i

October 2017 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

10-05-17 CONSOL PENNSYLVANIA COAL 

COMPANY 

PENN 2013-385 Page 1893 

10-19-17 NALLY & HAMILTON 

ENTERPRISES, INC.

KENT 2012-749 Page 1938

COMMISSION ORDERS 

10-10-17 A & G COAL CORPORATION VA 2014-243 Page 1941

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-03-17 WEVA 2016-0123 Page 1947

10-03-17 WEVA 2017-0158 Page 1953

10-19-17 WEST 2017-0135-

DM 

Page 1957

10-31-17

CONSOLIDATION COAL CO. now 

THE OHIO COUNTY COAL CO.

ARGUS ENERGY WV, LLC 

HEATHER MULFORD v. 

ROBINSON NEVADA MINING 

COMPANY 

SEC. OF LABOR and JONATHAN 

HOLSKEY v. PENNYRILE 

ENERGY, LLC 

KENT 2018-0004-D Page 1979
ii

ADMINISTRATIVE LAW JUDGE ORDERS 

10-16-17 SEC. OF LABOR O/B/O LOUIS 

SILVA JR. v. AGGREGATE 

INDUSTRIES WRC, INC. 

WEST 2017-0482-

DM 

Page 1997

10-24-17 PANTHER CREEK MINING, LLC WEVA 2017-426 Page 2001

10-26-17 CONSOL PENNSYLVANIA COAL 

COMPANY LLC 

PENN 2017-0222 Page 2003

10-26-17 KEITH MILLER, employed by OAK 

GROVE RESOURCES, and CHASE 

GUIN, formerly employed by OAK 

GROVE RESOURCES, and 

WILLIAM EDWARDS, employed by 

OAK GROVE RESOURCES 

SE 2017-0092 Page 2006

10-30-17 A&G COAL CORPORATION VA 2014-243 Page 2009
iii

Review was granted in the following case during the month of October 2017: 

Secretary of Labor v. A & G Coal Corporation, Docket Nos. VA 2014-243, et al. (Judge 

Simonton, August 30, 2017) 

Review was denied in the following cases during the month of October 2017: 

Secretary of Labor obo Larry Groves v. Con-Ag, Inc., Docket No. LAKE 2017-117 DM (Judge 

Miller, September 6, 2017) 

Secretary of Labor obo Jeffery Reel v. The Monongalia County Coal Company, Docket No. 

WEVA 2017-259 D (Judge Lewis, July 6, 2017) (Interlocutory Review) 

COMMISSION DECISIONS
39 FMSHRC Page 1892
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

October 5, 2017 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket No. PENN 2013-385 

 v. 

CONSOL PENNSYLVANIA

 COAL COMPANY 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2012) (“Mine Act”). It involves a citation and order issued to Consol Pennsylvania

Coal Company (“Consol”) by the Department of Labor’s Mine Safety and Health Administration

(“MSHA”). The citation alleges a “significant and substantial” (“S&S”)1 violation of the safety

standard in 30 C.F.R. § 75.370(a)(1)2 because the operator failed to comply with its approved

mine ventilation plan’s directive to maintain the bleeders safe for travel.3

 The order alleges an

S&S violation of the safety standard in 30 C.F.R. § 75.364(h)4 for the failure to note hazardous

accumulations of water in the record book. Both violations were alleged to be highly likely to

1

 The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. 

§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and

substantially contribute to the cause and effect of a . . . mine safety or health hazard.”

2

 30 C.F.R. § 75.370(a)(1) provides that “[t]he operator shall develop and follow a 

ventilation plan approved by the district manager. The plan shall be designed to control methane 

and respirable dust and shall be suitable to the conditions and mining system at the mine.” 

3

 Page 4, Line AA, of the operator’s approved mine ventilation plan states that “[t]he 

means for maintaining the bleeder safe for travel will include compressed air lines routed 

underground, used in conjunction with air pumps to remove water as necessary to permit safe 

travel through the perimeter of the bleeder system.” Gov’t Ex. 3 at 000009. 

4 30 C.F.R. § 75.364(h) provides that “[a]t the completion of any shift during which a 

portion of a weekly examination is conducted, a record of the results of each weekly 

examination, including a record of hazardous conditions . . . found during each examination and 

their locations, the corrective action taken . . . shall be made.” 

39 FMSHRC Page 1893
result in fatal injury, the result of the operator’s high negligence, and an unwarrantable failure5

 to 

comply with the cited standard. 

 

After a hearing, the Judge affirmed both violations and upheld the S&S, gravity, high 

negligence, and unwarrantable failure designations. 37 FMSHRC 1616 (July 2015) (ALJ). The 

Commission granted the operator’s petition for discretionary review challenging these findings. 

 

The Commission: 

 

1. Unanimously affirms the determination that the citation involved an S&S violation. 

2. Remands by a majority vote the determinations of gravity, negligence, and 

unwarrantable failure for the citation, the determinations of gravity and unwarrantable 

failure for the order, and the penalty assessments for both violations.6 While 

Commissioner Cohen joins the Acting Chairman and Commissioner Young in 

remanding these issues, he writes separately on negligence for the citation and 

unwarrantable failure for both the citation and the order. 

3. Is evenly divided on the S&S and negligence determinations for the order. The Acting 

Chairman and Commissioner Young would reverse the S&S determination and 

remand the negligence determination for the order, while Commissioner Cohen joins 

Commissioner Jordan in affirming both the S&S and negligence determinations. 

Therefore, because there is no majority on these issues, the Judge’s determinations 

shall stand as if affirmed. Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563 (Aug. 

1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992). 

The following opinion, by all four Commissioners, sets forth the factual and procedural 

background and a single portion of the disposition where all four Commissioners unanimously 

affirm that the citation involved an S&S violation. 

Following this opinion, the Acting Chairman and Commissioner Young set forth their 

separate opinion on the remaining issues, i.e., gravity, negligence and unwarrantable failure for 

the citation, and S&S, gravity, negligence and unwarrantable failure for the order. 

Following their opinion, Commissioner Jordan sets forth her separate opinion on the 

issues of gravity, negligence, and unwarrantable failure for the citation, and S&S, gravity, 

negligence and unwarrantable failure for the order. 

 5

 The unwarrantable failure terminology is taken from section 104(d)(1) of the Act, 30 

U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused by 

“an unwarrantable failure of [an] operator to comply with . . . mandatory health or safety 

standards.” 

6

 The Judge who issued the decision has retired. 

39 FMSHRC Page 1894
Following her opinion, Commissioner Cohen sets forth his separate opinion indicating 

where he joins the Acting Chairman and Commissioner Young, where he joins Commissioner 

Jordan, and where he writes separately from each Commissioner. 

I.

Factual and Procedural Background 

A. General Background 

Consol operates the Enlow Fork Mine, a large underground coal mine in western 

Pennsylvania. The mine is divided into numerous districts of longwall panels identified by letter 

and subdivided by the numbered panels within that district. Each longwall panel runs east to west 

for approximately two miles while the longwall face is approximately 1000 feet across. 

The E-district bleeder system ventilates the mined-out E-15 to E-22 longwall panels.7

 In 

accordance with 30 C.F.R. § 75.364(a), the system must be examined weekly. During a bleeder 

exam, an examiner is required to check the ventilation at designated evaluation points throughout 

the bleeder. At the time of the violations herein, examiners walked the bleeders alone.8 37 

FMSHRC at 1619. 

The ventilation plan required that the examiner be able to pass safely throughout the 

bleeder without being exposed to excessive accumulations of water. Water is cleared from the 

bleeders by pumps. The operator’s ventilation plan permitted a system of 18-23 air pumps to 

reroute water accumulations in the bleeders. These air pumps dumped water into a sump that was 

10 to 11 feet deep. Two discharge lines transferred water from the sump to an underground 

retaining pool.9 Id. at 1619-20. The operator also had a backup surface sump pump, which was 

not included in the ventilation plan and which was used only during emergencies such as when 

air pumps malfunctioned. Originally, the operator was required to activate the sump pump 

manually, but a bubbler system later was installed to activate the pump automatically when water 

reached a set level. The surface sump pump transferred water to three outdoor tanks with a total 

combined capacity of 63,000-64,000 gallons. When the tanks were full, trucks would unload 

them. Id. at 1621. 

On November 20, 2012, MSHA Inspector Walter Young issued a citation to Consol after 

he observed accumulations of water in the E bleeder district more than 36 inches deep in some 

 7

 “Bleeder entries” are defined as “panel entries driven on a perimeter of a block of coal 

being mined and maintained as exhaust airways to remove methane promptly from the working 

faces to prevent buildup of high concentrations either at the face or in the main intake airways.” 

Am. Geological Institute, Dictionary of Mining, Mineral, and Related Terms 55 (2d ed. 1997). 

8

 By the time of the hearing, a company-wide policy required bleeder examiners to travel 

in pairs. 

9

 Historically, most water accumulations in the bleeder system have been clear, though 

some could be cloudy, orange, and murky from magnetite and sulfur. Tr. 488-89. 

39 FMSHRC Page 1895
areas. Gov’t Ex. 7. On December 10, 2012, Inspector Young again cited the operator for 

accumulations of water in the E bleeder district; the depth of the water exceeded 24 inches in 

certain areas. Gov’t Ex. 8. The inspector designated both violations as reasonably likely to result 

in lost workdays and/or restricted duty. In the latter citation, the inspector informed the operator 

that similar violations in the future might lead to greater enforcement action by MSHA. Gov’t 

Ex. 8. 

After the December 10 citation, Consol conducted additional exams in the bleeder. It also 

installed a monitoring system for the surface sump pump. The computer monitors showed air 

pressure in the bubbler rather than inches of water in the bleeders, and displayed visual alarms 

when the sump pump was activated or when the surface tanks were full. 37 FMSHRC at 1624. 

However, the monitoring system failed to work consistently, due in part to equipment failures. 

For example, a power outage in the mine on February 1, 2013 might have caused the air pumps 

to malfunction. The surface pump malfunctioned before February 5, 2013, the date of the citation 

at issue, due to a hole in its bubbler tubing. 

B. Events of February 5-6, 2013 

Sometime before 4:00 a.m. on February 5, 2013, Dan Stalnaker, a certified examiner, 

entered the E-15 side of the bleeder district.10 Stalnaker encountered an accumulation of water 

near the E-15 sump; the water contained debris, gridlocks, and pieces of wood but was otherwise 

relatively clear. Stalnaker donned chest waders that had been left in the mine, and attempted to 

continue his examination. In total, he was able to take ventilation readings at three evaluation 

points. He tried to bypass the water by traveling through a man door that was three feet high. 

However, water poured into his waders when he bent over trying to pass through the doorway, 

and his methane detector became wet. Stalnaker left the bleeder district between 4:00 and 4:30 

a.m. and informed shift foreman Robert Price and mine foreman Mike Giavonelli that he could 

not complete his bleeder exam because of the wet gas detector. 37 FMSHRC at 1630. 

After Stalnaker reported the problem with the bleeder, Price and Giavonelli took separate 

actions. Giavonelli sent a miner to check whether the surface sump pump was functioning 

properly. The miner discovered that the surface pump was not running, and at approximately 

5:05 a.m. he bypassed the bubbler, solving the problem. Meanwhile, Price instructed another 

examiner, Kevin Saunders, to complete the bleeder exam by starting from the opposite direction 

of the bleeders as Stalnaker. Id. at 1630-31. 

Saunders entered the E-22 side of the bleeder district and traveled through water up to 

three feet deep between E-21 and E-19. At 10:00 a.m., Saunders encountered waist-deep water 

near the E-15 sump area that Stalnaker had intended to examine, and retreated before he could 

complete the exam. Id. at 1631. 

Stalnaker and Saunders combined to inspect all but two of the ventilation evaluation 

points in the E bleeder district — the E tailgate overcast and the E tailgate #2 entry (which were 

near the E-15 sump). Gov’t Ex. 3 at 000045; 37 FMSHRC at 1637. The entries in the record 

 10 Stalnaker was conducting the exam in place of Jamie Greene, the regular examiner for 

the E bleeder district. 37 FMSHRC at 1629-30. 

39 FMSHRC Page 1896
book for the overcast and #2 entry in the E tailgate were left blank. Despite this deficiency, 

Foreman Giavonelli countersigned the record book. While Giavonelli was aware of the hazard 

from a conversation with Stalnaker, it is undisputed that neither Giavonelli nor Stalnaker nor 

Saunders noted the existence of hazardous water accumulations in the record book. 37 FMSHRC 

at 1658-59.11

 

At around 10:00 a.m. on February 5, MSHA received a section 103(g)12 complaint 

regarding water accumulation in the E bleeder district. Gov’t Ex. 3 at 000011. MSHA Inspector 

William Gross, who was performing a regular quarterly inspection of the mine, was informed of 

the complaint and began an inspection of the bleeders around E-15 through E-22 in the E bleeder 

district sometime after 11:30 a.m. Gross and Consol employee John Brottish entered the bleeder 

from the E-15 side. Gross found water ranging from 12 to 42 inches in depth, observing that it 

was murky and obscured the walkway in some areas. He also noted that the area near the E-15 

sump was completely flooded.13 Gross finished his inspection between 8:30 and 9:00 p.m. that 

day. 37 FMSHRC at 1626-27. During Inspector Gross’ examination he walked with Brottish 

virtually the entire length of the bleeder before eventually withdrawing as a result of deep water 

at the E-15 sump area that Stalnaker had sought to inspect. During this inspection, Inspector 

Gross and Brottish passed through and beyond the area of 36 inch water through which Saunders 

had walked previously in the E-19 to E-21 area. 

Inspector Young arrived at about 9 p.m. to relieve Gross and complete the inspection. 

Young had previously cited similar violations in this area of the mine in November and 

December of 2012. He testified that his policy was to cite the bleeder for hazardous 

accumulations of water only when one of the following conditions was met: (1) water was taller 

than his 18-inch boots, (2) water extended over a large area, (3) water was discolored, or (4) 

water contained tripping hazards. Id. at 1624. 

At around 11:00 p.m., Inspector Young spoke to Stalnaker and Saunders about their 

examinations. Young entered the bleeder at about 2:00 a.m. on February 6. Young observed the 

E-15 area but did not continue to the opposite side of the bleeder district; therefore, Young did 

not observe the conditions in E-19 through E-22. Tr. 118. At E-15, Young checked the man door 

 11 The ventilation plan required a weekly examination of the bleeder. Therefore, the 

operator had until midnight on February 5 to complete the examination. 

12 Section 103(g) of the Mine Act provides that “[w]henever . . . a miner . . . has 

reasonable grounds to believe that a violation of . . . a mandatory health or safety standard exists 

. . . such miner . . . shall have a right to obtain an immediate inspection by giving notice to the 

Secretary . . . of such violation.” 30 U.S.C § 813(g). The section 103(g) complaint stated as 

follows: “I overheard firebosses saying that the E-15 bleeders [were] flooded today. Can this 

cause ventilation problems and blow up the mine? Please look into this[.] [T]hanks.” Gov’t Ex. 3 

at 000011. 

13 As the Judge noted, Gross testified that if he had been alone, he would not have entered 

the water because no one could have helped him if he fell. Later, after returning to the MSHA 

office, Gross was verbally reprimanded by the assistant district manager for entering water that 

deep. 

39 FMSHRC Page 1897
Stalnaker had attempted to use on February 5 and found that the water was two feet deep, even 

though the pump had been running for 20 hours by that time. After inspecting the E-15 area, 

Inspector Young issued Citation No. 7024068 and Order No. 7024069 to the operator.14 37 

FMSHRC at 1628-39. Young believed that the root cause of the water accumulations in the E 

bleeder district was Consol’s failure to check the bleeder entries and equipment after the 12-hour 

power outage earlier in the week. Id. at 1632. He was not aware, however, that Consol examiner 

Greene had examined the bleeder the day before (February 4), and that the water had 

accumulated after that examination. Id. at 1651. 

The citation alleged a violation of 30 C.F.R. § 75.370(a)(1) for failure to comply with the 

mine’s approved mine ventilation plan. The citation alleged that the bleeders were not 

maintained for safe travel because there were accumulations of water from 12 to 42 inches in 

depth, for a total distance of 2350 feet.15 Moreover, the citation noted that the mine floor in this 

area could be irregular and contained rib sloughage and other tripping hazards. Gov’t Ex. 1; 37 

FMSHRC at 1628-34. The order alleged a violation of 30 C.F.R. § 75.364(h) in that the 

operator’s agents had failed to note the hazardous water accumulations in the record book. 

Inspector Young designated both the citation and order as being S&S, highly likely to 

cause two fatal injuries, and a result of the operator’s high negligence and unwarrantable failure 

to comply with the cited standards. Tr. 126. MSHA proposed a penalty of $14,373 for the 

citation and $14,743 for the order. 37 FMSHRC at 1661-62. 

C. The Judge’s Decision 

The Judge found that both the citation and order were S&S, highly likely to result in two 

fatal injuries, and a result of the operator’s high negligence and unwarrantable failure. Consol 

does not contest either finding of violation; it does contest the negligence, gravity, S&S, 

unwarrantable, and penalty determinations. 

 The Judge found that the citation was properly designated as S&S and likely to result in 

fatal injuries because a miner traveling alone might trip or stumble and drown in the deep water. 

The Judge found that the citation was a result of high negligence because the operator knowingly 

exposed examiners to the cited hazard. With regard to unwarrantable failure the Judge 

determined that the cited hazard was extensive, obvious and posed a high degree of danger; that 

the operator knew of the violation prior to Saunders’ exam; that the operator was on notice that 

greater efforts were needed for compliance; and that the violation was a result of high 

negligence. Id. at 1642-1654. 

Regarding the order, the Judge determined it was properly designated as S&S and highly 

likely to result in fatal injury because the failure to record the hazard made it likely that more 

 14 Sometime after Young arrived at the mine, Andy Yablonsky, an employee of the 

operator, finished the ventilation exam including inspecting the two bleeder evaluation points 

that neither Stalnaker nor Saunders were able to inspect. Therefore, Inspector Young did not cite 

the operator for failing to complete a ventilation exam. 37 FMSHRC at 1638. 

15 The distance was later amended from 2350 feet to 2250 feet. Gov’t Ex. 1 at 4. 

39 FMSHRC Page 1898
miners would be exposed to the conditions described in the citation. The Judge affirmed high 

negligence for the order because three examiners and foremen, who were aware of the hazard, 

failed to note it in the record book. She affirmed the unwarrantable failure findings because the 

citation was the result of an unwarrantable failure, and the relevant facts for the order were 

identical. Id. at 1654-61. 

II. 

Disposition 

A. Citation No. 7024068

Significant and Substantial 

Substantial evidence supports the Judge’s finding that the violation was significant and 

substantial. A violation is S&S if, based on the particular facts surrounding the violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 

1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission further explained: 

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

is significant and substantial under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard — that is, a measure of 

danger to safety — contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving 

Mathies criteria). 

Consol does not contest the finding that the accumulations of water violated the 

ventilation plan’s requirement that the bleeders be maintained safe for travel, thus satisfying the 

first element of the Mathies test. 

The second element of the test, whether the violation contributed to a discrete safety 

hazard, is also supported by substantial evidence. The bleeder district contained deep water with 

various tripping hazards, including uneven floor and debris. Tr. 723-24. Stalnaker and Saunders 

were exposed to these water accumulations. 37 FMSHRC at 1630. In walking through the water, 

they both became extremely wet, and Stalnaker had his methane detector get wet and fail when 

he attempted to climb through a mandoor. Id. Some of the water accumulations were so murky 

that a miner would not be able to see his feet or tripping hazards as he walked through the water. 

Tr. 121, 172, 312, 348, 354-56, 392-95, 411-12. Hence, it was reasonably likely that a miner 

could trip and fall while walking through the water. Tr. 121-22, 143, 230. 

39 FMSHRC Page 1899
Consol argues that the “hazard” identified in the second element of the Mathies test must 

be a hazard contemplated by the standard, and that 30 C.F.R. § 75.370(a)(1) is directed at 

ventilation issues, not tripping hazards.16 However, the determination of adequate ventilation in 

the bleeder requires examinations on a weekly basis. Examinations presuppose that the 

examiners will be able to safely travel to the places within the mine where the examinations must 

be conducted. Thus, Paragraph AA of the Enlow Fork Mine’s approved ventilation plan requires 

that the walkways in the bleeder entries be maintained in a manner safe for travel. 

Tr. 56; Gov’t Ex. 1. The requirement of a safe travelway is inextricably intertwined with the 

ventilation plan requirements of section 75.370. 

As to the third element of the Mathies test, substantial evidence supports the finding of a 

reasonable likelihood that the hazard contributed to would result in injury. The Judge credited 

competent testimony that a miner who tripped and fell was, at a minimum, reasonably likely to 

suffer reasonably serious injuries such as broken bones. Tr. 121-22. 

A reasonable likelihood of broken bones satisfies the fourth element of Mathies. The 

Commission has long recognized that broken bones and other injuries likely to result from a tripand-fall accident are sufficiently serious in nature to support an S&S designation. See, e.g., 

Maple Creek Mining, Inc., 27 FMSHRC 555, 562-63 (Aug. 2005) (affirming a Judge’s 

conclusion that serious injuries such as leg or back injuries would arise from the failure to 

maintain an escapeway in a safe condition); Buffalo Crushed Stone Inc., 19 FMSHRC 231, 238 

n.9 (Feb. 1997) (concluding that slipping on a walkway would result in reasonably serious 

injuries such as a finger or a wrist fracture); S. Ohio Coal Co., 13 FMSHRC 912, 918 (June 

1991) (affirming a Judge’s conclusion that a trip-and-fall accident would result in reasonably 

serious injuries such as “sprains, strains, or fractures”). A trip-and-fall accident resulting in 

broken bones was especially serious here, where the bleeder examiner walked long distances by 

himself over rough terrain, with no communications link to the surface or to any other miner. Tr. 

36-39, 705-06; see 37 FMSHRC at 1622. 

Consol notes an absence of previous injuries, the fact that only careful examiners entered 

the area, and its rapid action to abate the condition. These facts, however, do not refute the 

Judge’s S&S finding. The Commission has noted that “[t]he fact that injury has been avoided in 

the past or in connection with a particular violation may be ‘fortunate, but not determinative’” of 

the question of whether a violation was S&S. U.S. Steel Mining Co., 18 FMSHRC 862, 867 

(June 1996) (quoting Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)). Further, the 

exercise of caution is not an element in determining the likelihood of injury once the reasonable 

likelihood of the occurrence of the hazard is established, because “[w]hile miners should, of 

course, work cautiously, that admonition does not lessen the responsibility of operators, under 

the Mine Act, to prevent unsafe working conditions.” Eagle Nest, Inc., 14 FMSHRC 1119, 1123 

 16 Consol relies on an ALJ decision in Oak Grove Resources, 34 FMSHRC 594 (Mar. 

2012) (ALJ), but acknowledges that other Commission Judges have held to the contrary. See 

Consolidation Coal Co., 15 FMSHRC 1408, 1413-15 (July 1993) (ALJ); Oak Grove Res., 35 

FMSHRC 3039, 3052 (Sept. 2013) (ALJ). 

39 FMSHRC Page 1900
(July 1992).17 Finally, when determining whether a violation is S&S, abatement after the 

violation is cited should not be considered. Crimson Stone v. FMSHRC, 198 F.App’x. 846, 851 

(11th Cir. 2006). 

Substantial evidence and sound legal authority support the Judge’s conclusions. 

Therefore, we affirm the finding that the violation was S&S. 

/s/ William I. Althen 

William I. Althen, Acting Chairman 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

 17 We have consistently emphasized that, in evaluating the risk of injury, the vagaries of 

human conduct cannot be ignored. See Great W. Elec. Co., 5 FMSHRC 840, 842 (May 1983); 

Lone Star Indus., 3 FMSHRC 2526, 2531 (Nov. 1981); Thompson Bros. Coal Co., 6 FMSHRC 

2094, 2097 (Sept. 1984). 

39 FMSHRC Page 1901
Opinion of Acting Chairman Althen and Commissioner Young: 

A. Citation No. 7024068

Gravity 

 

We remand the gravity determination for a re-assessment of gravity. In doing so, we find 

that substantial evidence does not support a finding of a high likelihood of a fatality. We do not 

otherwise express an opinion on the assessment of gravity. 

 

 The Judge determined that the violation was highly likely to result in two fatal injuries, 

agreeing with Inspector Young’s designation as to both likelihood and degree of injury. 37 

FMSHRC 1616, 1662 (July 2015) (ALJ). In determining the gravity of a violation, Judges are 

not bound to apply the tables in 30 C.F.R. Part 100, which the Secretary of Labor uses to propose 

penalties based on a system of points for a multitude of factors. Rather, Judges must assess 

penalties considering the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i). Instead of 

narrowly parsing gravity determinations, we consider gravity holistically, considering “factors 

such as the likelihood of injury, the severity of an injury if it occurs, and the number of miners 

potentially affected.” Newtown Energy, Inc., 38 FMSHRC 2033, 2049 (Aug. 2016). 

 The finding of a high likelihood of two fatalities rests upon the testimony of Inspector 

Young, who testified that a miner walking alone in water with tripping hazards and a depth of 36 

inches or more in this bleeder was highly likely to fall, hit his head or otherwise become 

incapacitated, and drown. Because two miners entered the water separately and from different 

ends of the bleeder, the inspector asserted two miners would be potentially affected. 

 The Department of Labor’s Mine Safety and Health Administration (“MSHA”) allows 

individual miners to examine bleeders. Every day individual miners examine bleeders by 

themselves. Additionally, bleeders are generally wet. 37 FMSHRC at 1620. In fact, the 

operator’s ventilation plan recognizes that water will accumulate in the bleeder, and only 

requires its removal to the extent that water would prevent safe travel or affect ventilation. Gov’t 

Ex. 3 at 000009. Only examiners who are experienced at going through bleeders perform the 

weekly examinations. Except for repair work, no other miner may enter or has reason to enter a 

bleeder. 

 At the same time, there is always the possibility that a miner walking in any part of a 

mine will trip and fall. Without doubt, therefore, it is possible that a miner walking in a bleeder 

with water in it could trip and fall. A fall in water by oneself without an ability to communicate 

with others increases the danger from a fall. 

On November 20, 2012 and December 10, 2012, Inspector Young cited the operator for 

accumulations of water in this E-tailgate bleeder system. The citations noted that in certain areas 

the depth of the water was as much as 36 inches in one citation and 24 inches in the other. The 

water contained various tripping hazards. Gov’t Ex. 7. The inspector designated the violations as 

significant and substantial (“S&S”). In those instances, however, Inspector Young marked the 

gravity as reasonably likely to result in lost workdays and/or restricted duty. Id. Thus, these 

39 FMSHRC Page 1902
citations were for the same bleeder and for similar (with the exception of the depth of the water 

on December 10, 2012) conditions as the conditions on February 5. 

The inspector issued the November 20 citation as low negligence, the December 12 

citation as moderate negligence, and the citation in contest here as high negligence. Clearly, the 

inspector responded to the repetition of the condition. The inspector did not distinguish the 

danger in November and December from February 5. 

 Further, Inspector Young testified that MSHA permits miners examining bleeders to walk 

in up to at least 18 inches of water. Tr. 46. As a matter of MSHA policy, therefore, an individual 

miner examining a bleeder is considered safe when walking through 18 inches of water. Of 

course, a miner knocked unconscious from a fall in the permissible 18 inches of water also 

would be likely to drown. In light of the enforcement policy on 18 inches of water, it was 

incumbent upon MSHA to explain why a miner is safe from drowning in 18 inches of water but 

highly likely to drown in deeper water. 

 During his testimony, Inspector Young explained the possibility of a miner tripping in a 

bleeder. He testified about objects in the water of the travelways such as pump lines and crib 

blocks, and spoke of a trip and fall resulting in an examiner hitting his head. Tr. 121-23. Further, 

Dan Stalnaker was wearing waders, which would have increased the difficulty of returning to a 

standing position if a fall into water fills the waders. 

 

 Inspector Young testified that he had sought support for his gravity determination in 

MSHA’s records. His research revealed only one drowning incident in a bleeder. MSHA, Report 

of Investigation, Underground Coal Mine, Other (Drowning) Accident (2000). In that instance, 

the cause of death was “drowning due to occlusive coronary artery disease.” The miner either fell 

into a sump due to his condition or accidentally fell and was unable to get out due to the heart 

condition. That sole incident, while tragic, does not support the notion that it is “highly likely” a 

miner — let alone two miners — who are presumed safe in 18 inches of water, will drown in the 

circumstances of this case. 

 Other than Inspector Young’s testimony, the Secretary did not present any evidence that a 

miner is highly likely to drown in a bleeder. The inspector’s prior actions in not citing any 

likelihood of a fatality from water in this bleeder appear inconsistent with his assertion of a high 

likelihood of two fatalities from the February 5 violation. On the other hand, he did testify about 

tripping hazards, the absence of communications, and the danger of being alone. 

 Accordingly, we have determined that substantial evidence does not support the Judge’s 

determination of a “high likelihood” of fatal injuries to either or both examiners under the facts 

presented in this case. Otherwise, as manifest from the foregoing discussion, the record is mixed. 

The Judge’s findings do not satisfy her obligation to provide, in the gravity portion of the 

decision, a reasoned basis from the totality of the record for the conclusion of a degree of injury 

which could range from broken bones to a reasonable likelihood of a fatality. We therefore 

remand for a determination of the gravity of the citation. 

39 FMSHRC Page 1903
Negligence 

As in the determination of gravity, the Commission and its Judges are not bound or even 

significantly guided by the Secretary’s definitions of “negligence” in the penalty regulations set 

forth in 30 C.F.R. Part 100. We thus reject the operator’s contention that a Commission Judge 

may not find high negligence where the operator provides any mitigating circumstances for that 

violation. See Mach Mining, LLC, 809 F.3d 1259 (D.C. Cir. 2016); Brody Mining, LLC, 37 

FMSHRC 1687, 1701-03 (Aug. 2015) (“Commission Judges are not bound by the definitions in 

Part 100 when considering an operator’s negligence . . . [and] may find ‘high negligence’ in spite 

of mitigating circumstances . . . .”). Of course, we also reject any notion that the Judge must find 

high negligence if he does not find a “mitigating” circumstance. Indeed, the Commission has 

moved completely away from usage of the Part 100 definitions of negligence or any use of the 

nebulous notion of “mitigation.” We employ “a traditional negligence analysis.” Mach Mining,

809 F.3d at 1264; American Coal Co., 39 FMSHRC 8, 14 (Jan. 2017). In assessing negligence, 

the Judge must consider “what actions would have been taken under the same circumstances by a 

reasonably prudent person familiar with the mining industry, the relevant facts, and the 

protective purpose of the regulation.” Brody Mining, 37 FMSHRC at 1702. 

Applying a traditional and holistic “reasonable person” negligence analysis to the case 

before us, Consol Pennsylvania Coal Company (“Consol”) had “a duty of care to avoid 

violations of mandatory standards, and the failure to do so can lead to a finding of negligence 

when a violation occurs.” Leeco, Inc., 38 FMSHRC 1634, 1637 (July 2016)1

 (citing A.H. Smith 

Stone Co., 5 FMSHRC 13, 15 (Jan. 1983)). Because negligence relates to an operator’s duty of 

care to avoid a violation, the “negligence inquiry [is] circumscribed by [the] scope of duties 

imposed by [the] regulation violated.” Brody Mining, 37 FMSHRC at 1702 (citing Spartan 

Mining Co., 30 FMSHRC 699, 708 (Aug. 2008)). When determining the level of negligence for a 

violation of a ventilation plan provision, as is the case here, a “Judge must consider the actions 

that a reasonably prudent operator would or would not have taken, under the circumstances 

presented that are relevant to an operator’s obligation to comply with the ventilation plan 

provisions in question.” Id. at 1703. 

The Secretary proves negligence if he proves by a preponderance of the evidence that the 

operator failed to act under the circumstances as a reasonably prudent operator familiar with the 

mining industry, the relevant facts, and the protective purpose of the regulation.2

 In this case, that 

means the Secretary must prove that the actions taken by the operator after the prior 

 1 Leeco involved a fatality. The Commission found the operator was not negligent 

because it had met the standard of care — that is, had acted as a reasonably prudent person 

familiar with the mining industry, the relevant facts, and the protective purpose of the regulation. 

2

 The Commission requires the Secretary carry the burden of proving its allegations 

against an operator holding, “[t]he burden of establishing an operator’s negligence under section 

110(i), 30 U.S.C. § 820(i), rests on the Secretary.” U.S. Steel Mining Co., 8 FMSHRC 1284, 

1290 (Sept. 1986); see also Jim Walter Res., Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ) 

(“The Secretary’s burden is to prove the violations and related allegations, e.g., gravity and 

negligence, by a preponderance of the evidence.”). 

39 FMSHRC Page 1904
citations — installation of an automatic secondary pumping system with a bubbler, increased 

examinations, installation of a monitoring system, etc., see infra, slip op. at 18 (discussing 

efforts) — were insufficient to constitute the actions of a prudent operator. Of course, in a 

negligence context, the Judge also must look at the reasonably foreseeable consequences of the 

operator’s actions because the foreseeable consequences affect the duty of care. 

If negligence exists, the Judge must deal with the degree of negligence. Here, again, the 

Commission is not bound by the MSHA definitions and, certainly, not by definitions in Section 

100.3. For example, the Commission finds high negligence when there is an “aggravated lack of 

care that is more than ordinary negligence.” 37 FMSHRC at 1703 (quoting Topper Coal Co., 20 

FMSHRC 344, 350 (Apr. 1998)). To prove high negligence, the Secretary must prove that the 

operator’s actions after the prior citations demonstrate a level of negligence appreciably greater 

than ordinary negligence — that is, aggravated misconduct. See Leeco, 38 FMSHRC at 1637-38; 

Jim Walter Res., Inc., 36 FMSHRC 1972, 1976-77 (Aug. 2014); A.H. Smith Stone, 5 FMSHRC 

at 15-16.3

 In reviewing the Judge’s determination, therefore, we must determine whether 

substantial evidence4

 supports a finding that the accumulation of water in the bleeder on 

February 5 resulted from an aggravated lack of care, taking into account all of the facts and 

circumstances. 

The Judge’s finding of high negligence rests at least in part on her finding that the 

violation was highly likely to result in fatal injuries. As explained above, substantial evidence 

does not support a high likelihood of fatalities. Furthermore, the Judge erred by not properly 

considering evidence of the operator’s efforts to address the known propensity for water buildups 

prior to February 5 — the date of this violation. Despite these errors, we do not find it 

appropriate for us, at the Commission level, to designate the degree of negligence. We therefore 

vacate and remand the negligence issue for reconsideration by the Judge in accordance with this 

opinion. 

First, regarding the role of the Judge’s gravity determination in the negligence 

determination, we have long held that operators must address highly dangerous situations “with a 

degree of care commensurate with that danger.” A.H. Smith Stone, 3 FMSHRC at 15. Certainly, 

therefore, an operator must exercise a very high degree of care to avoid a violation that is highly 

likely to result in one or more fatalities. However, as we have explained, substantial evidence 

 3

 The use of “mitigation” essentially drops from the analysis under the reasonably 

prudent person standard. Of course, actions that might constitute “mitigation” will play into the 

reasonable person analysis, but negligence is not a question of whether the operator mitigated 

negligence. The standard is what a reasonably prudent person would have done. If the operator 

was negligent, then a question may arise whether the evidence demonstrates an aggravated lack 

of care. Of course, the Secretary bears the burden of proof throughout the hearing. Even under 

the Secretary’s definitions, the operator does not bear a burden of proving mitigation. 

4

 When reviewing a Judge’s factual determinations, the Commission is bound by the 

terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). 

“Substantial evidence” means “‘such relevant evidence as a reasonable mind might accept as 

adequate to support [the Judge’s] conclusion.’” Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

39 FMSHRC Page 1905
does not support the Judge’s conclusion of a high likelihood of two fatalities. Inspector Young’s 

prior citations put Consol on notice of a reasonable likelihood of broken bones, and we accept 

the conclusion that there was a reasonable likelihood of a reasonably serious injury arising from 

the hazard contributed to by the violation. However, “reasonable likelihood” is a term of art that 

does not amount to a finding that the injury is “likely” in the standard sense, let alone “highly 

likely.” 

