March 1983 

Commission Decisions 

3-11-83 

3-23-83 

3-24-83 

3-29-83 

Sellersburg Stone Co. 

Elias Moses v. Whitley Developement Corp 

Mathies Coal Co. 

Western Steel Corp. 

Administrative Law Judge Decisions 

United States Steel Corp. 

Helen Mining Co. 

Burgess Mining & Construction 

Consolidation Coal Co. 

FMC Corp. 

Oatville Sand & Gravel Co. 

Corp. 

LAKE 80-363-M 

KENT 79-366-D 

PENN 80-260-R 

WEST 81-132-RM 

WEST 81-356-RM 

PITT 79-11-P 

SE 81-43 

WEVA 82-209-R 

WEST 82-154-RM 

DENV 79-366-PM 

3-02-83 

3-03-83 

3-03-83 

3-03-83 

3-04-83 

3-07-83 

3-07-83 MSHA ex rel William Fitzwater v. 

Coal Corp~ 

Mettiki YORK 82-23-D 

3-09-83 

3-11-83 

3-11-83 

3-14-83 

3-14-83 

3-16-83 

3-16-83 

3-16-83 

3-23-83 

3-25-83 

3-25-83 

3-28-83 

3-30-83 

3-30-83 

3-30-83 

James Eldridge v. Sunfire Coal Co. 

Arch Mineral Corp. 

Arch Mineral Corp. 

Southern Ohio Coal Co. 

MSHA ex rel Chester (Sam) Jenkins v. 

Hecla-Day Mines Corp. 

Freeman United Coal Mining Co. 

Lansalot A. Olguin 

Kanawha Coal Co. 

James W. Dickey 

Belcher Mine, Inc. 

Freman United Coal Mining 

Bill Garris 

Consolidation Coal Co. 

Plateau Resources Limited 

Ford Coal Co. 

Co. 

KENT 82-41-D 

WEST 80-479 

WEST 81-205 

LAKE 80-142 

WEST 81-323-DM 

LAKE 82-89 

WEST 82-125-DM 

WEVA 82-58-R 

PENN 82-179-D 

BARB 79-56-PM 

LAKE 82-3 

LAKE 82-90 

HOPE 75-680 

WEST 82-114-M 

WEVA 82-106 

Pg. 

Pg. 

Pg. 

Pg. 

287 

297 

300 

310 

Pg. 322 

Pg. 370 

Pg. 372 

Pg. 378 

Pg. 392 

Pg. 400 

Pg. 407 

Pg. 408 

Pg. 468 

Pg. 475 

Pg. 479 

Pg. 489 

Pg. 505 

Pg. 511 

Pg. 513 

Pg. 519 

Pg. 584 

Pg. 590 

Pg. 598 

Pg. 604 

Pg. 605 

Pg. 608 
Commission Decisions 
MARCH 

The following cases were Directed for Review during the month of March: 

Secretary of Labor, MSHA v. Elk River Sewell Coal Company, WEVA 82-307; 

(Judge Merlin, Default Decision, January 25, 1983) 

Secretary of Labor, MSHA v. Carbon County Coal Company, WEST 82-106; (Judge 

Moore, Interlocutory Review of February 4, 1983 Order) 

Kitt Energy Corporation v. Secretary of ~abor, MSHA, WEVA 83-65-R; (Judge 

Broderick, February 10, 1983) 

Review was Denied in the following case during the month of March: 

Elias Moses v. Whitley Development Corporation, KENT 79-366-D; Request by 

Whitley Development Corp. to remove ALJ. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 11, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND.HEALTH 

ADMINISTRATION (MSHA) Docket Nos. LAKE 80-363-M 

LAKE 80-364-M 

v. 

SELLERSBURG STONE COMPANY 

DECISION 

This civil penalty proceeding arises under the Federal Mine Safety 

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

The administrative law judge concluded that Sellersburg Stone Company 

violated three mandatory standards: 30 C.F.R. § 56.6-106, 30 C.F.R. 

§ 50.10 and 30 C.F.R. § 50.12. 1/ He assessed Sellersburg penalties 

1/ Section 56.6-106 provides: 

Faces and muck piles shall be examined by a competent 

person for undetonated explosives or blasting agents 

and any undetonated explosives or blasting agents found 

shall be disposed of safely. 

Section 50.10 provides: 

If an accident occurs, an operator shall immediately 

contact the MSHA District or Subdistrict Office having 

jurisdiction over its mine. If an operator cannot contact the appropriate MSHA District Subdistrict Office it 

shall immediately contact the MSHA Headquarters Office in 

Washington, D.C., by telephone, collect at (202) 783-5582. 

Section 50.12 provides: 

Unless granted permission by a MSHA District Manager or 

Subdistrict Manager, no operator may alter an accident 

site or an ~ccident related area until completion of all 

investigations pertaining to the accident except to the 

extent necessary to rescue or recover an individual, 

prevent or eliminate an imminent danger, or prevent 

destruction of mining equipment. 

287 
of $7,500, $l,OOO and $1,000, respectively. 4 FMSHRC 1362 (July 1982) 

(ALJ). The issues before us on review are whether the judge's conclusion that a violation of section 56.6-106 occurred is properly 

supported and whether the penalties assessed by the judge for the 

three violations are excessive. 2/ 

Concerning the violation of 30 C.F.R. § 56.6-106, the judge made 

the following enumerated findings of fact which are not controverted 

by the parties on review: 

1. At all pertinent times, Respondent operated an open-pit, 

multiple-bench, crushed limestone operation in Clark County, 

Indiana; its products were regularly produced for sales or 

use in or substantially affecting interstate commerce. 

2. After material was blasted from the side of the quarry 

("primary blasting"), a front-end loader was used to 

gather boulders that were too large to go through the 

stone-crusher. These were moved to the floor of the 

quarry where they were exploded by "secondary blasting." 

3. "Secondary blasting" involved: a) drilling a hole into 

a boulder with a jackhammer drill; the hole was about 1 

inch x 18 inches; b) loading the hole with a 1-inch x 4-

inch stick of dynamite; adding a primer cord; and packing 

the hole with fine stones; and c) detonating the dynamite, 

in blasts of about 20 boulders at a time. The boulders 

were piled or grouped in a rather close cluster for 

drilling and blasting. 

4. In secondary blasting, at times a dynamite charge 

would not explode. After the blast, the standard safe 

practice in the industry was to inspect all boulders 

remaining to see whether any contained undetonated 

dynamite, and this inspection required turning the 

boulder over to [check] all sides for a drill hole. 

However, Respondent did not follow the practice of 

turning boulders over, and relied upon visual inspection of the top and sides of a boulder. 

5. In secondary blasting, at various times some boulders 

would be turned over by the blast so that if a boulder 

were unexploded the drill hole might be on the bottom 

and not detectable unless the boulder was turned over 

for visual inspection. 

6. The boulders w~re about two to four feet in diameter, 

and usually the drill hole did not exit, so that there 

would be only one hole visible on a boulder. 

2/ On review Sellersburg does not contest the judge's determination of 

liability for the sections 50.10 and 50.12 violations. 

288 
7. 0n·necember 13, 1979, two men were assigned to do 

secondary blasting. Carl Sparrow, the blaster, had about 

four or five months experience in blasting and David Hooper 

the driller had about three months experience. Neither 

was carefully or well trained in the performance of his 

duties. 

(a) That morning they inspected about 20 boulders; 

Hooper drilled them and Sparrow loaded them 

with dynamite and primer cord. At times Hooper 

helped pack or load a hole. 

(b) They set off a blast of about 20 boulders, and 

went to lunch. When they returned, Sparrow 

worked around his truck and Hooper started 

inspecting and drilling boulders. The first 

boulder he inspected had no visible drill hole, 

but he could not see the bottom. The boulder 

was about four feet in diameter and too heavy to 

turn over without equipment, such as a front-end 

loader. Respondent had such equipment, but did 

not use it or make it available for turning over 

boulders for inspection. He started drilling a 

hole. When he was about halfway through the 

boulder it exploded. Hooper received permanent disabling injuries, including loss of the 

sight of one eye and a crippled leg. 

4 FMSHRC at 1362-63. Based on these.findings, the judge concluded that 

"Respondent did not properly examine the muck pile after secondary blasting, because after such blasting it drilled boulders without turning 

them over to examine each boulder for a dynamite drill hole on the bottom 

of the boulder." 4 FMSHRC at 1364 (emphasis added). 

On review Sellersburg argues that the judge's conclusion that a 

violation of section 56.6-106 occurred is without proper foundation 

because his decision contains no finding of fact that the boulder 

which exploded was a "muck pile" or "a portion of a muck pile."]./ 

Our review of the judge's decision leads us to conclude that he 

implicitly found that the boulder was part of a muck pile. His enumerated 

findings describing the grouping of boulders that was blasted, coupled 

3/ Sellersburg maintains the judge failed to make an expressed 

finding of fact and thus did not comply with Commission Rule 65(a) 

(which is patterned on s'"ection 8 of the Administrative Procedures 

Act (5 U.S.C. § 557(c)) and provides: 

The decision shall be in writing and shall include 

findings of fact, conclusions of law, and the reasons 

or bases for them, on all the material issues of fact, 

law, or discretion presented by the record, arid an order. 

289 
with his s:tatement that "the muck pile" was not properly examined, 

provide a sufficient foundation upon which to conclude that he found 

that the boulder in question was part of a muck pile. Furthermore, 

unrebutted testimony of the Secretary's witnesses clearly support the 

conclusion that the boulder was a part of a muck pile. Tr. 90-91, · 

110-12, 135-136. 4/ Thus, we conclude that the judge's decision 

finding a violati'On of 30 C.F.R. § 56.6-106 is properly supported.]._/ 

Sellersburg also argues that the penalties assessed by the judge 

for the three violations are excessive and constitute an abuse of 

discretion. Sellersburg's argument is premised largely on the judge's 

purported failure to follow MSHA's penalty assessment regulations set 

forth in 30 C.F.R. Part 100. Sellersburg cites the decision of the 

Fifth Circuit in Allied Products Co. v. FMSHRC & Donovan, 666 F.2d 890 

(1982), in support of its argument, and requests that new penalty 

calculations and findings consistent with 30 C.F.R. Part 100 be made. 

Sellersburg and, we believe, the Fifth Circuit have misperceived the 

penalty assessment authority of the Commission and its judges under 

the Act. For the reasons that follow, we reject the contention that 

the judge's failure to follow the Secretary's penalty assessment 

regulations, in and of itself, constitutes an abuse of discretion. 

In the Mine Act, Congress divided enforcement responsibility 

between two separate and independent agencies. The Secretary of 

Labor is granted authority to promulgate mandatory safety and 

health standards, to enforce such standards through inspections, 

and to issue citations and withdrawal orders for violations of the 

Act and mandatory standards. This Commission was established as an 

agency independent of the Department.of Labor and is authorized to 

adjudicate contested cases arising under the Mine Act. 30 U.S.C. 

§ 823. Consistent with this bifurcated enforcement structure, the 

Act's penalty assessment scheme divides penalty assessment authority 

!±./ The Dictionary of Mining, Mineral, and Related Terms,. U.S. 

Department of Interior (1968), in part defines "muck" as: 

a. stone; dirt; debris •••• d. Rock or ore 

broken in the process of mining •••• 

5/ The Secretary argues that Sellersburg did not raise the issue of 

whether the boulders constituted a "muck pile" either at the trial or 

in its posthearing brief. Citing 30 U.S.C. § 823(d)(2)(a)(iii), the 

Secretary avers that the judge was thus never afforded an opportunity 

to rule on this issue and therefore Sellersburg cannot raise it on 

review. We disagree. Proof that the boulders were part of a muck pile 

is an element of the Sec~etary's case in proving a violation of the 

cited standard. In this regard, the Secretary's witnesses testified 

that the boulder that exploded was part of a muck pile. Accordingly, 

by virtue of the nature of the Secretary's case and the evidence proffered in support thereof, the judge was afforded the opportunity to 

address the muck pile question. 

290 
between the two agencies. Section 105(a) of the Act provides that if 

the Secretary of Labor issues a citation or order, "he shall ••• notify 

the operator ••• of the civil penalty proposed to be assessed ••• for 

the violation cited and that the operator has 30 days within which to 

contest the ••• proposed assessment of penalty." 30 U.S.C. § 815(a) 

(emphasis added). If an operator does not contest the Secretary's 

proposed penalty assessment, by operation of law the proposed assessment becomes a final order not subject to review by any court or agency. 

Id. 

If an operator contests the Secretary's proposed assessment of 

pen~lty, however, Commission jurisdiction over the matter attaches. 

30 U.S.C. § 815(d). When a proposed penalty is contested, the Commission affords an opportunity for a hearing, "and thereafter ••• 

issue[s] an or_der, based on findings of fact, affirming, modifying, 

or vacating the Secretary's citation, order, or proposed penalty, 

or directing other appropriate relief." Id. (Emphasis added). See 

also 30 U.S.C. § 810(i)("The Commission shall have ~uthority to 

assess all civil penalties provided in this Act"). Thus, it is 

clear that under the Act the Secretary of Labor's and the Commission's roles regarding the assessment of penalties are separate 

and independent. The Secretary proposes penalties before a hearing 

based on information then available to him and, if the proposed 

penalty is contested, the Commission affords the opportunity for a 

hearing and assesses a penalty based on record information developed 

in the course of an adjudicative proceeding. See Senate Subconunittee 

on Labor, Committee on Human Resources, 95th Cong., 2d Sess., 

Legislative History of the Federal Mine Safety and Health Act of 

1977, at 89, 632-635, 656-657, 666-662, 906-907, 910-911, 1107, 1316, 

1328-29, 1336, 1348, 1360. 

The respective governing regulations adopted by the Commission 

and the Secretary regarding penalty assessments clearly reflect the 

Act's bifurcated penalty assessment procedure. Commission Rule of 

Procedure 29(b) provides: 

In determining the amount of the penalty neither 

the judge nor the Commission shall be bound by 

a penalty recommended by the Secretary •••• 

29 C.F.R. § 2700.29(b). The Secretary's regulations in 30 C.F.R. 

Part 100 expressly apply only to the Secretary's proposed assessment 

of penalties. See also 47 Fed. Reg. 22287 (May 1982)("If the proposed penalty is contested, the [Federal] Mine Safety and Health 

Review Commission exercises independent review and applies the six 

statutory criteria without consideration of these [MSHA penalty 

assessment] regulations.~) 

Thus, in a contested case the Commission and its judges are not 

bound by the penalty assessment regulations adopted by the Secretary. 

Rather, in a proceeding before the Commission the amount of the 

penalty to be assessed is a de novo determination based on the six 

statutory criteria specified--:tn---section llO(i) of the Act (30 U.S.C. 

291 
§ 820(i)) and the information relevant thereto developed in the 

course of the adjudicative proceeding. Shamrock Coal Co., 1 FMSHRC 

469 (June 1979), aff'd, 652 F.2d 59 (6th Cir. 1981). ~· Long 

Manufacturing Co. v. OSHRC, 554 F.2d 903 (8th Cir. 1977); Clarkson 

Construction Co. v. OSHRC, 531 F.2d 451 (10th Cir. 1976); Dan J. 

Sheehan Co. v. OSHRC, 520 F.2d 1036 (5th Cir. 1975); California 

Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986 (9th Cir. 1975). 

Accordingly, we reject Sellersburg's argument that the judge 

abused his discretion in not following the Secretary's regulations 

governing proposal of penalties, including the Secretary's penalty 

point formula and special narrative findings procedures. 

Our inquiry does not end here, however, because Sellersburg also 

raises broader challenges to the penalties assessed by the judge, 

i.e., whether the judge adequately considered and discussed the 

statutory criteria bearing on penalty assessments and whether the 

penalties assessed are otherwise consistent with the criteria or are 

excessive. 

Section llO(i) of the Act mandates Commission consideration of 

six criteria in assessing appropriate civil penalties: (1) the 

operator's history of previous violations; (2) the appropriateness 

of the penalty to the size of the business of the operator; (3) 

whether the operator was negligent; (4) the effect on the operator's 

ability to continue in business; (5) the gravity of the violation; 

and (6) whether good faith was demonstrated in attempting to achieve 

prompt abatement of the violation. 30 US.C. § 820(i). 

As to each of the three violations at issue, the judge's decision 

contains discussion and findings on only two of the six statutory 

criteria, i.e., the operator's negligence and the gravity of the violations. The decision is devoid of specific facts and findings bearing 

on the remaining four criteria. 6/ When an operator contests the 

Secretary's proposed assessment of penalty, thereby obtaining the 

opportunity for a hearing before the Commission, findings of fact on 

the statutory penalty criteria must be made. 30 u.s.c. § 815(d). Cf. 

National Independent Coal Operator's Assoc. v. Kleppe, 423 U.S. 388-,-

46 F.Ed 2d 580, 96 S.Ct. 809 (1976)(The 1969 Coal Act "does not 

mandate a formal decision with find~ngs as a predicate for a penalty 

assessment order unless the operator exercises his statutory right 

to request a hearing on the factual issues relating to the 

penalty •••• (Emphasis added.)) But~' B.L. Anderson v. FMSHRC, 

668 F.2d 442 (8th Cir. 1982). Findings of fact on each of the 

statutory criteria not only provide the operator with the required 

notice as to the basis Ufon which it is being assessed a particular 

penalty, but also provide the Commission and the courts, in their 

6/ The judge did generally state that the penalties assessed were 

"[b]ased upon the statutory criteria for assessing a penalty." 

292 
review capacities, with the necessary foundation upon which ·to base a 

determination as to whether the penalties assessed by the judge are 

appropriate, excessive, or insufficient. Therefore, we conclude that 

the judge erred in failing to make findings of fact on four of the six 

statutory criteria bearing on his assessment of penalties against this 

operator. LI 

Also, in this case there is a wide divergence between the penalties 

proposed by the Secretary and those assessed by the judge. 8/ As we discussed previously, in a contested case the Secretary's penalty proposals 

are not binding on the Commission or its judges. Thus, the penalties 

assessed de nova in a Commission proceeding appropriately can be greater 

than, les-S-than, or the same as those proposed by the Secretary. However, 

the Secretary's proposed penalties are usually of record in a Commission 

proceeding. When based on further information aeveloped in the adjudicative proceeding, it is determined that penalties are appropriate which 

substantially diverge from those originally proposed, it behooves the 

Commission and its judges to provide a sufficient explanation of the 

bases underlying the penalties assessed by the Commission. If a 

sufficient explanation for the divergence is not provided, the credibility of the administrative scheme providing for the increase or 

lowering of penalties after contest may be jeopardized by an appearance 

of arbitrariness. See Dan J. Sheehan Co. v. OSHRC, supra, 520 F.2d at 

1040-1042; Clarkson Construction Co. v. OSHRC, supra, 531 F.2d at 456. 

Based on the above considerations, one course to follow in the 

present case would be to remand this proceeding to the administrative 

law judge to cure his error and make the necessary findings pertaining 

to the remaining four penalty criteria. For the following reasons, 

however, we find that in the circumstances of the present case a remand 

for the entry of such findings by the judge is unnecessary and would 

unnecessarily prolong these proceedings. 

The statutory penalty criteria on which the judge failed to make 

findings are the following: the operator's history of previous 

violations; the appropriateness of the penalty to the size of the 

operator's business; the effect on the operator's ability to continue 

in business; and the good faith abatement of the violations. A 

7/ In the present case the operator requested a hearing and the case, 

in fact, proceeded through a full hearing to a decision on the merits. 

Thus, we are not presented with any question concerning the extent of 

the findings necessary where the parties have presented a proposed 

settlement that accords with the Commission's requirement for approval 

of penalty settlements. ,29 C.F.R. § 2700.30. 

8/ The Secretary originally proposed penalties of $1,000, $78 and $78 

for the three violations at issue. The judge assessed penalties of 

$7,500, $1,000 and $1,000, respectively. 
review of the record indicates, however, that there was no controversy between the parties concerning the record evidence bearing on 

each of these criteria. 9/ The parties stipulated that the operator 

demonstrated good faith in abating the violations. Relevant to the 

operator's size it was stipulated that the mine's annual production 

was about 450,000 tons and that between 14 to 20 persons were employed. 

Concerning the operator's history of violations, the Secretary entered 

an exhibit into evidence which indicates that 35 violations were charged 

and penalties for 29 violations paid during the period January 1978 

through January 1980. The operator did not challenge this evidence. 

The operator refused to stipulate that payment of civil penalties would 

not affect its ability to continue in business, but did not offer any 

argument or evidence that its ability to continue in business would be 

impaired. See Buffalo Mining Co., 2 IMBA 226, 24748 (1973). Because 

the above information comprises all of the record evidence as to the 

penalty criteria on which the judge failed to make express findings, 

in the interests of judicial economy we enter the above as the required 

findings rather than remanding for the judge to do so. 

The question remains as to whether, in light of the above findings 

on four of the penalty criteria and the express findings made by the 

judge concerning the remaining two, i.e., the negligence and gravity 

criteria, the penalties assessed by the judge are excessive. The 

determination of the amount of the penalty that should be assessed for a 

particular violation is an exercise of discretion by the· trier of fact. 

Cf. Long Manuf. Co. v. OSHRC, supra, 554 F.2d at 908. This discretion 

Ts bounded by proper consideration of th.e statutory criteria and the 

deterrent purpose underlying the Act's penalty assessment scheme. 

Regarding the statutory penalty criteria, the record reflects that 

the operator has at least a moderate history of previous violations. It 

is a small to medium sized crushed limestone operation. In the absence 

of proof that the imposition of authorized penalties would adversely affect 

its ability to continue in business, it is presumed that no such adverse 

affect would occur. Buffalo Mining, supra. Good faith was demonstrated 

in abating the violations. As to the negligence and gravity criteria, 

regarding the violation of 30 C.F.R. § 56.6-106 the judge found that the 

operator's blasting practice constituted "gross negligence" and was a "most 

serious" violation posing a "grave risk" to employees. Concerning the 

violation of 30 C.F.R. § 50.12 requiring the preservation of accident 

sites pending completion of an inve$tigation thereof, the judge found that 

the operator was negligent in failing to comply with the standard and that 

this was a serious violation since it hindered MSHA's ability to conduct 

an appropriate investigation. As to the violation of 30 C.F.R. § 50.10 

requiring immediate contact with MSHA when an accident occurs, the judge 

found that the operator's notification by mail resulted from its negligence and seriously affe~ted MSHA's ability to conduct an effective 

investigation. 

'i/ The uncontroverted nature of the evidence bearing on these criteria 

may explain why the judge did not make express findings in his decision. 

294 
On review the operator has not challenged the facts found by 

the judge concerning its blasting procedures, its preservation of 

the accident site, or its failure to immediately contact MSHA. 

Although the penalties •assessed by the judge far exceed those 

proposed by the Secretary before hearing, based on the facts developed 

in the adjudicative record we cannot say that the penalties assessed 

are inconsistent with the statutory criteria and the deterrent purpose 

behind the Act's provision for penalties. Hence, we find that the 

judge's penalty assessments do not constitute an abuse of discretion. 

Accordingly, the decision of the administrative law judge finding 

violations of 30 C.F.R. §§ 56.6-106, 50.10 and 50.12, and assessing 

penalties of $7,500, $1,000, and $1,000, respectively, is affirmed • 

. ~co:f:..~#tr~ 

L. Clair Nelson, Commissioner 

295 
Distribution 

Anna L. Wolgast 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Anne Marie Sedwick 

Sedwick and Sedwick 

102 N. Indiana Avenue 

Sellersburg, ·Indiana 47172 

Administrative Law Judge William Fauver 

Fed. Mine Safety & Health Rev. Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

296 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE GENERAL COUNSEL 

ELIAS MOSES 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 23, 1983 

Docket No. KENT 79-366-D 

WHITLEY DEVELOPMENT CORPORATION 

ORDER 

On March 7, 1983, the Commission received a motion filed by 

Whitley Development Corporation seeking the disqualification or 

removal of the administrative law judge assigned to this matter, 

and the vacation of all previous orders entered by him. This 

motion was simultaneously filed with the Commission and the judge. 

Upon the Commission's receipt of the motion, the record in this 

matter was forwarded by the judge to the Commission. 

Insofar as the operator seeks action by the full Commission on 

its motion at this time the request is denied. Commission Rule of 

Procedure 81 governs requests for disqualification and provides: 

***** 

(b) Request to withdraw. Any party may request a 

Commissioner, or the judge (at any time following his designation and before the filing of his 

decision), to withdraw on grounds of personal 

bias or disqualification, by filing promptly 

upon discovery of the alle&ed fa9ts ~n affidavit 

setting forth in detail the matters alleged to 

constitute grounds for disqualification. 

(c) Procedure if Judge does not withdraw. If the 

judge does not disqualify himself and withdraw 

from the proceeding, he shall so rule upon the 

record, stating the grounds for his ruling and 

shall proceed with the hearing, or, if the hearing has been completed, he shall proceed with the 

issuance of his decision, unless the Commission 

stays the hearing or further proceedings by 

granting a petition for interlocutory review. 

29 C.F.R. § 2700.81. 

297 83-3-7 
In light of the foregoing, the judge is required to act on the 

motion and the record is returned to him for further proceedings on 

the operator's request consistent with the Commission's rules. 

298 
Distribution 

David Patrick, P.S.C. 

P.O. Box 9 

Harrodsburg, Kentucky 40330 

William E. Hensley 

P.O. Box 1263 

Corbin, Kentucky 40701 

Administrative Law Judge Richard Steffey 

Fed. Mine Safety & Health Rev. Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

298 
FEDERAL MINE SAFETY AND HEALTH REVIEW _COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISRTATION (MSHA) 

v. 

MATHIES COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 24, 1983 

Docket Nos. PENN 80-260-R 

PENN 81-35 

DECISION 

This case arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981). The judge held 

that Mathies Coal Company violated 30 C.F.R. § 75.1722(a) and assessed 

a $750 penalty. 3 FMSHRC 1998 (August 198l)(ALJ). For the reasons that 

follow we reverse. 

Section 75.1722(a) provides: 

Gears; sprockets; chains; drive, head, tail, and 

take-up pulleys; flywheels; couplings, shafts; 

sawblades; fan inlets; and similar exposed moving 

machine parts which may be contacted by persons, 

and which may cause injury to persons shall be 

guarded. 

On May 16, 1980, Mathies received a citation alleging a violation of 

section 75.1722(a) stating: 

It was revealed during a fatal accident investigation 

that the automatic elevator and associated parts ••• 

was [sic] not guarded adequately to keep persons from 

coming in contact with the elevator as it was moving 

in the shaft along the stairways at -the fi.rst and 

second landings. . ~ · 

The elevator shaft and the adjacent stairway mentioned in the 

citation extend from the surface to the mine floor 273 feet below. 

The first landing of the stairway is above the surface and the second 

landing is approximately level with the surface. Two doors provide 

ingress and egress to the stairwell; one at the first landing above 

ground level and one at the mine floor. From the mine floor up to 

approximately 24 to 32 inches above the floor of the second landing, 

the elevator and stairwell are separated by corrugated metal. Parallel 

to and level with the top of the corrugated metal is an I-beam. At the 

•J noo 83-3-8 
time of the citation, above the I-beam, the elevator shaft was separated 

from the first and second landings and the first flight of stairs only 

by handrails. Thus, above and below the handrails no separation between 

the landings and stairs and the elevator shaft existed, except for the 

first 24 to 32 inches from the second landing. It was this lack of 

separation between the elevator shaft and the stairwell that the 

Secretary alleged constituted a violation of the cited standard. l./ 

The citation was issued during an investigation of a fatal accident that occurred at the mine. On May 16, 1980, a miner who apparently 

intended to leave work early, walked up the stairs to the top of the 

stairwell, opened the door and stepped outside. He saw his foreman and, 

to avoid being seen, went back down the stairs to the second landing. 

There, he stepped onto the I-beam to gain access to a loose metal grate 

on one side of the elevator shaft from which he could exit to the surface. 

The elevator descended however, and a retiring cam 2/ affixed to the cage 

apparently struck the miner causing him to fall to the shaft bottom. 3/ 

The judge concluded that the "elevator cage together with its 

retiring cam constituted moving parts of a machine ••• "within the 

meaning of the standard. 3 FMSHRC at 2001. On review, the Secretary 

argues that the purpose of section 75.1722(a) is to "protect miners 

from injury caused by moving machinery," and that the elevator cage 

is subject to the standard "because it is an 'exposed, moving machine 

part which may be contacted by persons and which may cause injury.'" 

Sec. br. at 5. He, like the judge, interprets the standard to cover 

not only the listed machine parts but all machine parts that are exposed 

and moving. Sec. hr. at 5-6. We disagree. We find that such an 

interpretation ignores the grammar of the standard and makes the list 

of items covered surplusage. 

1/ The judge stated that the area that the Secretary sought to have 

guarded included only a 26" by 54" space on the second landing. Our 

review of the citation and the testimony and arguments presented at 

the hearing convinces us that the alleged'violative-condition 

encompassed all the open area between the. eleva'tor shaft and the 

stairway and landings at the first and second levels. 

];/ The retiring cam is a metal bar att~ched_to and protruding from 

one side of the elevator cage. When the ,_cag~ .reaches the top or bottom 

landing of the shaft, the cam hits a switch on the side of the shaft, 

and causes the elevator door to open. 

3/ As the parties and the judge agreed, the fatality is not determinative as to whether a violation of the standard occurred. The violation 

was alleged because the elevator cage and its parts were not guarded 

to prevent a person from contacting them and being injured. These 

circumstances existed regardless of the specifics of the accident. 

301 
"Similar," "exposed," and "moving" are all adjectives modifying 

"machine parts" in the standard at issue. Thus, the standard as written 

applies to the specific machine parts listed plus other exposed moving 

machine parts similar to those listed. The pivotal inquiry, therefore, 

is whether the elevator cage and its associated parts, including the 

retiring cam, constitute moving machine parts "similar" to those 

listed. We think not. "Similar" is defined as: 

1. having characteristics in common; very much 

alike ••• 2. alike in substance or essentials 

••• 3a. having the same shape: differing only 

in size and position •••• 

Webster's Third New International Dictionary 2120 (unabridged 1971). 

Given this definition we find it unnecessary to resort to a detailed, 

technical analysis of the nature of the listed moving machine parts 

as compared to an elevator cage. Although an elevator cage has a 

common characteristic with the enumerated items, i.e., motion, it i,s 

not "very much alike", "alike in substance or essentials" or of the 

"same shape" as the others. Quite simply, in our view, it does not 

even remotely resemble, in form or function, those machine parts 

specifically listed in the standard. 

The observation of the Fifth Circuit in a case arising under the 

Occupational Safety and Health Act of 1970, 29 u.s.c. § 651 ~seq. 

(1976) is particularly appropriate here: 

The [Secretary] contend[s] that the regulation should 

be liberally construed to give broad coverage because 

of the intent of Congress to provide safe and healthful working conditions for employees. An employer, 

however, is entitled to fair notice in dealing with 

his government. Like other statutes and regulations 

which allow monetary penalties against those who 

violate them, an occupational safety and health 

standard must give an employer f~ir warning of the 

conduct it prohibits or requires, and 'it must provide a reasonably clear standard of culpability 

to circumscribe the discretion of the enforcing 

authority and its agents •••• A regulation should ~ ) . 

be construed to give effect to the 'natural and 

plain meaning of its words •••• 

If a violation of a regulation subjects private 

parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency 

intended but did not adequately express •••• We 

recognize that OSHA was enacted by Congress for 

the purpose stated by [the Secretary]. Nonetheless, the Secretary as enforcer of the Act has 

the responsibility to state with ascertainable 

certainty what is meant by the standards he has 

promulgated. 

302 
Diamond Roofing Co. v. OSHRC & Secretary of Labor, 528 F.2d 645, 649 

(1976)(citations omitted). Accord, Phelps Dodge Corp. v. FMSHRC & 

Secretary of Labor, 681 F.2d 1189, 1193 (9th Cir. 1982). 

As we have previously acknowledged, "Many standards must be 'simple 

and brief in order to be broadly adaptable to myriad circumstances'". 

Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (December 1982), quoting 

Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981). However, even a 

broad standard cannot be applied in a manner that fails to infor~ a 

reasonably prudent person that the condition or conduct at issue was 

prohibited by the standard. Alabama By-Products Corp., supra; U.S. 

Steel Corp., FMSHRC Docket No. KENT 81-136 (January 27, 1983). We 

find this to be the case here. 4/ 

We emphasize that this conclusion does not mean that miners must 

be left at risk against dangers posed by unguarded elevators. 11 The 

Secretary has adopted detailed regulations specifically applicable to 

hoisting equipment, including elevators. 30 C.F.R. Part 75, Subpart 0, 

§ 75.1400 et ~· The Secretary is free to adopt an improved standard 

expressly requiring that elevators be guarded, thereby generally giving 

operators adequate notice of what is required. More pertinent to the 

circumstances of the present case, however, the Secretary had available 

a specific statutory avenue authorizing him to require "other safeguards 

adequate ••• to minimize hazards with respect to transportation of men 

and materials •••• " 30 U.S.C. § 874(b); 30 C.F.R. § 75.1403. Through 

application of this provision in the first instance the Secretary could 

have accomplished abatement of the hazardous condition while at the same 

time avoiding the due process problems posed by seeking a civil penalty 

for a violation of a standard that did not provide adequate notice to 

the operator. 2_/ · 

Accordingly, the decision of the administrative law judge is 

reversed and the citation and penalty sessed are vacated. 

Commissioner 

4/ As the administrative law judge so aptly stated at the hearing: 

"u you start taking these words like a rubber band and stretching 

[them], pretty soon you end up with some really fantastic results." 

Tr. 95. 

2./ In fact, the alleged hazardous condition at this mine was promptly 

abated by the operator through installation of a wire mesh grate, 

similar to cyclone fencing. 

6/ At the hearing, counsel for the operator suggested the appropriateness of the Secretary's recourse to a safeguard notice requiring the 

installation of an appropriate guard. Tr. 81. 

303 
Jestrab, Commissioner, dissenting: 

I most respectfully dissent. 

The facts as stated by my learned colleagues are not in dispute. 

The investigation by MSHA concluded that the unguarded retiring cam 

probably caught the victim on a tool pouch which was attached to his 

belt. (T-48) According to the evidence, the retiring cam " .•• is a bar 

that protrudes, sticks out from the elevator that controls a switch that 

will either let the doors open or remain shut." (T-36, and see Operator's 

exhibits 10 and 21 and Gov't exhibit 6.) It thus appears that the cam 

was properly described and was designed to perform the usual mechanical 

function of a cam, that is to say, was employed to actuate nonuniform or 

rectilineal movement of the elevator doors. 1/ The regulation described 

in the citation is section 75.1722(a) which reads as follows: 

Gears; sprockets; chains; drive, head, tail, and 

take-up pulleys; flywheels; couplings, shafts; 

sawblades; fans inlets; and similar exposed moving 

machine parts which may be contacted by persons, 

and which may cause injury to persons shall be 

guarded. 

If the unguarded cam in this case had been in the form of a gear or 

sprocket or other form of wheel, it could not be doubted that the cam 

would fall within the express language of the regulation. To exclude 

this exposed moving machine part from coverage because it is not attached 

to a wheel is to exalt form over function. 

Finally, the witness described the cam as a bar. 

with shaft. 2/ 

Bar is synonymous 

I would sustain the 

!/ Oxford English Dictionary, Oxford 1933. Cam - •· •• A projecting part 

of a wheel or other revolving piece of machinery, adapted to impart an 

alternating or variable motion of any kind to ano'ther piece pressing 

against it, by sliding or rolling contact. MubJr.'used in machines in 

which a uniform revolving motion is employed to actuate any kind of a 

non-uniform, alternating elliptical, or rectilineal movement. The 

original method by cogs or teeth fixed or cut at certain points in the 

circumference or disc of a wheel, but the name has been extended to any 

kind of eccentric, heartshaped, or spiral disc, or other appliance ~hat 

serves a similar purpose. 

]:_/ The Century Dictionary and 

(1899). Shaft - (e) In mach: 

force which is generated in an 

different working machines ••. 

Encyclopedia, The Century Co., New York 

(1) .•• connected bars serving to convey 

engine or other prime mover to the 

304 
Commissioner Lawson, dissenting: 

_ Although I am not in disagreement with my colleague Commissioner 

Jestrab, I would offer further explication of my reasons for dissenting from the views of the majority. 

The majority interprets too narrowly a broad standard whose 

clear purpose is to protect miners from injury caused by contact 

with exposed moving machine parts, including the elevator cage and 

retiring cam in .this case. The standard in question states: 

Gears; sprockets; chains; drive, head, tail, and 

take-up pulleys; flywheels; couplings, shafts; 

sawblades; fan inlets; and sioilar exposed moving 

machine parts which may be contacted by persons, 

and which may cause injury to persons shall be 

guarded. 

Mathies received a citation for failing to guard "the automatic 

elevator and associated parts ••• adequately to keep persons from 

coming in contact with the elevator as it was moving in the shaft 

along the stairway." The majority does not disagree with the 

finding of the judge that an elevator cage with its retiring cam 

is a "machine part", nor do I, and that conclusion is supported by 

the operator's own witness. He testified that the elevator cage 

moves up and down the shaft, receives power from an external source, 

and the hoist equipment includes the cage, and a motor and pulleys. 

Tr. 117, 120, 123. Thus, the elevator cage is clearly a "machine 

part." The majority also concludes that the elevator cage with its 

cam is not "similar" to the items listed in the standard, and, 

therefore is beyond its reach. That determination is not supported 

by the evidence in this case. 

First, the machine parts enumerated in section 75.1722(a) are 

quite dissimilar, and, when considered together, comprise a broad 

spectrum of parts that must be guarded. What they have in common, 

as the majority notes, is motion and the elevator cage shares this 

characteristic. Slip. op. at 3. The majority states, "Quite simply, 

in our view, [the elevator cage] does not even remotely resemble, in 

form or function, those machine parts speci{ically listed in the 

standard." Id. The majority fails, however,'·'.to examine the parts 

listed and deduce their "form and function," and then consider 

whether the elevator cage with its retiring cam iS"Similar." 

Clearly, sawblades, which come in various configurations, and fan 

inlets, neither resemble nor function in the same manner as gears 

and sprockets. Attempts to classify the parts enumerated in the 

standard fail because the parts have little in common. Mathies 

suggested .in its brief that the listed parts are all the "inner 

workings" of machinery, and are unlike the elevator cage because 

the movement "is the product of the parts which transmit the power." 

Mathies hr. at 11. This theory is deficient, however, because saw305 
blades actua.lly perform the function of the saw, and "fan inlets" 

describes an area on one side of a fan, thus, both are certainly not 

within the "inner workings" of a machine. The Secretary deliberately 

included a wide range of items in the standard to give notice that the 

standard applies to a variety of machine parts in mines. Nothing in 

the standard limits its coverage to particular types of machine parts; 

rather, by its very nature, section 75.1722(a) encompasses many exposed 

moving machine parts. It is one of the many standards made "simple and 

brief in order to be broadly adaptable to myriad circumstances." KerrMcGee Corp., 3 FMSHRC 2496, 2497 (November 1981). See also Capitol 

Aggregates, Inc., 4 FMSHRC 846 (May 1982). Thus, the broad phrase "and 

similar exposed moving machine parts" must be read inclusively to apply 

to moving machine parts, such as the elevator cage, which may be 

contacted and may cause injury. 

Second, the purpose of the standard is obvious--it is to protect 

miners from hazards caused by exposed moving machinery. Therefore, 

focusing on those hazards will provide additional information on the 

scope of the standard. Some of the listed parts, for example, gears, 

sprockets, flywheels, and pulleys, could catch the limbs or clothing 

or a person and cause injury by pulling the object caught into the 

moving machinery. This concept of a "pinch point" has been used many 

times by our judges to describe a hazard to be avoided by this standard. 

See, e.g., Missouri Gravel Co., 3 FMSHRC 1465 (June 198l)(ALJ)(interpreting identical standard, 30 C.F.R. § 56.14-1); N.Y. State Dep't of Transportation, 2 FMSHRC 1749 (July 1980)(ALJ)(interpreting 30 C.F.R~ § 56-14-1); 

FMC Corp., 2 FMSHRC 1315, 1319-22 (June 1980)(ALJ)(interpreting identical 

standard 30 C.F.R. § 57.14-1). The elevator cage as it ascends and descends in the shaft also creates such a "pinch point," both on the stairs 

with the railing, and on the landing with the I-beam. Thus, the hazard 

presented by the elevator with its retiring cam is similar to that presented by many items enumerated in section 75.1722(a). The moving elevator cage in this case could catch the arm of a person who tripped while 

going up or down the first flight of stairs, as the judge noted. 3 FMSHRC 

at 2002. In addition, the retiring cam could catch on a person's clothing 

and pull him or her down the shaft, as happened in this case, resulting in 

a fatality. 

Third, even if one limits the standard, as the majority does, to very 

specific machine parts "having characteristics in common" or "alike in 

substance or essentials," the cage and retirtng cam fall within the standard. 

Slip op. at 3, quoting Webster's Third Ne~ Irlternational Dictionary. The 

retiring cam, which is affixed to the cage and moves with it, has the same 

function as gears, sprockets and couplings, all of which transfer power 

or motion. The function of the retiring cam is to allow the cage door to 

open when the cage reaches the top or bottom of the mine shaft. The retiring cam meets a roller, causing the roller to revolve and operate the 

switch which opens the doors. Tr. 42, Operator's Exhibit 1. Thus, the 

retiring cam transfers its linear motion to rotary motion to operate the 

switch, as Commissioner Jestrab has stated so well. This function is 

"alike in substance or essentials" to that of gears, sprockets and 

couplings, and thus brings the retiring cam within the reach of 

section 75.1722(a). 

306 
Accordingly, whether one accepts a more liberal interpretation 

of the standard, or that espoused by the majority, the elevator cage 

and retiring cam fall within the category of "similar exposed moving 

machine parts." 

The remaining question is whether the cage with its cam "may be 

contacted by persons ••• and may cause injury ••• " 1/ The judge correctly 

found that the elevator cage with its retiring cam "may be contacted" 

and "may cause injury to persons. He stated: 

[I]t is clear that an individual while performing his 

regular routine work duties in a prudent manner 

might lose his footing and trip and fall on the 

second landing thereby put~ing part of his body 

into the unguarded space and coming into contact 

with the elevator and its retiring cam if the 

elevator were descending at that time. Also, 

the arm of an individual descending the stairs 

from the top to the second landing could come 

in contact with a descending elevator cage. 

3 FMSHRC at 2001-02. In this case, as the judge found, weekly examinations of the entire stairwell were required, and the stairs could be 

used to enter and leave the mine, as "a few miners" including the 

decedent were doing in this case. Tr. 47. The elevator is used 

daily. Thus, in this case the elevator cage "may be contacted" 

l/ Mathies also presents two procedural issues, but its arguments 

are not persuasive. Mathies first asserts .that the judge erred in 

failing to rule at the hearing on its motidn for' a directed verdict. 

Initially, in a case tried without a jury the appropriate motion is 

one for involuntary dismissal under Federal Rule of .Civil Procedure 

4l(b). A trial court's reservation of r~ling on such a motion is, 

in effect, a denial of the motion. 5 Moore's Federal Practice 

,[41.13(1] at 41-176 to 41-178 & n.31 (1982 & 1982-83 Supp.) Mathies 

had the choice of proceeding or standing on its motion. By presenting 

evidence, Mathies waived its right to appeal from the judge's "denial" 

of its motion. 

Mathies' other claim of procedural error is that the judge 

"permitte[d] MSHA to change its theory of prosecution after MSHA had 

rested its case." Mathies hr. at 6. Mathies made no objection on 

this ground at the hearing and thus has waived any objection. 

307 
within the meaning of that phrase in section 75.1722(a). 2/ The 

possibility of injury from such contact is apparent, and need not 

be described in detail, for example, a person or one's clothing 

or limb could be caught between the elevator cage and the stair 

railing on the first flight of stairs, or between the I-beam and 

the elevator on the second landing. 

I therefore dissent and would affirm the judge. 

J1 /Z 1= ciu1/'4111V 

A. E. Lawson, Conunissioner 

2/ It is not necessary to decide in this case whether or not a 

particular "degree of probability" of contact should be read into 

section 75.1722(a). 3 FMSHRC at 2002. Whatever the precise contours 

of the phrase "may be contacted," they are satisfied in this case. 

308 
Distribution 

Anthony J. Polito, Esq. 

Corcoran, Hardesty, Ewart, Whyte & Polito, P.C. 

Suite 210 

Two Chatham Center 

Pittsburgh, PA 15219 

Ann Rosenthal, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Chief Administrative Law Judge Paul Merlin 

FMSHRC 

1730 K Street, N.W., 6th Floor 

Washington, D.C. 20006 

309 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WESTERN STEEL CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 29, 1983 

Docket No. WEST 81-132-RM 

DECISION 

This proceeding arises under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et~· (1976 & Supp. V 1981), and involves the 

interpretation and application of 30 C.F.R. § 57.4-33, a fire prevention 

standard for metal and nonmetal underground mines. The standard provides: 

"Mandatory. Valves on oxygen and acetylene tanks shall be kept closed 

when the contents are not being used." 1/ On the grounds explained 

1/ MSHA has been in the process of reviewing its metal and nonmetal 

standards. On December 27, 1982, MSHA released preproposal draft 

revisions of the metal/nonmetal fire prevention and control standards. 

These draft revisions would combine the fire prevention and control 

standards of 30 C.F.R. Parts 55, 56, and 57, into a new Part 58. One of 

the preproposal drafts, section 58.4-65(G), if ultimately promulgated, 

would revise section 57.4-33, the standard involved in this case. 

Section 58-4-65(G) (draft) provides: 

Valves on oxygen and acetylene tanks shall be kept closed when--

(a) the tanks are moved; 

(b) the system is left unattended; or 

(c) the task is completed. 

An accompanying note states: 

[.4-33] When valves on storage cylinders are open, the connecting 

hoses are extensions of storage cylinders. Without close attention, 

the hoses could become damaged and release gases, creating a flammable atmosphere. The standard has been revised to clarify when 

valves must be closed to prevent this hazard. 

As is plain from a facial comparison, there are significant differences in the texts of the present standard, section 57.4-33, and the 

draft revision. Our decision in this case is based upon the standard in 

existence at the time of the citation, section 57.4-33. 

310 

83-3-10 
below, we affirm the administrative law judge's decision vacating a 

citation issued.against Western Steel Corporation for an alleged 

violation of the standard. f:_/ 

The facts are largely undisputed. At the time of the citation, 

Western was installing a dust control system in an underground mine in 

Wyoming. In the course of this work, Western employees were using an 

oxyacetylene torch welder to make brackets for a new air duct. The 

torch welder operator would first cut appropriate pieces of angle iron 

and then weld the pieces into place to form the brackets. The torch 

head consisted of a burner, to which were attached hoses that led to two 

gas tanks, one containing oxygen, the other acetylene. The tanks were 

located in a cage over the headframe about 50-70 feet from the mine 

entrance. These gases could be shut off by turning valves located 

either at the tanks or at the burner. 

On December 3, 1980, the day of the citation, the torch head was in 

an underground tunnel at a worksite approximately 30-40 feet from the 

tunnel entrance. The torch hose ran for a distance of 100 feet through 

the tunnel and out the entrance to the oxygen and acetylene tanks 

located on the surface. The Western iron worker who was operating the 

torch welder on December 3d turned on both sets of gas valves at the 

tanks and at the burner when he arrived at the worksite about 8:00 a.m. 

He then cut angle iron in the tunnel until he depleted his supply. At 

that point, around 10:15 a.m., he turned off the burner gas valve and 

left the tunnel worksite to get more angle iron from a stockpile on the 

surface about 50 feet from the tunnel entrance. At that location, long 

pieces of angle iron were kept on a table. The stockpile was about 

50-60 feet from the gas tanks. The employee did not pass the tanks on 

his way to the stockpile, and did not turn off the valves at the gas 

tanks. 

Upon reaching the table, the employee noticed another torch. He 

decided to cut usable lengths of iron at the table instead of taking a 

large piece back to the worksite and cutting it there. Shortly after 

the employee left the tunnel, an MSHA inspector arrived at the mine. 

The inspector noticed the gas tank valves open and followed the hoses 

down into the tunnel to inspect the torch head. He found the torch head 

valves turned off and the burner tip cold. The inspector returned to 

the surface and turned off the valves at the gas tanks. Then about 

10:35 a.m., he spoke with the welder oper~to~, who was still at the 

table. It appears that the employee was just about to return to the 

tunnel worksite with the iron he had cut at the table. Tr. 10, 31-32, 

54-55. After discussing the matter with the employee and others in the 

area, the inspector issued the citation. 

2/ The judge's decision is reported at 3 FMSHRC 2666 (November 1981) 

(ALJ). When the citation was issued, Western was performing work for 

FMC Corporation at an FMC mine. FMC was the original contestant in the 

proceeding, and Western was substituted as contestant without objection. 

The judge subsequently dismissed the case as against FMC Corporation and 

amended the caption to reflect the substitution. 3 FMSHRC at 2666. 

311 
The judge vacated the citation. He concluded that while the welder 

operator was away from the tunnel obtaining more angle iron for his work 

the contents of the oxygen and acetylene tanks were "being used" within 

the meaning of the standard, and, therefore, the tank valves did not 

need to be closed. However, the judge rejected an interpretation of the 

standard that would allow a miner to be absent for "a substantial period 

of time" from an oxyacetylene torch welder without closing the tank 

valves. 3 FMSHRC at 2669. In essence, the judge adopted a two-part 

test for analyzing alleged violations of the standard: (1) a temporal 

test that if w~lding equipment were left unattended for a "substantial 

period of time," the tank contents would be deemed "not being used" and 

the tank valves would have to be closed; and (2) a job-related test that 

tank valves could be left open for a non-substantial period of time 

while the torch welder operator was engaged in an activity related to 

the cutting or welding operation. 3 FMSHRC at 2668. Applying these 

criteria to the facts, the judge determined that the employee's cutting 

additional pieces of angle iron on the surface was an activity connected 

with the cutting and welding in the tunnel, and that his 20-minute 

absence from the torch head was not a substantial period of time. 3 

FMSHRC at 2668-69. 

On review the Secretary argues that if a welder operator leaves the 

immediate area of a welding operation for "any length of time," the tank 

contents cease to be in use and therefore the tank valves must be 

closed. The Secretary would, however, permit the welder operator to 

cease cutting or welding temporarily without turning off the tank valves 

so long as he "remains in the area of the torch, hose, and tanks attending 

to the welding activities commonly associated with his immediate job." 

We are persuaded only in part by the Secretary's approach. 

Before construing the standard we examine the evidence in this 

case, which indicates that cutting and welding tasks are often, if not 

typically, performed in an intermittent manner. Tr. 19-20, 24-25, 46-

47. For example, as this case illustrates, it is common practice to use 

a torch welder to cut metal and then weld the metal in place. In making 

the transition, the operator must turn off the torch head, adjust it to 

allow for welding, and then turn it back on. In addition, the gas tanks 

may be located for safety purposes some considerable distance from the 

burner head. Tr. 19-20, 24-25. Given that the distance between torch 

and tanks may be substantial (not only iμ t~rms of distance but also in 

terms of difficult terrain separating tanks and torch), it follows 

obviously that some measure of time must elapse for one person to shut 

off the torch valves and then proceed to the place where the tanks are 

stored. Further, in some circumstances the tanks may be stored, for 

safety reasons, in a place not easily and readily accessible. We note 

that the MSHA inspector who issued the citation testified that if the 

gas tanks were not located in the immediate vicinity of the torch, the 

operator could leave the torch for brief periods of time (under 10 

minutes in duration in the inspector's opinion) without being required 

to turn off the gas tanks. Tr. 46-47, 49. In view of the foregoing 

312 
considerations, it is not surprising that all parties agree that requiring the tank valves to be closed every time a burner is temporarily 

laid aside and turned off during the performance of a task would be very 

impractical and an unreasonable construction of the standard. ]_/ 

Thus we come to interpretation of a standard aimed at promoting 

safety for an essential welding operation within an underground mine. 

Absolute safety would require prohibition of hoses carrying oxygen and 

acetylene into a mine. Neither the Mine Act nor the regulatory standard 

at issue here imposes that prohibition. Instead, we confront a brief, 

generalized standard which, in contemplation of practicalities, requires 

interpretation for reasonable application in varying circumstances. The 

standard refers only to an "in use" criterion. As contrasted with 

MSHA's preproposal draft revision (n. 1 supra), the standard does not 

include an "attendance" test. 

The basis of the Secretary's argument on review appears to be 

concern for the possibility that the gas hoses could leak or be ruptured 

accidentally, while the tank valves are open, thereby causing release of 

the oxygen and acetylene with the further possibility of ignition or explosion within the mine. Clearly, avoidance of a disaster of that 

nature is the concern of Congress, the Secretary, the Commission, mine 

operators and, especially, miners. As the facts in this case show, the 

tanks were located on the surface about 100 feet from the torch head in 

the mine. For one person to traverse such distance, with no unusual 

obstacles, would require a few minutes -- perhaps 3 minutes and maybe 

more if the traverse were difficult. Consequently, even in the best of 

circumstances, instant communications between the torch site and the 

tank site would seem to be the proper means of adhering exactly to the 

mandate implicit in the Secretary's argument. But the standard makes 

no reference to such communication. 

Similarly, if the laying of hoses from oxygen and acetylene tanks 

located outside a mine to connect with a torch head inside a mine inherently 

represents a dangerous hazard, then it would seem plausible that the 

standard should have required a protective cover or sheathing for the 

hoses. This protective requirement, however, does not appear in the 

standard, which simply requires that the tank va:lves be closed "when the 

contents are not being used." 

]_/ We note too that the relevant OSHA fire prevention standard for the 

construction industry, 29 C.F.R. § 1926.352(g), also promulgated by the 

Secretary of Labor, recognizes the intermittent nature of torch welding 

tasks and permits the torch to be laid aside temporarily without tank 

valve closure. That standard provides in part: 

For the elimination of possible fire in enclosed spaces 

as a result of gas escaping through leaking or improperly 

closed torch valves, the gas supply to the torch shall be 

positively shut off at some point outside the enclosed 

space whenever the torch is not to be used or whenever 

the torch is left unattended for a substantial period 

of time, such as during the lunch period. 

(Emphasis added.) 

313 
It must have been contemplated in the drafting of the standard that 

some reasonable lapse of time be permitted between cutting and welding 

with the torch and closing of the tank valves. And, indeed, as we noted 

above, the Secretary would permit the welder operator to cease cutting 

or welding without closing the tank valves so long as he "remains in the 

area of the torch, hose, and tanks attending to the welding activities 

commonly associated with his immediate job." The OSHA construction 

standard would similarly allow intermittent laying aside of the burner 

without tank valve closure for non-substantial periods of time. 

