownu petitioner 1 s motion that the 

citation and the proposed penalty be vacated is granted and this 

proceeding is dismissed. 

-~~ e:tt_. ~~~-1;1;.~:-~ __ :;tti Adrrlinistrative Law Judge 

Distribution~ 

James Ho Barkley 6 Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Ra Lincoln Derick, Manager, Safety and Training, Colorado Westmoreland Inc., P.O. Box 1299, Paonia, CO 81428 (Certified Mail) 

/ot 

1987 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 301987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF DAVID WILLIS, 

Complainant 

v. 

BABCOCK MINING CO.; 

HENRY McCOY, Individually 

. 

. 

. 

. 

. . 

and as Operator of Babcock 

Mining Co.; VIRGIL MCMILLION,: 

Individually and as Operator 

of McMillion Enp.~.Inc., · MCMILLION ENP., INC., 

Respondents 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 87-106-D 

HOPE CD 86-24 

HOPE CD 87-2 

No. 1 Mine 

CORRECTION OF CLERICAL ERROR IN DECISION 

Before: Judge Fauver 

The Supplemental Default Decision dated November 20, 1987, 

is amended to correct the following clerical error: the 

Complainant's name in Finding of Fact No. 1 is changed to "David 

Willis." 

-W~~v~ Administrative Law Judge 

Distributiong 

Carol Bo Feinbergv Esqov Office of the Solicitorp U.S. 

Department of Laborv Room 516v 4015 Wilson Boulevardv Arlington, 

VA 22203 (Certified Mail) 

Virgil McMillionv Presidentv McMillion Enp. 9 Inc. 0 Box 13 0 

Renickc WV 24966 (Certified Mail) 

R.So Bailey, President, Craft Coal Company 8 State Route 15, 

Montervillev WV 26282 (Certified Mail) 

Babcock Mining Company, c/o Drew Hunter, Secretary, P.O. Box 

2057, Ashland, KY 41105 (Certified Mail) 

Mr. Henry McCoy, Babcock Mining Company, P.O. Box 2857, Ashland, 

KY 41105 {Certified Mail) 

kg 

1988 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH. VIRGINIA 22041 

November 30, 1987 

(originally dated Nov. 20, 1987) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF DAVID WILLIS, 

Complainant 

v. 

BABCOCK MINING CO.; 

HENRY McCOY, Individually 

. . 

. . 

. . 

and as Operator of Babcock 

Mining Co.; VIRGIL McMILLION,: 

Individually and as Operator : 

of McMillion Enp., Inc., 

McMILLION ENP., INC., 

Respondents 

D~CRIMINATION PROCEEDING 

Docket No. WEVA 87-106-D 

HOPE CD 86-24 

HOPE CD 87-2 

No. 1 Mine 

SUPPLEMENTAL DEFAULT DECISION 

Bef oce: Judge Fauver 

Pursuant to the Default Decision entered on October 20, 

1987, and the affidavits filed with Complainant's proposed order 

for relief, the following further Fiildings of Fact, Conclusions 

of Law and Order are entered herain~ 

FINDINGS OF FACT 

1. Complainant David Willis worked an average of 44 

hours per week at Babcock Mining Co., and earned a regular rate 

$10000 per hour, and an overtime rate of $15.00 per hour. 

2" Mr. Willis was discriminatorily fired from Babcock 

Mining Co. on September 29v 1986,.and subsequently reinstated on 

October 1 u. 19 8 6. Mr" Willis was again discriminator i ly f i:ced 

from Babcock Mining Co. on October 20, 1986. Babcock Mining Co. 

ceased operations on December 10, 1986" 

3. McMillion Enp., Inc., began operating the subject mine 

on January 5, 1987, and ceased operations on February 13, 1987. 