“Highly likely” demands evidence of probability exceeding even that used to demonstrate 

that a condition constituted an imminent danger, or arose from a flagrant violation of a 

mandatory standard. See 30 U.S.C. § 802(j) (imminent danger exists where death or serious 

physical harm “could reasonably be expected” before abatement); 30 U.S.C. § 820(b)(1) 

(flagrant violation requires violation to cause or reasonably be expected to cause death or serious 

bodily injury). 

Moreover, a reasonable likelihood of broken bones is significantly different from the 

foreseeability of a likelihood of death. Thus, it was error for the Judge to premise a finding of 

high negligence on her erroneous conclusion that it was highly likely that the violation would 

result in two fatalities. At the same time, the violation was serious, and the negligence attributed 

to the operator must take into account any reasonable foreseeability that miners would be 

exposed to the hazard created by the water before the condition could be corrected. If an operator 

willfully exposes its miners to a known hazard, a finding of high negligence is likely appropriate, 

regardless of the prior efforts to prevent the hazard. 

In this case, Stalnaker and Saunders unnecessarily exposed themselves to danger by 

entering the water on February 5, 2013. 37 FMSHRC at 1630-31. Of course, reasonably 

foreseeable consequences of one’s actions, including reasonably foreseeable injuries, play a role 

in a negligence analysis. Therefore, if Consol should have reasonably foreseen the entry of 

examiners into the water and the nature of any reasonably foreseeable injuries of such action, it 

would be appropriate to take into account Stalnaker’s and Saunders’ entry into the water in 

considering negligence of the operator in the buildup of the water. At the same time, for the 

reasons set forth in the gravity discussion above, there was no reason for the operator to foresee a 

“high likelihood” of fatalities — a type of injury that the very same inspector in recent citations 

had not associated with high water in the bleeder.5

 

 It is undisputed that Price, who received Stalnaker’s report in the early morning of 

February 5, was aware of the hazardous water in E-15 prior to Saunders’ exam. However, 

Stalnaker had only inspected the E-15 area. There is no basis for holding that Price knew there 

were violative water accumulations in the opposite side of the E bleeder district, in E-22, the 

place where Price instructed Saunders to begin his exam. The evidence therefore suggests that 

Price did not instruct Saunders to travel through excessive water, but to complete the ventilation 

exam using an alternate route which, to Price’s knowledge, did not contain excessive water, and 

the Judge’s finding that a miner was exposed to a known hazard is not supported by substantial 

evidence. 

 5

 We need not decide at this point what, if any, role Inspector Gross’ voluntary walk 

through the water may or should play in the reasonable foreseeability analysis. 

39 FMSHRC Page 1906
Additionally, while the Judge did mention actions taken by Consol to address the issue of 

water buildups after the prior citations and before February 5, she erred in rejecting outright any 

importance of such actions in terms of reasonably prudent actions by a reasonably prudent 

operator in response to the prior violations.6

 The Judge should have analyzed the effect of the 

operator’s pre-violation preventive efforts, the equipment failures that plagued the pumping 

system, and abatement efforts following the discovery of the hazard. 

 Here, the Judge found significant actions by the operator after the prior citations and 

before February 5. It is clear that the bubbler and the bubbler monitor at the surface pump were 

actually operational before February 5 and that subsequent damage to tubes prevented them from 

working effectively. Greene testified that “[t]he buffer [bubbler] system was an upgrade” 

installed prior to February 5th (Greene was responding to a question about upgrades installed 

before the remote monitoring system in the foreman’s office, which was installed shortly after 

February 5). Tr. 521-22. William Batton, who worked for MVI, the contractor who serviced the 

surface pump, agreed that on February 5, a gauge on the bubbler system would tell the depth of 

water. Tr. 542. He also testified that, when called to the scene on the 5th, he found that the 

bubbler tubes had been damaged from going down the borehole. He returned and installed new 

tubes on the 7th. Tr. 534-35. 

 Further, the operator did not rely solely upon mechanical improvements. It also ordered 

increased inspections of the bleeder for which only one inspection per week was required by the 

standard. These extra inspections must be considered in the calculation of negligence. Indeed, the 

Judge found that the regular bleeder inspector looked at the bleeder after the power outage and 

did not find a presence of water. Based upon that finding, it appears that if the bubbler tube had 

not developed holes, it presumably would have alerted the operator that the water level in the 

sump was getting too high because (1) the readings on the monitor would have been accurate and 

(2) the sump pump would have automatically activated.7

 

 We agree with our colleague, Commissioner Cohen, that Stalnaker and Saunders entering 

the water is essentially irrelevant to the determination of whether Consol’s effort to prevent the 

accumulation of water was reasonable. Slip op. at 39. Stalnaker’s decision to enter the water is 

only relevant to the evaluation of the foreseeability of an injury if evidence in the record 

demonstrates it was foreseeable that a miner would enter more than 18 inches of water in an 

effort to perform the required bleeder inspection. The Judge must evaluate the prudence of the 

 6

 The Judge utilized the Part 100 standard of negligence and, therefore, considered the 

operator’s actions in terms of “mitigation.” Of course, as we have said, the reasonably prudent 

person test is holistic. Under that standard, rather than thinking in terms of “mitigation,” 

adjudicators should think in terms of steps a reasonably prudent person would take under the 

same or similar circumstances. 

7

 Preventive efforts included additional exams of the E bleeder district and a remote 

monitoring system. Equipment failures included a power outage on February 1 that could have 

shut down various air pumps and a surface pump hole in the bubbler line that caused the surface 

pump to malfunction on February 5. Abatement efforts included Ciapetta fixing the surface sump 

pump at 5:00 a.m. and trucks hauling away water from the mine starting at 7:00 a.m. 

39 FMSHRC Page 1907
operator’s efforts to prevent an additional water accumulation in light of such foreseeability, if 

any. We do not prejudge the Judge’s decision on remand. 

 The fact that water built up tells us that the operator’s efforts failed to prevent another 

violation after the December citation; it does not tell us whether the efforts by the operator were 

commensurate with what a reasonable person would have done in light of reasonably foreseeable 

consequences or how far off the mark they were. The negligence question is whether the actions 

of installing the bubbler, the bubbler monitoring systems, and increasing inspections suffice as 

measures a prudent operator would have taken under the circumstances, i.e., with two prior 

citations for water accumulations that might have resulted in lost workdays. Assuming Consol 

was negligent, the next question would be whether the bubbler and monitoring systems and 

increased inspections were so inadequate as to demonstrate an aggravated lack of care 

warranting a finding of high negligence. 

 

Unwarrantable Failure 

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. 

§ 814(d). We have held that unwarrantable failure is aggravated conduct constituting more than 

ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable 

failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” 

“indifference,” or a “serious lack of reasonable care.” Id. at 2002-04; Rochester & Pittsburgh 

Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 

133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test). 

Whether the conduct is “aggravated” in the context of unwarrantable failure is 

determined by looking at all the facts and circumstances of each case, including (1) the extent of 

the violative condition, (2) the length of time that it has existed, (3) whether the violation posed a 

high risk of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the 

existence of the violation, (6) the operator’s efforts in abating the violative condition, and (7) 

whether the operator has been placed on notice that greater efforts are necessary for compliance. 

Consolidation Coal Co., 35 FMSHRC 2326, 2330 (Aug. 2013); IO Coal Co., 31 FMSHRC 1346, 

1350-57 (Dec. 2009). These factors must be viewed in the context of the factual circumstances of 

each case. Consolidation Coal Co., 22 FMSRHC 340, 353 (Mar. 2000). A Judge may determine, 

in his or her discretion, that some factors are not relevant or may determine that some factors are 

less important than other factors under the circumstances. Brody Mining, 37 FMSHRC at 1692. 

 Although a separate analysis, the determination of unwarrantable failure essentially 

embodies a combined analysis of gravity and negligence considerations. For example, when 

evaluating whether the violation posed a high risk of danger, the Judge must consider whether 

the Secretary demonstrated it was reasonably foreseeable that miners would enter deeper water. 

Further, the Judge did not sufficiently consider the broken discharge lines, the malfunctioning 

bubbler, or the mine’s efforts to prevent the flooding through additional inspections, and she 

discounted the operator’s prior efforts to deal with water and the various apparently 

39 FMSHRC Page 1908
unanticipated mechanical failures. See 37 FMSHRC at 1650. The Judge lost sight of the ultimate 

aim of the unwarrantable failure designation. As the Commission has said: 

We conclude that the judge erred in finding unwarrantable failure 

based on the operator's “failure to leave any stone unturned” and 

take “every conceivable step” in attempting to eliminate the 

violations. The judge, after referring to the proper standard for 

unwarrantable failure set forth in Commission precedent, failed to 

apply it. In effect, he imposed a standard for unwarrantable failure 

close to one of strict liability. 

Peabody Coal Co., 18 FMSHRC 494, 498 (Apr. 1996) (citation omitted). 

 

 The Commission has stated that “a judge’s factual findings are often colored by the legal 

standard applied.” Dolan v. F & E Erection Co., 22 FMSHRC 171, 180 n.10 (Feb. 2000). This is 

borne out by consideration of the seven factors underlying the Judge’s unwarrantable failure 

analysis in this case. 

 a. Degree of danger 

 The Judge found that the degree of danger was a high likelihood of two fatalities. 37 

FMSHRC at 1651-52. For the reasons set forth above in the gravity discussion, substantial 

evidence does not support a high likelihood of two fatalities. Consequently, the Judge’s 

unwarrantable failure analysis significantly overstates the degree of danger. This error, standing 

alone, dictates remand.8

 b. Length of Time 

 Under the Commission’s unwarrantable failure legal standard, “a Judge may determine, 

in his or her discretion, ‘that some factors are not relevant, or may determine that some factors 

are much less important than other factors under the circumstances,’” as long as the Judge 

considers all of the factors. Brody Mining, 37 FMSHRC at 1692 (quoting IO Coal Co., 31 

FMSHRC at 1351). The Judge found that “the accumulation likely occurred sometime after 

Greene’s last examination, which was less than 48 hours from the time the citation was written.” 

37 FMSHRC at 1651. 

 8

 We are greatly concerned by the incaution exercised by the Secretary and the Judge in 

designating these violations as “highly likely” to result in a fatal injury. Overcharging and 

hyperbole in this context breed disrespect for the law and skew the perspective one must employ 

in discerning merely serious violations from those where the specter of death was truly clear and 

present. Violations that should have been reasonably foreseen as creating a grave and imminent 

risk of death or serious bodily injury must be dealt with severely to deter similar transgressions. 

In such cases, the operator is under a duty to take timely and aggressive actions to prevent miners 

from being exposed to a deadly hazard caused or contributed to by the violation. It is apparent 

that the misperception of the danger here infected the Judge’s evaluation of the operator’s 

culpability. 

39 FMSHRC Page 1909
 Based upon the Judge’s findings, the violation arose after Greene’s last examination, and 

the operator learned of the violation when Stalnaker found water deeper than 18 inches. On 

remand, the Judge must consider the length of time the violation existed as part of her 

unwarrantable failure analysis. 

 c. Extent 

 The Judge found that the water stretched for 400 feet at the 47 crosscut (at a depth of 12 

to 42 inches) and from 1,800 feet (at a depth of 12 to 36 inches) between E-19 and E-21. 37 

FMSHRC at 1651. However, the Judge also noted that the water in some locations was only a 

few inches deep. Id. The Judge erred by taking into account the entire length of the bleeder 

because in doing so, she considered non-violative areas.9

 

d. Notice that Greater Efforts Were Necessary 

 The Commission has recognized that past violations and discussions with MSHA about a 

problem are relevant to whether an operator was on notice that greater efforts were necessary to 

comply with a standard. IO Coal, 31 FMSHRC at 1353. Without question, the operator was on 

notice due to its prior citations for the same condition and Inspector Young’s explicit notice. 37 

FMSHRC 1652-53. The operator presented evidence of increased efforts, but the Judge stated 

that “[w]hile it is true that at some point, efforts made after notice should ‘restart the clock’ on 

notice, the inadequate efforts made by Respondent were not sufficient to do so in this case.” Id.

at 1653. The Judge referred to her prior discussion of the monitoring system, in which she held 

that “[a]ctions are not mitigation when they are inadequate to the task of preventing, correcting, 

or limiting exposure.” Id. at 1650. 

 The Judge cited two decisions by other Judges for that proposition, each of which was 

decided under different circumstances. Further, the Judge failed to consider the reasonableness of 

the preventive measures in light of the fact that the bubbler line encountered a leak preventing it 

from being effective. 

 Here, the mine installed an automatic secondary pumping system and a bubbler. It began 

daily monitoring of the water level through the bubbler’s readout, but the bubbler gave false 

readings because a hole in the bubbler’s hose prevented accurate measurement of the water level. 

The recurrence of a violation in which the operator, despite notice, did nothing is not the same as 

 9 The Judge’s factual finding underlying her conclusion was wrong, as Commissioner 

Cohen acknowledges. Slip op. at 41 n.7. But her analysis also misapprehends the relevance of 

the extent of the water to a finding on the question of unwarrantable failure, i.e., whether the 

extent of the water gave Consol more reason to have discovered it or reflects on the 

reasonableness of its actions in attempting to prevent the accumulation. The Judge found that the 

accumulation occurred less than 48 hours before citation was issued. 37 FMSHRC at 1651. More 

importantly, the evidence is positive that Consol had met or exceeded inspection requirements 

during the week preceding the accumulation. Therefore, we think that a reasonable Judge could 

find that the extensiveness of the water accumulation is of little, if any assistance in determining 

whether Consol’s violation — namely, the buildup of water in the bleeder — was the result of an 

unwarrantable failure to comply with the requirement to keep the bleeders safe for travel. 

39 FMSHRC Page 1910
the recurrence of a violation after significant remedial efforts by the operator. The sufficiency of 

the remedial efforts bears upon evaluation of the notice factor in the unwarrantable failure 

determination and must be considered. 

Efforts by Consol before February 5 to prevent water accumulations are relevant to 

whether it had notice of a need for even greater efforts to prevent violations from occurring. In 

other words, what notice did Consol have of a need to do more than the actions mentioned 

above? After being cited in December, Consol took those efforts. This raises the issue of how 

Consol was on notice that greater efforts than even those were required. The Judge dismissed 

that question out of hand because those efforts failed. It is incorrect, however, to assume, as the 

Judge did, that the efforts the operator took are irrelevant to the question of whether the operator 

was on notice that greater efforts were necessary. 

 e. Pre-citation efforts to abate 

 Where an operator has notice of an accumulation problem, the level of priority that the 

operator places on the abatement of the problem is relevant. Enlow Fork, 19 FMSHRC at 17. 

The focus on the operator’s abatement efforts is on efforts made prior to the issuance of a 

citation or order. Id. Thus, an operator’s efforts in cleaning up accumulations before and during 

an inspection may support a finding that a violation of a standard requiring that an escapeway be 

“maintained to insure passage at all times of any person” was not caused by unwarrantable 

failure. Utah Power & Light Co., 11 FMSHRC 1926, 1934 (Oct. 1989). 

 The Judge found that the operator acted to abate the violation immediately after 

discovery of the condition and well before any inspector arrived on the scene. 37 FMSHRC at 

1653. Stalnaker informed Price about the water between 4:00 and 4:30 a.m. Price then called the 

surface to have someone ensure that the surface pump was running. 37 FMSHRC at 1630. At 

approximately 5:00 a.m., Russ Ciapetta began working to bypass the malfunctioning bubbler 

system, after which the pump resumed operation. Id. The operator started removing water from 

the tanks at 7:00 a.m. 37 FMSHRC at 1630 n.24; Tr. 624. 

 The operator called Mon Valley Integration at 10:00 a.m. to discover why the bubbler 

malfunctioned. 37 FMSHRC at 1632; Tr. 527. However, the Judge essentially gave the 

abatement efforts little to no weight, stating that there is “no reason to believe that abatement 

after miners are exposed to a hazard alone makes an unwarrantable failure determination 

inappropriate.” Id. at 1654. However, the issue is not whether such efforts, standing alone, 

preclude an unwarrantable failure finding. The issue is the extent to which the Judge should 

consider such efforts when balancing unwarrantable failure factors. With the understanding that 

the violation was not highly likely to cause a fatality, the Judge should consider the immediate 

efforts to abate the violation before the arrival of any inspector and without any knowledge that 

MSHA would or had received a section 103(g) complaint. 

39 FMSHRC Page 1911
f. Obviousness 

 The Judge found that the accumulations of water were “massive and [that] the examiner 

had to travel through them to complete the examination.” Id. at 1652. Had the newly installed 

bubbler monitoring system not failed due to a hole in the line, management would have been 

alerted earlier to the problem and, indeed, ancillary pumping would have started earlier. 

However, due to that unknown equipment defect, the accumulation only became obvious when 

the Stalnaker inspection began and there was no reason to know of the accumulation before that 

point. Here, the operator could not know of a water buildup until Stalnaker arrived on the scene. 

Then, it acted immediately to abate the violation. 

 Given that one part of the unwarrantable failure analysis is to determine whether a mine 

operator engaged in aggravated conduct constituting more than ordinary negligence, if a 

violation is obvious only after it is discovered, and there is no reason it should have been 

discovered earlier, then the condition’s obviousness once discovered provides little or no 

assistance in making a determination of aggravated conduct.10

 g. Knowledge 

 The Judge also misapplied the aspect of knowledge. The Judge found that the operator’s 

knowledge of the violation was an aggravating factor because despite that knowledge, “miners 

were willfully exposed to the condition.” Id. at 1654. Thus, the Judge stated, “the preponderance 

of the evidence shows that Stalnaker knew about the condition when he encountered it in the 

bleeder.” Id. Similar to the Judge’s finding of obviousness, when the operator could not have 

known or have been reasonably required to have known of the violation until it is discovered, the 

knowledge factor may not be indicative of aggravated conduct. 

Therefore, we would remand her finding of unwarrantable failure.

 

B. Order No. 7024069 

Significant and Substantial 

Order No. 7024069 was issued because Consol did not record the accumulations of water 

in the examination book before Giavonelli countersigned it. 37 FMSHRC at 1656. The Judge 

found, and our colleagues affirm, that the failure to record the accumulations contributed 

significantly and substantially to a hazard of tripping and falling in the water of the E bleeder 

district. They reach this conclusion for two reasons. First, they assert that failing to record the 

hazard “made it more likely that miners . . . would enter the bleeder with the mistaken belief that 

it was free of hazards, contributing to the reasonable likelihood of the danger of falling.” Slip op. 

 10 We disagree with the Judge, and Commissioner Cohen, see slip op. at 41 n.10, that the 

entrance of Stalnaker and Saunders into deep water bears upon the “obvious” element of whether 

the violation (the accumulation of water) was an unwarrantable failure. MSHA did not cite 

Consol for the entry into the water, but for the accumulation that existed. If critiquing Consol’s 

actions after the violation (water buildup) occurred bears upon other elements of unwarrantable 

failure, it has no relevance as to whether the violation was “obvious” before it was discovered 

and abatement was started. 

39 FMSHRC Page 1912
at 30. Second, they also assert that the failure to record the hazard meant that Consol and MSHA 

would not have a record of its occurrence, which increased the likelihood of future exposure of 

miners to hazardous water. Id. Consistent with the Commission’s decision in Newtown, we 

disagree with their assessment. 

In Newtown, the Commission directed use of “a ‘reasonable likelihood’ analysis for 

determining whether a violation significantly and substantially ‘contributes’ to a hazard.” 38 

FMSHRC at 2038. When framing the question, we made it clear that not only must the hazard be 

reasonably likely, but the violation must sufficiently contribute to the causation of the hazard, 

saying: “[T]he question under step two is whether, under these particular circumstances, the 

violation (the failure to remove the key from the lock) was reasonably likely to result in the 

restoration of power to the shuttle car cables while the inspection group was working on it.” Id.

(emphasis added). In the context of this case, therefore, the question under step two is whether, 

under these particular circumstances, the violation (the failure to record the hazard) was 

reasonably likely to result in miners entering deep water to the point of encountering trip-and-fall 

hazards. In other words, did the violation sufficiently, i.e., meaningfully or “significantly and 

substantially,” contribute to the occurrence of the hazard. 

Illustrating this inquiry, in Secretary of Labor v. Federal Mine Safety and Health Review 

Commission, 111 F.3d 913 (D.C. Cir. 1997), the D.C. Circuit affirmed a finding that a violation 

did not sufficiently contribute to the hazard of a fire, and, therefore, the violation was not 

significant and substantial. In that case, a pile of trash was located partially in active and partially 

in inactive portions of the mine. Id. at 916. Only a small part of the pile was located in the active 

portion of the mine, and thus only a small amount of trash was violative. Id. 

Although the Secretary introduced evidence that the larger nonviolative portion of the 

trash pile, the mine’s history of methane ignitions and fires, and the trash’s combustibility all 

contributed to the hazard of a fire occurring, the court did not consider those when reviewing the 

violation’s contribution to the hazard. Id. at 918. First, the court stated that “[t]he statute requires 

a decision maker, having found a violation, to make two additional findings: whether there is a 

‘hazard’ to which the violation might contribute; and, if so, whether the violation ‘significantly 

and substantially’ contributes to that ‘hazard.’” Id. at 917. “When evaluating the first question,” 

the court continued, “the Commission does consider surrounding conditions.” Id. However, 

“when the Commission analyzes whether a particular violation ‘significantly and substantially’ 

contributes to the ‘hazard,’ it considers, as it did here, only the particular violation’s 

contribution.” Id. at 917-18. Quoting the Commission, the court then specified that “[i]t is the 

contribution of a violation to the cause and effect of a hazard that must be significant and 

substantial.” Id. at 918 (quoting Texasgulf, Inc., 10 FMHSRC 498, 500 (Apr. 1988)). 

Accordingly, the court concluded, “[a]lthough the Secretary’s evidence may suggest that the 

[nonviolative] trash enhanced the danger of fire, a reasonable factfinder could have concluded 

that the record contained insufficient evidence that this danger was markedly increased by the 

few additional [violative] items.” Id. (emphasis added). 

Applying the reasoning of the D.C. Circuit, the foreman’s failure to record the deep water 

before signing the examination book did not sufficiently contribute to a hazard of miners tripping 

and falling in deep water to make the failure an S&S violation. First, abatement was occurring 

before Giavonelli signed the book, and no miners other than a bleeder examiner were even 

permitted to enter the area. This active abatement started well before MSHA was even notified 

39 FMSHRC Page 1913
and included calling a contractor, Burns Trucking, that began emptying water from the aboveground tank at 7:00 a.m. 37 FMSHRC at 1630 n.24; Tr. 624. The failure to record the 

accumulations on February 5 did not contribute in any way to any danger of Stalnaker or 

Saunders tripping and falling in the water. They entered the water as part of the examination 

process before Giavonelli signed the report. As the Judge found, the water was obvious, and 

Stalnaker and Saunders had already encountered and reported the water when Brottish entered 

the water with MSHA Inspector Gross. The failure to record had no effect on Brottish’s or 

Gross’s actions, either. 

This is not a situation in which multiple miners could be exposed to a surprising hazard. 

It is apparent, therefore, that the blank examination page did not contribute to, much less 

significantly and substantially contribute to, a hazard of a bleeder examiner walking into the 

water accumulation that resulted in the citation under section 75.370(a)(1). There is no logic to a 

finding that the failure to record the presence of the water made it reasonably likely that a miner 

would enter the water. Obviously, a miner could not accidentally enter deep water based upon 

the absence of a report of deep water.11

Second, the failure to record does not sufficiently contribute to a “hazard” that, without a 

written record, MSHA and Consol would not be aware of water accumulations in the bleeder, 

thus making it reasonably likely that future examiners would encounter and walk into deep 

water. Again, it is unclear how failure to record this accumulation would meaningfully contribute 

to or markedly increase the likelihood of miners entering deep water when they would know they 

were entering deep water with or without the report. Going further, the absence of a notation of 

water from the examination record certainly did not mean that Consol was unaware of the 

accumulation. Indeed, Consol had been aware of the condition for hours before the signing of the 

record book. From an operational standpoint, Consol had more compelling records of the 

occurrence beyond the examination book, including increased expenditures for water removal by 

Burns Trucking.12 Regarding MSHA’s awareness of the hazard, not only did the Secretary not 

 11 Our colleagues assert that the absence of the notation that day made it reasonably likely 

that Greene, a regular and experienced bleeder examiner, “would enter the bleeder with the 

mistaken belief that it was free of hazards” at some point in the future. Slip op. at 30. Of course, 

only bleeder inspectors may walk in the bleeder, and part of their purpose in doing so is to 

identify hazards that they encounter. The violation in this very case arises from the failure to 

record hazards found by an examiner. It defies logic and common sense to suggest that Greene, 

the regular and experienced bleeder examiner, would walk into and through deep water without 

knowing he was in the water or without knowing it might present a hazard. 

12 Notation of the accumulation would not have provided information beyond that clear to 

the examiners who encountered the water. Water in the bleeders was not an uncommon 

occurrence and was not even considered to be a violation up to 18 inches in depth. The 

examiners could not have provided more detailed information, so that its absence would be 

material to the reasonable likelihood of injury, without entering the water — an aggravation of 

the violation, in the eyes of the Judge. Furthermore, one cannot simultaneously maintain that the 

accumulation was obviously violative to the examiners and that it required a record notation to 

avert serious injury or death of examiners who should have known better than to enter the water 

when they encountered it. 

39 FMSHRC Page 1914
present evidence that MSHA was reasonably likely to review the book, but it is also entirely 

speculative to conclude that MSHA not seeing a report of deep water would make the future 

entry of miners into deep water reasonably likely.13

Finally, it is illogical to suggest that examiners would be surprised to encounter the water. 

Water is common in bleeders, and it is not an insidiously hidden hazard — an examiner would 

see it before entering it. The problem was the decision to enter the water, not the fact that there 

was water there, and especially not the fact that the water was not recorded after it had already 

been encountered.14 

We do not condone the failure to record a hazard even though the hazard was undergoing 

abatement. Stalnaker, Saunders, or Giavonelli should have recorded the water, and MSHA 

appropriately issued an order for Consol’s failure to record. Under the circumstances of this case, 

the absence of the water notation did not meaningfully increase the likelihood of any injury from 

the current violation or from any future hazard sufficiently to make this violation S&S. The 

connection between this violation and the occurrence of the identified hazard is too attenuated to 

survive step two, and for that reason, we conclude that this violation is not significant and 

substantial.15

 13 Consol already had increased inspections of the bleeder and of the surface pump. 

Further, although the Judge did not opine definitively on whether additional long term 

mechanical abatement measures had been installed on February 5, the evidence demonstrated 

that solutions were in process, including installation of an electronic remote monitoring system 

on the Surface Pump and storage tanks, Tr. 737 (Yoho); Tr. 572, 577 (Demidovich); Consol Ex. 

P; Consol Ex. O, and installation of an alarm system on the surface storage tanks, Tr. 737, 738 

(Yoho); Tr. 208 (Young). 

14 The operator’s attempts to abate the accumulation were well underway before the 

record book was signed. While attempting abatement of the problem at its source, the operator 

continued to attempt to fulfill its responsibilities under the ventilation plan by sending Saunders 

into the bleeder to take measurements of methane. The nature of the violation here — the failure 

to record known accumulations whose abatement was already underway — is distinct from the 

examiners’ and MSHA inspectors’ decisions to enter the water. 

15 Our colleagues forecast dire, wide-ranging results if our opinion is followed to its 

logical conclusion. We stress that this is one case drawn from a specific set of facts and 

circumstances. We arrive at our conclusion by applying established legal principles to the facts 

of this case, and the applicability of this case to one we may consider in the future depends 

entirely on the existence of facts that similarly fail to establish a reasonable likelihood of harm 

arising from the future violation’s contribution to a specified hazard. 

39 FMSHRC Page 1915
Gravity 

The Judge determined that the violation underlying the order was highly likely to result in 

fatal injury. 37 FMSHRC at 1662. The order involved the same underlying hazard in the same 

area as the citation — a trip and fall hazard because of water accumulations in the E bleeder 

district. We thus vacate the gravity determination and remand for the same reasons, and with the 

same direction, as the citation. 

Negligence 

 The Judge found that Giavonelli signed the exam book knowing that deep water was 

present yet not listed in the book. While the operator argued below that it did not have to 

complete the examination at the time the citation was issued, and therefore it did not have to 

complete the record, id. at 1660, it also conceded the fact of violation. Id. at 1656. The operator’s 

arguments below — that Giavonelli was merely signing to say that he saw the sheet and that the 

time to complete the examination had not yet run — do not offset a negligence finding in this 

case. 

 We most certainly do not condone or excuse signing an inspection book at a time when a 

known hazard has not been listed on the assumption that the condition will be corrected before 

the time to complete the inspection has elapsed. Here, however, certain factors not considered by 

the Judge could lead to a finding of ordinary negligence. The Judge should review such factors 

so that the determination is a full and fair decision based upon all relevant considerations. 

 First, the Respondent was actively working on the issues omitted from the book, and, 

given that the area was not an area where miners worked or traveled, it was highly unlikely that 

any miner not working on and knowledgeable of the issue would enter the bleeder area before 

the sufficient diminishment of the water. In reality, therefore, the examination book under these 

especially unique factors played no role in alerting fellow miners of a hazard. 

 Second, the book did not indicate that Respondent had completed the inspection at the 

two inspection points that the book omitted. In other words, the book did not represent that a 

complete inspection had been made at all safety checkpoints. Any knowledgeable person looking 

at the book would have seen that readings had not been taken at all required checkpoints. 

 Without prejudging the result in any way, but only to permit a full discussion of all issues 

bearing upon the degree of negligence, we would remand the determination for review by a 

Judge in the first instance. 

Unwarrantable Failure 

As to this issue, the Judge simply stated that the facts and arguments regarding each were 

“identical” and incorporated her findings for the citation by reference in order to reach the same 

conclusion. Id. at 1661. We find that this cursory analysis was legally deficient and requires 

remand. 

 

39 FMSHRC Page 1916
The relevant facts for each violation are not identical. The operator’s duties to prevent the 

water accumulation and to record the same require different conduct by the operator, and the 

relevance of facts can only be determined in light of that required conduct. For example, 

regarding the citation, the operator was cited for the same violation on November 20, 2012, and 

December 10, 2012. The latter citation also informed the operator that similar violations in the 

future might lead to greater enforcement efforts by MSHA. Gov’t Ex. 8. In contrast, there is no 

evidence that the operator had ever been previously cited for a recordkeeping violation.16 

 

We cannot discern how the Judge balanced the factors. We therefore vacate and remand 

this issue for reconsideration. 

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

 16 We note that some of the other IO Coal factors may also be analyzed differently for the 

order than for the citation. On remand, the Judge is free to reach any reasonable conclusion 

supported by the facts for each factor. These findings are exclusively within the province of the 

Judge below. Although Commissioner Cohen remands on unwarrantable failure to obtain an 

analysis by an Administrative Law Judge, he essentially opines on each unwarrantable failure 

element. The Judge upon remand need not accord any weight whatsoever to Commissioner 

Cohen’s premature statement of his personal view of factual issues. 

39 FMSHRC Page 1917
Opinion by Commissioner Jordan: 

 

This case involves a mine operator who permitted water to accumulate to dangerous 

levels in its mine, despite multiple warnings from the Department of Labor’s Mine Safety and 

Health Administration (“MSHA”). It involves an agent of the operator, a certified mine 

examiner, who upon observing the large accumulations of water, nevertheless attempted to wade 

through it. I join my colleagues in affirming the Judge’s determination that the violation was 

appropriately designated significant and substantial (“S&S”). However, for the reasons set forth 

below, I would affirm the Judge’s finding that the violation constituted an unwarrantable failure, 

and would uphold the penalty assessed by the Judge as one that appropriately applied the 

statutory criteria of negligence and gravity. 

I also would affirm the Judge’s decision regarding the related violation alleging that the 

operator failed to properly record the existence of the water hazard in the weekly examination 

book, and would affirm the penalty. 

A. Citation No. 7024068

As is the case in many underground mines, Consol Pennsylvania Coal Company 

(“Consol”) had to regularly pump out its bleeders so as to avoid dangerous accumulations of 

water. Indeed, the approved ventilation plan specified certain means “to remove water as 

necessary to permit safe travel through the perimeter bleeder system.”1

 Despite this requirement, it is uncontested that on February 5, 2013 the MSHA inspector 

was confronted with bleeder sections that contained large accumulations of water. In one section 

water stretched 600-700 feet and ranged in depth from 12-42 inches. In another area it stretched 

1,800 feet and ranged in depth from 12-36 inches. 37 FMSHRC 1616, 1640 (July 2015) (ALJ). 

Three days of pumping in a difficult-to-reach area were required in order to fix the problems and 

get the water out. Id.; Tr. 153-54, 233. The water was murky, cold, contained debris and tripping 

hazards, and constituted a hazard to miners traveling in the area, leading the Judge to conclude 

that “[r]espondent’s system was wholly inadequate to the challenge of keeping water out of the 

bleeder.” 37 FMSHRC at 1650. In fact, Consol did not contest the Secretary of Labor’s 

determination that it had violated its ventilation plan. 

 This was not the first enforcement action MSHA had taken against this operator for such 

a violation. Approximately two months prior to the inspection at issue, MSHA cited Consol after 

 1

 Specifically, the mine’s ventilation plan stated in relevant part: 

The means for maintaining the bleeder safe for travel will include 

compressed air lines routed underground, used in conjunction with 

air pumps to remove water as necessary to permit safe travel 

through the perimeter bleeder system. . . . Ditches, bridges and 

natural drainage are used to maintain the bleeder entries free from 

standing water that affects ventilation and prevent safe travel. 

Gov’t Ex. 3 at 1. 

39 FMSHRC Page 1918
the inspector observed more than 36 inches of dark, murky water (which covered numerous 

tripping hazards lying beneath). Gov’t Ex. 7. Less than three weeks after that, MSHA issued a 

second citation because Consol had allowed an accumulation of more than 18 inches of dark, 

murky water to occur at the sump, as well as permitting more than 24 inches of water to 

accumulate in another area of the mine. Gov’t Ex. 8. Consol maintains that after receiving those 

citations it took additional steps to control the water and that the accumulations present on 

February 5 were due to unforeseen circumstances of which the operator could not reasonably be 

expected to have been aware. 

 

Regardless of whether the presence of the water accumulations on February 5 reflected a 

failure on the part of Consol to exercise reasonable care, we must consider the Judge’s finding 

that Mine Examiner Dan Stalnaker’s decision to proceed through the dangerous water 

accumulation constituted negligent behavior on his part. Moreover, because Stalnaker was a 

supervisory employee, the Judge imputed Stalnaker’s negligence to the operator for purposes of 

determining whether the violation resulted from Consol’s unwarrantable failure, and for the 

purpose of determining a penalty that took into account the operator’s negligence, as required by 

section 110(i) of the Mine Act, 30 U.S.C. § 820(i). 

Longstanding Commission precedent recognizes that the negligence of an operator’s 

agent is imputed to the operator for purposes of determining an appropriate penalty and for 

reviewing the Secretary’s unwarrantable failure determinations. See Whayne Supply Co., 19 

FMSHRC 447, 451 (Mar. 1997); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-97 

(Feb. 1991) (“R&P”); S. Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982). We have held 

that “in carrying out . . . required examination duties for an operator, an examiner . . . may 

appropriately be viewed as being ‘charged with responsibility for the operation of . . . part of a 

mine,’ and therefore, the examiner constitutes the operator’s agent for that purpose.” R&P, 13 

FMSHRC at 194. 

 Here, instead of retreating and reporting that water had accumulated, Stalnaker proceeded 

into it to conduct his examination. In doing so, he was well aware that the accumulation posed a 

danger. Indeed, as the Judge noted, Stalnaker himself testified that he would not have let miners 

work in the amount of water he encountered at the bleeders. 37 FMSHRC at 1629; Tr. 310-11. 