We must interpret the standard involved in this case as it is 

written, and will not attempt at this time to essay a rule that would 

cover all situations of intermittent cutting and welding during the 

performance of a task. We conclude, for purposes of deciding this case, 

that an oxyacetylene torch welder being used for a task may ordinarily 

be laid aside without tank valve closure for reasons immed'iately related 

to the performance of that task and for a temporary period of time not 

inconsistent with the continuous performance of the task. We agree with 

the judge and the Secretary, however, that at some point such temporary 

laying aside during the performance of the specific task shades into a 

status of "not being used" within the meaning of the standard and does 

require tank valve closure. The presence of unusual risks or special 

circumstances may also require tank valve closure. In the absence of 

detailed guidelines in the standard itself, alleged violations of this 

standard must be evaluated on the basis of all the circumstances in each 

case. ii If the Secretary wishes to have a more detailed regulation 

incorporating such factors as attendance, two-way communications, protective sheathing for hoses, and specific temporal criteria, he is 

authorized under the Mine Act to revise the standard. As we have 

already noted, he is presently in the process of considering revisions 

to the standard. 

Our dissenting colleague argues that our interpretation engrafts 

new "exceptions" onto the standard. We respectfully disagree. This 

case requires us to construe the meaning of the key phrase, "not being 

used." "Use" has a temporal meaning because tasks extend over time. 

"Use" itself in this context refers to pe;rforillGj.nce_of work. Our 

"temporal" and "task-related" criteria are therefore natural constructions 

of the words in issue. Our interpretation is also consistent with the 

evidence showing the intermittent nature of torch welding tasks and with 

general safety considerations in this field, as ev:idenced by the Secretary's 

OSHA construction standard mentioned above. It appears to us that the 

differences between the Secretary's arguments in this case and our 

decision are differences of degree, not kind. 

ii This case does not require us to, and we do not, decide whether a 

temporary laying aside of the torch welder for other work~related 

reasons or for such purposes as coffee breaks, trips to the lavatory, or 

the like, would require a different approach. 

314 
Applying the foregoing principles to this case, we affirm the 

judge's vacation of the citation. On the morning of the citation, the 

torch welder was being used to make brackets. When the welder operator 

went to the mine surface, that task had not been finished. The purpose 

of his trip was certainly task-related--to obtain additional angle iron 

for completion of the job. The angle iron was in stockpile located 

about 50 feet from the tunnel entrance and about 50-60 feet from the 

oxygen and acetylene tanks in the cage over the headframe. He did not 

pass the gas tanks, and could not see them from the stockpile. Tr. 11, 

13. By happenstance, a torch was available at the stockpile site, so he 

used that torch to cut iron needed at the worksite, thereby apparently 

spending a few minutes more than was intended when he left the worksite. 

He was ready to return to the torch head after an absence estimated to 

be of no more than 20 minutes. This approximate 20-minute absence from 

the torch head was of temporary duration and directly related to the 

continuous performance of the specific welding task. The Secretary did 

not prove the existence of any special or unusual circumstances that 

would otherwise have required turning off the tank valves. Given these 

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

conclusion that the oxygen and acetylene were in use within the meaning 

of the standard and that the welder operator's relatively brief absence 

from the torch head to obtain materials for his on-going work did not 

create a non-use situation. 

On the bases explained judge's decision. 

L. Clair Nelson; .Conunissioner315 
Commissioner Lawson dissenting: 

The majority has not only created its own interstices in this 

case, but by fiat added to the standard and created confusion and 

ambiguity. It is both unnecessary and undesirable to add temporal 

and vocational exceptions to what is, after all, an uncomplicated 

standard with a clear purpose. 

That standard, under the rubric "Fire Prevention and Control" 

requires that "Valves on oxygen and acetylene tanks shall be kept 

closed when the contents are not being used." Webster's New Third 

International Dictionary (Unabridged) (1971) defines "use" as: "the 

act or practice of using something; to put into action or service; 

putting to service of a thing; to employ; to expend or consume by 

putting to use." Here the contents of these tanks were indisputably 

being used prior to the miner abandoning his underground work site 

to travel to the surface, and were not being used until the miner 

returned to the tunnel, and his underground job site. 

Stated otherwise, if this miner had not returned to this torch 

welder no further consumption of the contents of these tanks would 

have taken place, and the tank valves were required to have been closed 

upon his departure. It is beyond dispute that tanks with open valves 

are more dangerous than those with closed valves. It is admittedly not 

difficult, nor even inconvenient (Tr. 12), to manually shut off these 

valves. 

The statute--and the standard promulgated thereunder--was enacted 

to prevent mine disasters and death and injury to miners. Section 2(e). 

Secretary v. Old Ben Coal Co., 1 FMSHRC 1954, 1956-57 (1979). It is 

self-evident that permitting two separate, hundred foot lengths of 

rubber hoses (Tr. 8, 28), filled with oxygen and acetylene, to remain 

unattended (Tr. 13, 16, 22) along an underground mine floor subject to 

mine traffic (Tr. 33), connected to tanks full of these same flammable 

gases, is to invite disaster. 1/ Nor is the possibility of leaks from 

these hoses merely speculative-:- The miner witness of this operator 

testified tO Several prior OCCUrrenceS, inciudi~g Ones Where a II 

piece of iron has fallen and sliced the hose." (Tr. 21, 22). 

l/Acetylene, used in manufacturing explosives, is a "brillant ..• illuminating gas," which "[w]hen combined with oxygen ••. burns to produce 

an intensely hot flame and hence ••• is used principally in welding and 

metal-cutting flame torches." Dictionary of Mining, Mineral and Related 

Terms. Department of Interior, U. S. Bureau of Mines (1968). Another 

dictionary defines acetylene as: "A colorless, highly flammable· or 

explosive gas .••• " American Heritage Dictionary of the English Language 

New Collegiate Ed., at 10 (1968). 

Acetylene has an odor (Tr. 52) (Operator's Brief, p. 9) as contrasted 

with methane which has none (Tr. 51), and is admittedly highly combustible (Tr. 25). The hazards associated with the use of these tanks are 

well recognized elsewhere in 30 C.F.R. 57.4 and its subsections. 

316 
"Use" of the torch, the tool in this case, necessarily included 

the consumption o.f the oxygen and acetylene in the burning or cutting 

function being performed. The burning or cutting in this case requires 

human control, involvement and observation of the equipment, both to 

perform the work, and to prevent malfunction or accident. The standard 

contemplates that meaningful attention be given this burning operation 

because of the inherent dangers. (Tr. 25-27). 

When the miner using the torch leaves the work site, the equipment 

is not being used, nor observed, nor are the contents of the tank being 

consumed. The language of the standard permits no exception to the 

requirement that the valves must be turned off at the tank. Indeed, 

even the miner operating the torch here conceded that he had" .•• been 

instructed (by this operator) if I am going to be gone an unreasonable 

length of time and too far away, that we do turn our bottles off and 

bleed the lines." (Tr. 15). Testimony'was also presented that the 

likelihood of a leak being detected is greater if there were an employee 

attending the tanks. (Tr. 50-52). 

The confusion reflected in the majority's opinion is even more 

vividly revealed by the operator's own witness, Supervisor Powers, who 

testified that: " .•. in use means you're actually using the torch. That 

means you actually have it running." (Tr. 32, 58-59). 

As the majority notes, the facts in this case are "largely undisputed." Slip op. at 2. From those facts, however, the majority has 

determined that a miner engaged in operating an underground torch welder, 

who both ceases to operate that welder, and leaves the job site, in this 

instance for at least twenty minutes, is still using the contents of the 

tanks involved. J:j 

Beyond the obvious--the contents of the oxygen and acetylene tanks 

were not being used or consumed during the miner's absence--the majority's 

opinion fails to provide any guidance to either the mine operator or the 

Secretary as to what will or will not henceforth be deemed a violation 

of the standard. Connnents on possible revisions of the standard, or 

how it might have been written, may be connnendable but fail to address 

the case before us. Nor is any precedent cited by the majority in support 

of its opinion. 

"A temporary period of time" maybe superficially comfortable--if 

awkward--language but hardly withstands critical analysis. Slip op. at 

5. The majority not only fails to define "temporary", but its addition 

to the standard is not explained by reference to either the Act, its 

legislative history, or precedent. Twenty minutes, at a minimum, is 

now clearly established as a permissible period of time. No upper limit 

on "temporary" is enunciated; presumably the establishment of such will 

henceforth depend on the imagination and inventiveness of counsel, of 

whose ingenuity I have no doubt. 

2/ The majority errs in asserting that the MSHA inspector who issued the 

citation approved the torch operator's absence for "under ten minutes" 

without being required to turn off the gas tanks. (Tr. 46, 47). Slip 

op. at 3. Nor is there any record evidence of "difficult terrain" or 

"traverse" difficulties. Slip op. at 3, 4. 
The judge's vitiation of the standard by his declaration that " •.• I 

am not convinced that Warner's actions created any hazard because that 

condition will always exist whenever the lines are in use.", 3 FMSHRC 

2668 (Nov. 1981) (ALJ), begs the question, as does the majority's approval 

of the judge's holding • .2/ If that be so, then it must follow that any 

absence, for any reason and for any length of time, is permissible. 

The Secretary's pending attempt to revise the standard also fails 

to address the situation presented, since neither "system", "task", nor 

"unattended" are defined. 

Even less persuasive is the majority's attempt to additionally 

gloss this standard, or confuse the Secretary and mine operators, by 

requiring that the absence of the miner from the tanks be " ••• for 

reasons immediately related to the performance of that task." Slip op. 

at 5. One searches fruitlessly for any relationship between either the 

language or the purpose of the standard, and the reason for the absence 

of the miner. Nor does the majority explain the relevance of the reason 

for the absence to the standard's requirement for the safeguarding of 

the contents of these tanks, and most importantly, the miners who work 

with them. It appears self-evident that, whatever the reason for the 

absence, it bears no relationship to the purpose of the standard, which 

is to guard against malfunctions, and the accidental escape and ignition 

or explosion of this oxygen/acetylene mixture. A three minute trip to 

pick up one's paycheck is apparently now impermissible, while a twenty 

minute drive to the hardware store for task related reasons is nonviolative, under the majority's reasoning. 

In summary, the standard has now been rewritten by the majority, 

without even the assertion of a statutory, legislative, regulatory or 

judicial source for this newly promulgated modification. Fidelity to 

the Act compels acceptance of the interpretation--if there is an amgibuity, 

which does not appear to be the case--which will promote safety and prevent 

death or injury to miners. District 6, United Mine Workers of America et 

al v. United States Dept. of the Interior, Board of Mine Operations Appeals, 

562 F.2d 1260, 1265 (1977); UMWA v. Kleppe, 532 F.2d 1403, 1406 (1976) . 

cert. denied 429 U.S. 858 (1976); Munsey v. Morton 507 F.2d 1202, 1210 

(1974); Reliable Coal Corp. v. Morton 478 F.2d 257, 262 (1973), and 

Secretary v. Old Ben Coal Co., supra·at 1957, 1958. 

]/The quantity of gas which could be released, and the consequent area 

of hazard, would obviously be limited by closure of the valves at the 

tanks. And, of course, in an underground setting with conditions conducive to concentration of the escaped gas, the likelihood of explosion 

or fire in the confined and hazardous environs of a mine will grow 

accordingly. (Tr. 44, 48, 49). These tanks when in use are kept in a 

welded frame for protection to keep them from falling over. (Tr. 19). 

318 
The contents of these tanks were not being used or consumed at the 

time this citation was issued. The tank valves were not closed. Nor 

was this a situation in which the torch operator momentarily extinguished 

the torch while remaining at his work bench. The hazard of accidental 

ignition of highly flammable gases in an underground mine needs no 

verbal underpinning. "Temporary" periods of absence, for task related 

reasons, is not approved in this or any related standard. 

. To me a violation of the standard, a very serious violation, of a 

magnitude with devastating potential for injury or death to miners, for 

whose protection this Act has been written, has been established. 

I therefore dissent. 

A. E. Lawson-,COmmissioner 

318 
Distribution 

John A. Snow 

Van Cott, Bagley, Cornwall & McCarthy 

Suite 1600 

50 South Main Street 

Salt Lake City, Utah 84144 

Michael McCord 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Administrative Law Judge John Morris 

Fed. Mine Safety & Health Review Commission 

333 West Colfax Ave., Suite 400 

Denver, Colorado 80204 

320 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

UNITED STATES STEEL CORP., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

UNITED STATES STEEL CORP., 

Respondent 

Contest of Orders 

Docket No. WEST 81-356-RM 

Order No. 0583637; 7/6/81 

Docket No. WEST 81-357-RM 

Order No. 0583638; 7/6/81 

Docket No. WEST 81-358-RM 

Order No. 0583639; 7/6/81 

Keigley Quarry 

Civil Penalty Proceedings 

Docket No. WEST 81-395-M 

A.O. No. 42-00021-05006 

Docket No. WEST 81-394-M 

A.O. No. 42-00021-05005V 

Keigley Quarry 

DECISIONS 

Appearances: Louise Q. Symons and Billy Tennant, Attorneys, Pittsburgh, 

Pennsylvania, for U.S. Steel Corp.; Robert A. Cohen, Attorney, 

U.S. Department of Labor, Arlington, Virginia, for MSHA. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings were docketed for hearings on the 

merits in Salt Lake City, Utah, during the term September 21-22, 1982. 

Dockets WEST 81-394-M and 81-395-M are the civil penalty proposals filed 

by the Secretary pursuant to Section llO(a) of the Federal Mine Safety 

and Health Act of 1977, seeking civil penalty assessments for a total 

of four alleged violations of mandatory safety standard 30 CFR 56.9-2. 

Dockets WEST 81-356, 81-357, and 81-358 are contests filed by the United 

States Steel Corporation challenging the legality of the issuance of three 

of the citations. 

322 
The citations and orders which are the subject of these proceedings' 

are as follows: 

Docket Nos. WEST 81-395-M and WEST 81-356-RM 

Citation No. 0583637, is a combination section 104(a) citation and 

a section 107(a) "imminent danger" withdrawal order issued by an MSHA 

inspector on July 6, 1981. The inspector cited a violation of mandatory 

safety standard 30 CFR 56.9-2, and indicated that the alleged violation 

was "significant and substantial". The condition or practice cited by 

the inspector on the face of the citation is as follows: 

The service brakes on the company No. 7 Euclid 

Water truck would not hold the truck in 1st, 

2nd, 3rd or 4th or in neutral gears on the ramp 

by North Truck shop. Also, the other three brakes 

applied along with service brakes would not hold. 

This truck works in the plant and pit apron 

around pool traffic, small vehicle and haul truck 

traffic. 

Docket Nos. WEST 81-394-M and 81-358-RM 

Section 104(d)(l) citation No. 0583636 was issued on July 6, 1981, 

at 2:00 p.m., and cites a violation of mandatory safety standard 30 

CFR 56.9-2. The inspector indicated that the violation was "significant 

and substantial", and the condition or practice is described as follows 

on the face of the citation: 

The emergency brake to the drive line, the torque 

brake to the converter, and the dump park brake 

would not hold the company No. 7 Euclid water truck. 

Would not hold in 1st, 2nd, 3rd or 4th gear in idle. 

This truck waters the plant area 8 times daily, 

the haul roads, and the pit area. These areas are 

used by foot traffic, small vehicle and have truck 

traffic. These conditions have been reported 

several times to supervision. This is an unwarrantable 

failure. 

The inspector fixed the abatement time for the citation as 12:00 p.m., 

July 12, 1981. However, he subsequently terminated the citation on 

July 8, 1981, and the reason for this action is shown on the face of 

his termination notice as follows: 

The battery for the No. 7 Euclid Water truck was 

removed. The truck was put on the repair line. 

Section 104(d)(l) Order of Withdrawal No. 0583639, was issued at 

2:10 p.m., July 6, 1981, and the inspector cited an alleged violation of 

323 
mandatory safety standard 30 CFR 56.9-2. He also found that the alleged 

violation was "significant and substantial", and his order removed the 

Dart 35 ton haul truck no. 18 from service. The condition or practice 

cited by the inspector on the face of the order is stated as follows: 

The service brakes and dump brakes on the Dart 

35 ton company No. 18 haul truck when applied 

on the level at idle, 550 I'J>M, wouldn't hold. 

This truck works in the pit and around other haul 

trucks, small vehicle and foot traffic. These 

conditions have been reported to supervision. 

This is an unwarrantable failure. 

The inspector relied on the previous section 104(d)(l) citation 

number 0583636, July 6, 1981, as the basis for his order (See modification 

of July 7, 1981). The order was subsequently terminated at 3:30 p.m., 

on July 8, 1981, and the action taken by the operator is described on 

the face of the termination notice as follows: 

All brakes were restored to adequate operating 

condition. 

Docket Nos. WEST 81-394-M and 81-357-RM 

Section 104(d)(l) Order No. 0583638, is a withdrawal order issued 

at 3:00 p.m., July 6, 1981. The inspector cited an alleged violation of 

mandatory safety standard 30 CFR 56.9-2, and concluded that the violation 

was "significant and substantial". The condition or practice cited is 

described by the inspector on the face of the order as follows: 

The service brakes, dump brakes, and park brakes 

on the haul pack 35 ton company No. 10 haul truck 

would not hold on the grade at the North truck 

shop. All three brakes were applied and the truck 

was placed in 1st, 2nd, 3rd, 4th and neutral 

gears and the brakes would not hold. This truck 

works in the pit area around other haul trucks, 

small vehicle and foot traffic. This is an 

unwarrantable because this has been turned into 

supervision. 

The inspector cited the previous section 104(d)(l) citation 

number 0583636, July 6, 1981, as the basis for his order, and the order 

withdrew the cited No. 10 haul pack truck from service. 

The order was subsequently terminated on July 8, 1981, at 3:00 p.m., 

and the action taken to by the operator is described on the face of the 

termination notice as follows: 

All brakes were put into adequate operating 

condition. 

324 
Issues 

Docket WEST 81-356, concerns a combined section 107(a) order and 

section 104(a) citation. The issues presented are whether the conditions 

or practices cited by the inspector constituted a violation of the cited 

mandatory safety standard, and whether those conditions constituted an 

imminent danger. 

Dockets WEST 81-357 and 81-358, concern the legality and propriety 

of two section 104(d)(l) unwarrantable failure orders, which the inspector 

believed were "significant and substantial" violations. The remaining 

civil penalty dockets, WEST 81-394 and 81-395, are the civil penalty 

proposals filed by MSHA seeking civil penalty assessments for the citations 

which have been contested. 

In determining the amount of a civil penalty assessments, section 

llO(i) of the Act requires consideration of the following criteria: (1) 

the operator's history of previous violations, (2) the appropriateness of 

such penalty to the size of the business of the operator, (3) whether 

the operator was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of the violation. 

Additional issues raised by the parties are identified and disposed 

of in the course of these decisions. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

30 U.S.C. § 801 et ~ 

2. Commission Rules, 29 CFR 2700.1 et ~ 

Stipulations 

The parties stipulated that the Keigley Quarry is subject to MSHA's 

jurisdiction, that the operator U.S. Steel Company is a large operator 

and that any reasonable penalties assessed will not affect its ability to 

continue in business. The parties also agreed that all of the citations 

issued in these proceedings were abated in good faith, that the inspectors 

who issued them were duly authorized representatives of the Secretary, 

and that for the purposes of these proceedings U.S. Steel's history 

of prior violations at the quarry in question consists of six citations 

issued during the 24-months prior to the issuance of the citations in 

question in these cases (Tr. 4, Exh. G-1). 

MSHA's Testim~and Evidence 

Bernard A. Oberg, Maintenance Foreman, Keigley Quarry, testified 

that he was working at the mine on July 6, 1981, during the day shift, and 

325 
he indicated that he is responsible for maintaining the trucks in good 

repair after he receives notification from the drivers or foremen that 

repairs are needed. His procedure is to schedule maintenance work from 

any notes turned in by the truck drivers on their daily reports which 

may reflect that some work is required on a particular vehicle. Generally, 

the decision as to whether any particular truck may be kept in service 

and driven is left to the driver, but trucks with bad brakes are not 

permitted out of the shop (Tr. 9-13). 

Mr. Oberg testified that in July 1981, he was in charge of the 

maintenance program at the quarry, and he confirmed that there were some 

problems because of the age of some of the trucks, lack of manpower, and 

the lack of money to purchase new ones. He described the trucks as 

being in "fair to good condition", and indicated that in general "most of 

the vehicles have pretty good brakes". He also confirmed that because of 

equipment breakdowns, all of his manpower was used to repair other equipment and less attention was paid to the trucks (Tr. 15). 

Mr. Oberg confirmed that MSHA Inspector Goodspeed cited several trucks 

on July 6, 1981, because of inadequate brakes, and he confirmed that the 

No. 7 water truck was ordered removed from service by the inspector because 

he believed the brakes were inadequate. The inspector gave him permission 

to take the batteries out of the truck, but he (Oberg) did not speak 

with truck driver Charles Gonzales about the condition of the truck, but 

he did confirm that he received a written report from Mr. Gonzalez about 

the inadequate brakes on the truck and it was dated that same day. However, 

he had no idea when Mr. Gonzales made his report, but indicated that they 

are usually turned in at the end of the shift at 4:00 p.m. Mr. Oberg 

conceded that the No. 7 water truck brakes "needed some minor attention", 

and he did not dispute Mr. Gonzales' report which indicated that the 

brakes "were bad". Mr. Oberg conceded that the brakes "were poor" (Tr. 20). 

Mr. Oberg described the braking systems on the No. 7 water truck, 

and he confirmed that repair work on the truck was made in his maintenance 

shop, and he indicated that new brake shoes were installed on all four 

wheels and that a chipped bearing on the front wheel was replaced. The 

drive line to the parking brake had to be replaced because it had been 

left on. He confirmed that the parking brake was not working, and that 

if the truck were parked on a hill "it may run away depending on where 

it was at" (Tr. 22). He also confirmed that the retarder braker was 

working, but that the dump brake "would not hold the !:ruck on the level 

that he wanted us to hold it on" (Tr. 24). He indicated that after the 

truck was repaired, it was road tested and that all of the brakes worked 

much better after they were repaired. He conceded that the brakes on 

the true~ in question were in need of repair (Tr. 25). 

Mr. Oberg stated that the No. 7 water truck was converted from an 

old haulage truck, but that nothing was done to the brakes at the time 

of the conversion. He confirmed that the truck travels the same roads 

as the haulage trucks, but that drivers "did not care to use the truck 

on the hill, hauling loads, because of the fact that it did have poor 

brakes. They were poor when the truck was new", and he explained the 

situation further as follows (Tr. 44): 

326 
A. Every time you would ask the people who delivered 

the truck there, they said, "Hey, these brakes are only 

meant to stop the truck on a final stop. They are not 

to bring the truck off the hill. That is done by the 

converter brake." 

Q. So the reason it was changed from a haulage truck 

to a water truck was because you had complaints on 

the vehicle? 

A. We had drivers that didn't want to drive the truck. 

Mr. Oberg confirmed that the No. 10 K-W haul truck was also taken 

out of service by the inspector on July 6, 1981, because the inspector 

believed that it had "bad brakes". Mr. Oberg stated that the truck 

"hauls off the hill every day of the week, on every shift that we work 

it" (Tr. 26). He confirmed that after the truck was cited the driver and 

a mechanic drove it and they found that the brakes were "not working 

properly". Although the truck had brakes, the mechanic found that they 

"were not working the way that he felt they should". The truck was taken 

to the shop and the brake linings on all four wheels were replaced. He 

also had a local brake contractor, Southwest-Kenworth, check out the truck 

hydraulic master cylinders, and they found two that were not working 

properly. However, all four of the master cylinders were repaired. The 

faulty master cylinders would affect the brake pressures, but the brake 

linings which were on the truck before they were replaced had about 

"three quarters of linings left". In addition, the truck parking brake 

needed to be adjusted, and the linings were replaced, but the torque 

brake was functioning fine and was not repaired. Mr. Oberg identified 

exhibit G-5 as a copy of the field service report prepared by the contractor 

for the No. 10 truck (Tr. 26-31). 

Mr. Oberg testified as to the condition of the brakes on the No. 18 

haulage truck, and he confirmed that it was an old secondhand truck. 

He confirmed that when the truck was checked there were "a few minor 

problems with the brakes, mainly on the left side" (Tr. 32). He indicated 

that the brake cam shafts that rotate the brake shoes and lock the wheels 

were worn, had not received enough grease, and were starting to freeze up. 

He confirmed that these conditiorawould possibly affect the ability of 

the vehicle to stop within a certain distance and that the brake shoes 

"would have to travel farther and wouldn't come on quite as quick" (Tr. 32). 

He also confirmed that he did not personally road test the truck, but 

that the mechanics stated that "there were brakes on there, but they 

needed adjusting." Once the mechanic began to adjust them he found the 

shaft that was not operating, and all of the wheels were pulled and the 

repairs were made (Tr. 33). The front brakes were adjusted and an air 

leak was repaired (Tr. 34). The malfunctioning front brakes would also 

affect the functioning of the service brake (Tr. 38). 

32:7 
Mr. Oberg testified that he did not personally work on any of the 

cited trucks, but that the work was done under his direction. He also 

confirmed that he did not drive any of the trucks because it is against 

company policy for a foreman to drive any trucks, and he indicated that 

the last time he drove one when when he was employed as a shop mechanic 

(Tr. 40). He identified exhibit G-6 as a copy of the repair report for 

the No. 18 truck prepared by Southwest-Kenworth (Tr. 42). He also 

confirmed that the report reflects that the truck brakes were "very poor", 

and while the truck did have brakes he conceded that they were not adequate 

(Tr. 42). Mr. Oberg stated that had he known of the conditions of all 

of the trucks prior to the time the inspector cited them for the braking 

conditions in question he would have pulled them all in and had them 

repaired (Tr. 44-45). 

Charles Gonzales testified that he is employed as a laborer at the 

quarry, but that in July 1981 he worked as a temporary haulage truck 

driver filling in for drivers who were on vacation. He confirmed that 

he is president of the local union at the mine, and was in that capacity 

in July 1981. He also confirmed that he drove the No. 7 water truck, 

and also drove the other water truck, and that the water trucks are used 

to keep the dust down on the mine haul roads. The No. 7 truck has a 2,000 

gallon capacity, and while he drove it approximately eight hours a day, 

he could not state how many miles it would be driven on any given day 

(Tr. 50-52). 

Mr. Gonzales testified that on July 6, 1981, he accompanied 

Inspector Goodspeed on a walkaround inspection, and when Mr. Goodspeed 

inquired about the condition of the brakes on the No. 7 water truck, 

Mr. Gonzales told him that "they weren't very good". Mr. Goodspeed then 

accompanied him in the truck to the water tower for a load of water, and 

as they descended from the "pretty sharp incline" he advised Mr. Goodspeed 

that the brakes were "not very good". He then traveled to another hill 

leading towards the north shop and when Mr. Goodspeed asked him to try 

the brakes "they wouldn't hold on that hill". Mr. Gonzales indicated 

that when he first started down the hill from the water tower he was in 

first gear because he did not want to come down too fast with a load 

of water, and he confinned that this was his usual procedure because he 

feels safer driving in first gear and that this gives him additional 

braking (Tr. 52-54). He was aware that the truck brakes were not very 

good, but he did not test them at that time (Tr. 55). 

Mr. Gonzales stated that after coming off the hill from the water 

tower, the road straightened out just before descending towards the shop 

area and that this portion of the road is a long incline. He was traveling 

at a speed of five to ten miles an hour and when he applied the foot brake 

pedal the vehicle would not stop and it "just kept rolling". Had the 

brakes been working properly, the truck should have stopped on the hill. 

He also confirmed that he applied the "oil" or retarder brake and the park 

brake, but that these would not stop the truck (Tr. 57). He believed 

that the application of these two braking systems should have slowed the 

328 
truck down, but indicated that they are not meant to stop the vehicle 

completely. He confirmed that the parking brake would not hold the truck 

on the hill (Tr. 58). 

Mr. Gonzales stated that drivers "walkaround" their truck to check 

the tires and lug nuts, but that the only way to check the brakes is 

while the vehicle is in motion. He confirmed that he could refuse to 

drive a truck if he is not happy with the brakes, and while the brakes 

on the water truck were inadequate prior to July 6, 1981, he never refused 

to drive it because he was trying to do the best that he could to keep 

the dust down on the roads with the truck that he had. If he refuses 

to drive any particular truck, he would be given another truck to drive 

or assigned to other work (Tr. 60). He confirmed that he orally advised 

hill foreman Keith Barnett a week prior to J9ly 6, 1981, that the water 

truck brakes would not hold the truck on the hills. He assumed that 

Mr. Barnett would report this condition to Mr. Oberg, and he (Gonzales) 

did not follow up on it because he "expected that they would get them 

fixed when they got around to them (Tr. 62). The truck was not taken 

out of service and it was driven until the inspector issued the citation. 

He drove it about three months prior to the time it was cited and he 

indicated that the brakes "were getting bad then. They just kept getting 

worse all the time" (Tr. 62). 

Mr. Gonzales identified exhibit G-7 as the report he filled out on 

July 6, 1981, for the water truck in question, and while he could not 

recall when he filled it out, he confirmed that they are usually turned 

in at 3:45 p.m. Mr. Gonzales stated that the inspector advised him to 

take the truek out of service after they tested the brakes on the hill 

incline north of the shop, and he indicated that the inspector was not 

hostile but "just doing his job" (Tr. 64). He confirmed that he drove 

the truck after it was repaired and that the brakes would hold the truck 

on the hill and he felt safer driving it (Tr. 65). When asked whether 

the condition of the brakes on July 6, 1981, before they were repaired 

affected safety, he replied as follows (Tr. 67-68): 

A. Well, let me put it this way. I could stop 

the truck. But if it had been an emergency, say 

if I had to stop it in a hurry, I couldn't stop 

it. 

Q. Can you visualize a situation where you would 

have to do that in the operation of your daily 

routine? 

A. Well, I'm in and out of haulage trucks, and 

I have to come down that incline and go through 

the north shops, and in front of the other shops. 

Somebody could pull out in front of me, or something, 

and if I would have to stop real quickly, I don't 

think I could have done it, no. 

329 
Q. Are there miners walking on the road where 

you generally operate your vehicle? 

A. Just down in the shop area. 

Q. In your daily operation, would you pass fairly 

close to these people? 

A. Yes. I used to drive in front of the shops 

three or four times during the day for a sprinkle 

of water out there, to keep the dust down. 

Q. Could you visualize a situation, under those 

circumstances, where you would have to stop quickly? 

A. Like I say, if I would have had an emergency 

stop, I couldn't have made it. 

Q. You thought you couldn't have done it? 

A. Yes.· That's exactly right. 

On cross-examination, Mr. Gonzales confirmed that he drove the water 

truck for some three hours before the inspector arrived for his inspection. 

He also confirmed that he was with the inspector for a couple of hours 

before he got around to inspecting the water truck, and that prior this 

time the inspector had inspected some other haulage trucks in the pit area. 

Mr. Gonzales confirmed that during his normal course of work he would 

drive with a load of water down the same slope where the truck was tested 

with the inspector (Tr. 71). He confirmed that he did not previously 

report the brake conditions of the truck in writing on his daily reports, 

but did report it orally and the foreman "writes it down on a notebook" 

(Tr. 74). He also indicated that foreman Barnett told him he "was tired 

of writing it down" (Tr. 75). 

Norman Thomas confirmed that he was employed at the quarry on 

July 6, 1981, as a truck driver and that he operated the No. 10 haul truck 

from the pit area to the mill or to the waste dump. He indicated that 

the truck is a 35 ton truck, and he confirmed that it was cited by 

Inspector Goodspeed on July 6, 1981, and that he was the driver during 

the day shift. He confirmed that the brakes on the truck "haven't 1,een 

good for three or four months, maybe longer than that" prior to the time 

the inspector cited it (Tr. 98). He stated that on July 6 "you could 

put on all the brakes and they wouldn't hold you with a load on that hill". 

He identified "the hill" as "the one by the north shop that we tested 

it on" (Tr. 98). He confirmed that he had previously reported the brake 

conditions to shift boss Ed Westover or Keith Barnett within a month 

prior to July 6th, and that the reports were either oral or in writing 

(Tr. 99-100). 

330 
Mr. Thomas confirmed that he has the right to refuse to operate a 

truck that is not in safe condition, but he could not recall refusing 

to operate the No. 10 truck. He did not believe that the truck could be 

safely operated on July 6, but he indicated that "we did it just to get 

by". He also stated that the shift boss would comment "Well, if we can 

just get by today, maybe we can get with it" (Tr. 101). He confirmed 

that the mechanics had a lot of work, and he indicated that because of 

the brake conditions he had to take extra precautions when driving the 

truck. He confirmed that he operated the truck at speeds of 15 to 20 

miles an hour~ but indicated that the speedometers would never work (Tr. 102). 

Mr. Thomas stated on July 6th Inspector Goodspeed tested his truck 

by having him apply the brakes while the gas pedal was depressed and the 

truck engaged in third gear. The brakes would not hold the truck and 

"it just creeped away". The truck was then driven to a hill and placed 

in neutral, and when the brakes were applied while going three or four 

miles an hour "it still just rolled off" (Tr. 104). Mr. Thomas stated 

that he applied the service brake and the retarder and it still would 

not stop the truck. He also indicated that the dump brake was not working 

properly, and that when he was loading the force of the load being dumped into 

the truck would push the truck forward and the brake would not hold. He 

conceded that he did not report that specific condition to mine management 

but simply told them that "the brakes were no good" (Tr. 107). He 

believed that the defective dumping brake posed a hazard around the loading 

areas and that the other bad brakes posed a hazard since he would be unable 

to stop the truck if someone were to run in front of him (Tr. 107-108). 

Mr. Thomas confirmed that the truck was taken out of service after 

it was cited by the inspector, and that after it was repaired the stopping 

capacity of the brakes improved (Tr. 110). He confirmed that it was 

company policy to report truck defects to the shift boss, but that the 

mechanics did not come to the pit areas to inspect any of the trucks. 

When asked whether the condition of the truck brakes affected his ability 

to safely operate the vehicle he replied '~es and no. Yes, they wasn't 

good enough to stop if you had to stop real quick" (Tr. 112). He did 

consider the brake conditions to be "a minor problem", and he stated that 

"They could be fixed. But how long it was going to take them to fix 

them, I didn't know" (Tr. 113). He also indicated that "you could get 

by with it, but it wouldn't be something you wanted to drive every day 

of the week". He never reported the brake conditions to the safety 

committee because he did not know who was on the committee, and he could 

recall no instances when the company took the No. 10 truck out of service 

after he reported the brake conditions (Tr. 114). 

On cross-examination, Mr. Thomas confirmed that he had driven the 

No. 10 truck for four or five hours on July 6th before the inspector 

arrived on the scene. He described his normal route of travel that day, 

but could not recall whether he had driven the truck the week before, nor 

could he recall exactly when he had reported the brake conditions to 

331 
his foreman (Tr. 118). He confirmed that Inspector Goodspeed asked him 

to drive the truck to a hill that he ordinarily used to get back and 

forth from the shops and that the brakes were tested in that hill area. 

He confirmed that he applied all of the brakes on a level while also 

applying the accelerator and the brakes would not hold (Tr. 120-121). 

After this test, he proceeded to the hill and applied the dump brake 

while coming down the hill at five miles an hour, but the wheels did not 

lock and it would not stop the truck (Tr. 123). He stated that "I might 

as well have pushed in on the clutch, if I had one, because it didn't slow 

me down one bit" (Tr. 125). He confirmed that the truck was in neutral 

when he tested the brakes, and conceded that he normally kept it under 

control by driving it in second gear when descending a hill (Tr. 126). 

He confirmed that he had filled out reports stating that the brakes were 

bad, but he could not recall when he did this (Tr. 127-128). When asked 

why he had not reported the brake conditions before the inspector cited 

the truck, he replied (Tr. 131): 

Because on the back of this, I had writer's cramp 

from writing down the things. After recording them 

for so long, they don't want to fix them, so what do 

you do? I got a family to feed, so that's what 

I do instead of getting in trouble with the management. 

In response to further questions, Mr. Thomas confirmed that when 

the truck brakes were tested on the flats and on the hill, the brakes 

would not hold, and he also confirmed that he knew before the test that 

the brakes weren't very good but that he had no idea about the kinds of 

tests that would be made by the inspector (Tr. 135). He also confirmed 

that no one from maintenance tested the brakes while he was driving the 

truck in question (Tr. 135). 

Stephen Farr testified that he is unemployed but that he did work 

at the quarry in question and that on July 6, 1981, he was employed there 

as a truck driver on the No. 18 truck. He stated that except for the 

brakes the truck was in good condition. He stated that the drive-line 

brake, the service brake, and the dump brake would not stop the truck when 

they were tested (Tr. 140). He confirmed that the inspector got into 

the truck and it was first tested on level ground in front of the hopper. 

The park brake was engaged and the engine was under 1,000 rpm's when 

the brake was engaged and the truck moved forward. The truck advanced 

at a slow speed and then picked up a bit, and this indicated to him that 

the brakes weren't very good. He also tested the service brake in the 

same gear and with the same rpm's and the truck continued forward, even 

with ·the brake pedal all the way down. The same result was achieved 

when the dump brake was similarly tested (Tr. 140-144). After these tests, 

Mr. Goodspeed advised him that the truck did not meet the standards and 

he instructed him to drive it down the same hill that the other trucks 

had been tested on to a parking area past the north shop. As they 

proceeded down the hill, the inspector asked him to again test the brakes 

and the brakes would not hold. Mr. Farr had to slow the truck down by putting 

the transmission in reverse, and he believed he was half way down the hill 

in third or fourth gear at this time doing about five miles an hour (Tr. 145). 

332 
Mr. Farr stated that had the truck brakes been in good condition 

the service brake would have.stopped the truck on the hill where it 

was last tested, and that after the brakes w~re repaired the truck could 

be stopped by the service brake. He believed that the test performed 

by him and the inspector was a fair test and that the road grade where 

the test was performed was similar to the road grades he used every day 

during the course of driving the truck in question and the conditions 

were similar. In fact, he indicated that the brake tests were conducted 

while the truck was unloaded. Mr. Farr believed that each driver should 

test his truck daily to insure that the brakes operated properly. However, 

he indicated that the former site superintendent insisted that each 

driver arrive at his work station within ten minutes and that this resulted 

in the driver's making a hasty walkaround inspection of their vehicles 

(Tr. 149). 

Mr. Farr confirmed that he was a member of the mine safety committee 

and that safety meetings were called to discuss the possibility of driver's 

being given more time to inspect their vehicles with company management, 

but nothing ever came of this (Tr. 150-151). He also confirmed that 

prior to July 6, 1981, he had made both verbal and written reports about 

the brake conditions on the No. 18 truck, but he could not confirm the 

dates on which these were made. He also indicated that reports were 

made to Mr. Barnett or Mr. Westover, but that no one would ever tell 

him what was done to correct any problem. However, he did confirm that 

he was given the opportunity to use other trucks while his was being 

repaired (Tr. 155). 

Mr. Farr confirmed that he was aware of the fact that he could 

refuse to drive a truck which he felt was unsafe. He also confirmed that 

he had previously refused to drive the No. 18 truck because of a steering 

problem and not because of faulty brakes. He indicated that the steering 

problem was corrected the next day, and no one told him he had to drive 

it when he initially refused to do so (Tr. 157). When asked to explain 

why he continued to drive the drive the truck if he thought the brakes 

were inadequate, he responded as follows (Tr. 158): 

A. Well, I think that your brake wear is kind of 

a gradual thing. Sometimes that creeps up on you 

before you realize that you are already there, as far 

as wearing goes. So the, I think the Federal Mine 

Safety Board sets standards to help us to determine 

when we've reached that point. This particular day, 

when Mr. Goodspeed came down, we were reminded of 

what those are. Like anyone else, if you're not 

making your employer money, they are not wanting 

you around, either. 

Q. Were the brakes ou the No. 18 truck gradually 

getting worse up until the time that the order was 

issued, or were they in the same relative condition 

for a period of time? 

333 
A. I don't think it was a sudden thing, no. 

As I commented before, there was a time prior 

to that date that the parking brakes did work 

and, I think, the park brake is the easiest 

of any of them, you might say, to burn out or 

wear out. While the wheel brakes take longer 

to wear out. I don't believe that truck had 

worn out brake shoes on it, except for the 

drive-line brake. It has smaller shoes and 

heats up faster. 

Mr. Farr could not specifically recall when he had last driven 

the truck in question prior to the inspection of July 6th, but he 

was aware of the fact that the brakes were not working properly 

that same morning before the inspector cited it because of the tests 

that he (Farr) had performed on it. He had tested the service and 

dump brake on an incline and they were not operating according to 

his own standards, and while he had the option of turning the truck 

down he elected to go ahead and drive it. He indicated that he would 

probably have continued driving it all day if the inspector had not 

arrived on the scene (Tr. 162). He later determined from Mr. Oberg 

that the drive-line brake shoe linings were burned out, and he received 

a list showing the repairs which were made to the truck in question. 

He also learned that the truck was out of service for several days 

awaiting parts, but that after the repairs were made the truck brakes 

worked better and the service brake was able to bring the truck to 

a stop (Tr.163-164). When asked whether he believed the condition 

of the brakes prior to the issuance of the order on July 6th had any 

affect on safety, he replied as follows (Tr. 166): 

THE WITNESS: Like I say, if I were to happen 

to stop that truck on a hill, on an incline, 

it wouldn't have held. There have been occasions 

where there have been parts of vehicles laying 

alongside the road, lug nuts, rock bars, whatever else it might be. It's our responsibility, 

the driver's to move them out of the road, 

rather than run over them and ruin tires. That's 

pretty hard to do if your truck won't hold you. 

On cross-examination, Mr. Farr explained the operation of the 

dump brake on the No. 18 truck, and he conceded that it was not intended 

334 
to hold a truck while it is in motion. However, he believed that 

a park brake should hold a vehicle from going backward or forward, 

and he confirmed that when he was with the inspector he tested 

the park brake "on the mill flat by the hopper, and on the hill" 

(Tr. 177). He also stated that during his normal operation he used 

the truck retarder brake and also his gears while descending grades 

(Tr. 178-179). He also confirmed that all of the brakes were tested 

on July 6th on the level and on the hill when he was with the inspector (Tr. 180). 

Mr. Farr confirmed that MSHA had conducted previous inspections 

at the quarry and that other inspectors had tested the brakes on 

the trucks. Some were tested "on the level", some inspectors simply 

determined whether the brakes would stop a truck, and other inspectors 

wouldn't check them at all (Tr. 182). He also confirmed that he 

reported the brake condition on the truck in question the day of 

the inspection but he could not recall the date when he reported it 

previously, but believed it may have been a week or two prior to 

the inspection (Tr. 186). He also confirmed that the brake conditions 

on the trucks were discussed at safety committee meetings where 

Mr. Barnett was present, but he could not recall any of the specifics, 

nor could he recall whether the No. 18 truck was specifically mentioned 

(Tr. 187-191). 

Mr. Farr confirmed that he knew the brakes were bad when he 

drove the No. 18 truck on July 6th, and he also knew that he was 

putting his own personal safety in danger but stated "I was going 

to ride it" (Tr. 197). He could not state why the inspector did not 

cite the "park brake" or the "truck brake on a slope" as part of the 

cited conditions (Tr. 198). 

MSHA Inspector Tyrone Goodpseed, confirmed that he has had prior 

truck driver experience, and has taken some MSHA training courses 

dealing with loading, hauling, and dumping. He confirmed that he 

conducted a regular mine inspection at the quarry on July 6, 1981, 

and that this was his first visit to that mine. He also confirmed 

that he inspected the trucks which were cited. He bagan with the 

No. 7 water truck because it was the first one available. He 

accompanied truck driver Gonzales on a test run of the truck, and 

then asked him to make his normal run to see how the brakes worked. 

The brakes were tested during the trip along the road by the water 

incline. The service brake and park brake were tested on the flat 

level area of the roadway and they would not slow the truck down 

(Tr. 203-212). 

335 
Mr. Goodspeed stated that when the No. 7 truck was tested on the 

level flat area, it was going four or five miles an hour, and when he 

asked Mr. Gonzales to apply the service brake fully, it did not hold and 

the truck kept rolling. Arter "pumping" the brakes and applying the 

parking brake, the truck gradually stopped. Mr. Goodspeed confirmed that 

he issued imminent danger order No. 583637 primarily because of the service 

brake, even though the other three brakes did not work (Tr. 214). When 

the service brake was applied during the test, the truck was in third 

gear while in motion, and after coming to a complete stop, he goes 

through a regular procedure in testing the truck brakes with the engine 

running and while the truck is in a "creeping motion". The procedures 

he uses are detailed in certain guidelines as reflected in exhibits G-8, 

G-9, and G-10, and he uses these in conjunction with what he has 

learned during his inspector's training (Tr. 214-221). 

Mr. Goodspeed confirmed that he tested the truck on the level porti"4l 

of the property and also on a ntne percent hill, and he explained how 

he asked Mr. Gonzales to test the brakes. After the testing, he advised 

Mr. Gonzales that he considered the truck to be an imminent danger and 

that he was going to ask the company representative to take it out of 

service (Tr. 223). He advised Mr. Westover that he was going to issue 

him an imminent danger order, and told him that the truck would have 

to be fixed before it could be put back in service. Mr. Westover had the 

mechanics remove the battery from the truck and render it inoperable 

(Tr. 224). 

Mr. Goodspeed stated that Mr. Gonzales told him that he had informei 

mine management on several occasions that the brakes did not work, and 

that Mr. Oberg informed him that "the brakes on this unit have never 

worked" (Tr. 224). Mr. Goodspeed also indicated that he reviewed some 

company maintenance records, but he could not state with any certainty 

whether or not he found any recorded record or notations concerning the 

brakes in question (Tr. 225-226). He also indicated that his notes do 

not reflect that he found any records to show that anyone had complained 

about the brakes (Tr. 228). 

When asked for his opinion as to whether the brake conditions he 

cited had an affect on safety, Mr. Goodspeed stated as follows 

(Tr. 229-231): 

Q. Do you have an opinion as to whether the 

conditions described in the citations had an 

affect on safety? 

A. Did it have any affect on safety? 

Q. Yes. 

A. Yes, it did. Definitely. 

336 
Q. Why do you say that? 

A. Because there was no way that he could control 

that vehicle when we were coming off that hill, as 

far as braking it and stuff like that, and being able 

to stop it. 

Q. Did you reach an opinion as to the condition of 

the service brakes on the No. 7 water truck after your 

test, as to the condition of the service brakes? 

A. Yes, I did. When we came down the hill and the 

service brakes would not even slow it down. And this 

vehicle operates in and around that plant area with 

foot traffic and et cetera, and in the shop area, and 

you have your general offices and there were people 

in the area at this time --

Q. I understand that. But what was your opinion of 

the condition of the brakes? 

A. I thought that they were inoperable. They were 

very unsafe. 

Q. There must have been some affect that the service 

brake had on slowing the vehicle. Was it completely 

inoperable? 

A. I would say that it maybe had some affect, yes. 

I would definitely say that it had some drag or tension 

on it. 

Q. But they were not adequate? 

A. Definitely not. 

Q. Do you have an opinion of whether they were capable 

of bringing a vehicle to a stop on an incline? 

A. Certainly it would not. We tried it. 

Q. That, in your mind, is an important criteria for 

determining whether the brakes on a particular vehicle 

are adequate or not adequate? 

A. Certainly. 

Q. If the brakes were proper, if the service brakes 

.were working, were adequate and in good condition, should 

they have been able to bring the vehicle to a halt upon 

an incline? 

A. Certainly. 

337 
Q. Are you saying that the condition itself, if 

allowed to continue, would reasonably, likely, cause 

an accident? 

A. Yes. I would say so. I very definitely believe 

so. 

When asked about his imminent danger finding, he stated (Tr. 231-232): 

Q. Here you issued an Imminent Danger Order. When 

could this condition cause this accident, in your 

opinion? 

A. Anytime anybody would walk out in front of that 

vehicle and go through that yard, or somebody would 

back out in front of them, or go down one of those ramps, 

or whatever -- meeting head on with a truck and couldn't 

stop -- you could create a heck of a problem. And to 

me, that's an imminent danger. And if it was not 

corrected 

Q. Could it have happened that day? 

A. It could have happened at any time. 

When asked about his "significant and substantial" finding, he 

stated (Tr. 232): 

Q. Now, you also marked on the violation, "S" and "S". 

Now, I think you explained that somewhat, but just to 

explain why you indicated that this particular violation 

was "S" and "S", what does that term mean to you? 

A. Significant and substantial is the boxes that I 

marked. It's what we are referring to. Significant 

and substantial. It could significantly cause or 

create an accident. That's what we are talking about, 

reasonably seriously and reasonably likely to happen. 

Q. So you are saying that you felt that the condition 

was reasonably serious, very serious, or what? 

A. I think that it is very serious. You take a truck 

that size, and if you should be struck by it or run 

over by it, definitely it would be serious. We have 

fatal grounds in the past that have so indicated --

Mr. Goodspeed stated that he concluded that management knew or should 

have known about the brake conditions because of Mr, Oberg's statements 

that they never did work, and also by his own observations when he first 

338 
observed the truck in the morning after Mr. Gonzales was "waved down". 

When he came off the hill after being waved down, "he just kept going", 

and when "I asked him what was the matter, he said his brakes didn't 

work too well" (Tr. 210, 234). 

On cross-examination, Mr. Goodspeed stated that he could not recall 

issuing any citations for violations of section 56.9-1 during his inspection 

of July 6, 1981 (Tr. 235). He denied that Mr. Oberg ever explained 

to him that driver inspection reports are turned in only if a driver 

reports something, and that if he doesn't, they are thrown away (Tr. 236). 

He also indicated that he was informed that drivers sometimes made 

verbal reports (Tr. 237). 

Mr. Goodspeed stated that section 56.9-1, only requires reports of 

defects, that it does not require records of repairs or daily reports 

(Tr. 238). He confirmed that the No. 7 truck was totally full of water 

when it was tested, and that the 2,000 gallons of water weighed approximately 

16,000 pounds (Tr. 239). He explained the braking procedures utilized 

by the driver during the testing on the level as well as on the hill 

going toward the shop (Tr. 239-241). He stated that it took the truck 

200 yards to come to a complete stop after they left the level area 

where the service brakes were first applied (Tr. 242). 

Mr. Goodspeed went on to describe the tests which were performed 

on the truck while he was with the driver, including the different brake 

systems which were applied during the test (Tr. 242-247). He conceded 

that the torque converter was operable and that over the speed of five 

miles an hour, it did have a "slowing action" effect on the truck. However, 

he confirmed that when he issued the citation, he was concerned that even 

with the other brakes applied, the truck would not hold (Tr. 248). 

Mr. Goodspeed described the "hill area" where the truck was also tested, 

and described the different gears used by Mr. Gonzales in his attempts 

to stop the truck. He denied that he himself had created the imminent 

danger by instructing the driver to drive the truck into the shop area, 

and conceded that he only instructed him to "take the truck to the shop" 

(Tr. 249-254). His testimony in this regard is as follows (Tr. 255-256): 

Q. You have testified that when you came off 

the first hill, it took you 200 yards to stop. And 

yet you didn't consider those brakes so bad that you 

needed to stop that truck right on the spot? 

A. Right on the spot? 

Q. Yes. 

A. You mean to take it out of service right on the 

spot? 

Q. Yes. 

339 
A. I definitely knew there was a problem. I 

definitely knew there was a serious problem with 

the brakes. There was no doubt about it. We were 

going to take the truck back to the shop and put it 

on the line until they had it fixed. 

Q. But if it was actually an imminent danger coming 

off that hill because you couldn't stop in 200 yards, 

why didn't you stop the truck right there and walk down 

the 90 yards to the shop and get people to go back and 

fix it? 

A. Because it was not an imminent danger at that time. 

It had defective safety. We took it back to have it 

corrected. 

Q. What made it an imminent danger? 

A. Because we never tried it on the hill there and when 

it came down off of this small incline and the grade that 

they had there were people there. It totally surprised 

me, it really did. 

Q. If it took 200 yards to stop it coming down the 

first hill, I don't know why it would surprise you that 

it took 90 yards to stop before it came down the second 

hill. 

A. I have no comment on that. 

Q. I think the answer was that an Imminent Order was 

the only way you could take the truck out of service. 

The truck was parked, initially when Mr. Gonzales 

reported the brakes were bad and sat there for three 

hours, then they went back and got in it and conducted the 

test. Isn't that true? 

A. Somewhat, yes. 

THE COURT: The inspector was first notified about 

the faulty brakes when they first flagged Mr. Gonzales 

down. The inspector testified that Mr. Gonzales had some 

problems slowing the truck down. He went right by the 

inspectors party. That indicated to him that the brakes 

were bad. The inspector said to Mr. Gonzales, "How come 

you rolled past us? What's the problem? Have you got a 

brake problem?" And he said, "Yes." The brakes on his 

truck weren't that good. He told him to leave the truck 

there. That they had to go inspect the shop and do these 

other things and then they would come back and get the 

truck later. The truck stood there for three hours, 

approximately. Then they came back and got in the truck 

and went up and got the water and proceeding with all of 

these other tests. Is that true? 
MS. SYMONS: Yes. 

THE COURT: Okay. Quit while you are ahead. The 

question, it's obvious to me why he issued an Imminent 

Danger Order. 

BY MS. SYMONS (Resuming): 

Q. Why didn't you take the truck out of service in 

the morning when Mr. Gonzales told you that the brakes 

were bad? 

A. Why didn't I take it out? 

Q. Why didn't you issue a withdrawal order at 10:30 

in the morning when Mr. Gonzales told'you the brakes 

were bad? 

A. A withdrawal order for what, ma'am? 

Q. Bad brakes. 

A. Is that a withdrawal order situation, bad brakes? 

Q. You cited a lot of other trucks for it. 

THE COURT: The answer is, he hadn't inspected the truck 

at that point. There is no way he's going to pull the 

order on it. He just said, "Leave the truck, we'll get 

to it." That's what happened. 

BY MS. SYMONS (Resuming) 

Q. Aren't your instructions as an inspector that 

you are not supposed to subject yourself or any miner 

to hazardous conditions. 

A. Yes. 

Q. Yet you took a truck that you knew had bad brakes, 

put a maximum load on it, and brought it down the hill 

into an area where you knew there were people, and you 

knew you couldn't control the truck. And both you and 

the truck driver were in danger. 