4. Mr. Willis was not successful in finding employment 

between October 20, 1986 and February 13, 1987. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

1989 
2. Respondents violated § lOSCc) of the Federal Mine Safety 

and Hea~th Act, 30 C.F:R: § 801 et~ as alleged in this 

proceeding. They are Jointly and severally liable for back pay 

due David Willis totalling $6,340.00, together with interest of 

$570.60, which has been computed in accordance with the formula 

set forth in Secretary ex rel. Bailey v. Arkansas Carbona 

Company, 5 FMSHRC 2042 (1983). 

3. Respondents are assessed a civil penalty of $550.00 for 

the above violation, and they are jointly and severally liable 

for such civil penalty. 

4. Respondent Babcock Mining Co. is jointly and severally 

liable with the other Respondents for the above back pay, 

interest, and civil penalty. However, inasmuch as Babcock Mining 

Co. has filed for bankruptcy, an order requiring it to make such 

payments will not be entered in this proceeding. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Respondents Henry McCoy, Virgil McMillion and McMillion 

Enp.u Inc., shall pay the above back pay of $6,340.00 and 

interest of $570 .60 to Complainant D.avid Willis within 30 da2rn of 

this Order. If payment is not made within such period, interest 

on the back pay shall continue to accrue under the formula in the 

above Arkansas Carbona Company decision until payment in full is 

made to David Willis. 

2o Respondents Henry McCoy, Virgil McMillion and McMillion 

Enpo, Inco~ shall pay the above civil penalty of $550000 within 

30 days of this Ordero 

Distribution~ 

~~WY~ William Fauver 

Administrative Law Judge 

Carol Bo Feinberg, Esq., Office of the Solicitor, U.S. 

Department of Laborv Room 516, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

Virgil McMillion, President, McMillion Enp., Inc., Box 13, 

Renick, WV 24966 (Certified Mail) 

R.So Bailey, President, Craft Coal Company, State Route 15, 

Monterville, WV 26282 (Certified Mail) 

Babcock Mining Company, c/o Drew Hunter, Secretary, P.O. Box 

2057, Ashland, KY 41105 (Certified Mail) 

1990 
Mr. Henry McCoy, Babcock Mining Company, P.O. Box 2857, Ashland, 

KY 41105 (Certified Mail) 

kg 

1991 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 301987 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF ALBERT HALSTEAD, 

Complainant 

v. 

BABCOCK MINING co.~ 

HENRY McCOY, Individually 

and as Operator of Babcock 

Mining Co.; VIRGIL McMILLION,: 

Individually and·~~ Operator 

of McMillion Enp., Inc., 

MCMILLION ENP., INC., 

Respondents 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 87-107-D 

HOPE CD 87-1 

HOPE CD 87-4 

No. 1 Mine 

CORRECTION OF CLERICAL ERRORS IN DECISION 

Before: Judge Fauver 

The Supplemental Default Decision dated November 20, 1987, 

is amended to correct the following clerical errors: the 

Complainant's name in Conclusion of Law No. 2 and in paragraph 1 

of the Order is changed to "Albert Halstead." 

-cd~~~- William·~ 

Administrative Law Judge 

Distribution~ 

Carol B. Feinbergu Esq., Office of the Solicitor, U.S. 

Department of Laboru Room 516, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

Virgil McMillion, President, McMillion Enp.u Inc.u Box 13, 

Renick, WV 24966 (Certified Mail) 

R.S. Bailey, President, Craft Coal Company, State Route 15, 

Mqnterville, WV 26282 (Certified Mail) 

Babcock Mining Company, c/o Drew Hunter, Secretary, P.O. Box 

2057, Ashland, KY 41105 (Certified Mail) 

Mr. Henry McCoy, Babcock Mining Company, P.O. Box 2857, Ashland, 

KY 41105 (Certified Mail) 

kg 

1992 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

November 30, 1987 

(originally Nov. 20, 1987) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL·rH 

ADMINISTRA'rION (MSHA), 

ON BEHALF OF ALBER·r HALSTEAD, 

Complainant 

v. 