Before entering the water to conduct his exam, an inspection I note that was done alone and in an 

isolated area of the mine, Stalnaker made a dangerous situation even more risky by donning 

illegal chest waders. The chest waders available to Stalnaker lacked flotation devices. Because 

such waders can fill with water and drag miners under the surface, they increase the risk of 

drowning and are not permitted. 37 FMSHRC at 1646; Tr. 455, 500, 704. In fact, in this case 

water did enter Stalnaker’s waders and broke his gas detector, causing him to terminate his 

examination.2

 

In assessing the level of danger and negligence involved, the Judge noted that the water 

accumulation posed a risk to miners, outside the risk of drowning. She found that Inspector 

Young credibly testified that the murky water was full of chemicals and bacteria and posed a risk 

 2

 Stalnaker found the illegal waders located in the East tailgate area where he began his 

examination. Members of management claimed they had no knowledge how the illegal waders 

got there. 37 FMSHRC at 1629. 

39 FMSHRC Page 1919
of cellulitis and MRSA (staph bacteria) as a result of these substances. 37 FMSHRC at 1646; Tr. 

68-69. Indeed, the water that Stalnaker entered had to be trucked away and processed before it 

could be released into the environment. 37 FMSHRC at 1646; Tr. 761. A fall that resulted in a 

cut to the skin could therefore pose more than the usual danger given the contaminated nature of 

the water. There is testimony that the area in question contained plenty of pipes, supports, and 

other debris that either could be the cause of or could be struck in a fall. 37 FMSHRC at 1646; 

Tr. 123. Furthermore, the cold temperature of the water increased the chances that a miner who 

suffered injury could go into shock. 37 FMSHRC at 1646. 

The Judge upheld the designation of the violation as unwarrantable. The Commission has 

equated unwarrantable with “aggravated conduct” and has affirmed unwarrantable findings 

where, as here, a supervisory person intentionally engages in behavior violative of a mandatory 

standard. 

The ventilation plan required the bleeder be maintained for safe travel. A bleeder, or 

section thereof, that cannot be safely traveled should not be traversed by any miner, but 

particularly should not be traveled by a supervisory employee, well aware of the dangerous 

nature of the condition.3

 There was no mitigating circumstance present: for example, Stalnaker 

was not exposing himself to danger to rescue a fellow miner. He was simply trying to carry out 

the weekly exam in a timely fashion. Stalnaker should have retreated, reported the condition, and 

waited until sufficient water was pumped out so that the exam could be conducted safely. His 

decision to continue this dangerous journey constitutes substantial evidence supporting a finding 

of aggravated conduct. Thus, I would affirm the Judge’s finding that the violation was the result 

of the operator’s unwarrantable failure. 

Regarding the Judge’s gravity finding, I conclude that substantial evidence supports a 

finding of serious or high gravity, based on the testimony the Judge utilized in supporting her 

S&S determination, both in regard to tripping hazards, 37 FMSHRC at 1643, and potential 

injuries, id. at 1646. This included the inspector’s statements that the bleeder entry contained 

deep water with various tripping hazards, including uneven floor and debris, that miners who 

tripped could suffer broken bones or head injuries, that the cited area had pipes, supports and 

other debris that could be struck in a fall, that cold water increased the chances that a miner 

could go into shock, and that there was a risk of drowning. Id. at 1643-46. 

The operator also challenges the Judge’s penalty assessment, but the same facts that 

allowed the Judge to reasonably conclude the conduct at issue supported the Secretary’s decision 

 3

 The fact that an MSHA inspector subsequently entered the area traversed by Stalnaker 

does not undermine the Judge’s unwarrantable designation. Significantly, the inspector was 

subsequently chastised by his supervisors for exposing himself to a dangerous condition. Tr. 

349-50. Moreover, I note that the fact the inspector was not traversing the bleeder alone in itself 

lessened the dangerous aspect of the activity. 

39 FMSHRC Page 1920
to designate the violation as resulting from an unwarrantable failure to comply, also support the 

Judge’s determination that the penalty should reflect a high degree of negligence.4

 

B. Order No. 7024069 

The underlying facts regarding this order are not in dispute. Stalnaker informed the mine 

foreman, Mike Giavonelli, that he was not able to complete the examination of the bleeder due to 

the high water. Giavonelli spoke with the shift foreman, who told Giavonelli that Foreman and 

Mine Examiner Kevin Saunders had been sent into the bleeder to complete the weekly 

examination. Tr. 703. Saunders thereafter informed Giavonelli that he also was unable to 

complete the examination because of the water. Although the hazards were not noted and the 

examination was incomplete, Giavonelli countersigned the examination book. 

Substantial evidence5

 supports the Judge’s determination that the recordkeeping violation 

was S&S, pursuant to the standards set forth by the Commission in Mathies Coal Co., 6 

FMSHRC 1, 3 (Jan. 1984) (footnote omitted): 

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

is significant and substantial under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard — that is, a measure of 

danger to safety — contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

An evaluation of the reasonable likelihood of injury should be made assuming continued normal 

mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. 

Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)). 

 4

 The operator relies on Nacco Mining Co., 3 FMSHRC 848, 850 (Apr. 1981), arguing 

that the negligence of agents is not imputable to an operator if they expose only themselves to 

hazards. This argument is unavailing, as in Capitol Cement Corp., 21 FMSHRC 883, 893-94, 

(Aug. 1999), we held that the Nacco defense is not available when a violation is the result of 

unwarrantable failure. Moreover, Consol failed to raise this argument before the Judge. See

section 113(d)(2)(A)(iii) of the Act, 30 U.S.C. § 823(d)(2)(A)(iii) (“Except for good cause 

shown, no assignment of error by any party shall rely on any question of fact or law upon which 

the administrative law judge had not been afforded an opportunity to pass.”). 

5

 When reviewing a Judge’s factual determinations, the Commission is bound by the 

terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). 

“Substantial evidence” means “‘such relevant evidence as a reasonable mind might accept as 

adequate to support [the Judge’s] conclusion.’” Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (Nov. 1989) (“R&P”) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 

(1938)). 

39 FMSHRC Page 1921
The order alleges that Consol failed to record obvious and extensive hazardous conditions 

found during the weekly examination. As the Judge found, four of Consol’s foremen — 

Stalnaker, Saunders, Price and Giavonelli — knew about the water in the bleeder, that it was a 

hazard, and that it should have been recorded in the book. However, the hazardous water was not 

noted in the book when Giavonelli signed it. 37 FMSHRC at 1656. The operator does not dispute 

that the violation occurred, and thus the first Mathies element was met. 

As to the second Mathies step, substantial evidence supports the Judge’s finding that the 

violation was reasonably likely to contribute to the danger of tripping and falling. The record 

includes evidence of deep water accumulations obscuring an uneven floor and debris. The 

erroneous recording gave the false impression that the bleeder was entirely free of hazardous 

conditions contributing to the likelihood that miners may enter the bleeders unaware or 

unprepared to encounter the tripping hazards. As the Judge correctly noted, the fact that some 

miners and managers knew about the conditions was immaterial, because without the 

examination record, other miners had to rely entirely on word-of-mouth. For instance, as the 

Judge observed, Jamie Greene, the regular examiner, would have had to rely on an informal 

conversation with Stalnaker to learn about the extremely hazardous condition. Id. at 1657. 

Hence, the absence of a written record of the hazards made it more likely that miners — such as 

Greene — would enter the bleeder with the mistaken belief that it was free of hazards, 

contributing to the reasonable likelihood of the danger of falling. 

Moreover, as the Judge pointed out, because the water accumulations were not recorded 

in the examination book, Consol would have had no record of them. Inspector Young testified 

about the importance of a written record: 

Mike [Giavonelli] is pretty much the guy, whoever is acting as the mine 

foreman is who controls who works back in the bleeders, he is the one 

that gives permission, he is the one that tells the shift foreman, let 

whomever go back and do this. If is not recorded in the books and 

something happens to Mike . . . and he doesn’t come to work . . . who is 

to say that that isn’t going to get forgot about. 

. . . . 

[W]hen [the mine foreman] signs that weekly book, he is to look at that weekly 

book, he is to do a basic check from one week to the next. . . . He is the person . 

. . responsible as far as the underground workings of that mine, and that is the 

only way he knows if it is proper, without doing it himself, is by looking at those 

record books. 

 Tr. 140, 142. 

 Since the operator would not have had a written record that its efforts to keep water out 

of the bleeder were inadequate, the likelihood of it quickly and effectively resolving the problem 

was reduced and the likelihood of additional flooding — and additional exposure of miners to 

the hazardous water — would have been increased. 37 FMSHRC at 1658. 

 Importantly, the failure to record the hazards means that MSHA inspectors would not 

realize that the condition existed, and that hazards might continue to occur in the bleeder without 

39 FMSHRC Page 1922
MSHA’s knowledge. In fact, without the section 103(g) (30 U.S.C. § 813(g)) complaint, MSHA 

never would have known about the water in the bleeder. 

Substantial evidence also supports the Judge’s determination that the Secretary satisfied 

the third Mathies factor — the danger of tripping and falling was reasonably likely to result in 

injury. If miners tripped and fell in the bleeder the record supports a reasonable likelihood that an 

injury would occur such as bruising or fractures, or a cut and resulting infection. Tr. 68-69, 121-

22, 143. The Judge’s finding that such an injury would be “of a reasonably serious nature” is also 

supported by substantial evidence. The occurrence of such an injury, potentially miles away from 

the surface, suffered alone without means of contacting assistance, only exacerbates its 

seriousness. 

The operator again claims that the violation was not reasonably likely to cause reasonably 

serious injury because only trained, cautious examiners ventured into the E bleeder district, and 

there is no evidence of any past injuries in this area. As noted supra (slip op. at 8-9), the absence 

of prior injury in the relevant area and the exercise of caution by examiners are irrelevant to the 

S&S analysis for this recordkeeping violation. U.S. Steel Mining Co., 18 FMSHRC 862, 867 

(June 1996); Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992). Moreover, Stalnaker and 

Saunders deliberately went into the water, and thus were exposed to the hazards. 

An additional hazard contributed to by this violation (the failure to record the water in the 

exam book) is that some mine managers would be unaware of conditions that could adversely 

affect the mine’s ventilation system, and thus would not correct them.6

 As the Secretary stated in 

his post-hearing brief: “Failing to properly record an examination puts miners traveling to an 

area at risk because they could be unaware of hazards, and with respect to a bleeder system, puts 

an entire mine at risk.” S. Post-Hr’g Br. at 28 (emphasis added). As the Secretary cogently 

argued on appeal, “Inspector Young believed that the recording violation was S&S not only 

because it exposed miners to further hazardous water accumulations, but also because it was 

inconsistent with assuring remedial action in order to prevent accumulating water from resulting 

in potentially catastrophic ventilation starvation, which was the primary concern of the MSHA 

inspectors’ Section 103(g) investigation in the first place.” S. Br. at 30. Inspector Young 

articulated this concern at trial: 

If this violation wasn’t corrected, if the pumping wasn’t done, not 

saying that they didn’t because they started the pump, but say, the 

pumping wasn’t adequate, it could affect the ventilation over a

period of another week as much water as was back here. 

 6

 In Oak Grove Resources, LLC v. Secretary of Labor, 520 F.App’x. 1, 2013 WL 

1729514 (D.C. Cir. 2013) (unpublished), the Court held that a Judge’s determination that a 

violation of 30 C.F.R. § 75.364(b)(2) for failure to conduct a weekly examination was S&S was 

supported by substantial evidence. In that case, the examiner was precluded from finishing his 

inspection because of high water levels. The Court reasoned that the record indicated that a 

compromised ventilation fan, if undetected by inspection, might allow methane and other 

potentially lethal gasses to build up in the mine. 

39 FMSHRC Page 1923
It did not affect the ventilation when we were there on the 

investigation, but if left unattended, it most certainly could have. 

Tr. 143. Inspector Gross also testified that he “was concerned about the gas.” Tr. 399. 

 In reversing the Judge, the Chairman and Commissioner Young rely on the fact that the 

operator was making efforts to remedy the water problem before Giavonelli signed the book. 

That such activity had commenced is hardly persuasive evidence, especially considering that the 

water problem was not entirely abated until three days later. 37 FMSHRC at 1657. Similarly, 

their reliance on the fact that some examiners had personal knowledge of the water problem, slip 

op. at 22, ignores the requirement that the S&S analysis be applied considering “continued 

normal mining conditions,” and thus must take into account the hazards to other examiners who 

might not know about the water. Also, although my colleagues are confident that miners would 

realize they were entering deep water even though the examination report was deficient, they 

would not necessarily be aware of some of the tripping hazards, including the uneven floor and 

debris. Slip op. at 7-8; Tr. 724. 

 Taken to its logical conclusion, my colleagues’ position seems to indicate that a failure to 

record violation involving an obvious hazard that can be avoided by a miner cannot be S&S.7

Thus, if a mine examiner failed to report a guard missing from a conveyor belt, and it would be 

obvious to a miner that the belt was not guarded, (and he or she could stay away from the 

unguarded part of the equipment) the violation would not be S&S because the miner would 

realize that the belt lacked a guard “with or without the report.” Slip op. at 22. I am reluctant to 

endorse such a concept, as it removes an important enforcement tool needed to ensure 

compliance with examination requirements. 

 In sum, under the deferential substantial evidence standard of review, I conclude that the 

evidence above is such that a reasonable person might accept it as adequate to support the 

Judge’s conclusion that the examination violation was S&S. 

The next issue is whether substantial evidence supports the Judge’s finding that this 

conduct constitutes unwarrantable behavior. I would find that it does. 

Despite the fact that neither of the two examiners had noted the hazard of dark, murky 

water and tripping hazards in the bleeder, that Saunders had not signed the book, and that the 

examination was not complete, Giavonelli countersigned the examination book. 37 FMSHRC at 

1637; Tr. 659, 666, 671-72, 682, 717. He knew the examination had not been completed but 

claimed he signed the book only to signify that he had read it and knew there was a problem. Tr. 

671-72, 681-82. 

 

Only later that day, after he discovered that MSHA knew about the water in the bleeder 

and was likely to issue citations, did he add a note in the examination book to explain what had 

occurred. Tr. 677-79, 717. 

 

 7

 My colleagues’ position would also lead to the conclusion that even if the water had 

been so deep that it reached the roof, the failure to record this hazard would not be considered 

significant and substantial. 

39 FMSHRC Page 1924
As for Stalnaker and Saunders, they told the inspector that they forgot to fill out the 

examination book. 37 FMSHRC at 1637; Tr. 100. Saunders also acknowledged that he was 

complacent because the area often had water accumulations and he was not surprised to find 

water there. 37 FMSHRC at 1638; Tr. 311. Saunders stated that he did not believe the water was 

a hazard despite the fact that it was cold, murky, contained tripping hazards and was so deep that 

he did not complete his exam. 37 FMSHRC at 1659. 

The importance of the examination requirement cannot be overstated. Here, the operator 

had a duty to ensure that the water hazards were recorded so that miners and MSHA inspectors 

would be alerted to the dangers of tripping and falling in the water before being exposed. 

Recording the hazard would also have provided notice that additional efforts were needed to 

keep the bleeder clear. Id. This information was vital to miner safety. 

The inspector’s testimony on this subject was stark and direct:

[T]his is a vast volume of water back here. I mean, it needs to be 

documented, people need to know. It is required by law. What they 

are doing to correct it is required by law and the actions that they 

are taking [are] required by law to correct the condition. It is just 

not something that you keep two sets of records or you take a 

mental note on. It is a requirement. 

Tr. 140-41. 

As the Judge correctly noted, “This was not a mere paperwork error, rather this went to 

the heart of miner safety in the bleeder. . . . In fact, by creating a false impression about the area, 

the countersigned record book exacerbated the problem.” 37 FMSHRC at 1659-60. The violation 

involved the failure to record the presence of extensive deep water in an area of the mine where 

miners had to travel alone, possibly without timely aid if they were injured.8

 

In fact, had the 103(g) complaint not been made and the examination book subsequently 

updated and corrected to reflect the water hazard, MSHA might never have had access to 

important historical information that a problem had existed — a problem for which the operator 

had previously been cited on more than one occasion. MSHA recognized the importance of such 

documentation when, during the promulgation of the standard, it rejected suggestions that the 

rule should only require the examiner to record uncorrected hazardous conditions. 61 Fed. Reg. 

9764, 9805 (Mar. 11, 1996). In the preamble to the final rule, MSHA emphasized that the 

examination record serves the important function of noting the history of the types of conditions 

that can be expected in the mine. MSHA explained that when the records are correctly completed 

and reviewed, mine managers can use them to ascertain whether the same hazardous conditions 

are occurring and if effective corrective actions are in place. MSHA also stated that a record that 

includes all hazardous conditions found and the actions taken to correct them, permits mine 

management, MSHA inspectors and miners’ representatives to more efficiently focus their 

attention during examinations and inspections. Id. 

 8

 The failure to note and correct the water accumulations violations could also affect the 

mine ventilation system. Tr. 143. 

39 FMSHRC Page 1925
Central to my conclusion that this violation is unwarrantable is the fact that it involves 

conduct by the highest underground mine official, Mine Foreman Mike Giavonelli, as well as by 

other mine foremen. Consol unabashedly conceded that “[t]he mine foreman [Giavonelli] 

countersigned the partially complete book while it still had blank entries.” PDR at 2. He 

countersigned the book knowing of the hazardous conditions created by the water and knowing 

that those conditions were not listed in the book. Moreover, when Stalnaker, the mine examiner, 

was asked whether he considered putting the location of the water accumulations in the book, he 

testified that “the date board where proof that I had visited that area was in the water. . . . So I 

guess looking back on it, yes, I should have put it in the book.” Tr. 307. 

As mentioned above, pursuant to longstanding Commission precedent, the fact that the 

conduct at issue involved actions of mine management is a significant aggravating factor 

supporting a finding that a violation is unwarrantable. See Lopke Quarries, Inc., 23 FMSHRC 

705, 711 (July 2001) (recognizing that because supervisors are held to a high standard of care, 

the involvement of a supervisor in a violation is an important factor supporting an unwarrantable 

failure); Midwest Material Co., 19 FMSHRC 30, 35 (Jan. 1997) (reversing a Judge’s finding that 

a violation was not due to the operator’s unwarrantable failure in part due to the Judge’s failure 

to recognize that the violation took place in the presence of a foreman, who, under Commission 

precedent, is held to a high standard of care); Lion Mining Co., 19 FMSHRC 1774, 1778 (Nov. 

1997) (holding that the foreman’s observation of the violative condition was a factor tending to 

establish an unwarrantable failure); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995) 

(stating that in unwarrantable failure analysis, heightened standard of care is required of section 

foreman and mine superintendent). As supervisors, the Consol foremen were “entrusted with 

augmented safety responsibility and [were] obligated to act as a role model.” Capitol Cement 

Corp., 21 FMSHRC 883, 893 (Aug. 1999). 

I thus conclude that under the substantial evidence standard, where the inquiry is whether 

there is “such relevant evidence as a reasonable mind might accept as adequate to support [the 

Judge’s] conclusion,” there is more than enough in this record to sustain the Judge’s finding that 

Consol’s violation exhibited “aggravated conduct.” See note 5, supra. 

Regarding the penalty, the Judge assessed the $14,743 penalty proposed by the Secretary. 

Consol challenges this penalty determination. 

I would affirm the penalty. Under the Commission’s deferential standard of review, only 

penalty assessments “lacking record support, infected by plain error, or otherwise constituting an 

abuse of discretion” are subject to reversal. Lopke Quarries, 23 FMSHRC at 713; U.S. Steel 

Corp., 6 FMSHRC 1423, 1432 (June 1984). 

The Judge’s penalty determination easily meets this standard. She properly considered all 

of the relevant statutory factors under section 110(i) of the Mine Act. 37 FMSHRC at 1661-62. 

She noted that Consol’s actions constituted an unwarrantable failure to comply. Id. at 1662 (a 

finding which, as discussed earlier, I would find is supported by substantial evidence). She 

clearly gave great weight to her finding of high negligence. This was based on the fact that 

Giavonelli signed the exam book knowing that water was present and not listed as a hazard. Id. 

39 FMSHRC Page 1926
at 1658-61.9

 The Judge also emphasized her gravity finding. Id. at 1662.10 Finally, she noted that 

Consol had a history of water accumulations in the particular bleeder at issue, and had been cited 

several times for that condition. Id.

Our case law is clear that Judges have discretion to assign different weight to the various 

statutory factors, according to the circumstances of the case. See Lopke Quarries, 23 FMSHRC 

at 713. Here, the Judge gave significant weight to negligent gravity, as our precedent permitted 

her to do. 

In sum, I find that in upholding the penalty proposed by the Secretary for the order, the 

Judge did not abuse her discretion. For the reasons set forth above, I would affirm the decision of 

the Judge. 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

 9

 I would affirm the Judge’s finding of high negligence based on the same analysis I use 

to affirm the finding that the violation was the result of the operator’s unwarrantable failure. 

10 The Judge affirmed the inspector’s high gravity designation, concluding that it was 

supported by a preponderance of the evidence. 37 FMSHRC at 1656 (listing the danger as 

“highly likely” to result in “fatal” injuries). She found that because the conditions listed in the 

ventilation plan citation (the uneven mine floor and the deep water) were not listed in the 

examination book, miners would not be aware of them. Id. at 1657. Thus, the failure to record 

the deep water in the book exacerbated its danger because examiners sent to the area would lack 

knowledge of the nature and extent of the hazard. Id. at 1657-58. As the inspector testified, “[i]f 

somebody was to go back there unknowingly, the water wasn’t pumped . . . [s]omebody can fall 

and somebody can hit their head.” Tr. 143. 

 The Judge also held that if miners entered the area, injuries such as a fracture, bacterial 

infection, or death by drowning were highly likely to occur. 37 FMSHRC at 1657; Tr. 68-69, 

121-22, 143. Because I find that the Judge’s analysis is supported by substantial evidence in the 

record, I would affirm her gravity decision. 

39 FMSHRC Page 1927
Opinion by Commissioner Cohen: 

 My assessment of the conditions at the Enlow Fork Mine which gave rise to Citation No. 

7024068 and Order No. 7024069 is quite similar to that of Commissioner Jordan. 

 Despite two recent citations by the Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) and a specific warning contained in the second of those citations, 

Consol Pennsylvania Coal Company (“Consol”) failed to prevent the waters in the E-15 to E-22 

bleeder system from accumulating to dangerous levels. The cold, murky water ranged up to 42 

inches in depth in one extensive area and up to 36 inches in depth in another extensive area, for a 

total of 2350 feet. The mine floor below the water was irregular and contained numerous tripping 

hazards which could not be seen. The water was so extensive that it took three days after the 

issuance of the citation and order to be pumped out. The water in the bleeder system clearly 

constituted a violation of the provision in Consol’s ventilation plan which required that the 

bleeder system be maintained “safe for travel”. This was the basis for the issuance of Citation 

No. 7024068. 

 Despite the hazards, the water was entered by two Consol examiners — Dan Stalnaker 

and Kevin Saunders, both of whom were foremen — on February 5, 2013 in an unsuccessful 

attempt to complete the weekly examination of the bleeder system required by 30 C.F.R. § 

75.364. Stalnaker even put on chest waders, which were improper to use because they lacked 

flotation devices.1

 Stalnaker did not retreat from the high waters until his multi-gas detector was 

damaged when water poured into his waders while he attempted to go through a 3-foot high 

mandoor between entries. Consol’s practice at that time (it has since been changed) was to have 

its examiners examine the bleeders alone. Moreover, there was no communications system in the 

Enlow Fork bleeders. From the point of entering the bleeder system to exiting the system, miners 

had no way to call for assistance. 

 Upon the completion of their respective attempts, both Stalnaker and Saunders made 

entries in the record book for the evaluation points they were able to access, as required by 30 

C.F.R. § 75.364(h). Despite the conditions they had encountered, neither of them recorded any 

“hazardous conditions”, as required by the regulation. Two other Consol supervisors — Shift 

Foreman Robert Price and Mine Foreman Michael Giavonelli — knew about the water and made 

no effort to make sure that this hazardous condition was recorded. Indeed, Giavonelli signed the 

record book as Mine Foreman without indicating any hazardous condition. The failure of the 

four foremen to make a record of the hazardous water was the basis for the issuance of Order No. 

7024069. 

 

 1

 It is against both MSHA policy and Consol policy to use chest waders which lack a 

flotation device. Tr. 419-20, 455, 499-500, 704. Mine Foreman Michael Giavonelli testified that 

he does not allow miners to wear waders because it is against Pennsylvania state law. Tr. 704. 

Shift Foreman Robert Price testified that if they get filled with water, it is “tough to get up”. Tr. 

455. Bleeder examiner Jamie Greene was more explicit — “You could go over water so far, 

water goes down in, you drown”. Tr. 500. 

39 FMSHRC Page 1928
However, I cannot agree with Commissioner Jordan that all of the Judge’s conclusions 

should be affirmed. As described below, the Judge’s analysis was insufficient on the issues of 

gravity, negligence and unwarrantable failure with regard to Citation No. 7024068, and was 

insufficient on the issues of gravity and unwarrantable failure with regard to Order No. 7024069. 

Thus, I would remand on those five issues, and affirm the Judge’s decision on the issue of 

significant and substantial (“S&S”) with regard to the citation and on the issues of S&S and 

negligence with regard to the order. 

A. Citation No. 7024068 

S&S 

 With regard to S&S, I join the unanimous Commission opinion. 

 Gravity

With regard to gravity, I join the opinion of Acting Chairman Althen and Commissioner 

Young. It appears to me that the Judge became entangled in the distinctions between “highly 

likely” and “reasonably likely” contained in Table XI referenced in 30 C.F.R. § 100.3(e). In 

analyzing the gravity of the citation, the Judge found that it was “highly likely” that an injury 

such as broken bones would result from a slip and fall in the bleeders, then said (three times) that 

it was “reasonably likely” that a fatal injury (i.e., drowning) would occur, and then inexplicably 

concluded that the conditions described in the Citation were “Highly Likely to result in Fatal 

injuries to two miners.” 37 FMSHRC 1616, 1643, 1646-47 (July 2015) (ALJ). In making 

determinations of gravity, Commission Judges should consider the evidence holistically, and not 

feel bound by the distinctions made by the tables in Part 100. American Coal Co., 39 FMSHRC 

8, 20 (Jan. 2017). I join Acting Chairman Althen and Commissioner Young in concluding that: 

(1) the evidence does not support a high likelihood of injuries, and that (2) on remand the Judge 

should determine the reasonable likelihood of injuries ranging from broken bones to a fatality.2

 Negligence 

 

 The Judge concluded that Consol demonstrated a high degree of negligence when it 

failed to comply with its ventilation plan because it: (1) “knew or should have known” of the 

accumulated water in the bleeders and (2) failed to demonstrate any mitigating circumstances. 37 

FMSHRC at 1648. I agree with Acting Chairman Althen and Commissioner Young that the 

Judge’s decision should be remanded, but I do not agree with their rationale. 

 2

 With regard to gravity, Commissioner Jordan states that “substantial evidence supports 

a finding of serious or high gravity”. Slip op. at 28. I agree with her. I think it is proper for 

Commission Judges to make findings as to gravity using terms such as “serious” or “high” while 

discussing “factors such as the likelihood of injury, the severity of an injury if it occurs, and the 

number of miners potentially affected.” Newtown Energy, Inc., 38 FMSHRC 2033, 2049 (Aug. 

2016). If the Judge here had made a finding of “serious” or “high” gravity for the citation, I 

would have joined Commissioner Jordan in affirming the citation. But the Judge stated her 

conclusion as a “high likelihood” of injuries, a conclusion which, as stated in the opinion of 

Acting Chairman Althen and Commissioner Young, is not supported by substantial evidence. 

39 FMSHRC Page 1929
In large part, the Judge’s analysis of negligence was well reasoned and supported by 

substantial evidence. For example, she recognized the significance of the fact that the bleeder 

system was prone to flooding, and that MSHA had previously warned Consol in December 2012 

that more effort was needed to control the water level in the bleeder. Id. at 1649-50. She 

correctly determined that since Stalnaker and Saunders were members of management, their 

knowledge of the high water levels was imputable to Consol. Id. at 1648. She correctly found 

that Stalnaker and Saunders “willfully traveled through the hazards.” Id. at 1650.3

 Moreover, 

substantial evidence supports her determination that Consol’s system for keeping water out of 

the bleeder was “wholly inadequate”. Id. However, in my view, the Judge committed three 

fundamental errors of analysis which make it impossible to affirm her ultimate conclusion on the 

issue of negligence. 

First, the Judge applied the definitions of levels of negligence found in Table X 

referenced in 30 C.F.R. § 100.3(d), under which high negligence may be found only if there is a 

total absence of mitigating conditions. 37 FMSHRC at 1618. Thus, she organized her analysis 

around the alleged mitigating circumstances asserted by Consol, and concluded that “[a]s none of 

the actions presented by Respondent constituted mitigating circumstances, the ‘High Negligence’ 

designation is appropriate.” Id. at 1648-50. However, as Acting Chairman Althen and 

Commissioner Young point out, slip op. at 12-13, the Commission has rejected, in general, 

reliance on the Part 100 definitions in determining degrees of negligence, and, specifically, the 

legal principle that the finding of any mitigating circumstance precludes a conclusion of high 

negligence. Instead, Commission Judges evaluate negligence using a traditional and holistic 

“reasonable person” analysis of the evidence. Thus, a violation may be found to be “high 

negligence” even if mitigating circumstances exist. Brody Mining, LLC, 37 FMSHRC 1687, 

1701-04 (Aug. 2015) (“[A] Commission Judge may find ‘high negligence’ in spite of mitigating 

circumstances.”). In this case, the Judge’s use of the Part 100 definitions, by itself, would not 

necessarily require remand. However, her reliance on the parameters of the Secretary’s Part 100 

regulations resulted in a distortion of her analysis which gave rise to two reversible errors.4

 

Second, the Judge did not properly evaluate the fact that, as part of its efforts following 

MSHA’s admonition in the citation for excessive water in the bleeder issued on December 10, 

2012, Consol conducted additional monitoring in the area, including examining the bleeder 

3

 Acting Chairman Althen and Commissioner Young make reference to “Inspector Gross’ 

voluntary walk through the water”, slip op. at 14 n.5. However, Gross was accompanied by 

Consol representative John Brottish, and testified that if he had been alone, he would not have 

entered the water because no one could have helped him if he fell. Tr. 348-49, 398-99. 

4

 My impression is that the Judge had a gut sense that the ventilation plan violation was 

characterized by high negligence — which may be entirely reasonable — and then, because the 

Part 100 definition of “high negligence” requires the absence of any mitigating circumstance, she 

fit the evidence into a conclusion that there were no mitigating circumstances. Thus, the use of 

the Part 100 definitions of the degrees of negligence caused an analytic strait jacket in 

considering whether allegedly mitigating circumstances are actually mitigating. 

39 FMSHRC Page 1930
system more frequently than once a week.5

 The Judge rejected these efforts as mitigating 

negligence for two reasons. First, the Judge said that the efforts were “in vain” because, 

subsequently, Stalnaker and Saunders willfully traveled through the hazards. Second, she found 

that the efforts were “grossly inadequate” because the actions did not give Consol any indication 

that water was collecting in the area at dangerous levels. 37 FMSHRC at 1650. 

 Neither of the Judge’s reasons constitutes a basis for rejecting the efforts as mitigation. 

The fact that Stalnaker and Saunders willfully entered the hazardous water is essentially 

irrelevant to the fact that Consol was making some effort to monitor the water. The Judge’s 

finding that the efforts were “grossly inadequate” overlooks the fact, as the Judge found in her 

unwarrantable failure analysis, that in the last examination which Jamie Greene conducted less 

than 48 hours from the time the citation was written, the water level was not excessive. Id. at 

1651. Hence, I conclude that the Judge erred in rejecting Consol’s efforts to monitor water levels 

in the bleeder system as a mitigating circumstance. These efforts may not be sufficient to offset 

the facts described by Commissioner Jordan as constituting high negligence, slip op. at 26-28, 

but they do represent an effort by Consol to monitor the water levels, and should be considered 

as a mitigating factor on remand. 

 Third, the Judge erred in her evaluation of Shift Foreman Price’s actions on February 5, 

2013. After Stalnaker returned from his unsuccessful attempt to complete the examination of all 

of the evaluation points, Price directed Saunders to attempt to complete the examination, starting 

from the E-22 side of the bleeder system. 37 FMSHRC at 1631. The Judge characterized Price’s 

action as “willful exposure [of Saunders] to the hazard” of the dangerous excessive water. Id. at 

1649. 

 The record does not indicate that Price knew that Saunders would encounter hazardous 

accumulations of water when attempting to finish the examination from the opposite end of the 

system. Price’s knowledge of the water conditions in the bleeder came from Stalnaker, who 

previously had only attempted to examine from paths available on the E-15 side. Although Price 

assumed that Saunders would also encounter some water when walking from the opposite side, 

this belief does not represent a willful disregard of a hazard as it is permissible, at least according 

to Inspector Young, for examiners to walk in up to 18 inches of water. Tr. 46, 450, 458. 

Moreover, the record does not indicate that Price directed Saunders to walk through hazardous 

water to complete the examination, as is suggested by the Judge’s finding of “willful exposure”. 

 I conclude that Price acted reasonably when he assigned Saunders to begin an 

examination from the opposite end of the bleeders. Price acted in a manner that was consistent 

with Consol’s obligation to conduct a weekly examination and to check for dangerous methane 

accumulations that may have built up in the bleeders. See 30 C.F.R. § 75.364(a). Price 

understood that Saunders was familiar with the area, and thus capable of navigating alternative 

 5

 Jamie Greene, the regular examiner of the bleeder system, testified that he walked the 

area several times in the days before Stalnaker performed the examination and tended to pumps 

that were down so that Stalnaker (who substituted for Greene on the day at issue) would not have 

to walk through hazardous levels of water. Greene testified that he did not see excessive water. 

Tr. 495-96, 519-20. The Judge credited Greene’s testimony. 37 FMSHRC at 1651. 

 

39 FMSHRC Page 1931
routes in the E bleeder system to potentially access the evaluation points. See Tr. 458. 

Accordingly, I conclude that Price should not have been identified as being responsible for the 

“willful exposure” of Saunders to the hazards of the excessive water. 

 The Judge’s characterization of Price’s actions was not inconsequential in the Judge’s 

overall evaluation of Consol’s negligence. The Judge rejected the operator’s installation of a 

bubbler system to monitor water levels in the bleeder system as a mitigating circumstance 

because of “the willfully negligent actions of Stalnaker, Price and Saunders.” 37 FMSHRC at 

1649-50. On remand, Price’s actions should not be considered as “willfully negligent”. 

 I cannot agree with Commissioner Jordan’s analysis of negligence because it focuses 

entirely on the previous citations for excessive water and the actions of Stalnaker and Saunders 

in entering the water, without considering Consol’s efforts between December 10, 2012 and 

February 5, 2013. At the same time, I cannot join the analysis of negligence by Acting Chairman 

Althen and Commissioner Young because it places too much emphasis on the Judge’s error in 

finding that an injury was “highly likely” with respect to gravity. Moreover, their opinion does 

not fully consider the actions of Stalnaker and Saunders in entering the water, and — with 

respect to Stalnaker — the fact that he improperly donned chest waders in entering the water.6

 A principal difference between my view and that of Acting Chairman Althen and 

Commissioner Young is in how we regard the actions of Stalnaker and Saunders. I see the 

actions of Stalnaker and Saunders in entering the hazardous water in the bleeders as relevant to 

the violation. In contrast, my colleagues focus exclusively on the accumulation of the water, and 

regard the actions of Stalnaker and Saunders as relevant only insofar as their entering the water 

was foreseeable to other members of Consol’s management. See slip op. at 14.7

 Consol’s ventilation plan requires that the bleeders be “safe for travel”. Gov’t Ex. 3. If 

the bleeders are unsafe (because of, for instance, an accumulation of water), and they are traveled 

while unsafe, then the fact that the unsafe travel occurred exacerbates the negligence of the 

operator. The foreseeability of the travel would be an issue if those who did the traveling were 

only rank-and-file miners. But here, Stalnaker and Saunders were — as the Judge found — 

 6

 This is particularly relevant to their consideration of unwarrantable failure, as discussed 

below. 