A. That's true. To find out how bad the brakes were, 

you had to test them under normal conditions. We did 

it with a full load. I realized the brakes were bad and they 

definitely were. We took it back to the shop to have 

it fixed. We could not Stop it and it would not hold. 

I guess you might say that I probably did, actually, 

endanger mine and his life. We really did. We could 

have overturned coming down that incline. We could 

have run into somebody. That's true: I'll agree with that. 

341 

. ;·,. 
Mr. Goodspeed identified exhibits G-9 and G-10, as "checklists" 

which he obtained a year and half ago during his training (Tr. 261-263). 

He explained that he did not cite the truck for "inadequate brakes" 

under mandatory safety standard section 56.9-3, because he believed that 

if maintained in·a proper condition, the brakes would not be inadequate. 

He believed the truck had "defective brakes that affected safety", and 

his intent in issuing the citation was to bring the brakes up to the 

manufacturer's specifications (Tr. 264-265). He explained his answer 

further, at Tr. 272: 

THE COURT: Mr. Inspector, you did not cite them 

for 58.9-3, for inadequate brakes with what? 

THE WITNESS: They did have brakes on the trucks. 

They brakes were there. It's just that they didn't 

work. I can't say that these brakes have been modified 

to where they were inadequate. They were a manufactured 

brake. And it was an adequate brake for the haul unit, 

or I'm sure they wouldn't have bought it. They didn't 

work so they affected safety. 

THE COURT: Now, if the brakes were not capable of 

stopping the truck and holding a fully loaded vehicle 

on the grade that it came down, that would fit the 

definition of inadequate, wouldn't it? 

THE WITNESS: Yes. That's true. 

Mr. Goodspeed confirmed that he advised the mine representative 

the cited truck was under an imminent danger order after all of the tests 

had been completed and the truck had been driven back to the shop area 

(Tr. 270). He conceded that when he first tested the truck on the level 

he thought about issuing only a section 104(a) citation, but that coming 

off the hill and "it just kept going", and in view "the exposure that 

you have to people and everything else, to me, that was definitely, 

at that time, an imminent danger" (Tr. 271) 

Mr. Goodspeed confirmed that he issued a section 104(d)(l) unwarrantable 

withdrawal order on the No. 18 haul truck, and that he did so after 

being informed by the driver, Mr. Farr, that "they were having problems 

with the brakes", and after the truck was road tested. Mr. Goodspeed 

confirmed that his "walkaround and visual" inspection of the truck when 

he first observed it detected nothing with the truck. He had the driver 

test the dump brake at the dump area, and it would not hold the truck. 

He also had the driver test the other braking systems, and he explained 

the tests which were performed on the service brake as well, and he 

indicated that the service brakes were tested on the level and on the hill 

(Tr. 275-284; 289-291). 

Mr. Goodspeed testified that the No. 18 truck brake conditions which 

he cited were "significant and substantial" because "it was reasonably 

serious and reasonably likely", and that an accident was reasonably 

likely to occur and someone could have been injured by the inability 
of the truck to stop (Tr. 285). He based his conclusion that the 

citation was"unwarrantable" on the information given to him by the 

driver that the brake conditions had been reported to mine management 

verbally and in writing, but that his check of the company records failed 

to disclose any record of the defects (Tr. 285-287). He also confirmed 

that he knew that a section 104(d)(l) citation had been issued, and he 

didn't consider the condition of the No. 18 truck to be an imminent danger 

because the "personal exposure" was not present, there was a "lesser degree 

of danger", and there was less traffic in the pit area (Tr. 288). 

On cross-examination, Mr. Goodspeed conceded that his citation 

on the No. 18 truck does not state that it was tested on a grade and he 

confirmed that he cited the truck because the service brake failed his 

test on both the level and on the hill grade (Tr. 292). He also confirmed 

that since the service brake would not hold the truck while it was idling 

in third gear on the level area where it was tested, he concluded that 

the brakes were defective and that the condition affected safety (Tr. 293-294). 

He also confirmed that the dump brake was tested while the truck was in 

the "dump position", but he could not specifically recall how far the 

truck moved forward while the brake was applied (Tr. 297). In his view, 

the brakes were not working at all, and he saw no reason to note the 

distances which the truck moved (Tr. 298). 

Mr. Goodspeed confirmed that he decided to issue the unwarrantable 

failure order on the No. 18 truck after it was tested on the level by 

the mill area, and the truck was then "taken down and parked on the line. 

Then I told the operator" (Tr. 299). He explained further that he had the 

driver take the truck to shop to the shop to have it repaired, and he saw no ha~ard 

in having him drive it to. the shop because it was unloaded and was a 

different weight than the water truck (Tr. 300-301), and he did not believe 

that an imminent danger existed with the No. 18 truck (Tr. 301-302). 

Mr. Goodspeed stated that when he first spoke with the driver of 

the No. 18 truck, the driver told him that he had spoken with Mr. Barnett 

and Mr. Westover, and informed them numberous times that the brakes didn't 

work, and that they informed him that they needed time to fix them 

(Tr. 303-304). Mr. Goodpseed could not specifically recall speaking 

with Mr. Barnett or Mr. Westover about the truck in question, and indicated 

that they are required to know the regulations (Tr. 308). 

Mr. Goodspeed confirmed that he issued a seLtion 104(d)(l) Order 

for the No. 10 truck, and that he first observed it when it came to the 

dump. He and the driver, Mr. Thomas, walked around the truck and visually 

inspected it, but nothing in particular caught his eye at that time. 

Mr. Thomas informed him that "as far as he was concerned, the brakes 

didn't work very good" (Tr. 311). They then got into the truck, and he 

instructed Mr. Thomas to perform certain tests on the brakes, and he 

followed the same procedures as he did for the other trucks which he 

cited that day (Tr, 312). Mr. Goodspeed confirmed that the dump brake, 

park brake, and service brakes were all tested, and he described the tests 

as being similar to those administered to the other trucks (Tr. 312-315), 

and he confirmed that the brakes would not hold the truck when tested. 

343 
Mr. Goodspeed confirmed that he decided to issue the order on 

the No. 10 truck when it was first tested at the dump. He knew at 

that time that the brakes were not working properly, and he instructed 

the driver to take the truck to the shop to be repaired, and while in 

transit down the ramp he had the driver test the service brake and included 

that condition in the order (Tr. 317). He confirmed that Mr. Thomas told 

him that he had reported the brake conditions to management, and this 

gave him the impression that management had prior knowledge of the brake 

conditions (Tr. 317). He also checked the company records, and found 

nothing pertinent, and he considered the brake conditions to be serious, 

but not as serious as the brakes on the No. 7 truck (Tr. 318). 

Mr. Goodspeed believed that the No. 10 truck brakes were defective, 

and that the defective brakes would affect safety because "they would 

not be able to stop under emergency type conditions" (Tr. 320). He 

could not recall precisely when he told mine management that he was going 

to cite the truck (Tr. 321). 

On cross-examination, Mr. Goodspeed went over the tests conducted 

on the truck, and he confirmed that he told Mr. Thomas that he was citing 

the truck for an unwarrantable failure when he first tested it on the 

level (Tr. 322). The truck was then taken "on the line, and it was parked 

there until it was rendered safe to operate" (Tr. 323). When asked why 

he didn't park the truck immediately, Mr. Goodspeed replied "an unwarrantable 

failure has nothing to do with how bad they are, does it really" (Tr. 324). 

He explained further as follows (Tr. 324): 

Q. Well, you labeled this citation, significant 

and substantial. 

A. Reasonably serious and reasonably likely --

Q. But not that serious that it was too dangerous 

to take it down to the shop? 

A. I think under a controlled situation -- the truck 

was empty and everything else. 

Q. How could you keep it under control if you didn't 

have brakes? 

A. We kept it under control enough to stop it, to 

get it down there under those conditions -- not full 

Mr. Goodspeed confirmed that Mr. Thomas told him he had "turned in 

the truck numerous times", but that a search of the mine records failed 

to.disclose any written reports filed by Mr. Thomas on the truck in 

question (Tr. 326). 

344 
Contestant's testimony and evidence 

Phillip Rusti, testified that he has been the quarry superintendent 

since February 12, 1982, but was not there at the time of Mr. Goodspeed's 

inspection in 1981. He sketched the slopes and shop area of the quarry 

(exhibit R-1), and testified as to the degree of slopes and grades, 

including the distances and grades over which the trucks which operate 

at the quarry are expected to travel. He stated that the trucks are not 

designed to travel on a 20 degree grade, and that the manufacturer recommends 

that they be restricted to travel over an eight percent grade, and that 

the grade has a definite effect on a truck's braking capability. He 

also confirmed that he has driven the trucks in question and that he would 

use first gear to travel down the hill in question. He also explained 

the different braking systems on the trucks in question, and explained 

their functions (Tr. 341-347). 

Mr. Rusti testified that he would test the brakes on a 35 ton truck 

on a two percent grade and that he would never test the park brake on 

such a truck while it was in motion for fear of burning them. He also 

described the service brakes on the trucks, and indicated that they 

are air shoe-type brakes activated by a pedal in the cab. He agreei 

that a truck which "creeps a little" on a level area while in gear with 

the engine at 650 rpms is "allowed", but that "excessive creep" would 

indicate that the brakes needed adjustment. He described "excessive" 

as a creep of more than a foot or two while the truck was· "held" for 

15 seconds (Tr. 349). He stated that he expected his drivers to test 

the brakes while going downhill, and that if the brakes are not holding 

"that's a test in itself". He also saw not much need for the brakes on 

a hill if the proper gears and torque features are used properly (Tr. 349). 

Mr. Rusti explained the functions of an emergency, park, and retarder 

brake, and stated that problems are caused when drivers use service 

brakes on hills rather than retarders, and that this causes excessive 

brake wear, burning, and the bleeding off of the air from the system 

(Tr. 351). 

On cross-examination, Mr. Rusti confirmed that prior to his employment 

at the quarry in question, he worked as a general foreman at a large limestone quarry in Michigan, and that large haulage trucks were used in 

that operation, and that a preventive maintenance program was in being 

at that operation (Tr. 354). While at that operation, he relied principally 

on the drivers to determine the adequacy of the brakes on the trucks 

they were driving (Tr. 355). He confirmed that he never drove the three 

trucks which were cited by Inspector Goodspeed, nor did he road test them 

or any other vehicles (Tr. 355). He did not believe that a braking system 

should be designed to stop a truck on a 20 percent grade, such as the hill 

where the trucks in question were tested, and he explained his answer as 

follows (Tr. 356-358): 

345 
Q. When you are talking about, in your opinion, 

in third gear, going down an incline at five miles 

an hour, you don't think that if you apply the service 

brakes, the No. 7 vehicle, it would be able to stop. 

Is that just conjecture on your part? 

A. No. It's not conjecture. I'm quite certain it 

wouldn't. You have to remember, now, we are talking 

about 100 feet of horizontal distance on that incline. 

Now, if you were going to go half a mile, I'm sure 

you could stop eventually, but in 100 feet, that's an 

awful short distance. That's only about twice the length 

of this room. 

Q. I think the testimony was that, though the hill 

might have been 100 feet, the vehicle never stopped, 

and, in fact, rolled down into the flat area. 

A. Where it stopped? 

Q. Where it eventually stopped. You don't think 

a braking system should be designed to stop a vehicle 

on an incline? 

A. Not a 20 per cent. 

Q. That's incredible. How did you measure the 20 

per cent incline? 

A. With a tape. 

Q. With a tape? Did you go out there? 

A. Yes. 

Q. When was this? 

A. When Mr. Gonzales, the federal investigator, was out 

at our property going over citations. We measured 

this distance. We also measured the distance to the 

water tower. We did quite a bit of measuring. 

Q. You said that the haulage trucks weren't designed 

to go down that particular incline? 

A. No, I didn't say that. 

Q. I thought you did. 

THE COURT: He said they weren't designed to be operated 

on a 20 per cent grade. 

346 
BY MR. COHEN (Resuming): 

Q. Is that what you said? 

A. That's right. 

Q. If this was a 20 per cent grade, they weren't 

designed to go down this particular grade. 

A. They were not designed to operate on that 

particular grade. You can go down there. 

Q. What's the difference between operating and 

going down? 

A. With a load, you shouldn't go up or down a 

20 per cent grade. It's not your normal operating 

procedure. This road is a service road. By a service 

road, that means that you take a vehicle out of there, 

mainly for maintenance purposes. This is not a normal 

haulage operation. On our haulage operations, we 

maintain an 8 per cent maximum. 

Q. I thought the testimony was, in fact, that the 

vehicles did use this road? 

A. But not for haulage. 

Q. Well, I don't know about that. Do you know, in 

fact, that they didn't use the road for haulage back 

in that time? 

A. Yes. 

Q. How would you know that? 

A. Just by the pattern of what we are doing now, and 

we haven't changed that any. Why would you want to haul 

something to the shop? 

Q. Well, how about going down with a full load of water 

to the shop area? 

A. That's very possible. But you are talking about tons 

versus thirty-five or forty. 

Mr. Rusti was of the opinion that the fact that service brakes on 

the three trucks in question would not slow them down on a 20 per cent 

incline does not indicate a problem with the brakes. Although he 

indicated familiarity with the manufacturer's specifications for the 

347 
trucks in question, he indicated that they "were sketchy" and found 

nothing -to support his opinion other than the "test" used on a horizontal 

level where the service brakes were applied while the engine was running 

at 650 rpm's (Tr. 360-361). He confirmed that this test was essentially 

the same one used by the inspector when he tested the truck brakes on 

level ground (Tr. 361). 

Mr. Rusti stated that since he was not at the mine site at the time 

of the inspection and citations, he had no way of knowing whether the 

brakes on the trucks which were cited were adequate or not, and when asked 

an opinion as to whether the conditions cited by Inspector Goosdpeed were 

an "imminent danger" or an "unwarrantable failure", he responded "I won't 

even make an observation" (Tr. 362). When asked to account for the fact 

that Inspector Goodspeed found the brakes in such a condition as to 

warrant the issuance of such orders, he responded "I wasn't there so I 

don't know" (Tr. 370). 

Mr. Rusti confirmed that subsequent to the ·issuance of the citations 

in question by Inspector Goodspeed, MSHA conducted another investigation 

to determine whether any "willful" violations should be issued because 

of the truck brake conditions, and he identified the MSHA Investigator 

who conducted that investigation as a Mr. Gonzales. He also confirmed 

that his measurements of the distances previously referred to by him 

in his testimony took place at that time, and he confirmed that MSHA 

found no basis for issuing any "willful" citations (Tr. 363-369). 

Mr. Rusti also confirmed that the normal procedure is to service the 

trucks every 1,000 hours, and that they are brought in for lubrication 

and a general checkup (Tr. 369). 

Keith M. Barnett, production foreman, testified that he supervised 

the drivers of the trucks which were cited and that during the period 

May through the first part of July 1981, none of them reported any problems 

with the trucks. If anything had been wrong with the trucks, they would 

have ordinarily reported it to him. When asked whether any drivers 

had ever reported "problems with the brakes on the No. 7 water truck", he 

responded "not to a degree that it would create a safety hazard" 

(Tr. 392). When asked about the other two trucks, he responded as 

follows at Tr. 392: 

Q. How do you judge what is a degree that would 

create a safety hazard? 

A. It's in the daily operation of the truck. And 

I observe each piece of equipment each day. If 

I notice the operator is having trouble controlling 

the truck, if there is an unusual circumstance, or 

if the operator does indicate that there is a serious 

problem with the truck. 

Q. Did anyone report to you that there was a problem 

with the brakes on No. 10? 

A. No. 

Q. During the period of May, June or July of 1981? 

348 
A. There again, that's a specific question. I 

mean, that's over a period of several months. 

There could have been some discussions to that 

point, but, there again, nothing that would have 

created a serious safety situation. 

Q. What about with Truck No. 18? Do you remember 

anybody reporting any problems with the brakes on 

Truck No. 18? 

A. No. That was very much a surprise to me. 

Mr. Barnett confirmed that he was probably the one who first 

"flagged down" driver Gonzales, and he confirmed that it took him some 

100 feet to stop the truck. He did not believe this to be unusual 

since "it takes that kind of distance to stop most of those pieces of 

equipment". After he stopped, Mr. Gonzales made no specific complaint 

about the truck (Tr. 393). 

On cross-examination, Mr. Barnett indicated that he considered 

Mr. Thomas to be a good, conscientious driver who is safety conscious. 

As for Mr. Farr, he stated that he made a lot of safety complaints, 

some of which were frivolous, and a lot of them were made to him orally 

rather than in writing (Tr. 394). "Oral complaints" are usually noted 

in a book kept on Mr. Oberg's desk, and written ones are on forms used 

for that purpose (Tr. 395). Mr. Gonzales "was not shy" about making 

complaints (Tr. 402). 

When asked about any prior knowledge of the condition of the brakes 

on the trucks in question and the field service report prepared by the 

contractor, exhibit G-6, after one of the trucks was repaired, Mr. Barnett 

stated as follows (Tr. 398-400): 

Q. Are you saying, sir, that you were completely 

unaware of the condition of the defective brakes 

on the Nos. 7, 10 and 18 trucks on July 6th, 1981? 

Is that what you are saying? 

A. No, sir. I'm not saying I was unaware at all. 

I try to keep very close tabs on my equipment. 

I try to keep track of the condition of the brakes 

on all my equipment, not only the brakes, but the 

general operating condition. 

Q. So you were aware of the brak~s? 

A. Yes. I would say I was. 

Q. How were you made aware of that fact? 

A. Being in contact with the drivers and the equipment itself on a daily basis. 

349 
. Q. Would you agree that the brakes on the No. 7 

truck on July 6th, 1981 were not sufficient? 

A. No, I wouldn't agree to that at all. 

Q. You think they were safe? 

A. In my estimation, they were adequate. 

Q. How about No. 10? 

A. The same thing. 

Q. How about No. 18? 

A. That's the same thing. 

* * * * * * * * * * 

Q. If I told you that their description of the 

condition, after looking at the brakes, subsequent 

to the issuance of the order, that the brakes were 

I'll use the very term, "Very poor brakes." Would 

you disagree with that statement? 

A. This was his assessment of the situation. I 

couldn't agree or disagree. 

Q. Were you made, subsequently, aware of the repair 

work that was done on the brakes after the inspector 

issued his orders? 

A. Yes, I think so. 

Q. Did that, in any way, change your mind with regard 

to the general condition of the brakes? 

A. No. Because it verified Mr. Oberg's testimony, that 

all the mechanical parts of the brakes were there in the 

truck. Some of them were under limited operating 

conditions, but generally they were in operating condition. 

Q. How about the master cylinders? Didn't he testify 

that two of the master cylinders were defective? 

A. Yes. 

Q. That doesn't cause you any concern? 

A. Yes. Of course, it causes me concern. 

350 
Mr. Barnett testified that at no time on July 6, 1981, between 

9:30 a.m. and 1:30 p.m., when Mr. Goodspeed started his testing of 

the trucks, did he observe anything in the operation of the trucks 

that led him to believe that the brake conditions presented a safety 

hazard, and had he observed such conditions, the trucks would have been 

parked (Tr. 405). 

The parties stipulated that if Mr. Edward Westover were called 

to testify, he would also testify that he received no complaints concerning the brakes on the three trucks which were cited by Inspector 

Goodspeed (Tr. 405). 

Mr. Oberg was recalled and confirmed that he told Mr. Goodspeed 

that the No. 7 water truck never had good brakes (Tr. 374). He explained 

the braking system and confirmed that the brakes on that truck were the 

ones that the manufacturer put on it (Tr. 375). He also confirmed that 

after the citation was issued, the wheels were pulled off the truck and 

he found "three quarters of a brake shoe left on the truck", and he 

indicated that these were sufficient to stop the truck "if they are 

adjusted right" (Tr. 376). He believed the citation could have been 

abated by merely adjusting the brakes (Tr. 377). 

Mr. Oberg confirmed that the No. 10 truck wheels were also pulled 

off, and he found two out of the six master cylinders to be defective. 

He found the other four to be "pretty well up to par" (Tr. 377). He 

also confirmed that No. 18 truck wheels were also pulled off, and when 

the brake shoes were inspected '~e figured there was at least 50 to 80 

percent on them". In his opinion, this was enough to stop the truck if 

the brakes were adjusted (Tr. 378). 

Mr. Oberg testified further that at no time prior to the Inspection 

in question did the drivers of the trucks in question or their foremen 

tell him that the brakes were defective, and had he been told he would have 

taken them off the line (Tr. 379). In response to further questions, 

he testified as follows (Tr. 380-381): 

Q. Mr. Oberg, when you testified yesterday, I 

believe you said you were aware of the condition 

of the trucks. That you subsequently learned, after 

the trucks were pulled off the line and inspected, you 

said that you would have taken them off the lin~ 

yourself. Do you stand by that statement? 

A. If I would have known, I would have taken them 

off, yes, knowing that they had bad brakes. 

Q. You still agree that all three trucks had 

bad brakes? 

A. I'm not saying one way or the other on that, no. 

I feel that all three trucks had partial brakes 

on them. 

351 
Q. Partial? 

A. At least partial. 

Q. But they weren't adequate, were they? 

A. I don't know whether they were adequate or not. 

Q. Because, in effect, you don't really look at 

them. Didn't your mechanics, really, inspect the 

brakes? 

A. They did after they were pulled off. 

Q. So you really didn't have any independent knowledge, because you just relied on your mechanics. 

A. I rely on my mechanics all the time. 

Q. I think you stated in your prior testimony, the 

best indication that there is a problem with the brakes, 

is the truck drivers? Is that right? 

A. That's right. 

Q. That's how you base if there is a problem? You 

rely on the truck drivers to tell you? 

A. There's a problem with the truck, I depend on those 

truck drivers to report it to their foreman. I, in turn, 

depend on the other foremen to report it to me. 

Q. But by the same token, you would agree that they 

would be the best judges of whether a particular truck 

has adequate brakes or inadequate brakes, because they 

are the ones that drive it every day? 

A. They drive it every day. They are the ones that would 

know. 

Q. You heard the three truck drivers testify yesterday. 

Would you question any of their judgment as far as their 

opinion that the brakes on the trucks were inadequate? 

A. I won't question anybody's judgment. 

And, at Tr. 386-388: 

THE COURT: Now, if they weren't adjusted correctly, 

what would your answer be. 
THE WITNESS: Okay. If you are back to yesterday's 

testimony, I made a statement that that left-hand 

wheel had bearings on the earns that was froze up. 

So, therefore, that was not functioning properly. 

THE COURT: Okay. Let me ask you this question. 

Do you consider brakes that are 75 per cent good, 

50 to 85 per cent good, to be effective brakes, 

adequate brakes, or is it hard to answer? 

THE WITNESS: If it's got 50, 75, or 85 per cent of 

the linings there, there's no reason why that brake 

couldn't be good. 

* * * The three trucks that were cited by the inspector, 

when you pulled the wheels, did you actually see the 

conditions themselves? Were you actually physically 

there when the mechanic broke these three trucks down 

and pulled the wheels? 

THE WITNESS: You bet. I was there when they pulled 

the wheels off. After we got the drums off and everything, the linings were there. They came and found 

me and said, "I would like you to come and look at the 

linings on this truck." 

THE COURT: Now, given the conditions that you observed 

on the three trucks when the wheels were dismantled, place 

yourself in the position of the inspector, and you had 

knowledge of the condition of all of these three trucks. 

Without subjecting those trucks to any tests or anything, 

could you come to any conclusion that these brakes were 

defective or inadequate? 

THE WITNESS: I don't think 18 was up to par, but it was 

actually not totally out of brakes, either. Any time 

you have a earn bearing which is particlly froze up, you 

have got one wheel that is not functioning. And if your 

other wheel is, say, flacked off from wear or use, then 

you aren't going to have number one brakes, no. 

THE COURT: How about the other two trucks? 

THE WITNESS: I feel they were all about the same. 

THE COURT: You have been here two days listening to the 

testimony of the inspector, listening to his testimony 

concerning the tests that he subjected these trucks to< 

And his testimony was that they wouldn't stop on certain 

grades, and under certain conditions. Do you have any 

comment as to whether or not you feel that these citations 

were in order? 

35~1 
THE WITNESS: Well, I thought he was quite severe. 

THE COURT: Did you voice your objections to tell 

him that at the time? 

THE WITNESS: I was never asked. 

Stipulations 

The parties stipulated that the Keigley Quarry is subject to MSHA's 

jurisdiction, that 'the operator U.S. Steel Company is a large operator 

and that any reasonable penalties assessed will not affect its ability 

to continue in business. The parties also agreed that all of the citations 

issued in these proceedings were abated in good faith, that the inspectors 

who issued them were duly authorized representatives of the Secretary, and 

. that for the purposes of these proceedings U.S. Steel's history of prior 

violations at the quarry in question consists of six citations issued 

during the 24 months prior to the issuance of the citations in question 

in these cases (Tr. 4, Exh. G-1). 

Findings and Conclusions 

These consolidated dockets present somewhat similar factual situations 

concerning the braking systems on three trucks being operated at the 

quarry at the time of the inspection of July 6, 1981. Inspector Goodspeed's 

"inspection" of the three trucks included his visual inspection of each 

vehicle, as well as a "check ride" where he accompanied the drivers and 

requested them to perform certain "tests" on the braking systems. The 

inspector's special attention to the trucks was the result of certain 

observ.ations made by him as to how one of the trucks was. being driven, 

and certain comments made by the drivers concerning the condition of 

the brakes. All of these factors prompted the inspector to inspect the 

No. 7 water truck, and two haulage trucks, and his inspections resulted 

in the sequential issuance of a section 104(d)(l) unwarrantable failure 

citation and an imminent danger order for the brake conditions on the 

water truck, and two section 104(d)(l) unwarrantable failure orders 

for the brake conditions on the No. 18 and No. 10 haul trucks. The 

inspector also cited violations of mandatory safety standard 30 CFR 56.9-2, 

and found that each of the alleged violations were "significant and substantial". 

Fact of Violations 

At pages 1, 2 and 7, of its brief, respondent makes reference to the 

inspector's citation of section 30 CFR 55.9-3. This is in error. 

Respondent is not charged with any violations of that section, it is 

charged with violations of section 56.9-2. In each of his citations, 

Inspector Goodspeed asserted that the cited conditions of the truck 

brakes constituted a violation of mandatory standard section 56.9-2, which 

provides that "Equipment defects affecting safety shall be corrected before 

the equipment is used". Therefore, one of the initial questions presented 

is whether HSHA has established by a preponderance of the evidence that 

the cited brake conditions constituted a violation of section 56.9-2. 
The No. · 7 Water Truck 

Although Contestant's maintenance foreman Oberg asserted that 

the brakes needed "minor attention", he did not dispute driver Gonzales' 

report that they "were bad", and he conceded that the brakes were poor. 

He confirmed that the parking brake was inoperative and had to be replaced, 

that one of the front wheels had a chipped bearing which had to be replaced, 

that new brake shoes were installed, and that the dump brake would not 

hold the truck on level ground. 

Mr. Oberg confirmed that the water truck was a converted haulage 

truck and that the drivers were reluctant to drive it on a hill because 

it had poor brakes. He conceded that the brakes were in need of repair. 

The driver of the truck, Charles Gonzales, confirmed that when the 

truck brakes were tested on hills they would not hold, and when he applied 

the foot brake at a speed of five to ten miles an hour the truck would not 

stop and just kept rolling. He also confirmed that the retarder and 

park brakes, when applied, did not slow the truck, and that the park 

brake would not hold the truck on a ?ill. 

Mr. Gonzales confirmed that after the brakes were repaired he 

could hold the truck on hills and felt safer driving it. 

The No. 10 Haul Truck 

Mr. Oberg confirmed that after the truck was cited and taken out of 

service, the driver and a mechanic drove it and found that the brakes 

were not working properly. He also confirmed that the truck had two 

faulty master cylinders which had to be repaired, and that the faulty 

cylinders would affect the brake pressures. He also confirmed that the 

parking brake needed to be adjusted, and that all of the brake linings 

were replaced even though they had three-quarters of the linings left. 

The driver of the truck testified that when the truck brakes were 

tested on the hill they would not hold the truck. He also testified 

that the service brakes and retarder would not hold the truck at three 

or four miles an hour and that the dump brake was not working properly 

because the truck would move forward when loaded with the brakes applied. 

He confirmed that the brakes would not hold when they were tested on the 

level with the engine idling. ~~ 

The No. 18 Haul Truck 

Mr. Oberg testified that this truck was an old secondhand truck 

and that when the brakes were checked the left wheel cam shaft that 

rotates the brake shoes and locks the wheel was worn and was beginning 

to freeze up. He indicated that these conditions would affect the ability 

355 
of the vehicle to stop within a certain distance. He also confirmed 

that in addition to repairing the defective wheel cam shaft, the front 

brakes were adjusted and an air leak was repaired. He confirmed that 

the malfunctioning front brakes would affect the functioning of the 

service brakes and he conceded that the brakes on the truck were not 

adequate. 

Truck driver Stephen Farr testified that the service brakes and dump 

brakes would not hold when tested. He confirmed that the truck was out 

of service for several days awaiting parts, but that after the brakes 

were repaired the service brakes were able to bring the truck to a stop. 

Inspector Goodspeed testified as to the conditions of the brakes 

on each of the trucks which he tested and cited, and he confirmed that 

the brake conditions which he found affected the safe operation of each 

of the trucks. With regard to the No. 7 water truck, Inspector Goodspeed 

stated that the conditions of the brakes prevented the driver from 

controlling the vehicle on the hill where it was tested. He concluded 

that the inability of the driver to slow the truck down when the service 

brake was applied indicated to him that the brakes were inoperative and 

unsafe and were incapable of bringing the truck to a stop on an incline. 

With regard to the No. 18 haul truck, Inspector Goodspeed testified 

that when the driver applied the service brake while the truck was in 

idle and while on an incline, the brakes would not hold the vehicle. 

He also confirmed that the dump brake was not working at all, and when 

it was applied the truck simply rolled forward and would not hold. As 

for the No. 10 haul truck, he confirmed that when tested, the dump brake, 

park brake, and service brake would not hold the truck. He believed 

that the truck braking systems were defective and affected safety because 

the driver would be unable to bring the truck to a quick stop in an 

emergency. 

In defense of the citations, the contestant presented the testimony 

of quarry superintendent Rusti and production foreman Barnett. Mr. Rusti 

was not employed at the quarry at the time the citations were issued, 

and he did not drive or test the trucks cited by Inspector Goodspeed. 

Further, he declined to offer an opinion as to whether the brake conditions 

warranted the orders issued by the inspector, and he confirmed that he 

had no way of knowing whether any of the truck brakes cited were adequate 

or not. 

Mr. Barnett testified that he believed the brakes on all of the trucks 

were adequate. However, when asked to comment on the contractor's assessment 

that the brakes on one of the trucks were "very poor", he said that he 

could ·not agree or disagree with that assessment. He conceded that the 

work done on the brakes after the orders were issued confirmed that some 

of the brakes were in limited operating condition, and that the two 

defective master cylinders did cause him some concern. 

356 
Contestant also called Mr. Oberg as its witness. He confirmed 

that he told the inspector that the No. 7 water truck never had good 

brakes. He also confirmed that two of the six master cylinders on 

the No. 10 truck were defective, and while he would not concede that 

all three trucks had bad brakes, he did say that they all had partial 

brakes. Further, he could not say whether the brakes on all the trucks 

were adequate, and he did not question the judgment of the drivers 

when they testified that the truck brakes were inadequate. 

Mr. Oberg confirmed that while the No. 18 truck was not totally 

out of brakes, it was not up to par because one wheel had a frozen 

cam bearing which would prevent that wheel from functioning. 

The driver of the No. 7 water truck, Gonzales, confirmed that he 

drove the truck for about three hours before the inspector arrived on 

the scene. As a matter of fact, when he was first "flagged down", he 

experienced some difficulty in bringing his truck to a stop, and that 

prompted the inspector to ask him to park his truck so that it could 

be inspected more thoroughly after the inspector completed his other 

inspection rounds. The driver's statements that the brakes "were bad" 

led the inspector to a more thorough inspection of that truck as well as 

the other two trucks which were subsequently inspected. 

The driver of the No. 10 haul truck, Thomas, confirmed that he had 

driven that truck for 4 or 5 hours before the inspector inspected it 

on July 6th, and the driver of the No. 18 haul iruck, Farr, admitted 

that he had driven that truck prior to the inspection knowing full well that 

the brakes were bad. 

In view of the foregoing testimony and evidence, it seems clear 

to me from the record in these ·proceedings that MSHA has established by 

a preponderance of the evidence that the brakes on the three trucks which 

were cited by Inspector Goodspeed were defective, that these defects 

affected the safe operation of those trucks, and that the cited trucks 

were in fact used and operated before the necessary repairs and corrections 

which were required were made. This is not a case where there is an honest 

difference of opinion between and inspector and mine management as to 

the defective conditions of the brakes. The record here establishes that 

without a doubt the brakes on all three of the cited trucks were defective, 

and these conclusions are supported not only by the drivers and the 

inspector who subjected them to certain tests under actual operational 

conditions, but also by U.S. Steel's maintenance foreman who was responsible 

for maintaining and repairing the trucks, the records of the contractor 

who made repairs to the two haul trucks, and by the evidence which 

establishes the extent of the repairs which were necessary to render 

the braking systems operational and safe. 

35'/ 
Respondent's defense to the alleged defective braking conditions 

consists essentially of an attempt to establish that the testing methods 

and procedures followed by the inspector were somehow suspect. In addition, 

respondent argues that the conditions of the brakes, as found after the 

trucks were taken out of service, were the result o.f abuse and wear 

and tear which happened while the inspector was testing the trucks with 

the drivers. 

Respondent's argument that MSHA has failed to establish through 

any objective tests that the brakes were worn to the point where they 

constituted defects affecting safety is rejected. While one may agree 

with the proposition that a large haul truck, fully loaded and coming down 

a hill, is not engineered to "stop on a dime" when the brakes are applied, 

in this case the testimony and evidence establishes that the drivers 

were having problems holding the trucks on levels and hills using all 

of the braking syst·ems. Again, this is not a case where there is a 

difference of opinion as to whether the brakes were defective or not. 

All of the truck wheels were pulled after the trucks were taken out of 

service, and the brake defects and repairs which were made are detailed 

and documented through the testimony and evidence of record in this case, 

and leave little room for argument. 

While it is true that the "tests" applied by Inspector Goodspeed, 

as detailed in his testimony, as well as exhibits G-8, G-9, and G-10, 

may not be part of any officially adopted mandatory MSHA regulation, I 

am not convinced that the tests were totally irrational or wrong, and 

respondent has not advanced any testing procedures of its own to dispute 

what the inspector did in this case. What the inspector did in this case 

was to test the brakes on a level area with the engine running and 

on certain inclines and hills with the truck in certain gears. While 

one may question the inspector's judgment in taking a truck on a hill 

for a test when he had reason to believe that the brakes were bad, this 

fact does not detract from the fact that when the brakes were applied 

to the trucks coming off the hills, they could not hold the trucks. 

Respondent presented no credible testimony or testing procedures 

of its own to establish that the brakes on the cited trucks were in fact 

not defective and could do the job. As a matter of fact, respondent's 

witness Rusti, who was not at the quarry when the trucks were cited, and 

who had never driven or tested them, agreed that Inspector Goodspeed's 

test of the brakes on the level with the engine idling was a proper and 

acceptable test. His dispute was over the number of rpm's applied to 

the engine, and the resulting "allowable" or "excessive" creep which 

may result. As for the testing on the hills, he candidly admitted ::hat 

he expected his drivers to test the truck brakes while driving them on 

hills and inclines, and he agreed that if the brakes were not holding 

that "this was a test in itself". His after-the-fact dispute seems to 

lie with whether or not the driver may have had the truck in the proper 

gears while applying the brakes. He also took issue with the areas 

358 
where the trucks were tested, and maintained that they were not designed 

to operate on 20 percent grades. However, his opinion in this regard 

is rejected as totally unsupported by any credible evidence. He never 

drove the trucks, he never tested them himself, and he admitted that the 

manufacturer's braking specifications "were sketchy". As a matter of 

fact, respondent did not produce any manufacturer's information as to 

the braking systems, and relied on Mr. Rusti's testimony, to which I give 

very little weight. 

I find Mr. Barnett's testimony as to the condition of the truck 

brakes to be rather equivocal. He conceded that he was not completely 

unaware of the defective brakes on all three trucks. When asked whether 

it was true that the brake conditions on all three trucks were not sufficient, 

he disagreed and state they "were adequate". Yet, he did not disagree with 

the contractor's assessment that one of the trucks had "very poor brakes", 

nor did he disagree with the fact that one of the trucks had two defective 

master brake cylinders which in fact. caused him some concern, and he 

candidly admitted that some of the trucks were operating under limited 

braking conditions. 

On the basis of the foregoing findings and conclusions, I conclude 

that MSHA has established the fact of violation as to all three trucks 

and that it has proven by a preponderance of the credible and probative 

testimony and evidence that the brakes on the three cited trucks in question 

were defective and that these defects affected the safe operation of those 

trucks. I reject the respondent's suggestions that the defective brake 

components which were found after the trucks were taken out of service 

for repairs were caused by the inspector or the drivers during the testing 

of the vehicles. The evidence in this case makes it clear to me that 

the defective brake conditions were present on the trucks prior to the 

inspection and that they were driven in those conditions. Clearly, 

the facts and circumstances here presented meet the tests laid down by 

the Commission in Secretary of Labor v. Ideal Basic Industries, Cement 

Division, 3 FMSHRC 843, decided April 10, 1981. Inspector Goodspeed's 

actions in citing the respondent with a violation of section 56.9-2, 

in each of the three contested citations are AFFIRMED. 

The alleged imminent danger - Order No. 0583637 

"Imminent danger" is defined in section 3(j) of the Act, 30 U.S.C. 

§ 820(j) as: ''The existence of any condition or practice in a coal or 

other mine which could reasonably be expected to cause death or serious 

physical harm before such condition or practice can be abated." 

The legislative history with respect to the concept of "imminent 

danger," Committee on Education and Labor, House of Representatives_, 

Legislative History of Federal Coal Mine Health and Safety Act of 1969 

at page 44 (March 1970), states in pertinent part as follows: 

358 
The definition of an "imminent danger" is broadened 

from that in the 1952 Act in recognition of the need to 

be concerned with any condition or practice, naturally 

or otherwise caused, which may lead to sudden death or 

injury before the danger can be abated. It is not limited 

to just disastrous type accidents, as in the past, but all 

accidents which could be fatal or nonfatal to one or more 

persons before abatement of the condition or practice can 

be achieved. [Emphasis added] 

And, at page 89 of the report: 

The concept of an imminent danger as it has evolved 

in this industry is that the situation is so serious 

that the miners must be removed from the danger forthwith 

when the danger is discovered * * *· The seriousness of 

the situation demands such immediate action. The first 

concern is the danger to the miner. Delays, even of a 

few minutes may be critical or disastrous. 

The former Interior Board of Mine Operations Appeals has held that 

an imminent danger exists when the condition or practice observed could 

reasonably be expected to cause death or serious physical harm to a miner 

or normal mining operations are permitted to proceed in the area before 

the dangerous condition is eliminated. The dangerous condition cannot 

be divorced from normal work activity. Eastern Associated Coal Corp. v. 

Interior Board of Mine Operations Appeals, et al., 491 F.2d 277, 278 

(4th Cir. 1974). The test of imminence is objective and the ins?ector's 

subjective opinion need not be taken at face value. The question is 

whether a reasonable man, with the inspector's education and experience, 

would conclude that the facts indicate an impending accident or disaster, 

likely to occur at any moment, but not necessarily immediately. Freeman 

Coal Mining Corporation, 2 IBHA 197, 212 (1973), aff'd., Freeman Coal 

Mining Company v. Interior Board of Mine Operations Appeals, et al., 

405 F.2d 741 (9th Cir. 1974). The foregoing principles were reaffirmed 

in Old Ben Coal Corporation v. Interior Board of Mine Operations Appeals, 

et al., 523 F.2d 25 (7th Cir. 1975), where the court, following Freeman 

phrased the test for determining an imminent danger as follows: 

[E]ach case must be decided on its own peculiar 

facts. The question in every case is essentially 

the proximity of the peril to life and limb. Put 

another way: Would a reasonable man, given a qualified 

inspector's education and experience, conclude that 

the facts indicate an impending accident or disaster, 

threatening to kill or to cause serious physical harm, 

likely to occur at any moment, but not necessarily 

immediately? The uncertainty must be of a nature 

that would induce a reasonable man to estimate that, 

if normal operations designed to extract coal in the 

360 
disputed area proceeded, it is at least just as 

probable as not that the feared accident or 

disaster would occur before elimination of the 

danger. 

The Seventh Circuit also noted in its Old Ben opinion that an 

inspector has a very difficult job because he is primarily concerned 

about the safety of men, and the court indicated that an inspector should 

be supported unless he has clearly abused his discretion (523 F.2d at 31). 

On the facts presented in Old Ben, the court observed that an inspector 

cannot wait until the danger is so immediate that no one can remain in 

the mine to correct the condition, nor can the inspector wait until an 

explosion or fire has occurred before issuing a withdrawal order (523 

F.2d, at 34). Thus, on the facts presented in this proceeding, MSHA 

must show that reasonable men with the inspector's education and experience 

would conclude that the condition of the brakes on the truck which was 

cited constituted a situation indicating an impending accident or disaster, 

likely to occur at any moment, but not necessarily immediately. Likewise, 

MSHA must also show that the defective brakes at the time the order 

issued also presented such an imminently dangerous situation. 

The evidence in this case stablishes that the brakes on the No. 7 

water truck were first tested by the inspector when he and the driver were 

on an incline after obtaining a load of water. Driver Gonzales advised 

the inspector at that time that the brakes were "not very good''. The 

inspector then had him test the truck on another hill, and when the service 

brake was applied, the driver had some difficulty holding the truck, even 

though he was in first gear. As they descended off the hill traveling 

towards the shop area at a speed of five to ten miles an hour, the driver 

applied the service brakes and the truck would not stop and simply kept 

rolling, even after the driver applied the retarder and park brake. The 

inspector testified that the service and park brakes had previously been 

tested on a flat area and they would not slow the truck down. After 

"pumping" the service brakes, the truck eventually was brought to a gradual 

stop. However, after the test on the hill, the inspector advised the 

driver that he was issuing an imminent danger order and the truck was 

taken out of service for repairs by a company mechanic removing the battery. 

Once the truck was taken in for service, and the wheels pulled, a chipped 

front wheel bearing was discovered, and it was replaced. In addition, the 

parking brake had to be replaced and new brake shoes were installed on 

all four wheels. 

Although it is true that the driver drove the No. 7 water truck on 

July 6, 1981, before it was removed from service and the brakes repaired, 

maintenance foreman Oberg candidly admitted that the drivers did not like 

to drive it on hills because the brakes "were poor". In my view, this 

evaluation of "poor brakes" was confirmed by the test on the hill and 

on the level, as well as the subsequent repairs which were made to the 

brakes. Under these circumstances, I conclude and find that the inspector's 

361 
decision to.issue an innninent danger order after finding that the service 

brakes would not slow or hold the vehicle while descending the incline 

by the shop area was reasonable in the circumstances. While there may be 

some question as to the validity or wisdom of applying a dump or park 

brake while descending a hill, the fact is that the main braking system, 

the service brakes, were not functioning properly and in fact proved to 

be defective and would not do the job. Further, even though the inspector 

may have contradicted himself when he stated that the brakes were not 

"inadequate" for purposes of a possible violation of section 56.9-3, and 

even though the inspector may have exposed himself and the driver to an 

imminent danger when they drove down the hill towards the shop and found that 

the service brakes would not slow or stop the truck, U.S. Steel has not 

rebuted the fact that the service brakes were defective and that this 

defect affected the safety of the driver and the inspector. Under all 

of these circumstances, I conclude and find that the inspector acted 

reasonably and the imminent danger order IS AFFIRMED. 

The modifications of the section 104(d)(l) citations 

At the hearing, MSHA's counsel moved to vacate the section 104(d)(l) 

Citation No. 0583636, the underlying citation which supported the subsequent 

section 104(d)(l) withdrawal orders, and the motion was granted (Tr. 7-8). 

U.S. Steel's counsel argued that since the underlying citation has been 

vacated, the subsequent withdrawal orders must also be vacated since they 

are now unsupported. Counsel's motion for dismissal was denied and taken 

under advisement (Tr. 8), and MSHA's counsel suggested that the circumstances 

and facts developed during the course of the hearing would support a 

modification of the first 104(d)(l) withdrawal order to a citation, and 

that this citation may serve as the support for the remaining withdrawal 

order. The hearing proceeded, and testimony and evidence was presented 

concerning all of the citations in issue. 

In its posthearing brief, MSHA cites the Commission decision in 

Secretary of Labor v. Consolidation Coal Company, 4 FMSHRC 1791, October 29, 1982, 

in support of its argument that I may modify the first section 104(d)(l) 

order issued by Inspector Goodspeed, No. 0583639, back to a section 104(d)(l) 

citation, and that this citation may then support the section 104(d)(l) 

order, No. 0583638. In the Consolidation Coal case the Commission held 

that the statutory provisions found in sections 104(h) and 105(d) of 

the Act expressly authorize the Commission to "modify" any "orders" issued 

under section 104. The Commission noted that "this power is conferred in 

broad terms and we conclude that it extends, under appropriate circumstances, 

to modification of 104(d)(l) withdrawal orders to 104(d)(l) citations", 

4 FMSHRC 1794. The Commission went on to discuss what it believed to 

be the "appropriate circumstances" in the case under consideration, and 

these included such factors as prejudice, any lack of proper or fair notice 

to the operator charged, and whether the operator's defense would have 

been any different had the modification not been allowed. In upholding 

the Judge's authority to modify the citation in question, the Commission 

362 
also not.ed that to do otherwise would allow the kind of serious violation 

encompassed by section 104(d) to fall outside of the statutory sanction 

expressly designed for it--the 104(d) sequence of citations and orders, 

and that "such a result would frustrate section 104(d)'s graduated scheme 

of sanctions for more serious violations", 4 FMSHRC 1794. 

In the instant proceedings, MSHA's counsel points out that he 

requested me to modify the withdrawal order in question at the beginning 

of the hearing before any testimony or evidence was presented, and that 

U.S. Steel had an ample opportunity to present any evidence as to why 

the requested modification should not have been granted. MSHA concludes 

that there has been no prejudice and that if I find that the first issued 

section 104(d)(l) order met the requirements of a validly issued 104(d) 

citation, then I should modify the order and preserve the unwarrantable 

failure chain. 

In its posthearing brief, U.S. Steel concedes that the Consolidation 

Coal Company decision authorizes me to modify the order in question to 

a citation if the evidence supports such citation. However, counsel argues 

that Order No. 0583639 citing the No. 18 haul truck does not support a 

finding that the violation was of a significant and substantial nature. 

In support of this conclusion, counsel argues that even though Inspector 

Goodspeed testified that it was reasonably likely that a miner at the 

quarry would receive a reasonably serious injury from the cited brake 

conditions, he ignored the fact that the quarry had gone eight years 

without an accident or fatality involving the trucks, and that his 

testimony that someone could get hurt by walking in front of the trucks 

that were dumping or parked on hills also ignores the driver's testimony 

that there is no pedestrian traffic on the inclines. Counsel suggest 

that Mr. Goodspeed's "theory" that the driver himself was in a position 

of peril makes little sense in light of the accident history at the quarry. 

Further, counsel points out that the order the Secretary chose to modify 

to a citation does not even allege the brakes were not adequate to hold 

the vehicle, but merely that they would not hold at idle of 550 rpms 

(Government Exhibit 4), and even assuming the inspector followed his test 

procedures (Government Exhibits 9 and 10), he would only conduct this 

test where there was no pedestrian traffic. 

After careful consideration of the arguments presented in this case, 

I conclude and find that MSHA's position is correct and that I do have the 

authority and discretion to modify the section 104(d)(l) order in question. 

Further, I conclude that while the better practice is for MSHA to file 

its motion in advance of any hearing, on the facts of this case I cannot 

conclude that U.S. Steel has been prejudiced by the solicitor making the 

motion at the hearing before any testimony or evidence is taken. Here, 

U.S. Steel had ample time to present its defense and I cannot conclude that 

it would have done anything different by way of any defense. :t has had 

a fair opportunity to present its defenses and to cross-examine all of 

MSHA's witnesses, including its own employees called as adverse witnesses. 

If the record supports the requisite "significant and substantial" and 

363 
"unwarrantable failure" findings, the first section 104(d)(l) order, 

as modified, will stand in support of the second order. If it is unsupported, 

it will fall, and the "chain" will be vacated. My findings and conclusions 

on these issues follow below. 

Significant and Substantial 

The test for a "significant and substantial" violation was laid down 

by the Commission in Secretary of Labor v. Cement Division, National Gypsum 

Company, 3 FMSHRC 822, April 7, 1981, a civil penalty case. In that case 

the Commission held that a violation is "significant and substantial" if --

based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature. 

104(d)(l) Order No. 0583639, issued at 2:10 p.m. July 6, 1981 

Although Section 104(d)(l) of the Act does not require an inspector 

to make an "S&S" finding to support an unwarrantable failure order, 

Inspector Goodspeed made such a finding when he issued the 104(d) Order 

for the defective brake condition on the No. lt; haul truck, and the fact 

that he did so does not in my view ipso facto render the order illegal. 

Inspector Goodspeed cited a violation of mandatory safety standard section 

56.9-2, found that the violation constituted an unwarrantable failure 

to comply, and his "S&S" finding was a "gratuity", which if supported, 

will stand. If not supported, it will fail. 

U.S. Steel argues that the brake condition cited by the inspector 

is limited to an assertion that the brakes would not hold at a certain 

"idle" speed, and that the inspector's testimony that someone could be 

injured by inadvertently walking in front of the truck ignores the fact 

that there is no evidence that there were any pedestrians on the hill roads 

or in the area where the truck may have been dumping. Further, U.S. Steel 

maintains that the inspector's belief that the violation presented a 

reasonable likelihood of anyone being injured also ignores the eight year 

accident-free history of the quarry. 

The accident-free record of the quarry is commendable, and I have 

considered this fact in assessing the civil penalties in this case. However, 

I cannot ignore the fact that the evidence and testimony in this case 

reflects that the service brakes were defective, that these defects 

affected the safe operation of the truck in question, and that the service 

brakes would not hold the truck on the level as well as on the incline 

where it was driven. The question of whether the violation is a significant 

and substantial one must be decided on the basis of the evidence presented 

to support that finding. 

364 
In this case, U.S. Steel's contention that the condition cited on 

the face of the citation issued by Inspector Goodspeed is limited to the 

inability of the brakes to hold the truck on the level while idling at 

550 rpm's is correct. However, the driver and the inspector confirmed 

that the service brakes were also tested on an incline while the truck 

was being driven to the shop and that the brakes would not hold the truck. 

They also confirmed that the dump brake was tested and that it would not 

hold the truck. Although the conditions recorded by the inspector on 

the face of the citation are not a model of clarity, and the inspector's 

failure to include the fact that the brakes would not hold when tested 

on the hill and dump area as part of the cited conditions remains unexplained, 

the fact is that the evidence establishes that the service brakes were 

inadequate, the brake cam shafts were worn, and that the brakes needed 

adjustment. 

Inspector Goodspeed's testimony in support of his "S&S" finding 

is that the violation "was reasonably serious" and that an accident "was 

reasonably likely to occur", and that someone would have been injured 

because of the inability of the truck to stop. Although his conclusions 

in this regard may be unreasonable in a situation where the truck is 

simply idling at a level location, they are not so unreasonable when one 

considers the fact that the service brakes would not hold the truck while 

it was being driven to the shop area to be taken out of service for repairs. 

The defective service brakes exposed the driver and the inspector to 

poss.ible injury, as well as any other vehicular or pedestrian traffic 

which may have been encountered by the truck on the way to the shop. 

Further, while it is true that the inspector did not consider the seriousness 

of the situation to be such as to warrant an imminent danger order, and 

while it is also true that his initial decision to issue the order was 

made at the time the brakes were tested on the level, I cannot ignore 

the fact that the brakes would not hold the truck and that they proved 

to be defective. In these circumstances, I conclude and find that the 

violation was significant and substantial and the inspector's finding 

in this regard IS AFFIRMED. 

104(d)(l) Order No. 0583638, issued at 3:00 p.m., July 6, 1981 

Inspector Goodspeed found that the violation for the brakes on the 

No. 10 haul truck was "significant and substantial". Although he testified 

that he first decided to issue the order when he tested the dump brake 

on the level dump area, he also had the driver test the service brakes 

on an incline while the truck was being driven to the shop area for 

repairs, found that the brakes would not hold the truck on the incline, 

and he included all of these facts on the face of the order. 

In support of his "significant and substantial" finding, Mr. Goodspeed 

testified that he believed the defective brakes would not be able to stop 

the truck "under emergency type conditions". He explained his rationale 

for permitting the truck to be driven to the shop ·with defective brakes 

by stating that the truck was empty and that the driver was able to keep 

365 
it under control, and that under these "controlled conditions" he 

had no serious reservations about permitting the truck to be driven 

to the shop. Although the inspector's rationale may seem contradictory, 

and while it may have been wiser for the inspector to simply abandon the 

truck when he first decided to cite it, and have it towed to the shop, his 

decision to have the driver drive it to the shop, does not, in my view, 

lessen the fact that the brakes were defective, that they were in need 

of repair, and that they could not hold the truck on the incline. 

Given all of these circumstances, the fact that no one was run over on 

the way to the shop, does not detract from the dangerous and hazardous 

conditions of the brakes. Both the driver and the inspector were exposed 

to a hazardous condition, and the fact that the inspector may have used 

poor judgment does not excuse or cure the defective brake conditions. 

I conclude and find that the violation was significant and substantial, and 

the inspector's finding in this regard IS AFFIRMED. 

Unwarrantable Failure 

A violation of a mandatory standard is caused by an unwarrantable 

failure to comply with the standard where "the operator involved has failed 

to abate the conditions or practices constituti~g such violation, conditions 

or practices the operator knew or should have known existed or which it 

failed to abate because of lack of due diligence, or because of indifference 

or lack of reasonable care." Zeigler Coal Company, 7 IB:MA 280, 295-296 

(1977). 

It seems clear to me from the testimony in this case that Inspector 

Goodspeed's decision to issue the unwarrantable failure orders was prompted 

by the fact that the truck driver's initially told him that their complaints 

to mine management about the defective brake conditions on the trucks 

which were cited fell on deaf ears and repairs were not made. While it 

is true that some of the drivers may have reported the faulty brake condition 

the same day that the inspector was at the mine, I honestly believe they 

did so to protect themselves from criticism, and not so much out of any 

concern for their safety. If this were all of the evidence present in this 

case to support the inspector's unwarrantable failure findings, I would 

rule in favor of U.S. Steel on this issue. However, for reasons which 

follow, I believe that the record supports a finding that mine management 

was well aware of the defective brake conditions, and simply ignored them 

because they either did not have the available manpower to correct the 

conditions immediately, or simply did nothing because the drivers either 

did not complain or "assumed the risks". 