BABCOCK MINING CO.; 

HENRY McCOY, Individually 

and as Operator of Babcock 

Mining Co.; VIRGIL MCMILLION,: 

Individually and as Operator 

of McMillion Enp., Inc., 

McMILLION ENP., INC., 

Respondents 

DI~CRIMINATION PROCEEDING 

Docket No. WEVA 87-107-D 

HOPE CD 87-1 

HOPE CD 87-4 

No. 1 Mine 

SUPPLEMENTAL DEFAULT DECISION 

Before: Judge Fauver 

Pursuant to the Default Decision entered on October 20, 

1987v and the affidavits filed with Complainant's proposed order 

for reli f the following further Findings 0£ Factu Conclusions 

of Law and Order are entered herein~ 

FINDINGS OF FACT 

lo Complainant Albert Halstead worked an average of 44 

hours per week at Babcock Mining Co., and earned a regular rate 

of $10.00 houru and an ove~time rate of $15.00 per hour. 

2. Mr. Halstead was discriminatorily fired from Babcock 

Mining Co. on October 4, 1986 and subsequently reinstated on 

October 9, 1986. Mr. Helstead was aJain discriminatorily fired 

from Babcock Mining Co. on.October 20, 1986. Babcock Mining Co. 

ceased operations on December 10, 1986. 

3. McMillion Enp., Inc., began operating the subject mine 

on January 3, 1987. 0n January 12, 1987, Mr. Halstead was 

offered a job at McMillion Enp. Inc. McMillion Enp., Inc., 

ceased operations on FebruarJ 13, 1987. 

4. Between October 20, 1986 and December 10, 1986, and 

between January 5, 1987 and January 12, 1987, Mr. Halstead earned 

a total of $1,081.00 at other jobs. 

1993 
CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

2. Respondents violated§ 105(c) of the Federal Mine Safety 

and Health Act, 30 C.F.R. § 801 et~ as alleged in this 

proceeding. They are jointly and severally liable for back pay 

due Albert Halstead totalling $3,279.0Q, together with interest of 

$295.11, which has been computed in accordance with the formula 

set forth in Secretary ex rel. Bailey v. Arkansas Carbona 

Company, 5 FMSHRC 2042 (1983). 

3. Respondents are assessed a civil penalty of $700.00 for 

the above violation, and they are jointly and severally liable 

for such civil penalty. 

4. Respondent Babcock Mining Co. is jointly and severally 

liable with the other Respondents for the above back pay, 

interest, and civil penalty .. However, inasmuch as Babcock Mining 

Co. has filed for ba,nkruptcy, an order requiring it to make such 

payments will not be entered in this proceeding. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. Respondents Henry McCoy, Virgil McMillion and McMillion 

Enp., Inc., shall pay the above back pay of $3,279.00 and 

interest of $295.11 to Complainant Albert Halstead within 30 days of 

this Order. If payment is not made within such period, interest 

on the back pay shall continue to accrue under the formula in the 

above Arkansas Carbona Company decision until payment in full is 

made to David Williso 

2o Respondents Henry McCoyu Virgil McMillion and McMillion 

Enp.v Inco, shall pay the above civil penalty of $700.00 within 

30 days of this Order" 

~ 1-M\ll~ William Fauver 

Administrative Law Judge 

Distribution~ 

Carol Bo Feinberg, Esq., Office of the Soli9itor, U.So 

De9artment of Labor, Room 516, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

Virgil McMillion, President, McMillion Enp., Inc., Box 13, 

Renick, WV 24966 {Certified Mail) 

R.S. Bailey, President, Craft Coal Company, State Route 15, 

Monterville, WV 26282 (Certified Mail) 

1994 
Babcock Mining Company, c/o Drew Hunter, Secretary, P.O. Box 

2057, Ashland, KY 41105 (Certified Mail> 

Mr. Henry McCoy, Babcock Mining Company, P.O. Box 2857, Ashland, 

KY 41105 {Certified Mail) 

kg 

1995 
*U• S, GOVERNMENT PRINTING OFFICE 1987: 201-735/72930 

1996