 7

 Acting Chairman Althen and Commissioner Young correctly observe that MSHA did 

not specifically cite Consol for the actions of Stalnaker and Saunders in entering the hazardous 

water. See slip op. at 20 n.10. However, the Judge included their actions in her evaluation of both 

negligence and unwarrantable failure. 37 FMSHRC at 1648-50, 1654. It is the Judge’s decision, 

and not the MSHA citation, which the Commission reviews on appeal. Moreover, Consol has not 

argued on appeal that the Judge erred in considering the actions of Stalnaker and Saunders as 

relevant to the operator’s negligence and alleged unwarrantable failure. Rather Consol’s 

argument is that Stalnaker and Saunders did not act in a negligent manner because they believed 

that they were not exposing themselves to a hazard. PDR at 21. According to Consol, Stalnaker 

and Saunders acted upon a reasonable good faith belief, and even if the belief was not 

reasonable, the operator should not be held responsible because the agents’ conduct was 

somehow “idiosyncratic”. Id. 

39 FMSHRC Page 1932
members of the management of the Enlow Fork Mine. 37 FMSHRC at 1648. As such, their 

negligence is directly imputed to Consol. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 

194-96 (Feb. 1991) (holding that negligence of mine examiner is imputed to operator for 

purposes of determination of unwarrantable failure). Hence, the foreseeability of the actual 

unsafe travel is not an issue here. 

 In summary, I would remand the case on the issue of negligence in order for the Judge to 

consider the issue holistically, without regard to the Part 100 definitions of the degrees of 

negligence. The Judge should consider both (1) the actions of Consol in dealing with the problem 

of flooding in the bleeders in light of the two previous citations and the explicit warning by 

MSHA, and (2) the actions of Consol agents Stalnaker and Saunders in willfully entering the 

hazardous water. The Judge may, but need not, reach the conclusion that the violation of the 

ventilation plan was characterized by high negligence. 

Unwarrantable Failure 

 The Judge’s decision contains a lengthy discussion of unwarrantable failure, and looks at 

all of the factors which the Commission has identified as relevant in IO Coal Co., 31 FMSHRC 

1346, 1350-57 (Dec. 2009). See 37 FMSHRC at 1651-54. Her analysis is, for the most part, wellreasoned and supported by substantial evidence. Contrary to the opinion of Acting Chairman 

Althen and Commissioner Young, I find no reversible error in the Judge’s discussion of the 

extent of the violative condition,8

 the length of time the violation existed,9 whether the violation 

was obvious,10 Consol’s knowledge of the existence of the violation,11 and whether Consol had 

been put on notice of the need for greater efforts for compliance.

 However, I believe that errors made by the Judge in her analysis of the factors of danger 

and Consol’s efforts to achieve compliance require remand for reconsideration. 

 With respect to the factor of danger, the Judge’s consideration was necessarily informed 

by her previous determination that the violation produced a high likelihood of fatal injuries. As 

 8

 Even if the water itself did not extend for as much as half a mile, it was unquestionably 

an extensive flooding in two separate areas of the bleeder system. Such error as the Judge made 

in saying “the water stretched for nearly half a mile”, 37 FMSHRC at 1651, is trivial and 

harmless. The accumulation of water took three days to be abated. Tr. 153-54, 233; 37 FMSHRC 

at 1636. 

9

 Crediting the testimony of Greene, the Judge reasonably concluded that the violation 

occurred less than 48 hours from the time the citation was written. 37 FMSHRC at 1651. 

10 My colleagues fault the Judge for finding the violation to be obvious since it was not 

known until Stalnaker entered it. They ignore the fact that after it became known, both Stalnaker 

and Saunders entered the deep water. Since Stalnaker and Saunders were agents of Consol, their 

actions in entering the hazardous water is a proper context for considering the obviousness of the 

violation, which is what the Judge did. 

11 See note 8, supra. 

39 FMSHRC Page 1933
discussed supra, the determination of high likelihood is not supported by substantial evidence. 

This undercuts the Judge’s findings as to danger with respect to unwarrantable failure. On 

remand, the Judge should revisit her findings as to danger in light of her reconsidered findings 

with respect to gravity. 

 With respect to Consol’s efforts to abate the violative condition, the Judge focused on the 

fact that miners were exposed to the hazards of the excessive waters before abatement efforts 

became effective. 37 FMSHRC at 1654. She should have also considered Consol’s efforts to 

control and monitor water in the bleeder system before Stalnaker entered the water, and the 

extent to which those efforts were sufficient to the task. Additionally, the fact that efforts were 

made after miners were exposed to the hazard does not render them meaningless for purposes of 

unwarrantable failure analysis. 

 Just as the Judge may well find high negligence on remand, she may also find that the 

violation was characterized by unwarrantable failure. But she must first reconsider her findings 

as to the factors of danger and efforts at abatement, and then weigh all of the unwarrantable 

failure factors together. 

B. Order No. 7024069 

 With respect to the separate recording violation, the Judge concluded that Consol 

demonstrated high negligence, citing management’s knowledge of the hazards, the multiple 

failures to record the hazards, and the mine’s general history of failing to address water 

accumulations. The Judge found that Giavonelli’s decision to sign a record with two obvious 

deficiencies — (1) a failure to list known hazards and (2) a failure to record air measurements for 

two of the evaluation points — was aggravating conduct. The Judge reasoned that a miner 

looking at the record would erroneously assume that the bleeder was safe for travel. In addition, 

the Judge found that any efforts the operator took to correct the underlying conditions were 

irrelevant to the negligence associated with the failure to record those conditions. 37 FMSHRC 

at 1658-61. 

39 FMSHRC Page 1934
 S&S 

 With regard to S&S, I would affirm the Judge’s Decision, and join the opinion of 

Commissioner Jordan. 

 Gravity 

 With regard to gravity, I join the opinion of Acting Chairman Althen and Commissioner 

Young. The Judge’s finding of a high likelihood of fatalities is not supported by substantial 

evidence. On remand the Judge should determine the severity of injury (ranging from broken 

bones to fatality) which was reasonably likely to have occurred as a result of the hazard 

contributed to by the violation. 

 Negligence 

 I would affirm the Judge’s conclusion that Consol’s failure to identify hazards in the 

weekly examination record book should be characterized as high negligence. In this regard, I 

fully join the opinion of Commissioner Jordan, slip op. at 32-34, 34 n.9, insofar as it applies to 

the negligence issue. 

 In contrast, my colleagues Acting Chairman Althen and Commissioner Young would 

vacate and remand the Judge’s negligence analysis, unpersuaded that a knowing violation by 

mine management constitutes aggravated conduct. They would direct the Judge to reconsider 

two specific arguments. 

 First, they assert that the Judge should consider Consol’s efforts to abate the water 

accumulations as relevant, despite the Judge’s initial conclusion that those efforts were irrelevant 

to the recording violation. 37 FMSHRC at 1660 (“This is completely irrelevant to the issue. The 

dangers associated with an inadequate examination are not completely eliminated by correcting 

the underlying condition.”) I disagree with my colleagues. Even if Consol had completely 

removed the water after the examinations by Stalnaker and Saunders, its duty to record the 

hazards observed during the examination would not be altered. Accordingly, I conclude that the 

Judge was correct in her determination that abatement efforts were not relevant. 

 Second, my colleagues suggest that Mine Foreman Giavonelli’s signing of an incomplete 

exam report may not demonstrate aggravated conduct. They believe that any person viewing the 

examination record would have understood that it was incomplete. My colleagues miss the point. 

Giavonelli signed the examination report with blank spaces by the evaluation points, without any 

indication on its face that the spaces were blank or the examination incomplete at the time he 

signed it. This practice invites an examiner to complete the examination without having to 

approach the mine foreman again. As a result, the circumstances allow the examination report to 

be subsequently modified without indication on the face of the document. More importantly, in 

this case, Giavonelli knew that he was signing an examination report that was not completed 

because the examiners were prevented from accessing evaluation points because of hazardous 

conditions that weren’t listed on the examination report. Only the section 103(g) complaint and 

the arrival of MSHA inspectors caused the discovery that the examination record was 

39 FMSHRC Page 1935
incomplete. The Judge was correct in concluding that Giavonelli’s signature on an incomplete 

examination record, together with the failure to record the hazardous conditions, indicates an 

aggravated lack of care. 

 

 Unwarrantable Failure 

 The Judge’s analysis of unwarrantable failure comprises one paragraph in which she 

states: “The facts and arguments of the parties regarding the unwarrantable failure designation in 

Order No. 7204069 are identical to those in Citation No. 7204068. Therefore the findings 

regarding Citation No. 7204068 are incorporated here by reference.” 37 FMSHRC at 1661 

(citation omitted). However, as noted by Acting Chairman Althen and Commissioner Young, 

with whose opinion I agree on this issue, the facts and issues regarding unwarrantable failure in 

the order, while overlapping in many respects with the citation, are not congruent with the 

citation. 

 The analysis of the factor of whether Consol had been put on notice of the need for 

greater efforts for compliance is certainly different for the order. Unlike the citation, where 

MSHA had issued two recent citations for excessive water in the bleeder system and had 

specifically warned Consol to improve its compliance with the “safe for travel” provision of the 

ventilation plan, no such citations or warnings had been issued that Consol needed to improve its 

recording of weekly examinations. 

 The issues of knowledge and obviousness are also different for the order. With the 

citation, knowledge and obviousness relate to flooding in the bleeder system. With the order, 

knowledge and obviousness relate to what Consol officials put in the record book. Clearly, they 

had knowledge, and the violation was (or should have been) obvious. 

 As to abatement, the citation involves the question of how the Consol officials addressed 

a known problem of flooding in the bleeder system, both before and after the immediate problem 

was discovered on February 5, 2013. As described supra, this is a complex issue. However, with 

the order, the issue of abatement is quite clear. Consol not only failed to abate the violation, but 

compounded it when Mine Foreman Giavonelli signed the book, attesting that it was correct and 

accurate. 

 

39 FMSHRC Page 1936
The issues of the extent and duration of the violation were relevant in the context of the 

citation, but probably are not relevant in the context of the order. 

 Therefore, the issue of whether the failure to record hazardous conditions in the weekly 

examination record book was an unwarrantable failure must be remanded to the Judge for 

reconsideration.12 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

 12 My colleagues Acting Chairman Althen and Commissioner Young take me to task for 

“essentially opin[ing] on each unwarrantable failure element”, and instruct the Judge on remand 

that she “need not accord any weight whatsoever to Commissioner Cohen’s premature statement 

of his personal view of factual issues.” See slip op. at 25 n.16. What I have said here about the 

knowledge and obviousness of the recording violation should be manifest even to my colleagues 

in that Stalnaker and Saunders had each personally viewed, and entered, the accumulations of 

water before they recorded in the record book that there were no hazardous conditions in the 

bleeder system. What I have said here about the issue of abatement flows directly from what I 

said supra with regard to Mine Foreman Giavonelli’s signature on an incomplete examination 

record constituting aggravated lack of care. The Judge on remand is, of course, not bound to 

accept my view of Giavonelli’s negligence (in that the finding of high negligence regarding 

Order No. 7024069 is being affirmed in result without a Commission majority), but probably can 

figure that out without my colleagues’ help. 

39 FMSHRC Page 1937
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

 1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

October 19, 2017 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket Nos. KENT 2012-749 

 KENT 2012-904 

 KENT 2012-1085 

NALLY & HAMILTON ENTERPRISES, 

INC. 

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen, Commissioners 

DECISION 

BY THE COMMISSION:

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et. seq. (2012) for violations of 30 C.F.R § 77.1001 and 30 C.F.R. § 77.1713(a). At 

issue is whether substantial evidence supports determinations made by the Judge in overturning 

“significant and substantial” (“S&S”) designations accompanying a citation and order issued to 

Nally & Hamilton Enterprises, Inc. by the Department of Labor’s Mine Safety and Health 

Administration. 

39 FMSHRC Page 1938
Acting Chairman Althen and Commissioner Young vote to affirm the Judge’s decision, 

while Commissioner Jordan and Commissioner Cohen vote to reverse the Judge’s decision. The 

effect of the split decision is to allow the Judge's decision to stand as if affirmed. Pennsylvania 

Elec. Co., 12 FMSHRC 1562 (Aug. 1990), aff’d on other grounds, 969 F.2d 1501 (3d Cir. 1992). 

/s/ William I. Althen 

William I. Althen, Acting Chairman 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Commissioner 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 1939

COMMISSION ORDERS
39 FMSHRC Page 1940
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

October 10, 2017 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket No. VA 2014-243 

Docket No. VA 2014-244 

Docket No. VA 2014-364 

 v. 

Docket No. VA 2014-365 

Docket No. VA 2014-383 

A & G Coal Corporation 

DIRECTION FOR REVIEW AND ORDER 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2012) (“Mine Act”). On August 16, 2017, after a representative of A & G Coal

Corporation (“A & G”) failed to appear for a previously scheduled conference call, a

Commission Administrative Law Judge issued an Order to Show Cause directing the operator to

respond by August 28, 2017, or risk being held in default. On August 30, 2017, not having

received a response from A & G, the Judge issued an Order of Default dismissing the civil

penalty proceedings.

On September 29, 2017, the Commission received a Petition for Discretionary Review 

from A & G seeking to set aside the Judge’s Order of Default and remand the matter to the Judge 

for a hearing. PDR at 1. A & G’s petition implicates several questions, including whether the 

Order to Show Cause was appropriate in this matter, whether procedural defects existed with the 

show cause order, and whether the process the Judge followed complied with the due process 

requirements of the Constitution. Foremost, although the Judge received confirmation that the 

show cause order was received and signed for,1

 Order of Default at 1–2, in an affidavit 

supporting A & G’s petition, a representative for the operator avers that he did not receive the 

Judge’s August 16 show cause order and could not find anyone in the company’s offices who 

had received the order. Aff. of Patrick Graham at 3. A & G asserts that it only learned of the 

show cause order when the operator received the Judge’s default order. PDR at 4. The 

representative acknowledges that he failed to appear at the conference call, and he avers that he 

1

 The record contains a certified mail delivery receipt showing a signature by Leslie 

Wells. 

39 FMSHRC Page 1941
had intended to contact A & G’s legal counsel to advise him of the call but failed to do so. Aff. 

of Patrick Graham at 2.2

 Under the Mine Act and the Commission’s procedural rules, relief from a Judge’s 

decision may be sought by filing a petition for discretionary review within 30 days of its 

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). We hereby grant A & G’s timely 

filed petition for discretionary review. 

In evaluating requests for relief from orders of default, the Commission has found 

guidance in Rule 60(b) of the Federal Rules of Civil Procedure and has granted relief on the 

basis of mistake, inadvertence, excusable neglect, or another reason justifying relief. See 29 

C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the 

Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 15 FMSHRC 782, 787 (May 1993). 

We also have observed that default is a harsh remedy and that, if the defaulting party can make a 

showing of good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

 A & G alleges that it did not timely respond to the Judge’s Order to Show Cause because 

the official representing the operator in this matter did not receive the order. The present record 

is not clear as to what happened to the show cause order after it was delivered and signed for.3

 

 

 2

 We appreciate our colleague’s views, but agree with him that it is premature to rule on 

the issues he raises in his separate opinion. No inference relevant to the merits of this case should 

be drawn from our decision to neither join nor rebut his suggestions on those issues. 

3

 According to the Commission’s records, both the show cause order and the subsequent 

default order were sent to Southern Coal Corporation at an address in Roanoke, VA. It appears 

that, at least at one time, Southern Coal Corporation was affiliated with A & G. Aff. of Patrick 

Graham at 2. Although this address does not otherwise appear in the record, A & G 

acknowledges receiving the Order of Default, but not the Order to Show Cause. 

39 FMSHRC Page 1942
 Having reviewed A & G’s request, in the interest of justice, we remand this matter to the 

Judge to determine whether relief from the default is warranted and for further proceedings as 

appropriate pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. 

Part 2700. 

 /s/ Mary Lu Jordan 

 Mary Lu Jordan, Commissioner 

 /s/ Michael G. Young 

 Michael G. Young, Commissioner 

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner 

39 FMSHRC Page 1943
Acting Chairman Althen, concurring: 

 In order to form a unanimous decision, I join in the Commission’s remand. I write 

separately to note that the present order pretermits the path I would have preferred. I would have 

granted review of whether the Judge abused his discretion in issuing a default order for $321,000 

in a factually contested proceeding with the parties engaged in settlement discussions as a 

sanction for missing a telephone conference on whether to extend a stay.1 A fully articulated 

decision by the Commission would have provided guidance for future considerations of default. 

 Because we have not granted review of that issue and the parties have not briefed it, it 

would be premature to opine on the outcome of such a review. Nonetheless, for purposes of the 

Judge’s reconsideration and for use in other default proceedings, I find it useful to discuss basic 

default principles. Of course, I write only my understanding of default principles. 

 All Commissioners agree that default is a harsh remedy. It is not an action for a Judge to 

take merely because he/she has the power to do so. Declaring a default in an ongoing contested 

action requires a careful analysis and explanation of the basis for such harsh action. 

 Indeed, along with us, federal courts have emphasized the harshness of default and their 

strong disfavor of defaults of contested cases.2 The D.C. Circuit has stated: “Default judgments 

are not favored by modern courts, perhaps because it seems inherently unfair to use the court’s 

power to enter and enforce judgments as a penalty for delays in filing. Modern courts are also 

reluctant to enter and enforce judgments unwarranted by the facts.” Jackson v. Beech, 636 F.2d 

831, 835 (D.C. Cir. 1980). If a party is seeking relief from a default, “all doubts are resolved in 

favor of the party seeking relief.” Id. at 836. In E.F. Hutton & Co., Inc. v. Moffatt, the Fifth 

Circuit opined that “[t]he entry of judgment by default is a drastic remedy and should be resorted 

to only in extreme situations.” 460 F.2d 284, 285 (5th Cir. 1972). Much more recently, in Drone 

Technologies, Inc. v. Parrot S.A., Parrot Inc., the Federal Circuit examined the Third Circuit’s 

standards and found the following: 

A dismissal or default is a “drastic” sanction, Poulis, 747 F.2d at 867, which is 

why the Third Circuit has “established [a] strong presumption against sanctions 

that decide the issues of a case,” Ali, 788 F.2d at 958. Accordingly, a dismissal or 

default sanction is “disfavored absent the most egregious circumstances.” United 

States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003). 

838 F.3d 1283, 1301 (Fed. Cir. 2016). 

 

 1

 Our resolution also avoids possible sua sponte discussion of whether, upon default, a 

Judge may assess the penalty sought by MSHA without evidence on, or consideration of, the 

penalty factors the Mine Act requires the Commission itself to consider in assessing penalties. 

Notably, the Commission’s procedural rules require Judges entering default orders to assess 

“appropriate penalties,” not simply those proposed by the Secretary. 29 C.F.R. § 2700.66(c). 

2

 This is not a case where the operator failed to contest the citation or penalty. 

39 FMSHRC Page 1944
In deciding default issues, the Third Circuit developed a six factor test of: (1) the extent 

of the party’s personal responsibility; (2) whether the party had a history of dilatoriness; (3) 

whether the conduct of the party or the attorney was willful or in bad faith; (4) the 

meritoriousness of claims or defenses; (5) the prejudice to the adversary caused by the party’s 

conduct; and (6) the effectiveness of sanctions other than dismissal or default. Poulis v. State 

Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Separately, courts within the District of 

Columbia Circuit “must consider whether ‘(1) the default was willful, (2) a set-aside would 

prejudice plaintiff, and (3) the alleged defense was meritorious.’” Gray v. Staley, 310 F.R.D. 32, 

35 (D.D.C. 2015) (quoting Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372, 

373 (D.C. Cir. 1980)). 

 Summarized, these tests provide a consistent basis for considering default. Analysis starts 

with the premise that default is a drastic sanction warranted only by egregious circumstances. 

With that premise, a party’s actions warrant default when, on balance, the party is acting 

willfully for a nefarious purpose such as deliberate delay or avoidance of discovery, the other 

party suffers prejudice, the defaulter does not have a reasonable contested case, and lesser 

sanctions would not satisfy the ends of justice. 

 The Judge must evaluate whether a failure is a willful action, taking into account prior 

conduct during the proceeding. Here, this factor would require an analysis of whether the failure 

to be on the scheduling conference call indicated a willful action—that is, an action tantamount 

to expression of a desire not to contest the case or an attempt to subvert proper prosecution of the 

case. 

 In this respect, it is notable, as my colleagues point out, that the record involves 

ambiguities.3

 Importantly, my colleagues note that Patrick Graham filed an affidavit stating that 

he had intended to notify the operator’s legal counsel of the scheduling of the status conference 

but did not do so. This highlights that the operator had notified the Judge of a substitution of 

counsel and provided the name, address, and email of the new lawyer. Notice of Withdrawal and 

Substitution of Counsel, filed January 27, 2017. 

 That lawyer failed to enter a formal notice of appearance, as he should have. However, 

after the prior representative withdrew and notified the court of the name and address of new 

counsel, the Judge was aware that the party had designated a new legal counsel. Either the court 

failed to note the substitution of counsel or did not accept it prior to a formal entry of 

appearance. In either event, the Judge sent neither the notice of the telephone conference to 

discuss the stay nor the Order to Show Cause to the attorney designated by the operator as its 

representative. The Fifth Circuit has held that “[t]he plaintiff should not be punished for his 

 3

 The emailed Order to Show Cause did not go through. The show cause order apparently 

was mailed to an address that was not the address of record. The corporate addressee on the show 

cause order was Southern Coal Corporation rather than A&G Coal. Apparently, the person 

addressed, Patrick Graham, had not entered an appearance as a representative of the party. A 

person named Leslie Wells signed for the mailed notice of the show cause order, but the Judge 

addressed the notice to Southern Coal Corporation, and it is not clear who employed Wells. 

Now, Graham swears that he did not receive the show cause order. 

39 FMSHRC Page 1945
attorney’s mistake absent a clear record of delay, willful contempt or contumacious conduct.” 

Blois v. Friday, 612 F.2d 938, 940 (5th Cir. 1980). A Judge must be mindful that “[d]efault 

judgments were not designed as a means of disciplining the bar at the expense of the litigants’ 

day in court.” Jackson, 636 F.2d at 837. 

 As a second factor in a default case, a Judge must consider whether the other party has 

suffered any meaningful prejudice from the missed action. Here, that action is a missed 

telephone conference on whether to extend an already lengthy and agreed to stay. Meanwhile, it 

appears the parties were actively discussing settlement. 

 Another factor is the merits of the party’s positon—that is, is the matter a contested 

action in which the party advances a substantive position. Here, because the Judge had stayed 

this case, it is not clear whether there was a basis in the record to evaluate the merits of the case. 

However, the Secretary had not sought summary judgment. Further, given the occurrence of 

settlement discussions, there obviously were disputed facts. Indeed, the occurrence of settlement 

discussions suggests the Secretary may have been amenable to resolving all matters for a lesser 

penalty than MSHA’s original assessment. The missed conference call was on a non-substantive 

issue rather than a matter such as refusing discovery or a motion for summary judgment. 

 Another consideration is whether a lesser sanction than default could effectively 

remediate the party’s failure. Here, for example, the Judge might have considered whether 

ending the stay and setting the case for hearing would have effectively sanctioned the operator 

for missing the telephone conference on that scheduling matter while permitting the contest of 

the $321,000 penalty to continue. 

 In short, using this case as an example, the bottom-line question is whether the failure to 

join a telephone conference call to discuss lifting the stay and setting a hearing date in a 

$321,000 case with contested facts, ongoing discussions of settlement, and the attorney desired 

by the operator not contacted warranted a default and immediate imposition of the MSHAassessed $321,000 penalty. As noted at the outset, the parties have not briefed that question. I 

specifically do not express any opinion on whether I would have found an abuse of discretion. 

 

 /s/ William I. Althen 

 William I. Althen, Acting Chairman 

39 FMSHRC Page 1946
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

PHONE: (202) 434-9933 | FAX: (202) 434-9949 

October 3, 2017 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. WEVA 2016-0123 

Petitioner, A.C. No. 46-01436-396817

v. 

CONSOLIDATION COAL CO. now 

 THE OHIO COUNTY COAL CO., Mine: Shoemaker Mine 

Respondent. 

DECISION APPROVING SECOND SETTLEMENT MOTION 

ORDER TO PAY 

Before: Judge Moran 

This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977. On January 19, 2017, the 

Secretary filed his first motion to approve settlement. The originally assessed total amount was 

$72,500.00 and the proposed settlement was for $39,875.00. The Secretary also requested that 

two citations be modified, as indicated below. On June 21, 2017, the Court issued a decision 

denying the settlement motion because there was insufficient information to justify the reduced 

penalty amounts and modifications. The Secretary then filed a Motion for Reconsideration along 

with an amended settlement motion on June 29, 2017. 

Regarding Citation No. 9083151, which alleged a violation of 30 C.F.R. § 75.202(a), in 

the original motion, the rationale presented for the proposed penalty reduction stated only, 

“Though there was visible deterioration to the ribs, Respondent presented evidence that this 

condition did not exist for an extended period of time. In consideration of this evidence, which 

slightly mitigates negligence, and the risks inherent in proceeding to a hearing, the Secretary 

agreed to reduce the penalty.” Secretary’s January 19, 2017 Motion to Approve Settlement at 3. 

As the Court stated in its June 21, 2017 Order, it “does not consider an unadorned 

assertion that the “Respondent presented evidence that this condition did not exist for an 

extended period of time,” standing alone, as useful information ... if section 110(k) is to be 

meaningful, it is patently insufficient for the Secretary to merely state that the Respondent 

presented evidence that this condition did not exist for an extended period of time. Some basis 

for the Respondent’s claim must accompany such an assertion.” June 21, 2017 Decision Denying 

Settlement Motion at 4-5; n. 3 (emphasis in original). 

39 FMSHRC Page 1947
As noted, following the Court’s denial of the settlement motion, on June 29, 2017, the 

Secretary filed a motion for reconsideration, along with an amended settlement motion. In the 

amended motion the Secretary presented the following regarding Citation No. 9083151: 

This citation was issued in August 2015 due to visible deterioration of the ribs. 

On June 10, 2015, the Operator issued a companywide safety memo instructing 

miners to install additional rib bolts in the mains and on every corner. The 

Operator was taking measures to address the poor rib conditions. However, the 

state of this particular coal seam was such that the ribs were well-supported for an 

extended period of time even without rib bolts, but due to abutment pressure from 

longwall mining, the ribs could deteriorate quickly. The penalty under the regular 

assessment criteria would have been $2,282.00. Therefore, the Secretary believes 

Respondent’s negligence, while moderate, was somewhat less than the special 

assessment markup and that a reduction in penalty in this instant case is consistent 

with his enforcement responsibility of the Mine Act. 

Secretary’s Amended Motion for Decision and Order Approving Settlement at 3. 

In light of this information, the Secretary proposes a settlement amount of $6,513.00, 

rather than the initially proposed penalty of $11,500.00, with no modifications to the citation. 

Regarding Citation No. 9083289, which alleged a violation of 30 C.F.R. § 75.202(a), in 

the Secretary’s original motion the rationale presented for the proposed penalty reduction for that 

citation stated only, “Respondent presented evidence that, based on their size, consistency, and 

location, the cited ribs would not have caused fatal injuries. In consideration of this evidence and 

the risks inherent in proceeding to a hearing, the Secretary agreed to modify the type of injury 

and reduce the penalty.” Secretary’s January 19, 2017 Motion to Approve Settlement at 3. 

In the amended motion the Secretary presented the following regarding Citation No. 

9083289: 

The ribs cited in this citation were in a highly traveled area however, they were 

located on the belt side, thus miners would rarely be exposed to the conditions. 

Due to the location of the rib with respect to the belt, miners would not be directly 

exposed to the full rib should it fall. The belt would take the brunt of the rib fall. 

The penalty under the regular assessment criteria would have been $2,282.00. 

Therefore, the Secretary believes Respondent’s injury designation should be 

modified, the corresponding special assessment penalty markup reduced, and that 

the modification and reduction in penalty are consistent with his enforcement 

responsibility of the Mine Act. 

Secretary’s Amended Motion for Decision and Order Approving Settlement at 3-4. 

The Secretary also requested that the gravity of this citation be modified from “fatal” to 

“permanently disabling.” In light of this information, the Secretary proposed a settlement amount 

of $3,225.00, rather than the initially proposed penalty of $12,900.00. 

39 FMSHRC Page 1948
Regarding Citation No. 9083153, which alleged a violation of 30 C.F.R. § 75.202(a), in 

the Secretary’s original motion the rationale presented for the proposed penalty reduction for that 

citation stated only 

[t]hough the cited condition was in a traveled area, Respondent presented 

evidence that this condition did not exist for an extended period of time. In 

consideration of this evidence, which slightly mitigates the negligence, and the 

risks inherent in proceeding to a hearing, the Secretary agreed to reduce the 

penalty. 

Secretary’s January 19, 2017 Motion to Approve Settlement at 3.

In the amended motion the Secretary presented the following regarding Citation No. 

9083153: 

This citation was issued in August 2015 due to visible deterioration of the ribs. 

On June 10, 2015, the Operator issued a companywide safety memo instructing 

miners to install additional rib bolts in the mains and on every corner. The 

Operator was taking measures to address the poor rib conditions. However, the 

state of this particular coal seam was such that the ribs were well-supported for an 

extended period of time even without rib bolts, but due to abutment pressure from 

longwall mining, the ribs could deteriorate quickly. The penalty under the regular 

assessment criteria would have been $2,282.00. Therefore, the Secretary believes 

Respondent’s negligence, while moderate, was somewhat less than the special 

assessment markup and that a reduction in penalty in this instant case is consistent 

with his enforcement responsibility of the Mine Act. 

Secretary’s Amended Motion for Decision and Order Approving Settlement at 4. 

In conjunction with this new information, the Secretary proposed a settlement amount of 

$6,513.00, rather than the initially proposed penalty of $11,500.00. 

Regarding Citation No. 9083292, which alleged a violation of 30 C.F.R. § 75.202(a), in 

the Secretary’s original motion the rationale presented for the proposed penalty reduction for that 

citation stated only: 

Respondent presented evidence that, based on its size and consistency, the cited 

rib would not have caused fatal injuries. Respondent also presented evidence that 

this condition did not exist for an extended period of time. In consideration of this 

evidence and the risk inherent in proceeding to a hearing, the Secretary agreed to 

modify the type of injury and reduce the penalty. 

Secretary’s January 19, 2017 Motion to Approve Settlement at 4.

39 FMSHRC Page 1949
In the amended motion the Secretary presented the following regarding Citation No. 

9083292: 

The rib was scaled down above the already sloughed out area, thus the rib fell on 

top of sloughed out area, where miners would not travel. In addition, this area was 

preshifted and the rib conditions did not exist during the preshift examination. 

The state of this particular coal seam was such that the ribs would appear well 

supported without rib bolts for an extended period of time, but as the longwall 

advanced, the ribs could deteriorate quickly, often within a few hours of mining. 

The condition of this rib deteriorated quickly due to longwall abutment pressure. 

The penalty under the regular assessment criteria would have been $2,282.00. 

Therefore, the Secretary believes Respondent’s injury designation should be 

modified and the corresponding special assessment penalty markup reduced. The 

Secretary also believes that Respondent’s negligence, while moderate, was 

somewhat less than the special assessment markup and that the modification and 

reduction in penalty are consistent with his enforcement responsibility of the 

Mine Act. 

Secretary’s Amended Motion for Decision and Order Approving Settlement at 5. 

The Secretary also requested that the gravity of this citation be modified from “fatal” to 

“permanently disabling.” In light of this information, the Secretary proposed a settlement amount 

of $4,324.00, rather than the initially proposed penalty of $17,300.00. 

Regarding Citation No. 9083154, the Respondent has agreed to pay the full proposed 

penalty of $19,300.00, with no modifications. That citation alleged a violation of 30 C.F.R. § 

75.223(a). 

In further support of the Secretary’s Motion for Reconsideration, he also stated, 

As indicated in Exhibit B, the parties reached a settlement agreement two days before a 

hearing on the matter was set to commence. In reaching the settlement, the undersigned 

reviewed the Citations and inspectors notes, and engaged in extensive discovery with the 

Operator. The undersigned also spoke to the issuing inspectors at length and discussed 

the citations with the Operator during course of settlement negotiations. 

Secretary’s June 29 Motion for Reconsideration at 2. 

39 FMSHRC Page 1950
Conclusion 

As detailed above, the amended motion now provides significantly more factual 

information in support of the proposed penalty amounts and modifications.1

 Based upon the 

factual support offered in the amended motion to approve settlement, the Court has considered 

the representations submitted in this case and concludes that the proffered settlement is 

appropriate under the criteria set forth in section 110(i) of the Act. 

The settlement amounts are as follows: 

 Citation No. Proposed Penalty Settlement Amount 

9083151 $11,500.00 $6,513.00 

9083289 $12,900.00 $3,225.00 

9083153 $11,500.00 $6,513.00 

9083154 $19,300.00 $19,300.00 

9083292 $17,300.00 $4,324.00 

 

TOTAL: $72,500.00 $39,875.00 

WHEREFORE, the motion for approval of settlement is GRANTED. 

It is ORDERED that Citation Nos. 9083289 and 9083292 be MODIFIED to from fatal 

to permanently disabling. 

The Respondent is ORDERED TO PAY a penalty of $39,875.00 within 30 days of this 

decision.2

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

 

 1

 Under Commission Procedural Rule 31(b), a motion to approve settlement must 

“include . . . facts in support of the amount of penalty agreed to in settlement.” 29 C.F.R. 

§ 2700.31(b)(1). 

2

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 

63179-0390 

39 FMSHRC Page 1951
Distribution: 

Jane Hwang, Office of the Solicitor, U.S. Department of Labor, Suite 630E, The Curtis Center, 

170 S. Independence Mall West, Philadelphia, Pennsylvania, 19106 

Jason Hardin, Fabian and Clendenin, 215 S. State Street, Suite 1200, Salt Lake City, Utah 84111 

Artemis Vamianakis, Fabian and Clendenin, 215 S. State Street, Suite 1200, Salt Lake City, Utah 

84111 

/KP 

39 FMSHRC Page 1952
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

PHONE: (202) 434-9933 | FAX: (202) 434-9949

October 3, 2017 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. WEVA 2017-0158 

Petitioner, A.C. No. 46-07809-426807

v. 

ARGUS ENERGY WV, LLC, Mine: Kiah Creek Preparation Plant 

Respondent. 

DECISION GRANTING MOTION TO WITHDRAW NOTICE OF CONTEST, 

FOLLOWING COURT’S REJECTION OF INADEQUATE SETTLEMENT MOTION 

ORDER OF DISMISSAL 

Before: Judge Moran 

This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977. At issue is one section 104(a) 

citation, alleging a violation of 30 C.F.R. § 77.1606(a). This standard is titled “Loading and 

haulage equipment; inspection and maintenance,” and provides in relevant part “[m]obile loading 

and haulage equipment shall be inspected by a competent person before such equipment is 

placed in operation. Equipment defects affecting safety shall be recorded and reported to the 

mine operator.” 30 C.F.R. § 77.1606(a). The citation alleged: 

The spot mirror was busted out on the Komatsu HD785 Haulage Truck Co. No. 

137. Equipment defects affecting safety shall be recorded and reported to the

mine operator. There was no pre-operational record completed and reported to the

mine operator on this date for this piece of mobile equipment. This truck was

being operated to haul overburden on mine property.

Citation No. 8128099. 

The inspector marked this alleged violation as S&S, reasonably likely to lead to an illness 

or injury, likely to lead to a fatal injury, affecting one person, and as moderate negligence. Id. 

The alleged violation was abated with the installation of a new spot mirror, and the Secretary 

proposed a civil penalty of $666.00. Secretary’s Petition, Ex. A. 