Maintenance foreman Oberg candidly and honestly admitted that while 

most of the trucks at the quarry were generally maintained in "fair to good 

condition", because of certain budget and equipment constraints, "less 

attention" was paid to the trucks which were cited. Mr. Oberg also candidly 

conceded that the brakes on the cited trucks were in need of repair or 

adjustments, and he conceded that had he been aware of the brake conditions 

3GG 
on the trucks in question prior to the inspector's arrival on the scene 

on July 6, 1981, he would have pulled them all into the shop for the 

needed repairs. That is precisely the point. As maintenance foreman, 

it seems to me that it is his primary responsibility to insure that the 

trucks are periodically road tested and checked to insure that the brake 

systems are maintained in a safe condition. On the facts of these cases, 

it should be abundantly clear to U.S. Steel that shifting this responsibility 

to the driver is simply inadvisable, particularly when U.S. Steel, and 

not the driver~ is ultimately held accountable by MSHA. 

The driver of the No. 10 haul truck testified that he had orally 

reported the conditions of the brakes to shift boss Westover and Barnett 

at least a month before the inspection, and he also indicated that the 

brakes "haven't been good" for three or four months prior to that time. 

The driver of the No. 18 truck also testified that he had made similar 

complaints, and while he conceded that he was given the opportunity to drive 

other trucks while the No. 18 was under repair, there is no evidence 

that the No. 18 was ever taken out of service or that mine management 

assigned him another truck on their own initiative. Given these circumstances, 

it seems clear to me that the maintenance boss or foreman was aware of 

the conditions of the truck or they would not have offered the driver 

an option of driving another one. Rather than doing that, these foremen 

should have taken the truck out of service and made the necessary repairs. 

By not doing this, they exposed themselves to the actions taken by the 

inspector in this case and they did so at their own peril. 

---::--Mr-;- -Barnett denied that any of the drivers ever specifically complained '---

to him abouf the brake conditions on the trucks. However, when asked 

specifically about any complaints on the No. 10 truck during the period 

May through July 1981, he indicated that there "could have been some 

discussions" but "nothing that would have created a serious safety 

situation". As for the No. 18 truck, he claimed that this "was very much 

a surprise to me". However, on cross-examination, he confirmed that he 

was not completely unaware of the defective brake conditions on all of 

the trucks which were cited, that he was in fact aware of the brake conditions, 

and that his "awareness" came about as a result of his being in daily 

contact with the drivers and the equipment. 

Upon being recalled for testimony on behalf of U.S. Steel, Mr. Oberg 

again reitereated that he depends on his drivers and mechanics to inform 

him of defective brake conditions, and if they do not report the defects 

to him, he has no way of knowing that defects need correcting. Again, the 

short answer to this is that the man in charge of vehicle maintenance 

should make it his business to know about those conditions, and if he 

has subordinates who fail in their obligations, appropriate management 

measures should be taken to correct such a situation. 

In view of the foregoing, I conclude and find that the record here 

fully supports the inspector's findings that the two violations issued 

for the brake conditions on the No. 10 and 18 trucks resulted from U.S. Steel's 
unwarrantable failure to comply with the requirements of mandatory safety 

standard section 56.9-2, and that this failure by U.S. Steel was a direct 

result of a lack of due diligence and a lack of reasonable care to insure 

that the defective brake conditions were corrected prior to the time they 

were cited by the inspector on July 6, 1981. Accordingly, Inspector Goodspeed's 

unwarrantable failure findings as to both section 104(d)(l) orders in 

issue ARE AFFIRMED. 

IT IS FURTHER ORDERED that the section 104(d)(l) Order No. 0583639, 

is modified to a section 104(d)(l) citation, and as modified IS AFFIRMED. 

The subsequent section 104(d)(l) Order No. 9583638 is also AFFIRMED. 

Civil Penalty Assessments 

Size of Business and Effect of Civil Penalties on the Respondent's Ability 

to Remain in Business 

The parties stipulated that U.S. Steel is a large mine operator 

and that any reasonable penalties assessed for the violations in question 

will not adversely affect its ability to remain in business. I adopt these 

stipulations as my findings on these issues. 

History of Prior Violations 

The parties stipulated that for the 24-months prior to the issuance 

of the citations in issue in these proceedings six citations were issued 

at the mine in question. However, the computer print-out submitted by 

MSHA, exhibit G-1, containing a summary of the history of citations at 

the Keigley Quarry, reflects a total of 39 assessed violations and three 

paid violations for the period July 6, 1979 to July 5, 1981. Three of 

these assessed violations are for citations concerning section 56.9-2. 

While the apparent discrepancy here remains unresolved, for purposes of 

my civil penalty assessments they are not critical, and I cannot conclude 

that respondent's history of prior violations is such as would warrant 

any additional increases in the proposed penalties. As previously noted, 

I have considered the fact that the quarry has a commendable accidentfree safety record insofar as trucks and brakes are concerned, and this 

is reflected in my penalty assessments. 

Good Faith Compliance 

The parties stipulated that all of the violations in these proceedings 

were abated in good faith, and I adopt this as my finding on this question. 

Gravity 

I conclude and find that the brake conditions cited as violations 

in the section 104(d)(l) citations WP.re serious. The failure of the 

brakes to hold the trucks while they were in operation exposed both the 

drivers and possibly other miners to injuries which I believe were reasonably 

368 
likely to result from any accident resulting from the failure of the 

brakes to hold the trucks on the hills and inclines where they were 

driven. I also find that the violation affirmed in the imminent danger 

order was very serious and that an accident was highly likely to occur 

since the driver was unable to stop the truck while going five to ten 

miles an hour even after he applied two additional braking systems. 

Negligence 

I conclude and find that all of the violations resulted from the 

negligence of U.S. Steel to insure that the brake conditions on the cited 

trucks were corrected before the trucks were operated. As indicated 

earlier in my findings and conclusion~ the quarry maintenance department 

should have been more alert to the conditions of the trucks, and rather 

than relying on the drivers and mechanics, should have taken the initiative 

to insure that trucks with defective brakes are taken out of service 

and repaired. 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, the following 

civil penalties are assessed by me as reasonable penalties for the violations 

which have been affirmed: 

Citation No. 30 CFR Standard Assessment 

104(a)-107(a) 56.9-2 $ 750 

No. 0583637 

104(d)(l) 56.9-2 $ 500 

No. 0583639 

104(d)(l) 56.9-2 $ 500 

No. 0583638 $ 1750 Total 

ORDER 

Respondent IS ORDERED to pay civil penalties in the amounts shown 

above within thirty (30) days of the date of these decisions and order, 

and upon receipt of payment by MSHA, these matters are dismissed. 

Distribution: 

Robert A. Cohen, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Louise Q. Symons, Esq., U.S. Steel Corp., 600 Grant St., Rm. 1580, 

Pittsburgh, PA 15230 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 3, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

HELEN MINING COM_PANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. PITT 79-11-P 

A.C. No. 36-00926-03001 

Homer City Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

In accordance with the decision of the Court of Appeals 

for the District of Columbia Circuit the Commission remanded 

this matter. 4 FMSHRC 880 (1982). On August 11, 1982, the 

case was continued since the operator had filed a petition 

of certiorari with the Supreme Court. The Supreme Court now 

has denied the petition for certiorari. 74 L.Ed.2d 189 

(1982). 

In accordance with the decision of the Court of Appeals 

it must be held that a violation occurred. The only issue 

remaining for decision is the amount of penalty to be 

assessed. On January 27, 1983, the operator filed a motion 

to approve a settlement. The operator's motion sets forth 

the circumstances involved including the test case nature of 

this proceeding. A penalty of $20 was recommended. On 

January 31, 1983, the Solicitor filed a letter in agreement 

with the operator's motion. 

After a review of the matter and especially in light of 

the unusual nature of this case which was brought to obtain 

a definitive interpretation of Section 103(f) of the Act, I 

conclude the recommended settlement should be approved. 

370 
ORDER 

The operator is ORDERED to pay $20 within 30 days from 

the date of this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: Certified Mail. 

Edward H. Fitch, Esq., Office of the Solicitor, U. S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

Richard McMillan, Jr., Esq., Crowell & Moring, 

1100 Connecticut Avenue, N.W., Washington, DC 20036 

371 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HAR 3 1983 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BURGESS MINING & CONSTRUCTION 

CORPORATION, 

Respondent 

. 

DECISION 

Docket No. SE 81-43 

AC No. 01-00550-03020 

Docket No. SE 81-44 

AC No. 01-00550-03022 

Boothton Mine 

APPEARANCES: George D. Palmer, Esq., Associate Regional Solicitor 

United States Department of Labor, for Petitioner; 

W.E. Prescott, III, Esq., for Respondent 

Before: Judge William Fauver 

These proceedings were brought by the Secretary of Labor under Section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, 

et ~' for assessment of civil penalties for alleged violations of 

mandatory safety or health standards. The cases were consolidated and 

heard in Birmingham, Alabama. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probative, and 

substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent operated a surface coal mine 

known as Boothton Mine, in Alabama, which produced coal for sales in or 

substantially affecting interstate commerce. 

2. Respondent closed down the mine operations in December, 1980. 

At the time of the inspection involved here, in November, 1980, the .. 

mine was active, its annual tonnage was about 23,738 tons of coal, and 

its employment was about 20 mining personnel. 

372 
Citation No. 749494 

3. This citation charges a violation of 30 CFR § 77.1605(b), alleging 

that, "The brake was not adequately working on the No. 12-22 Cat. Road 

Grader 14G was being operated on the roads in 1420 pit." The citation 

actually reft.rs to the parking brakes on the equipment. However, the 

standard cited does not require parking brakes on this kind_ of equipment. 

Section 1605(b) requires that mobile equipment shall be equipped with 

adequate brakes and that trucks and front-end loaders shall also be 

equipped with parking brakes. At the commencement of the hearing, Petitioner· 

moved to amend the citation to substitute a different standard, § 77.404(a), 

which requires that equipment shall be maintained in safe operating condition. 

The motion to amend was denied.' Petitioner stated that a violation could 

not be proved unless the motion to amend was granted. Accordingly, no 

evidence was offered on this citation and the citation was ordered to be 

dismissed. 

Withdrawal Order and 

Citation No. 750400 

4. The citation charges a violation of 30 CFR § 77.1710(g), which 

requires: 

(g) Safety belts and lines where there is a danger of falling .•.• 

An employee was operating a large drill, weighing several tons, near the 

edge of the highwall. When observed by the inspector, the employee was 

holding on to the drill with one hand and operating it with the other hand. 

He was standing about one foot from the edge of the highwall, which was a 

steep drop of about 75 feet. He was not wearing a safety belt or other kind 

of protection to prevent a fall down the highwall. The inspector issued an 

imminent danger withdrawal order and citation. The alleged violation was 

abated by removing the drill from the edge of the highwall and issuing the 

employee a safety belt. 

5. The condition observed by the inspector constituted an imminent danger. 

The condition was readily observable and could have been prevented by the 

exercise of rea~onable care. The factual allegations in the citation and order 

were proved by a preponderance of the evidence. 

Citation No. 751050 

6. The citation alleges a violation of 30 CFR § 77.400, which provides 

in subsections (a) and (b): 

373 
(a) Gears: sprockets; chains, drive, head, tail, and 

takeup pulleys; fly wheels; couplings; shafts; sawblades 

fan inlets; and similar exposed moving machine parts ~vhich 

may cause injury to persons shall be guarded .... 

*** 

(b) Except when testing the machinery, guards shall be 

securely in place while machinery is being operated. 

7. The citation charges that, "A guard was not provided between the master 

clutch and the drag drum on the 480 dragline. The oiler travels daily between 

the clutch and the drum to grease." The factual allegations of the charge were 

proved by a preponderance of the evidence. A large clutch device, about 3 to 4 

feet in diameter, with a general appearance of a fly wheel, was unguarded on 

each side. The outside part of the wheel revolved at a swift speed, perhaps 

200 rpm, and presented a serious danger to the oiler, who could have become 

entangled in the moving equipment without a guard. 

Citation No. 751052 

8. The citation charges a violation of 30 CFR § 77.205(e), which provides: 

(e) Crossovers, elevated walkways, elevated ramps, and 

stairways shall be of substantial construction, provided 

with handrails, and maintained in good condition. Where 

necessary toeboards shall be provided .... 

The factual allegations of the charge were proved by a preponderance 

of the evidence. An elevated walkway in the upper strllcture of the 480 

drag-line was about 20 feet above the top of the house body of the 

dragline. The inside of the walkway was unguarded. There were metal 

structural support pieces along the inside of the walkway, but these 

left openings sufficient for a person to fall through. This condition 

constituted a serious hazard. 

9. The citation charges a violation of CFR § 77.1302(b), which provides: 

(b) Vehicles containing explosives or detonators shall 

be maintained in good condition and shall be operated at a 

safe speed and in accordance with all safe operating 

practices ... 

The citation charges that a power truck used to transport explosives was not 

maintained in good condition in that the tie ro~ ends were· worn out· and. th~· 

steering section was loose on the frame. The inspector testified that the 

steering box was so -"loose .•. you could shake it with your hand" and 

threatened to come off at any time. If it fell off, the operator would 

have lost control of the vehicle. The factual allegations of the charge 

were proved by a preponderance of the evidence. This condition presented 

a serious safety hazaru .. Citation No. 751057 

10. The citation charges a violation of 30 CFR § 71,402(a}, which 

provides: 

(a) All bathing facilities, change rooms, and sanitary 

flush toilet facilites shall be provided with adequate 

light, heat, and ventilation so as to maintain a confortable 

air temperature and to minimize the accumulation of 

moisture and odors, and the facilities shall be maintained 

in a·clean and sanitary condition .••• 

374 
'.l'he factual allegations of the charge were proved by a preponderance 

of the evidence. The bathing and toilet facility was dirty, smelled very 

bad, and had inadequate lighting in that some of the light bulbs in the 

shower area were burned out. The condition was unsanitary and unsafe. 

Citation No. 753705 

11. The citation charges a violation of 30 CFR § 77.1002, which provides: 

When box cuts are made, necessary precautions shall be 

taken to minimize the possibility of spoil material rolling 

into the pit. 

The box cut involved is shown in Exhibits G-4 and G-5. Exhibit G-5 is a 

photograph from the drag-line and loader area and pictures the box cut made 

by the drag-line with the spoil material on the right side of Exhibit G-5. 

Exhibit G-4 pictures the same spoil material from the opposite side of the 

box cut; that is, G-4, was taken from the left-side perspective of G-5. 

The road for the coal trucks was next to the spoil bank as shown 

in Exhibit G-5. 

12. The MSHA inspectors observed rocks rolling off the spoil bank 

into the pit where the road was being used by the coal trucks and further 

noticed a "big crack" in the spoil bank which "could have caved off on 

the vehicles ••. (and) just covered them up." The inspectors ordered the 

_hauling stopped immediately. Since only five or six loads were left to 

haul out of this particular box cut, the inspectors permitted the operator 

to move the hauling road to the opposite side of the pit and complete the 

hauling while the inspectors carefully observed. The box cut was then 

closed. If the box cut had been originally cut smaller, the amount of the 

spoil would not have been so large as to create this problem in the first 

place. Another alternative would have been to put some of the spoil on 

the other side of the box cut. The factual allegations of the charge were 

proved by a preponderance of the evidence. 

Citation No. 754282 

13. The citation charges a violation of 30 CFR § 77.1109(c)(l), which 

provides: 

(c)(l) Mobile equipment, including trucks, front-end 

loaders, bulldozers, portable welding units, and augers, 

shall be equipped with at least one portable fire extinguisher. 

The citation alleges that the Mark M 3200 coal hauler was not equipped 

with at least one portable fire extinguisher. The parties stipulated that 

this violation occurred. 

375 
Citation No. 754283 

14. The citation charges a violation of 30 CFR § 77.1605(a), which 

provides: 

(a) Cab windows shall be of safety glass or equivalent, 

in good condition and shall be kept clean. 

The front cab window on a Clark 275B Front End Loader had two shattered 

breaks, with "spider lines" radiating from them. The breaks obstructed 

part of the view through the window and presented a hazard of glass falling 

upon the operator. The factual allegations cf the charge were proved by a 

preponderance of the evidence. 

15. Concerning each of the charges in Fdgs. 4-14, the condition was 

readily observable and could have been prevented or corrected by the 

exercise of reasonable care before the time of the inspection. 

CONCLUSIONS OF LAW 

1. The Commission has jurisdiction over the parties and the subject 

matter of the above proceedings. 

z: The Secretary failed to prove a violation as charged in Citation 

No. 749494. As to each of the other citations involved~ Respondent violated the 

the safety or h~alth standnrd as charged. 

3. Based upon the statutory criteria for assessing a civil penalty 

for a violation of a mandatory safety or health standard, Respondent is 

assessed the following civil penalties: 

Citation Civil Penalty 

No. 750400 (including $530.00 

withdrawal order) 

No. 751050 114.00 

No. 751052 150.00 

No. 751053 180.00 

No. 751057 78.00 

No. 753705 106.00 

No. 754282 66.00 

No. 754283 60.00 

376 
Proposed findings of fact or conclusions of law inconsistent witn 

the above are rejected. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The charge based on Citation' No, _ 749494- is. DISMISSED. 

2. The Respondent, Burgess Mining & Construction Corporation, shall pay 

the Secretary of Labor the above-assessed civil penalties, in the amount of 

$1,284.00, within 30 days from the date of this decision. 

w~+~v~ WILLJAM FAUVER, JUDGE 

Distribution Certified Mail: 

George D. Palmer, Esq., Office of the Solicitor, US Department of Labor, 

1929 South Ninth Ave., Birmingham, AL 35256 

W.E. Prescott III, Esq., Burgress Mining & Construction 

Corp., PO Box 26340, Birmingham, AL 35226 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 KAR 3 l9'3 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Representative of the Miners 

Contest of Citation 

Docket No. WEVA 82-209-R 

Citation No. 864590; 2/16/82 

Blacksville No. 1 Mine 

Civil Penalty Proceeding 

Docket No. WEVA 82-245 

A.C. No. 46-01867-03102 

Blacksville No. 1 Mine 

DECISION 

Appearances: Robert M. Vukas, Esq., Pittsburgh, Pennsylvania, appeared for 

Consolidation Coal Company; 

Before: 

Janine C. Gismondi, Esq., and Matthew J. Reider, Esq., Office 

of the Solicitor, U.S. Department of Labor, Philadelphia, 

Pennsylvania, appeared for the Secretary of Labor; 

The representative of the miners did not appear at the hearing. 

A brief was filed on behalf of the miners representative by 

Mary Lu Jordan, Esq., Washington, D.C. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

The Secretary issued a citation on February 16, 1982, under section 104(a) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 814(a), charging 

a violation of 30 C.F.R. § lOO(a). The citation was based on samples of 

respirable dust collected by Consol (the operator) on 5 successive days -

January 20 through January 24, 1982, which had an average concentration of 

respirable dust of 4.1 milligrams per cubic meter of air (4.1 mg/m3). The 

citation charged that the violation was of such nature as could significantly 

378 
and substantially contribute to the cause and effect of a mine safety or health 

hazard. The operator admits the violation of the standard but contests the 

propriety of the significant and substantial finding. 

Pursuant to notice the case was heard in Washington, Pennsylvania, on 

November 9 and 10, 1982. Barry L. Ryan, Thomas K. Hodous, M.D., William 

Sutherland and Thomas Tomb testified on behalf of the Secretary of Labor. Earl 

Kennedy and Warfield Garson, M.D. testified on behalf of the operator. Posthearing briefs have been filed by the Secretary, the operator and the Representative of the Miners. 

Based on the entire record and considering the contentions of the parties, 

I make the following decision. 

FINDINGS OF FACT 

1. At all times pertinent to these proceedings, Consolidation Coal Co. 

was the owner and operator of the Blacksville No. 1 Mine located in Monongalia 

County, West Virginia. The operation of the subject mine affects interstate 

commerce. Consol is a large operator, 

2. The subject mine had a history of 554 paid violations of mandatory 

health and safety standards in the 2-year period from February 16, 1980 to 

February 15, 1982. Three hundred seventy three of these violations were 

designated significant and substantial. 

3. Payment of the proposed penalties in this case will not impair Consol's 

ability to continue in business. 

4. During the 12 months prior to February 16, 1982, MSHA did not issue 

any citations for respirable dust violations for section 026 (the section 

involved in this case) of the subject mine. No citations charging respirable 

dust violations were issued for the section between February 17, 1982 and 

November 9, 1982, the date of the hearing in this case. 

5. During the 2 years prior to November 9, 1982, two citations were 

issued for alleged ventilation violations on section 026 of the subject mine. 

6. The dust controls on section 026 including high pressure water sprays, 

and a new 40 horsepower auxiliary fan, were generally very effective. 

7. The dust samples taken from section 026 during 18 months or 2 years 

prior to the citation contested herein averaged approximately .4 mg/m3 to 

.7 mg/m3. The section had one of the best dust control records of any working 

section in Northern West Virginia. 

8. The five required samples for the bi-monthly period January and 

February 1982 for the continuous miner operator in section 026 of the subject 

mine showed respirable dust levels of 8.1, 0.4, 5.1, 6.3 and 0.7 mg/m3 on 

January 20, 21, 22, 23 and 24. The average concentration for the five samples 

was thus 4.1 mg/m3. 

379 
9. The operator wrote a note on two of the samples asking MSHA to check 

for contamination, rock dust and oversized particles. 

10. MSHA did not microscopically check any of the samples involved, based 

on MSHA policy of not microscopically examining samples with less than an 

MRE equivalent of 8.6 mg. 

11. Citation No. 864590 was issued on February 16, 1982, charging a 

violation of 30 C.F.R. § 70.100 because of the average respirable dust concentration of 4.1 mg/m3 in the samples submitted. The violation was cited as 

significant and substantial based on MSHA policy that violations charging 

overexposure to respirable coal mine dust are normally considered significant 

and substantial. 

12. The citation was terminated when five valid samples were collected 

during five consecutive production shifts, and submitted to MSHA showing an 

average concentration of respirable dust of less than 2.0 mg/m3. The termination was issued on March 5, 1982. No changes were made in ventilation or 

mining procedures following the issuance of the citation. The samples showed 

respirable dust concentrations of 0.2, 0.5, 0.7, 0.8 and 0.2. 

13. There is no evidence in this record concerning the mining employment 

history of the miner or miners whose environment was measured by the respirable 

dust samples which resulted in the citation involved herein. 1/ 

14. The sampling device used by the operator is designed to collect the 

coal mine dust that will be deposited in the human lung. It is so designed 

that essentially no dust particles greater than 7.1 microns in size pass 

through the filter; approximately 50 percent of the particles 5 microns in size 

and 98 percent of the particles one micron in size pass through the filter. 

It collects all the dust in the atmosphere, including coal dust, rock dust 

(limestone), mica, kaolin and silica to the extent that any of these elements 

is present in the atmosphere being sampled. There is no evidence in this 

record concerning the nature of the dust in the samples involved herein. I 

am assuming that the samples contained coal dust, but am not able to assume 

they contained rock dust, mica, kaolin or silica. 

15. The sampling devices are not foolproof however, and can pick up 

oversized non-respirable particles. They are subject to misuse, deliberate 

contamination, improper miner work habits, defective parts, etc. The operator 

is required to submit the samples to MSHA even if one of these potentially 

distorting factors is observed. There is no evidence in this record that the 

samples which resulted in the citation involved herein were affected by misuse, 

deliberate contamination, improper miner work habits, or defective equipment. 

1/ "Still we know how Day the Dyer works, in dims and deeps and dusks and 

darks." J. JOYCE, FINNEGANS WAKE, 226 (1939). 

380 
16. Some medical and mortality studies have suggested an increasing risk 

of stomach cancer among coal miners. The studies are inconclusive, however, 

and there is no present evidence linking this disease to exposure to respirable 

coal mine dust. 

17. Coal miners who are exposed to silica dust, those whose jobs require 

cutting through rock or throwing sand on haulage tracks, have an increased risk 

of contracting silicosis. Some studies have shown that other coal miners have 

an increased risk of silicosis, but these are inconclusive. 

18. Silicosis is an aggressive, serious lung disease which can result from 

short term exposure to high levels of silica dust. It can lead to tuberculosis, 

heart failure and death. 

19. Chronic bronchitis is a chronic productive cough and can be caused by 

any bronchial and lung irritant. It most commonly results from cigarette smoking 

but can be caused by the deposition of coal dust in the larger or smaller airways 

of the lung. It results in some loss of lung function. It may be disabling to 

some degree though not in all people. It can result in increased susceptibility 

to colds or other respiratory infections. In susceptible individuals, bronchitis 

can result from relatively short term exposure to coal mine dust - that is from 

exposure of 6 to 12 months. Studies have indicated that approximately 3 or 

4 percent of new miners subjected to respirable coal mine dust in the 2.0 mg/m3 

range will develop symptoms of bronchitis in a 12-month period. After a 

24-month period, approximately 12 percent of such miners showed symptoms of 

bronchitis. Exposure to respirable coal mine dust levels of 4.1 mg/m3 over a 

5-day period would not.in itself cause or significantly contribute to the development of chronic bronchitis. 

20. Coal workers pneumoconiosis is a lung disease caused by the deposition of coal dust on the human lung and the body's reaction to it. The dust 

accumulates in the small airways and the macrophagia of the lungs are unable 

to clear it. Continuous exposure to coal dust may cause the condition to 

spread and to involve most parts of the lung. In some individuals the condition may progress to progressive massive fibrosis which involves the destruction of alveoli and distortion of the remaining lung tissue. 

21. Simple coal workers' pneumoconiosis usually is asymptomatic. It is 

diagnosed by x-ray examination. Progressive massive fibrosis or complicated 

coal workers' pneumoconiosis commonly causes symptoms of shortness of breath 

and cough. It can cause severe pulmonary impairment and early death. 

22. Both simple coal workers' pneumoconiosis and progressive massive 

fibrosis are chronic diseases and there is no known treatment which can reverse 

the disease process. In the case of simple pneumoconiosis, removing the 

afflicted person from the offending exposure will prevent further progression. 

This is not true of progressive massive fibrosis which may cause further lung 

deterioration without continued exposure to coal dust. 

381 
23. Approximately 11 percent of new miners with healthy lungs (category 

0/0) who are exposed to respirable dust levels of 4.1 mg/m3 will contract 

simple coal workers' pneumoconiosis (category 1/0) if the exposure continues 

over a working life. Approximately 3 or 4 percent of such miners will develop 

category 2/1 pneumoconiosis, and approximately 1 percent will develop 

progressive massive fibrosis. A miner with category 1/0 pneumoconiosis who 

is exposed to respirable dust levels of 4.1 mg/m3 has approximately five times 

greater risk of progression than a miner with category 0/0. Approximately 

8 percent of miners who have category 2/1 coal workers pneumoconiosis will 

develop progressive massive fibrosis with continued exposure to coal mine dust. 

24. Exposure to average respirable coal mine dust levels of 4.1 mg/m3 

over a 5-day period would in itself not cause coal workers' pneumoconiosis and 

its effect on the development of the disease would be miniscule. 

DISCUSSION 

The medical evidence upon which Findings of Fact 16 through 24 are based 

is generally in agreement. Dr. Garson who testified on Consol's behalf was 

less positive on the relationship of bronchitis to exposure to respirable dust 

than was Dr. Hodous who testified for the government. But when Dr. Garson 

was asked: 

Q. At the present time is there any accepted scientific or 

medical agreement that bronchitis is caused by excessive levels 

of respirable dust? 

he answered: 

A. I think most reasonable pulmonary physicians and 

occupational physicians suspect there is. They also know 

doggone well that there are many instances that you can clearly 

define that it isn't. Our problem is we really can't tell. 

* * * * * * * 

(Tr. 467-468). 

Dr. Hodous testified that an exposure to respirable dust levels of 4.1 mg/m3 

for a 2-month period "would significantly or at least play some role in 

increasing the chance of getting chronic bronchitis. How much that would be, 

would be very difficult to say." (Tr. 117). 

Dr. Hodous and Dr. Garson were in general agreement on the question of . 

the relationship of dust exposure to coal workers' pneumoconiosis. 

382 
STATUTORY PROVISIONS 

Section 104(a) of the Mine Act provides: 

(a) If, upon inspection or investigation, the Secretary or 

his authorized representative believes that an operator of a coal 

or other mine subject to this Act has violated this Act, or any 

mandatory health or safety standard, rule, order, or regulation 

promulgated pursuant to this Act, he shall, with reasonable 

promptness, issue a citation to the operator. Each citation 

shall be in writing and shall describe with particularity the 

nature of the violation, including a reference to the·provision 

of the Act, standard, rule, regulation, or order alleged to have 

been violated. In addition, the citation shall fix a reasonable 

time for the abatement of the violation. The requirement for the 

issuance of a citation with reasonable promptness shall not be a 

jurisdictional prerequisite to the enforcement of any provision 

of this Act. 

Section 104(d)(l) of the Act provides: 

(d)(l) If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, and 

if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of such 

nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health hazard, 

and if he finds such violation to be caused by an unwarrantable 

failure of such operator to comply with such mandatory health or 

safety standards, he shall include such finding in any citation 

given to the operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 

90 days after the issuance of such citation, an authorized 

representative of the Secretary finds another violation of any 

mandatory health or safety standard and finds such violation to 

be also caused by an unwarrantable failure of such operator to 

so comply, he shall forthwith issue an order requiring the 

operator to cause all persons in the area affected by such violation, except those persons referred to in subsection (c) to be 

withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines 

that such violation has been abated. 

383 
Section 104(e) of the Act provides: 

(e)(l) If an operator has a pattern of violations of 

mandatory health or safety standards in the coal or other mine 

which are of such nature as could have significantly and substantially contributed to the cause and effect of coal or other 

mine health or safety hazards, he shall be given written notice 

that such pattern exists. If, upon any inspection within 90 days 

after the issuance of such notice, an authorized representative 

of the Secretary finds any violation of a mandatory health or 

safety standard which could significantly and .substantially contribute to the cause and effect of a coal or other mine safety 

or health hazard, the authorized representative shall issue an 

order requiring the operator to cause all persons in the area 

affected by such violation, except those persons referred to in 

subsection (c), to be withdrawn from, and to be prohibited from 

entering, such area until an authorized representative of the 

Secretary determines that such violation has been abated. 

(2) If a withdrawal order with respect to any area in a 

coal or other mine has been issued pursuant to paragraph (1), 

a withdrawal order shall be issued by an authorized representative of the Secretary who finds upon any subsequent inspection 

the existence in such mine of any violation of a mandatory 

health or safety standard which could significantly and substantially contribute to the cause and effect of a coal or other 

mine health or safety hazard. The withdrawal order shall remain 

in effect until an authorized representative of the Secretary 

determines that such violation has been abated. 

(3) If, upon an inspection of the entire coal or other 

mine, an authorized representative of the Secretary finds no 

violations of mandatory health or safety standards that could 

significantly and substantially contribute to the cause and 

effect of a coal or other mine health and safety hazard, the 

pattern of violations that resulted in the issuance of a notice 

under paragraph (1) shall be deemed to be terminated and the 

provisions of paragraphs (1) and (2) shall no longer apply. 

However, if as a result of subsequent violations, the operator 

reestablishes a pattern of violations, paragraphs (1) and (2) 

shall again be applicable to such operator. 

(4) The Secretary shall make such rules as he deems 

necessary to establish criteria for determining when a pattern 

of violations of mandatory health or safety standards exists. 

384 
Section 202 of the Act provides in part: 

(a) Each operator of a coal mine shall take accurate samples 

of the amount of respirable dust in the mine atmosphere to which 

each miner in the active workings of such mine is exposed. Such 

samples shall be taken by any device approved by the Secretary and 

the Secretary of Health, Education, and Welfare and in accordance 

with such methods, at such locations, at such intervals, and in 

such manner as the Secretaries shall prescribe in the Federal 

Register within sixty days from the date of enactment of this Act 

and from time to time thereafter. Such samples shall be transmitted 

to the Secretary in a manner established by him, and analyzed and 

recorded by him in a manner that will assure application of the 

provisions of section 104(i) of this Act when the applicable limit 

on the concentration of respirable dust required to be maintained 

under this section is exceeded. The results of such samples shall 

also be made available to the operator. Each operator shall report 

and certify to the Secretary at such intervals as the Secretary may 

require as to the conditions in the active workings of the coal mine, 

including, but not limited to, the average number of working hours 

worked during each shift, the quantity and velocity of air regularly 

reaching the working faces, the method of mining, the amount and 

pressure of the water, if any, reaching the working faces, and the 

number, location, and type of sprays, if any, used. 

(b) Except as otherwise provided in this subsection--

(1) Effective on the operative date of this title, 

each operator shall continuously maintain the average 

concentration of respirable dust in the mine atmosphere 

during each shift to which each miner in the active 

workings of such mine is exposed at or below 3.0 milligrams of respirable dust per cubic meter of air. 

(2) Effective three years after the date of enactment of this Act, each operator shall continuously 

maintain the average concentration of respirable dust in 

the mine atmosphere during each shift to which each miner 

in the active workings of such mine is exposed at or 

below 2.0 milligrams of respirable dust per cubic meter 

of air. 

REGULATORY PROVISIONS 

30 C.F.R. § 70.lOO(a) provides: 

(a) Each operator shall continuously maintain the average 

concentration of respirable dust in the mine atmosphere during each 

shift to which each miner in the active workings of each mine is 

exposed at or below 2.0 milligrams of respirable dust per cubic meter 

of air as measured with an approved sampling device and in terms of 

an equivalent concentration determined in accordance with § 70.206 

(Approved sampling devices; equivalent concentrations). 

385 
30 C.F.R. § 70.201 provides in part: 

(a) Each operator shall take respirable dust samples of the 

concentration of respirable dust in the active workings of the mine 

as required by this part with a sampling device approved by the 

Secretary and the Secretary of Health, Education, and Welfare under 

Part 74 (Coal Mine Dust Personal Sampler Units) of this title. 

(b) Sampling devices shall be worn or carried directly to and 

from the mechanized mining unit or designated area to be samplied 

and shall be operated portal to portal. Sampling devices shall 

remain operational during the entire shift or for 8 hours, whichever 

time is less. 

30 C.F.R. § 70.202 and 70.203 provide: 

§ 70.202 Certified person; sampling. 

(a) The respirable dust sampling required by this part shall 

be done by a certified person. 

(b) To be certified, a person shall pass the MSHA examination 

on sampling of respirable coal mine dust. 

(c) A person may be temporarily certified by MSHA to take 

respirable dust samples if the person receives instruction from an 

authorized representative of the Secretary in the methods of 

collecting and submitting samples under this rule. The temporary 

certification shall be withdrawn if the person does not successfully 

complete the examination concluded by MSHA on sampling of respirable 

coal mine dust within six months from the issue date of the temporary 

certification. 

§ 70.203 Certified person; maintenance and calibration. 

(a) Approved sampling devices shall be maintained and calibrated by a certified person. 

(b) To be certified, a person shall pass the MSHA examination 

on maintenance and calibration procedures for respirable dust 

sampling equipment. 

(c) A person may be temporarily certified by MSHA to maintain 

and calibrate approved sampling devices if the person received 

instruction from an authorized representative of the Secretary in the 

maintenance and calibration procedures for respirable dust sampling 

equipment under this rule. The temporary certification shall be 

withdrawn if the person does not successfully complete the examination conducted by MSHA on maintenance and calibration procedures 

within six months from the issue date of the temporary certification. 

386 
30 C.F.R. § 70.207(a) provides: 

(a) Each operator shall take five valid respirable dust 

samples from the designated occupation in each mechanized mining 

unit during each bimonthly period beginning with the bimonthly 

period of November 1, 1980. Designated occupation samples shall 

be collected on consecutive normal production shifts or normal 

production shifts each of which is worked on consecutive days. The· 

bimonthly periods are: 

ISSUES 

January 1 - February 28 (29) 

March 1 - April 30 

May 1 - June 30 

July 1 - August 31 

September 1 - October 31 

November 1 - December 31 

1. May a citation issued under section 104(a) of the Act properly contain 

a finding that the violation is significant and substantial? 

2. Was the violation which occurred in this case of a nature as could 

significantly and substantially contribute to the cause and effect of a coal 

mine safety or health hazard? 

(a) Do the surrounding facts and circumstances concerning the 

taking of respirable dust samples preclude a finding of a "significant 

and substantial" violation? 

(b) Does the medical evidence support a finding of a significant and substantial violation under the National Gypsum]) test? 

3. What is the appropriate penalty for the violation? 

CONCLUSIONS OF LAW 

1. Consolidation Coal Company was subject to the provisions of the Federal 

Mine Safety and Health Act in the operation of the Blacksville No. 1 Mine at 

all times pertinent hereto, and the undersigned Administrative Law Judge has 

jurisdiction over the parties and subject matter of these proceedings. 

2. Consolidation Coal Company was in violation of the mandatory standard 

in 30 C.F.R. § 70.lOO(a) by reason of the fact that it failed to maintain an 

average concentration of respirable dust in the mine atmosphere to which its 

continuous miner operator was exposed in January and February 1982 at or below 

2.0 milligrams of respirable dust per cubic meter of air. 

]:./ Secretary v. Cement Division, National Gypsum Co., 3 FMSHRC 822 (1981). 

38'1 
DISCUSSION 

Although the operator raised questions in its evidence and its crossexamination of government witnesses concerning the accuracy and reliability 

of the dust sampling procedures followed by MSHA, it does not contest the fact 

of violation. 

3. It is appropriate where warranted by the factual circumstances for an 

inspector to find a significant and substantial violation when he issues a 

citation under section 104(a). 

DISCUSSION 

The operator argues that the Mine Act "does not permit the designation 

'significant and substantial' to be applied to" a citation issued under 

section 104(a). The argument is based on the fact that the terms significant 

and substantial are not contained in section 104(a) but are contained in 

104(d). However, in order that a citation be issued under section 104(d), 

it must be "significant and substantial" and be caused by the operator's 

unwarrantable failure to comply. If a violation is in fact significant and 

substantial and not caused by unwarrantable failure, I find nothing in the Act 

which prohibits a citation from indicating the significant and substantial 

character of the violation. Section 104(e) which refers to a pattern of 

significant and substantial violations does not refer to unwarrantable failure, 

and I conclude that citations issued under section 104(a) may be part of a 

pattern if they are significant and substantial. 

It does not appear that the issue was raised, but I note that each of the 

citations challenged in Secretary v. Cement Division, National Gypsum Company, 

supra was issued under section 104(a) of the Act. In discussing the test for 

significant and substantial, the Commission did not indicate that such a 

finding was prohibited in a citation issued under 104(a). 

4. The violation found in conclusion of law No. 2 was of such nature as 

could significantly and substantially contribute to the cause and effect of a 

coal mine health hazard. 

DISCUSSION 

A. The National Gypsum test 

In Secretary v. Cement Division, National Gypsum Company, supra, the 

Commission seems to have enuciated two tests for determining whether a violation is significant and substantial. At 4 FMSHRC 825, it states that "a violation is of such nature as could significantly and substantially contribute to 

the cause and effect of a mine safety or health hazard if, based on the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature. (Emphasis added). On page 827 the Commission states 

388 
that "a violation 'significantly and substantially' contributes to the cause 

and effect of a hazard if the violation could be ~ major cause of a danger to 

safety or health." (Emphasis added). The first test focuses on the hazard 

which the violation "contributes to"; the second on the causal relationship 

between the violation and a danger to safety or health. Each of the nine 

citations before the Commission in National Gypsum charged a safety violation. 

There is no indication in the Commission decision that it considered whether 

health hazards related to long term exposure would fit its definition (the 

dissenting opinion, however, did allude to the difficulty of applying the test 

to health hazards. Id, 834). 

B. The Medical Evidence 

It is clear that the exposure covered by the dust samples which resulted 

in the citation herein in itself would neither cause nor significantly contribute to chronic bronchitis (Finding of Fact No. 19) or coal workers pneumoconiosis. (Finding of Fact No. 24). It is also clear that longer exposure to 

the same dust levels can in a significant number of instances cause or significantly contribute to chronic bronchitis (6 to 12 months. See Finding of Fact 

No. 19) or to coal.workers pneumoconiosis (a working life. See Finding of 

Fact No. 23). There is no question that chronic bronchitis and coal workers' 

pneumoconiosis are illnesses "of a reasonably serious nature." There is no 

question that each unit of exposure time is important in contributing to the 

disease. I think it would be illogical and unrealistic to hold that a serious 

disease results from a long series of insignificant and unsubstantial exposures. 

Dr. Hodous testified that the disease results from "an aggressive accumulation 

of dust and every drop in the bucket hurts." How much the drop will hurt may 

4epend in part on the status of the bucket when the drop falls. If the bucket 

is full or nearly full, the drop may cause it to overflow. If a miner has 

worked 20 or 30 years in an underground coal mine, a 2 month exposure 3/ to 

excessive dust 4/ may be enough to cause the first signs of coal workers' 

pneumoconiosis,-2/ or to transform simple pneumoconiosis to a complicated form 

of the disease and possibly lead to progressive massive fibrosis. If the 

bucket is empty when the drop falls, in itself it won't mean much. If the 

miner exposed to excessive dust for a 2-month period is a new miner with 

healthy lungs, he probably will not be adversely affected, if his exposure 

stops. But if the exposure continues for 20 years (6 2-month periods each 

year), that miner too will be at risk to contract black lung. (Tr. 167). 

)_/ It must be assumed that the samples represent the average dust levels for 

the 2-month sampling period. So the dust exposure charged in the citation is 

not 3 days or 5 days but 2 months. 

!!./ 4.1 mg/m3 is more than twice the allowable maximum dust level. It is a 

substantial overexposure. 

2_/ The fact that simple coal workers' pneumoconiosis is in general asymptomatic 

does not mean that it is not a serious disease. As Dr. Hodous pointed out, 

lung cancer is asymptomatic in most people for about 5 years. 

389 
I conclude that every drop in the bucket, every two month sampling period 

where excessive dust is present, significantly and substantially contributes 

to a health hazard--the hazard of contracting chronic bronchitis or coal 

workers' pneumoconiosis. To the extent that this conclusion is inconsistent 

with the National Gypsum decision, I am persuaded the inconsistency results 

from the Connnission's failure to consider the impact of the decision on 

occupational health hazards due to long term exposure. 2_/ 

C. The Legislative History of the Coal Act and the Mine Act 

The 1969 Coal Act was prompted by a 1968 mine disaster in Farmington, 

West Virginia and by the "countless thousands (who) have suffered or died or 

presently suffer and die from the ravages of coa1 workers' pneumoconiosis - the 

dread miners disease caused by the inhalation of excessive amounts of coal 

dust." House Report No. 91-563, 9lst Cong. 1st Sess. (1969) reprinted in 

LEGISLATIVE HISTORY FEDERAL COAL MINE HEALTH AND SAFETY ACT, 558 (1970)-.- The 

comprehensive scheme for reducing dust exposure in coal mines in section 201 

through 205 of the Coal Act and in compensating miners who have become disabled because of pneumoconiosis and their survivors in sections 401 through 424 

of the Coal Act show beyond argument that Congress considered overexposure to 

coal mine dust to be a very serious national problem. It would be impossible 

to reconcile this fact with an interpretation of the statute finding such overexposure other than significant and substantial. The 1977 Mine Act repeated 

the emphasis on reducing respirable dust levels with minor changes. The 

declaration of purposes of the Act in Section 2 states in subsection (e) that 

"there is an urgent need to provide more effective means • • • for improving 

working conditions • • • in mines in order to prevent occupational diseases 

originating in such mines." One of the means provided in the 1977 Act is the 

pattern of violations provision in section 104(e). This provision can be 

made effective to prevent occupational pneumoconiosis only if violations of 

dust standards can be cited as significant and substantial. 

5. The violation was serious. The foregoing discussion demonstrates that 

the violation was serious. 

6. There is no evidence that the violation resulted from the negligence 

of the operator. 

7. The operator's history of prior violations is moderate. 

8. The payment of a penalty in this case will not affect the ability of 

the operator to continue in business. 

9. An appropriate penalty for the violation is $150. 

2_/ See Secretary v. U.S. Steel, FMSHRC (issued January 13, 1983) 

(Judge Kennedy) and the cases cited therein. 

390 
ORDER 

Based on the above findings of fact and conclusions of law, IT IS ORDERED 

that the notice of contest is DENIED. IT IS FURTHER ORDERED that the citation 

No. 864590 issued on February 16, 1982, and charging a significant and substantial violation of 30 C.F.R. § 70.100 is AFFIRMED. 

IT IS FURTHER ORDERED that the operator, Consolidation Coal Company shall 

within 30 days of the date of this order pay a penalty in the amount of $150 

for the violation found herein. 

)

t'.l,t L<.£6 . ~;f'/31--ock-v~. el_, 

James A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Robert M. Vukas, Esq., Consolidation Coal Company, 1800 Washington Road, 

Pittsburgh, PA 15241 

Janine C. Gismondi, Esq., and Matthew J. Rieder, Esq., Office of the Solicitor, 

U.S. Department of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street, N.W., 

Washington, DC 20005 

391 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FMC CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

UNITED MINE WORKERS OF AMERICA, 

Respondents 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FMC CORPORATION, 

Respondent 

Contest of Citation or Order 

Docket No. WEST 82-154-RM 

Citation No. 577554; 3-18-82 

Civil Penalty Proceeding 

Docket No. WEST 83-10-M(b) 

A. C. No. 48-00152-05504 

FMC Mine 

DECISION 

Appearances: James H. Barkley, Esq., Office of the Solicitor, U. S. 

Before: 

Department of Labor, Denver, Colorado, for the Secretary; 

John A. Snow, Esq., Salt Lake City, Utah, for FMC Corporation. 

Judge Lasher 

A hearing on the merits was held in Green River, Wyoming, on 

November 16 and November 17, 1982. After consideration of the evidence 

submitted by both parties and proposed findings and conclusions proffered 

during closing argument, a decision was entered on the record. This bench 

decision appears below as it appears in the official transcript aside from 

minor corrections. 

This matter is comprised of a contest proceeding filed by 

FMC Corporation (herein FMC) on April 20, 1982, under Section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. Section 801, e~ ~· (herein the Act), and a civil penalty proceeding ir.itiated by the Secretary of Labor on November 16, 1982 (by delivery to me at the hearing), by the filing 

of a proposal for penalty pursuant to Section 110 of the Act. 

392 
The foundational document involved in both proceedings, which 

were consolidated for hearing and decision by my order at the commencement of the hearing, is a Citation and Order of Withdrawal 

numbered 577554 which was issued hy MSHA Inspector William W. 

Potter on March 18, 1982. The allegedly violative condition described in the Citation and Order of Withdrawal is that: 

"The swing shift hoistman on 112 hoist has heen 

operating this hoist without a current physician's 

certificate. This hoistman was last examined and 

approved on February 2, 1981, this approval expired 

on February 2, 1982. This hoistman has continued 

to operate this hoist to this date. This hoistman 

had another examination on February 1'5, 1982, and 

was found not qualified by Dr. Elmer S. McKay. The 

company continued to let this hoistman perform his 

duties as a hoistman on 112 hoist." 

The Citation and Order of Withdrawal charges FMC with a violation of 30 CFR 57.19-57 which provides: 

"No person shall operate a hoist unless within 

the preceding twelve months he has had a medical 

examination by a qualified, licensed physician who 

shall certify his fitness to perform this duty. 

Such certification shall be available at the mine." 

The general issue involved in this matter is whether a violation of the above-quoted standard occurred as alleged by Inspector 

Potter. FMC contends that the subject safety standard applies only 

to hoists which are used to hoist persons as distinguished from 

hoists which are used to hoist ore. The resolution of this issue 

necessitates an interpretation of the standard above-quoted as well 

as the two-paragraph preamble to 30 CFR 57.19 which provides: l/ 

"The hoisting standards in this section apply to 

those hoists and appurtenances used for hoisting persons. However, where persons may be endangered by 

hoists and appurtenances used solely for handling ore, 

rock, and materials, the appropriate standards should 

be applied. 

Emergency hoisting facilities should conform to 

the extent possible to safety requirements for other 

hoists and should be adequate to remove the persons 

from the mine with a minimtnn of delay." 

During the hearing the parties provided stipulations with respect to the nature of the FMC Mine wherein the alleged violation 

occurred, jurisdictional agreements and stipulations with respect 

]:../ Section 57 .19 is labeled "Man Hoisting". 

393 
to four of the six statutory penalty assessment criteria. In 

addition to Inspector Potter, two other witnesses testified for 

the Secretary of Labor (herein the Secretary), Ralph Portillo, 

the hoistman who was the central figure in this litigation, and 

Albert Battisti, President of Local Union 13214, United Steel 

Workers Union. 

On March 18, 1982, Inspector Potter issued the subject 

Citation arid Order of Withdrawal based on records provided by 

FMC, particularly a hoistman decertification by Dr. Elmer S. 

McKay (Exhibit M-1) which stated: "This is to certify that 

Ralph Portillo has this date 2-5-82 been examined by me and is 

hereby physically qualified to not perform the duties of a 

hoistman as required by standard 57.19-57 of the Mine Safety 

and Health Act." An additional typed notation on the decertification indicated: "Because of this man's hearing loss he 

should not be a hoistman without a hearing aid.· (Please test 

after he gets a hearing aid and without noise exposure for 

sixteen (16) hours.)" 

Although the McKay decertification of hoistman Portillo was 

issued on or about February 5, 1982, FMC permitted Mr. Portillo 

to continue in the exercise of his hoistman duties at shaft #2 

at the FMC Mine located at Westavaco, Wyoming, until the Citation 

and Order of Withdrawal was issued on March 18, 1982. 

There areeight shafts at this mine, Numbers 1 and 6 are 

ventilation shafts, Numbers 5, 7, and 8 are shafts where "men 

and materials" are hoisted, and shafts Numbers 2 and 4 are used 

to hoist ore. Shaft Number 3 is in the process of being closed 

down and has no particular significance in this proceeding. Although shaft Number 4 is used to hoist ore, unlike shaft Number 

2 no hoistman is necessary since it is a more modern feat of construction. 

The Number 2 shaft is not used•for hoisting men and at all 

times material herein was used solely for hoisting ore except 

when inspections of the shaft were conducted or repairs on the 

shaft were conducted. The frequency of the hoist at shaft Number 2 being used to hoist men into and out of the shaft to make 

repairs or inspections is three or four times annually. 

Approximately twenty hoistmen are employed at the FMC Mine; 

it is not the policy of FMC to substitute one hoistman for another in the sense that it is not its policy to substitute "ore" 

hoistmen for "man" hoistmen (see testimony of Albert Battisti). 

FMC, however, maintains its right to exercise the option to substitute hoistmen even though in practice this is rarely done. 

The Number 2 shaft which is the only shaft requiring a 

hoistman where the hoist is used solely for handling ore was 

not at the times material herein part of FMC's emergency 

394 
evacuation plan, although in an emergency all hoists, including 

the one at shaft #2, presumably would be used for escape purposes. 

Mr. Portillo, who is sixty-one years old, was not advised 

by FMC management, including his immediate supervisor, Foreman 

Gary Hornsby, that he was not to hoist men (persons). Mr. 

Portillo during the period of February 5, 1982, through March 18, 

1982, in fact did not operate the hoist at shaft #2 or any other 

shaft to hoist persons. 

After receipt of the McKay decertification of Mr. Portillo, 

FMC management told Gary Hornsby, who was the immediate supervisor of all of FMC's twenty hoistmen on all three shifts that 

worked at the FMC Mine, that Mr. Portillo was to be used only on 

the #2 shaft and that he was not to hoist men. 

Following the issuance of the Citation and Withdrawal Order, 

Mr. Portillo was given non-hoistman duties for approximately one 

week. Thereafter, Mr. Portillo was sent by FMC for further hearing tests at the University of Utah and was fitted with a hearing aid by an audiologist in Salt Lake City after which.the FMC 

Medical Department certified Mr. Portillo as fit for the duties 

of a hoistman by issuance of a "hoistman certification" stating: 

"This is to certify that Ralph Portillo has this date 3-26-82 

been examined by me and is hereby physically qualified to perform the duties of a hoistman as required by standard 57.19-57 

of the Mine Safety and Health Act." A handwritten note at the 

bottom of the certification stated in addition: "Must wear his 

hearing aids when working or operating hoist." (Exhibit C-3). 

At the time Mr. Portillo was decertified--on or about 

February 5, 1982--FMC had been using new hearing testing equipment as part of the annual examination given the hoistmen. 

Nine of the twenty hoistrnen were detected to have hearing problems of one kind or another. Because this was unusual, FMC 

questioned the results of the tests and conducted an investigation into various aspects of the situation. It also reevaluated 

the range of hearing that was required for the satisfactory performance of hoistman duties and sent at least six of the nine 

hoistmen at different times for additional hearing tests in the 

manner that Mr. Portillo was sent for additional testing. As a 

result of its investigation the equipment and testing procedures 

were found to be satisfactory and FMC's management concluded 

that the situation resulted because in past years the hearing 

deficiencies discovered were not of sufficient severity to be 

disqualifying. 

The last time Mr. Portillo operated a hoist to hoist men 

was in January of 1982 when he was assigned to operate the 

hoist at the #7 shaft when the hoistman there was not available 

395 
for duty. Mr. Portillo operated the #7 shaft hoist for approximately two days. The #7 shaft hoist can be operated both manually and on automatic, whereas the #2 shaft hoist is an automatic 

hoist. Mr. Portillo was not using a hearing aid in January of 

1982. 

The #2 shaft hoist, which also can be operated manually 

when men are being hoisted, is the hoist at which Mr. Portillo 

had been assigned for several years prior to 1982. Although 

there is a "bonnet" over the ore skip on the #2 shaft which is 

used when a hoist is used to carry men when inspections are 

conducted and repairs are made, the #2 hoist is not designed 

to carry men as are other hoists. So-called man hoists are 

required to have a canopy and to be enclosed. 

The #2 shaft hoist is not an "emergency hoisting facility" 

as that term is used in the second paragraph of the preamble to 

30 CFR 57.19-57. 

There was no evidence of record establishing special or 

unique conditions or circumstances in connection with or peculiar 

to the #2 shaft and/or the hoist at the #2 shaft which would endanger persons. 

DISCUSSION 

FMC contends that 30 CFR 57.19 applies only to man hoists. 

I find this contention meritorious. The heading of Section 57.19 

is entitled "Man Hoisting". The numerous safety standards which 

follow the preamble to Section 57.19, i.e. 57-19-1 through 57.19-

135, reflect that the drafters of these standards were fully 

aware of the distinction between man hoists and hoists which are 

used for handling ore and other materials. It is clear that by 

using the specific limitation of "man" -hoisting in establishing 

the category of subjects to be covered by these various safety 

standards that the drafters intended to limit the coverage of 

these standards to hoists which handled men and not other hoists. 

Thus the general category "hoisting" would have been used if all 

hoists were intended to be covered. This view is further reinforced by a consideration of the general subjects covered by 

part 57 of 30 CFR where the specific category "57.19, Han Hoisting" appears as an exclusive category, and not part of any other 

subject matter related to hoisting in general. 

My colleague, .Tudge Charles C. Moore, Jr., in a grouping 

of combined contest proceedings and penalty proceedings, (Docket 

Nos. lIBST 82-72-RM through 79-RM; and WEST 82-134-M, 135-M, 

172-M, and 183-M) dealing with the same mine, also found the 

necessity to recognize the difficulty of interpretation posed 

by the preamble to Section 57.19. Unless a reasonable construction of the coverage of these hoisting standards is reached then 

indeed the argument made by FMC in this matter that enforcement 

396 
of the standards to ore hoisting would be a denial of due 

process may well have merit. A statute that either forbids 

or requires the doing of an act in terms so vague that men of 

common intelligence must necessarily guess at its meaning and 

differ as to its application violates the first essential of 

due process of the law. Connally v. General Construction Co., 

269 U.S. 385, 391 (1925). 

After considerable deliberation I conclude that the 

saving grace of the preamble to Section 57.19 is its manifest 

purpose in specifying the coverage, or at least in attempting 

to specify the coverage of the subsequent standards which 

follow it relating to man hoisting. In concluding that the 

57.19 standards apply only to man hoists and not to ore hoists, 

it must also be noted that there are two exceptions to this 

limitation: One, for emergency hoisting facilities, and two, 

where persons may be endangered by ore hoists. 

The Secretary contends that of its three theories of 

liability in this case the preamble supports two of them. 

First, that the operation of the hoist at the #2 shaft by an 

uncertified hoistman is a violation because--within the meaning of the first paragraph of the preamble--persons may be 

endangered. The factual foundation ·of this theory is that 

those subjected to the hazard are men engaging in inspections 

and making repairs. I find, however, that there is no evidence in the record of any special or separate condition, 

practice or circumstance which would trigger the operation of 

this (endangering persons) exception to the general limitation 

of the hoisting requirements to man hoists. Thus for the medical certification requirement of Section 57.19-57 to become 

operable it first must be shown that there's some condition or 

practice or other factor involved in the operation of an ore 

hoist, such as the shaft #2 hoist, which would create a hazard 

calling for bringing into operation an appropriate standard 

among those specific standards which were intended to apply to 

man hoists only. Accordingly, I conclude that this theory, 

based upon the first exception of the preamble to the limitation of the standards to man hoists, is not applicable. 

The Secretary's second theory that a violation occurred 

is based upon the second paragraph of the preamble and rests 

upon the testimony primarily of Albert Battisti, the President 

of Local Union 13214, to the effect that should an emergency 

situation occur every shaft might have to be used for escape 

purposes. However, the record is clear that shaft #2 is not 

part of the mine operator's emergency evacuation plan and has 

received no designation or other particular recognition as an 

emergency hoist. I conclude that it is not an "emergency 

hoisting facility" which must conform to the extent possible 

to the safety requirements for man hoists under Section 57.19 

and its sub-paragraphs. Even were one to conclude that shaft 

39:; 
#2 is an emergency hoisting facility the language of the pertinent paragraph of the preamble is sufficiently vague to leave it 

unascertainable whether or not Section 57.19-57 is one of the 

standards which should be applied to it. The phrase "to the 

extent possible" carries with it a tenor of a guideline rather 

than a mandatory standard. ]:_/ 

The Secretary's third theory of violation is that the #2 

shaft hoistman, Mr. Portillo, was available to be used elsewhere 

to operate, preslll'!l.ably, man hoists. I find no merit to this contention in view of the fact, as previously noted, the overwhelming evidence was to the effect that Mr. Portillo had not operated 

a man hoist after he was decertified and that his foreman had 

been directed not to assign him to operate man hoists. 

The third theory of violation presented by the Secretary is 

one in which the possibility must come to fruition before a violation can be said to have occurred. That is, if Mr. Portillo had 

been observed operating a man hoist during the period of time from 

February 5, 1982, through March 25, 1982, then the infraction of 

the applicable standard could be said to have occurred. The 

standard is couched in language of prohibition, i.e., "No person 

shall operate a hoist unless •••• he has had a medical examination, 

etc." Thus, the Secretary's argmnent that Mr. Portillo was available to be used elsewhere is nothing more than a statement that a 

violation might possibly occur rather than one that a violation 

did occur. 

Having found that the 112 shaft hoist was used "solely for 

handling ore" within the meaning of that phrase and in the context 

of the preamble to Section 57.19, and having further found that 

the #2 shaft hoist was not an emergency hoisting facility and that 

there was no evidentiary basis for bringing into operation the 

second sentence of the first paragraph of the preamble, i.e., 

evidence of endangerment of persons by the #2 shaft hoist and 

appurtenances, I conclude the safety standard charged to have 

been violated, 57.19-57, was not operable to the shaft #2 hoistman, Ralph Portillo, on March 18, 1982, and all pertinent times 

prior thereto. FMC's Notice of Contest is therefore found 

meritorious. 

2/ The Secretary's proposed finding of fact to the effect that had there 

been an emergency or an absence of one of the hoistmen at shaft #7 Mr. 

Portillo would have been assigned to operate a man hoist is rejected as 

entirely speculative. The record is clear that at no time after he had 

been decertified on or about February 5, 1982, was Mr. Portillo assigned 

to operate a man hoist, and the record is also clear that Foreman Hornsby, 

who was the only management representative empowered to assign work to 

Mr. Portillo, was instructed not to assign Mr. Portillo to hoist men. 

398 
ORDER 

In Docket WEST 82-154-RM FMC Corporation's Notice of Contest 

having been found meritorious, Citation and Order of Withdrawal 

No. 577554 dated March 18, 1982, is vacated. 

Docket No. WEST 83-10-M(b), 3/ in which the Secretary of 

Labor seeks a penalty for the alleged violation charged in Citation and Withdrawal Order numbered 577554, is dismissed. 

All proposed findings of fact and conclusions of law not 

expressly incorporated in this decision are rejected. 

~((~A~., Judge 

Distribution: 

James H. Barkley, Esq., Office of the Solicitor, U. S. Department 

of Labor, 1961 Stout St., Rm. 1585, Denver, CO 80294 (Certified 

Mail) 

John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, SO 

South Main St., Suite 1600, Salt Lake City, UT 84144 (Certified 

Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900 15th St., 

NW, Washington, DC 20005 (Certified Mail) 

3/ Special docketing has occurred in this matter and four separate alleged violations which are contained in a related docket, WEST 83-10-M(a), 

are not dealt with in this proceeding or in this decision. 

399 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 MAR 7 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) CIVIL PENALTY PROCEEDING 

Petitioner, ) 

) 

v. ) 

) 

OATVILLE SAND & GRAVEL COMPANY, ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~-

Appearances: 

Eliehue C. Brunson, Esq. 

DOCKET NO. DENV 79-366-PM 

Office of the Regional Solicitor, Tedrick A. Housh, Jr. 

United States Department of Labor 

Kansas City, Missouri 64106 

For the Petitioner 

Jeff Sturn, Esq. 

Lambdin and Kluge 

Wichita, Kansas 67201 

For the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, (MSHA), charges respondent with violating safety 

regulations promulgated under the Federal Mine Safety and Health Act, 

30 U.S.C. 801 ~seq. 

After notice to the parties a hearing was held in Wichita, Kansas on 

September 21, 1982. 

The Secretary filed a post trial brief. 

ISSUES 

1983 

The issues are whether respondent violated the regulations, and, if 

so, what penalties are appropriate. An additional issue is whether prior 

cases involving the same parties relieves respondent from liability in this 

case. 

400 
PETITIONER'S EVIDENCE 

David Lilly, an MSHA inspector, issued eight citations against 

respondent on September 7, 1978. These were as follows: 

Citation No. 

181535 

181536 

181537 

181538 

181542 

181551 

181552 

181574 

C.F.R. Title 30 

Standard 

Alleged Violated 

56 .14-8A 

56.12-25 

56.14-1 

56.18-12 

56.12-20 

56.9-32 

109A 

56.9-32 

Proposed 

Penalty · 

$38 

38 

38 

34 

38 

34 

16 

38 

(Exhibit P-1-8) 

Respondent dredges, screens, and sells its product (Tr. 11). There 

were two mechanics, as well as the foreman Lorenzo Hubbard, on the property 

(Tr. 27, 38). At the time of the inspection the dredge was not operating 

but they were removing sand from the stockpile (Tr. 36). Eisenring, the 

owner, stated he .was in the process of selling the business (Tr. 36, 52). 

Citation 181535 l/: A peripheral guard was missing on the side of 

a bench grinder in the shop area (Tr. 13, Pl). The grinder, while not in 

operation, had been used since there was material on the floor (Tr. 13). 

A guard protects a person from being struck with pieces of an exploding 

flywheel (Tr. 13, 14). This could cause serious injuries (Tr. 14). 

Citation 181536 :!:./: The three way plug was missing on the cord 

of an electric impact wrench. A two way plug eliminates the ground and 

thereby creates a shock hazard (Tr. 15, P-2). The wrench was in the same 

area as the grinder (Tr. 15). Eisenring said the wrench didn't belong to 

him or to his company (Tr. 16). 

1/ Each footnote cites the standard in Title 30, Code of Federal 

Regulations, allegedly violated by respondent. 

This citation alleges a violation of § 56.14-8 which provides: 

56.14-8 Mandatory. Stationary grinding machines other 

than special bit grinders shall be equipped with: 

(a) Peripheral hoods (less than 90° throat openings) 

capable of withstanding the force of a bursting wheel. 

2/ 56.12-25 Mandatory. All metal enclosing or encasing electrical 

circuits shall be grounded or provided with equivalent protection. 

This requirement does not apply to battery-operated equipment. 

401 
Citation 

squirrel type 

not guarded. 

1 7 , 18 , P-3 ) • 

181537 ]./: In the area of the grinder and 

fan was connected to a motor by a V belt. 

This condition could probably result in an 

wrench a 

The V belt was 

injury (Tr. 16, 

Citation 181538 4/: There were no telephone numbers posted 

anywhere on the property. There was a telephone in the scale house 

(Tr. 18-20, P-4). The office was accessible to all employees (Tr. 19-20). 

Citation 181542 2/: A person working the electrical control 

switch would stand on wet ground. There was no insulation mat, wooden 

platform, or anything to stand on while using the main control switch box. 

The switch was in daily use. The operator should have been aware of this 

condition (Tr. 20-22, P-5). Possible burns in the hands and feet are 

hazards here (Tr. 21). 

Citation 181551 2./: An old crane boom, extended partially across 

the roadway, was elevated at a 45 degree angle. The cables were rusty and 

weeds had grown in the area (Tr. 22, 23, P-6). Trucks and people pass this 

area. 

Citation 181552 !!: The main office was not posted designating 

it as the office (Tr. 24, P-7). 

3/ 56.14-1 Mandatory. Gears; sprockets~ chains; drive, head, tail, and 

takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; 

and similar exposed moving machine parts which may be contacted by 

persons, and which may cause injury to persons, shall be guarded. 

4/ 55.18-12 Mandatory. Emergency telephone numbers shall be posted at 

appropriate telephones. 

5/ 56.12-20 Mandatory. Dry wooden platforms, insulating mats, or 

other electrically nonconductive material shall be kept in place 

at all switchboards and power-control switches where shock hazards 

exist. However, metal plates on which a person normally would stand 

and which are kept at the same potential as the grounded, metal, 

non-current-carrying parts of the power switches to be operated may 

be used. 

6/ 56.9-32 Mandatory. Dippers, buckets, scraper blades, and similar 

movable parts shall be secured or lowered to the ground when not in 

use. 

7/ Section 109(a) of the Act provides, in part, as follows: 

Sec. 109(a). At each coal or other mine there shall be 

maintained an office with a conspicuous sign designating 

it as the office of such mine. 

402 
Citation 181574 8/. The bed of a heavy-duty dump truck was 

raised to its maximum position. There were no stops to prevent the bed 

from falling if a hydraulic hose broke (Tr. 26, P8). When they observed 

the inspector approaching, two mechanics inserted· a tie to prevent the bed 

from falling (Tr. 26). 

RESPONDENT'S EVIDENCE 

Victor B. Eisenring, the owner of Vic's Sand and Gravel, sold Oatville 

Sand and Gravel under a sale contract dated October 2, 1978 (Tr. 56, 57). 

At the time of the inspection in September 1978 they were in a cleanup mode 

(Tr. 57, 58). 

Eisenring previously contested the same citations as were involved 

in the instant case. A hearing was held before Connnission Judge George 

Koutras and these citations were settled for $425 (Tr. 58-69, Rl). 

DISCUSSION 

At the hearing this Judge took official notice of the Connnission 

decision in CENT 79-40-M and CENT 79-41-M (Tr. 67, 68). The decision, 

by Judge George Koutras, is published at 2 FMSHRC 1522-1528. That case 

involves as respondents Oatville Sand and Gravel Dredge and Vic's Sand 

and Gravel Pit. Oatville Sand and Gravel is the respondent in the instant 

case. 

A review of the prior decision indicates that the owner of these 

companies is mistaken when he asserts that the citations in this case were 

heard by Judge Koutras. The citations in their numbering as well as in 

their content are different. 

In CENT 79-40-M: fourteen citations are in no way related to 

the allegations in this case. One citation, alleging a violation of 

Section 109(a) of the Act, parallels a citation here. 

In CENT 79-41-M: four citations involve a lack of backup alarms. 

No such allegation is involved in this case. 

It is true that all of the citations were issued about the same time. 

But it is equally clear that the doctrine of res judicata does not apply 

since the subject matter is different. 

Respondent did not file a post trial brief but his arguments are of 

record (Tr. 81-83). 

His initial position asserts that MSHA was dilatory in bringing its 

charges, that Eisenring was at a hearing in 1980, that the dates of 

violation are the same, and that inspector Lilly was present at the 

previous hearing. 

8/ The citation alleges a violation of 56.9-32, supra, n. 6. 

40~ 
I consider these to be a due process argument. Accordingly, it is in 

order to review the activities of this case which reflect the following: 

1. September 7, 1978: citations issued and served on foreman 

Hubbard and Victor Eisenring. 

2. February 28, 1979: petition for assessment of Civil Penalty 

filed with ch~ Connnission. Certificate of Service to Oatville 

Sand & Gravel. 

3. March 22, 1979: Amended Certificate of Service filed. Copy 

served on Vic Eisenring. 

4. October 3, 1979: Motion for order to show cause filed by 

Solicitor. 

5. October 12, 1979: Order to show cause directed to respondent by 

Connnission Chief Judge. 

6. October 29, 1979: Response to order to show cause filed. 

7. February 22, 1980: Notice of Jurisdiction entered by Judge 

Boltz. 

8. July 30, 1981: Notice of Hearing setting case for October 9, 

1981. 

9. August 18, 1981: Order for Prehearing statement issued and 

amended Notice of hearing. 

10. September 22, 1981: Case reassigned by Judge Boltz to 

Judge Morris. 

11. September 24, 1981: Notice of Jurisdiction and amended notice 

of hearing setting case for October 9, 1981. 

12. September 30, 1981: Letter from respondent requesting 

postponement of hearing. 

Order entered granting postponement. 

13. October 5, 1981: Order cancelling hearing of October 27, 1981. 

14. March 8, 1982: Notice of hearing setting case for June 17, 1982. 

15. March 18, 1982: Hearing rescheduled. 

16. May 21, 1982: Hearing set for September 21, 1982. 

17. September 21, 1982: Hearing held, Wichita, Kansas. 

404 
Respondent has known since December 21, 1978 that the eight citations 

in this case were pending against him. Constitutional due process does not 

require any specific form or content for pleadings as long as the parties 

are given adequate notice. S.S. Kresge Company v. NLRB, 416 F.2d 1225, 

(6th Cir. 1969), NLRB v. United Aircraft Corporation, 490 F.2d 1105 (2nd 

Cir. 1973). 

Due process has been afforded in this case. Respondent was given 

written copies of all eight citations at the time of the inspection and 

was also served with the Secretary's petition which stated each and every 

allegation being made against it. If respondent wanted a hearing of 

these citations before Judge Koutras he could have made a request for a 

consolidation pursuant to Cormnission Rule 29 C.F.R. 2700.12. 

Respondent, in a rhetorical question in closing argument asks whether 

there were negotiations in Judge Koutras' hearing to dismiss all of the 

citations. No evidence supports this proposition and it is rejected. 

Respondent also asserts the Secretary failed to prove that he was 

operating the plant. It is contended they were in the process of shutting 

down the operation at the time of the inspection. 

The evidence of both parties establishes the plant was operated by 

Oatville Sand and Gravel. The inspection took place in September and the 

sale was not until October 2. Even if the plant was in a shutting down 

mode it was nevertheless in operation. 

No issue of fact is raised concerning the violations themselves. 

Accordingly, all of the citations herein should be affirmed. 

CIVIL PENALTIES 

Section llO(i) of the Act, 30 U.S.C. 820(i), contains the statutory 

criteria for assessing civil penalties. 

Considering the statutory mandate and in view of the fact that 

respondent is a small operator, that he abated all of these citations, 

and that he is no longer in the mining business causes me to conclude that 

the proposed penalties should be reduced as provided in the order in this 

case. 

The Solicitor filed a detailed brief which has been most helpful 

in analyzing the record, defining the issues, and in deciding the case. 

I have reviewed and considered that brief as well as respondent's oral 

argument entered at the close of the hearing. However, to the extent 

that the positions of the parties are inconsistent with this decision, 

they are rejected. 

405 
Based on the foregoing findings of fact and conclusions of law I enter 

the following: 

ORDER 

1. The following citations are affirmed and a civil penalty is 

assessed as provided after each such citation. 

Citation No. Penalty Assessed 

181535 $20 

181536 20 

181537 20 

181538 15 

181542 20 

181551 15 

181552 10 

181574 10 

2. Respondent is ordered to pay said sum of $130 within 40 days after 

the date of this order. 

Law Judge 

Distribution: 

Eliehue C. Brunson, Esq. 

Office of the Solicitor, United States Department of Labor 

911 Walnut Street, Room 2106, Kansas City, Missouri 64106 

Jeff Sturn, Esq., Lambdin and Kluge 

830 North Main, P.O. Box 954 

Wichita, Kansas 67201 

408 
FEDERAL M.INE SAFETY AND HEALTH REVIEW"COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

on behalf of 

MAR 7 

WILLIAM E. FITZWATER, III 

Applicant 

v. 

METTIKI COAL CORPORATION, 

Respondent 

1883 

Complaint of Discrimination 

and Application for Temporary 

Reinstatement 

Docket No: YORK 82-23-D 

MORG CD 82-23 

Mettiki General Mine 

CORRECTION NOTICE 

The case cited on page 6, line 12, of the decision issued 

herein on February 17, 1983, is corrected to substitute the words 

"Michael Dunmire" for the word "Michel." 

Distribution: By Certified Mail 

~ C· 9RtR9lr; f 

Charles C. Moore, Jr., 

Administrative Law Judge 

David E. Street, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market Street, Philadelphia, PA 19104 

W.H. Thompson, Jr. President, Mettiki Coal Corporation, 1800 So. 

Baltimore Street, Tulsa, OK 74119 

David J. Kutchman, Safety Director, Mettiki Coal Corporation, 

Route 3, Box 124-A, Deer Park, MD 21550 

Mr. William E. Fitzwater, III, Star Rt. l/Box 110-A, Oakland, 

Md. 21550 

Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli, 

1110 Vermont Avenue, NW., Washington, D.C. 20005 

40:1 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JAMES ELDRIDGE, . 

Complainant 

v. 

SUNFIRE COAL COMPANY, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

Complaint of Discrimination 

Docket No. KENT 82-41-D 

DECISION 

Appearances: Tony Oppegard and Stephen Sanders, Esquires, Appalachian 

Research and Defense Fund of Kentucky, Hazard, Kentucky, 

for the complainant; J. L. Roark, Esquire, Hazard, Kentucky, 

for the respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

This proceeding involves a complaint of discrimination filed pursuant 

to Section 105(c)(3) of the Federal Mine Safety & Health Act of 1977, 

after complainant received notice from the Mine Safety & Health Administration that MSHA would not take action on complainant's behalf under 

Section 105(c)(2) of the Act. Complainant asserts that he was discharged 

for engaging in activities protected under _Section lOS(c)(l) of the Act, 

namely, his refusal to continue working beyond the completion of his 

regular shift on August 6, 1981, due to mental and physical exhaustion. 

Complainant challenges the respondent's decision of August 11, 1981, 

to uphold and finalize his August 6 discharge for misconduct for disobeying direct orders from his immediate supervisors to stay and work 

beyond his normal work shift. A hearing was convened in Hazard, Kentucky, 

and the parties appeared and participated fully therein. The parties 

filed posthearing briefs and'proposed findings and conclusions, and the 

arguments presented therein have been fully considered by me in the course 

of this decision. 

Issues 

The critical issued presented in this case is whether the complainant's 

refusal to work beyond his normal work shift on the day of his discharge 

was protected activity under the Act, and if so, whether his discharge 

was justified. Additional issues raised by the parties are identified 

and discussed in the course of this decision. 

408 
Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301 

et~· 

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

Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3). 

3. Commission Rules, 29 CFR 2700.1, et~ 

Stipulations 

The parties stipulated that Mr. Eldridge had been employed with 

the respondent from May 2, 1980, until his discharge on August 6, 1981. 

His hourly wage rate was $11.30, and since his discharge on August 6, 

employees in similar job classifications received a pay raise of fifty 

cents per hour, effective March 21, 1982, thereby increasing the hourly 

wage to $11.80 (Tr. 4). 

The parties also stipulated that for the purposes of the hearing and 

the record made in this case, the terms "pillar mining", "pillar retracting", 

"retreat mining", "pillar pulling", and "pillar recovery" are synonymous 

terms and may be used interchangeably (Tr. 4-5). 

Testimony and evidence adduced by the complainant 

James Eldridge testified that he is 26 years of age, married, has 

one child, and that he has been a coal miner for eight years. He confirmed 

that he was not presently employed, but had been employed with the respondent 

from May 2, 1980, until August 6, 1981, when he was fired from his job 

as a coal drill operator. He explained that his job as a driller entailed 

drilling at the coal face in preparation for coal being shot in a 

conventional section, and that he used a Gallis mobile coal drill. He 

also testified that he performed other duties besides that of a driller, 

and these duties included the work of a "shgt firer", where he would 

load and shoot coal with dynamite and electric detonators. He confirmed 

that at the time of his discharge he was working the second shift at 

the No. 3 m~ne from 2:00 p.m. to 10:00 p.m., and that he was working the 

B-section at a location some 25 to 30 breaks from the mine drift mouth. 

He and his crew were scheduled for pillar pulling work extracting coal 

pillars. He explained this mining method by indicating that when they 

were advancing into the mine, blocks of coal were left for roof support, 

and when the pillars are pulled, they withdraw and take the coal blocks 

out (Tr. 5-12). 

Mr. Eldridge stated that prior to the day of his discharge he had 

been engaged in pillar extraction work on the fourth row of pillars, and 

he believed that such retreat pillar work was more dangerous than the 

advance work, and this is because one must constantly be on the alert 

for falling roof. He indicated that on Thursday, August 6, 1981, he worked 

40!J 
a full eight-hour shift performing such work as running the coal drill, 

shooting coal as a shot firer, helping to set timbers, helping the 

cutting machine operator with cable, and helping to hang ventilation 

curtains. He believed that retreat mining work was harder on him mentally 

and physically than advance mining because he must constantly be on the 

look out for adverse roof conditions such as timbers and roof bolts 

taking weight. He testified that he spent all of his eight hour shift 

pulling pillars, and that at the end of the shift he was too physically 

and mentally tired and exhausted to keep going. He did not believe he 

was alert enough to keep working on the night in question (Tr. 13-16). 

Mr. Eldridge stated that approximately 35 minutes before the end 

of his normal shift he spoke with section foreman Eli Smith underground, 

and Mr. Smith asked him to stay and continue pulling the row of pillars 

that the crew was working on until they were pulled. Mr. Eldridge stated 

that he advised Mr. Smith that he was "too tired" to stay on the job 

and that Mr. Smith said nothing to him at that time. After this conversation, Mr. Eldridge began securing his equipment, and shortly before leaving 

the section he had a second conversation with Mr. Smith and at that 

time Mr. Smith advised him that the outside mine supertendent advised 

him (Smith) to inform the crew that they were to stay on the job finishing 

the row of pillars and that if anyone came out of the mine, they would 

no longer have a job (Tr. 21). Mr. Eldridge again informed Mr. Smith 

that he was too tired to stay on the job, and Mr. Smith did not at that 

time indicate to him (Eldridge) how long he was expected to stay and 

work, but simply told him that he was to stay until the pillar pulling 

job was completed. At that point in time, Mr. Eldridge left the mine (Tr. 22). 

Mr. Eldridge stated that after he left the mine, he went to the lamphouse where he encountered Mr. Miller. At that time Mr. Miller had the 

paychecks and told the crew and Mr. Eldridge that he wanted them to go 

back into the mine and finish the pillar row, and if they didn't they 

would no longer have a job. Mr. Eldridge stated that he told Mr. Miller 

that he was too tired to stay on the job, and Mr. Miller responded that 

if he did not stay he was not to return to work on Monday. At that point, 

Mr. Eldridge went home (Tr. 23). 

Mr. Eldridge stated that August 6th was a Thursday, that no work 

was scheduled for Friday, August 7th, since it was a "short week", and 

that the following Monday he spoke with mine officials Raymond Cochran 

and Bobby Morris for the purpose of setting up a meeting the next day 

to discuss the matter further. A meeting was held at the mine office, 

and present were Johnnie Jones, Eddie Hurley, and Joe Engle, three other 

miners who were fired at the same time for refusing to stay and work, 

and representatives of company management (Tr. 26). When Mr. Eldridge 

asked Mr. Morris whether he was fired, Mr. Morris answered "yes", and 

when asked "why", Mr. Morris replied "for not staying there and finishing 

that row of pillars out" (Tr. 27). When Mr. Eldridge told Mr. Morris 

that he was too mentally and physically exhausted to keep on working that 

night, Mr. Morris still upheld the discharge (Tr. 27). 

410 
Mr. Eldridge testified that he was told by Mr. Cochran that those 

members of the-crew who did stay to work to finish pulling the pillars 

stayed until approximately 3:00 a.m. (Tr. 29). Complainant's exhibit 2, 

which a copy of a time card, shows that the remaining crew worked a total 

of 14 hours on Thursday, but counsel indicated that in fact they only 

worked 5 hours overtime, but were paid for six hours as a gesture of good 

will by the company (Tr. 32). Mr. Eldridge testified that at the time 

he discussed staying on the job with Mr. Smith, he (Eldridge) believed 

that it would take an extra shift or a shift and half to complete the job, 

or an extra 8 to 12 hours. He explained that 8 to ten cuts of coal had 

been removed during his normal work shift, and that there were 12 to 

15 cuts left to be removed at the end of his normal work shift (Tr. 33). 

Mr. Eldridge went on to explain the mining cycle and procedures, and why 

he believed there were 12 to 15 cuts left, and why it would take a shift 

and half to finish the work (Tr. 34-36). 

Mr. Eldridge explained the work that he had performed on his normal 

shift while he was shooting and drilling, and he indicated that he considered that he was actually doing "two jobs" (Tr. 41-45). He also 

indicated that he was setting timbers, and he explained that task as 

well as the work performed by him in pillar extraction (Tr. 45-52). 

He also explained the process of replacing line ventilation curtains in 

the event they were dislodged (Tr. 52). He also expressed an opinion 

that the roof top in the section "was bad", and that rock falls had 

occurred on the section in the past. Because of these "frequent" falls, 

resin bolts were being used to support the roof (Tr. 55). He also indicated 

that he has had "to run" from the section in the past because of bad top 

when he heard the roof making "noises like thunder" (Tr. 56). 

Mr. Eldridge confirmed that the mine is a nonunion mine and that 

he has no contractual obligation to work overtime (Tr. 56). He indicated 

that he would have come to work the next day, on Friday, to finish pulling 

the pillars, if the company had asked him. Since his discharge, he has 

held one job for approximately six weeks with the Pygmy Coal Company 

located at Little Leatherwood in Perry Coun~y. Pygmy Coal is know as 

P.M. Coal Company, and he began working there in January 1982, as a mine 

foreman earning ~400 a week, until he was laid off because of the lack 

of coal sales. Since that time, he has actively sought employment, and 

he listed the names of the coal companies where he has sought employment. 

He attributed his failure to find work to "the way the coal business is 

right now. They can't sell coal" (Tr. 60-61). He also indicated that 

he has sought employment outside of the coal industry two or three times 

a week, but has been unable to find a job, and he also indicated that 

his family has incurred some medical and dental expenses during his period 

of unemployment (Tr. 62). 

On cross-examination, Mr. Eldridge testified that the drilling machine 

which he operated on August 6, 1981, is electrically operated and that 

he sits on the machine in order to operate it by means of pushing and 

pulling levers and controls. He confirmed that he had previously worked 

411 
frequent overtime with the company, and that on several occasions prior 

to August 6, he has put in as much as close to 70 to 75 hours per week, 

including overtime (Tr. 65). He acknowledged that while on the job, 

every employee helps other employees, and that it is "pretty much a team 

effort" (Tr. 66). He confirmed that as of the time of the instant 

hearing, he was receiving umemployment benefits, but did not know from 

whom (Tr. 67). 

Mr. Eldridge stated that prior to his discharge on August 6, he 

did not have a copy of the mine pillar plan (Tr. 67). When confronted 

with a transcript of him unemployment compensation hearing, he acknowledged 

that when asked the same question at that hearing he answered that he 

was aware of the pillar pulling plan, and that he had a sketch of it 

(Tr. 67). He also conceded that the intent in pulling pillars is to 

remove all of the coal so that the roof will fall and relieve the tension 

so as to preclude a danger in the roof falling further back when the 

pillars are removed in the future (Tr. 70). He also acknowledged that 

at the time he was asked to stay and finish pulling the pillars that 

the company "wanted to get the coal out" (Tr. 71). When asked to explain 

his answer, he replied as follows (Tr. 71): 

JUDGE KOUTRAS: Why was that? Why do you think 

they wanted to get the coal out that specific 

night, on Thursday, August 6th. 

THE WITNESS: To keep from losing the coal. 

JUDGE KOUTRAS: How would they lose the coal? 

THE WITNESS: If it fell. 

JUDGE KOUTRAS: When would the roof fall --

the next day, and the next day, and the next day? 

THE WITNESS: Yess -- whenever. 

Mr. Eldridge explained the procedures for drilling holes with a drill, 

and he confirmed that after he was informed that he could not have a 

job if he did not stay to finish pulling pillars he took his equipment 

away from the work area and shut it down (Tr. 73). He also confirmed 

t~1at he had "heard rumors" immediately before he was fireq or was under 

the impression, or had heard rumors, that on prior occasions when employees 

refused to work overtime or were told they would not have a job if they 

refused to work overtime, that when they came back to work the next 

succeeding day, they were permitted to return to work (Tr. 73). He 

confirmed that he did in fact attempt to return to work on the next 

succeeding work day by showing up at a regularly scheduled hour, but was 

again told that he was fired (Tr. 74). 

Mr. Eldridge identified a copy of a company "Employee 

and he stated that he had a copy before he was discharged. 

certain provisions from the "rules of conduct" part of the 

412 

Handbook", 

He read 

handbook 
for the record, including the "insubordination" provisions for "refusal 

to perform assigned work" and "intentionally restricting output". He 

also read the provisions concerning company policy calling for immediate 

discharge of the cited rules of conduct, as well as the policy concerning 

the payment of overtime (Tr. 76). 

In response to further questions, Mr. Eldridge indicated that he 

went back to the mine the Monday after his discharge because he "was 

taking a shot at getting my job back" (Tr. 77). He conceded that he 

had in the past stayed and worked a full additional eight-hour shift on 

overtime when asked to do so by mine management, usually during advance 

mining, and that he has also volunterreed to work overtime without 

being asked. He could not say why he was not scheduled to work on the 

Friday following his discharge, and he reiterated the work he performed 

pulling pillars during the shift prior. to his discharge (Tr. 79-82). 

He also indicated that he and the section foreman had no discussion over 

how long it would take to complete all of the pillars, although he 

believed it would take a shift and a half. He confirmed that three other 

members of his crew were also fired for not staying over to finish the 

row of pillars, but he denied that the decision was not a "collective" 

one and that he made his own decision not to work, and he did so because 

he was too tired (Tr. 84). He denied having any discussions with the 

other three men on the crew who opted not to work, but he knows that 

one man, Johnnie Jones, said that he too was too tired (Tr. 84). 

Mr. Eldridge testified further that he had never before refused 

to work overtime when requested because he was tired or mentally or 

physically exhausted, and that he had performed similar retreat pillar 

pulling work in the past on overtime when he was asked, but he then indicated 

that he had not previously worked more than an hour over~ime after he 

had completed retreat mining (Tr. 85-86). 

Mr. Eldridge stated that he believed he was fired for refusing 

to stay and finish pulling pillars, that he had never previously had 

any disciplinary problems at the mine, and he has no reason to believe 

that he was fired for reasons other than refusing to work overtime 

(Tr. 89-90). He confirmed that he did not complain about being tired 

during his normal work shift on Thursday, August 6th during 1:45 p.m. 

to 9:45 p.m., and that he performed his normal duties with no problems 

(Tr. 91). When asked whether it was true that during the 15 months of 

his employment, the work week which ended August 6th was the first time 

he had worked less than 40 hours, and whether he knew that he would not 

be paid time and a half if he stayed over, Mr. Eldridge replied "I 

don't know that" (Tr. 94). 

Mr. Eldridge conceded that all mining was dangerous and strenuous, 

and he denied that he was contending that advance mining is perfectly 

safe, while retreat mining is unsafe. He also indicated that he did 

not refuse to work simply because pillar mining was harder work. With 

41~i 
regard to the shutting down of his equipment, Mr. Eldridge stated that 

he did no.thing different on the day he was fired than what he did at 

other times at the end of his normal shift, and that the entire crew 

left the mine because Mr. Miller stated that he wanted to speak with 

them (Tr. 106). Mr. Eldridge stated that the fact that he would not 

be paid overtime had he opted to stay over and work never entered his 

mind at the time of his refusal to stay (Tr. 107). 

Raymond Cochran, testified that he worked for the respondent 

from November 11, 1977 until January 1982, and that he was the general 

mine superintendent. He confirmed that he was aware of the fact that 

Mr. Eldridge was fired by the respondent for his refusal to work the 

evening of August 6, 1981. He stated that he had a conversation with 

Mr. Eddie Miller shortly before the shift ended sometime between 

10:00 and 11:00 p.m., and that Mr. Miller advised him that there was a 

"problem" because some of the crew did ri.ot want to stay over and work 

(Tr. 114). Mr. Miller later informed that he had fired Mr. Eldridge 

and three others for refusing to work (Tr. 115). Mr. Cochran informed him 

that they were on a four day work week at the time of the discharge, 

and he also confirmed that a meeting was held the following week, at 

which time Mr. Eldridge advised company manager Bobby Morris that he 

had been too exhausted to work anymore. Mr. Cochran indicated that he 

took the term "tired out" to mean that Mr. Eldridge "physically wasn't 

able to work" and that "he didn't feel like continuing on and doing more 

work" (Tr. 116). 

Mr. Cochran testified as to his 25 years' experience in underg!ound 

mining, and he gave his views concerning pillar and advance mining. 

He indicated that pillar work was more dangerous than advance work because 

the coal is being taken out, and one must be alert for falling rock and 

roof. He conceded that any mining is dangerous and difficult, and that 

the top must also be watched during advance mining. He did not believe 

it was safe to require miners to work 11 and 12 hours on a pillar section. 

He also indicated that the mine program called for nine and ten hours 

of pillar work, but that he got more production in eight hours as he 

did in nine or ten (Tr. 121). He believed that a miner's efficiency 

and thinking drops if they work ten to twelve hours, and that one's 

physical condition is not like it ought to be and that a miner would be 

in danger (Tr. 122). 

Mr. Cochran stated that when he worked for the company he never 

expected anyone to work a double shift, or to work 13 or 14 hours pulling 

pillars, because "its too much time. Your too wore out; you're too fatigued." 

(Tr. 123). Mr. Cochran confirmed that he spoke with Mr. Morris during 

the meeting and he asked Mr. Morris to put them back to work. He indicated 

that Mr. Morris told him he couldn't do it because ·~e would have a breakdown in his control over them or something" (Tr. 123). Mr. Morris then 

upheld their discharge, even though he had the authority to reinstate 

them. 

414 
On cross-examination, Mr. Cochran confirmed that when removing pillars, 

the object is to get a controlled roof fall, and that this actually 

improves safety conditions. He also confirmed that he taught the 

class on pillar pulling at the mine with the safety and engineering 

department. He conceded that during his instruction classes, he did 

teach miners to stay over and work two or three hours to pull pillars 

and to leave them in a safe condition for the next shift before finishing 

their work shift. However, he denied ever instructing miners that they 

should stay four or five hours beyond their normal work shift to finish 

pillars (Tr. 125). In response to further questions concerning his 

instructions with regard to staying over to pull pillars, he testified 

as follows (Tr. 125-127): 

Q. See if this is a correct statement of what you 

just stated. Assuming that the second shift had 

cut through the pillars, and made the cuts through, 

and all that was remaining was to take the coal out 

of the sides of the three center pillars; you're 

saying that if they were at that point in their 

work, then they should stay overtime to complete the 

job? 

A. Well, now, I'm not in there, and I don't -·- that's 

what I got that foreman for, to make the decision on 

how long they stay. Okay -- and how dangerous it is. 

That's why I call them and talk to them. Now, if 

he splits those three pillars, he can go on to the 

house. ·-If he turns around and splits those six other parts 

of the six pillars, he can go the house. But you've 

got a ten-foot stump, and each one of those pillars 

are 40 more feet holding that top in that particular 

area. 

Q. Assuming that there's a four-day weekend coming 

up, after you get through the point of cutting through 

all the pillars, would it not be unsafe for the miners 

coming back four days thereafter, to go back into this· 

same row of pillars and begin working again? 

A. If he had left all of those ten-foot square 

stumps still in that row of pillars, to me, there is 

no danger. But if he had ~ut half of those, or more, 

out before the eight hours was up, then you should 

try to extract the rest of them in order to get ~ 

fall while we're all out and gone. 

Q. Is it not true that the amount of overtime which 

these men actually worked would be until 3:00 o'clock 

in the morning, considering the fact that they were down, 

and had to go back outside to get replacements fo~ the 

four men who were fired, and go back inside the mine, 

retrieve the equipment which Mr. Eldridge had shut· down, 
take it back to the work area ~~ considering 

·those factors, is it not true that the amount of 

overtime actually worked for these men is pretty 

much normal? Wouldn't you agree that it's a 

reasonable amount of overtime? 

A. A quarter until ten was quitting time for 

that section. Thirty minutes later, the next 

section came outside. And it was around 11:00 

o'clock, I'd say, before he got his other four 

men off of A Section, and went back inside. And 

from 11:00 until 3:00 is four hours. That's half 

of a normal day's work. 

Q. What I'm asking is, would you not agree that 

that amount of overtime would be pretty much normal, 

or routine? It's not excessive? 

A. It wouldn't be too excessive if half of that 

was in down time. Do you understand what "im trying 

to say? Two or three hours -- I asked them to stay, 

in class, whatever it took to make it safe -- up 

to two or three hours. This is the way we discussed it 

all of us together. Anyway, with broken-down equipment, that really isn't too'long. But all the equipment didn't break down, I don't imagine, at one time. 

I don't know what was down. 

Q. But you are aware that there was equipment down 

that night? 

A. Yes, sir. I understand there was something down, 

but I foreget what it was -- a shuttle car or a belt 

head drive, or something. 

Q. Considering that down equipment, this was not an 

excessive time period, was it? And considering the 

other difficulties; going out of.the mine; this is 

not an excessive period of overtime, was it? 

A. No, sir. 

Mr. Cochran reiterated that requiring miners to stay on beyond their 

normal work shift to work until 3:00 a.m.,.was not an excessive amount 

of overtime pulling pillars. In short, he did not believe working four 

hours beyond a normal work shift is "not too much overtime" (Tr. 129). 

However, doing straight pillar pulling for. 13 or 14 hours without any 

down time would be a "problem" (Tr. 129). Mr. Cochran confirmed that 

he was responsible for hiring Mr. Eldridge, and that he knew him the entire 

15 months he was employed there. He never had any problems with him, 

did not consider him to be chronic absentee, and as far as he knew, 

Mr. Eldridge was an experienced miner and a good worker (Tr. 132). 

41f> 
Mr. Cochran stated that he spoke with the section foreman, 

Eli Smith, who told him that he saw no need to keep the crew over to 

pull pillars, and that he (Smith) indicated to him that he tried to 

communicate this fact to second shift mine foreman Eddie Miller (Tr. 132). 

Mr. Cochran confirmed that he did not go to the mine when Mr. Eldridge 

and three crew members were fired, and he did not know whether it was 

necessary for the crew to stay over and finish the pillars. He left 

that decision to Mr. Miller (Tr. 134), and he found out a week later from 

Mr. Smith that he (Smith) did not think it was necessary to keep the 

crew over to pull pillars (Tr. 135). He explained his role in the discharge 

of Mr. Eldridge as follows (Tr. 134-136): 

Q. So, at that point in time, you had no reason 

to believe that there was no necessity for the men 

to stay over? 

A. I didn't know whether it was necessary for them 

to stay over or not to stay over. I had to trust 

his decision, because that's what 

Q. You didn't go to the mines? 

A. No, sir, I didn't go to the mines. 

Q. You didn't talk to Mr. Smith at that time? 

A. No, sir. I talked to Mr. Smith the next Monday. 

Q. In other words, Mr. Smith had told you the following 

week that he didn't think it was necessary for the 

men to stay over? 

A. Yes, sir. 

Q. Did he tell you that he had communicated that 

to the mine foreman at the time that --

A. He said he had tried to explain it to the mine 

foreman. 

Q. And the mine foreman didn't want to hear it? 

A. Well, evidentally, yes. That's what he was telling 

me. 

Q. You just accepted what the mine foreman told you 

when you talked to him? 

A. After I talked to the mine foreman, and Bobby 

Morris talked to the mine foreman; then he goes inside; 

and when I talked to him again, the men are already 

dismissed. I didn't get to talk to him but once until 

they were already dismissed. 

41'( 
Q. . After you learned about what had happened, did 

you change your position, or did you change your 

mind, or did you know enough about it to make any 

determination, as to whether the mine foreman was 

right or not in his judgment to keep the men over? 

A. Well, he kept them over. And I have to trust 

his judgment too. And that's what we were paying 

him for. And I was in contact with him, because 

of the long weekend; and I wanted to make sure that 

if there was anything that needed to be done, do 

it before you come out of there. All right. Then, 

when I talked to him the first time, he goes back 

inside to talk to the guys, and convince them to 

stay and do whatever needed to be done. In the 

meantime I talked to mine management, and I talked 

to Bobby, and I talked with the mine foreman who 

was in charge of the mines, Elmer Jent; and I got 

hold of them again -- after he'd got back outside, 

he'd already dismissed the guys. And I told him 

then, "If you need to stay and do what you have to 

do, to get you four men off of A Section," in which 

they came out 30 minutes later. 

Q. Did you have any reason to believe that his 

decision for the men to stay was wrong? 

A. No, sir, I had no reason. So, it was do nothing 

but believe him. 

Q. Do you have any idea why the other three men 

didn't want to work? 

A. I don't. 

Q. Did that come up at the meeting? 

A. They came to the meeting. They never opened their 

mouth. 

Q. They never said anything about why? 

A. No, sir. They never said one word until after the 

meeting was over with. And Johnnie Jones talked to 

Bobby Morris, a few words, and then he left. 

Q. And Mr. Eldridge was the only one at the meeting 

that said he was too tired to work? 

A. The only one, other than Bobby Morris, that spoke, 

was James Eldridge. 

418 
Mr. Cochran confirmed that pillar pulling is done in accordance 

with an MSHA approved plan, and the plan says nothing about working 

hours, or the condition of the men. Further, during his tenure as 

mine superintendent for the respondent he never received any complaints 

from any miners concerning their working overtime, ·or that such requirements that they work overtime placed them in any jeopardy (Tr. 139). 

Mr. Cochran stated that while he never personally fired any employee, 

he would if he had to, and he explained the circumstances which would 

warrant a discharge. He also indicated that there are times when men 

are required to be kept over to finish work, but he usually tried to 

accomodate anyone that had an excuse for not staying by finding someone 

else to fill for him, but that if he could't find anyone else and 

absolutely needed someone to stay, he would fire anyone who refused 

to stay (Tr. 142). 

Mr. Cochran confirmed that the three other miners were fired for 

refusing to stay and work, but he had no knowledge as to any excuses or 

reasons they may have had for this refusal. He also confirmed that at 

no time did any of the miners make any remarks that their refusal to 

stay was because of any safety reasons, and Mr. Eldridge simply stated 

that he was too physically tired and exhausted to work (Tr. 143). 

Mr. Cochran explained the different duties of a cutter, bolter, and 

shooter, and indicated that whether they all would be exhausted at 

the same rate would depend on their individual physical condition (Tr. 146). 

Mr. Cochran stated that during his training sessions with the miners, 

he would tell them that should they need to stay over an hour or two to 

pull pillars, to do it because "it makes it better" for them when they 

go back in the next day. When asked whether they absolutely had to stay 

for five hours, he responded "that's fine. Let them stay. No problem 

there" (Tr. 147). However, he believed that it was dangerous to have 

anyone pull pillars for 16 hours because he did not "think that any man 

can stay 16 hours in the coal mines, and be himself"(Tr. 148). However, 

working 12 hours a day once a week "would be o.k." in his view, but 

12 hours a day consistently would not (Tr. 149). He also indicated 

that each man would have to decide for himself whether this would be 

safe because of their different physical condition. 

When asked about his knowledge of Mr. Eldridge's complaint, Mr. Cochran 

indicated as follows (Tr. 151-153): 

Q. Do you know what Mr. Eldridge is complaining 

about in this case? 

A. Not really. I know that he and Sunfire has 

a disagreement, but --

Q. They have a difference of opinion? 

A. Yes, a difference of opinion. All I know is 

that he wasn't able to work that night~ And I'm 

asked to come down and tell what I know about the 

whole situation. 

419 
.Q. If I were to tell you that Mr. Eldridge's claim 

in this case was that he felt that his refusal to 

work that night was based on his physical -- his 

claim that he was physically and mentally exhausted 

from working eight hours, pulling pillars, and that 

he felt that requiring him to stay might place 

him in jeopardy, and might place some of his fellow 

miners in jeopardy, because he felt that he wouldn't 

be alert enough to be in there, having worked a 

full day, and he feels that the company is unreasonable 

in asking him to stay -- what would be your comment 

on that? 

A. Well, if he come to me and told me, and I was 

his foreman, that he wasn't able to stay, and he didn't 

feel like working, I'd say, "Well, we'll get you outside 

in a minute." 

Q. What does that mean? 

A. That means that I don't want him on my section if 

he isn't able to work, because he can't do nothing 

for me. I mean, if he's drilling coal for me, I want 

my coal drilled. I don't want him dragging around. 

Q. When you said, "We'll get you outside," you didn't 

mean to fire him, did you? 

A. No, sir. I'd send him home, and let him get himself 

recuperated for another day. I wouldn't fire him, no, 

sir. I sure wouldn't. I wouldn't have fired him, if 

it had been me. If he'd come to me and told me, and 

said, "Hey, I've had it. I don't feel like working 

any more. I'm bushed," I'd say, "Well, let me see 

if I can get somebody to replace you off of A Section." 

Q. Let's say, you couldn't find anybody to replace 

him? 

A. We could make it. 

Q. You would make an exception, and as you say, "We 

can make it, and go on"? 

A. We work short-handed pretty often. 

Q. And the next day, in addition to Mr. Eldridge, two 

men come to you and say, "We're exhausted, and we can't 

work," what do you do there? 

A. Well, I'd go looking into the situation; but more 

to find out why they get so exhausted. * * * * 

420 
George Lowers, testified that he is employed as an MSHA underground 

mine inspector, and indicated that he had worked in the mines for 14 

years, nine of which were as an underground miner. He testified as 

to his experience and training, which includes retreat or pillar mining, 

and the drafting of pillar pulling plans with mine operators and roof 

control specialists (Tr. 156-160). Mr. Lowers indicated that he has 

four mines under his inspection jurisdiction, but that the Sunfire 

Mine is not one of them (Tr. 162). He explained the differences between 

advance and retreat mining, and he indicated that during his inspection 

rounds in a pillar section he observes the physical and mental capabilities 

of the miners because they "have to be on their toes" and must be "looking 

after his buddy" (Tr. 165). In his opinion, since the object of retreat 

mining is to induce a roof fall, he believed that one needs to be more 

alert (Tr. 166-167). 

Mr. Lowers identified a copy of the mine roof control plan which 

was in effect on August 6, 1981, and indicated that the plan reflects 

that the main roof is "a very good roof" (exhibit C-7; Tr. 169). The 

plan also reflects that the "immediate roof" is a combination of "shale 

and coal rider", and if this type of roof is left up very long, as time 

progresses it will deteriorate and fall out between the bolts" (Tr. 170). 

He also explained the differences in the use of resin roof bolts and 

conventional bolts (Tr. 171-173), and he also explained some of the dangers 

involved in retreat mining (Tr. 174). 

Mr. Lowers examined sketches of the pillars which were split in 

the area where Mr. Eldridge and the crew were working at the time in 

question, and he further explained the effect of pulling pillars on the 

roof support (Exhibits C-8, C-9, Tr. 175-178). When asked whether he 

believed it is unsafe for miners to work 14 or 16 hours on a pillar section, 

he replied as follows (Tr. 178): 

Q. In your opinion, given your experience as a 

coal miner. and supervisor, and an MSHA inspector, 

do you feel that it is safe for miners to work 14 

hours or 16 hours on pillar sections? 

A. Sir, the only way I can answer that is, it 

depends on the individual, the metabolism of each 

and every person. They know their own limitations. 

I would like to think that I know mine. I personally 

would not work 16 hours ori a pillar section. 

Q. Again, given your experience in the coal mine 

industry, if you're a supervisor, and a miner comes 

to you and says, "I'm exhausted. I'm tired. I can't 

continue any more," what does that mean to you? 

Ao He should be sent outside. 

42.i 
On cross-examination, Mr. Lowers stated that the longer a roof 

is allowed to remain standing once it is worked, the greater the danger 

that it will fall. When asked a hypothetical question concerning the 

safety of leaving a roof standing for four days after certain pillars 

had been cut and partially extracted, Mr. Lowers responded as follows 

(Tr. 181-182): 

A. There's no way that I can answer that question. 

I've never been in that mine. I've never checked 

the roof. I don't know what you were anchoring in. 

There are too many variables there for me to answer 

that question correctly. 

MR. ROARK: Then, Your Honor, based upon Mr. Lowers' 

statement, I move to strike his entire testimony 

as not being relevant, and not being founded upon 

fact, and so forth. 

JUDGE KOUTRAS: First of all, he asked you a 

hypothetical question. Did you understand the question? 

THE WITNESS: I believe his point was, is speed of 

the essence when you're pulling a pillar. Is it 

making it safe to pull it out as fast as possible, 

rather than go back in later. 

JUDGE KOUTRAS: What's your answer to that one? 

THE WITNESS: I'd say yes. 

JUDGE KOUTRAS: Now, your hypothetical 

MR. ROARK: Extended further, and went to a period 

four days later. You're waiting, just letting it 

sit idle, and then four days later, someone goes 

back into that same row of pillars. 

THE WITNESS: You would be taking more of a chance, 

yes, sir. The longer it sits there, the more weight 

that's going to be on it. 

In response to further questions, Mr. Lowers stated that during his career 

as an inspector, he has never had a miner complain to him about fatigue. 

When asked whether he ha.d ever checked ·a miner for fatigue, or whether 

one can tell that he may be fatigued by looking at him, he replied that 

sometimes miners "cut corners" so that they "can get out in front where 

he can sit down" (Tr. 185). However, he indicated that most of the mines 

he inspects work eight hour shifts (Tr. 186). 

With regard to the roof control plan, exhibit C-7, he confirmed 

that it deals with advance work and does not include a pillar pulling 

422 
plan, but that such pillar plans are usually incorporated as supplemental 

plans (Tr. 187-188). He also confirmed that he has never seen a pillar 

pulling plan which contained provisions concerning miner fatigue, and 

he knows of no MSHA regulation covering employee fatigue or exhaustion. 

However, if he found a miner falling down or asleep because he was tired, 

he would issue an imminent danger order under section 107(a) ordering 

him out of the mine. He has never done this for any fatigued miner, 

but did do it once for a miner who was drunk (Tr. 189). 

Mr. Lowers confirmed that he has no personal knowledge of the details 

of Mr. Eldridge's complaint, that he did not participate in the investigation 

of his case, was not aware that MSHA had investigated the complaint, and 

indicated that has never been asked by any miners to give an opinion as 

to whether their claims that they may be tired and do not wish to continue 

working are valid safety complaints (Tr. 190-191). 

Billy Smith, repairman, Johnson Coal Company, testified that on 

August 6, 1981, he was employed at the same mine as Mr. Eldridge and they 

worked the same second shift that day. He indicated that he was doing 

repair work that day and that he worked a 12 hour shift. Before the normal 

shift ended, he learned from section foreman Eli Smith that the "outside 

boss or supervisor" had indicated that anyone who came outside after their 

shift would be fired. He would not have gone outside because he was 

expected to stay to repair a shuttle car which was down at the end of 

the shift. The car had a motor break-down, and it went down at approximately 

9:00 p.m., but the section still operated with one other car. Once 

everyone got outside, Mr. Smith said that he heard Mr. Eldridge tell 

Eli Smith that he "was too tired to make the shift, you know ... stay 

late and work over" (Tr. 195). He believed that three split pillars 

were still left at the end of the shift, but that no side cuts had 

been taken out of any of them. In his opinion, with one shuttle car out 

of commission, it would have taken an additional time to take out the 

remaining coal. When he left the mine after staying over, it was his 

opinion that there was still 6 or 7 hours of work remaining (Tr. 196). 