Procedural History

Docket No. WEVA 2017-0158 was assigned to this court on April 19, 2017. On June 26, 

2017, the Secretary filed a motion to approve settlement. The initial motion contained boilerplate 

from the Secretary that, as the Court has previously noted, contravenes Congress’ command in 

section 110(k) of the Mine Act that “no proposed penalty which has been contested before the 

39 FMSHRC Page 1953
Commission... shall be compromised, mitigated, or settled except with the approval of the 

Commission.”1

 30 U.S.C. § 820(k) (emphasis added). 

 Accordingly, on June 28, 2017, the Court issued an order denying the settlement motion, 

on the basis that the motion contained no factual information pertaining to the violation itself. 

Rather, the Secretary pronounced that he, 

has determined that the S&S and gravity determinations in the citation at issue shall be 

modified as discussed above. Substantive modifications to citations and orders, including 

the S&S designation, are within the prosecutorial discretion of the Secretary. 

Mechanicsville Concrete Inc., 18 FMSHRC 877 (1996)” The Commission’s review of 

settlement proposals involving such substantive modifications is limited to whether the 

agreed-upon penalty amount is consistent with the agreed-upon substantive modification. 

Here, a $134.00 reduction in the penalty from $666.00 to $532.00 is appropriate and 

supported by the reduction in the gravity findings.” 

Secretary’s June 26, 2017 Motion at 2-3.

 As previously discussed by this court, the Secretary’s reference to Mechanicsville reveals 

a mistaken conflation of his prosecutorial discretion to vacate citations with the claim that he has 

unbounded discretion to determine what information must be provided in the context of 

settlements. Argus Energy WV, LLC, 39 FMSHRC 1317, 1320 n. 5 (June 28, 2017) (ALJ 

Moran). The Court further noted that if it accepted the Secretary’s claims, the Secretary could 

present identical boilerplate language for any proposed modification, untethered from any casespecific facts. Id. at 1321. 

 

 1

 The motion included the Secretary’s oft-stated language that, “In reaching this 

settlement, the Secretary has evaluated the value of the compromise, the likelihood of obtaining a 

better settlement, and the prospects of coming out better or worse after a trial. In deciding that 

such a compromise is appropriate, the Secretary has not given weight to the costs of going to trial 

as compared to the possible monetary results that would flow from securing a higher penalty. He 

has, however, considered the fact that he is maximizing his prosecutorial impact in settling this 

case on appropriate terms and in litigating other cases in which settlement is not appropriate. The 

Secretary believes that maximizing his prosecutorial impact in such a manner serves a valid 

enforcement purpose. Even if the Secretary were to substantially prevail at trial, and to obtain a 

monetary judgment similar to or even exceeding the amount of the settlement, it would not 

necessarily be a better outcome from the enforcement perspective than the settlement, in which 

the alleged violation is resolved and can be used as a basis for future enforcement actions. A 

resolution of this matter in which the violation is resolved is of significant value to the Secretary 

and advances the purposes of the Act.” Secretary’s June 26, 2017 Motion to Approve Settlement 

at 2. As noted herein, this language provides no useful section 110(k) information to the 

Commission and, if accepted, would equate the Secretary’s presently unfettered authority to 

vacate citations with his asserted scope of authority in the realm of settlements. 

39 FMSHRC Page 1954
On July 7, 2017, the Secretary filed a motion to certify for interlocutory review the 

Court’s order denying settlement. The motion sought certification of two questions: 

1. Whether the ALJ erred in rejecting the Secretary’s interpretation of the term 

“approval” in Section 110(k) of the Mine Act (30 U.S.C. § 820(k)), and instead 

adopting a standard of review that fails to recognize that the Secretary is exercising 

his statutory enforcement discretion when he proposes a settlement agreement? 

2. Whether the ALJ erred in rejecting the Secretary’s position that modifications to the 

gravity findings of an enforcement action, including whether a violation is significant 

and substantial (“S&S”), are within the unreviewable enforcement and prosecutorial 

discretion of the Secretary? 

Secretary’s July 7, 2017 Motion to Certify and to Stay Proceedings at 1-2. 

The Court denied the motion to certify on July 11, 2017, on the basis that immediate 

review would not materially advance final disposition of the proceedings. 

Shortly afterwards, the Court scheduled a conference call with the parties to set a date for 

hearing. That call was canceled upon notification from the parties that the Respondent planned to 

withdraw its contest and pay the proposed penalty, with no modifications to the single citation. 

Subsequently, on August 4, 2017, the Respondent filed the instant submission, titled 

“Notice of Withdrawal of Notice of Contest and Parties Joint Request That This Proceeding Be 

Dismissed.” (“Notice”)2

 The motion states that the Respondent has agreed to pay the originally 

assessed amount of $666.00 in full, seeking “that its notice of contest of Citation Number 

8128099 and the related penalty assessed for this violation be withdrawn, and that an order be 

issued affirming this violation and assessing the proposed penalty of $666. ... the Secretary is in 

agreement with this withdrawal and with the proposed assessment of $666.” Notice at 1. 

Discussion

 Under Commission Rule 11 “[a] party may withdraw a pleading at any stage of a 

proceeding with the approval of the Judge or the Commission.” 29 C.F.R. § 2700.11, Sec. v. 

Performance Coal 34 FMSHRC 587, 592 (Mar. 2012) (Chief Judge Lesnick and Judge Miller). 

As Administrative Law Judge David F. Barbour noted in Sec. v. Consolidation Coal, 1993 WL 

396898 (Feb. 1993), “[h]aving withdrawn its contest, there remains no challenge to the 

Secretary’s civil penalty petition, and it too is GRANTED.” Id. Administrative Law Judge 

Thomas P. McCarthy observed, a Respondent’s withdrawal of contest makes a current civil 

penalty proceeding moot and the “matter reverts back to the status quo ante prior to said 

contest,” with the effect that the penalty as originally proposed by the Secretary is imposed. 

Dickenson-Russell Coal Co., LLC, 35 FMSHRC 698 (Mar. 2013) (ALJ McCarthy). 

 

 2

 The Court construes the Respondent’s notice as a motion and it will be referred to as 

such in this decision. 

39 FMSHRC Page 1955
The Court views the events, as recounted above, as yet another example of the 

importance of the Commission’s role in the review of settlements, per the direction of Congress 

under section 110(k) of the Mine Act. 

The Court has considered the Respondent’s notice to withdraw its notice of contest and 

the related penalty for the one citation in this matter and the request that an order be issued 

affirming the violation and assessing the proposed penalty of $666 and the parties’ joint request 

that the proceeding be dismissed. The Respondent’s notice of withdrawal is recognized and the 

parties’ request that this proceeding be dismissed is GRANTED.

 

WHEREFORE, the motion to withdraw is GRANTED. 

It is ORDERED that Respondent pay a penalty of $666.00 within 30 days of this order.3

 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Tiffany J. Fannin, Esq., Argus Energy WV, LLC, 2408 Sir Barton Way, Suite 325, Lexington, 

KY 40509 

Robert S. Wilson, Esq., U.S. Department of Labor, 1201 12th Street South, Arlington, VA 22202 

/JM

 3

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 

63179-0390 

39 FMSHRC Page 1956
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

October 19, 2017 

DECISION AND ORDER

Appearances: Heather Mulford, Ely, Nevada, pro se for the Complainant 

Robert Delong, Esq., Reno, Nevada, for the Respondent 

Before: Judge Moran 

This case is before the Court upon a complaint of discrimination under Section 105(c)(3) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3) (“the Act”). A 

hearing was held July 25-26, 2017, in Elko, Nevada. To establish a prima facie case of 

discrimination under section 105(c)(1), a complainant must show that he/she engaged in a 

protected activity and that the adverse action complained of was motivated, at least in part, by 

that activity. For the reasons which follow, the Court finds that, while Heather Mulford engaged 

in protected activity by asserting certain safety and health concerns in her MSHA complaint, 

those claims were without any substance whatsoever and that the decision to terminate her 

employment was not attributable to her making those claims. Thus, while Robinson terminated 

Mulford, that adverse action was not motivated in any part by her protected activity. 

A Preliminary Matter 

At the outset of the hearing, the Court revisited its July 10, 2017 Order, precluding the 

introduction of Respondent’s proposed exhibits, Nos. 4 through 15. Tr. 8-20. The Court then 

announced at the hearing that it was reaffirming its earlier determination precluding those 

exhibits. See July 25, 2017 Order Regarding Robinson’s Response to Order Precluding 

Introduction, Reference, and Use of Respondent’s Proposed Exhibits Nos. 4 through 15. In 

essence, the Order found that the Report amounted to trying Ms. Mulford based on conclusions 

and actions taken by a state court prior to Mulford’s employment by Robinson, which had no 

relevance at all to this discrimination action. 

HEATHER MULFORD, 

 Complainant, 

v. 

ROBINSON NEVADA MINING 

 COMPANY, 

 Respondent. 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2017-0135-DM 

MSHA Case No. WE-MD-2016-16 

Mine: Robinson Operation 

Mine ID: 26-01916 

39 FMSHRC Page 1957
Ms. Heather Mulford’s MSHA Discrimination Complaint

Mulford’s discrimination complaint before MSHA alleges two cognizable grounds of 

protected activity.1

 First, she alleged that Robinson Mine’s safety manager, Mark Langston, may 

have been drunk on the job several times. She claimed that Langston would come to work 

smelling like booze, walking unsteadily, and acting erratically. Mulford reported Langston’s 

possible intoxication to Respondent’s Human Resources Manager, Mr. Kim Kammerer. Second, 

she alleged that Robinson employee Patrice Dunn may have been covering up positive drug test 

results of an employee. This allegation arose from Mulford’s claim that Dunn’s daughter had 

failed two drug tests. 

Mulford gave a statement to MSHA special investigator Cory Owens on October 4, 2016 

concerning her discrimination complaint. She was asked by MSHA on that date “[w]hat was 

your protected activity?” Mulford Statement to MSHA at 3. Her response, in full, informed: 

I still believe that it is an outside influence on Mark Langston and then a 

secondary issue that happened towards the end of August. The issue in August 

was positive drug test that came along with a workers comp claim. He really came 

after me after I turned in the positive drug test to the state. This employee had two 

positive drug tests in four months and filed two workers comp claims. The drug 

test was about a week before the hearing aid issue came up. Then I wanted to 

discuss it with HR who is Kim Kammerer. I told him about the drug tests, then 

told him about Langston coming unglued on me about the hearing aids and I also 

told him that Langston comes in the morning smelling like fresh booze. Langston 

also sways down the hallway and in office. 

Id. 

In her October 4, 2016 statement, Mulford was also asked, in effect, what was the 

adverse action against her. The first question on this issue was “[w]hy do you feel that the 

company is retaliating against you?” Statement at 3-4. 

 

 1

 Mulford’s discrimination complaint, reflected in her “Discrimination Report” before 

MSHA, and her statement and interview with MSHA included claims outside of protected 

activity. These involved allegations that Mark Langston was upset with her hearing deficit and 

the amount of time it was taking for her to obtain hearing aids, and that Langston was 

“disrespectful” to her from the start of her employment with Robinson Mine. Mulford’s 

complaint also asserted that “the discrimination & disrespectful behavior from Langston cold be 

from outside source from Reno, NV. In Reno [I] had been harassed & my employment 

discriminated for 2 years. Please question Langston because it is not usual to mistreat total 

strangers without outside influences.” Mulford Discrimination Report at 3. The Respondent’s 

mine is in Ruth, Nevada. Tr. 271. The Court takes judicial notice that Reno, Nevada is more than 

305 miles from Ruth. 

39 FMSHRC Page 1958
Mulford answered, 

I don’t feel that it is the company; I feel that it is Langston and Patrice Dunn. 

Patrice used to take care of the workers comp claims but I took it over because 

I’m a licensed nurse. Her daughter is the worker with the two failed drug tests and 

workers comp claims, I feel that she was defrauding the State of Nevada by 

covering up the positive drug test on the last comp claim. 

Id. (italics added). 

The second question on the issue inquired, “[h]ow did Mark Langston retaliate against 

you?” Mulford October 4, 2016 Statement to MSHA at page 4. Mulford’s response was, 

[b]esides the constant bull with the hearing and communication. My job 

description was never realized[;] he switched me over to industrial hygienist 

which I don’t have a degree in and have never done in my life. He ignored me like 

[I] was invisible, I could not add suggestions to the safety team. He was a bully, 

he micromanaged everybody’s job description and I was not allowed any 

autonomy. He would talk to me like you would talk to your dog, he would give 

orders rather than talking to [a] human being. Then the final was the letter that I 

received from HR forcing [me] to take time off. 

Id. 

 Before receiving testimony, as Ms. Mulford is a pro se complainant, the Court briefly 

reviewed the necessary elements to establish discrimination under section 105(c) of the Mine 

Act. It noted that “to prevail in such a case the complainant is required to show that he or she 

engaged in protected activity, and that the adverse action taken was motivated at least in part by 

that activity.” Tr. 23. The Court also spoke to the Respondent’s ability to rebut a Complainant’s 

prima facie case, “by showing that there was no protected activity which occurred, or that the 

adverse action was not motivated in any part by that protected activity.” Tr. 24. It added that a 

Respondent can also still defend “affirmatively . . . by proving that even if they were motivated 

by the miner's activity, they were also motivated by the miner's unprotected activity and they 

would have fired or taken the adverse action against that individual in any event.” Tr. 24-25. 

The importance of Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 (Apr. 1991) 

(“Hatfield”). 

In Hatfield, the Commission recognized that a miner cannot expand his pro se claim by 

alleging matters not within the scope of the initial complaint and never investigated by MSHA. 

13 FMSHRC at 546. In Sec. v. Hopkins County Coal, LLC, 38 FMSHRC 1317, June 24, 2016, 

the Commission expounded upon its Hatfield decision, stating that “the miner’s complaint 

establishes the contours for subsequent action.” Hopkins at 1340. It noted in Hopkins that 

“Hatfield’s original complaint was general in nature and contained no indication of the new 

matters apparently alleged for the first time in the amended complaint.” Id. at 1341 (citing 

Hatfield at 546). The Commission held that the initial complaint formed the basis of MSHA’s 

39 FMSHRC Page 1959
investigation. Id. After MSHA refused to act on that initial complaint, the miner could not 

expand his pro se claim by alleging matters not within the scope of the initial complaint and 

never investigated by MSHA. Hopkins at 1342 (emphasis added). The key element in these 

matters is that the determination of the scope of the complaint is not constrained entirely by the 

four corners of the miner’s complaint, but is also informed by MSHA’s ensuing investigation: 

The Commission has previously held that ‘the Secretary’s decision to proceed 

with a complaint to the Commission, as well as the content of that complaint, is 

based on the Secretary’s investigation of the initiating complaint to [him], and not 

merely on the initiating complaint itself.’ Sec’y o/b/o Callahan v. Hubb Corp., 20 

FMSHRC 832, 837 (Aug. 1998); see Sec’y o/b/o Dixon v. Pontiki Coal Corp, 19 

FMSHRC 1009, 1017 (June 1997); Hatfield, 13 FMSHRC at 546. If the content 

of a discrimination complaint filed with the Commission is based on that which is 

uncovered during the Secretary’s investigation, then it follows that the Secretary’s 

authority to investigate in the first instance cannot be circumscribed by the early 

and often uninformed statements made by a miner in his charging complaint. 

Id. at 1326, n.15. 

Accordingly, this Court considered the text of Mulford’s discrimination complaint before 

MSHA as well as MSHA’s investigation interview of October 4, 2016. 

At the outset of the hearing the Court spoke to the particulars of the Complainant’s case. 

The purpose of this was to explain that some aspects of Ms. Mulford’s complaint were not 

cognizable under the Mine Act. The Court had explained this before the hearing during 

conference calls with the parties, but thought it would be useful to revisit the matter again. 

Therefore, the Court noted that the Complainant could testify “about [her] experiences with Mr. 

Langston, the safety manager regarding [her] claim that he showed evidence of being intoxicated 

or having alcohol issues on the job.” Tr. 25. The Court noted that she “need not prove that he 

was, in fact, intoxicated, however, but only that [she] raised this concern to management at 

Robinson mining.” Tr. 25. The Court also noted that there is a safety standard pertaining to 

alcohol at a mine site: 30 CFR § 56.20001. Tr. 26. The Court explained further that Mulford 

could testify about “any bullying, hostility or micromanaging carried out by Mr. Langston or 

others after [she] raised [her] safety concern about Mr. Langston.” Id. 

The Court also noted that the Complainant could testify about her “experience with 

Patrice Dunn regarding whether she was covering up positive drug tests for certain employees 

and the basis for [her] claim in that regard.” Tr. 26-27. Last, the Court took note that Mulford’s 

complaint includes two adverse actions allegedly taken against her. One was being reclassified as 

an industrial hygienist, and the other her employment termination. Tr. 28. In this regard, the 

Court emphasized that if the Complainant’s testimony strayed beyond things that she presented 

to MSHA in her complaint, and in the investigation and the interview that she had with the 

MSHA special investigator, then she would have gone outside of the four corners of her 

complaint and that such matters could not be considered because that is prohibited by the 

Commission’s Hatfield decision. The Court explained that the reason for that limitation is that 

MSHA “has to have an opportunity to investigate complaints of discrimination in the first 

39 FMSHRC Page 1960
instance. So it's only what [a complainant brings] to [MSHA’s] attention for them to investigate 

that can be brought up in the subsequent hearing unless you brought another discrimination 

complaint and filed new charges.” Tr. 29. 

Findings of Fact 

 Testimony began with the Complainant, Heather Ann Mulford. Ms. Mulford is a 

registered nurse. Tr. 42. She became a nurse in 1985 and is presently licensed as such. Id. 

She applied for employment as an occupational health nurse at Robinson Nevada’s mine in Ely, 

Nevada, in the spring of 2016. Tr. 44. Complainant’s Exhibit 1C, is the job announcement for the 

position for which Mulford was hired. Tr. 46-47. Respondent’s Ex. R 18-2, is the same 

document. Mulford learned of the job opening on the internet. Tr. 47. Mulford stated she was 

hired as an occupational health nurse. Tr. 49. Also introduced was Respondent’s letter, dated 

May 12, 2016, offering her the job. Ex. C 2; Tr. 51. Respondent’s Ex. R 23, is the same 

document. The Court noted that exhibit C 2, describes the job offered as “Occupational Health 

Nurse.” Tr. 52. Mulford accepted the job immediately and began work on June 6, 2016. 

However, she stated that when she appeared for her first day on the job, her job was listed as 

industrial hygienist and occupational nurse, with the hygienist position listed first. Tr. 54. 

Complainant’s Ex. 17 C. That exhibit lists the position title as “industrial hygienist/nurse.” Id. 

 Mulford agreed that on her first day at work with the Respondent, June 6, 2016, she was 

informed that her job was as an industrial hygienist/occupational nurse.2

 Tr. 60. She viewed the 

description as different from the position for which she was hired. That is to say, in her view, the 

title, “industrial hygienist and occupational nurse,” is not the same as “occupational health 

nurse.” Id. Mulford expressed her view that the industrial hygienist job usually requires at least 

certification, and often a separate degree, and that she possessed neither. Tr. 60-61. She was 

qualified only to be an occupational nurse. However, she did not immediately voice her concern 

about this issue to Robinson. Instead, around mid-June, when her office email was being set up, 

and her title was again listed as “industrial health/occupational health nurse,” she informed 

Shane Anderson that could not work, as she lacked the degree or certification for that title. Tr. 

62 and C’s Ex. C 3. According to Mulford, Anderson told her that Mark Langston wanted her to 

 2

 The Court notes that, while for the sake of completeness, it has recounted Mulford’s 

testimony regarding the occupational nurse and hygienist issue, this was not protected activity. In 

addition, Respondent’s Exhibit R 18, a two page exhibit which pertained to the job 

announcement and the job description, was admitted into the record. Tr.299-301. Respondent’s 

Counsel noted and Mulford agreed that the exhibit included, under the responsibilities/ job 

description, “[p]erform health risk assessments, industrial sampling, ergonomic surveys 

throughout the mine site.” Tr. 302. However, Mulford added that it was “not the job title.” Tr. 

302 (emphasis added). She acknowledged that those tasks were “discussed [ ] in our interviews 

that I would help and learn how to do this [,adding] [b]ut it wasn't a change job [sic].” Tr. 302. 

Further, Mulford’s objection to the industrial hygienist tasks was “[b]ecause it wasn't [her] 

degree or [her] certification.” Tr. 304. In the Court’s estimation, Mulford erroneously conflated 

the non-existent requirement for a degree or certification to perform hygienist duties with her 

objection to including those duties in her job or more particularly, in her job title. Regardless, 

this was not one of the grounds advanced in her claim of protected activity. 

39 FMSHRC Page 1961
do that hygienist work. Tr. 64. Although Anderson informed Mulford that the mine would be 

teaching her how to perform that work, she responded that was insufficient, as it was not 

equivalent to possessing a degree. Id. 

 

 Returning to her testimony regarding the events associated with her being hired by 

Robinson Mining, Mulford stated that she first had a telephone interview conducted by Mr. Kim 

Kammerer, Shane Anderson, Mark Langston, and Tyler Wright. That was followed about a 

month later by an in-person interview which occurred in Ely, Nevada. The same individuals 

interviewed her as in her telephone interview, with Kammerer and Anderson leading the 

interview team. Tr. 69. At the time of the second interview, the Complainant had no hearing aids 

or other hearing assistance devices, nor did she possess any such devices. Tr. 70. It was not until 

September 2016, that the Complainant acquired hearing aids. Tr. 71. During her in-person 

interview, Mulford stated that she did not have significant hearing problems, although at times 

she asked an individual to repeat himself. Tr. 72. No issue of her hearing ability was raised by 

Respondent at the in-person interview. Id. 

 Robinson hired Mulford and, after about two weeks on the job, she was working as a 

regular employee in her occupational health nurse role. Tr. 73. She stated that her work was 

going well and there were no issues with her performance. Tr. 75. Her work involved workers’ 

compensation and HIPAA3

 issues among other duties. 

 Mulford’s employment with Robinson ended on October 13, 2016, when she was 

terminated. Tr. 79. While her employment began on about June 15, 2016 and ended as noted 

above, she was laid off with full pay for all of September 2016 because she was directed to 

obtain hearing aids before returning to work. Tr. 80-81. Effectively then, Mulford did not 

perform work as an occupational nurse for Robinson after August 31st. Tr. 81. 

It should be noted that there is no dispute that Ms. Mulford has some hearing loss, and 

that the loss is of a degree requiring the use of hearing aids. Tr. 87. However, more importantly, 

Mulford’s use of hearing aids and her hearing deficit, requiring their use, forms no part of her 

discrimination claims and therefore it is not part of this case. 

 During the period of her work as an occupational nurse, that is, from June through the 

end of August, Mulford maintained that she got along and interacted well with employees and 

supervisors at the Robinson mine, except for one person, Mr. Mark Langston, the safety 

manager. Tr. 90-91. As noted, Langston participated in both of Mulford’s interviews with 

Robinson. Tr. 91. Mulford contended that her difficulties with Langston began with her first day

on the job, claiming that Langston did not want to establish an office for her right away. Tr. 92. 

 Regarding her claim that Langston had alcohol abuse issues, Mulford stated that in late 

July she began to smell alcohol when around him. Tr. 92-93. Mulford also asserted that she 

observed other indications that Langston was using alcohol at work, alleging that there were 

 3

 “HIPAA,” is the acronym for the Health Insurance Portability and Accountability Act of 

1996 and it pertains to patient privacy rights. 

 

39 FMSHRC Page 1962
times late “in the afternoon in his office, [when] he kind of swayed across the office. And also 

sometimes down the hallway.” Tr. 94. She could not be sure if the swaying was due to a physical 

issue. Rather, her conclusion ultimately rested upon the odor of alcohol about him. Id. She stated 

that she made these observations on more than one occasion, estimating that it was “[p]robably 

two or three times.” Tr. 95. It was also her view that Langston displayed “extreme 

forgetfulness,” an opinion resting upon his use of a notebook to jot down things that “most 

people can remember if it's important. I mean, we might forget small details, but if -- it was like 

he was lost without his notes all the time.” Id. Upon questioning by the Court, Mulford conceded 

that the notebook use could be attributable to reasons other than alcohol use. Tr. 95-96. She also 

admitted that she never observed any slurring of speech on Langston’s part. Tr. 96. 

 When asked if she ever expressed her concerns about Langston and alcohol use to others, 

Mulford stated that she raised the issue to Kammerer in the latter part of August, talking with 

him privately in his office. Tr. 97. This was done after she had observed those indicia of alcohol 

use on two or three occasions. Id. Kammerer inquired whether the odor could simply be from 

alcohol use the night before, but Mulford rejected that suggestion, as she claimed that it smelled 

fresh. Tr. 99. She maintained that nothing ensued from her raising the issue with Kammerer, 

stating that “it was pretty much just dropped” and she did not raise the issue again. Id. 

Further, she never filed any official remark to Kammerer or anyone else at Robinson about her 

contention. The assertion was made on paper only at the time Mulford filed her discrimination 

complaint. Tr. 98. 

 The Court then inquired about the second cognizable discrimination claim raised by the 

Complaint, involving Patrice Dunn, Ms. Dunn's daughter, Kaci Nardi, and a workers’ 

compensation claim brought by Ms. Nardi. This was Mulford’s assertion of a drug abuse cover 

up associated with a positive drug test result for Nardi. Tr. 100. Mulford believed that her 

becoming involved with this issue was within her responsibilities as an occupational health 

nurse, expressing that it was part of her job description, which included workers’ compensation 

matters. Tr. 101. She stated that her responsibilities included all the documentation and that she 

“was to go to follow-up appointments to doctors and hospitals with the injured people.” Tr. 101. 

Mulford gave as an example of her duties that, if someone got hurt at work, she would go to the 

mine and then to the hospital with the person. Tr. 102. 

Telling her story about this issue, Mulford stated that Ms. Dunn used to be on the safety 

team, then stopped performing that role for several weeks. Beyond that, Mulford asserted that 

Dunn’s primary job is as a secretary at the mine. Tr. 103. Later, around August 16th, Dunn 

returned to the safety team and became the on-call person again. Tr. 104. Around August 16th 

Dunn was called, as there has been an injury at the mine involving her daughter. Apparently, Ms. 

Nardi twisted her knee. Tr. 105. Nardi filed for workers’ compensation and Dunn then gave then 

the paperwork relating to the incident to Mulford. Tr. 106. 

It is a critical element of Mulford’s claim on this issue that within that paperwork was a 

finding that Nardi tested positive for drugs. Tr. 108. Mulford alleged that the paperwork revealed 

39 FMSHRC Page 1963
that Nardi tested positive for “Benzos.”4

 Tr. 109. Such drugs, Mulford stated, are used for 

anxiety or to help one sleep. Id. 

 When the Court expressed concern about Mulford’s positive benzos claim regarding 

Nardi, expressing that the use of medication, such as tranquilizers, is not inherently a problem, 

Mulford acknowledged that is true, but responded, “if she didn't have a prescription for it, which 

I didn't have -- I don't know. That's not a safe -- that's an unsafe factor.” Tr. 110 (italics added). 

Upon further questioning by the Court, Mulford agreed that if one needed a drug for anxiety that 

is very different from a positive drug result showing the presence of cocaine, marijuana or PCP. 

Tr. 111. Again, Mulford expressed that her concern was only if the employee did not have a 

prescription and she had no information on that score. She added, “But I didn't raise any 

concerns. I did not express anything. I sent the paperwork to workers' comp.” Id. 

 Mulford tried to bolster her position on this issue by asserting “there was a prior 

problem[, as the employee] had had a positive incident in March or April.” Tr. 112. The Court 

noted, and Mulford acknowledged, that this prior incident was before she was employed by 

Robinson. Id. The Court, dismayed at the grounds Mulford presented for this claim, summed up 

that it “hear[d] nothing from [Mulford] that justifie[d] [her] being concerned about either 

positive result at least through August of 2016.” Ms. Mulford agreed with the Court’s 

characterization. Tr. 113. 

 However, Mulford persisted that her concern was still present because the employee tried 

to elude Mulford’s efforts to join her follow-up medical appointments. When Mulford eventually 

learned of an appointment, she was a half-hour late and the hospital nurse, who was not an 

employee of Robinson, at the employee’s request, did not allow Mulford to join the patient when 

she was being evaluated by the hospital. Tr. 114; 121. Nor did Mulford ever learn about lab test 

results from that visit, nor did she request those results, apparently because Mulford’s 

termination was underway. Tr. 114-15. In fact, the Court expressed that it was 

having a hard time understanding that there was any legitimate concern on [her] 

part, because [its] impression was that there was [an effort to try] to hide some 

drug abuse, but that doesn't seem to be the case at all. You have nothing to 

support the idea that there was drug abuse on the part of Ms. Nardi. 

Tr. 118. 

Mulford conceded her only support was “just because there was a prior positive.” Id.

 The Court advised that it failed to see the merits of Mulford’s claim on this subject. Tr. 

115. After cross-examination on the subject of the positive benzos test for Ms. Nardi, and Ms. 

Mulford’s inability to explain the significance of that test result, the Court advised Counsel for 

the Respondent that it “will tell you, counsel, if it helps you that [it is the Court’s] view that Ms. 

 4

 Here, Mulford used an abbreviation of the word “benzodiazepines,” which refers to a 

category of drugs commonly used as tranquilizers. “Benzodiazepine,” Merriam-Webster 

Dictionary (2017). 

39 FMSHRC Page 1964
Mulford did not advance her case on the subject of the workman's comp and the drug-related 

issues. [The Court] listened closely to what she had to say, [and] asked her some questions if you 

recall, and it's [the Court’s] view that [on] that issue, at least, she did not advance her claim of 

discrimination on that topic.” Tr. 306-08. 

Following up on that comment, the Court, speaking to Ms. Mulford, added, “Benzos, that 

you [Ms. Mulford] told me that you could legitimately legally have benzo in your system and it's 

of no moment because you might have -- it might have been prescribed for you.” Tr. 309. 

Mulford responded, “Yes.” Tr. 309. This remains the Court’s conclusion; Mulford’s drug test 

claim is without any validity. 

 Turning to the issue of Mulford’s hearing deficit which, it should be kept in mind, was 

not part of her discrimination complaint, and is recounted here only for the sake of completeness, 

Mulford agreed that the first time Langston voiced a problem about that was during August. Tr. 

116. However, she maintained that the complaints about her hearing ability intensified at the 

same time she was pursuing her workers’ compensation/ positive drug test issue with Nardi. Tr. 

122. 

 At that point in her testimony, Mulford agreed that she had presented the “safety-related 

issues that [she had] vis-à-vis Robinson that [she] also raised to the MSHA investigator when 

[she] made [her] complaint.” Tr. 123. The Court inquired, “[h]ave we covered the issues?” Id. 

Mulford responded, “It was just alcohol [and she acknowledged] Yes, we have covered them.” 

Id.

 Mulford then agreed that she was on paid leave for five weeks, following Robinson’s 

direction that she was to obtain hearing aids. After that, her employment ended, as Robinson 

decided to terminate their employment relationship. Tr. 123-25. She was then advised to vacate 

her company-provided housing and Kammerer informed her by letter that he was authorized to 

offer her $3,000.00, upon her leaving the mine provided housing within four days. Tr. 125. 

 Upon cross-examination,5

 Mulford contended that, after she complained, expressing her 

view that Langston had alcohol on his breath while at work, and informed Kammerer about it, 

“that’s when everything blew up. Along with the Nardi situation, with mentioning that she had a 

positive test.” Tr. 154. Mulford alleged that the ensuing “harassment and angry behavior” 

constituted discrimination against her. Tr. 155. She asserted that it was present during August 

and that it also spiked during August, after her assertion about detecting alcohol on Langston’s 

breath, behavior which prompted her to raise the issues with human resources. Tr. 155-56. The 

harassment took the form, she stated, in the way Langston spoke to her, essentially ignoring her, 

behavior which she described as “very traumatizing to a person, especially a professional 

 5

 Just as, in the exercise of the Court’s discretion, this decision’s recounting of the direct 

testimony from Ms. Mulford avoids discussion of testimony deemed by the Court as irrelevant or 

immaterial, and at times involving outlandish claims, the recounting of her testimony upon the 

cross-examination takes the same approach. Transcript pages 253 through 259 provide one 

example of the outlandish assertions that Mulford made which the Court has elected to avoid 

including in this decision. 

39 FMSHRC Page 1965
person.” Tr. 155. Mulford conceded that she never documented the days when she smelled 

alcohol on Langston breath, and could not give exact dates, but that it “was always at safety 

meetings.” Tr. 157. She characterized it as after three events of such alleged detection by her, 

“that’s when I – three strikes, and I had to attack. I had to at least say something, make a point.” 

Tr. 158. 

 Mulford also agreed that the harassment escalated following the “Patrice Dunn incident 

in mid-August.” Tr. 159. The latter event, of course, refers to Mulford’s Dunn/Nardi positive 

drug test claim, discussed above. Ultimately, it was Mulford’s view that both events, the alcohol 

and the Patrice Dunn matters, coincided with the harassment escalation. Tr. 160. 

 Mulford was then questioned about an August 27, 2016 voicemail, in which voicemail it 

was represented that she made a complaint regarding Ms. Nardi to Mr. Langston. Tr. 166. 

Mulford agreed that she did leave a voicemail for Kammerer on the morning of August 27th and 

that it was about the local sheriff and her assertion that she was being harassed. Tr. 169. Mulford 

acknowledged that she complained about Langston to Kammerer at that time but that it involved 

a bill that had not been paid by the Respondent. Tr. 170. She then stated that she could not 

determine if that issue was harassment or whether it was attributable to Langston having 

“memory loss” about paying the bill. Id. 

 The cross-examination then turned to Mulford’s claim that one aspect of her alleged 

discrimination was the change in her job title to industrial hygienist. Tr. 171. As the Court has 

noted, under the circumstances here, this is not a cognizable basis for a discrimination 

complaint. 

It was Mulford’s contention that there was also harassment which escalated after the 

Nardi incident and her complaint that she had to use great efforts to get Langston’s attention on 

subjects of her concern, a problem she described as constant. Tr. 171-72. She believed Langston 

was intentionally ignoring her. Tr. 173. When she finally would get his attention, he would have 

a gruff demeanor towards her. Tr. 174. Directed to Respondent’s Exhibit R 9, at page 13, 

Mulford agreed that she wrote the document at that page, identifying it as her complaint to 

MSHA. Tr. 176. That document identifies her various complaints but she conceded they were 

never triggered by any report she gave to anybody at Robinson. Tr. 177. 

Continuing with Respondent’s review of Mulford’s written complaint to MSHA, per R’s 

Exhibit 9, Mulford agreed that on August 25, 2016, she was complaining about Langston asking 

about her hearing aids, which she did not have yet, and her contention that Langston became 

upset about that. Tr. 178. She also had an issue with a matter on September 6th, involving 

Langston being “disrespectful” to her in that she did not yet have hearing aids. Tr. 179. 

Turning to an issue within Exhibit 9, dated September 19th, Mulford described this as 

“[m]ore discrimination.” Tr. 179. However, the Court intervened to clarify the nature of 

Mulford’s complaint regarding the September 19th claim, noting that it reflects that “[Mulford] 

then told Kammerer that Langston is unsafe and comes to work smelling like booze and is 

forgetful.” Tr. 179. Of concern to the Court, and revealing that Mulford’s claim was clouded 

with unsubstantiated suspicions about motivations behind her claims, she acknowledged that it 

39 FMSHRC Page 1966
was “a possible issue” that “the discrimination and disrespectful behavior from Langston could 

be from outside sources from Reno, Nevada.” Tr. 180 (emphasis added). She also acknowledged 

her view that it was possible that “the entire time that Mark Langston was harassing [her] 

because other people were causing him to do it[.]” Tr. 180 (emphasis added). 

Mulford admitted that she didn’t know whether Langston was being paid to discriminate 

against her, but she considered it to be a possibility, stating she “assumed that it possibly could 

be gratuitous sabotage.” Tr. 181. Mulford further agreed that she alleged, 

 [o]utside sources of influence provided Mark Langston's harassment and 

discrimination to me, illegally. The outside sources are biased and paid Langston 

to deliberately destroy my job from the start. 