On cross-examination, Mr. Smith confirmed that he is Eli Smith's 

brother. He indicated that the shuttle car which had been down during 

the extra time beyond the regular shift was finally repaired at the end 

of the overtime shift. He confirmed that it was perfectly clear to him 

that Eddie Miller told Eli Smith that if the men did not stay to work 

they were fired, but he was never specifically asked to stay, and the 

reason for this was that he would have stayed anyway because he had to 

repair the shuttle car (Tr. 199). He also indicated that Mr. Eldridge 

had completed his regular work shift, and a repairman actually shut down 

his machine. The men that were asked to stay and work were simply 

told to stay "until the pillars were pulled". Those who stayed to work 

actually quit between 3:00 and 3:30 a.m., but he could not remember 

whether they were paid an additional hour overtime (Tr. 201). 

Mr. Smith stated that at the end of the overtime shift on Thursday, 

or at 3:00 in the morning on Friday, the pillars had not been timbered 

423 
up so that the next row could be pulled. He knows this because he 

observed the area the following Monday when he returned to the section. 

Although he saw no one in there working that Monday, he saw where the 

coal had been moved (Tr. 201). 

Mr. Smith confirmed that at prior "pillar-pulling sessions", 

the men were told that if there was a danger to equipment or if it was 

necessary to work overtime, they would be expected to stay and finish 

pulling pillars. However, in his opinion it was not necessary to stay 

over on August 6th. He confirmed that he had worked overtime many 

times and was always paid overtime pay for any work over 40 hours, but 

at the time in question the men would have been paid straight time because 

they had not put in 40 hours (Tr. 203). As far as he knew, the men who 

opted not to stay did not get together and decide this as a group (Tr. 204). 

He explained his reasons for staying overtime as follows (Tr. 205-206): 

Q. So, you put in twelve, twelve and a half 

hours, working that day? 

A. That's right. 

Q. How did you feel about that? 

A. Well, I was tired, if that's what you're 

saying -- pretty tired. 

Q. Why didn't you ask to leave at the end of your 

regular shift, and why did you stay? 

A. Well, see, there's a difference. A repairman 

if something breaks down, you have to stay. I mean, 

this is something he does when he takes his job. If 

something is broke down, he's got to stay and repair 

it before the next shift comes in, because if he doesn't, 

those men are going to be knocked out of there too. 

So, he's got to be there, and see that it's fixed, so 

the next crew can work. 

Q. Have you ever had occasion to refuse to stay to 

work on equipment? 

A. Ever had an occasion? 

Q. Have you ever done it? 

A. No, I haven't. 

Q. And whenever you're asked, you stay? 

424 
A. If it's relating to my job, yes. 

Q. How do you explain the fact that Mr. Eldridge 

decided not to stay because he was tired? 

A. Well, to begin with, mining is a strenuous job; 

and every job is not the same. Mr. Eldridge, here, 

was running the drill, shooting, and helping timber 

and things -- and I can see his point, myself. I 

mean, he was tired. And pillar work is dangerous to 

begin with. All mining is dangerous. When you work 

eight hours, you're tired. It doesn't matter what 

you do, you're still tired. But there are jobs 

that are more strenuous than others. 

Q. When you perform your maintenance work underground, where do you do your maintenance work? 

A. Usually wherever it breaks down. 

Q. You just go wherever the machine is. Is that it? 

A. That's right. 

John Jones, testified that he is an unemployed coal miner, and that 

on August 6, 1981, he was employed with Mr. Eldridge at the mine in question, 

and worked the same shift with him as a cutting machine operator. The 

shift started at appro~imately 1:45 p.m. and was scheduled to end at 

9:45 p.m., and the crew was working a conventional pillar section. He 

stated that pillar work entailed "more extra work" than advance work, 

and that this included the setting of breaker posts and timbers. He 

identified exhibit C-5 as a sketch of where the timbers would be set 

on the section on the evening in question, and he indicated that the 

setting of timbers was a continuous job during the eight hour shift (Tr. 210). 

He confirmed that pillar pulling makes the roof weaker and rib rolls 

are encountered, and that is the reason for installing timbers and posts. 

Mr. Jones stated that he heard Eli Smith tell Mr. Eldridge that 

"Eddie wants to stay and get all this coal out" and that Mr. Eldridge 

told Mr. Smith "Well, I'm too tired". Mr. Smith did not specify the 

amount of time that he wanted Mr. Eldridge to work overtime, and Mr. Jones 

believed it would have taken eight to twelve hours to take out the coal 

(Tr. 212). 

Mr. Jones stated that after the men came out of the mine on Thursday 

at the end of the regular shift, they met Eddie Miller in the lamphouse. 

He had the crew's paychecks with him, laid them down, and stated to the men 

"whoever gets checks, the company don't need anymore". Mr. Eldridge 

told Mr. Miller he was too tired to work anymore and picked his check up. 

425 
When Mr. Jones asked whether "this was for everybody", Mr. Miller replied 

that it was, and Mr. Jones told Mr. Miller "I'll take my chances. Give 

me my check, too", and then he, Mr. Eldridge, and two other miners went 

home (Tr. 212). Mr. Jones indicated that he returned to the mine the 

following Monday for his regular work tour, and that Mr. Eldridge was 

there. They were told to report to the mine office, but since Mr. Morris 

had gone, they were asked to return the following Tuesday. When they 

returned, Mr. Morris told them they were fired and Mr. Eldridge told 

Mr. Morris that he was "too tired to work any more" (Tr. 214). 

Mr. Jones testified that at the end of the regular shift on August 9, 

he had worked cutting the coal and that all five coal pillars had been 

punched through, that the coal from the number 1 and number 2 pillars 

had been cut, loaded out, and cleaned up, but that the three remaining 

pillars still had the last cut of loose coal which had been shot down 

still lying on the ground, and it had not been loaded out. No side 

cuts had been made. He confirmed that the mine top is a "pretty good top", 

but that the B section where they were working did have some rock falls 

which occurred "right often" (Tr. 216). Mr. Jones stated further that 

he did not know he would be fired for not working overtime until he got 

outside and picked up his check (Tr. 216). 

On cross-examination, Mr. Jones identified the pillar pulling plan, 

exhibit R-2, explained the work that he had performed in cutting the 

pillars and the fenders, and he indicated that during his shift he took 

out nine or ten cuts of coal. Although the plan calls for five cuts to 

split a pillar, he split them with four cuts. He also indicated that at 

the end of his shift, including the cutting of side fenders, it is possible 

that he had taken 12 to 14 cuts, plus three cuts which were on the ground 

to be picked up (Tr. 219-226, exhibits C-9 through C-11). In his opinion, 

he thought it would have taken an additional shift or a shift and a half 

to take out all of the coal that remained at the end of his normal shift 

(Tr. 230). 

Mr. Jones confirmed that he had put in 32 hours through 

August 6, and he stated that he did not stay to work because 

hold of one of the timbers, and it wasn't taking no weight. 

no weight on it. I didn't see any reason for them asking us 

and work". In short, he saw no reason why the work couldn't 

the following Monday, and he explained further at Tr. 232: 

Q. But somebody from mine management; the mine 

superintendent or somebody, Mr. Miller, made a 

different evaluation? 

A. Well, sir, somebody stayed there and worked 

until 3:00 o'clock the next morning, and they got 

five cuts of coal. And I don 1 t know whether they 

ever got the rest of the coal or not. 

426 

Thursday, 

"I got 

There wasn't 

to stay there 

stay until 
Q. Why was it that you didn't stay? Was it 

because you felt that it wasn't necessary, or you 

didn't feel like it, or you weren't feeling good, 

or you felt you'd have to be there too long, or --

I'm trying to understand your reason for not 

wanting to stay. 

A. Well, it was the end of my shift, and there 

wasn't no danger, I thought, of the top falling in. 

They wouldn't have lost the coal. And I didn't 

figure there was any reason to ask us to stay there 

and work, after we'd done had our shift in. 

Respondent's testimony and evidence 

Eddie Ray Miller, respondent's mine foreman at its No. 3 Mine, 

confirmed that he was in charge of the B Section at the time of Mr. Eldridge's 

discharge. Mr. Miller indicated that he has seven years of mining experience, 

and has worked as a roof bolter, driller, shuttle car, scoop, and miner 

operator, and has worked in pillar extraction as both a miner and supervisor. He is a certified mine foreman, and he confirmed that he was 

at the mine on August 6, 1981, and that at approximately between 7:00 

and 7:30 p.m., he spoke with section foreman Eli Smith and Johnny Jones. 

Mr. Miller indicated that he and Mr. Smith were looking at the pillars, 

and Mr. Miller remarked "it looks like you're going to need to work overtime", and Mr. Smith replied "I guess we are" (Tr. 316). Mr. Jones was 

present at that time, and Mr. Miller indicated that they both knew they 

were to work overtime, and Mr. Smith did not disagree with him (Tr. 317). 

Mr. Miller then left the underground mine and was called later by Mr. Smith 

over the mine telephone and he informed him that some of the men were not 

going to work. Mr. Miller stated that he told Mr. Smith "if they didn't 

stay and help out, we might not need them anymore" (Tr. 318). Since it 

was the end of the shift and Mr. Smith informed him that some of the men 

were coming out of the mine, Mr. Miller instructed him to take the entire 

crew outside (Tr. 318). 

Mr. Miller stated that when the B section crew came out of the mine, 

he met with them in the lamphouse. He had their paychecks with him, and 

he informed them that "the ones that take their checks, we won't need them 

anymore". Mr. Eldridge, Johnny Jones, Joe Engle, and Ed Hurley took 

their checks and left. There was no discus.sion at that time about why 

the men did not want to work overtime, and Mr. Miller stated that if 

Mr. Eldridge said anything t-0 him about why he did not want to work 

overtime, he did not hear it (Tr. 319). However, Mr. Jones was cussing and 

using foul language, and he connnented that "the company sucks". Mr. Engle 

made the comment "Eddie Miller, you'll be sorry for this". Mr. Miller 

also indicated that "they were hollering as they got. in the car", 

and when asked whether he believed they were acting as a group, he 

responded "They rode together, ·and they just stayed together, and just 

hung together, I guess" (Tr. 320). 

427 
Mr. Miller testified that at the time he asked the men to work 

overtime he believed that it would be necessary to stay about three hours, 

and the crew who stayed finished working at 3:00 a.m. He confirmed that 

he paid them an hour and a half extra time as a bonus, and that this was 

company policy. He confirmed that he fired the four men, including 

Mr. Eldridge, because of their refusal to work (Tr. 322), and when asked 

why he believed it was necessary for the men to stay and work overtime, 

he responded as follows (Tr. 322-323): 

A. Because, if we had left the pillars, it would 

have been unsafe to go back the following work day. 

Plus, you would have lost the coal, and maybe --

I couldn't say how much coal could have possibly 

been lost. And it would have been unsafe to go back 

in the same row of pillars, definitely. 

Q. Why do you feel it would have been unsafe? 

A. Because the pillars had already been cut through, 

and one cut out to the side, and it would just have 

been unsafe. The top couldn't have stood, I don't 

think, the following weekend and then went back in the 

pillar row; the same one. 

Mr. Miller confirmed that a three day weekend was coming up, and he 

stated that at the end of the overtime shift, all of the coal except for 

one cut was taken out and "we had it all timbered off and ready to go" 

(Tr. 323). He indicated that breaker posts were installed in between 

the next row of back pillars, and he marked the areas where breaker posts 

were installed at the end of the overtime shift by marking four "X" 

marks on complainant's exhibit C-1 (Tr. 324-327). Mr. Miller stated that 

he estimated it would take three hours of overtime to finish the pillars 

because it takes 20 minutes to clean a cut of coal, and by looking at the 

pillars he estimated that there were seven cuts of coal left to clean up the 

row of pillars (Tr. 328). 

On cross-examination, Mr. Miller stated that after his conversation 

underground with Mr. Smith, he left the mine approximately 45 minutes 

before the crew came out. Although Mr. Jones was there, Mr. Miller confirmed 

that he did not speak directly with him and did not personally tell him 

that the crew would have to stay overtime. He could not remember whether 

he spoke to anyone other than Mr. Smith when he was underground (Tr. 331). 

Mr. Miller conceded that during his previous testimony during a hearing 

regarding Mr. Jones' unemployment compensation claim, he (Miller) testified 

that he had spoken with Mr. Jones underground and told him of the need 

to work overtime (Tr. 334). Mr. Miller also conceded that it is easier 

and faster to take out pillar fenders and slabs, but he denied he wanted 

the men to stay so that he "would look good" for taking out as much coal 

as he could that night (Tr. 336). He confirmed that he paid the crew for 

six hours, but that they actually worked five, and the extra hour was a 

bonus. He also indicated that he did not tell the crew he was paying them 

an extra hour, and they were not aware of it that night. He later said 

428 
he paid them an hour and a half extra and Mr. Smith would keep the 

time (Tr. 340-341). Mr. Smith turned in a total of 14 hours for each 

man who stayed over, eight hours for their normal work shift, plus 

an additional five hours of actual overtime (Tr. 341). 

Mr. Miller testified as to how the pillars were cut through and 

the need for staying over and taking out the coal. He confirmed that 

the cutting machine operator had gotten off center with the cuts, and he 

explained how pillars are pulled, and he indicated that each time a cut 

of coal is taken out the pillars take more weight and mining becomes more 

hazardous (Tr. 341-348). 

Mr. Miller confirmed that at the end of the normal work shift 

for the crew he knew that Mr. Eldridge had been on the job for one full 

shift. He did not consider drilling and shooting to be the work of "two 

jobs", and considered them to be one job. He confirmed that a shot firer 

had to haul the explosives buggy back and forth and that it was normally 

loaded with 75 pounds of explosives. However, he confirmed that the buggy 

was on wheels. With regard to the setting of timbers, he confirmed that 

··there are an "abundance" of timber posts used on a pillar section, and 

he conceded that many times extra timbers are set to insure that the 

roof is supported adequately (Tr. 352). He confirmed that "a lot of 

timbers" were installed on the section and that they are continuously 

knocked or jarred down by equipment while mining is in progress. It is 

the responsibility of the shot man or driller working at the face to make 

sure the posts are set back up once they are knocked down (Tr. 355). 

Mr. Miller stated that he did not believe that Mr. Eldridge was 

tired at the end of his normal work shift, because he had no way of knowing. 

Even though he was not present during the actual work shift, he did not 

believe that Mr. Eldridge could have shot and drilled more than five or 

six cuts of coal in his eight hour shift, and eight cuts would have been 

the most that was cut and loaded (Tr. 357). He also indicated that there 

was a lot of down time during the shift (Tr. 357). When asked what he 

would do if a miner tells him he is too tired to go on after his normal 

shift, Mr. Miller responded as follows (Tr. 358-359): 

Q. And he's doing pillar work which is more 

dangerous than advance work. He comes up to you and 

he says, -- or you come up to him and you say, "I 

want you to work another shift on this pillar 

section." And he says, "I'm too tired, I can't do 

it." What would you do with that man? 

A. I'd work something out. If he had told me that 

I would have worked something out so he could leave 

and go home and rest. 

Q. Why. 

A. If he tells me that he's absolutely too tired to 

stay on and work, then he would just be accident prone, 

I guess. 

429 
. Q. It would be too dangerous for him to go back 

in, wouldn't it? 

A. Yes, it would. 

Q. I want to clarify one other point on your direct 

examination with Mr. Roark. It's your testimony 

that in the lighthouse that night you explained to 

Mr. Eldridge, Mr. Jones, the other men who were there 

why it was necessary for them to stay and get finish 

getting that row of pillars? 

A. Yes. 

Q. What exactly did you tell them? 

A. I don't remember the exact words. 

Q. I don't mean the exact words, but what, essentially, 

did you tell them? 

A. That we needed to stay and finish these pillars, 

because if we don't they might get the roof to swimming 

and then we'd lose the coal that's there, and maybe more. 

And then if the day shift came in and tried to go on 

where we'd left, it would be dangerous for them. We know 

we need to stay and try to get it. 

In response to further questions, Mr. Miller stated that when he 

met with the crew after they came out of the mine, he explained to them 

that they would not have to work more than two or three hours, but that 

there was some down time. He and Mr. Eldridge had no conversation at 

that time, and Mr. Eldridge said nothing about why he did not ~hoose 

to stay and work overtime. Further, none of the other men said anything 

either (Tr. 362). Mr. Miller confirmed that he went back to the section 

the following Monday, but that at no time after the discharge did he 

ever meet with any of the men who were fired (Tr. 363). Once they picked 

up their checks "that was the end of it" as far as he was concerned 

(Tr. 363). 

Roger D. Miller confirmed that he was working in the underground B-Section 

of August 6, 1981, at the tailpiece. He stated that he first learned 

that the crew would have to stay over about 20 minutes before the end 

of the shift, and he learned it when foreman Eddie Miller called in on 

the telephoneo Roger Miller indicated that he passed the information 

to the car driver and asked him to inform Eli Smith that.the crew had 

to stay in and finish the row of pillars. Shortly after this, the crew 

was called out of the mine and they assembled in the lighthouse. Mr. Miller 

informed the men that they had to stay over and work and that anyone who 

picked up their check and left were no longer needed (Tr. 374). Roger 

Miller recalled someone say "you're chicken", but he could not recall who 

said it. Since he wanted to keep his job, he decided to stay and work 

overtime (Tr. 376). 

430 
Mr. Miller stated that the mine conditions on the B-section during 

both the regular and overtime shift on August 6, 1981, were "normal" 

(Tr. 377). Mr. Miller confirmed that he was present at a company meeting 

when the pillar plan was discussed with the crew, and they were told 

that they would be expected to work additional hours if the pillars had 

not been completed at the end of the regular work shift (Tr. 378-379). 

He believed that Mr. Raymond Cochran made the stat'ement that "if you 

got them started, and you take off and leave them without being finished, 

you've got a whole lot of coal right there that you've lost" (Tr. 379). 

Mr. Miller indicated that it was his opinion that at the end if the regular 

shift on August 6, that it would take 3 or 4 hours to finish the pillar 

(Tr. 379). Mr. Miller confirmed that the overtime shift finished at 

3:00 o'clock, and he indicated that he stayed because there was work 

to do and he stated that "I felt I was lucky to get to go back and keep 

my job" (Tr. 384). He could not recall whether he was paid straight time, 

nor could he recall whether he had already put in 40 hours (Tr. 384). 

Lester Caldwell, testified that on August 6, 1981, he was employed 

by the respondent on the B-section day shift and did not work with 

Mr. Eldridge on the night shift. He confirmed that he was working on 

the section on Monday, August 10, 1981, during the day shift, and that 

the row of pillars previously worked by Mr. Eldridge's shift had been 

timbered off. He explained "timbered off" by stating that "they'd already 

pulled out of it; pulled out of that row of pillars and set up on another 

set", and that breaker posts were set (Tr. 386). He confirmed that equipment 

could not be taken back into the area previously worked because it was 

blocked off by the breaker posts, and during his shift on Monday, he 

saw no one go beyond the row of breaker posts (Tr. 387). 

On cross-examination, Mr. Caldwell stated that when he went back 

to the section on Monday, August 10, he was working on a different row 

of timbers than that worked on by Mr. Eldridge's crew the previous 

Thursday evening, and that the row of pillars worked on by Mr. Eldridge's 

crew was still standing on Monday and had not caved in (Tr. 387). 

Charles Cody testified that on August 6, 1981, he worked the second 

shift A-section of the mine but was called to the B-section and asked to stay 

and work overtime. He believes that he operated a loader, and before 

the work began he estimated that he would have to stay and work four 

or five hours (Tr. 389). At the end of the overtime, except for a cut 

that could not be taken, all of the pillar row was gone and the breaker 

posts were set before they left the section (Tr. 390). The section looked 

"about normal for a pillar section" when he was there working on overtime 

(Tr. 391). 

On cross-examination, Mr. Cody confirmed that a week or so before 

August 6th he was working on a different pillar row and he indicated that 

mine conditions do change quickly once cuts are taken (Tr. 392). He also 

confirmed that the roof top on the B-Section had a "four foot rash all the 

431 
way back" and that the top was "pretty unsteady" because supports are 

being taken out (Tr. 393). He also confirmed that the roof "thunders 

and roars" during pillar work, that he has.run and backed up to observed 

the top when this occurs (Tr. 394). When asked whether he would stay 

and work if he were tired, Mr. Cody responded as follows (Tr. 394-395): 

Q. Now, if you're working on a pillar section and 

you were dead tired, and you didn't feel you were alert, 

you wouldn't want to be on that pillar section, would 

you? 

A. If I was too tired I don't think I would want to be 

on it. 

Q. I suppose it wouldn't be safe. Right? 

A. Well, I've worked on them tired, but that was my 

shift. 

Q. What I mean is, if you were too tired to work it 

wouldn't be safe for you to be working on a pillar 

section, would it? 

A. I don't know, because it would depend on how alert 

your mind is. 

Q. It depends on what? 

A. If your mind is alert and your body is tired you'd 

be safe as long as you listened to your mind. 

Q. What I'm trying to say to you is, if you're on the 

pillar section and your mind's not alert, you're not 

mentally alert, it wouldn't be safe to be there would it? 

A. No. 

And, at (Tr. 398-399): 

JUDGE KOUTRAS: How did you feel after your first eight 

hour shift, in terms of your physical condition? 

THE WITNESS: I was in pretty good shape. About normal 

for a regular shift. I wasn't too awful fited. 

JUDGE KOUTRAS: Let's assume that you were tired, kind of 

exhausted. Would you have stayed? 

THE WITNESS: Probably. 

JUDGE KOUTRAS: · Why would you have stayed? 

432 
THE WITNESS: Well, if I was plumb give out, till 

I didn't think I could handle the shift, I wouldn't 

have stayed. But if I was just tired, kind of 

exhausted, and I thought I could still make the shift, 

I would have stayed. 

JUDGE KOUTRAS: Have you ever been in such a state 

that you -- have you ever decided not to stay, or 

to leave work? 

THE WITNESS: Yes, a few times. 

JUDGE KOUTRAS: Because you've been tired? 

THE WITNESS: Sometimes I was too tired, yes. 

JUDGE KOUTRAS: Do you recall whether on any of those 

occasions anyone said anything to you about not staying, 

or what? 

THE WITNESS: No. I never have -- I've always stayed if 

they said they needed us to do something. 

JUDGE KOUTRAS: You've never refused to stay? 

THE WITNESS: No, usually you've got a choice if you want 

to stay or not. But if they said, you have to stay, yes, 

I'd stay. 

Rebuttal testimony 

Mr. Eldridge was recalled the second day of the hearing and he testified 

that when he told Mr. Eddie Miller that he was too tired to stay and work 

overtime he (Eldridge) did not feel that it would be safe for him to 

continue working until the pillar row was pulled because he did not believe 

he was alert enough and was too exhausted from his work on the first 

shift (Tr. 304). Mr. Eldridge also indicated that he rode to work alone 

and did not car pool with the other men who were fired (Tr. 403). 

He also confirmed that Eddie Miller did not tell the crew that it would 

take three or four hours to finish the pillars, nor did he explain why it 

was necessary to stay and finish them (Tr. 403). 

Mr. Eldridge testified that he worked constantly during his shift 

on August 6, and that the only thing down was a shuttle car at the end 

of he shift (Tr. 404). He also testified how pillars are normally pulled 

in the section (Tr. 411-416). At one point in his testimony he stated 

that the respondent was not following its approved pillar plan (Tr. 416), 

and at another point stated that during the normal work shift they were 

following the plan and were in compliance (Tr. 417, 420-421). 

433 
P. J. Roberts, respondent's personnel manager and safety director 

identified exhibit R-1 as an employee's handbook issued to all employees, 

and he confirmed that the grievance procedures contained therein have 

never been used because no grievances have ever been filed (Tr. 435). 

There have been no discharges, although there have been some voluntary 

"quits", and three days suspensions. Mr. Roberts does not consider 

Mr. Eldridge's discharge to be harsh, and he confirmed that he was 

discharged strictly for refusing to work on August 6, 1981 (Tr •. 438), and 

Mr. Eldridge had never been disciplined by the company in the past (Tr. 439). 

Johnny Jones, confirmed that Mr. Eldridge drove his own car to work. 

He reiterated that Eddie Miller said nothing about how long the crew 

would have to work overtime, nor did he explain why the work was required. 

Mr. Jones could recall no significant down time during the shift that 

was worked on August 6th (Tr. 422-444). Mr. Jones confirmed that he made 

the statement "company sucks", but indicated that he said it while in 

his car and before driving off, and he was not sure whether anyone heard 

him (Tr. 455). 

Complainant's Arguments 

In his post-hearing brief, complainant asserts that mine management 

was informed on four occasions prior to his discharge that he was too 

tired or exhausted to continue working until the row of pillars in 

question were pulled, and that the respondent has presented no testimony 

or evidence to contradict this fact. Citing MSHA ex rel. Dunmire and 

Estle v. Northern Coal ComJ2i:!!!Y, 4 FMSHRC 126 (1982), the complainant 

argues that his statements to mine management that he was "too tired" 

or "too exhausted" to continue working were sufficiently clear under the 

circumstances to constitute a safety complaint. Although conceding that 

he did not claim that he told management that it would be "unsafe" for 

him to continue working, complainant nonetheless maintains that mine 

management recognizes that when a miner states that he is too exhausted 

to continue working, it is not safe for him to do so, and in support of 

this argument complainant cites the testimony of respondent's former 

general superintendent and safety director Raymond Cochran who testified 

that if a miner came to him and told him he was too exhausted to work 

an extra shift or ~xtra work he would seek a replacement for him and 

send him home. Complainant also cites some testimony from MSHA Inspector 

George Lowers who indicated that a miner who tells his supervisor that 

"I'm exhausted. I'm tired. I can't continue anymore" should be sent 

outside. Finally, complainant maintains that the most convincing testimony 

that a miner who says he is too tired to continue working has articulated 

a safety concern is the testimony of Mr. Eddie Miller, the man who fired 

him. Citing Mr. Miller's testimony that he (Miller) "would've worked 

something out so he could leave and go home and rest", complainant concludes 

that the respondent has no grounds for arguing that his complaints did 

not alert management to his safety concerns, 

Complainant argues that his refusal to continue working until the 

pillar row was pulled was made in a good faith concern for his safety. 

Citing MSHA ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 803 

434 
(1981), complainant concludes that the evidentiary burden to prove the 

absence of good faith is on the mine operator. In this regard, complainant 

notes that while respondent's Answer in this case did not allege bad 

faith on his part, at the hearing the respondent contended that the real 

reason that he refused to continue working was because he had not 

accumulated 40 hours of work that particular week and, thus, he would not 

have been paid time-and-one-half (the overtime rate) for the additional 

work he was ordered to perform that night. Complainant also points to 

the statement made by respondent's counsel at the hearing that the theory 

of its case is that the complainant's claim of exhaustion was a sham 

(Tr. 94-96). 

In support of his arguments that the respondent's proof of bad faith 

or that his refusal to work was a "sham" went no further than the mere 

raising of this theory, complainant points to the fact that after he 

answered on cross-examination that he did not know whether the week of 

his discharge was the only week during his 15 months employment that he 

had worked less than 40 hours, and thus would not have been paid time-andone-half for the additional hours, respondent made absolutely no efforts 

to prove that was, indeed, the case. Complainant asserts that respondent 

called no other witnesses regarding this issue, nor did it introduce into 

evidence the Company time records to attempt to prove its allegation. 

Under the circumstances, complainant concludes that respondent's attempt 

to establish bad faith on his part by mere assertion alone must be rejected. 

Moreover, complainant asserts that an examination of the applicable 

employee handbook (Respondent's Exhibit Ill) and the testimony of Sunfire's 

personnel manager, P. J. Roberts, establish that respondent's theory is 

facially without merit. Respondent's employee handbook on page 5, under 

the section entitled "Work Days and Work Week", states that "the work 

week commences at 12 :01 A.M. on Thursday". Further, Mr. Roberts admitted 

on re-direct examination that that section of the handbook is accurate 

and likewise was applicable at the time of the discharge (Tr. 440-441). 

Thus, complainant argues that since he was discharged at the end of his 

regular Thursday shift (Tr. 24, 115), and respondent's work week began 

on Thursday, he was discharged on the first day of his pay period, not 

the last day as respondent contends. Had he worked 8-12 additional hours 

on the night of his discharge, as he believed he would have to do, 

complainant would have accumulated 16-20 hours on the first day of his 

pay period. Thus, complainant concludes that this does not indicate that 

he knew he would not have worked less than 40 hours during that pay period. 

Complainant argues further that respondent's proof was similarly 

deficient with regard to it theory that he was not exhausted at the end 

of his August 6th shift in that the most that the respondent was established 

was that complainant's mobile drill was operated by manual levers. 

Complainant points out that the respondent did not cross-examine him 

regarding his additional job as a shot firer. on. the section, nor did 

respondent attempt to dispute the testimony of the several witnesses 

who stated that retreat mining is more physically strenuous than advance 

435 
mining, more hazardous than advance mining, and more mentally exhausting. 

Respondent likewise asked him no questions regarding his other duties 

on August 6th - setting timbers, hanging brattice curtains, and assisting 

with the cutting machine cable, and called not a single witness to testify 

that he had not worked continuously that night as he claimed, and it did 

not question Bill Smith's testimony that Eldridge was, indeed, tired. 

Complainant cites the testimony of Eddie Miller conceding that he "might 

have been tire~'(Tr. 358), and admitting that he did not personally 

observe the amount of work that he did on the section on the night in 

question (Tr. 356). Finally, complainant argues that the respondent did 

not challenge the testimony of the complainant and Mr. Jones that had the 

crew continued to work beyond the completion of its regular shift, it 

would have been cross-cutting pillar fenders (Tr. 215, 414), which 

complainant and MSHA Inspector Lowers testified is the most hazardous 

aspect of pillar-pulling (Tr. 175, 304). 

In summary, the complainant contends that the respondent has provided 

no evidence that he acted in bad faith in refusing to work. Citing other 

Commission decisions where the Judge found bad faith on the part of a miner 

in connection with other discrimination complaints, complainant points 

out that in those cases concrete evidence was introduced to substantiate 

the bad faith allegations. As an example, complainant cites MSHA ex rel. 

Griffin v. Peabody Coal Co., 4 FMSHRC 204 (1982), where the complainant 

alleged that he had been discharged for his refusal to turn on the section 

power unit as ordered by the section foreman because of his belief that 

excessive dust made the chore unsafe. Contrary evidence was introduced 

that the complainant, upon receiving the assignment, had passed a remark 

indicating that he intended to disrupt activities on the section. Evidence 

was also introduced that after the complainant had received a notice of a 

5-day suspension with intent to discharge, he had admitted his wrongdoing and convinced mine management to reduce his penalty to a 3-day 

suspension. Complainant states that in ruling for the company, the Judge 

credited the evidence introduced by the company and found that the 

complainant deliberately attempted to disrupt the section in the hope 

of obtaining some time off and that his contention regarding a dusty 

atmosphere was used as a pretext. 

A second example cited by the complainant is the case of MSHA ex rel. 

Bryant v. Clinchfield Coal Co., 4 FMSHRC 1379 (1982), a case in which the 

complainant alleged that he had been discharged for refusing to set safety jacks 

due to a weakened physical condition brought on by a stomach and respiratory 

ailment. The company countered that the complainant's work refusal was 

an attempt to shirk a distasteful work assignment and that the miner's 

allegation of physical sickness was pretextual. Substantial testimonial 

evidence was introduced regarding co-workers observations of the complainant 

immediately prior to his work refusal, and statements made by the complainant 

regarding his alleged illness. Evidence. was also introduced showing that 

a stormy relationship had existed between the complainant and the company 

prior to the-discharge, and while the case also involved other issues, 

the Judge found for the company, in part, because he believed the complainant 

was faking or, at least, exaggerating his claim of illness and that the actual 

reason for his work refusal was his resentment of the operator's assignment 

of an onerous task. 

438 
Complainant notes that in Bryant, supra, while the miner admitted 

that he didn't like setting jacks, and in fact, had a general fear of 

the job, in the instant case the respondent did not allege that the 

complainant's refusal to stay over and work was based on his dislike of 

pillar work, but simply maintained that he did not want to continue 

working because of the straight time pay rate. Further, complainant 

points out that while he did state that pillar work is more strenuous, 

he never stated, nor was it established by any testimony, that he specifically 

disliked pillar pulling, and when asked if his work refusal was because 

pillar work was hard, he responded "no" (Tr. 87, 105). 

Complainant contends that the record in this case strongly supports 

the proposition that his work refusal was made in good faith. He points 

to his testimony, as well as the agreement by the respondent, that he 

had never before been disciplined or warned or encountered any problems 

whatsoever with management during his 15 months employment (Tr. 88, 90, 

438-439). He also cites the testimony of Raymond Cochran, who hired him 

and was respondent's superintendent during his entire employment, stating 

that he was both an experienced and a good worker (Tr. 131-132). In 

addition, complainant asserts that it is not disputed that he had frequently 

worked overtime before his discharge (Tr. 65), had volunteered to work 

overtime before his discharge (Tr. 65), had volunteered to work overtime 

(Tr. 79), and had never before refused to work overtime (Tr. 88). Complainant 

concludes that these are not the characteristics of a miner who shirks his 

duties and attempts to deceive management. He also states that it is 

undisputed (and the payroll record Exhibit #2 confirms) that he worked an 

additional hour after the completion of his regular shift earlier during 

the week of his discharge, and that he explained at hearing that the crew 

had stayed beyond their normal work hours in order to take the final 

cross-cuts out of the last (or number 5) pillar in a row (Tr. 85). Absent 

proof to the contrary, complainant argues that this tends to indicate 

that he was a conscientious worker. He also notes that if I accept the 

respondent's assertion that Thursday was the last day of the pay period, 

this would establish that he had been paid straight time for the extra 

hour he worked two days before and would contradict the assertion that 

he refused to work the additional work on Thursday because it would have 

been the first time he would not have been compensated for extra work 

at the overtime rate. 

In light of the respondent's allegations of bad faith, the complainant 

poses the question as to why superintendent Cochran did not question his 

good faith when he stated at the August 11th meeting that he had been 

too exhausted to continue working on August 6th. Complainant cites my inquiry 

of Mr. Cochran from the bench during the hearing if he knew what the 

complainant was complaining about in this case, and Mr. Cochran's response 

"All I know is he wasn't able to work that night" (Tr. 151). Complainant 

also cites Mr. Cochran's further statement that he would not have fired 

the complainant if it had been his decision to make (Tr. 152), and 

complainant concludes that it is highly unlikely that a mine superintendent 

who was second in command at the mine would oppose the discharge of a miner 

for refusing to work if he suspected the miner's reasons for the work 

refusal were fradulent. 
Complainant goes on to argue in his brief that his.refusal 

to continue working until the pillar row in question was pulled due to 

his fear for his safety was a reasonable one under the circumstances 

he was confronted with on August 6, 1981, when he refused to continue 

working. In support of this conclusion he cites the fact that he has 

established that retreat mining is more hazardous than advance mining, 

and that had he continued to work beyond the completion of his regular 

shift, he would have been cross-cutting the pillar fenders, which is 

the most hazardous aspect of pillar mining. He also cited the record 

testimony to support his conclusion that he was already exhausted at the 

completion of his regular work shift, and the lack of any evidence by 

the respondent to support its claim that his claim of exhaustion was 

made in bad faith. 

Complainant argues that another important consideration in determining 

whether his refusal to continue working was reasonable is the exact 

nature of the order given him by respondent's management. Complainant 

maintains that the record convincingly shows that he was not told to continue 

working for a specific amount of time, but rather, was ordered to continue 

working until the row of pillars was pulled or face the loss of his job·. 

Complainant asserts that implicit in this order was that he was being 

required to continue working no matter how long it took the crew to complete 

the job, and that this resulted in his having to determine for himself 

how much additional work remained to be done and how long that work would 

take. Discounting Mr. Miller's claim that he told the crew in the lamphouse 

that the extra work "shouldn't take us over two or three hours", complainant points to other testimony, including certain alleged contradictory 

statements by Mr. Miller, to support the conclusion that the crew was never 

specifically told how long they were expected to remain to work. Even 

assuming arguendo that Mr. Miller did make the statement that he believed 

the extra work would only take two or three hours, complainant asserts 

that this was an expression of Mr. Miller's opinion and it did not change 

the work order, nor did it change the fact that the miners on the section 

did not agree that the work could be completed in that amount of time. 

Complainant maintains that the reasonableness of his belief regarding 

how long it would take to finish pulling the pillar row is supported by 

the fact that two of his co-workers on the section likewise felt, at 

the time the order to continue working was given, that the additional work 

would require another shift to complete. The complainant and Mr. Jones 

were the miners in the best position to determine how much coal remained 

to be mined and how long the work would take, as they were directly 

responsible for cutting, drilling and shooting the coal face. Recognizing 

the respondent's attempts to establish through the testimony of Mr. Miller 

that it was unreasonable for the complainant to believe the extra work 

would have taken more than a couple of hours, the complainant cites the 

testimony reflecting disagreement as to how many of the remaining fenders 

would have been cross-cut in completing the pillar-pulling process, but 

emphasis the fact that the complainant's belief that the additional work 

to be done would have taken another shift was based on the amount of coal 

438 
remaining at the end of the regular shift, and was also based on the 

practices respondent regularly used in extracting the coal. Because 

the two additional fenders were regularly cross-cut, complainant maintains that it was reasonable for him to assume that they would be crosscut again that night. 

The complainant notes that the parties are in agreement that the 

miners who continued to work on August 6th after his discharge labored 

for an additional 5 hours, or until approximately 3:00 a.m. However, 

complainant also notes that whether the pillar row was finished during 

that 5 hour period is debated. Complainant asserts that while Eddie Miller 

and Charles Cody testified that it was (Tr. 323, 389-390), Bill Smith 

testified that there was still several hours' worth of work to do when 

the crew finally left the mine early the next morning (Tr. 196), and 

Superintendent Cochran testified that he understood all of the coal was 

not removed that night, and that the Monday morning shift finished the 

job (Tr. 128-129). This testimony was confirmed by Bill Smith (Tr. 201-202). 

Johnny Jones likewise testified that he had been told by Elmer Gent, Eddie 

Miller's immediate supervisor (Tr. 134), that it took the company a shift 

and a half to finish taking the coal (Tr. 446). However, the complainant 

maintains that whether or not the pillar row was totally pulled that 

night is not crucial to the determination of this matter since the fact 

is that he knew he was being required to work a lengthy overtime period, 

and the proof shows that a lengthy overtime period was indeed worked. 

In summary, the complainant maintains that the circumstances surrounding 

his work refusal were as follows: he had already worked a full 8 hour shift, 

during which time he worked continuously performing two jobs; at the end 

of the shift he was both mentally and physically exhausted; the work he 

was performing, pillar-pulling, is more hazardous than advance mining 

and requires a miner to be especially alert; he was not ordered to continue 

working for a specific amount of time, but rather until the entire pillar 

row was pulled; he knew the work he was ordered to do would require several 

additional hours (and, in fact, a lengthy overtime period was worked); 

and he was too mentally and physically exhausted to perform that work. 

Clearly, under these circumstances, it was reasonable for him to believe 

that his safety would be jeopardized by continuing to work until the 

pillar row was finished. 

In further support of his belief that his work refusal was reasonable, 

complainant cites his own testimony that he did not believe it would be safe 

for him to continue working (Tr. 304-305), the testimony of Charles Cody, 

a loading machine helper on another section who was called as a witness 

by the respondent and confirmed that on occasion he had been so exhausted 

from working his regular shift that he decided not to work overtime when 

requested to do so by the company (Tr, 398), Mr, Cody's testimony that 

if he were "dead tired" and "didn't feel alert" he would not want to be 

on a pillar section, and the testimony by Mr. Cochran that he would not 

expect anyone at the mine to work double shifts 13 or 14 hours pulling 

439 
pillars. because they become fatigued, loose efficiency, and may "become 

an accident going to happen somewhere" (Tr. 121-123). Recognizing 

that Mr. Cochran's later testimony in response to bench questions was 

somewhat inconsistent on these points, complainant nonetheless argues 

that it supports his conclusion that his safety concern was a reasonable 

one. Complainant also cited the testimony of Inspector Lowers that each 

person knows his own limitations, and that he (Lowers) would personally 

not work 16 hours on a pillar section (Tr. 178, 184). 

Complainant concludes his arguments in support of his case by 

asserting that the respondent's arguments that his work refusal due to 

exhaustion does not merit the Act's protection because (1) the work 

refusal did not involve the violation of a mandatory safety standard; 

and (2) the claim of exhaustion is "too subjective" in nature (Tr. 97-100), 

are not supported by case law or the legislative history of the Act. 

Moreover, complainant states that both arguments contradict the intent 

of the Act, which is to protect the safety and health of miners, and 

therefore must be rejected. 

In further support of his arguments, complainant cites the 

legislat~ve intent of Congress that the Act be broadly interpreted to 

afford protection for miner's for safety related work refusals. In 

response to the respondent's arguments that a claim of exhaustion is "too 

subjective", complainant points out that while this is true of almost all 

coal mine safety complaints, in his case common sense dictates that if 

he is too exhausted to work, to require him to do so presents a hazard 

both to him and to his co-workers. Complainant notes that he does not 

claim, nor does he expect me to hold, that a miner's claim of exhaustion 

must alwasy be deemed protected activity. Nor does he expect me to strictly 

define when a work refusal due to exhaustion is deserving of the Act's 

protection. However, on the facts of his case, where he has shown that 

he was exhausted after having worked continuously for a full shift in a 

uniquely demanding work environment, was faced with the prospect of 

several hours additional work, and honestly believed he could not perform 

that work safely, complainant maintains that it would be inequitable 

to find that the respondent had the right to force him to make a choice 

between his safety or his job. Complainant asserts that this is particularly 

true in light of the fact that the foreman who discharged him admitted 

that it would be "too dangerous" to require an exhausted miner to continue 

to work on a pillar section after the miner had already completed a shift's 

work (Tr. 359). Moreover, complainant argues that it would be anamalous 

for the Act to protect miners who are discharged for complaining about 

filthy or inaccessible restroom facilities at a mine - MSHA ex rel. Johnson 

v. Borden, Inc., 3 FMSHRC 926 (1981); Edwards v. Aaron Mining, Inc., 

3 FMSHRC 2630 (1981) - yet not protect miners who cannot safely perform 

a work assignment due to fatigue. 

Regarding respondent's argument that his claim of exhaustion is "too 

subjective" to be afforde.d protection, complainant contends that the belief 

underlying his work refusal was no more subjective than numerous other 

440 
beliefs that have been protected by the Commission, and, in fact, was 

not as dependent on subjective belief as the respondent alleges. In 

support of this argument, complainant cites MSHA ex rel. Pasula v. 

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

nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981), 

where the complainant refused to continue operating a continuous mining 

machine which he claimed gave him a headache, made his ears hurt, and 

made him nervous. While a noise standard, pursuant to the Act does 

govern permissible "dba" limits, the Commission found that the machine 

in question had not been in violation of the standard. Nonetheless, 

Pasula's work refusal due to his subjective head pain was granted 

protection. 

Complainant also cites the case of MSHA ex rel. Pratt v. River 

Hurricane Coal Co., 3 FMSHRC 2366 (1981), where a miner's refusal to 

extinguish a lead-acid battery fire in a scoop, based on his subjective 

belief that the batteries could explode, was deemed protected activity 

despite·the fact that the Judge found that the complainant's good faith 

fear of a battery explosion was unfounded. 

In response to the respondent's arguments at hearing that his claim 

of exhaustion must be based on "something concrete", and that he must 

show tha.t he was "confronted with certain facts or circumstances which 

give rise to an indication that there is a hazard" (Tr. 98, 100), 

complainant maintains that he was faced with a combination of circumstances 

which placed his safety in jeopardy, namely -- the number of hours he 

had already worked, how strenuously he had labored, the type of work he 

had performed, the type of overtime work he would have been required to 

perform, and the amount of work that he would have been required to do. 

Complainant submits that all of these critical factors are capable of 

objective, ascertainable proof, and that they were subject to examination 

by the respondent at hearing. However, complainant asserts that the 

respondept chose to argue its case on the basis of allegations rather 

than pr.oaf, and therefore its claim that his good faith work refusal is 

too subjective in nature should be rejected. 

Cemplainant cites the testimony of Mr. Cochran at pgs. 121-122 of 

the trial transcript in further support of his argument that company policy 

did not ·intend for miners to work excessively long hours on a pillar 

section. Complainant points to Mr. Cochran's testimony that when he explained 

the pillar-pulling plan to miners at company safety meetings prior to 

beginning work on a pillar section he never said anything about staying 

4 or 5 hours overtime. 

Comp-lainant submits that his case is not a "mixed motivation" case 

where ~espondent's actions against him were motivated both by his protected 

activity and also by any asserted separate unprotected activity. Complainant 

asserts that respondent's arguments at hearing that "an inference can 

be draw'.' that he shut his drill down and removed it from the working 

section' at the time of his work refusal (thus causing a "deliterious affect 

on production"), and that he also "attempted to disrupt the entire work 

force" should be rejected because the respondent introduced no probative 

evidence whatsoever to support either of these claims. 

441 
Although the complainant admits that he had removed his equipment 

from the work area and shut it down (Tr. 73), he points out that this took 

place at the completion of his regular shift when he had finished operating 

the equipment, and that he did nothing unusual or out of the ordinary 

with his equipment that night (Tr. 81-82, 105-106). He also points out 

that his testimony in this regard was confirmed by Bill Smith (Tr. 200), 

and that Eddie Miller admitted that he had ordered the entire crew out 

of the mine at the end of the regular shift (Tr. 318). Thus, complainant 

argues that he had no choice but to shut off his machine. 

With respect to any "inference" that the complainant may have conspired with the three other miners to disrupt the work force, complainant 

asserts that the respondent failed to present any evidence to support this 

allegation. And, while there was testimony that two of the discharged 

miners made some disparaging comments to company management or to the 

others who chose to work, complainant points out that there is absolutely 

no testimony or evidence that he was a party to this conduct. 

In conclusion, the complainant points to the testimony by Raymond 

Cochran and Eddie Miller that he was discharged for refusal to work 

(Tr. 140, 142, 322), and no other reasons were mentioned. In view of 

all of the circumstances presented in this case, complainant maintains 

that his case is not a· mixed motivation case, and that the only conduct 

in issue is whether his work refusal is protected activity under the Act. 

He concludes that he was discharged by the respondent on August 6, 1981, 

and denied reinstatement on August 11, 1981, because of his good faith 

refusal to work under conditions he reasonably believed threatened his 

safety. 

Respondent's Arguments 

In its post-hearing brief, respondent summarizes the testimony of 

all of the witnesses who testified in this case, and advances the 

proposition that in resolving this case, one must first determine the 

credibility of complainant's assertion that he refused overtime work 

because he was fatigued. Respondent notes that the complainant is a 26 

year old man who appears to be in good health and physical condition, and 

that under these circumstances respondent notes that it is not surprising 

that he did on various occasions work between seventy (70) and seventy-five 

(75) hours per week and that he did, on occasion, work two (2) consecutive 

shifts for a total of sixteen (16) hours continuous mining. Respondent 

asserts that during the week preceding the week in which he was fired, 

complainant had only worked forty (40) hours, and that during his final 

week of employment he worked four (4) days, including the date on which 

he was discharged. At the time of his termination, he had only worked 

twenty-eight and one half (28-1/2) hours during that particular week. Thus, 

respondent concludes that on August 6, 1981, the complainant had both the 

pjysical and mental ability to, as did his co-workers, work until 3:00 A.M., 

or, for that matter, complete the second shift. 

442 
Respondent states that had the complainant remained and worked a 

full shift overtime, he still would not have surpassed forty (40) hours 

during that given week and, accordingly, he would not have been entitled 

to overtime pay at the rate of one and one half (l-1/2) times regular 

pay. Respondent suggests that Johnny Jones, by his own testimony, 

second guessed the company and felt that it would not be unsafe to cease 

mining in that particular row of pillars and return to them on the next 

regularly scheduled work day, and that this must have been his primary 

motive in refusing overtime work. 

Respondent argues that an ultimatum such as was given to the four 

miners who were fired can invoke a strong response and a spirit of 

rebellion, and that this is especially true when an individual, as did 

the complainant, believed "rumors" that other miners who had previously 

refused to work overtime under threat of discharge, were able to retain 

their jobs. Respo.ndent argues further than in "all likelihood", the four 

miners fired on the night of August 6, 1981, were acting in concert since 

their actions are typified by the remarks made by Johnny Jones as he left 

the mine and that the profanity which he used was an attempt to arouse 

strong emotions within the other employees and to discourage them from 

remaining on the job. 

Respondent asserts that the complainant knew that requests for overtime 

work must be honored, and that from his first day of employment he had 

an employee's handbook which stated that a refusal to perform the assigned 

work would result in an immediate discharge. Respondent suggests that 

while in attendance at meetings with Raymond Cochran, complainant must 

have heard him state that employees would, on occasion, be required to 

remain and complete a row of pillars. 

Although respondent conceded that the complainant had no other problems 

with mine management, and that the parties are in agreement as to the reason 

that he was fired, respondent argues that his "work history also plays 

a part in the analysis of his claim". In support of this assertion, 

respondent states that although only 26 years of age, complainant has been 

employed by 6 different employers, the longest period of employment being 

for 2-1/2 years. 

Respondent asserts that its legitimate business interests in 

requiring its employees to work overtime is made clear by the testimony 

in this case, and that even the complainant's own witnesses acknowledge 

the necessity of completing a row of pillars once they are begun. Respondent 

concludes that when all of the facts are analyzed one readily concludes 

that the complainant was not so fatigued at the end .of his regular shift 

to work overtime; rather, he did not want to work overtime for staright 

pay, did not want to be "bossed" by mine management, and had heard of other 

employees disregarding a similar direct order and being permitted to remain 

in the respondent's employ. However, having refused to work and being 

terminated, respondent concludes that the complainant "fell upon this 

scheme for reacquiring the job abandoned by him". 

443 
Respondent argues further that, even assuming that the complainant 

was in fact too tired to continue with overtime work, the complaint 

must still fail because such an assertion involves a highly subjective 

state of facts known only to the complainant. Respondent asserts that 

rhe purpose of the Act "did not run to such highly subjective personal 

situations, but is intended to enlist the miners aid in enforcing the 

Act and to insure a safe work place within which the miner might function." 

Respondent concludes that the complainant has failed to show by a 

preponderance of the evidence that he refused to work the requested overtime hours because he was too tired, and that "it is obvious that this 

man was motivated by other reasons and only fell upon the guise of fatigue 

after he had lost his job". 

Findings and Conclusions 

The critical issue in this case is whether Complainant Eldridge's 

refusal to work beyond his normal work shift because he was "too tired" 

is protected by section 105(c) of the Act. Refusal to perform work is 

protected under section 105(c)(l) if it results from a good faith belief 

that the work involves safety hazards, and if the belief is a reasonable 

one. Secretary of Labor/Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786, 2 BNA MSHC 1001 (1980), rev'd on other grounds, sub nom Consolidation 

Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); S~et;;y of Labor/ 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 2 BNA MSHC 1213 

(1981); Bradley v. Belva Coal Co., 4 FMSHRC 982 (1982). Further, the reason 

for the refusal to work must be communicated to the mine operator. Secretary 

of Labor/Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126 (1982). 

In Pasula the Commission established in general terms the right of 

a miner to refuse work under the Act, but it did not attempt to define 

the specific contours of that right. The Fourth Circuit Court of Appeals 

which reviewed Pasula discussed in detail the right of a miner to refuse 

work, and agreed that such a right generally exists. The Court stated 

as follows at 663 F.2d 1216-1217, n. 6: 

Thus, although we need not address the extent 

of such a right, the statutory scheme, in conjunction 

with the legislative history of the 1977 Mine Act, 

supports a right to refuse work in the event that the 

miner possesses a reasonable, good faith belief that 

specific working conditions or practices threaten his 

safety or health. 

In several decisions following Pasula, the Commission further refined 

"work refusals" by miners based on certain claimed safety hazards. In 

MSHA ex rel. Thomas Robinette v. United Castle Coal Company, 3 FMSHRC 803, 

April 3, 1981, the Commission ruled that any work refusal by an employee 

on safety grounds must be bona fide and made in good faith. "Good faith" 

is interpreted as an "honest belief that a hazard exists", and acts of 

deception, fraud, lying, and deliberately causing a hazard are outside the 
"good faith" definition enunciated by the Connnission. In addition, the 

Commission.held that "good faith also implies an accompanying rule 

requiring validation of reasonable belief", but that "unreasonable, 

irrational or completely unfounded work refusals do not connnend themselves 

as candidates for statutory protection". 

In Robinette, the Commission, in fashioning a test for the application 

of a "good faith" work refusal, adopted a "reasonable belief" rule, 

which is explained as follows at 3 FMSHRC 812: 

More consistent with the Mine Act's purposes 

and legislative history is a simple requirement that 

the miner's honest perception be a reasonable one under 

the circumstances. Reasonableness can be established 

at the minimum through the miner's own testimony as to 

the conditions responded to. That testimony can be 

evaluated for its detail, inherent logic, and overall 

credibility. Nothing in this approach precludes the 

Secretary or miner from introducing corroborative physical, 

testimonial, or expert evidence. The operator may 

respond in kind. The judge's decision will be made on 

the basis of all the evidence. This standard does not 

require complicated rules of evidence in its application. 

We are confident that such an approach will encourage 

miners to act reasonably without unnecessarily inhibiting 

exercise of the right itself. 

* * * * * * * * * * * * 

In sum,we adopt a good faith and reasonableness 

rule that can be simply stated and applied: the miner 

must have a good faith, reasonable belief in a hazardous 

condition, and if the work refusal extends to affirmative 

self-help, the miner's reaction must be reasonable as well. 