Tr. 182; Ex. R 9. 

To make it clear, it was Mulford’s view that Langston was paid to destroy her job from 

the start. Tr. 182. Mulford’s claims regarding Langston are without any merit and may fairly be 

described as outlandish suspicions. Mulford acknowledged that not a single other person at 

Robinson was treating her poorly. Tr. 182. Respondent’s attorney aptly noted that when Mulford 

made her complaint she did not describe it merely possible or highly possible, but rather she 

wrote in her complaint that was what happened. Tr.183. Mulford also wrote that she believed 

MSHA’s determination not to refer her case to the Secretary for representation was “coerced” 

and that she believed someone was influencing the MSHA investigation. Tr. 184. 

 Mulford also believed that when she was put on leave, initially for three weeks and as 

later extended to five weeks, this was discrimination because it was “a major hours and 

scheduling change.” Tr. 185. The reader should recall that this was no part of Mulford’s 

discrimination claim before MSHA and therefore was not part of its investigation of her claim. 

On a separate note, Mulford conceded that Respondent’s Ex. R 26 is a letter stating that 

Mulford was to receive three weeks paid leave so that she could obtain hearing aids. Tr. 186. The 

same letter also stated that the Respondent would be investigating her discrimination complaints. 

Tr. 187. 

 Mulford was directed to Exhibit R 14 which, she acknowledged, was an email she sent to 

Respondent’s Counsel on June 30, 2017 and which reflects her responses to Respondent’s 

interrogatories. Tr. 249-50. Mulford conceded that, per her responses, she believed that Langston 

was paid to discriminate against her. Tr. 250. Counsel pointed out that at the hearing Mulford 

stepped back from her interrogatory response, by then describing it as “very possible [that 

Langston was paid] because it’s unusual behavior.” Tr. 250. Mulford also contended that 

Langston did not treat her as a professional from the first day of her employment at Robinson. 

Tr. 251. She based this view upon contrasting the welcoming attitude of everyone else at 

Robinson, except for Langston. Tr. 252. It was her view that Langston didn’t want to get her an 

office and matters further deteriorated when her job title changed. Tr. 252. 

39 FMSHRC Page 1967
Mulford’s testimony became more bizarre when she asserted that there were connections 

between the Church of Scientology cult, asserting that “[t]he discriminating situation is from 

outside sources of influence from the Scientology cult. I have been attacked and discriminated 

against them for years.” Tr. 260. In response to the Court’s question, Mulford agreed that her 

opinions were based just on her suspicions. Tr. 261. 

 Perhaps most revealing to Ms. Mulford’s discrimination complaint was the following 

exchange, when Respondent’s Counsel asked, “what made you have suspicions about 

connections between Scientology and the Robinson mine in late July or August?” Tr. 261. 

Mulford responded, “It isn't Robinson mine. It's Mark Langston. Robinson mine has nothing to 

do with my discrimination or anything else. There is one individual.” Tr. 261 (emphasis added). 

Appropriately, Respondent’s Counsel then asked, “This is a case against Robinson mine, you 

understand that; right?” Id. Mulford replied, “I do.” Id. When pressed further, that the case was 

not against Langston, Mulford answered, “Well, it should have been Mark Langston, but I 

understand the situation. It has to be with the corporation.” Tr. 261-62. Of significance, Mulford 

agreed that her suspicions about Langford and the Church of Scientology all arose prior to her 

claims that Langston was using alcohol while on the job and the “Ms. Nardi situation regarding 

drug tests.” Tr. 263. 

 As Mulford expressed it, per R’s Ex. 9, “[t]he outside sources are biased and paid 

Langston to deliberately destroy my job from the start.” Tr. 270. Perplexed by her assertions, the 

Court inquired of Mulford, “[w]hen you say, ‘the outside sources are biased and paid Langston 

to deliberately destroy [your] job,’” Mulford interjected, “[c]orrect.” Tr. 271. When informed 

by Mulford that the outside sources were from Reno, which the Court noted, is a significant 

distance from Ely, Nevada, the Court informed her that it was “at a loss to appreciate the basis 

for [her] concluding that these people in Reno would even find, let alone pay Mr. 

Langston to harass you. I mean, let's say I am living in Reno. Why wouldn’t I pick . . . Mr. 

Kammerer to do the harassing? What is your thinking as to why they would single out Mr. 

Langston?” Mulford responded, “I have no idea.”6

 Tr. 271-72. 

The Court tried to summarize the grounds for Mulford’s view, asking, “[s]o you just 

figured, if I understand your thinking . . . Your thinking was well, I am being mistreated, I did 

have this trouble in Reno, there must be a connection between the two; is that fair?” Tr. 273. 

Mulford answered, “[i]t -- it's fair, yes.” Tr. 273. 

 6

 The Court concludes that Mulford’s theory behind her claim of harassment was beyond 

speculative and is completely groundless. As another example, Mulford informed that her claim 

was connected with a temporary protective order (“TPO”) issued against her, out of Reno. A 

local sheriff, near the Robinson mine, served the TPO on Mulford at the apartment that Robinson 

Mine had provided her. Mulford admitted the TPO service was not done by Robinson Mine, nor 

by Mark Langston. Tr. 267. The only thing Mulford could point to in support of her suspicion 

that Langston and the sheriff’s office were collaborating was that she was served the TPO on the 

same or next day after she was urged by Langston not to go into work on a Sunday. Tr. 268. 

Mulford believed that Langston wanted her to be at home so that she would be served with the 

TPO. Tr. 269. 

39 FMSHRC Page 1968
 Mulford filed her MSHA discrimination complaint on September 19th, but it was date 

stamped September 23rd. Tr. 277. Her interview with Ms. Jepson was after that, on September 

26th. Id. It was her testimony that, at the conclusion of the Jepson interview, she told them she 

had filed a complaint with MSHA. Tr. 278. It is fair to say that Mulford had a number of people 

whom she believed could be outside influences on the Robinson Mine. Tr. 278-87. Suffice it to 

say that she never established credible evidence to support her beliefs and that they remained 

pure speculation on her part. 

 Counsel for the Respondent also called to Mulford’s attention an email she sent to Julie 

Whiffen-Peters on October 15, 2016.7 Tr. 253; R’s Ex. R-4. Respondent’s Counsel noted that in 

that email the Complainant asserted, “‘[t]he cult deliberately infiltrates businesses and 

corporations all over the world to destroy individuals who seek their arrests and prosecution for 

their crimes. I know — ’ not guess, not suspect, ‘I know who my real attackers are and the 

mining employees involved were just their tools of discrimination/harassment for money.’” Tr. 

289. Mulford responded, “That's correct.” Tr. 289. 

 

Mulford then concluded her case and in response to the Court’s inquiry if she believed 

that the Court listened to her and gave her a fair opportunity to present her side of the story, she 

responded, “I agree.” Tr. 315. 

 Shane Anderson testified for the Respondent. Anderson is the Senior Safety Coordinator 

at the Robinson Mine. Tr. 191. He has known Mark Langston for a considerable period of time. 

Tr. 192-94. Anderson is also familiar with the Complainant, as he participated in the interviews 

for the position Mulford ultimately was offered. Tr. 194. Anderson maintained that the interview 

described the job as applying to both the “IH” (industrial hygienist) job and as an occupational 

nurse. Tr. 177; 195. However, he admitted being unable to recall if the job description included 

both roles. Tr. 195.8

 Per Respondent’s Ex. 18-2, industrial hygienist duties were included in the 

description as it provided: “Perform health risk assessments. [ ] Industrial hygiene sampling and 

ergonomic surveys throughout the mine site.” Tr. 196. More significantly, Anderson asserted that 

one does not need certification to perform industrial hygienist duties. Tr. 198. However, 

certification is available for that job. Tr. 199. 

 Anderson was asked about the Respondent’s practice regarding hearing tests, advising 

that all new employees are so tested. This gives the mine a baseline and he asserted that MSHA 

requires such testing within six months of employment. Tr. 199. Shown Ex 5 C, Mulford’s 

hearing test results, Anderson stated that the test revealed moderate to severe hearing loss on 

both sides. Tr. 203-04. This test served as a baseline for Mulford’s hearing at the time she began 

her employment for Robinson. Tr. 208. However, he conceded that there was no determination 

 7

 Asked why Mulford sent an email to Whiffen-Peters in the first place, as she had no 

prior contact with her, she simply advised that she looked up the name at the website for the 

mine, selecting her as one of the corporate people. Tr. 291. 

8

 Again, it is reminded that this testimony is recounted only for the sake of completeness. 

The modification of Mulford’s job duties was never claimed as part of her protected activity, nor 

in context could it be so claimed. 

39 FMSHRC Page 1969
that Mulford needed hearing aids following those test results. Tr. 209. Anderson claimed that in 

subsequent work interactions with Mulford, he noticed that she seemed to have some difficulty 

hearing during conversations, but he admitted this was surmise and that it could’ve reflected not 

understanding tasks for which he was providing training. Tr. 212. 

Again, the Court takes note that Robinson’s practice of conducting hearing tests for new 

employees was not part of Mulford’s claimed protected activity.

Anderson stated that he attended numerous safety meetings with Langston and Mulford 

being present. Tr. 212. He asserted that, at times, he sat next to Langston but never smelled or 

perceived alcohol use by Langston. Tr. 213. He maintained that he never had any reason to 

believe that Langston was using alcohol during work hours or immediately prior to work. Tr. 

213. All employees at the Robinson Mine are subject to its drug and alcohol policy and there is 

random testing. Tr. 213. Langston, Anderson stated, has been tested, per the policy and his test 

result was negative. Tr. 214. Nor, Anderson maintained, do any employees, other than HR 

employees, know when the random testing will be done. Tr. 216. Upon questioning by the Court, 

Anderson stated that he would have from four to eight hours of contact with Langston during the 

course of a week. Tr. 217-18. 

Anderson also maintained that he never observed Langston raise his voice to Mulford, 

nor treat her any differently from other employees. Tr. 227. He asserted that Langston treated all 

employees in a respectful manner. Tr. 227. 

Speaking to the Complainant’s issue regarding a lack of access to the employee at the 

hospital, he stated that there was a meeting at a hospital in Ely, Nevada, which the Complainant 

also attended, along with Anderson and Langston. Tr. 229. The meeting occurred in the third or 

fourth month of Mulford’s employment with Robinson. The issue was to determine an efficient 

manner to decide if an injured employee should be placed on lost time or restricted duty. Tr. 229. 

According to Anderson, later in that meeting Mulford brought up a topic which had already been 

addressed, which surprised the other participants. Tr. 232. Anderson concluded that the reason 

could’ve been attributable to Mulford not hearing the earlier discussion about the issue. Tr. 233. 

However, Anderson never discussed the need for Mulford to obtain hearing aids with any 

Robinson employees, nor to Mulford herself. Tr. 233-38. 

On cross-examination by Mulford, Anderson agreed that, per Exhibit 2 C, her job at 

Robinson was described as on that May 12, 2016 document as “full time occupational nurse.” Tr. 

240. Per Exhibit 17 C, the position was described as “Industrial hygienist nurse.” Id. Exhibit 3 C 

lists the job as “Industrial Hygienist/Occupational Nurse.” Id. 

The Court considered Anderson and his testimony to have been a credible. 

The Respondent called Mark Langston. Tr. 332. Langston has been a safety manager for 

about 13 years. Id. Prior to that occupation, he had 22 years of service with the U.S. Navy. Id.

Langston was involved in the creation of the job description for the position Mulford was hired. 

Initially the position was posted as an industrial hygienist, and then amended to include an 

occupational nurse, a modification that he and others considered to be an enhancement for 

39 FMSHRC Page 1970
Robinson employees. Tr. 334. He stated that neither Nevada nor the federal government require 

one to have a degree or certification to be an industrial hygienist. Tr. 335. It was Langston’s 

understanding that Mulford was hired to perform work as an industrial hygienist and as an 

occupational nurse. Id. During the relevant time, Langston had three people that reported to him: 

Shane Anderson, Tyler Wright and Heather Mulford. 

As the mine did not complete the necessary steps for Mulford to fully perform her 

occupational nurse duties, steps which require her to work under medical direction, in order for 

her to treat employees and provide vaccinations, the initial focus was to have her learn the 

industrial hygiene duties. Tr. 336- 41. To that end, Langston had Anderson mentor and coach her 

in the performance of those hygienist duties. Tr. 341. He denied that, in his interactions with 

Mulford, that he treated her differently from others. Id. He was aware that Mulford might have 

hearing issues during her interview and, following her pre-employment physical, this was 

identified as a concern and he and Kammerer discussed the issue. Tr. 342. Langston also 

explained that there was no nefarious reason for the Complainant having her hearing capabilities 

tested twice in a short period of time, stating, 

[b]ecause sometimes when you do the hearing tests at the clinic with the medical 

facility they don't always follow the best practices on administering the test. So 

there is a potential for there to be an error in the test. So we like to run our own to 

confirm that we have a good baseline. 

Tr. 343. 

He affirmed this was a standard procedure for the mine. Id. 

 Langston also stated that it became apparent that Mulford was not hearing all of the 

discussion during meetings. Tr. 343-44. Thus, there were communication problems and he 

discussed the matter with Kammerer and others. Tr. 344. Several months after the second 

hearing test,9

 Mulford was referred to see an audiologist and it was learned that hearing aids 

would be in the offing. Tr. 344-46. Langston agreed that, while Mulford’s hearing was an issue, 

it was not deemed an urgent problem and for that reason the appointment with an audiologist was 

scheduled some months later. Tr. 347. However, he added that the problem became progressive 

and he concluded that his expectations of her were not being met, a problem he attributed to her 

hearing issue. Id. Still, he could not recall if he ever sent an email to others at Robinson about 

this issue. Tr. 348. Langston agreed that Mulford was hired on June 6, 2016. Tr. 349; R’s Ex. 1 

C. 

 Langston acknowledged that, through Kammerer, he became aware that Mulford had 

made complaints about him. The complaints involved two issues: that she believed he had 

 9

 The Court determined that Anderson’s explanation for Robinson conducting two 

hearing tests for Mulford within a short period of time, was plausible, and therefore not 

nefarious. Tr. 243. Again, it needs to be noted that this was not part of Mulford’s discrimination 

claim; she did not assert that her hearing deficit was part of her discrimination claim. 

39 FMSHRC Page 1971
discriminated against her because he felt she needed hearing aids and she also accused him of 

coming to work under the influence of alcohol. Tr. 350. Langston was offended by Mulford’s 

claims. Id.

Langston stated that supervisors and management were also subject to random drug 

testing. Tr. 351. He has been randomly tested and his results were negative. Tr. 352-53. Further 

undercutting Mulford’s suspicions, Langston informed that he has never had a DUI, never had a 

field sobriety test, and never been disciplined for alcohol or drug abuse at any time during his 

mining career. When asked if he drinks before going to work, he responded, “No. In my 

profession as a safety manager that kind of conduct is career ending. It is. I mean, I would never 

get another job as a safety manager.” Tr. 353. 

 The Court considered Langston and his testimony to have been credible in all regards. 

 Mr. Kim Kammerer testified for the Respondent.10 He was the company representative at 

the hearing. He is presently the Human Resources Manager at Robinson. Tr. 392. Kammerer 

confirmed that, consistent with the testimony of prior witnesses during the hearing, that he 

believed hiring an occupational nurse would be a good addition for the mine. Tr. 393. It was his 

intention that the person filling that position would also perform industrial hygienist duties. Tr. 

393, 395 and Exhibit 18-1 and 18-2 (the job posting and job announcement). Kammerer 

confirmed that one did not need a certificate or a degree to work as an industrial hygienist. Tr. 

395-396. 

 Kammerer conducted the job interviews for Mulford and he noticed early on that Mulford 

had hearing problems. Tr. 397. Despite awareness of the Complainant’s hearing issue, Kammerer 

believed they would be able to accommodate the difficulty and therefore did not consider it as a 

barrier to hiring her. Tr. 398. He also confirmed that the decision to conduct a second hearing 

test came about because they wanted to be sure they had a good baseline for her. Tr. 399. The 

practice of a second baseline test is done for all new employees. Tr. 400. After she had been on 

the job for a few weeks or so, he asked her to be seen “by a medical professional to see if there is 

something that could be done to help her with her hearing, possibl[y] hearing aids.” Tr. 401. 

Kammerer stated that Mulford was receptive to his suggestion. Tr. 402. Subsequently Langston 

told Kammerer that Mulford’s hearing continued to be an issue and he asked Kammerer to 

follow-up with her. He advised Mulford that the mine would give her time off from work to 

 10 Prior to Kammerer’s testimony, Amanda Hilton was called as witness for the 

Respondent. Ms. Hilton has been an employee at Robinson for nearly 13 years. Tr. 380. Her 

jobs during that time included accounting and the manager of administration. Presently she is the 

manager of mine maintenance and supply chain. Id. Hilton agreed that her contact with Mulford 

during the time Mulford worked at Robinson was infrequent, brief and not substantive. Tr. 382. 

Her involvement with Mulford pertained to her participation with the committee regarding 

Mulford’s continued employment. Tr. 382. Hilton’s testimony was of no value to the matter 

before the Court, as she agreed that 99 percent of her participation rested upon the 

recommendations of the Jepson Report. Hilton conceded that the committee adopted the Jepson 

Report with no reservations about any of it. Tr. 386. Her testimony is noted here only for the 

sake of completeness. 

39 FMSHRC Page 1972
obtain hearing aids. Tr. 403. Following that, in late August, Mulford advised Kammerer that, 

upon seeing an audiologist, it was recommended that she obtain hearing aids. Tr. 403-04. Unsure 

whether money was an issue for her, Robinson, acting through Kammerer, provided unrequired 

additional funding so that Mulford could afford to purchase hearing aids. Tr. 405. 

 Kammerer related that, around the 29th of August, Mulford met with him and at that time 

alleged that she was being harassed and discriminated against by Langston. Tr. 408. As he 

recalled, Mulford had not raised any charges about Langston using alcohol on the job until that 

meeting. Tr. 409. Regarding Mulford’s claim of Langston being under the influence of alcohol at 

work, Kammerer placed this allegation as having been made around August 29th. Tr. 420. This 

was made at the same time she alleged discrimination and harassment by Langston towards her. 

Tr. 420. This was based, Kammerer stated, on Mulford’s assertions about the manner in which 

Langston spoke to her. Tr. 421. 

 Based in part on the credible testimony of Kammerer regarding Mulford’s claim that 

Patrice Dunn was covering up a “positive” drug test, the Court finds that there is no evidence to 

support that claim. See, Tr. 421-26. It should be particularly noted that, in the first instance, 

before any witness for the Respondent testified, Mulford herself did not establish any credible 

evidence for her cover-up claim. Thus, Respondent would have prevailed on this issue, even if it 

had not offered any rebuttal evidence at all. 

 On the separate allegation of Langston using alcohol on the job, Kammerer confirmed 

that, apart from Mulford, there have been no other such claims against Langston. Tr. 429. 

Kammerer added that when Mulford raised the issue with him, she informed that the alleged 

alcohol use occurred “on previous days, other times. Not that day.” Tr. 429-30. He informed 

Mulford that “unless [she] can tell [him] the day it happens there is not a whole lot [the mine] 

can do to go for testing.” Tr. 431. Further, though her complaint about Langston was untimely, 

Kammerer still inquired of Wright and Anderson as to whether they ever had ever observed 

Langston “staggering around like he had been drinking or smelled alcohol on him or any of 

that?” Tr. 430. Both informed Kammerer that they had never seen Langston exhibiting such 

symptoms. Id. 

Kammerer was asked about Mulford’s allegation of harassment. From his point of view, 

this amounted to her complaint about “the way [Langston] talked to her” and that claim only 

referred to one instance raised by Mulford. Tr. 436. There was some substance to this claim of 

Mulford, that Langston could be blunt, but Kammerer stated it was born out of Langston’s 

frustration about the length of time it was taking for her to obtain hearing aids. Id. Further, as it 

regarded his specific interactions with Mulford, Kammerer stated that she never made any claim 

to him that Langston was harassing her the entire time of her employment at Robinson, nor that it 

had escalated. Tr. 437. Kammerer also related an instance when Mulford left him a voicemail, 

advising that the local sheriff’s department was coming to her house and her belief that Langston 

had instigated that. Tr. 437-41. Even when later developments demonstrated that Langston had 

nothing to do with the sheriff’s department visiting Mulford, she was unable to concede that her 

suspicions were not confirmed. Tr. 449. 

39 FMSHRC Page 1973
 In terms of appreciating the context of Robinson’s treatment of Mulford, it is noted that 

the Respondent went to some lengths to help Mulford with her hearing deficit issues. It did this, 

through Kammerer, by Robinson providing her with paid time off so that she could obtain the 

hearing aids and, as mentioned before, by providing some funds to help pay for the hearing aids. 

Tr.452-56. Mulford misinterpreted the additional funds for hearing aids as an indication that she 

was being fired. Tr. 458. However, Kammerer stated that, as of September 8th, there had not 

been a decision to terminate Mulford. Tr. 457. Thinking that she was to be fired, Mulford then 

accused the mine of discrimination. Tr. 459; Ex. 20. 

 The Court concludes that Kammerer was a credible witness. 

Christina Jepson testified for the Respondent.11 Jepson is an attorney in the same firm as 

Respondent’s Counsel, Mr. DeLong. Tr. 491. Her specialty is employment law. Tr. 492. Jepson’s 

initial involvement in this matter arose when Kammerer contacted her regarding Mulford’s 

discrimination complaint. Tr. 492-93. It was not long after September 8th that Jepson began an 

investigation on Robinson’s behalf into the suitability of Mulford’s employment at the mine. Tr. 

461-62. Jepson came to the mine around September 21st and conducted interviews with various 

employees, including Mulford. Mulford accused Robinson Mine, during her interview with 

Jepson, of the mine discriminating against her. Tr. 463. Following Jepson’s interviews, she 

prepared a report and presented it to a committee for the mine. Tr. 465. The Committee then 

determined that Mulford’s employment at Robinson should be terminated. Tr. 466; R’s Ex. 2. 

The termination letter, dated October 13th, advised that the mine had “determined that [Mulford 

was] not able to carry out the necessary required functions of [her] job.” Tr. 472. This conclusion 

rested upon the information contained in the Jepson report. Tr. 474. 

The Court had previously ruled that most of Jepson’s report, resulting from her 

investigation of Mulford’s issues, was not admissible. Her testimony was not useful to the Court 

because nearly all of it involved a recounting of the scope of her investigation of Mulford’s 

complaints and a retelling of what individuals told her about those matters during the one day 

Jepson spent at the mine. The “report” which resulted from Jepson’s investigation was seriously 

flawed by its lack of impartiality and objectivity and by its consideration of extraneous matters. 

In short, the obvious purpose of the “report” was to support Mulford’s termination. 

In contrast to Jepson’s retelling of what she learned, the Court had the direct testimony of 

the individuals themselves. Essentially, Jepson’s “report” was the Respondent’s attempt to have 

its own findings of fact about Mulford’s complaint. That role, at least for Mulford’s Mine Act 

discrimination complaint is reserved to the Court. Accordingly, and for a host of other reasons 

 11 In the spirit of completeness, it is briefly noted that Sara Wright testified for the 

Respondent. She is an employee with Robinson, working in human resources with the title of 

“coordinator,” working under Kammerer. Tr. 482-83. Wright stated that she had contact with 

Langston “[d]aily, multiple times a day.” Tr. 483. She stated that, while she never saw Langston 

get upset with anyone and never witnessed him raising his voice at people, he was naturally a 

loud person. Tr. 484. Nor did she ever observe him treat Mulford differently. Id. She never 

observed any indication that he had been abusing alcohol while working. Tr. 486. 

39 FMSHRC Page 1974
articulated by the Court during the course of this litigation, Respondent’s Exhibit R 1 was not 

allowed into the record. Tr. 508. 

While the Court rejected the “report,” it has determined, based on the exhibits entered 

into the record, and the testimony of witnesses, that Mulford’s claim has no merit and that 

Robinson was fully justified in terminating her employment. 

Mine Act Discrimination Claims 

 This discrimination complaint was brought under section 105(c)(3) of the Mine Act, 

alleging a violation of section 105(c)(1), which states, in relevant part: 

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

discharged or cause discrimination against or otherwise interfere with the exercise 

of the statutory rights of any miner [or] representative of miners . . . because such 

miner [or] representative of miners . . . has filed or made a complaint under or 

related to this chapter, including a complaint notifying the operator or the 

operator's agent at the coal or other mine of an alleged danger or safety or health 

violation in a coal or other mine. 

30 U.S.C. § 815(c). 

 Where, as in this case, the Secretary has decided not to bring case on behalf of the 

miner, Section 105(c)(3) of the Mine Act provides that if the Secretary of Labor determines that 

a violation of section 105(c)(1) has not occurred, “the complainant shall have the right . . . to 

file an action in his own behalf before the Commission, charging discrimination.” 30 U.S.C. § 

815(c)(3). 

 As the Commission stated in Jaxun v. Asarco, “[t]he Mine Act, the Administrative 

Procedure Act (‘APA’), and the Commission’s Procedural Rules permit a Complainant to 

proceed with an action under section 105(c)(3) of the Mine Act without representation.” Jaxun 

v. Asarco, LLC, 20 FMSHRC 616, 620 (Aug. 2007). 

 The legal framework for assessing discrimination claims brought under the Act is wellestablished and clear. A complainant may establish a prima facie case by showing “(1) that he 

engaged in protected activity, and (2) that he thereafter suffered adverse employment action that 

was motivated in any part by that protected activity.” Pendley v. FMSHRC, 601 F.3d 416, 423 

(6th Cir. 2010). The complainant bears the ultimate burden of proving these elements by a 

preponderance of the evidence. Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 

FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United Castle 

Coal Co., 3 FMSHRC 803 (Apr. 1981). 

 Protected activity often takes the form of complaints made to the operator or its agent of 

an “alleged danger or safety or health violation. 30 USC § 815(c)(1). Often, the Court will be 

called upon to consider indirect evidence of a discriminatory motivation for the adverse action. 

39 FMSHRC Page 1975
The Commission has stated that “[d]irect evidence of motivation is rarely encountered; more 

typically, the only available evidence is indirect.” Sec’y of Labor on behalf of Chacon v. Phelps 

Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. 

Cir. 1983). Where direct evidence of motivation is unavailable, the Commission has identified 

several indicia of discriminatory intent, including, but not limited to: “(1) knowledge of the 

protected activity; (2) hostility towards the protected activity; (3) coincidence in time between 

the protected activity and the adverse action; and (4) disparate treatment of the complainant.” 

Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1066 (May 2011) (citing Chacon, 3 

FMSHRC at 2510). When considering indirect evidence, the Court may draw reasonable 

inferences from the facts. Id.

 An adverse action is any “act of commission or omission by the operator subjecting the 

affected miner to discipline or a detriment in his employment relationship.” Sec’y of Labor on 

behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984). An 

adverse action must be material, meaning that the harm is significant rather than trivial. In 

determining whether adverse action has occurred, the Commission applies the test articulated in 

Burlington North v. White. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); see 

also Sec’y of Labor on behalf of Pendley v. Highland Mining Co., 34 FMSHRC 1919, 1931 

(Aug. 2012). 

 If a complainant establishes the required elements, the burden shifts to the operator to 

rebut the prima facie case by showing “either that no protected activity occurred or that the 

adverse action was in no part motived by protected activity.” Driessen v. Nev. Goldfields, Inc., 

20 FMSHRC 324, 328 (Apr. 1998). 

 An operator who cannot rebut the prima facie case may still raise an affirmative “mixed 

motive” defense by proving that the adverse action was motivated only in part by protected 

activity, and it “would have taken the adverse action for the unprotected activity alone. Haro v. 

Magma Copper Co., 4 FMSHRC 1935 (Nov. 1982). The operator must prove this defense by a 

preponderance of the evidence. Id., see also Pasula, 2 FMSHRC at 2799-800. When evaluating 

an affirmative defense, the Court follows the two-step analysis outlined by the Commission in 

Chacon v. Phelps Dodge. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 

FMSHRC 2508 (Nov. 1981). The first step of the Chacon analysis directs the Court to determine 

whether “the justification is so weak, so implausible, or so out of line with normal practice that it 

was a mere pretext seized upon to cloak discriminatory motive.” 3 FMSHRC at 2516. If the 

Court finds that the justification is not pretextual, it then moves to the second step, which is a 

“limited examination” of the justification’s substantiality, and assesses the narrow question of 

“whether the reason was enough to have legitimately moved that operator” to engage in the 

adverse action.” Id. at 2516-17. 

39 FMSHRC Page 1976
Discussion 

In evaluating the evidence of record, the Court fully considered the parties’ post-hearing 

briefs. Ms. Mulford’s brief contends she established a prima facie case by “showing: (1) her job 

title was changed after hiring and relocation. (2) her hours of work were changed due to the job 

title change. (3) she was retaliated against for filing a discrimination complaint and that 

Robinson Mining Company then proceeded to use false mental health disability against her.” 

Mulford Br. at 1. 

 With the findings of fact in mind, the Court notes that items (1) and (2) were not part of 

her discrimination complaint. As to item (3), the Court finds that the evidence does not support 

Mulford’s claim that Robinson retaliated against her for filing a discrimination complaint. 

Indeed, the credible evidence establishes that Robinson went out of its way to help Mulford with 

her hearing deficit issue by providing financial assistance towards the purchase of the hearing 

aids, something it was under no obligation to do. 

 In contrast, the Court agrees with Robinson’s remark in its post-hearing brief that “the 

evidence before the Court demonstrated that Robinson’s determination to terminate Ms. Mulford 

was in no way motivated by discriminatory intent.” Respondent’s Br. at 2-3. Robinson goes on to 

contend that Mulford’s, 

claims [were] entirely unsupported by the record before this Court, and 

demonstrate that Mulford is willing to make outlandish allegations without any 

factual support for the claims. The credible evidence before this Court—offered 

by Robinson employees—establishes that Robinson attempted to assist Mulford 

with her hearing issues (Hearing Ex. R26), treated her fairly during her 

employment, and did not take any action based upon Mulford’s unfounded claims 

that Mr. Langston was allegedly abusing alcohol while working at the mine. 

Respondent’s Br. at 3. 

“In addition, Mulford cannot establish a prima facie violation because her testimony was 

not credible and could not be corroborated by any evidence that was presented to this Court.” Id.

at 4. 

The Court strongly agrees with Robinson’s view, finding that the evidence supports its 

contentions. 

Conclusions of Law 

 

In conclusion, Ms. Mulford failed to establish a prima facie case of discrimination under 

section 105(c)(3) of the Mine Act. Robinson’s reasons for discharging her were valid, and were 

based upon a fundamental incompatibility of her continued employment with the Respondent. 

Further, as there was no merit whatsoever to Mulford’s claims, Robinson could have elected to 

terminate her employment without the need to provide a reason, at least as far as this Mine Act 

discrimination proceeding is concerned. Accordingly, the Court finds that Mulford utterly failed 

to prove, by a preponderance of the evidence, that Robinson discriminatorily terminated her in 

39 FMSHRC Page 1977
violation of section 105(c) of the Act. Further, the Court finds that the adverse action, Mulford’s 

termination, was in no part motived by protected activity. 

 

ORDER

 

Ms. Heather Mulford’s complaint and this proceeding are DIMISSED.

Within the Commission’s procedural rules, 29 CFR § 2700.70, titled “Petitions for 

discretionary review,” provides, in relevant part, “(a) Procedure. Any person adversely affected 

or aggrieved by a Judge's decision or order may file with the Commission a petition for 

discretionary review within 30 days after issuance of the decision or order. Filing of a 

petition for discretionary review is effective upon receipt.” Subsection (c), within the same 

section, informs the grounds upon which such petitions may be filed as follows: 

Petitions for discretionary review shall be filed only upon one or more of the 

following grounds: (1) A finding or conclusion of material fact is not supported 

by substantial evidence; (2) A necessary legal conclusion is erroneous; (3) The 

decision is contrary to law or to the duly promulgated rules or decisions of the 

Commission; (4) A substantial question of law, policy, or discretion is involved; 

or (5) A prejudicial error of procedure was committed. 

29 CFR § 2700.70 (emphasis added). 

Accordingly, the Complainant is advised that she may appeal this matter to the 

Commission within 30 days of the date of this order. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

Distribution: 

Heather Mulford, 975 Mill Street, Ely, NV 89301 

Michael Zody, Parsons Behle & Latimer, 201 South Main Street, Suite 1800, Salt Lake City, NV 

84111 

Robert W. Delong, Esq., 50 West Liberty Street, Suite 750, Reno, NV 89501 

39 FMSHRC Page 1978
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

October 31, 2017 

AMENDED DECISION AND ORDER1

REINSTATING JONATHAN HOLSKEY 

Appearances: Thomas Motzny, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, Representing the Secretary of Labor 

 Tony Oppegard, Esq., Lexington, KY, Representing Complainant Jonathan 

 Holskey 

Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Charleston, West 

Virginia, Representing Pennyrile Energy, LLC 

Before: Judge Andrews 

 Pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“Mine 

Act” or “Act”), 30 U.S.C. §801, et. seq., and 29 C.F.R. §2700.45, the Secretary of Labor 

(“Secretary”) on September 27, 2017, filed an Application for Temporary Reinstatement of 

miner Jonathan Holskey (“Holskey” or “Complainant”) to his former position with Respondent 

Pennyrile Energy LLC, (“Pennyrile” or “Respondent”) at the Riveredge Mine pending final 

hearing and disposition of the case. 

 According to Commission Rule 45, a request for hearing must be filed within 10 days 

following receipt of the Secretary’s application for temporary reinstatement. 29 C.F.R. 

§2700.45(c). A timely request for hearing was filed on October 12, 2017, and a hearing was held 

on October 19, 2017, in Madisonville, Kentucky. The parties had the opportunity to present 

witnesses, documentary evidence, and arguments in support of their positions. 

 1

 A pagination error in the original Decision has been corrected. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 and JONATHAN HOLSKEY, 

 Complainants 

 v. 

PENNYRILE ENERGY, LLC, 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 2018-0004-D 

MSHA Case No. MADI-CD-2017-05 

Mine: Riveredge Mine 

Mine ID: 15-19424 

39 FMSHRC Page 1979
Discussion of Relevant Law 

 Section 105(c) of the Mine Act prohibits discrimination against miners for exercising 

any protected right under the Mine Act. The purpose of the protection is to encourage miners 

“to play an active part in the enforcement of the [Mine Act]” recognizing that, “if miners are to 

be encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination which they might suffer as a result of their participation.” S. Rep. No. 

181, 95th Cong., 1 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

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

Health Act of 1977, at 623 (1978). 

Congress created the temporary reinstatement as “an essential protection for complaining 

miners who may not be in the financial position to suffer even a short period of unemployment 

or reduced income pending the resolution of the discrimination complaint.” Id. at 624-25.

 Temporary Reinstatement is a preliminary proceeding and narrow in scope. As such, 

neither the judge nor the Commission is to resolve conflicts in testimony at this stage of the case. 

Sec’y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The 

substantial evidence standard applies.2 Sec’y of Labor on behalf of Peters v. Thunder Basin Coal 

Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary reinstatement hearing is held for the 

purpose of determining “whether the evidence mustered by the miners to date established that

their complaints are non-frivolous, not whether there is sufficient evidence of discrimination to 

justify permanent reinstatement.” Jim Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990). 

In adopting section 105(c), Congress indicated that a complaint is not frivolously brought 

if it “appears to have merit.” S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In 

addition to Congress’ “appears to have merit” standard, the Commission and federal circuit 

courts have also equated “not frivolously brought” to “reasonable cause to believe” and “not 

insubstantial.” Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 

(Aug. 1987), aff'd, 920 F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that 

establishing ‘reasonable cause to believe’ that a violation of the statute has occurred is a 

‘relatively insubstantial’ burden.” Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 

2012 WL 4026641, *3 (Aug. 2012) citing Schaub v. West Michigan Plumbing & Heating, Inc., 

250 F.3d 962, 969 (6th Cir. 2001). 

In order to establish a prima facie case of discrimination under section 105(c) of the Act, 

a complaining miner must establish (1) that he engaged in protected activity and (2) that there 

was an adverse action, which was motivated in any part by that activity. Sec’y of Labor on behalf 

of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub 

 2

 “Substantial evidence” means “such relevant evidence as a reliable mind might accept 

as adequate to support [the judge’s] conclusion.” Rochester & Pittsburgh Coal Co., 11 

FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 

229 (1938)). 

39 FMSHRC Page 1980
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on 

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

In the instant matter, the Secretary and Holskey need not prove a prima facie case of 

discrimination with all of the elements required at the higher evidentiary standard needed for a 

decision on the merits. Rather, the same analytical framework is followed within the “reasonable 

cause to believe” standard. Thus, there must be “substantial evidence” of both the applicant’s 

protected activity and a nexus between the protected activity and the alleged discrimination. To 

establish the nexus, the Commission has identified these indications of discriminatory intent: (1) 

hostility or animus toward the protected activity; (2) knowledge of the protected activity; and (3) 

coincidence in time between the protected activity and the adverse action. Sec’y of Labor on 

behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 1089 (Oct. 2009). The 

Commission has acknowledged that it is often difficult to establish a “motivational nexus 

between protected activity and the adverse action that is the subject of the complaint.” Sec’y of 

Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept.1999). The 

Commission has further considered disparate treatment of the miner in analyzing the nexus 

requirement. Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510 (Nov. 1981), rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983). 

Evidence 

 On July 31, 2017, Holskey executed a Summary of Discriminatory Action, which was 

filed with his Discrimination Complaint. In this statement, he alleged the following: 

I am an experienced coal miner. I was employed at Pennyrile Energy, Riveredge 

Mine until I was discharged on 6/2/2017. I suffered an at [sic] work accident on 

05/15/17 causing injury to my right leg and ankle. I reported the accident this 

same night 5/15/17. The brakes on the green car on #1 unit did not set up 

properly. When I got out of the car it rolled back about two feet. I reported this 

safety hazard. I worked on 05/16/2017 although in extreme pain and discomfort. 

When I came out of the mine that morning I insisted on filling out an accident 

report and going to the doctor. When I got outside after the shift I filled out the 

accident report. On June 2, 2017, I was given a letter stating I was terminated 

effective June 2, 2017. I am requesting my job back, all lost pay, bonuses, health 

insurance, etc., that I would have otherwise earned. 

 

Application for Temporary Reinstatement, Exhibit B. 

 

 The Declaration of Special Investigator James Jordan was also filed with the Application 

for Temporary Reinstatement, and in pertinent part is as follows: 

1. I am a special investigator employed by the Mine Safety and Health Administration, 

United States Department of Labor. I am assigned to the Coal District 10 Office in 

Madisonville, Kentucky. 

39 FMSHRC Page 1981
2. As part of my responsibilities, I investigate claims of discrimination filed under Section 

105(c) of the Mine Act. In this capacity, I have reviewed and gathered information as part 

of an ongoing investigation arising from a complaint filed by Jonathan Holskey against 

Pennyrile Energy, LLC (“Pennyrile”). My findings as a result of the investigation 

disclosed the following: 

a. Jonathan Holskey was previously employed by Pennyrile at the Riveredge Mine 

in McClean [sic] County, Kentucky. Holskey began working at Riveredge as an 

employee of Pennyrile on or about March 15, 2017. Previously, he had worked at 

that mine as a contract employee. At the time of his discharge on June 2, 2017, 

Holskey worked on the third shift. 

b. Holskey was injured at the Riveredge mine on or about May 15, 2017. When 

Holskey exited a ram car, the parking brake failed, and the car rolled over his foot 

and leg. He reported this injury and complained about the ineffective ram car 

brakes to Tommy Boyd, the lead man on the third shift. 

 

c. Holskey returned to work the next day, May 16, 2017. Holskey was told by lead 

man Tommy Boyd to take it easy because of the injury he received the night 

before. Near the end of the shift, Boyd asked Holskey to finish the dust parameter 

checks on the section and sign the board indicating that the examination had been 

completed. Holskey told Boyd that he did not know how to do the “pitot tube” 

reading on the continuous miner, so he felt uncomfortable performing the 

examination and signing off on the board. Holskey also asked Boyd to fill out an 

accident report form during that shift for the accident which occurred on the 

previous shift. After that shift, Holskey and Boyd met with Susan Dixon, a person 

in human resources, and Kris Maddox, the underground superintendent, where 

Holskey’s injury was discussed. 

d. Holskey had also made previous complaints to Boyd and others about Pennyrile 

mining coal on the third shift without the proper belt examinations being done 

during the shift, as required by 30 C.F.R. § 75.362(a)(1). 

e. Due to the injury sustained on May 15th, Holskey missed approximately two 

weeks of work. When he returned to work, on or about May 30, 2017, Holskey 

worked two additional days. After clocking in on the evening of June 1, 2017, 

Holskey was told to go home and return on the morning of June 2, 2017. When he 

returned the next morning, Holskey was terminated, allegedly because he was a 

probationary employee. 

3. Based upon my investigation of these matters, I have concluded that Holskey’s complaint 

of discrimination was not frivolously brought. 

Application for Temporary Reinstatement, Exhibit A. 

39 FMSHRC Page 1982
Summary of Testimony 

Jonathan Holskey has approximately 14 years of coal mining experience. Tr. 14. He has 

worked as a roof bolter, continuous mine operator, face boss, second shift mine foreman, and 

lead man. Tr. 15. Holskey has Kentucky and West Virginia face bossing papers, MSHA dust 

certification, and explosive blasting certification. Tr. 15. 

Holskey began working at Pennyrile’s Riveredge Mine in late November of 2016.3 Tr. 

15-16. He first worked through GMS for roughly four months as a contractor as a continuous 

miner operator and scoop man. Tr.16. 

On March 15, 2017, Holskey was hired by Pennyrile as a continuous miner operator. Tr. 

16-17, 46-47. When hired, Holskey signed a two-sentence document, which stated: “I understand 

that if Pennyrile Energy, LLC employs me, it is on a 90-day trial period (this means 90 working 

days). If at any time during this 90 working day period either party is dissatisfied, employment 

will be terminated.” Tr. 49; RX-1. Until May 1, 2017, he worked on a rotating shift, where he 

would work two weeks on the dayshift and then two weeks on the second shift.4 Tr. 16-17, 44-

45. On May 1, Superintendent Kris Maddox asked Holskey to transfer to third shift, and Holskey 

agreed to do so.5 Tr. 17, 44-45. 

The third shift is a “dead shift,” meaning that it is used for maintenance, rock dusting, 

and setting up equipment. Tr. 18. The third shift lasts from 11 pm to 7 am, and is responsible for 

setting up the unit for the day shift. The third shift has approximately seven people, with two 

mechanics at the greaser, a lead man, and three setup guys. Tr. 109. The third shift does some 

production when “early coal” comes in at 5 am.6

 Tr. 19. Holskey testified that he was originally 

supposed to be lead man, making $28 per hour.7

 Tr. 17. The lead man is the responsible person 

 3

 The Pennyrile Mine is nonunion. Tr. 39. 

4

 Holskey misstated the date early in the hearing as June. Tr. 16-17. 

5

 Kris Maddox testified at hearing on behalf of the Respondent. Maddox worked as the 

superintendent of Riveredge Mine until a week before hearing. Tr. 102-103. At the time of 

hearing, he was general manager of the mine. Tr. 102-103. As superintendent, Maddox’s duties 

included daily operations of the mine, mine planning, and workforce. Tr. 103. 

6

 According to Holskey, “early coal” usually started at 5 am, but it could start a few hours 

earlier or later. Tr. 86-87. 

7

 Maddox described Holskey’s job as a third shift utility job, with responsibilities to help 

get the unit ready for the day shift by scooping, rock dusting, and helping move power. Tr. 108. 

Maddox testified that he never told Holskey that he would be the supervisor on that section, and 

that no one else would have the authority to assign him to be the lead man. Tr. 109. Similarly, no 

one besides Maddox could establish Holskey’s rate of pay. Tr. 110. The difference in pay 

between a miner operator and utility man is $1.50 per hour, and miners who have papers receive 

an extra 25 cents per hour. Tr. 110. 

39 FMSHRC Page 1983
on the unit; he sets up the unit, gets it ready for the day shift to run coal. Tr. 18. As the lead man, 

Holskey “took care of the miners,” by setting bits, cleaning out ductwork, and setting up in a 

fresh cut. Tr. 18. 

Holskey had two issues concerning his job on the third shift. Tr. 20. His first issue was 

that he was supposed to be a face boss, but instead was doing the work of a laborer. Tr. 20. He 

was originally told by his face boss, Matt Allen, that he would be taking the position as third 

shift face boss making $28 per hour.8

 Tr. 81. His second issue was that the shift was ordered to 

run early coal when the belts had not yet been examined and the dust parameters were not done 

correctly. Tr. 20. Holskey complained about the problems concerning belt exams and dust 

parameters every day to his face boss, Tommy Boyd. Tr. 20, 88. Boyd responded that they were 

going to do what they were instructed to do. Tr. 21. 

On the night of May 15—when Holskey’s accident occurred—Holskey had arrived at the 

unit and found the green ram car was located right behind the shack, one break outby the feeder.9

Tr. 21, 50. Holskey began by hauling rock dust from bottom to the unit using the ram car. 10 Tr. 

21, 23, 50. This entails getting a ram car and going to the bottom of the slope where the rock dust 

hole was located, loading it, and bring it to the unit. Tr. 21. 

When Holskey went to park the ram car, he hit the panic bar, which “knocked the breaker 

on the car,” and engaged an emergency disconnect that locks the car up and shuts it down 

completely. Tr. 21, 51-54. Holskey turned around in his seat, and was getting out, when the 

brakes failed and the ram car backed over top of him. Tr. 21-22. The car backed over him 

approximately one foot, dragging him under the cab of the car. Tr. 22. Holskey sustained a 

 8

 Holskey testified that at the mine, the terms “face boss” and “lead man” were used 

interchangeably. Tr. 82. 

9

 The “shack” is where the power box is located, and it serves as a gathering place. Tr. 

39. It is a physical structure, with a bench where people will sit. Tr. 39. 

10 The height in the mine is five feet. Tr. 22. The ram car is approximately 30 feet long, 

and has a bed like a pickup truck, which pivots in the middle, with the batteries that power the 

car on the other end of the vehicle. Tr. 22. The operator lays down in the compartment, with the 

controls to each side of him. Tr. 22. There is a chain on the car that goes from tire to tire, which 

smooths out the road as one is traveling back and forth. Tr. 24. 

39 FMSHRC Page 1984
crushing injury to his right foot, a deep bruise on his Achilles’ heel, a bruise on his back, and a 

puncture hole in the back of his neck.11 Tr. 23, 40. 

Holskey dragged himself out from under the ram car, and walked around the back to the 

shack. Tr. 22-23. Holskey saw his face boss, Tommy Boyd, at the shack, sitting at the feeder, 

marking up chain hangers. Tr. 23. Holskey felt nauseous, so he could not talk to Boyd, and 

instead he walked back to the shack and sat down. Tr. 23. A few minutes later, after Holskey had 

gathered his composure, he flagged Boyd down. Tr. 23. Holskey told Boyd what happed, how 

the brakes had failed and that the car backed over his foot and back and slammed him to the 

ground. Tr. 23-24. Holskey specifically complained that the brakes on the ram car failed. Tr. 24. 

Boyd responded, “Well, let’s go check it out.” Tr. 23. They went back to where the incident 

occurred, and it was visible where the chain on the car shifted back, with Holskey’s feet and 

handprints from his attempts at escape. Tr. 23-24. Boyd said, “It’s all right, Holskey. Let’s go to 

the shack and sit down and take it easy for the rest of the shift.” Tr. 23. 

Back at the shack, Holskey took off his boot and showed Boyd the swelling. Tr. 24. Boyd 

said, “Sit here for the rest of the shift and take it easy.” Tr. 24. Boyd sat in the shack for the 

remainder of that shift. Tr. 24. 

 11 Nicky Stevens testified at hearing on behalf of the Respondent. Stevens worked in 

maintenance in the third shift at Riveredge Mine. Tr. 147. He has worked in the mines for 

approximately 40 years, and worked for Pennyrile for approximately two years. Tr. 157. He was 

working at the Sebree Mine when Ricky Thorpe got crushed to death. Tr. 157. 

On May 14, the second shift called out that “the brakes were spongy” on the green ram 

car, so Chris Pettus and Stevens worked on it. Tr. 148-149. They worked on the car for 

approximately two to three hours. Tr. 151. Stevens testified that he did not witness the incident 

with Holskey and the ram car. Tr. 152. 

Stevens tested all the breaking methods in the blue ram car and they worked. Tr. 154. 

Stevens testified that there was no way that Holskey could have been driving the green car. Tr. 

155-156. Stevens had told others at the mine that he did not know how Holskey could have been 

run over by a ram car, and doubted the facts of the accident. Tr. 158. Stevens testified that he did 

not like to be around Holskey because he complains, and he could not remember if he told an 

MSHA representative that he did not like Holskey personally. Tr. 167. 

Stevens reported to Danny Young and Greg Bowser that he did not find anything wrong 

with the car Holskey was driving. Tr. 170-171. 

Greg Badertscher also testified at hearing on behalf of Respondent. Badertscher was the 

maintenance chief at the Riveredge Mine responsible for all underground maintenance, repair, 

and upkeep of the cars and equipment. Tr. 172-173. Badertscher further cast doubt on Holskey’s 

account of the accident. Tr. 172-183. 

39 FMSHRC Page 1985
The next day, Holskey came into work, but could not work. Tr. 25. Boyd told Holskey, 

“Just come on, you can sit at the shack and take it easy.” Tr. 25. So, on the night of May 16, 

Holskey sat in the shack and did not do anything until 5 am. Tr. 25. At that time, Boyd had to 

leave work, and Holskey assumed the responsibilities of the face boss. Tr. 25. These included the 

pre-shift examinations and dust parameters. Tr. 25. Holskey told Boyd and third shift mine 

foreman Matt Greer that he wasn’t comfortable with the dust parameters because he had never 

been trained or performed a Pitot reading.12 Tr. 25, 40. Greer responded that Holskey should just 

do the best he could. Tr. 25. 

At approximately 6:55 am, Holskey went outside and saw that Boyd was still there. Tr. 

26. Holskey went to retrieve an accident report, and testified that he “[caught] grief” from 

Superintendent Kris Maddox and Susan Dixon from HR. Tr. 26-27. They did not want Holskey 

to fill out the accident report or go to his doctor. Tr. 41. At first, they refused to show Holskey 

where the accident reports were located, but eventually they showed him. Tr. 41. Holskey asked 

Boyd to sign it, but Boyd said that he would fill it out while Boyd talked to the MSHA 

inspector.13 Tr. 27. Holskey had to sign it quickly because Boyd was in a rush to leave to his 

daughter’s graduation. Tr. 61. Holskey testified that he did not have an opportunity to review the 

accident report. Tr. 61. Holskey then went to Maddox and Dixon to discuss which doctor 

Holskey would see. Tr. 27. They wanted Holskey to see a doctor in Madisonville, and Holskey 

wanted to see a doctor in the same facility closer to his house in Owensboro. Tr. 27. 

After the conversation with Maddox and Dixon, Holskey went straight to the urgent care 

clinic, where the doctor put Holskey in an orthopedic boot, took x-rays, explained his injuries, 

and sent him home. Tr. 29. The doctor told Holskey to continue to wear the boot, and that the 

more he walked on it the better he’d work it out. Tr. 29. 

When Holskey went to work that night, a safety man called “Slick” Burnet met him at the 

time clock and asked Holskey for his papers. Tr. 29. Holskey handed them to Burnet, and Burnet 

said, “Well, I got to call Keith [Whitehouse] because you got some restrictions.” Tr. 29. 

Whitehouse said that because of Holskey’s restrictions, he couldn’t work that night, so Holskey 

went home. Tr. 30. 

The next morning, Holskey went back to the doctor to try to get some of the safety 

restrictions lifted. Tr. 30. Holskey continued going to the doctor every third day, because he felt 

that his injuries were getting better. Tr. 31. On Friday, the doctor told Holskey that if he wanted 

to be released to go back to work Sunday night, he would sign the release. Tr. 31. On Sunday 

night, Holskey was preparing to go back to work, but his foot was still giving him some issues, 

 12 The dust parameters were required under the mine’s ventilation plan. Tr. 26. The Pitot 

reading is necessary because there must be a certain amount of air going through the scrubber for 

the dust parameter in order to mine coal. Tr. 40. The scrubber is the exhausting system for the 

continuous miner that gathers dust out of the atmosphere. Tr. 40. 

13 On that day’s day shift MSHA had two dust samplers coming in to run dust. Tr. 26. 

39 FMSHRC Page 1986
so he went back to the doctor on Monday and the doctor placed Holskey back on the 

restrictions.14 Tr. 31. 

Approximately one week after the injury, Holskey was released back to work, but he was 

not able to perform work because he still had to wear the boot and elevate his foot with ice. Tr. 

32. Holskey’s foot was so swollen that the doctor was considering lancing it open in order to 

relieve the swelling. Tr. 33. 

On May 30, Holskey was released to work a second time. Tr. 33-34. When he returned, 

he was taken off the unit and put on rock dusting. Tr. 34. It was unusual for Holskey to perform 

this type of work, because the entire time he worked at the mine he worked with the miner. Tr. 

34. 

Holskey worked two shifts. Tr. 35. When he arrived for his third shift following his 

release back to work, Matt Greer, the third shift foreman met Holskey at his basket and told him 

to go home and come in the next day at 10 am. Tr. 35. 

The following day, Holskey arrived to the mine at 10 am, and went to Kris Maddox’s 

office, where Maddox, Dixon, day shift mine foreman Wyatt Oates, and maybe Whitehouse were 

sitting. Tr. 35-36. No one said anything to Holskey, but instead slid a paper across the desk to 

him. Tr. 36; GX-1. Holskey picked up the paper and read it, and asked Maddox, “Is this because 

of the accident?” Tr. 36. Maddox replied, “No.” Tr. 36. 

The letter stated in pertinent part, “Effective 6/2/2017, your employment with Pennyrile 

Energy is terminated. The basis for your termination is the established policy of the Probationary 

Period Clause.”15 Tr. 37; GX-1. Holskey was not provided an explanation for the termination by 

anyone in the room. Tr. 37. Holskey said, “Okay,” and left to clean out his basket. Tr. 36. 

Holskey was not provided any further reasons for the termination or any further information 

about the probationary period. Tr. 38. Maddox testified that he told Holskey, “that it wasn’t 

working out with us and it wasn’t working out with him, so I was just going to let him go due to 

the probationary period.” Tr. 119-120. 

Maddox was involved in both the hiring and firing processes. Tr. 103. Maddox testified 

that no subordinates had authority to assign people positions or pay. Tr. 103. When employees 

 14 During this time period, Holskey wore the boot intermittently because the doctor said 

that Holskey needed to walk on his foot, and said he should wear the boot on an as-needed basis. 

Tr. 65. 

15 Maddox told Dixon that Holskey was being terminated because he “could not perform 

his job duties, cuts a bunch of cables, and can’t get along with others,” and she typed the 

termination letter. Tr. 132. Nothing in the termination letter mentions these reasons. Tr. 133. 

39 FMSHRC Page 1987
are hired, they are placed on a 90-day trial or probationary period.16 Tr. 104. Maddox testified 

that the policy is explained to new employees during orientation. Tr. 105. Maddox testified that 

he has terminated approximately four or five other probationary employees. Tr. 114-115. 

Maddox testified that Holskey’s performance while he was at GMS was “very good.” Tr. 

105. However, when he was hired full time by Pennyrile, “his work performance laxed.” Tr. 105. 

Maddox testified that Holskey began “getting a lot of miner cables,” and that he was sometimes 

absent from his miner. Tr. 106. This information came from Holskey’s direct supervisor, Matt 

Allen. Tr. 106. Maddox testified that Holskey was moved to third shift around May 1 because 

Allen told Oates that “he was tired of chasing Holskey around the unit to get him to his job.” Tr. 

107. Additionally, Maddox testified that Holskey had asked Maddox to be moved to third shift. 

Tr. 107. Maddox stated that he did not terminate Holskey’s employment at that time because 

“you want to give somebody a chance to be put in another position so they maybe excel better at 

that position.” Tr. 107. 

Maddox testified that on Holskey’s second night on the third shift he received complaints 

that Holskey “was acting like the mine foreman.” Tr. 110. Maddox testified that he had a 

conversation with Holskey to tell him that Boyd was the boss.17 Tr. 110. Maddox further testified 

that Holskey had a conversation with Maddox stating that he wanted to run coal early, and that 

he would pre-shift the belts.18 Tr. 111. Maddox replied, “No. I don’t want—I don’t want that. I 

want the unit set up ready to go at 7:00, and we can start loading. I don’t want early coal.” Tr. 

111. Maddox said this because he wants “to give the third shift the opportunity to make sure 

everything is right.”19 Tr. 112. Maddox testified coal production usually starts at approximately 

7:00 am. Tr. 111. Third shift stays for approximately 30 minutes until dayshift gets there. Tr. 

111-112. 

Pennyrile sometimes issues written warnings, and has an employee handbook. Tr. 125. 

They also sometimes reduce oral warnings to writing. Tr. 126. Holskey was never written up for 

allegedly cutting the miner cable, but Maddox testified that he was “talked to.” Tr. 126. 

Similarly, he was not written up for being absent from the miner, but he was “talked to.” Tr. 126. 

Similarly, he was not written up for “acting like a boss,” but Maddox testified that he was 

“talked to.” Tr. 127. Maddox testified that “everybody” was coming into his office complaining 

about Holskey. Tr. 129. However, when asked to name any miners who complained about 

Holskey, Maddox could only remember Boyd. Tr. 129. Maddox had no written documentation or 

recollection of anyone complaining about not working well with Holskey, other than Boyd. Tr. 

128-130. There was also no documentation for any of the previous problems of Holskey’s that 

 16 Maddox testified that during the probationary period, an employee can be fired for any 

reason or no reason at all. Tr. 137. Maddox also testified that after the probationary period an 

employee can be fired for any reason or no reason at all. Tr. 137. 

17 Holskey denied that such a conversation took place. Tr. 90. 

18 Holskey denied that such a conversation took place. Tr. 89-90.

19 Holskey denied that such a conversation took place. Tr. 89-90.

39 FMSHRC Page 1988
Maddox described. Tr. 128. Maddox never told Holskey that he would be discharged or 

terminated for any of his conduct. Tr. 130-131. There are no written warnings or documentation 

of any problems in Holskey’s personnel file. Tr. 131. 

Maddox testified that he had discussions with Oates on May 12 about Holskey, and that 

they were “probably going to let Mr. Holskey go.” Tr. 114. His decision was also based on 

discussions with Boyd, Allen, Whitehouse, and Greer. Tr. 125. The decision to fire Holskey was 

“because of the cables, poor work performance, not working well with the others.” Tr. 114. 

Maddox testified that he never heard about any safety complaints from Holskey, and that the 

accident report did not factor into his decision to fire Holskey.20 Tr. 120. Maddox testified that 

Holskey was not physically on the property on May 12, and that when he terminates the 

employment of someone during the probationary period, “I have to make sure that he’s on 

property.” Tr. 114. On cross examination, Maddox admitted that nothing prevented him from 

firing Holskey during the three-week period between May 12 and June 2. Tr. 121-122. 

Maddox testified that he did not want to fire Holskey on May 15 because Holskey had 

filled out an accident report that day, but the accident report was not filled out until a few hours 

into Maddox’s shift. Tr. 123. Maddox did not have a reason for not terminating Holskey on May 

16, when Holskey came into work. Tr. 124. Maddox testified that he did not fire Holskey when 

he returned to work two more shifts starting on May 30, because he “just tried to let him work to 

finish the week out.” Tr. 124. When it was pointed out to Maddox that those two shifts fell on a 

Tuesday and Wednesday, and asked “how is that finishing the week out?” Maddox simply 

responded, “I don’t know.” Tr. 124. 

Contentions 

The Complainant, through the Secretary and private counsel, argue that Holskey has met 

his burden of establishing that his complaints are non-frivolous, and as a result he should be 

temporarily reinstated. The Complainant highlights his protected activities of daily complaints 

concerning walking the belts on the third shift, his accident report, complaints about the brakes 

on the ram car, and his complaint that he did not know how to do the required Pitot readings. 

Holskey’s termination followed shortly after these protected activities, and the Complainant 

argues there was knowledge and animus towards the protected activities. 

Respondent Pennyrile argues that Holskey was terminated because he cut the cables too 

often, had poor work performance, and was not working well with others. The Respondent 

argues that the 90-day probation policy permitted the operator to fire Holskey for any reason. 

20 Maddox testified that Pennyrile’s policy on reporting accidents at the mine are to report 

them immediately to the direct supervisor. Tr. 115. He testified that approximately 30 accidents 

reported by employees, and that none of these employees were fired. Tr. 115, 121. He further 

pointed out that Holskey was not fired after filling out his accident report in March. Tr. 120-121. 

39 FMSHRC Page 1989
Analysis 

The scope of this proceeding is narrow. Credibility determinations are not made; 

conflicts in testimony are not resolved. It is well recognized by the Courts that the Secretary’s 

burden is “relatively insubstantial”. For example, beyond the scope of the hearing is testimony 

and/or documentary evidence that the adverse action was justified by unprotected activity alone 

or was also motivated by unprotected activity or other non-discriminatory grounds. For the 

reasons set forth below, I find that the record presents a reasonable cause to believe the instant 

Discrimination Complaint was not frivolously brought. 

Holskey Engaged in Protected Activity 

The record contains evidence of multiple complaints and actions over a short time 

period that each constituted protected activities. First, after Holskey was transferred to the third 

shift on May 1, 2017, he began complaining daily to his face boss, Tommy Boyd, that the belts 

had not yet been examined and the dust parameters were not performed correctly as required by 

the ventilation plan. Tr. 20, 88. There is no question that such safety complaints constitute 

protected activity under the Mine Act. Indeed, Section 105(c)(1) explicitly states that a miner 

shall not be discriminated against because such miner “has filed or made a complaint under or 

related to this Act, including a complaint notifying the operator or the operator’s agent...of an 

alleged danger or safety or health violation in a coal or other mine.” 30 USC §815(c)(1). 

Holskey’s daily complaints concerned health and safety matters that he believed were a 

violation of the Act. 

Second, after being crushed by the ram car on the night of May 15, Holskey reported the 

accident and injury to Boyd. The Commission has held that the act of reporting an injury is a 

protected activity under §105(c), and explained that such reporting is integral to the proper 

functioning of the Act. See Swift, Snyder, and Cunningham v. Consolidation Coal Co., 16 

FMSHRC 201, 205 (Feb. 14, 1994).21 Third, Holskey signed an accident report and submitted it 

to management. Tr. 27, 61. 

21 In Swift, the Commission stated: 

We affirm the judge's conclusion that a miner's reporting of injuries to an operator 

constitutes protected activity. Section 2(e) of the Act provides that “operators of 

... mines with the assistance of the miners have the primary responsibility to 

prevent the existence of [unsafe and unhealthful] conditions and practices in such 

mines.” 30 U.S.C. § 801(e). In order to carry out this responsibility, mine 

operators need to know about unsafe conditions that cause accidents and injuries. 

Further, accurate information must be gathered by operators in order to comply 

with the Secretary's regulations at 30 C.F.R. Part 50 (1993), requiring operators to 

file with MSHA reports of all accidents and injuries that occur at mines. 

Operators can be fully informed about accidents and injuries only with the 

cooperation of miners. Therefore, taking adverse actions against miners for their 

(continued...) 

39 FMSHRC Page 1990
Fourth, after the accident, Holskey complained to Boyd that the brakes on the ram car 

failed. Tr. 24. This safety complaint constituted a protected activity under the Act. 

Fifth, on May 16, 2017, when Holskey was ordered to perform the dust parameters, he 

told Boyd and Greer that he was not comfortable performing the Pitot readings because he had 

never been trained on how to do them. Tr. 25-26, 40. This statement constituted a health and 

safety complaint. It is unclear from the record if Holskey ended up performing the Pitot readings, 

but if he refused to do work that he considered unsafe, then it also constituted a protected work 

refusal. 

Each of these safety complaints and accident reports constituted protected activities under 

the Act. 30 U.S.C. §815(c)(1). 

21 (... continued) 

reporting of injuries would restrict the free flow of information and compromise 

accurate reporting and mine safety. 

We reject the operators' contention that the act of reporting a personal injury 

would qualify as protected activity only if the report contains a safety complaint; 

this approach takes too narrow a view of such reports. The legislative history of 

the Act makes clear the intent of Congress that protected rights are to be 

construed expansively. See S. Rep. No. 181, 95th Cong., 1st Sess. 36 

(1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety 

and Health Act of 1977, at 624 (1978) (“Legis. Hist.”). 

The right to report injuries, however, carries with it a corresponding responsibility 

that miners report injuries and accidents. The legislative history of the Act shows 

that Congress provided protection to miners against discrimination in order to 

encourage their active role in enhancing mine safety: 

If our national mine safety and health program is to be truly 

effective, miners will have to play an active part in the 

enforcement of the Act.... [I]f miners are to be encouraged to be 

active in matters of safety and health, they must be protected 

against any possible discrimination which they might suffer as a 

result of their participation. 

Legis. Hist. at 623. 

Swift, Snyder, and Cunningham v. Consolidation Coal Co., 16 FMSHRC 201, 205 (Feb. 14, 

1994). 

39 FMSHRC Page 1991
Holskey Suffered an Adverse Employment Action

 On June 2, 2017, Holskey went to Maddox’s office, and met with Maddox, Dixon, Oates, 

and perhaps Whitehouse. Tr. 35-36. Nothing was said to Holskey, but he was handed a letter that 

terminated his employment. Tr. 36; GX-1. The basis for the termination, as explained in the 

letter, was “the established policy of the Probationary Period Clause.” GX-1. Holskey was not 

provided any other reason for his termination. Tr. 38. The Act clearly states that a discharge is an 

adverse employment action. 30 USC §815(c)(1). 

A Nexus Existed Between the Protected Activity and the Adverse Employment Action 

 As discussed supra, to obtain a temporary reinstatement a miner must raise a nonfrivolous claim that he engaged in protected activity with a connection, or nexus, to an adverse 

employment action. Having concluded that Holskey engaged in protected activities and suffered 

an adverse employment action, the examination now turns to whether those activities have a 

connection, or nexus, to the subsequent adverse action. The Commission recognizes that direct 

proof of discriminatory intent is often not available and that the nexus between protected activity 

and the alleged discrimination must often be drawn by inference from circumstantial evidence 

rather than from direct evidence. Phelps Dodge Corp., 3 FMSHRC at 2510. The Commission has 

identified several circumstantial indicia of discriminatory intent, including: (1) hostility or 

animus toward the protected activity; (2) knowledge of the protected activity; (3) coincidence in 

time between the protected activity and the adverse action; and (4) disparate treatment of the 

Complainant. See, e.g., CAM Mining, LLC, 31 FMSHRC at 1089; see also, Phelps Dodge Corp., 

3 FMSHRC at 2510. 

 Knowledge of the protected activity 

 According to the Commission, “the Secretary need not prove that the operator has 

knowledge of the Complainant's activity in a temporary reinstatement proceeding, only that there 

is a non-frivolous issue as to knowledge.” CAM Mining, LLC, 31 FMSHRC at 1090, citing 

Chicopee Coal Co., 21 FMSHRC at 719. In the instant matter, there is sufficient evidence of 

knowledge by Pennyrile of the various protected activities to meet the evidentiary threshold. 

 Holskey’s daily complaints about the dust parameters, not walking the belts for the third 

shift, the faulty brakes on the ram car, the accident, and his lack of training on the Pitot readings 

were made to his face boss, Tommy Boyd. Tr. Tr. 20-21, 23-24, 25, 27. Furthermore, Holskey 

asked Maddox and Dixon for a blank accident report to fill out. Tr. 26-27. Maddox testified that 

he was aware of the accident report as soon as it had been filled out. Tr. 123. Therefore, the 

Respondent had knowledge about each of Holskey’s protected activities. 

 

 Coincidence in time between the protected activity and the adverse action 

 The Commission has accepted substantial gaps between the last protected activity and the 

adverse employment action. See e.g. CAM Mining, LLC, 31 FMSHRC at 1090 (three weeks) 

and Sec'y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan. 1999) (a 

16-month gap existed between the miners' contact with MSHA and the operator's failure to recall 

39 FMSHRC Page 1992
miners from a lay-off; however, only one month separated MSHA's issuance of a penalty 

resulting from the miners' notification of a violation and that recall failure). The Commission has 

stated “We ‘appl[y] no hard and fast criteria in determining coincidence in time between 

protected activity and subsequent adverse action when assessing an illegal motive. Surrounding 

factors and circumstances may influence the effect to be given to such coincidence in time.”’ All 

American Asphalt, 21 FMSHRC 34 at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 

523, 531 (Apr. 1991). 

 In the instant matter, extremely close proximity in time between the protected activities 

and the adverse actions greatly favors a finding that a nexus existed between the protected 

activities and the adverse actions. The protected activities at issue here began on May 1, with 

Holskey’s daily complaints to Boyd about the dust parameters and belt. Tr. 20. The other 

protected activities surrounding the accident all occurred on May 15 and May 16. Holskey was 

terminated on June 2. Tr. 35-36. Therefore, the timespan between the termination and the 

protected activities ranged from 17 to 32 days. 

 Hostility or animus towards the protected activity 

 The Commission has held, “[h]ostility towards protected activity-- sometimes referred to 

as ‘animus'--is another circumstantial factor pointing to discriminatory motivation. The more 

such animus is specifically directed towards the alleged discriminatee's protected activity, the 

more probative weight it carries.” Secretary of Labor on behalf of Chacon v. Phelps Dodge 

Corporation, 3 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted). 

 

 Although a single instance, even circumstantial in nature would suffice, here there are 

several indications of animus. Boyd repeatedly disregarded Holskey’s health and safety 

complaints in a manner that bordered on contempt. In response to Holskey’s daily complaints 

about the dust parameters and belt examinations, Boyd told Holskey to simply do what they were 

instructed to do. Tr. 20-21. Following Holskey’s accident with the ram car, where Holskey had 

his foot crushed, his heel and back bruised, and a puncture hole in the back of his neck, Boyd 

simply told Holskey to “sit down and take it easy for the rest of the shift.” Tr. 23, 40. When 

Holskey complained to Boyd and Greer that he felt uncomfortable doing the Pitot readings 

because he had not been trained, Greer responded that Holskey should just do the best he can. Tr. 

26. Furthermore, when Holskey asked Maddox and Dixon for a blank accident report in order to 

report his ram car accident, they initially refused to tell Holskey where they were kept. Tr. 41. 

These responses to Holskey’s complaints and accident reports evidence animus towards 

Holskey’s protected activities.22 

 22 The Respondent’s presentation of Nicky Stevens and Greg Badertscher further 

illustrate animus towards Holskey’s protected activity of making an accident report. These 

witnesses had no relevant information to offer concerning any argument or defense by 

Respondent, but instead simply insinuated that Holskey’s accident report was untrue. 

Respondent’s defense that Holskey’s termination was wholly unrelated to the accident or 

accident report was belied by the presentation of these witnesses. 

39 FMSHRC Page 1993
 Disparate treatment 

 “Typical forms of disparate treatment are encountered where employees guilty of the 

same, or more serious, offenses than the alleged discriminatee escape the disciplinary fate which 

befalls the latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2512 (Nov. 1981). The Commission has previously held that evidence of disparate 

treatment is not necessary to prove a prima facie claim of discrimination when the other indicia 

of discriminatory intent are present. Id. at 2510-2513. 