In MSHA ex rel. Michael J. Dunmire and James Estle v. Northern Coal 

Company, 4 FMSHRC 126, February 5, 1982, the Commission defined further 

the scope of the right of a miner to refuse work under the Act. The 

case concerned two miners who refused to continue working because of 

certain perceived safety concerns. The company fired the miners for 

having "walked off their jobs", an action which the company "took as a 

quit on their part". The Connnission held that if the walk off was a 

protected refusal to work, the termination over it was unlawful; if it 

was not protected, the termination was legal. In discussing and further 

refining the refusal to work, the Connnission asserted that a statement 

of a health or safety complaint must be made by the complaining miner, 

and it adopted the following requirement in. this regard, at 4 FMSHRC 

133: 

445 
Where reasonably possible, a miner refusing work 

should ordinarily communicate, or at least attempt to 

communicate, to some representative of the operator his 

belief in the safety or health hazard at issue. "Reasonable possibility" may be lacking where, for example, 

a representative of the operator is not present, or 

exigent circumstances require swift reaction. We also 

have used the word, "ordinarily" in our formulation to 

indicate that even where such communication is reasonably 

possible, unusual circumstances -- such as futility --

may excuse a failure to communicate. If possible, the 

communication should ordinarily be made before the work 

refusal, but, depending on circumstances, may also be 

made reasonably soon after the refusal. (Emphasis added) 

The res judicata question 

In its Answer to the discrimination complaint, filed April 5, 1982, 

respondent stated, inter alia, that "the complainant was discharged from 

his job for improper actions and misconduct on the job, including, but 

not limited to, disobeying direct orders from his immediate supervisors". 

Respondent goes on to state that Mr. Eldridge alleged discrimination only 

after he was discharged and should be estopped from filing his discrimination 

complaint with this Commission. Respondent also asserted that a prior 

state unemployment insurance commission decision of February 4, 1982, 

which denied Mr. Eldridge's compensation claim is res judicata and constitutes 

a bar to the present discrimination complaint. Respondent does not elaborate 

further on this question in its brief, and at the hearing, the parties advised 

that Mr. Eldridge's appeal of his denial of unemployment benefits is pending 

in, a state court. 

Mr. Eldridge's state unemployment compensation claim was denied in 

a decision rendered on November 5, 1981, by a State of Kentucky referee 

who heard his case. His appeal of that decision was denied by the State 

Unemployment Insurance Commission in an Order entered February 4, 1982 

(copy attached to the respondent's Answer filed in the instant case). The 

referee found that Mr. Eldridge had voluntarily quit his employment without 

good cause attributable to that employment. The appeals commission however 

rejected the referee's conclusion of law in this regard, and its rationale 

for doing so is stated as follows in its Order: 

* * * *'Whether a separation from employment is 

a discharge or quitting is determined by which 

party's actions initiated the separation from the 

employment. If the employer initiates it, the separation is a discharge. If the worker does so, it is 

a quitting. In this case it is an indisputable fact 

that the employer initiated the separation. 

Misconduct has been defined as any act or omission by 

a worker which demonstrates a willful, wanton or 

reckless disregard for the legitimate business interests 

448 
of the employer. Insubordination is an act of mis-

~onduct. Insubordination consists of the unjustified 

refusal to comply with a reasonable request or order 

of a superior. The request that claimant work overtime 

in an effort to remove all coal possible from the pillars 

was both feasible and practical. Claimant, an experienced 

miner, admitted he was aware of the necessity of extracting 

the coal prior to a long week-end so that if the roof 

collapsed the coal would not be lost to the employer. 

He had no physical limitations, thus his refusal to work 

the overtime necessary to complete the task constituted 

a deliberate or willful disregard of the employer's 

legitimate business interests. Accordingly, such action 

is sufficient to warrant a finding of misconduct. 

* * * It is now held the claimant was discharged from 

his most recent employment for reasons of work connected 

misconduct. 

In the prior state proceeding, it appears that the initial decision 

denying his claim was based on a finding by the hearing officer that 

Mr. Eldridge had quit his job. On appeal, the state commission found 

that this was not the case. It found that Mr. Eldridge had been fired 

for misconduct (insubordination) for refusing to follow a legitimate 

management directive to work overtime, denied his claim because of work 

connected misconduct, and rejected the hearing officer's finding that he 

had quit his job. 

It does not appear from the record here that Mr. Eldridge raised any 

"safety concerns 11 before the state unemployment commission referee who 

heard his initial claim and rendered his decision on November 5, 1981. Nor 

is there anything to suggest that he raised this issue during his appeal 

of that decision which was finalized by the state board's order of 

February 4, 1982. MSHA's denial of his discrimination complaint was 

communicated to him on December 14, 1981, when he received a letter 

notifying him of this decision, and his complaint with the Commission 

was received on January 18, 1982. Although Mr. Eldridge's failure to 

raise the issue in the state proceeding lends some credence to respondent's 

assertion that his 11 safety concerns" were an afterthought, this question 

must be decided within the parameters of the Pasula and Robinette decisions. 

The facts on which a state agency denies one unemployment compensation 

claims are different from those which must be considered under the Act. 

If the issues and facts presented in the state proceeding are identical 

to those presented in cases considered under the Federal statute, the 

Commission has suggested that the doctrines of res adjucata and collateral 

est'oppel may be available, Frederick .G. BradleyV. Belva Coal Company, 

4 FMSHRC 982, .June 4, 1982, at pgs. 986-991). The Bradley case concerned 

a state proceeding before the West Virginia Coal Mine Safety Board of 

Appeals which considered the miner's claims of discrimination under a 

state coal mine safety law. Even so, the Commission affirmed Judge Broderick's 

·' 

4411 
ruling that no weight should be accorded the state decision of no 

discrimination, 3 FMSHRC 921, at pg. 921, and 4 FMSHRC 991. 

In the instant proceeding, the full transcript of Mr. Eldridge's 

hearing before the state referee and the referee's full decision are not 

in evidence. The parties used certain transcript portions and references 

for impeachment and credibility purposes, and it seems clear to me that 

the issues regarding Mr. Eldridge's "good faith", his "motivations", and 

the "reasonableness" of his work refusal must be decided on the basis of 

the Pasula and Robinette guidelines. Under the circumstances, respondent's 

assertions of res adjudicata and collateral estoppel are rejected and denied. 

The alleged "concerted action" and "interruption of production" 

Respondent's proposed finding VII that the four employees fired 

by the respondent on August 6, 1981, were acting in concert in the refusal 

to work the additional hours, and that they attempted to discourage, 

dissuade, and intimidate the remaining employees from returning into the 

mine is rejected as unsupported by any credible evidence or testimony. 

Although it may be true that Mr. John Jones may have cursed or made some 

disparaging remarks about mine management, and that someone may have 

referred to those miners who opted to go back to work as "chicken", 

and one man felt intimidated, there is absolutely no evidence that 

Mr. Eldridge was a party to any of this. 

There is no evidence to support the respondent's assertion that 

the four discharged miners acted in "concert" or engaged in any conspiracy 

to disrupt or intimidate the work force. It seems to me that if this 

were in fact the case, the respondent would have presented some credible 

evidence to support this at the hearing. In addition, since it is logical 

to assume that "conspiracy" type work stoppages and intimidation of the 

work force on the part of miners are matters more serious than work 

refusals, it seems strange to me that the respondent did not discharge 

the four miners in question for those reasons, rather than for their 

refusal to work the requested overtime, as it did in this case. 

Mr. Miller's speculation that the four discharged miners were 

acting in concert was based on his observations that "they rode together, 

and just stayed together, and just hung together". Mr. Eldridge's 

testimony that he did not car pool with any of the three discharged miners 

and drove to work alone was not rebutted by the respondent, and although 

Mr. Eldridge did state in his deposition that one of the discharged miners 

rode to work with him on the evening of the discharge, he also indicated 

that he left work alone. 

In its proposed finding VIII, the respondent asserts that Mr. Eldridge's 

refusal to continue working additional overtime hours made it necessary 

for management to cease all operations in the section, remove the miners 

to the outside, secure replacements for those who refused to stay, and return 

the force into the mine, all to the delay and additional expense of 

respondent and hindrance of the production of coal. 

448 
The record in this case reflects that Mr. Eldridge's refusal to 

work the extra hours came at the end of his regular work shift, and 

that he advised the section foreman shortly before the shift ended 

that he was too tired to continue working. When the section foreman said 

nothing further, Mr. Eldridge began to secure h.is equipment and again 

advised the foreman that he was too tired to continue working. Thus, 

Mr. Eldridge's work refusal came at the end of the work shift. The 

decision to take the entire crew out of the mine was made by mine management, 

and Mr. Miller conceded that since it was the end of the shift, and after 

section foreman Eli Smith advised him that some of the men were coming 

out of the mine, he instructed the foreman to bring them all out. 

The "overtime pay" issue 

During the course of the hearing, respondent's counsel suggested 

that Mr. Eldridge's motivation for refusing to stay over and work the 

additional hours was based on the fact that he would only be compensated 

straight time, rather than overtime. Since Mr. Eldridge had only put in 

approximately 32 hours at the close of his normal shift on Thursday, had 

he opted to stay and work as requested by mine management, he would only 

have been compensated with regular pay for the ensuing eight hours 

(Tr. 94·-96). 

Respondent's argument that Mr. Eldridge's refusal to stay and work 

was based on the fact that he knew he would only be compensated for 

straight time, and not at overtime rates, thus raising an inference that 

Mr. Eldridge's work refusal was based on monetary considerations. Mr. Eldridge 

denies that this was the case, and in fact asserted that he had no idea 

as to how many hours he had worked, and that the matter of compensation 

never entered his mind. 

The evidence establishes that during the period of the discharge, 

the mine was only operating on a four day week. Although it is true that 

the respondent's employee handbook states that the "work week" commences 

at 12:01 a.m. on Thursday, the handbook (exhibit R-1, pg. 5), also states 

the following: 

Most employees will work regularly scheduled shifts 

on Monday through Friday. A few employees may work on 

a regular work week of Tuesday through Saturday rather than 

~fonday through Friday. At times it may be necessary to 

work other than regularly scheduled hours in which case 

your supervisor will notify you as much in advance as 

possible so that you may plan accordingly. 

With regard to the payment of overtime pay, pg. 7 of the handbook states: 

Sun Fire will pay time-and-one-half for all hours worked 

over 40 in one week. * * * If the needs of the company 

449 
dictate, management may be forced to reschedule 

working hours or require overtime work. We will 

give you as much advance notice as possible. 

(Emphasis added) 

In response to an interrogatory served on the respondent by 

complainant's counsel for information as what period of time constituted 

a "work week" for the company, respondent's counsel simply referred to 

page 5 of the employee handbook, a copy of which had been given to the 

complainant. Complainant's further interrogatory as whether the company's 

"work week" was altered anytime during Mr. Eldridge's employment, including 

a request for the date(s) of any such change and any "daily sequence" which 

may have constituted the new "work week", was not answered. 

Respondent's handbook references to the work week and pay for overtime 

are somewhat confusing and lend themselves ~o different interpretations. 

While the term "work week" is defined as commencing on a Thursday, the 

handbook also indicates that work shifts may run from Monday through Friday, 

and that some employees may be required to work a regular work week 

of Tuesday through Saturday, rather than Monday through Friday. The 

provision dealing with overtime pay states that overtime will be paid for 

all hours worked over 40 in one week. Thus, one may conclude that employees 

are compensated for overtime work when they work over 40 hours during any 

of these combinations, and that if an employee's scheduled work runs from 

Monday through Friday, as was the case here, any hours over 40 during 

that time frame are compensable as overtime. 

Mr. Cochran testified that mine employees were only paid time and 

one-half pay for hours exceeding forty in number during any given work 

week (Tr. 138). Billy Smith, one of the miners who stayed, could not 

recall whether the men who stayed were paid any additionai hour overtime 

pay. He did confirm that many times when he worked overtime, he was 

paid overtime rates for any work over 40 hours, but that on the evening 

in question, the men who stayed would have been paid straight time because 

they had not at that point in time put in 40 hours. Roger Miller, another 

miner who stayed, could not recall whether he was paid straight time, 

nor could he recall how many hours he had already put in during the week 

in question. 

At hearing, the parties were in agreement that in general there has 

been no disputes or controversies between the miners and management over 

the question of working overtime, and that as far as counsel are concerned 

this case does not involve any issues concerning "enchantment or disenchantment 

singularly or collectively" with regard to overtime work (Tr. 104). 

Eddie Miller testified that company policy dictated that if an employee 

stayed and worked an extra hour on overtime, he was given an additional 

hour (Tr. 322). He also stated that he gave the crew who did stay and work 

overtime "an hour and a half" (Tr. 321). He later testified that the normal 

shift ended 9:45 p.m., and that the men who stayed and worked the overtime 

until 3:00 a.m., an additional five hours, were actually paid for six hours. 

400 
When asked whether the men are paid an extr.a hour for each additional 

hour of overtime, or whether they would be paid an extra hour for 15 

hours of overtime, he responded that they would be paid "maybe two" 

extra. 

Mr. Miller testified that the normal work shift ended at 9:45 p.m. 

He also indicated that he did not tell the men that they were being paid 

for an additional extra hour, and they were not aware of it (Tr. 339). 

He confirmed that the men who stayed beyond the normal eight hour shift 

were credited for working a total of 14 hours on the day in question 

(Tr. 341), but he did not say that they were compensated at the overtime 

pay rate. 

After careful review of the testimony and evidence adduced in this 

case I cannot specifically conclude that the crew who stayed and worked 

were in fact compensated at the actual overtime rate of pay for the extra 

time in question. A copy of the weekly time record (exhibit C-2), merely 

shows the total hours worked for two weeks. Respondent did not call the 

time keeper, Eli Smith to testify, nor did it produce any evidence as to 

precisely how much the men were in fact paid for the extra work. However, 

it would appear from all of the testimony that the men were paid at the 

straight time rate, with an extra "bonus" of an hour's pay as authorized 

by Eddie Miller. 

I find no credible testimony or evidence to support the inference 

that Mr. Eldridge's refusal to stay and work the overtime hours was based 

on his belief that he would only be compensate~ for straight time. Since 

the mine was on a "short week", and he had only worked less than 40 hours 

when asked to stay over, one could also speculate that he would normally 

want to stay and work the additional hours, thus giving him a total of 

40 hours, for his normal work week shift. In addition, the time record 

reflects that Mr. Eldridge worked a full 40 hour week the week before 

the discharge. The record also reflects that he was credited with 28 1/2 

hours of work through Wednesday, the day before his discharge, and that 

on Tuesday he worked 9 hours, one of which was on "overtime" when he 

stayed over at mine management's request. It seems illogical to me that 

a miner who otherwise earned pay for a full 40 hour week, when faced with 

a credit of only 28 1/2 hours at the end of his scheduled weekly shift would 

turn down an opportunity to earn additional hours of pay. Of course, 

it is altogether possible that in a non-union mine, management could 

manipulate the work week so as to avoid paying overtime rates, but neither 

party has advanced any arguments to support this speculation on my part, 

and they agreed that the question of overtime as such is not an issue. 

On the basis of the foregoing findings and conclusions, respondent's 

assertion that Mr. Eldridge refused to work overtime because he knew 

he would not be paid at the overtime pay rate is rejected. 

One of the crucial questions in this case is whether requiring a 

miner who claims he is "too tired" or "physically and mentally exhausted" 

451 
to continue working beyond his normal work shift is an unsafe or hazardous 

practice. Assuming that the answer to this question is in the affirmative, 

the next question is whether the individual's claims in this regard 

constituted a safety complaint which has been communicated to mine management. Leaving aside for the moment the question as to whether the facts 

of this case support Mr. Eldridge's claim that his asserted physical 

condition constituted a hazardous safety condition, I will first address 

the question as to whether the record supports a finding that Mr. Eldridge 

did in fact communicate his asserted safety concern to mine management 

before the final decision was made to discharge him. 

The facts in this case reflect that the mine in question is a nonunion mine, and the case does not involve a complaint made by a miner to 

MSHA. In any event, in a case decided under the 1969 Coal Act, Taylor 

Adkins and Fred Hunt v. Deskins Branch Coal Company, 2 FMSHRC 2803, 

October 23, 1980, the Commission ruled that "in a non-union mine without 

established procedures for reporting complaints, as was the situation 

here, a miner's notification to any mine official brings the miner within 

the protection of section llO(b)." Respondent's Employee Handbook, 

exhibit R-1, does contain information concerning employee grievance 

procedures. Page 18 of the handbook advises employees to "ask" and not 

"guess" i.f they have any doubts regarding safety matters. Page 21 

cautions employees that they must understand and abide by company, state, 

and federal safety rules, and that any questions in this regard are to 

be discussed with a supervisor. Respondent's position on this issue is 

that at the time Eddie Miller informed the crew that any miner who opted 

to pick up his check and leave the mine would no longer be needed by 

the company, Mr. Eldridge did not advise Mr. Miller that he was "too tired", 

and that only after coming to the realization that he was out of a job, 

Mr. Eldridge fell on a "scheme" to get his job back. My evaluation of 

the testimony and evidence on this question follows below. 

Mr. Eldridge testified that approximately 35 minutes before the end 

of his normal shift he advised his section foreman Eli Smith on at least 

two occasions that he was too tired to stay and continue pulling the row 

of pillars that the crew was working on. He told him this when he first 

learned that outside mine foreman Eddie Miller expected the men to stay and 

finish the pillar work, and he told him a second time after he had secured 

his equipment and was told that Mr. Miller wanted the crew out of the 

mine. Billy Smith, Eli's brother, and Mr. Eldridge's fellow crew-member, 

confirmed that he heard Mr. Eldridge tell Eli Smith that he was too tired 

to stay late and work the extra time. John Jones, one of the miners who 

was also discharged for refusing to stay over and work, testified that 

he too heard Mr. Eldridge tell Eli Smith that he was too tired to work, and 

that Mr. Eldridge also told Eddie Miller that he was too tired to work 

when they were in the lamphouse. 

Mr. Eldridge testified further that when he returned to the mine 

on the'Tuesday following his discharge for a meeting with company manager 

Bobby Morris and mine superintendent Raymond Cochran, he explained to 

452 
Mr. Morris that he had been too mentally and physically exhausted to 

keep on working after the conclusion of hiw work shift the previous 

Thursday evening, but that Mr. Morris nonetheless upheld his discharge. 

John Jones, who was also present at the meeting, confirmed that Mr. Eldridge 

told Mr. Morris that he was too tired to work anymore, and Mr. Cochran 

confirmed that during the meeting Mr. Eldridge had in fact explained to 

Mr. Morris that he had been too exhausted to continue working anymore 

at the end of his shift the previous Thursday evening. Mr. Cochran 

stated that he interpreted Mr. Eldridge's assertion that he was "too 

tired" to mean that he was physically unable to continue working. Mr. Cochran 

also indicated that during the Tuesday meeting he asked Mr. Morris to 

put the four discharged miners back to work, but that Mr. Morris refused 

and made some statement that if he did he "would lose control over them". 

Mr. Cochran also testified that section foreman Eli Smith told him that 

he saw no need to keep the crew over to pull pillars and that he tried 

to communicate this fact to Foreman Miller on Thursday. Mr. Cochran 

also testified that during the Tuesday meeting, Mr. Eldridge was the 

only one who offered any excuse for refusing to work the requested extra 

time, but that the other three discharged miners said nothing. 

Mr. Eldridge's testimony that he specifically told section foreman 

Eli Smith that he was too tired to continue working beyond his normal shift, 

is corroborated by the testimony of John Jones and Billy Smith. 

Eddie Miller's denials that Mr. Eldridge ever told him that he was too 

tired to work beyond his normal shift is in direct conflict with the 

corroborative testimony of John Jones, who confirmed that Mr. Eldridge 

told Eddie Miller that he was too tired, and that he did so in the 

lamp house. 

Neither Bobby Morris or Eli Smith testified in this case. Further, 

while there were other miners present in the lamphouse on Thursday evening 

when Eddie Miller delivered his ultimatum that those who picked up their 

checks no longer had a job, respondent presented no testimony from any 

of them to corroborate Eddie Miller's assertion that Mr. Eldridge said 

nothing. Although Billy Smith left the mine with the crew when they were 

ordered out by Eddie Miller, he testified that he was not with the group 

when Mr. Miller spoke to them (Tr. 198). Roger D. Miller, who was also 

present in the lamphouse when Mr. Miller spoke to the crew, said nothing 

about any statements by Mr. Eldridge and no testimony was elicited from 

him with regard to this question. 

In his deposition of May 7, 1982, and in response to questions from 

respondent's counsel, Mr. Eldridge stated that on August 6, 1981, he told 

Eli Smith and Eddie Miller that he was too tired to stay and work the 

requested overtime. He also indicated that August 6th was a regular payday. 

He also stated that after he picked up his check he left the mine in his 

own car", and that miner Joe Engle who rode with him to work that day, 

left with someone else. He confirmed that the next regularly scheduled 

work day for the mine would have been the following Monday. With regard 

453 
to the meeting held after his discharge, Mr. Eldridge stated in his 

deposition that he and the other discharged miners went to the mine 

on the following Monday and met with Raymond Cochran, but that Bobby Morris 

was not there. Mr. Cochran arranged for another meeting for either Tuesday 

and Wednesday, and at that meeting Mr. Morris was present, along with 

Mr. Cochran and the other discharged miners. Mr. Eldridge stated further 

that he told Mr. Morris and Mr. Cochran at that time "I was too mentally 

and physically exhuasted to continue to work another eight-hour shift 

that night. I had put in a hard shift and it wouldn't be safe for me 

or anybody else", and that "they still said they didn't need us". 

Eddie Miller denied that Mr. Eldridge ever told him that he had 

been too tired to continue working beyond his normal shift on Thursday 

evening. He denied that Mr. Eldridge advised him that he was too tired during 

the meeting with the men in the lamphouse, and he also denied ever meeting 

with any of the four discharged miners after they were fired on Thursday. 

He stated that once they picked up their checks in the lamphouse "that 

was the end of it" as far as he was concerned. Mr. Miller indicated 

that if Mr. Eldridge did state that he was "too tired" to continue working, 

he (Miller) did not hear it. Mr. Miller also indicated that if any 

miner ever came to him and advised him that he was too tired to stay on 

and continued pillar work he would "work something out" (Tr. 358). He 

also indicated that had Mr. Eldridge told him that "I would have worked 

something out so he could leave and go home and rest" (Tr. 358). He 

explained this answer by stating further that under these circumstances 

"if he tells me that he's absolutely too tired to stay and work, then 

he would just be accident prone, I guess", and that "it would be too 

dangerous for him to go back in" (Tr. 359). 

In response to an Order issued by Chief Judge Merlin on April 2, 1982, 

complainant submitted a copy of his original discrimination complaint 

filed with MSHA on October 2, 1981. Mr. Eldridge's signed statement of 

October 2, 1981, contains the following statements: 

I had already worked an eight-hour shift pulling pillars, 

and I told management that I was too exhausted to continue 

working. I was told that if I did not stay until all of 

the pillars were pulled that I need not return to work on 

Monday (my next scheduled work shift). I was fired by 

Eddie Miller, the Mine Foreman, when I refused to continue 

working. I subsequently met with Bobbie Morris, the Sunfire Manager on Tuesday, August 11th, regarding my discharge. 

I told Hr. Horris that I had been too mentally and physically 

exhausted and wouldn't have been alert enough to continue 

working, but Morris upheld the discharge. 

The credibility of the witnesses who testified in this proceeding 

is most critical in any determination by me as who is telling the truth 

and who is not. Mr. Miller testified that when he spoke to the men in 

the lamphouse after he ordered them out of the mine, he told them that 

it was necessary for them to stay and finish the row of pillars. While 
he could not recall his exact words, he stated that he told them that 

if they did not stay the roof "might get to swimming" and "we'd lose the 

coal." He also indicated that he told the men that if the coal were left 

it would be too dangerous when the day shift came in (Tr. 359). Later, 

when asked by me whether he recalled specifically advising the men in 

the lamphouse how long he wanted them to stay, he stated that he told 

them it shouldn't take over two or three hours to finish the pillar row 

in question (Tr. 361). 

Mr. Miller testified on direct examination that when he was underground on Thursday evening approximately 45 minutes before he ordered 

the crew out of the mine, he spoke with Eli Smith and informed him about 

the need to keep the crew over to finish the pillars. Although he 

conceded that Mr. Jones was p.resent in the section, he denied that he 

spoke with him or with anyone else. Mr. Miller testified that none of 

the four men who picked up their checks in the lamphouse and refused 

to stay made any statements to him as to why they refused to remain and 

go back to work, and he indicated that three of the men car pooled together 

in the same automobile, and that Mr. Eldridge was one of them (Tr. 363). 

However, on cross-examination, Mr. Miller confirmed that when he 

previously testified at the state unemployment compensation hearing, he 

testified under oath that at approximately 7:00 p.m., while in the 

section on Thursday evening, he personally informed John Jones about the 

need to stay over to finish the pillar work, and that he also spoke with 

all of the men. When asked to reconcile his inconsistent testimony, 

Mr. Miller indicated as follows at Tr. 333-335: 

Q. Now, I asked you question fourteen on page 

30 -- now you also answered Mr. Hall's question 

Mr. Hall was the hearing officer. You said that 

7:00 p.m. yo.u personally informed Mr. Jones that they 

might need to stay late to finish pulling pillars. 

You answered uh-huh. I asked if you were on the 

section at that time. You said, yes, uh-huh. And 

the next couple of questions don't pertain to anything. I'll just go ahead and read them for continuity. "Are you ordinarily on the section?" and 

you said "No". And I asked, "Aren't you ordinarily 

outside?" You said, "On the section where he worked, 

and the other section; all over the mines; inside and 

out." And I asked you, "you' re saying that on 

August 6th, that night you worked?" You said, "Yes." 

"You came in, who did you speak to.?" You said, "All 

of the men." Now you're· saying tonight you didn't 

speak to all of the men? 

A, Yes. 

Q, You just spoke to Eli Smith~ and Johnny Jones 

happened to be there? 

455 
A. Yes. I don't remember whether any of the 

other men were there at that time or not. 

Q. And I asked you, "What specifically did you 

tell Mr. Jones?" You said, "I told him that we 

were going to need to work late to finish the 

pillar row, which I shouldn't have had to tell 

them anyway; they knew it." And I asked you 

"What did Mr. Jones say at seven o'clock when 

you told him?" Answer, "He didn't say anything." 

"He didn't say a word?" Answer, "No, he didn't 

say he wasn't going to stay or --" Now at that 

time you very clearly were trying to tell the 

Hearing Officer that you had a personal conversation with Mr. Jones, weren't you? 

A. No. 

Q. I asked you "What specifically did you tell 

Mr. Jones?" You said, "I told him that we were 

going to need to work late -- I told him --" 

A. I don't get your question. 

JUDGE KOUTRAS: Do you remember talking to Mr. Jones 

on August 6th while you were underground, between 

seven and nine? Personally talking to Mr. Jones, 

and telling him that, you're going to have to stay 

and work? 

THE WITNESS: Not personally. Mr. Jones and Eli Smith 

were there at the time, and I was talking to both of 

them. 

JUDGE KOUTRAS: You were looking right at them? 

THE WITNESS: Yes. 

JUDGE KOUTRAS: What Mr. Oppegard is asking you is that 

some time ago when you testified at another hearing 

you specifically said that you looked Mr. Jones right 

in the eye and told him personally, you have to work, 

and Mr. Jones said nothing to you. What Mr. Oppegard 

is asking you now is, try to reconcile your statement. 

At that time you said you talked to Mr. Jones, and 

today you're saying you didn't talk to him. That's 

what he's trying to -·-

THE WITNESS: l talked to both of them. 

456 
JUDGE KOUTRAS: Did you talk at them or to them 

or what? 

THE WITNESS: To them. 

After careful consideration of all of the testimony adduced in 

this case, I conclude and find that Mr. Eldridge did in fact advise mine 

management both before and after his discharge that he was too physically 

and mentally exhausted to continue working on the pillar section beyond 

his normal work shift. His testimony that he advised section foreman 

Eli Smith and mine foreman Eddie Miller of this fact before his discharge 

is corroborated by other witnesses who I find to be credible. Mr. Eldridge's 

testimony that he also advised company manager Bobby Morris that he was 

too tired and exhausted is also corroborated by Mr. Cochran who was 

present at the subsequent Tuesday meeting. Further, Mr. Eldridge has 

consistently asserted that he advised all of these mine management personnel 

of the fact that he was too tired to continue on, both in his original 

complaint and in his pretrial deposition of May 7, 1982. 

There "is nothing in the record to show whether Mr. Eldridge's discharge 

was in any written form. There is nothing to indicate that the respondent 

served any written notice of discharge on any of the miners who were 

discharged for refusing to work. It would appear that foreman Eddie Miller 

advised the crew that if they did not work and picked up their checks, 

they were not needed any more. Company manager Bobby Morris, who I assume 

either made the initial decision to fire the men, or at least confirmed what 

Mr. Miller had told them, refused to reinstate them, and he did so after 

Mr. Eldridge offered his excuse for not staying to work the extra time, 

and after rejecting Mr. Cochran's suggestion that the men be put back to 

work. Under all of these circumstances, I conclude and find that Mr. Eldridge's 

reasons for refusing to work the requested extra time was not only 

communicated to mine management, but that mine management had ample opportunity 

to ponder the matter further. 

Respondent's proposed finding XII that the complainant "failed to 

fully discuss his predicament with mine management prior to being discharged" is rejected. On the· facts of this case, it seems clear to me 

that the discharge of Mr. Dickey was rather summary and abrupt, and 

Eddie Miller testified that when Mr. Eldridge decided to pick up his 

check in the lamphouse on Thursday evening and leave the mine, the matter 

was over as far as he was concerned. I have concluded that Mr. Eldridge 

communicated the fact that he was too tired to continue working to section 

foreman Eli Smith and mine foreman Eddie Miller before his discharge, and 

that he also communicated this fact to the then superintendent Cochran 

and mine manager Bobby Morris after he was informed that his services 

were no longer needed, all to no avail, 

I conclude from the testimony in this case that once mine management 

decided that the crew was to stay and work until the pillar was minai, 

and once foreman Eddie Miller advised them that they either worked or 

were n_o longer needed, anything further that Mr. Eldridge may have ~aid 

45"1 
would not have changed management's decision, and I do not believe 

Mr. Miller's assertion that had Mr. Eldridge told him he was too tired, 

he would have worked something out with him. 

Respondent's proposed finding IX that Mr. Eldridge did not, at any 

time, inform Mr. Miller that he was too tired to work the requested 

overtime hours is rejected. As discussed in my findings and conclusions 

on this issue, the preponderance of the evidence in this case is to the 

contrary, and I take note of the fact that respondent did not call Eli Smith 

or Bobby Morris to testify in this case. It seems to me that these two 

individuals would have been most critical witnesses to corroborate the 

respondent's claims that at no time prior to the discharge was mine 

management ever advised of Mr. Eldridge's excuse for not staying and 

working the requested overtime. 

The reasonableness of Mr. Eldridge's work refusal 

I am most cognizant of mine management's concern over the maintenance 

of discipline of its work force, and its concern for the setting of any 

precedent that would permit miners to "willy nilly" dictate to management 

over matters which are a legitimate business concern. As a matter of 

fact in a recent decision handed down by the Seventh Circuit in Miller v. 

FMSHRC, 687 F.2d 194, 196 (1982), the court stated: "We are unwilling to 

impress on a statute that does not explicitly entitle miners to stop 

work -- a construction that would make it impossible to maintain discipline 

in the mines". Considering that statement, I honestly believe that in 

this case respondent's mine manager Bobby Morris had the same thought 

in mind when he opted not to change his decision regarding Mr. Eldridge's 

refusal to work overtime. However, the distinction to be made is that 

under the Fasula and Robinette line of cases, a miner may, under certain 

circumstances, stop work and refuse to continue on if his refusal is 

reasonable and made in good faith. 

As indicated eralier, it seems clear from the Fasula, Robinette, and 

Dunmire and Estle cases, supra, that a miner may refuse to work if he 

has a good faith, reasonable belief regarding the hazardous nature of 

the safety condition in question. Good faith means an honest belief 

that a hazard exists. Robinette, 3 FMSHRC at 810. The miner's honest 

perceJ?tion must be a reasonable one under the circumstances, and his 

belief as to the existence of any perceived hazard need not be supported 

by objective ascertainable evidence. The reasonableness of the miner's 

belief as to the existence of any hazard can be established at a minimum 

through the miner's own testimony as to the condition responded to with 

the testimony evaluated for its detail, inherent logic and overall 

credibility. Corroborative ·physical testimonial or expert evidence may 

be introduced and the mine operator may respond in kind.. Robinette, 3 

1'TMSHRC at 812. Unreasonable., irrational, or completely unfounded work 

refusals are not within the purview of the statute. RC:ibinette, 3 FMSHRC 

at 81L Further, the Act's protection inay be .extended to those who 

posses the requisite belief even if the evidence ultimately shows the 

conditions were not as serious or hazardous ss believed, Consolidation 

Coal Company, supra, 663 F.2d at 1219; Dunmire, supra, 4 FMSHRC at 131. The 

reasonableness of the bel_ief must be judged as of the tine it was held. 

458 
During the hearing, complainant's counsel suggested that there are 

at least three factors which should be considered in any determination 

as to whether Mr. Eldridge's work refusal was reasonable; namely, (1) the 

amount of work he had done on his shift, (2) the type of work involved, 

and (3) the length of time he was expected to continue working beyond 

his normal shift (Tr. 312). Counsel also suggested that each miner's 

claims in this regard should be made on the basis of each individual's own 

circumstances, and it seems clear that in the case at hand there is no 

medical evidence to suggest that Mr. Eldridge's refusal to work was based 

on any illness or known physical impairment. Respondent, on the other 

hand, takes the position that a miner's assertion that he is "too tired" 

is too subjective and should never be permitted. 

The facts in this case do not suggest that Mr. Eldridge's safety 

concerns were directly related to any specific hazardous conditions which 

existed in the section at the time he was directed to stay and work the 

overtime in question. In other words, there is no evidence to establish 

that the roof conditions in the section were such as to constitute specific 

violations or infractions of any safety standards. Further, as observed 

by me at the hearing, at Tr. 102-103, Mr. Eldridge's reluctance to work 

the overtime was not because he found anything unsafe about the prevailing 

mine conditions or the area where he was expected to continue working, 

but was based on his own evaluation as to his mental and physical state 

at the time of the work refusal. 

I reject the respondent's arguments that before Mr. Eldridge may 

prevail, he must first establish a violation of some mandatory health 

or safety standard, or establish that the mine conditions were so hazardous 

that to require him to work would place him in jeopardy of life and limb. 

The question presented is whether Mr. Eldridge's claims that he was so 

mentally and physicall exhausted at the conclusion of his regular tour 

of duty reduced him to such a state physically and mentally, that to 

require him to continue on with the pillar work would place him in jeopardy. 

If the answer to this question is in the affirmative, then I believe it 

follows that his refusal to work was not unreasonable, and that his work 

refusal in these circumstances was a reasonable judgment on his part which 

is protected from any reprisals by mine management. 

The record in this case establishes the fact that Mr. Eldridge had 

never previously been involved in any management "disputes", had never 

been disciplined for missing work or failing to do his job, that he was 

considered to be a good worker, and that he had previously worked long 

and short hours of overtime when asked, and had never before the incident 

in question refused management's requests to work overtime. In these 

circumstances, I agree with his counsel's arguments that these factors 

are not the characteristics of a miner who shirks his duties. I also 

agree with respondeht's counsel's observations that Mr. Eldridge is a 

man of 26 years of age who appears to be in good health and physical 

condition. 

The testimony and evidence establishes that at the time of the work 

refusal, Mr. Eldridge was aware of mine management's concern that the 

459 
additional work required to finish the pillar work was needed so that 

the coal was not lost, and to insure that the area was timbered and rendered 

safe for the next crew which was scheduled to work the following Monday. 

Further, I conclude that management's concerns and interests in this 

regard were legitimate concerns. However, insofar as ~r. Eldridge is 

concerned, the critical question is whether or not the request to stay 

was "open ended", and whether the record supports a finding that mine 

management's request that he stay "until the work was finished", with 

no indication as to how long it would take, was a reasonable request to 

accomplish management's objectives. 

A pivotal question surrounding the reasonableness of Mr. Eldridge's 

work refsual, is the amount of time that he believed he was required 

to stay and finish the pillar work. The fact is that the miners who 

stayed worked until 3:00 a.m., or approximately five hours of overtime. 

It is easy for one to speculate after the fact that any given amount 

of time worked may or may not be reasonable. While it is true that 

Mr. Eldridge indicated he did not know whether his decision would have 

been any different had Mr. Miller specifically told him that the overtime 

work would not last more that three or four hours, the critical question 

is to decipher the actual circumstances which faced Mr. Eldridge at the 

time he made his decision that he was "too tired" to continue working. 

I am impressed by the testimony of former mine superintendent 

Cochran who indicated that if it were his decision to make, he would not 

have fired Mr. Eldridge. Although Mr. Cochran's testimony is somewhat 

contradictory in that he indicated that the decision to keep the crew 

over was not unreasonable and that the miners who did stay until 3:00 a.m., 

did not work an "unreasonable" amount of overtime, his testimony that 

mine policy did not require or call for a long period of overtime pulling 

pillars, that section foreman Eli Smith told him that he saw no need 

to keep the men beyond their normal shift and tried to communicate this 

to Eddie Miller, and that he (Cochran) tried to talk Bobby Morris out of 

his decision to fire Mr. Eldridge all remains unrebutted and unimpeached, 

and I find Mr. Cochran's testimony credible. Although Mr. Cochran is 

apparently no longer employed with the respondent, there is nothing in 

the record to suggest any animus on his part toward his former employer 

or that he colored his testimony in any way. 

Respondent's proposed finding II states that "Complainant was informed 

by his immediate supervisor, approximately thirty-five (35) minutes before 

the end of his shift of work, that he should remain on the job finishing 

pulling the row of pillars on which he was working at the end of the 

regularly scheduled shift. In proposed finding XIV, respondent asserts 

thatat the time Mr. Eldridge was requested to work overtime, "a reasonably 

prudent miner knew or should have know that an additional period of 

about three (3) hours would have been necessary to complete the indicated 

work". 

460 
to stay and work overtime until the pillar work was completed. Given 

this situation, I cannot conclude that Mr. Eldridge's explanation and 

evaluation of what work remained to be done, particularly when he was 

underground working on the pillar section in question, was unreasonable. 

Mr. Miller indicated that when the men who stayed left at 3:00 a.m., 

a cut of coal was left and was not taken. Further, Lester Caldwell 

testified that when he went back to the section the following Monday, 

August 10, the row of pillars worked on by Mr. Eldridge's crew the previous 

Thursday, August 6, was still standing and had not caved in. Given these 

circumstances, Mr. Eldridge's assertion as to what work remained to be done 

at the time of th~ work refusal is credible. 

Of the four men who decided not to stay and work the overtime, 

Mr. Eldridge was the only one who offered any excuse. Mr. Jones opted 

"to take his chances" and left after voicing his "displeasure" with mine 

management. The other two men picked up their pay checks and left without 

offering any explanation. The facts in this case do not suggest that 

Mr. Eldridge's asserted fatigue and exhaustion resulted from something 

that he had prior control over, or that he reported for work in such a 

state that his exhaustion can be attributable to nonwork related activities. 

Here, Mr. Eldridge worked and completed a full normal shift, at the conclusion 

of which he felt too tired and exhausted to continue working overtime 

until the rest of the pillar work was completed. Mine foreman Eddie Miller, 

the man who fired Mr. Eldridge, conceded that had Mr. Eldridge informed 

him that he was too tired to stay and work, he would have worked something 

out so he could leave the mine and go home and rest. Mr. Miller conceded 

further that under these circumstances, Hr. Eldridge would be "accident 

prone", and that "it would be too dangerous for him to go back in" (Tr. 359). 

On August 6, 1981, Mr. Eldridge was working on the second shift, 

and the scheduled work time for that shift began at approximately 2:00 p.m. 

and ended at 10:00 p.m. Retreat pillar mining was taking place at this 

time, and Mr. Eldridge testified that during the shift in question, he 

performed work operating the coal drill, shooting coal as a shot firer, 

helping the cutting machine operator with his cable, assisted in the hanging 

of ventilation curtain, and installed roof support timbers. Mr. Eldridge 

testified that he worked a full shift, and the only "down time" came at 

the end of the shift when a shuttle car broke down. Equipment repairman 

Billy Smith corroborated the fact that the car broke down at approximately 

9:00 p.m., and that he was expected to stay over and repair it. He also 

testified that the section continued to operate with another machine. 

John Jones confirmed that retreat pillar work entailed the continuous 

setting of roof support and breaker posts to protect against roof falls 

and rib rolls. He estimated that by the end of the normal work shift, 

he had made approximately 12 to 14 cuts of coal with his machine. Charles Cody, 

a miner who was called in from another section and who did stay to work 

the requested overtime, testified that if he were "dead tired" after working 

on a. nillar section, he would not want to continue working because he would 

461 
John Jones' refusal to stay was based on his assertion that there 

was no indication that the top would fall over the intervening weekend 

and he saw no reason for staying. He worked the entire regular shift 

with Mr. Eldridge, and in Mr. Jones' opinion it would have taken an 

additional shift or shift and a half to take out all of the remaining 

coal on the pillar (Tr. 230). 

Mine foreman Eddie Miller first testified that when he met with 

the crew in the lamphouse he informed them that it was necessary for 

them to stay and finish the row of pillars, and he explained that the 

company did not want to lose the coal in the event of a roof fall. Later, 

in response to my questions, Mr. Miller stated that he did inform the men 

that the additional pillar work would not take over two to three hours. 

Former mine superintendent Cochran testified that section foreman Eli Smith 

informed him that he saw no need to keep the ~rew over for the extra work, 

and that he tried to communicate this to Eddie Miller. 

It seems clear from the record in this case that mine foreman 

Eddie Miller was aware of the fact that some of the men did not want 

to stay beyond their normal work shift and that his awareness of this 

fact was communicated to the then general superintendent Raymond Cochran 

in terms of "a problem". Mr. Miller then ordered the entire crew out 

of the mine so that he could speak with them. Up to that point I can 

find no credible testimony to support a finding that the crew was ever 

told precisely how long they were expected to stay over and work. Mr. Miller 

testified that when he went into the mine after the men left there was 

no loose coal which had been cut that needed to be loaded out. He confirmed 

that the men who did stay to work left at 3:00 a.m., because the row of 

pillars had been mined and the breaker posts were set. However, he 

acknowledged that a cut of coal was left because the roof which had been 

cut and shot was "popping" and that "we felt that we had it in good shape, 

and we could go ahead and leave" (Tr. 360). He also indicated that when 

he was underground sometime between 7:00 and 7:30 p.m. on August 6, he 

remarked to section foreman Eli Smith that "it looks like we need to work 

overtime." 

Although there is a conflict in the testimony of the witnesses 

as to precisely what was said in terms of how long management expected 

the crew to stay and work, careful scrutiny of the entire record and 

all of the testimony in this case leads me to conclude that management 

made no real estimate as to how long the additional work would take and 

simply expected the crew to stay until the work was finished. While it 

is easy for anyone to speculate and offer an opinion "after the fact", 

it seems clear to me that at the time of the incident and prior to the 

work refusal in question no one actually physically inspected the area 

which remained to be worked to determine precisely how long it would take 

to finish the pillar work. 

I find that the preponderance of the credible testimony establishes 

that Mr. Miller did not tell Mr. Eldridge that he was required to stay 

and work any specified amount of time. I find that he was simply directed 

462 
not be alert and that this would not be safe. Although he did 

concede that he was tired at the time he was asked to stay over for the 

additional work but opted to stay anyway, I am convinced that he did so 

because he personally felt some obligation to stay. 

Former mine superintendent Cochran testified that company policy 

did not call for miners to work long hours pulling pillars because they 

would be "wore out" and "too fatigued". He also indicated that had he 

been advised that Mr. Eldridge was too tired to stay on and work he would 

have sent him home to rest and would have attempted to get someone else 

to replace him. MSHA Inspector Lowers testified that based on his experience, 

if he were a supervisor and a miner told him he was too exhausted to 

continue working, he would "send him outside". 

Apart from its conclusion that a claim of "too tired and exhausted" 

is too personally subjective to ever be believed, the only testimony 

presented by the respondent to refute Mr. Eldridge's claims in this 

regard is that of Eddie Miller. However, close scrutiny of his testimony 

reflects that he was not underground during the entire work shift in 

question, and he conceded that the reason he does not believe Mr. Eldridge's 

claims is that he "had no waying of knowing" whether he was too tired 

and exhausted to continue working. He then candidly conceded that had 

Mr. Eldridge informed him that he was too tired and exhausted to continue 

working he would have sent him home to rest because he would have been 

accident prone. Thus, I can only conclude from this testimony that 

Mr. Miller would have accepted Mr. Eldridge's claims of being too tired 

and exhausted, and his only reason for not doing so in this case is his 

assertion that Mr. Eldridge said nothing to him. 

Eddie Miller testified that Mr. Eldridge had been on the job for 

one full shift at the time the crew was directed to work overtime. 

Although he refuted the fact that "drilling and shooting" entailed two 

distinct jobs, he did not rebut Mr. Eldridge's claims that he did in 

fact do that work in addition to his other duties. Further, Mr. Miller 

confirmed that timbers were continuously being knocked down and reinstalled 

during the mining operation in question, that an "abundance" of timber 

roof support posts were installed on the pillar section, that many times 

extra posts are installed to insure the statility of the roof, and he 

did not rebut the fact that Mr. Eldridge was also engaged in this work 

in addition to his other duties. 

In addition to pointing out that Mr. Eldridge is a young man who 

had held six jobs, none of which lasted more than 2-1/2 years, the 

thrust of respondent's defense to Mr. Eldridge's claim that he was too 

tired and exhausted to continue working beyond his normal work shift is 

the suggestion that such claims should never be allowed because they are 

too personally subjective and lend themselves to abuse by miners who simply 

wish to make their own determination when they will work. Although I 

agree with the general proposition advanced by the respondent on this 

463 
question, on the facts and evidence presented in this case, I cannot 

conclude.that the respondent has rebutted Mr. Eldridge's prima facie 

showing that at the conclusion of his normal work shift he was too tired 

and exhausted to continue working on the pillar section until all of 

the pillar was extracted and the area secured for the next subsequent 

work shift. Further, I cannot conclude that the respondent has rebutted 

Mr. Eldridge's prima facie showing that given the circumstances and 

options facing him at the time of the work refusal, he acted unreasonably 

and in bad faith. As a matter of fact, as detailed earlier in this decision, 

the preponderance of the testimony adduced in this case supports Mr. Eldridge's 

assertion that requiring him to continue working when he was physically 

and mentally exhausted would have jeopardized his safety, and possibly the 

safety of other members of the crew who did stay and complete the work. 

Considering all of the circumstances surrounding Mr. Eldridge's 

discharge, there is a strong inference in this case that once the management 

decision was made to discharge anyone who did not stay to work the required 

overtime, management simply did not want to "back off" for fear of 

jeopardizing its disciplinary control over the work force. Since Mr. Eldridge 

was the only one of the group who advanced an excuse for not wishing to 

stay, and since management had a further opportunity to consider that 

excuse when it met with the men the following week after the discharges, 

one would think that management would consider that the circumstances 

surrounding Mr. Eldridge's work refusal were different from those concerning 

the other three miners who were fired. The testimony in this case suggests 

that at the time management met with the men after they were fired, it 

should have been evident that Mr. Eldridge's reasons for refusing to work 

the requested overtime was reasonable "protected activity", while the work 

refusals of the other miners were not. However, it would appear that 

management simply did not wish to make any exceptions, regardless of 

the reasons advanced by Mr. Eldridge for his work refusal. The result 

of that decision is that what may appear to be a legitimate business 

management decision to discharge three of the men who refused to work 

the requested overtime, Mr. Eldridge's discharge was contrary to the 

anti-discrimination provisions of the Mine Act, as interpreted by the 

applicable case law. · 

Conclusion 

Given all of the aforementioned circumstances, including my findings 

and conclusions on the issues discussed above, and based on a preponderance 

of all of the credible evidence and testimony of record in this case, I 

conclude and find that Mr. Eldridge has established that at the time he was 

directed to work the requested overtime to complete the pillar work in 

question he was physically and mentally exhausted. I further find and 

conclude that given those circumstances, his refusal to stay and complete 

the requested work was reasonable, and that his decision in this regard 

was made in good faith. I further find and conclude that requiring 

Mr. Eldridge to stay and work under the circumstances here presented 

constituted a safety hazard to himself as well other members of his crew, 
and that his refusal to stay in these circumstances was protected activity 

under section 105(c) of the Act. Accordingly, I conclude and find that 

Mr. Eldridge was unlawfully discriminated against and discharged by the 

respondent for engaging in activity protected under section 105(c) of 

the Act, and his complaint of discrimination IS SUSTAINED. 

Relief and Remedies 

As part of his discrimination complaint filed in this case, and 

incorporated by reference in his post-hearing brief, Mr. Eldridge requests 

me to give him the following relief and remedies: 

(1) Order that he be reinstated to his former position 

with full backpay plus interest; 

(2) Order that he be reinstated by Respondent at the 

same rate of pay, on the same shift, and with the 

same status and classification that he would now 

hold had he not been discriminatorily discharged; 

(3) Order that his seniority rights be adjusted to 

reflect his work time lost due to Respondent's 

discriminatory discharge; 

(4) Order that all references to his illegal discharge 

by Respondent be expunged from his personnel file; 

(5) Order that Respondent reimburse him for all expenses 

incurred by him in the institution and prosecution 

of this proceeding; 

(6) Order that he be compensated by Respondent for all 

medical expenses incurred by him and his family 

since the date of his discha~ge, which would have 

been covered by his medical insurance; 

(7) Order that he be awarded reasonable attorney's 

fees; and 

(8) Order such other relief as the Court may deem just 

and proper. 

Discussion of Remedies 

Section 105(c)(3) of the Act empowers the Commission to remedy 

discrimination by ---

* * * granting such relief as it deems appropriate, 

including, but not limited to, an order requiring 

the rehiring or reinstatement of the miner to his 

former position with back pay and interest or such 

remedy as may be appropriate. 

Whenever an order is issued sustaining the complainant's 

charges under this subsection, a sum equal to the aggregate 

465 
amount of all costs and expenses (including attorney's 

fees) as determined by the Commission to have been 

reasonably incurred by the miner, applicant for employment or representative of miners for, or in connection 

with, the institution and prosecution of such proceedings 

shall be assessed the person committing such violation. 

The general subject of the Mine Act's remedies for discrimination 

are discussed in detail by the Commission in its Northern Coal Company 

and Belva Coal Company decisions, 4 FMSHRC 126 and 982 (1982), and the 

parties' attention is invited to those decisions. 

During the hearing in this matter, the parties stipulated as to 

certain matters concerning Mr. Eldridge's employment status (see pg. 2 

of this decision). In addition, Mr. Eldridge testified as to other employments 

held by him, as well as his efforts to seek employment since his discharge 

by the respondent on August 6, 1981 (Tr. 60-61). He also alluded generally 

to certain medical and dental expens~s incurred by his family during his 

period of unemployment (Tr. 62). However, the parties have not had an 

opportunity to file, nor have tpey filed, any detailed documentation 

with respect to the question of the compensation due Mr. Eldridge in the 

event he prevailed in this case, In this regard, it seems clear to me 

that pursuant to the terms of sectioμ 105(c) of the Act, as well as the 

case law on this subject, that Mr. Eldridge is entitled to the aforementioned 

itemized relief which he has requested. 

ORJ)ER 

1. Respondent IS ORDERED to ~einstate Mr. Eldridge to his former 

position with full backpay plus interest, from August 6, 1981, to the date 

of his reinstatement, with all of his seniority rights intact as noted 

in requested relief No. 3 above, at the same rate of pay, on the same shift, 

and with the same status and classification that he would now hold had 

he not been discharged. 

2. Respondent IS ORDERED to compensate Mr. Eldridge for all legitimate 

medical expenses incurred by him since the date of his discharge, which 

would have been covered by any employee medical insurance carried by the 

respondent for his or his family's benefit, reimbursement or coverage 

of which would have been afforded him had he not been discharged. 

3. Respondent IS ORDERED to expunge from Mr. Eldridge's personnel 

records and files any reference to the discharge of August 6, 1981. 

4. Respondent IS ORDERED to compensate Mr. Eldridge for any reasonable· 

personal expenses incurred by him in the institution and prosecution of 

his discrimination complaint. 

5. Respondent IS ORDERED to reimburse Mr. Eldridge for all reasonable 

attorney's fees incurred by him as a result of his institution and 

prosecution of his discrimination complaint. 

466 
IT IS FURTHER ORDERED that counsel confer with each other with 

respect to. the amount of back pay and other compensation due under the 

above order, including the amount of any claimed costs and attorney's 

fees, and any agreements, stipulations, and/or settlements in this regard 

are to be filed with me in writing within fifteen (15) days of the receipt 

of this decision. If counsel cannot agree, they are to notify me of this 

in writing within the 15 day period. In the event of any disagreements, 

the parties are further directed to state their respective positions on 

those compensation issues where they cannot agree, and they shall submit 

their separate proposals, with documentation and supporting arguments 

in writing within twenty five (25) of the receipt of this decision. For 

purposes of fixing the compensation due Mr. Eldridge, including the awarding 

of any attorney fees and other costs, I retain jurisdiction of this matter. 

Distribution: 

J. L. Roark, Esq., Craft, Barret & Haynes, P.O. Drawer 1017, Hazard, 

KY 41701 (Certified Mail) 

Tony Oppegard, Esq., Appalachian Research and Defense Fund of Kentucky, 

Inc., P.O. Box 360, Hazard, KY 41701 (Certified Mail) 

467 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

t1AR 11 1983 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, 

DOCKET NO. WEST 80-479 

v. 