 Maddox testified that approximately 30 employees that made safety complaints were not 

fired, and that Holskey was not fired after his accident report in March. Tr. 115, 120-121. These 

statements, without more information in terms of the nature of the other safety complaints, or 

other employees who made complaints that were fired, is not sufficient to make a determination 

on disparate treatment. 

The Respondent’s Reliance on the Probation Policy is Misplaced 

 The Respondent’s central argument was that because the signed probationary policy 

states that they were permitted to terminate a new employee’s employment for any or no reason 

within 90 days, the termination of Holskey was permissible. Pennyrile’s Riveredge Mine is a 

non-union mine, and all employees are at-will. Tr. 39. Maddox testified that all miners at 

Pennyrile, whether in the probationary period or not, may be fired for any reason or no reason. 

Tr. 137. Respondent’s counsel further argued that as a matter of employment law, probationary 

employees have fewer rights than permanent employees. Tr. 192-196. 

 While Pennyrile may be able to fire any at-will or probationary employee for any legal

reason, it cannot rely on a signed policy to terminate an employee for reasons impermissible by 

law. A host of labor, employment, civil right, health and safety, whistleblower, and other laws 

protect employees in the workplace, and no policy or signed agreement can permit the company 

to violate those laws. The probationary policy does not and cannot negate any provision of the 

Mine Act, and the company may not force employees to sign away any rights under the Mine 

Act as a condition of employment. Therefore, any reading of the probation policy that includes 

protected activities is impermissible. 

 The Respondent’s reliance on the probationary policy is misplaced. The Respondent may 

be permitted to terminate the employment of employees for any legal reason, but it cannot use 

the policy to terminate employment for illegal reasons. Therefore, the argument by Maddox and 

by Respondent’s counsel that Holskey was fired because of the probationary policy does not 

negate the necessity of an inquiry as to whether Holskey has made a non-frivolous complaint of 

discrimination under §105(c) of the Act. 

Conclusion 

 In concluding that Holskey’s complaint herein was not frivolously brought, I find that 

there is reason to believe he engaged in protected activities, and that there was a nexus between 

39 FMSHRC Page 1994
the protected activities and his termination. Miner Jonathan Holskey is entitled to Temporary 

Reinstatement under the provisions of Section 105(c) of the Act. 

ORDER 

It is hereby ORDERED that Jonathan Holskey be immediately TEMPORARILY 

REINSTATED to his former job with Pennyrile Energy at the Riveredge Mine at his former rate 

of pay, overtime, and all benefits he was receiving at the time of his termination. 

This Order SHALL remain in effect until such time as there is a final determination in 

this matter by hearing and decision, approval of settlement, or other order of this court or the 

Commission. 

 I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. § 2700.45(e) 

(4). The Secretary SHALL provide a report on the status of the underlying discrimination 

complaint as soon as possible. Counsel for the Secretary SHALL also immediately notify my 

office of any settlement or of any determination that Respondents did not violate Section 105(c) 

of the Act. 

 /s/ Kenneth R. Andrews 

Kenneth R. Andrews 

 Administrative Law Judge 

Distribution (Via E-mail and Certified Mail): 

Thomas Motzny, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 Motzny.Thomas.J@dol.gov

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 tonyoppegard@gmail.com

Mark E. Heath, Esq. & Denise Smith, Esq., Counsel for Pennyrile Energy, LLC, Spilman, 

Thomas & Battle, PLLC, P.O. Box 273, 300 Kanawha Boulevard, East, Charleston, WV 25329 

mheath@spilmanlaw.com

39 FMSHRC Page 1995

ADMINISTRATIVE LAW JUDGE ORDERS
39 FMSHRC Page 1996
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

303-844-3577/FAX 303-844-5268

October 16, 2017

ORDER HOLDING THAT SUBJECT EMAIL 

IS NOT PROTECED BY THE ATTORNEY-CLIENT PRIVILEGE 

This matter is before me on a complaint of discrimination filed by the Secretary of Labor 

(“Secretary”) on behalf of Louis Silva, Jr. pursuant to section 105(c)(2) of the Federal Mine 

Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(2), against Aggregate Industries 

WRC, Inc. (“Aggregate Industries”). Silva was terminated from his position as a Quality Control 

Technician at the Morrison Plant on or about January 19, 2017. 

During a deposition of Al Quist, taken on or about September 29, 2017, counsel for the 

Secretary presented the witness with a copy of an email Quist sent on March 2, 2017, in response 

to an email sent to him on March 1 by William Doran of the law firm of Ogletree Deakins. Quist 

is the safety manager at the Morrison Plant. The emails were sent in response to the Secretary’s 

Application for Temporary Reinstatement that had been filed with the Commission on or about 

February 28, 2017, Docket No. WEST 2017-265-DM.1 Doran, who is an attorney for Aggregate 

Industries, attached a copy of the Application for Temporary Reinstatement to the email he sent 

to Quist. The emails were provided to counsel for the Secretary by Aggregate Industries during 

discovery in the present discrimination case. 

Matthew Linton, also with Ogletree Deakins, represented Aggregate Industries at the 

deposition. When Linton saw the email, he objected to its use on the basis that it was 

inadvertently disclosed to the Secretary during discovery. He stated that the email was protected 

by the attorney-client privilege and noted that it stated, in a large font at the top of the email, 

“Privileged and Confidential – Attorney Work Product.” Linton told counsel for the Secretary 

and David Lichtenstein, counsel for Silva, that he wanted the email destroyed or returned to him. 

He relied upon Rule 502(b) of the Federal Rules of Evidence. Counsel for Complainant agreed to 

sequester the email during the course of the deposition.

1

 The temporary reinstatement case was resolved when I granted the parties’ joint motion 

to approve the terms of their agreement on economic reinstatement by order dated March 20, 

2017. 

SECRETARY OF LABOR, MSHA on 

behalf of LOUIS SILVA JR., 

 Complainant 

v. 

AGGREGATE INDUSTRIES WRC, 

INC., 

 Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2017-0482-DM 

RM-MD-17-05 

Mine: Morrison Plant 

Mine ID: 05-00864 

39 FMSHRC Page 1997
The parties were not able to resolve the dispute concerning the email in the week or so 

following the deposition. Counsel asked that I hold a conference call during which they could 

present their argument to me with the understanding that I would resolve the issues surrounding 

the email. They stated that they needed a quick resolution because additional depositions are 

scheduled for October 17 and 19.2

 Two issues were presented to me during the conference call, as follows: (1) is the email 

sent by Quist dated March 1, 2017 protected by attorney-client privilege and, if so, (2) was the 

privilege waived when the email was provided to the Secretary during discovery? Issues of 

waiver are governed by Rule 502(b) of the Federal Rules of Evidence and Rule 26(b)(5)(B) of 

the Federal Rules of Civil Procedure. Although these rules are not binding on the Commission, 

they codify generally accepted evidentiary and procedural principles. 

Attorney-Client Privilege 

 For the reasons set forth below, I find that the email in question is not protected by the 

attorney-client privilege.3

 The portion of the email that is the subject of the dispute is not 

Doran’s email to Quist, but Quist’s response. The email sets forth Quist’s opinion that Aggregate 

Industries should “fight” the temporary reinstatement case and, presumably, the underlying 

discrimination case. It was not a confidential communication from Quist to Doran or any other 

attorney directing him to pursue the case and it does not discuss strategy for litigating the issues. 

It does contain Quist’s opinions about Silva’s discrimination complaint. 

 I reach this conclusion for a number of reasons. The email was sent to nine individuals, 

most of whom were not attorneys. It was presented as “news” from Doran. It was addressed, 

“Dear All.” Doran was not listed in the “To:” line of the email but in the “Cc:” line. Quist sent 

the subject email to management officials, including two in-house counsel, stating that the 

company should fight Silva’s claims. A document is not protected by the privilege just because 

one or more attorneys are listed as recipients of a document. This email was not directed to 

counsel for the company in confidence with instructions or information about the litigation but 

was an email notifying management of the litigation and asking them to read the attached 

Application for Temporary Reinstatement. The email was an announcement telling management 

that the Secretary filed an application for temporary reinstatement; it was not a confidential 

communication between Aggregate Industries and its attorneys. The fact that the top of the email 

contained language asserting that it is privileged and confidential is not controlling. In reaching 

 2

 The description of the events at the deposition of Quist was provided to me during the 

conference call held on October 13, 2017. The parties also presented oral argument on the legal 

issues raised herein. 

3

 At my request, a copy of the email was provided to me by Linton for my in-camera 

review. I placed this email under seal and it remains under seal in the event Aggregate Industries 

wishes to file a petition for interlocutory review of this order under 29 C.F.R. § 2700.76. Such 

review is not a matter of right. I also had a recording made of the conference call which shall 

also remain confidential. 

39 FMSHRC Page 1998
this conclusion, I reject Aggregate Industries’ argument that the email was a protected 

communication between Quist and Aggregate Industries’ in-house and outside counsel. 

 The email does not include legal advice, an attorney’s impressions of the case, or a 

discussion of confidential facts or strategy from the client. Commission Judge Margaret Miller, 

in BHP Copper, Inc., 38 FMSHRC 893, 897-99 (April 2016), discussed the eligibility 

requirements that the Commission has relied upon in analyzing attorney-client communication 

issues. I relied upon these eligibility requirements in finding that the document is not protected. 

To be protected, the communication must relate to a “fact of which the attorney was informed (a) 

by his client, (b) without the presence of strangers (c) for the purpose of securing primarily either 

(i) an opinion on law or (ii) legal service or (iii) assistance in some legal proceeding.” Id. 

(citations omitted). Although a corporate client is not just one person, I find that, upon review of 

its wide distribution to lower level Morrison Plant supervisors as well as its contents, the email in 

question does not meet this requirement. This email was not sent for the purpose of obtaining an 

opinion of law, legal advice, or retaining the services of the law firm of Ogletree Deakins. 

In addition, as Judge Miller stated, although a client may not be compelled to answer the 

question, “What did you say or write to your attorney?” he may not refuse to disclose relevant 

facts within his knowledge merely because he incorporated a statement of such fact into his 

communication with his attorney, whether in-house or outside counsel. Id. at 898. I hold that the 

email was not protected by the attorney-client privilege but, if it was, Quist could still be 

required to answer deposition questions about his knowledge of facts regarding Silva’s 

discrimination complaint, and his state of mind at the time of Silva’s termination and at the time 

the Secretary filed the temporary reinstatement application and complaint of discrimination. 

Other deposition witnesses can be asked these questions as well. 

 Because I find that the email in question is not protected by the attorney-client privilege, I 

need not reach the issue whether the email should be destroyed or returned under Fed. R. Evid. 

502(b) and Fed. R, Civ. P. 26(b)(5)(B). 

ORDER 

 Based on information and argument provided during the conference call held with 

counsel and my in-camera review of the disputed email, I hold that the email in question is not 

protected by the attorney-client privilege. Nevertheless, given the importance of the attorneyclient privilege, the email shall remain sequestered to give Aggregate Industries an opportunity 

to file a petition for interlocutory review, if it so desires. If it seeks such review, it shall do so as 

quickly as possible. 

 /s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

39 FMSHRC Page 1999
Distribution: 

Matthew M. Linton, Ogletree, Deakins, Nash, Smoak & Stewart, PC, 1700 Lincoln Street, 

Suite 4650, Denver, Colorado 80203 matthew.linton@ogletree.com

Karen W. Bobela, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer 

Boulevard, Suite 515, Denver, CO 80204 Bobela.Karen.E@dol.gov

David Lichtenstein, Esq., Law Office of David Lichtenstein, LLC, 1556 Williams Street, Suite 

100, Denver, CO 80218 Dave@lichtensteinlaw.com 

RWM 

39 FMSHRC Page 2000
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

October 24, 2017 

 

ORDER DISSOLVING 

GRANT OF TEMPORARY REINSTATEMENT

Before: Judge Feldman 

 This temporary reinstatement proceeding is based on an application for temporary 

reinstatement filed on June 7, 2017, pursuant to section 105(c)(2) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815(c)(2) (“Act” or “Mine Act”), by the Secretary of Labor 

(“Secretary”) on behalf of Stacey Wayne Puckett against Panther Creek Mining, LLC (“Panther 

Creek”). Under section 105(c)(2), “if the Secretary finds that [the underlying discrimination] 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the reinstatement of the miner pending final order on the complaint.” 

30 U.S.C. § 815(c)(2). 

The Secretary’s temporary reinstatement application was supported by a sworn affidavit 

by a Mine Safety and Health Administration (“MSHA”) Special Investigator that Puckett was 

terminated shortly after he was questioned regarding a section 110(c) investigation at the 

American Eagle Mine. Panther Creek did not deny that the subject interaction with the Special 

Investigator had occurred, arguing instead that it was unaware of any communication between 

Puckett and the MSHA investigator. The Secretary’s reinstatement application was summarily 

granted on July 12, 2017. Sec’y of Labor on behalf of Puckett v. Panther Creek Mining, LLC, 

39 FMSHRC 1406 (July 2017). The Order of Temporary Reinstatement was subsequently 

modified by the grant of economic reinstatement as agreed upon by the parties. Amendment of 

Order of Temporary Reinstatement, 39 FMSHRC ___ (Aug. 22, 2017). The modified order 

noted that continued economic reinstatement was contingent on the Secretary’s prosecution, 

pursuant to section 105(c)(2) of the Mine Act, of Puckett’s discrimination complaint. Id.

Panther Creek has now filed an October 19, 2017, motion to vacate Puckett’s economic 

reinstatement based on correspondence dated October 12, 2017, in which MSHA advised Puckett 

that MSHA’s investigation failed to reveal “sufficient evidence to establish, by a preponderance 

of the evidence[,] that a violation of Section 105(c) occurred.” Panther Creek Mot. to Vacate 

Order of Temporary Reinstatement, Ex. A at 1. Consequently, Puckett was advised that the 

Secretary had declined to bring a discrimination complaint on Puckett’s behalf. Id. 

SECRETARY OF LABOR, 

U.S. DEPARTMENT OF LABOR on 

behalf of STACEY WAYNE PUCKETT, 

 Complainant 

 v. 

PANTHER CREEK MINING, LLC, 

 Respondent 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. WEVA 2017-426 

Mine: American Eagle Mine 

Mine ID: 46-05437 

39 FMSHRC Page 2001
An order temporarily reinstating a miner cannot survive the Secretary of Labor’s decision 

not to proceed with the miner’s discrimination complaint under section 105(c)(2). Sec’y of Labor 

on behalf of Dunne v. Vulcan Constr. Materials, L.P., 34 FMSHRC 3070 (Dec. 2012) 

(citing 700 F.3d 297 (7th Cir. 2012)); see also North Fork Coal Corp. v. FMSHRC, 691 F.3d 

735, 744 (6th Cir. 2012). Consequently, the grant of the Secretary’s application for temporary 

reinstatement that awarded economic reinstatement shall be dissolved. 

ORDER 

 In view of the above, IT IS ORDERED that Panther Creek’s October 19, 2017, Motion 

to Vacate Order of Temporary Reinstatement IS GRANTED. Consequently, IT IS FURTHER 

ORDERED that the underlying July 12, 2017, Order Granting Temporary Reinstatement IS 

DISSOLVED effective as of the date of this Order.1

 Nothing herein shall bar the filing by 

Puckett of a discrimination complaint on his own behalf pursuant to section 105(c)(3) of the 

Mine Act. 30 U.S.C. § 815(c)(3). 

 /s/ Jerold Feldman 

Jerold Feldman 

 Administrative Law Judge 

Distribution: 

Stacy Wayne Puckett, 1016 Hopkins Road, Danville, WV 25053 (Certified Mail) 

Kathleen F. Borschow, Esq., Robert S. Wilson, Esq., Office of the Regional Solicitor, U.S. 

Department of Labor, 201 12th Street South, Arlington, VA 22202-5450 (Electronic and Certified 

Mail) 

Melanie J. Kilpatrick, Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre 

Circle, Suite 375, Lexington, KY 40513 (Electronic and Certified Mail) 

 1

 This Order dissolving Puckett’s temporary reinstatement has been served on the parties 

by electronic and certified mail. 

39 FMSHRC Page 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

PHONE: (202) 434-9933 | FAX: (202) 434-9949 

October 26, 2017 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. PENN 2017-0222 

Petitioner, A.C. No. 36-10045-442362

v. Docket No. PENN 2017-0223 

A.C. No. 36-10045-442362

CONSOL PENNSYLVANIA COAL 

 COMPANY LLC, Mine: Harvey Mine 

Respondent. 

ORDER GRANTING MOTION TO CONSOLIDATE 

Before: Judge Moran 

 The Secretary has filed a motion to consolidate these dockets.1 Respondent, 

Consolidation Pennsylvania Coal Company LLC, (“Consol Penn”), has filed a response in partial 

objection. PENN 2017-222 involves two matters; a section 104(d)(1) citation and a section 

104(d)(1) order. The first matter, Citation, No. 9076279, alleges an inadequate preshift 

examination under 30 C.F.R. §75.360(b).2

 That citation was issued on May 15, 2017 at Consol 

Penn’s Harvey Mine, by MSHA inspector Bryan Yates. In the body of that citation, the inspector 

states that the hazardous conditions constituting the basis for the inadequate preshift examination 

are referenced in Citation numbers 9076271, 9076272, 9076273, 9076274, 9076278, and Order 

number 9076280. 

That last identified alleged violation, Order number 9076280, is the second matter within 

PENN 2017-222. It is a section 104(d)(1) order, citing 30 C.F.R. § 75.400. That standard, titled 

“Accumulation of combustible materials,” provides that “Coal dust, including float coal dust 

deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned 

up and not be permitted to accumulate in active workings, or on diesel-powered and electric

1

 It is DETERMINED that the CLR is accepted to represent the Secretary in accordance 

with his notice of appearance, filed September 11, 2017. Cyprus Emerald Res. Corp., 16 

FMSHRC 2359 (Nov. 1994). 

2

 30 C.F.R. §75.360 identifies the locations where “a certified person designated by the 

operator must make a preshift examination within 3 hours preceding the beginning of any 8-hour 

interval during which any person is scheduled to work or travel underground.” Subsection (b) 

then lists 10 locations which are to be examined and an 11th provision within that subsection lists 

a number of standards that are to be included in making the preshift examination of the identified 

locations. 

39 FMSHRC Page 2003
equipment therein.” 30 C.F.R. § 75.400. Inspector Yates issued the alleged violation identified in 

Order No. 9076280, the same day, May 15, 2017, as he issued the (d)(1) citation, No. 9076279. 

 The Secretary’s Motion states that “[s]everal of the citations in PENN 2017-223 are 

referenced and directly related to the citations within [docket no. PENN 2017-222].” Motion at 

1. The Respondent’s Response concedes that five of the citations in PENN 2017-223 “either 

relate to the allegations in the Citation and Order in Docket No. PENN 2017-222, or were issued 

on the same date.” Response at 1. The five related citations are identified by the Respondent as 

Citation Nos. 9076271, 9076272, 9076274, 9076276, and 9076278. Id. 

However, Respondent contends that “the remaining citations in Docket No. PENN 2017-

223 (Citation Nos. 9076258, 9076263, 9076269, 9076268, 9076270, and 9075864) involve 

different dates, witnesses, facts and events which will distract from the issues in PENN 2017-222 

and hamper the presentation of evidence as to the May 15, 2017 inspection.” Id. 

Discussion 

 All of the citations and the one order involved in these two dockets were issued to Consol 

Penn’s Harvey Mine. In addition, all of the alleged violations were issued between May 8 and 

May 18, 2017, an 11 day span of time. Further, save one, all of the citations and the one order 

were issued by Inspector Yates and even for the one citation not issued by Yates, Citation No. 

9075864, the termination of that citation, was issued by Yates. 

As Administrative Law Judge Thomas P. McCarthy noted in Shemwell v. Armstrong 

Coal, “[g]iven the likelihood that these cases will involve similar or overlapping issues, 

witnesses, and evidence, . . . consolidation . . . would further the interests of judicial economy 

and efficiency.” Shemwell v. Armstrong Coal Co., Inc., 36 FMSHRC 2352, 2353 (Aug. 2014) 

(ALJ McCarthy); 2014 WL 4273431, at *1 (FMSHRC August 20, 2014). He further noted that 

“Commission Rule 12 states that ‘[t]he Commission and its judges may at any time, upon their 

own motion or a party's motion, order the consolidation of proceedings that involve similar 

issues.’” Id., citing 29 C.F.R. § 2700.12. The Commission has held that “[a] determination to 

consolidate lies in the sound discretion of the trial judge.” Id., citing Pennsylvania Electric 

Company, 12 FMSHRC 1562, 1565 (Aug. 1990). 

The same principles apply in this matter. There will be no distraction or hampering of the 

issues because, although the two dockets will be scheduled to be heard together, they will be 

taken seriatim, beginning with PENN 2017-0223 and followed by PENN 2017-0222. A 

conference call will be held soon to set the hearing dates for these dockets. 

39 FMSHRC Page 2004
Accordingly, upon consideration of the motion to consolidate and the response thereto, 

and in the interest of judicial economy and efficiency in resolving these dockets, it is 

ORDERED that the above-captioned dockets be CONSOLIDATED. 

SO ORDERED. 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Douglas R. Sciotto, CLR, U.S. Department of Labor, MSHA, 631 Excel Drive, Suite 100, Mt. 

Pleasant, PA 15666 

James P. Hugh, Hardy Pence PLLC, 500 Lee Street, East, Suite 701, PO Box 2548, Charleston, 

WV 25329 

/KP

39 FMSHRC Page 2005
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

October 26, 2017 

DISMISSAL ORDER 

Before: Judge Feldman 

These personal liability matters, brought pursuant to section 110(c) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 820(c) (“Mine Act” or “Act”), concern 104(d)(1) 

Citation No. 8520686 and 104(d)(1) Order No. 8520687 issued on April 26, 2013, at the Oak 

Grove Mine for impermissible coal dust accumulations and inadequate preshift examinations in 

violation of the Secretary’s mandatory safety standards in sections 75.400 and 75.360(a)(1), 

respectively.1

 30 C.F.R. §§ 75.400, 75.360(a)(1). 

During the discovery phase of this proceeding, the Respondents sought to depose a Mine 

Safety and Health Administration (“MSHA”) official familiar with MSHA’s investigative 

procedures at its Technical Compliance and Investigation Office (“TCIO”) to determine the 

 1

 104(d)(1) Citation No. 8520686 and 104(d)(1) Order No. 8520687, issued to 

Oak Grove Resources, were resolved by means of a Decision Approving Settlement issued on 

March 22, 2016. Docket Nos. SE 2014-147, SE 2014-231. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

KEITH MILLER, employed by OAK 

GROVE RESOURCES, 

 and 

CHASE GUIN, formerly employed by 

OAK GROVE RESOURCES, 

 

 and 

WILLIAM EDWARDS, employed by OAK 

GROVE RESOURCES, 

 Respondents. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2017-0092 

A.C. No. 01-00851-428926 A 

Docket No. SE 2017-0093 

A.C. No. 01-00851-428927 A 

Docket No. SE 2017-0094 

A.C. No. 01-00851-428928 A 

Mine: Oak Grove Mine 

39 FMSHRC Page 2006
reason for the approximate four year interval between the issuance of the underlying citations 

and the filing of the subject civil penalty petitions on April 13, 2017. In so doing, the 

Respondents sought to obtain relevant evidence on whether the subject petitions for civil penalty 

were filed within a “reasonable time” after issuance of a citation or termination of a relevant 

inspection or investigation, as contemplated by section 105(a) of the Act. 2 30 U.S.C. § 815(a).

On June 20, 2017, the Secretary filed a Motion for Protective Order seeking to preclude 

such discovery, arguing that the information was irrelevant and/or protected by privilege. The 

Secretary’s request for a protective order was denied. Order Denying Secretary’s Motion for 

Protective Order, 39 FMSHRC ___ (Sept. 13, 2017). 

On October 4, 2017, the Secretary filed a Notice Vacating Violations and Agreement of 

the Parties, that I construe as a motion to dismiss. Specifically, the Secretary has represented that 

he wishes to vacate 104(d)(1) Citation No. 8520686 and 104(d)(1) Order No. 8520687 with 

respect to each of the captioned respondents, and that each party agrees to bear its own fees and 

other expenses incurred in these matters. 

ORDER 

Accordingly, IT IS ORDERED that the Secretary’s request for dismissal IS 

GRANTED. Consequently, the captioned matters ARE DISMISSED. 

 /s/ Jerold Feldman 

Jerold Feldman 

 Administrative Law Judge 

 

 2

 Although section 105(a) addresses the timeframe for filing petitions for civil penalties 

filed against mine operators under section 104(a), a number of ALJ’s have found it appropriate to 

apply the “reasonable time” provision in section 105(a) to personal liability civil penalties 

proposed pursuant to section 110(c). See, e.g., White, 38 FMSHRC 1881 (July 2016) (ALJ); 

Dushane, 38 FMSHRC 1834 (July 2016) (ALJ); Trujillo, 35 FMSHRC 1485 (May 2013) (ALJ); 

Dyno Nobel East-Central Region, 35 FMSHRC 265 (Jan. 2013) (ALJ). 

39 FMSHRC Page 2007
Distribution: (Regular and Certified Mail): 

Emily O. Roberts, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Ave., Suite 

1500, Pittsburgh, PA 15222 

39 FMSHRC Page 2008
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST. SUITE 443 

DENVER, CO 80202-2500 

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

October 30, 2017 

ORDER IN RESPONSE TO REMAND 

 These consolidated cases are before me on remand from the Commission. See A&G Coal 

Corp., 39 FMSHRC __, slip op. No. VA 2014-243 et al. (Oct. 2017). On August 16, 2017, I 

issued an Order to Show Cause to A&G Coal Corporation (“A&G” or “Respondent”) because its 

representative failed to appear for a scheduled conference call to discuss lifting a stay and setting 

these dockets for hearing. Unpublished Order dated August 16, 2017. The Order gave A&G until 

August 28, 2017 to show good cause. A&G did not respond to the order and as a result I issued 

an Order of Default on August 30, 2017. On September 29, A&G filed a petition for 

discretionary review requesting relief from the default order, in which it argued it did not receive 

the show cause order and only discovered its issuance when A&G received the order of default. 

See A&G Coal Corporation Petition for Discretionary Review (“PDR”) at 3-4. 

 On review, the Commission noted a lack of clarity regarding the communication issues in 

the record and remanded the case “to determine whether relief from the default is warranted and 

for further proceedings as appropriate pursuant to the Mine Act and the Commission’s 

Procedural Rules, 29 C.F.R. Part 2700.” 39 FMSHRC __, slip op. at 3 (Oct. 2017). 

 Default is a harsh remedy, and relief may be granted and the case reopened on the basis 

of mistake, inadvertence, excusable neglect, or another reason justifying relief. See 29 C.F.R. § 

2700.1(b); Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995); Jim Walter Res., Inc., 

15 FMSHRC 782, 787 (May 1993). Issuance of such an order by the court is never done lightly 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

 

A&G COAL CORPORATION, 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. VA 2014-243 

A.C. No. 44-04534-346270 

Docket No. VA 2014-244 

A.C. No. 44-04534-346286 

Docket No. VA 2014-364 

A.C. No. 44-04534-352768 

Docket No. VA 2014-365 

A.C. No. 44-04534-353549 

Docket No. VA 2014-383 

A.C. No. 44-04534-353996 

Mine: Prep Plant #2 

39 FMSHRC Page 2009
without much thought and deliberation and certainly never with the intent of abusing discretion. 

In fact, this is the first time in my five year tenure with the agency and fifteen year career as a 

judge that I recall ever finding it necessary to issue a default order. I do, however, agree that 

certain aspects of A&G’s communicative deficiencies in these cases remain unclear and will take 

this opportunity to address some of the ambiguities within the record noted by the Commission. 

In addition, I will set the dockets for a hearing on the merits as well as on the issue of default, 

and order A&G to remedy its communicative deficiencies as specified below. 

 I first address the perceived ambiguity regarding who represented A&G throughout the 

procedural history of these matters. The cases had been stayed since 2015 pending a 110(c) 

investigation, and until early 2017, Mr. James Bowman served as A&G’s representative. On 

January 27, 2017, Mr. Bowman filed a notice of withdrawal and substitution of counsel that 

identified Mr. Billy Shelton as the Respondent’s new representative and provided his contact 

information. Notice of Withdrawal and Substitution of Counsel, filed January 27, 2017. Mr. 

Shelton did not file a formal entry of appearance as required by my prehearing order and 29 

C.F.R. § 2700.3(c). See 39 FMSHRC __, slip op. at 5 (Althen, Comm’r, concurring). 

 The court was aware of the withdrawal notice at the time of its filing and initially 

assumed that Mr. Shelton was representing A&G in these matters. The court copied Mr. Shelton 

along with representatives for the Solicitor on at least one email requesting a status update on the 

cases. See Court Email to A&G and Solicitor, sent March 20, 2017. On March 20, 2017, the 

representatives for the Solicitor notified the court that they had instead been working with Mr. 

Patrick Graham, who, according to the email, was currently representing A&G in these matters. 

Solicitor’s Email to A&G and Court, dated March 24, 2017. In step with their explanation, the 

Solicitor copied Mr. Graham’s email address to the correspondence instead of Mr. Shelton’s. Id. 

Mr. Graham did not object or redirect the court to Mr. Shelton at that time, and Mr. Shelton 

never responded to the court’s initial email. Given that no A&G representative had filed a formal 

entry of appearance or responded to the status emails, the court believed, consistent with the 

Solicitor’s email, that Mr. Graham was now acting as A&G’s representative at that time. 

 What followed were several months of intermittent emails regarding the status of these 

dockets and the accompanying 110(c) investigation. Correspondences on March 27, June 30, and 

August 4 were all sent to the Solicitor and Graham. Mr. Graham did not respond to those emails, 

nor did either party indicate that Mr. Shelton was involved in the cases. On August 7, the 

Solicitor requested a conference call with the court and Graham to discuss whether the stay 

should be lifted and a hearing date should be selected. Solicitor’s Email to Court and A&G, 

dated August 7. The court’s clerk scheduled the conference call for August 14, 2017 and 

explicitly instructed Mr. Graham to contact the court within the week prior to the call if he 

wished to reschedule. Court Email to A&G and Solicitor, dated Aug. 7, 2017. Mr. Graham did 

not respond, and so the court concluded that the appointment time was acceptable to the parties. 

 The court decided that a show cause order was necessary when A&G did not appear for 

the August 14 conference call. Mr. Graham later stated that he was underground at the time of 

the conference call, which accounts for why he did not answer the attempts by the court and 

Solicitor to contact him while on the line for the conference call. See Aff. of Patrick Graham at 2. 

Mr. Graham admitted that he was aware of the scheduled conference call and failed to appear or 

39 FMSHRC Page 2010
to notify Mr. Shelton to attend. Id. Graham therefore had the opportunity to contact the court on 

a number of occasions. He could have notified the court prior to the conference call that he 

would be unable to appear and requested to reschedule. He could have directed the court to 

contact Mr. Shelton at this point or any point over the past three months during which he was 

copied on the status emails, or he could have contacted Mr. Shelton himself to ask him to appear 

for the call or otherwise contact the court. He also could have contacted the court after missing 

the call to explain the situation. He did none of these things.

 In the court’s view, A&G had multiple opportunities to adequately maintain 

communications with the court and continually failed to do so. Pursuant to the court’s prehearing 

order, it is the parties’ responsibility to maintain communications with the court, including 

properly filing entries of appearances, ensuring the court has the proper contact information and 

following up on any missed calls or emails. The failure to answer emails or follow up in any way 

on the missed conference call thus prompted the court to issue the Order to Show Cause.1

 I next address the service of the Order to Show Cause. A&G asserted in its Petition for 

Discretionary Review that Graham was unaware of the show cause order until the response 

deadline had lapsed and he received the default order. See PDR at 2. Mr. Graham’s unawareness 

remains unexplained. 

 

 The Court maintains that it used the proper mailing address on record to serve the show 

cause order to A&G. Graham stated that A&G has an office in Roanoke, and the address used, 

302 South Jefferson Street, Roanoke, VA 24011, is listed on the Virginia Secretary of State’s 

website as A&G’s principal office. See Aff. of Patrick Graham at 3; 2017 Commonwealth of 

Virginia State Corporation Commission, Business Entity Details, 

https://sccefile.scc.virginia.gov/Business/0364069 (last visited Oct. 20, 2017). Graham also 

stated that he received the default order at that same address in early September. Aff. of Patrick 

Graham at 2. The proof of service shows that both Orders were signed for by Ms. Leslie Wells. 

See Proof of Service – OSC, dated August 16, 2017; Proof of Service – Default Order, dated 

August 30, 2017. 2

 A&G has not been able to explain why it only received the default Order when both 

documents were served to the same address and signed for by the same employee. Regardless of 

 1

 The Commission’s concurrence suggests that the court could have lifted the stay and set 

the cases for hearing as a lesser alternative sanction. See 39 FMSHRC __, slip op. at 6 (Althen, 

Comm’r, concurring). However, the court did not consider that option a sanction in that lifting 

the stay and setting the dockets for hearing were in fact, the objectives of the conference call nor, 

in my view, would it have adequately addressed A&G’s repeated failures to communicate with 

the court. 

2

 The court acknowledges that the show cause order bounced back via email, consistent 

with Graham’s assertion that he switched email addresses at some point in August. See Aff. of 

Patrick Graham at 2. As noted above, however, Mr. Graham knew of the conference call and 

failed to follow up with the court, at which time he could have also informed the court that he 

was changing email addresses or was unable to access his email. Id. 

39 FMSHRC Page 2011
the reasons, the discrepancy stresses the importance for the operator to ensure it will timely 

receive and respond to all correspondence from the court. The court orders the Respondent to 

address these communicative deficiencies as specified below, whether they represent a systemic 

problem within the A&G office that resulted in misplacement of the show cause order, or 

indicate that the provided address is no longer appropriate for correspondence from the court. 

 It is lamentable that a simple email or phone call from the operator could have prevented 

this sequence of events. Nonetheless, I agree with the Commission that in all circumstances 

default is a harsh remedy and that the record is not yet entirely clear as to A&G’s repeated 

failures to communicate with the court and receive the show cause order. I therefore reserve the 

issue of default to be addressed at hearing, which will also encompass a hearing on the merits of 

the citations at issue, and will be scheduled per a separate hearing order. At the hearing, the court 

expects A&G to fully address for the record good cause explanations for (1) its failure to enter an 

appearance or in any way communicate with the court after it’s representative, Mr. Bowman, 

withdrew from the proceedings, (2) its failure to participate in the conference call and follow up 

with the court, and (3) the reasons behind its failure to receive and respond to the show cause 

order. I expect Mr. Graham, Ms. Leslie Wells, and any other witness that A&G deems necessary 

to testify under oath to these issues. If a subpoena for Mr. Graham or Ms. Wells is required, 

A&G must notify the court no later than November 30, 2017. 

 Accordingly, legal counsel for A&G in these matters, be it Mr. Shelton or another, is 

ORDERED to file a formal Entry of Appearance within 5 days of the issuance of this Order as 

required by 29 C.F.R. § 2700.3(c) and my prehearing order. Furthermore, A&G or its legal 

counsel is ORDERED to provide written confirmation of A&G’s principal mailing address and 

whether there is an additional address at which A&G will timely and efficiently receive the 

court’s Orders. 

 /s/ David P. Simonton 

 David P. Simonton 

 Administrative Law Judge 

39 FMSHRC Page 2012
Distribution: (U.S. First Class Mail) 

Karen M. Barefield, Attorney, U.S. Department of Labor, 211 7th Avenue North, Suite 420, 

Nashville, TN 37219 

Hagel Campbell, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

P.O. Box 560, Norton, VA 24273 

Robert S. Wilson, Regional Counsel, U.S. Department of Labor, 201 12th Street South, 

Arlington, VA 22202 

Patrick Graham, Southern Coal Corporation, 302 South Jefferson Street, Roanoke, VA 24011 

Billy Shelton, Attorney, Shelton, Branham & Halbert PLLC, 2452 Sir Barton Way, Suite 101, 

Lexington, KY 40509 

39 FMSHRC Page 2013