ARCH MINERAL CORPORATION, 

Respondent. 

~~~~~~~~~~~~~~~~-) 

Appearances: 

Katherine Vigil, Esq., Office of 

Henry C. Mahlman, Associate Regional Solicitor 

United States Department of Labor 

Denver, Colorado, 

for the Petitioner 

Brent L. Motchan, Esq. 

Arch Mineral Corporation 

St. Louis, Missouri, 

for the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, (MSHA), charges respondent, Arch Mineral Corporation, with 

violating Title 30, Code of Federal Regulations, Section 77.1710(i), J:../ 

a regulation adopted under the Federal Mine Safety and Health Act, 

30 u.s.c. 801 ~ ~· 

1/ The cited regulation provides as follows: 

§ 77.1710 Protective clothing; requirements. 

Each employee working in a surf ace coal mine or in the surface work 

areas of an underground coal mine shall be required to wear protective 

clothing and devices as indicated below: 

(i) Seatbelts in a vehicle where there is a danger of overturning and 

where roll protection is provided. 

468 
After notice to the parties a hearing on the merits was held in 

Laramie, Wyoming. 

The parties filed post trial briefs. 

ISSUES 

The threshold issue is whether the MSHA inspector acquired sufficient 

information to justify the issuance of the citation. 

An additional issue is whether an operator is relieved from liability 

for a violation of the seat belt regulation when he shows that his policy 

"required" the use of such seat belts. 

STIPULATION 

The parties stipulated that this mine produces annually 2,719,890 

production tons of coal of respondent's total annual production of 

8,719,876 tons. In the prior 24 months no violations of this regulation 

have been assessed against respondent. Finally, respondent's ability to 

remain in business will not be impaired by payment of the proposed penalty 

(Tr. 6, 7). 

SECRETARY'S EVIDENCE 

John Thompson, a federal coal mine inspector experienced in mining, 

inspected the Seminoe No. 1 mine on April 21, 1980 (Tr. 19) 

Close to the entrance ramp, on a coal bench, a D9 Caterpillar 

bulldozer appeared in a nearly upset condition. It was tilted at a 35 to 

40 per cent angle (Tr. 19, 20, 29, 30). The dozer had been working the 

coal bench when the outer edge of the bench collapsed (Tr. 20). One 24 

inch track was on the bench and one was below it (Tr. 20-22, P 1). The 

dozer, equipped with an enclosed cab, had roll-over protection (Tr. 30). 

Inspector Thompson didn't see the dozer in operation but the engine 

was warm (Tr. 23). He spoke to the operator who said he hadn't been 

wearing the seat belt (Tr. 30). The inspector, after viewing the seat 

belt, concluded the belts weren't being used. They were under the seat, 

had an appearance of non-use, and had dust and hand prints on them 

(Tr. 30-31, 43, 44). 

The dozer was in an area where equipment gets dusty (Tr. 44). 

469 
The roll-over structure protects the dozer operator. The seat belts 

also prevent' the operator from being thrown out of the cab of the 70,000 

pound vehicle (Tr. 31). 

The inspector was aware of accidents involving similarly equipped 

vehicles (Tr. 32-35). 

RESPONDENT'S EVIDENCE 

Steve Edwards and James Baxley, experienced in safety, oversee 

respondent's compliance with MSHA regulations (Tr. 61-63). 

Respondent's written rules provide that "seat belts must be worn in 

vehicles where roll-over protection is provided (Tr. 64, R 1 on page 6). 

Respondent's own enforcement procedure includes progressive penalties for 

violations (Tr. 65). Respondent's safety rules are distributed to workers. 

This included Ken Braden, the bulldozer operator (Tr. 67, 68, Rl, R2). 

Respondent's previous miner training for operator Braden was completed 

July 27, 1979. The training dealt with seat belts as well as their 

importance and repair (Tr. 69-71). Slides dealt with roll-over accidents 

(Tr 71). 

Braden also received new task training which was completed on 

April 21, 1980 (Tr. 72-75, R3, R4). The training for a scraper operator, 

approved by MSHA, covers seat belts (Tr. 74-76, R 4). 

Macklin R. Miller, the reclamation foreman, trained Braden (Tr, 78, 

95-96). 

Company policy is to issue its own citation if a worker receives an 

MSHA citation (Tr. 99, 100, R6). Braden, due to the policy, received a 

citation from respondent's safety director James Baxley (Tr. 101, R6). 

Company citations remain in a worker's file for a year after they are 

issued, They are then removed (Tr. 100). 

Some 18 to 20 supervisors, which would include pit and reclamation 

foremen, company safety inspectors, and upper level mine management may 

issue citations (Tr. 103-104). 

Baxley asked Braden if he was wearing his seat belt and he replied 

affirmatively. But when he was asked a second time he said he wasn't 

wearing the belt or something to that effect (Tr. 106, 107). 

470 
DISCUSSION 

The evidence, as noted herein, is uncontroverted. 

establishes the events that occurred on the day of the 

Respondent counters with its safety program consisting 

training, and enforcement relating to seat belts. 

The Secretary 

inspection. 

of education, 

The threshold issue is whether the inspector may issue a citation 

alleging a violation of § 77.1710(i) relying on the facts he observed on 

this particular day. 

Section 104(a) of the Act, 30 U.S.C. 814(a), provides the Secretary 

may issue a citation upon inspection or investigation if "he believes that 

an operator ••. has violated this Act, or any mandatory health or safety 

standard •••• " The legislative history dealing with this portion of the 

Act does not address this point. Legislative History of the Federal Mine 

Safety and Health Act of 1977, 95th Congress, 2nd Session, 618. But, in 

considering the remedial purposes of the Act, I conclude that the belief of 

the Secretary does not necessarily require the Secretary's representative 

to observe the operative fact of the violation to issue a citation. In 

other words, as in this factual setting, he is not required to observe the 

driver sans seatbelt in the seat on the dozer. It is true that the 

inspector did not see that occur, but he may rely on other circumstances. 

To hold otherwise would reduce mine safety to a game akin to hide and seek. 

The Act does not countenance such a charade. 

Here the inspector observed the dozer at a tilt, its motor warm, the 

seat belt under the seat, the seat belt dusty. He talked to Braden, the 

operator. The operator admitted he hadn't been wearing the belt (Tr. 30). 

The totality of these facts are sufficient to establish the belief of the 

Secretary that a violation occurred. 

In support of its position that an inspector must see the actual 

operative event establishing a violation, respondent cites these cases: 

Pennsylvania Glass Sand Corporation, 1 FMSHRC 1191 (1979) (Koutras, J); 

Eastern Associated Coal Corp., MORG 73-336 (1974) and Burgess Mining and 

Construction Corp., BARB 78-91-P (Cook, J). 

At the outset I note that all of the above cases are unreviewed 

decisions of Connnission Judges. They are not binding on other Judges, 

Conunission Rule 29 C.F.R. 2700.73. But a careful reading of such cases 

indicates they are not factually controlling. 

In Pennsylvania Glass Judge Koutras rejected MSHA's position which 

"appears to be that any time anyone advises an inspector of some past 

condition or practice outside of the inspector's own personal knowredge or 

observations, the inspector must issue a citation" (Emphasis added), 

1 FMSHRC at 1210. In the instant case the inspector made personal 

observations as described above. These observations and conversations 

establish a prima facie case for a violation of the regulation, Cf. 

Pennsylvania Glass at 1212. ~-

471 
In Eastern Associated Coal Corporation Judge Merlin vacated a withdrawal order for the alleged violation of 30 C.F.R. 75.400-2. That case 

is not factually relevant. 

In Burgess Mining Judge Cook refused to sustain a violation based 

solely on the hearsay statements of a "truck driver" and a "truck foreman". 

Judge Cook noted MSHA could have subpoenaed the persons who made the 

statements or "the inspector could have personally checked the brakes." 

(Slip op. at 6) • 

In the cited cases relied on by respondent, the inspector did not 

observe the violation nor did he acquire any probative circumstantial 

evidence indicating that a violation existed. In this case, the facts 

observed by Inspector Thompson justify his belief that a violation 

occurred. It accordingly follows that the citation was legally issued. 

The secondary issue on this case concerns the construction of 

30 C.F.R. 77.1710. The central focus of the case now becomes whether the 

coal operator "required" the use of seat belts rather than whether the 

dozer operator in fact used the seat belt. Respondent, in its post trial 

brief, urges that the regulation should be constructed as it was in North 

American Coal Company, 3 IBMA 93 (1974). 

The gist of the cited case is that when the regulation mandates that 

seat belts "shall be required" an operator is in compliance if it has a 

safety system designated to assure that all reasonable efforts are employed 

to insure that miners wear such "required" protective equipment and that 

such "requirement" is enforced with due diligence. 

The Secretary's post trial brief states that a case factually similar 

to North American is now pending on review before the Commission in 

Southwestern Illinois Coal Corp., 3 FMSHRC 871 (1981), (Koutras, J). 

But, the Secretary correctly observes that the Commission's disposition 

of Southwestern Illinois may or may not affect the instant case. However, 

this Judge is obliged to follow the doctrine expressed in North American as 

binding precedent. New Jersey Pulverising Company, 2 FMSHRC 1686 (1980). 

The Secretary may have anticipated the foregoing ruling because 

he states that even by North American standards, no defense has been 

established. He argues that respondent has shown little more than a general 

safety program. In short, the Secretary asserts that neither respondent's 

safety program nor its enforcement procedures constitute the kind of 

thorough and comprehensive program relied on by the Board in North 

American. The Secr~tary characterizes the program in North American as 

one designed to eliminate a particular hazard through constant reminders 

to employees. Respondent, he argues, has no such comparable program 

regularly emphasizing to the employees the need to wear seat belts in 

certain vehicles (Brief at 6-7). 

472 
I disagree. Respondent educates, trains, and enforces. 

Concerning education: It's safety handbook is distributed to its 

workers. The handbook provides, in part, that: 

Seat belts must be worn where 

rollover protection is provided 

(Tr. 64,67, R 1 at page 11) 

A sticker entitled "pre-shift examination", (yellow in color and measuring 

3 inches by 6 1/2 inches), refers to "seat belt" (Tr. 79, 80, R 4A). This 

exhibit was furnished with a training packet (Tr. 79). 

Concerning training: In 1979 respondent used a personal protection 

module dealing with the importance of seat belts. Braden attended the 

session (Tr. 71, 87). 

In January 1979 a "safety check list" memorandum was issued to the 

miners and the name of Ken Braden appears on the exhibit (RS). The three 

page memorandum states, in part: 

BE SURE TO -

1.-

e) Seatbelts - must useAn MSHA form indicates Braden received miner training in 1979. He 

completed the training July 27, 1979 (R2, MSHA form 5000-23). 

Braden also received the new task training course from Macklin Miller. 

He completed the training on April 21, 1980, which happened to be the day 

of this inspection (Tr. 73, 78, R3, MSHA certificate of training form 

#5000-23). The MSHA approved training course includes seat belt training 

(Tr. 7 5 , 7 6) • 

Concerning enforcement: Workers have been disciplined for violating 

regulations in the company handbook (Tr. 88). It is company policy to 

issue its own citation when a worker receives an MSHA citation. Braden 

received a citation at the date and time of the MSHA citation. The MSHA 

citation indicates it was issued at 1750. This 24 hour clock is equivalent 

to the time on the company's citation of 5:50 p.m. on the same date (Tr. 

99, Citation, R6). 

The foregoing uncontroverted evidence places respondent within the 

doctrine expressed in North American. In sum, respondent has avoided 

liability under the regulation notwithstanding the fact that a prima facie 

case for the violation of 30 C.F.R. 77.1710(i) exists. 

473 
Based on the foregoing finding of facts and conclusions of law, I 

enter the following: 

ORDER 

Citation 828398 and all proposed penalties therefor are vacated. 

Distribution: 

Katherine Vigil, Esq., Office of the Solicitor 

United States Department of Labor 

1585 Federal Building, 1961 Stout Street 

Denver, Colorado 80294 

Brent L. Motchan, Esq. 

Arch Mineral Corporation 

500 N. Broadway, Suite 1800 

St. Louis, Missouri 63102 

474 

Law Judge 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) MAR 11 l~ SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALtH ADMINISTRATION (MSHA), ) 

) CIVIL PENALTY PROCEEDING 

Petitioner, ) 

) 

v. ) 

) 

ARCH MINERAL CORPORATION, ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~-

Appearances: 

Katherine Vigil, Esq., Office of 

DOCKET NO. WEST 81-205 

Henry C. Mahlman, Associate Regional Solicitor 

United States Department of Labor 

Denver, Colorado 

for the Petitioner 

Brent L. Motchan, Esq. 

Arch Mineral Corporation 

St. Louis, Missouri 

for the Respondent 

Before: Judge John J. Morris 

DECISION 

The Secretary of Labor, on behalf of the Mine Safety and Health 

Administration, (MSHA), charges respondent, Arch Mineral Company, with 

475 
violating Title 30, Code of Federal Regulations, Section 77.1707(b), ];_/ 

a regulation adopted under the Federal Mine Safety and Health Act, 

30 U.S.C. 801, ~ seq. 

After notice to the parties a hearing on the merits was held in 

Laramie, Wyoming. 

ISSUES 

The issues are whether respondent violated the regulation, and, if so, 

what penalty is appropriate. 

1/ § 77.1707 First aid equipment; location; minimum requirements. 

(a) Each operator of a surface coal mine shall maintain a supply 

of the first aid equipment set forth in paragraph (b) of this 

section at or near each working place where coal is being mined, 

at each preparation plant and at shops and other surface installation where ten or more persons are regularly employed. 

(b) The first aid equipment required to be maintained under 

the provisions of paragraph (a) of this section shall include 

at least the following: 

(1) One stretcher; 

(2) One broken-back board (if. a splint-stretcher combination 

is used it will satisfy the requirements of both subparagraphs (1) of this paragraph and this subparagraph (2); 

(3) Twenty-four triangular bandages (15 if a splint-stretcher 

combination is used); 

(4) Eight 4-inch bandage compresses; 

(5) Eight 2-inch bandage compresses; 

(6) Twelve 1-inch adhesive compresses; 

(7) An approved burn remedy; 

(8) Two cloth blankets; 

(9) One rubber blanket or equivalent substitute; 

(10) Two tourniquets; 

(11) One 1-ounce bottle or aromatic spirits of ammonia or 

1 dozen ammonia ampules; and, 

(12) The necessary complements of arm and leg splints or two 

each inflatable plastic arm and leg splints. 

(c) All first aid supplies required to be maintained under the 

provisions of paragraphs (a) and (b) of this section shall be 

stored in suitable, sanitary, dust tight, moisture proof 

containers and such supplies shall be accessible to the miners. 
STIPULATION 

The parties stipulated that this mine annually produces 2,719,890 

production tons of coal of respondent's total annual production of 

8,719,876 tons (Tr. 3). In the prior 24 months no violations have been 

assessed against respondent involving this regulation. Finally, 

respondent's ability to remain in business will not be impaired by payment 

of the proposed penalty (Tr. 3). 

SECRETARY'S EVIDENCE 

Michael S. Horbatko, a federal coal mine inspector, experienced in 

mining, conducted an AAA inspection of respondent's Seminoe No. 2 Mine on 

November 18, 1980 (Tr. 6-9). 

The inspector was on the access ramp to the #78 open pit. 

measures 500 yards in length by 100 yards wide. It is 100 feet 

9, 12). A front end loader was loading coal on a truck from an 

coal seam (Tr. 14-15). 

The pit 

deep (Tr. 

exposed 

On the haul road from No. 78 pit back to the mine office, respondent's 

safety director identified a box as a first aid station (Tr. 10). The box 

was missing 12 one inch adhesive bandages as well as a rubber blanket. The 

bandages are used for minor injuries and the blanket protects against shock 

( Tr • 11 , 1 2 ) • 

In addition to the dragline there were haul trucks and a coal drill in 

the pit (Tr. 15). The dragline is 90 feet above the pit bottom some 

200 yards from the aid station (Tr. 16). The inspector found no violations 

in the first aid kit located on the dragline (Tr. 20). 

The area around the first aid station was not a preparation plant or a 

shop. Further, it was not an installation where 10 or more people were 

regularly employed (Tr. 22). 

RESPONDENT'S EVIDENCE 

Doug Hunter, safety director at the No. 2 Seminoe Mine, is a person 

experienced in mining (Tr. 27-29). 

In this pit at the time of the inspection was a 752 B machine, pieces 

of equipment, a dragline, a tractor, and a 45 R drill (Tr. 29-30). 

Respondent maintains a complete first aid station on all draglines as 

well as on the 752 B machine (Tr. 31). They contain all the supplies 

listed in § 77.1707(b). The drill has a standard first aid kit for 16 

people (Tr. 31). The foremen also carry first aid kits in their pickup 

trucks (Tr. 31). A fully equipped ambulance is kept at the main office, 

some eight miles away (Tr. 32, 39). 
The safety director replaces the supplies in the first aid kit when he 

learns of a deficiency by being informed or upon observing it during 

inspections (Tr. 39). 

DISCUSSION 

No post trial briefs were filed but the Secretary in his closing 

argument asserted that the fact of the violation is unrefuted (Tr. 46-47). 

On the other hand respondent maintains this first a.id box was placed at the 

site for its rescue teams and not to comply with federal regulations (Tr. 

47-48). 

In Golden R. Coal Company, 2 FMSHRC 446, (1980), Commission Judge 

Edwin S. Bernstein criticised this standard as one "drafted in an ambiguous 

and confusing manner", 2 FMSHRC at 448. This same confusing standard 

remains in effect three years later. 

However, it is unnecessary to rule on the ambiguity of the regulation 

in this case because I credit respondent's evidence that there were 

complete first aid stations on all of the dragline and the 752 B machines. 

These first aid stations contain all of the supplies listed in§ 77.1707(b) 

(Tr. 31). 

The inspector confirms that he saw first aid equipment on the dragline 

and there were no violations regarding such equipment (Tr. 20). 

In this circumstance respondent was maintaining first aid supplies 

within the mandate of the regulation. 

Based on the foregoing findings of fact and conclusions of law, I 

enter the following: 

ORDER 

Citation 1013751 and all proposed penalties therefor are vacated. 

Distribution: 

Katherine Vigil, Esq., Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

Brent L. Motchan, Esq., Arch Mineral Corporation 

500 North Broadway, Suite 1800 

St. Louis, Missouri 63102 

478 
FEDERAL MiNE SAFETY AND HEALTH REVIEW <:OMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 14 1983 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

DECISION 

Docket No. LAKE 80-142 

A/O No. 33-02308-03050 

.Raccoon No. 3 Mine 

After remand from the Court of Appeals and the Commission, 

this matter is before me on the parties' waiver of hearing apd 

cross motions for summary decision. 1/ The dispositive 

issue is narrow. The operator claims that because the Court 

of Appeals decision was "clearly erroneous" I have jurisdiction 

and authority to consider de novo the question of law decided 

adversely to the mining industry in UMW v. FMSHRC, 671 F.2d 

615 (D.C. Cir.), cert. denied, U.S. , October 12, 1982. 

The Secretary and the Union intervenor contend that "law of the ~~se'' principles preclude reconsideration of the question 

adjudicated by the Court of Appeals. I agree. 

Applicable Principle 

Law of the case principles are designed to maintain 

consistency and avoid reconsideration of matters once decided 

during the course of a single continuing lawsuit. They are 

based on the desire to protect both the judiciary and the 

parties "against the burdens of repeated reargument by 

indefatigable diehards." Wright-Miller-Cooper, Federal 

Practice and Procedure § 4478. 

1/ The chronology of events leading to remand of the matter 

to the original trial judge, his recusal, and reassignment 

of the matter to this judge is set forth in the parties 

briefs and the record after remand. 

479 
Although a common label is used, at least four distinct 

sets of circumstances are embraced in "law of the case 

principles." Id. The only one with which we are concerned 

is the duty or-a trial tribunal, including an administrative 

agency, to honor the final decision of a reviewing court on 

a question of statutory interpretation. 

A decision by an appellate court is considered final 

for purposes of establishing the law of the case if it 

represents the completion of all steps in the adjudication 

of the issue by the· court short of any steps needed to 

effect execution or enforcement of the court's decision. 

Thus, a ruling is final for purposes of applying the law of 

the case if it is intended to put at rest a question of 

statutory interpretation. Wright-Miller-Cooper, supra; 

Restatement of Judgments (Second) § 13 (1982). Consequently, 

where a federal court of appeals enunciates a rule of law to 

be. applied in the case at bar it not only establishes a 

precedent for subsequent cases under the doctrine of stare 

decisis, but the rule of law which other tribunals owing 

obedience to it must apply to the same issues in subsequent 

proceedings in that case. lB Moore's Federal Practice Par. 

0.040(1), o.404(10). 

I 

The claim that I have discretion to "start afresh" to 

determine the issue of statutory construction adjudicated by 

the court of appeals is clearly incorrect. It is "familiar 

doctrine that a lower court is bound to respect the mandate 

of an appellate tribunal and cannot reconsider questions 

which the mandate has laid to rest." FCC v. Pottsville 

Broadcasting Co., 309 U.S. 134, 140 (1940). 

Even if I disagreed with the court of appeals decision, 

I am not, as the trial tribunal, at liberty to sit as a 

reviewing authority on the court's decision or on the wisdom 

of the Commission's instructions to apply the court's decision 

in further proceedings in this case. Hayes v. ThomEson, 637 

F.2d 483, 487 (7th Cir. 1980); Morrow v. Dillard, 5 O F.2d 

1284, 1289 (5th Cir. 1978); U.S. v. Turtle Mtn. Band of 

Chippawa Indians, 612 F.2d 5~520 (Ct. Clms. 1979). 

The Supreme Court stated the applicable rule at an 

early date and has followed it ever since: 

Whatever was before the court, and is disposed of, is 

considered as finally settled. The inferior court is 

bound by the decree as the law of the case; and must 

480 
carry it into execution, according to the mandate. 

They cannot vary it or examine it for any other purpose 

than execution; or give any other or further relief; or 

review upon any matter decided on appeal for error 

apparent; nor intermeddle with it, further than to 

settle so much as has been remanded. Ex parte Sibbald 

v. United States, 12 Pet. 488, 492 (1838), 9 L. ed 

1167. 

Accord: Sanford Fork & Tool Company, 160 U.S. 247, 255 (1895); 

FCC v. Pottsville Broadcasting Co., s)pra; Briggs v. Pennsylvania 

Railroad Co., 334 U.S. 304, 306 (194 ; Vendo Co. v. Lektro-Vend 

Corp., 434 U.S. 424, 427-428 (1978). 

In this respect, law of the case doctrine mirrors the 

doctrine of collateral estoppel. See United States v. 

Moser, 266 U.S. 236, 242 (1924); Montana v. United States, 

440 U.S. 147, 162 (1979). [A fact, question or right distinctly 

adjudged by an appellate court cannot be disputed in subsequent 

proceedings even though the determination was reached upon 

an erroneous view or by an erroneous application of the 

law.] Compare SEC v. Chenery Corp., 332 U.S. 194, 200-201 

(1947); FCC v. Pottsville Broadcasting Co., supra, 309 

U.S. 145-.~[0n remand Commission is bound to act on, respect 

and follow the court's determination of a question of law 

even though agency retains authority, after correcting the 

legal error, to reach same result if it can show that result 

is in accord with the court's prior ruling and its legislative 

mandate.] 

I find there is no dispute as to the meaning or scope 

of the appellate decision; that it is the law of this case; 

and that under the orders of remand from both the court and 

the Commission I am compelled to apply_the Court of Appeals 

holding to further proceedings in this case. 

II 

This is particularly so since the only basis for the 

extraordinary relief requested is the time-worn assertion 

that Congressman Perkins's addendum to the Conference Committee 

Report is dispositive of the issue of liability for walkaround 

compensation--an assertion which the Court of Appeals thoroughly 

considered and unequivocally rejected. 

It follows that the trial judge in this proceeding has 

no discretion to effect a de novo review of the correctness 

or propriety of the appellate decision or of the order of 

remand, and that any attempt on his part to do so would be 

an injudicious usurpation of an authority possessed only by 

the Supreme Court. 

481 
Socco's attempt to redact the instructions which accompanied 

the orders of remand is hardly reassuring. As the record 

shows, this matter was not remanded to the trial judge to do 

with as he pleases. Both orders made clear that this was not 

a simple remand but a "remand for further proceedings consistent 

with the court's decision in UMWA v. FMSHRC, 671 F.2d 615." 

Since Socco did not oppose entry-of either order of remand 

or the accompanying instructions, it hardly has standing at 

this late date to complain of the terms. 

I find farfetched the claim that the Court of Appeals 

acted in excess of its jurisdiction and authority in remanding 

the matter with directions to dispose of the case in a 

manner "not inconsistent with its decision" and adjudication 

in UMWA v. FMSHRC, supra. The Judicial Code as well as the 

Mine Safety Law and the general equity powers of the federal 

court provide ample authority for the court's remand order. 

28 U.S.C. § 2106; 30 U.S.C. § 816(a)(l). See Ford Motor Co. 

v. NLRB, 305 U.S. 364, 372-375 (1939). 

Furthermore, section 133(d)(2)(C) of the Act specifically 

authorizes the Commission to remand a case to the administrative law judge for such "further proceedings as it may direct." 

The Commission's direction was to dispose of this case in a 

manner "consistent with the court's order." 4 FMSHRC 856 (1982). 

Despite this clear and unequivocal directive, the operator 

with almost casual insouciance urges the trial judge engage 

in what is tantamount to an act of civil disobedience. I 

cannot in all good conscience accept the operator's advocacy 

of a position so subversive of the judicial process. I firmly 

decline, therefore, the invitation to emasculate judicial 

review and flout the deference and respect due the law, the 

Court and the Commission. 

The operator cites no case in which a trial or other 

inferior tribunal, including an administrative agency, was 

ever found justified in ignoring the law of the case simply 

because the agency, without any interim change in the facts 

or the law, believed the court's adjudication to be erroneous. 

The leading case to the contrary is Cit4 of Cleveland, Ohio 

v. Federal Power Com'n, 561 F.2d 344, 3 6 (D.C. Cir. 1977) 

in which the court held that: 

The decision of a federal appellate court establishes 

the law binding further action in the litigation by 
another body subject to its authority. The latter is 

without authority to do anything that is contrary to 

either the letter or the spirit of the mandate construed 

in the light of the opinion of the court deciding the 

case, and the higher tribunal is amply armed to rectify 

any deviation through the process of mandamus . . . 

These principles, so familiar within the heirarchy of 

the judicial benches, indulge no exception for review 

of administrative agencies. 

Accord: American Trucking Ass'n v. ICC, 669 F.2d 957 (5th 

Cir. 1982); Yablonski v. UMWA, 454 F.2d 1036, 1038 (D.C. 

Cir. 1971); Allegheny General Hospital v. NLRB, 608 F.2d 

965, 970 (3rd Cir. 1979). 

In Northern Helex Co. v. United States, Chief Judge 

Friedman had occasion to explore in depth the consequences 

of a trial judge's ''blatant disregard" of his obligation to 

carry out the mandate of an appellate court. He concluded 

a trial judge who fails or refuses to comply with the clear 

mandate of an appellate court commits a serious offense 

against the judicial code. 634 F.2d 557, 560-561 (Ct. Clms. 

1980). Thus, the law of the case is not a mere rule of comity 

or practice. It establishes the substantive law which lower 

courts and administrative agencies must apply to the same 

issues in subsequent proceedings in the same case. Morrow 

v. Dillard, supra, 580 F.2d 1289; City of ClevelandS Ohio 

v. FPC, supra; Medford v. Gardner, 383 F.2d 748, 75 -759 

(6th Cir. 1967). 

Consequently, once a case has been decided on appeal, 

the rule adopted is to be applied, right or wrong, absent 

exceptional circumstances, in the ultimate disposition of 

the lawsuit. Schwartz v. NMS Industries, Inc., 575 F.2d 

553, 554 (5th Cir. 1978). The exceptional circumstances are 

that (1) the evidence on a subsequent trial is substantially 

different, (2) controlling authority has since made a contrary 

decision on the law applicable to the issues previously 

adjudicated, or (3) the decision was clearly erroneou~ and 

its application would work a manifest injustice. White v. 

Murtha, 377 F.2d 428, 432 (5th Cir. 1967); EEOC v. Intern. 

Longshoremen's Ass'n, 623 F.2d 1054, 1058 (5th Cir. 1980, 

cert. denied, 451 U.S. 917 (1981). 

The operator does not contend that exceptions 1 or 2 

apply or that failure to reconsider the question of 103(f) 

coverage in this proceeding will result in any manifest 

483 
injustice. 2/ With respect to the third exception, I find 

mere doubt that the decision of the Court of Appeals was correct 

is no basis for concluding that the decision was clearly 

erroneous. In the absence of a clear, as distinguished from 

an arguable or debatable, conviction of legal error by the 

Court itself, law of the case principles preclude reopening 

an adjudicated question of law merely because of doubt as to 

the correctness of the original decision. Zdanok v. Glidden Co., 

327 F.2d 944, 952-953 (2d Cir.), cert. denied, 377 U.S. 934 

(1964); U.S. v. Turtle Mtn. Band Of-chippewa Indians, supra, 

612 F.2d~. Consequently, the appellate tribunal itself 

will decline to reconsider its prior decision in the same 

case, unless there is a strong showing of clear error such 

as failure to consider a controlling precedent by the Supreme 

Court. Morrow v. Dillard, supra, 580 F.2d 1292. 

II 

The claim that clerical errors in the original citation 

or the 10 week delay in its issuance are fatal to its validity 

is without merit. 

The operator originally chose to waive an evidentiary 

hearing and to submit its contest on a motion to dismiss or 

for summary decision. Until after remand, it never claimed 

there was any issue of fact that depended upon the fading 

memories of witnesses. Further, it has failed to disclose 

what those facts might be. As the operator has conceded 

this is not a case that involved a complex factual pattern 

or that required evaluation of the credibility of witnesses 

or the resolution of direct or tangential conflicts in oral 

or documentary evidence. 

2/ To reconsider in this case would put this operator in a 

preferred position since the Court of Appeals decision has, 

pursuant to the Commission's orders of remand, been applied 

to all other operators similarly situated as a result of the 

Court's reversal of the Commission's Helen Mining decision, 

1 FMSHRC 1796 (1979). Further, in three other proceedings 

arising subsequent to this one ·socco and its affiliated 

corporations seek to relitigate in other circuits the question 

decided by the Court of Appeals in this case. Other operators 

are proceeding along parallel lines in what appears to be 

massive resistence by the industry to the Court of Appeals 

decision. 

484 
The fact that the operator chose not to challenge the 

citation until 16 weeks after the penalty was proposed 

rather than 30 days after issuance is indicative of the fact 

that its recently alleged concern with delay and "reasonable 

promptness" is more an argument of expedience than enlightment. I find the operator has failed to show that its right 

to a fair hearing on the issues it chose to contest was in 

any way prejudiced by the delay in issuance of the citation. 

Finally, of course, I note that the legislative history 

of section 104(a) states that "issuance of a citation with 

reasonable promptness is not a jurisdictional prerequisite 

to any enforcement action." H. Rpt. 95-181, 95th Cong., 1st 

Sess. 30 (1977). 

Findings 

The pre~ises considered I find the violation charged 

did, in fact, occur. After considering the statutory 

criteria in mitigation including the operator's good faith 

reliance on Congressman Perkins's addendum to the Conference 

Report, I conclude the amount of the penalty warranted is $150. 

Order 

Accordingly, it is ORDERED that the citation contested 

be, and hereby is AFFIRMED. It is FURTHER ORDERED that for 

the violation found the operator pay a penalty of $150 on or 

before Friday, April 8, 1983 and that subject to payment the 

captioned matter be DISMISSED. 

485 
Distribution: 

Marcella L. Thompson, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1240 E. 9th St., Rm. 881, Cleveland, 

OH 44199 (Certified Mail) 

David M. Cohen, Esq., American Electric Power Service 

Corp., P.O. Box 700, Lancaster, OH 43140 (Certified 

Mail) 

Mary Lu Jordan, United Mine Workers of America, 900 15th St., 

N.W., Washington, D.C. 20005 (Certified Mail) 

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

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Alvin J. McKenna, Esq., Alexander, Ebinger, Fisher, McAlister 

& Lawrence, 11th Floor, 17 South High St., Columbus, OH 

43215 (Certified Mail) 

486 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

ERRATA 

Civil Penalty Proceeding 

Docket No. LAKE 80-142 

A/O No. 33-02308-03050 

Raccoon No. 3 Mine 

The following corrections are ordered to be made to the 

decision issued in this case dated March 14, 1983: 

1. Page 4, 3rd paragraph: 

Change "section 133(d)(2)(C)" to "section 113(d)(2)(C)." 

2. Page 6: 

Change "II" to 

Issued: March 16, 1983 

48'7 
~istribution: 

Marcella L. Thompson, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1240 E. 9th St., Rm. 881, Cleveland, 

OH 44199 (Certified Mail) 

David M. Cohen, Esq., American Electric Power Service 

Corp., P.O. Box 700, Lancaster, OH 43140 (Certified 

Mail) 

Mary Lu Jordan, United Mine Workers of America, 900 15th St., 

N.W., Washington, D.C. 20005 (Certified Mail) 

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

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Alvin J. McKenna, Esq., Alexander, Ebinger, Fisher, McAlister 

& Lawrence, 11th Floor, 17 South High St., Columbus, OH 

43215 (Certified Mail) 

488 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY 

HEALTH ADMINISTRATION (MSHA) on 

of CHESTER (SAM) JENKINS, 

) 

AND ) 

behalf) 

Complainant, 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

v. 

HECLA-DAY MINES CORPORATION, 

Respondent. 

~~~~~~~~~~~~~~~~~~~ 

COMPLAINT OF DISCHARGE, 

DISCRIMINATION OR INTERFERENCE 

DOCKET NO. WEST 81-323-DM 

MINE: Republic Unit 

DECISION 

Appearances: 

Rochelle Kleinberg, Esq., Office of the Solicitor 

United States Department of Labor 

8003 Federal Building, Seattle, Washington 98174 

For the Complainant 

Bruce A. Menk, Esq., Hall & Evans 

2900 Energy Center 

717 Seventeenth Street, Denver, Colorado 80202 

For the Respondent 

Before: Judge Virgil E. Vail 

STATEMENT OF THE CASE 

On July 6, 1981, the Secretary of Labor, Mine Safety and Health 

Administration (hereinafter "the Secretary"), brought this action on behalf 

of Chester (Sam) Jenkins (hereinafter "Jenkins"), pursuant to section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 et seq., (1978Hhereinafter cited as "the Act"). In his complaint, 

the Secretary alleges that respondent Hecla-Day Mines, Inc., (formerly Day 

Mines, Inc., Republic Unit Mine and hereinafter "Day Mines"), unlawfully 

discriminated against Jenkins on or about January 12, 1981 through February 

4, 1981 by suspending him from work for two days and failing to return him 

to his former worksite in violation of the Act. The Secretary alleges that 

Jenkins was engaged in activities relating to health and safety protected 

48t1 
by section lOS(c)(l) of the Act at the time the Day Mines discriminated 

against him. '!_! 

The Secretary's complaint seeks relief on behalf of Jenkins as follows: a 

finding of discrimination, an order: (1) directing Day Mines to pay Jenkins 

employment benefits plus interest for the period of time he was suspended 

from work, (2) reinstatement of Jenkins to his former worksite or to an 

equivalent one, (3) directing Day Mines to clear his employment record of 

any unfavorable references to his suspension, (4) directing Day Mines to 

pay Jenkins's costs in pursuing this action, and (5) that an appropriate 

civil penalty be assessed against Day Mines for its alleged unlawful interference with Jenkins exercise of rights protected by section lOS(c) of 

the Act. On July 27, 1981, Day Mines filed an answer to the complaint 

admitting jurisdiction of the Federal Mine Safety and Health Review 

Commission and that Jenkins was a miner as defined in section 3(g) of the 

Act but denying all allegations of the Secretary that Jenkins was 

discriminated against while engaged in activities protected under the Act. 

Pursuant to notice, a hearing on the merits was held in Spokane, Washington 

following which both parties were afforded the opportunity to submit 

post-hearing briefs. To the extent that the contentions of the parties are 

not incorporated in this decision, they are rejected. 

FINDINGS OF FACT 

1. The Republic Unit mine, of Hecla-Day Mines, Inc., is a gold and 

silver mine located near Republic, Washington. 

2. Chester (Sam) Jenkins has been employed by Day Mines at its 

Republic Unit Mine as a contract miner from approximately the middle of 

1979 up through the date of the hearing in this case. Prior to January 1, 

1981, there were no complaints as to the nature, ability, or performance of 

work done by Jenkins for Day Mines. 

3. Contract miners employed at the Republic Unit Mine work in pairs 

mining assigned stopes. Stopes are excavations from which ore has been 

1/ Section lOS(c)(l) reads in pertinent parts as follows: 

No person shall discharge or in any other manner discriminate against 

or otherwise interfere with the exercise of the statutory rights of any 

miner ••• because such miner ••• has filed or made a complaint under or 

relating to this Act, including a'complaint notifying the operator or the 

operator's agent, or the representative of the miners •.• of an alleged 

danger or safety or health violation ••• , or because such miner .•. has 

instituted or caused to be instituted any proceeding under or related to 

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

because of the exercise by such miner ••• on behalf of himself or others of 

any statutory right-afforded by this Act. 

490 
mined in a series of steps. !._; After a mining cycle involving 

drilling, blasting, and removal of rock is completed, miners are 

transferred to another area while the mined out stope is "backfilled" with 

sand. 

4. In March 1980, Jenkins started working in stope 4114 and had 

completed two mining cycles by December 11, 1980. On December 12, 1980, 

Jenkins and his partner Don Vilardi were assigned to work in stope 4222. 

5. Contract miners were paid $9.70 per hour plus an additional amount 

of pay based upon the cubic feet of rock they mined from their designated 

stope. Stope 4114 was considered by managem~nt to be a large stope whereas 

stope 4222 is somewhat smaller. The miners are paid a higher unit price 

for work performed in the smaller stopes than that paid for work in the 

larger stopes (Tr. 107). 

6. On December 24, 1980, a miner died as a result of an accident at 

the Republic Unit Mine. On the following day and as a result of this 

fatality, Jenkins wrote a four page letter addressed to Keith J. Droste, 

general manager, and W.M. Calhoun, President of Day Mines, describing 

several safety complaints Jenkins had including misconduct on the part of 

some fellow miners. A post script was added to this letter signed by four 

other miners agreeing with what Jenkins said in his letter (Exhibit P-1). 

7. On December 29, 1980, the first working day following the 

fatality, a safety meeting for the miners was called by management of Day 

Mines at which meeting Jenkins raised several of the same complaints 

regarding safety that he had included in his letter dated December 25, 

1980. Following this meeting Jenkins mailed his letter to the mine 

management (Tr. 38). 

8. On December 30, 1980, Jenkins put a notice on the mine bulletin 

board requesting nominations for a mine safety committee. The nomination 

notice was removed from the board shortly thereafter (Tr. 112). 

9. On January 2, 1981, Jenkins circulated a petition among fellow 

miners describing an occurrence on December 24, 1980 when the power to the 

main hoist in the mine was turned off for three hours creating what Jenkins 

considered a safety problem. During the safety meeting on December 29, 

1980, Jenkins had brought up this situation and indicated in this petition 

that he believed management thought he was the only person concerned. He 

was asking that other miners sign the petition to show their concern and to 

have management establish a policy regarding turning power off to the main 

hoist. Forty-four miners signed the petition (Exhibit P-2). On January 7, 

1981, the so called "power off" petition was delivered by Jenkins to 

William Hamilton, mine superintendent (Tr. 41). 

10. On January 5, 1981, Droste sent a letter to Jenkins acknowledging 

2/ Dictionary of Mining, Mineral, and Related Terms, 1968 Edition, Bureau 

of Mines, U.S. Department of Interior. 

491 
receipt on January 2, 1981, of Jenkins December 25, 1980 letter and 

promising an investigation and written response to the observations and 

accusations contained therein (Exhibit R-1). 

11. On January 7, 1981, Jenkins and Dan Vilardi were escorted to the 

mine office by William Gianukakis, shift foreman, and asked by Ron Short, 

unit manager, if Jenkins and Vilardi objected to having the letter of 

December 25, 1980 posted on the mine bulletin board. Neither Jenkins or 

Vilardi objected and Short put the letter on the bulletin board (Tr. 42). 

After the letter was posted, Jenkins was threatened with bodily harm by 

Jack Davis, a fellow miner. David Hamilton, also a miner, accused Jenkins 

of being an agitator and a trouble maker (Tr. 42, 43), The following day, 

a threat was made to Jenkins's son Sam while he was at school (Tr. 46). 

12. On January 8, 1981, following the threats against Jenkins and 

his son, Jenkins did not go to work at the mine but instead consulted with 

an attorney. The attorney advised Jenkins to go to the sheriff's office 

and file a complaint which he did, On this same day, Jenkins's wife 

telephoned Calhoun and Droste at Day Mines and informed them of the threats 

against her husband and son (Tr. 44, 45 and 46). 

13. On January 9, 1981, Jenkins stayed off work for a second day and 

met with Daniel Klinchesselink, a mine inspector for Mine Safety and Health 

Administration (MSHA), in Spokane, Washington, and discussed what had 

occurred at Day Mines and what protection Jenkins could expect (Tr. 47). 

Also, on this date, Jenkins received a telephone call from Ron Short 

informing Jenkins that if he returned to work, Short could guarantee his 

safety while on company property (Tr. 47). Jenkins returned to work on the 

following day, January 10, 1981. 

14. On January 11, 1981, a meeting of miners was held at Cassell 

(Duke) Koepke's residence. Jenkins raised safety concerns regarding the 

Day Mines. No member of Day Mines management was in attendance but shift 

boss William Gianukakis's wife was there. 

15. On January 14, 1981, Jenkins received a letter from Droste 

responding to his letter of December 25, 1980 and discussing each matter 

Jenkins had raised therein (Exhibit R-2). 

16. Jenkins was absent from work from January 15 through January 25, 

1981 to attend the funeral for his father (Tr. 51). 

17. On January 23, 1981, the sand fill operation was completed in 

Stope 4114 and John Holder and Tom Rice were assigned to mine this stope 

(Exhibit R-7). 

18. On January 14, 1981, a letter was sent to Tom C. Lukins of MSHA 

indicating that Jenkins and Cassell (Duke) Koepke were elected to be representatives of the miners for the production shift at Day Mines, The 

letter was signed by Koepke, Jim Lindsey and Jim Monteyo (Exhibit P-3). 

Jenkins had prepared the letter requesting Koepke sign it, On January 29, 

1981, a copy of this letter was sent to Droste and Short of Day Mines (Tr. 

65). A formal meeting of miners had not been hela to elect representatives prior to the drafting and mailing of the above letters. 

492 
19. On January 31, 1981, Vilardi transferred out of stope 4222 and 

Terry Koepke was assigned to be Jenkins's new partner. Jenkins and Koepke 

continued to work in stope 4222 until February 17, 1981, when the mining 

cycle was completed (Exhibit R-7). 

20. On February 2, 1981, a safety meeting of miners was conducted by 

Tom Bradley, shift boss for Day Mines, at which meeting various safety 

matters were ~iscussed. In response to a request by Bradley for 

suggestions of any other safety problems, Jenkins was the only miner who 

spoke up and pointed out additional safety matters (Exhibit P-9 and Tr. 

300). 

21. On February 3, 1981, two petitions were circulated among the 

miners at Day Mines indicating the signatories were tired of Jenkins and 

Cassell (Duke) Koepke agitating and their disruptive accusations and that 

they did not wish to work with them. A third petitio~ stated that Jenkins 

and Koepke did not and had never represented the miners at Day Mines 

Republic Unit. The petition against Jenkins had 43 signatures on it and 

the similar petition against Koepke had 28 signatures. The petition 

regarding Jenkins and Koepke not being miners's representatives contained 

52 signatures. These three petitions were then delivered to the management 

of Day Mines (Exhibit P-4 and Tr. 66, 164). 

22. On February 4, 1981, Jenkins was sent by his shift boss to the 

mine office where he was informed by Ron Short that he was to be suspended 

for an indefinite period of time because of the complaints about his disruptive behavior contained in the petition received from fellow miners 

and stating that they did not want to work with him. On the following day, 

Jenkins received a letter from Short advising him that his suspension was 

to be without pay. On February 5, 1981, Jenkins met again with Short and 

discussed his problems with fellow miners. Jenkins signed an agreement to 

the effect that he would improve his relationship with other employees by 

refraining from any dialogue concerning complaints or problems except as 

are absolutely necessary or emergency matters. Jenkins was then allowed to 

return to work having suffered a two day suspension without pay (Exhibit 

P-5 and Tr. 75). Cassell (Duke) Koepke, who had a similar petition 

circulated by the miners against him, was not suspended from work. 

23. On February 27, 1981, Holden and Rice transferred from stope 4114 

(Exhibit R-7). 

24. From February 1981 up through the date of the hearing, a Miner's 

Rights Guide Book was allowed to remain on the mine bulletin board with 

pages pinned open to the part that refers to a fine that may be imposed 

against a miner for making false statements. The section was underlined 

and the name "Sam" had been written above a picture showing a miner sitting 

on a rock with an arrow pointing from the underlined section to the miner. 

Also, handcuffs had been drawn across the picture. Jenkins is known by the 

name of "Sam". The location of the bulletin board where the book was 

posted is in an area visited by members of Day Mines management (Tr. 93). 

493 
25. On July 6, 1981, the Secretary filed the discrimination complaint 

on behalf of Jenkins against Day Mines. 

26. From July 22, 1981 through August 14, 1981, Jenkins was the 

victim of numerous acts of harassment and vandalism at the mine by unknown 

persons. These acts consisted of human waste in his boots, drill oil 

poured over his lunch box, threatening messages on toilet paper placed in 

his storage basket, and water and urine put in his boots along with other 

foreign substances in his clothing. A clay doll was placed near the timecard box and a suggestion box placed in the area with a sign asking for 

suggestions of ways to get rid of "Sam". Jenkins brought these acts of 

harassment to William Hamilton's attention and was told by Hamilton that 

Jenkins brought this upon himself. On July 23, 1981, Ron Short posted a 

memorandum on the mine bulletin board regarding the acts of vandalism and 

threatening discipline up to and including discharge of anyone caught or 

implicated therein (Exhibit R-4). Short also instructed shift foremen to 

have meetings with miners to advise them that they would be disciplined for 

such acts (Tr. 254). 

ISSUE 

Did Day Mines discriminate against Jenkins in violation of Section 

105(c)(l) of the Act, while Jenkins was engaged in a protected activity? 

DISCUSSION 

The Commission established the general principles for analyzing 

discrimination cases under the Mine Act in Sec. ex rel. Pasula v. 

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

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

Cir. 1981), and Sec. ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 

803 (April 1981). In these cases the Commission ruled that a complainant, 

in order to establish a prima facie case of discrimination, bears a burden 

of production and persuasion to show (1) that he engaged in protected 

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

protected activity. Pasula, 2 FMSHRC at 2799-2800; Robinette, 3 FMSHRC at 

817-18. In order to rebut a prima facie case, an operator must show either 

that no protected activity occurred or that the adverse action was in no 

part motivated by protected activity. Robinette, 3 FMSHRC at 817-18 n. 

20. If an operator cannot rebut the prima facie case in this manner, it 

may nevertheless defend by proving that (1) it was also motivated by the 

miners unprotected activities, and (2) that it would have taken the adverse 

action in any event for the unprotected activities alone. Pasula, 2 FMSHRC 

at 2799-2800. The operator bears an intermediate burden of production and 

persuasion with regard to these elements of defense. Robinette, 3 FMSHRC 

at 818 n. 20. This further line of defense applies only in "mixed motive" 

cases, i.e., cases where the adverse action is motivated by both protected 

and unprotected activity. The ultimate burden of persuasion does not shift 

from the complainant in either kind of case. Robinette, 3 FMSHRC at 818 n. 

20. The foregoing Pasula-Robinette test is based in part on the Supreme 

Court's articulation of similar principles in Mt. Health City School Dist. 

Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87 (1977). 
In Sec. ex rel. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November 

1981), pet for review filed, No. 81-2300 (D.C. Cir. December 11, 1981), the 

Commission affirmed their Pasula-Robinette test, and explained the proper 

criteria for analyzing an operator's business justification for an adverse 

action: 

Commission judges must often analyze the merits of an 

operator's alleged business justification for the 

challenged adverse action. In appropriate cases, they 

may conclude that 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. But such inquiries must be restrained. 

The Commission and its judges have neither the statutory 

charter nor the specialized expertise to sit as a super 

grievance or arbitration board meting out industrial 

equity. Cf. Youngstown Mines Corp., 1 FMSHRC 990, 994 

(1979). Once it appears that a proffered business 

justification is not plainly incredible or implausible, 

a finding of pretext is inappropriate. We and our judges 

should not substitute for the operator's business judgment 

our views on "good" business practice or on whether a 

particular adverse action was "just" or "wise." Cf. NLRB 

v. Eastern Smelting & Refining Corp., 598 F. 2d 666, ~ 

(1st Cir. 1979). The proper focus, pursuant to Pasula, 

is on whether a credible justification figured into motivation and, if it did, whether it would have led to the 

adverse action apart from the miner's protected activities. 

If a proffered justification survives pretext analysis ••• , 

then a limited examination of its substantiality becomes 

appropriate. The question, however, is not whether such a 

justification comports with a judge's or our sense of 

fairness or enlightened business practice. Rather, the 

narrow statutory question is whether the reason was enough 

to have legitimately moved that operator to have disciplined 

the miner. Cf. R-W Service System Inc., 243 NLRB 1202, 

1203-04 (1979T(articulating an analogous standard). 3 FMSHRC 

at 2516-17. Thus, the Commission first approved restrained 

analysis of an operator's proffered business justification 

to determine whether it amounts to a pretext. Second, they 

held that once it is determined that a business justification is not pretextual, then the judge should determine 

whether "the reason was enough to have legitimately moved 

the operator" to take adverse action. 

By a "limited" or "restrained" examination of the operator's 

business justification the Commission does not mean that an 

operator's business justification defense should be examined 

superficially or automatically approved once offered. Rather, 

the Commission intends that its Judges, in carefully analyzing 

such defenses, should not substitute his business judgment or 

49:.l 
sense of "industrial justice" for that of the operator. As 

the Commission recently stated "our function is not to pass 

on the wisdom or fairness of such asserted business justifications but rather only to determine whether they are credible 

and, if so, whether they would have motivated the particular 

operator as claimed." Bradley v. Belva Coal Co., 4 FMSHRC 

982, 993 (June 1982). 

Having restated the principles that govern this case, it is necessary 

to consider these principles as they apply to the facts before me. 

First, Jenkins has the burden of proof to establish, by a preponderance of the evidence, that: (1) he was engaged in a protected activity and 

(2) that adverse action taken against him by Day Mines was motivated in any 

part by this protected activity. Jenkins alleges that he was engaged in 

the protected activity of raising safety complaints on December 25, 1980, 

and January 2, 7, 11, and February 2, 1981 (Pet's Br. p. 5). 

Second, Jenkins alleges that there were three separate instances of 

adverse action by Day Mines taken against him as a result of his protected 

activities involving safety complaints. The first involved the posting on 

the mine bulletin board by a member of management Jenkins's letter of 

December 25, 1980 which had the effect of identifying Jenkins as a 

troublemaker. Second, was the failure of Day Mines to reassign Jenkins to 

stope 4114 after January 23, 1981. Third, was the suspension of Jenkins 

for a two day period without pay commencing on February 4, 1981 (Pet's Br. 

p. 5, 6, 7 and 8). Day Mines denies that the actions taken in the above 

instances were in any way motivated by Jenkins's protected activity and 

argues that each action alleged as adverse was instead motivated by the 

operator's business judgment which was neither incredible or implausible 

(Resp's Brief p. 19). 

I Did the posting of Jenkin's letter of December 25, 1980 constitute an 

adverse action by Day Mines? 

• 

The threshold issue to be determined is whether the miner had engaged 

in a protected activity as defined in the Act. In this case, Day Mines 

specifically concedes in its brief that Jenkins did in fact engage in 

certain protected activities during the time period from December 25, 1980 

through February 4, 1981 (Resp's Brief p. 7). 

The second element of a prima facie case as it applies to this 

specific allegation is whether the posting of Jenkins's letter of December 

25, 1980 by Day Mines was an adverse action against Jenkins and was • 

motivated in any part by his protected activity. Jenkins alleges that the 

purpose behind mine management posting the letter on the bulletin board 

where other miners could read it was to identify him as a troublemaker. In 

support of his position, Jenkins points to the testimony of fellow miners 

John Holden and Cassell (Duke) Koepke wherein they stated that the type of 

reaction that occurred to the letter by the other miners would not surprise 

anyone (Tr. 134, 172). 

496 
The evidence of record shows that Jenkins was involved in several 

activities involving safety matters prior to the posting of his letter on 

January 7, 1981. The first involved Jenkins writing and mailing the four 

page letter following the fatality at the mine on December 24, 1979. This 

letter recited Jenkins's concerns regarding several safety matters 

including turning the power off to the main hoist for three hours without 

advising the miners, the drinking of alcohol by some of the miners and 

members of management, riding the skip in an unsafe manner, and inadequate 

miner training. Jenkins had raised some of the same safety concerns at a 

mine meeting held on December 29, 1980 and posted a letter on the mine 

bulletin board to solicit nominations for members for a mine safety 

connnittee. This notice was quickly removed from the bulletin board and 

caused William Hamilton, mine superintendent, to be upset. Jenkins then 

circulated a petition among the miners regarding concern over the power 

being shut off in the main shaft and secured the signatures of 44 miners. 

This petition was presented to William Hamilton on January 7, 1981 at 3:00 

p.m. which is the start of the swing shift (Tr. 41). At the end of this 

swing shift, William Gianukakis, shift boss, met Jenkins and his partner 

Danny Vilardi and asked them to accompany him to the mine office where they 

were met by Ronald Short, unit manager. Jenkins testified that Short 

appeared agitated, distraught, and distressed and held Jenkins's letter in 

one hand and a stapler in the other and stated that he believed everyone 

should have a chance to read the letter because it concerned them. Short 

asked both Jenkins and Vilardi several times if they had any objection to 

his posting the letter on the bulletin board. Jenkins and Vilardi did not 

object to this. Jenkins testified that following the posting of the 

letter, he was threatened while in the shower with bodily harm by Jack 

Davis, a fellow miner, if Jenkins "pointed his finger at him or any of his 

friends" (Tr. 42). Also, David Hamilton was "yelling and screaming that I 

was an agitator and a troublemaker" (Tr. 43). On the following day, 

Jenkins's son Sam was threatened while at school. 

Jenkins argues that the purpose behind Day Mines posting his letter 

was to identify him as a troublemaker and any other explanation was 

pretextual. Day Mines denies this and argues that there was a credible 

business justification for such an act. It cannot be denied that posting 

this letter was a catalysis for the harassment and threats suffered by 

Jenkins from fellow miners that occurred afterwards. However, the issue 

here is whether this amounted to discrimination against Jenkins by Day 

Mines as defined in the Act. 

Day Mines argues in their post-hearing brief that the evidence fails 

to support any showing of discrimination by them against Jenkins in posting 

this letter. They allege that the letter was not entirely a private matter 

before its posting as it had been shown to and signed by at least four 

other miners employed at the Republic Unit. Also, it was mailed to 

management at the corporate headquarters and to the local MSHA office. 

Further, they argue that Short asked Jenkins and Vilardi several times if 

they objected to the letter being posted and no objection was raised. The 

main thrust of Day Mines's argument to the allegation of discrimination is 

that Day Mines had a credible business justification for posting the 
letter. In support thereof they submit that Short testified he believed 

that by posting the letter he would find out whether there was some truth 

to the accusations (Tr. 214). 

In review, it has been conceded by Day Mines that safety complaints by 

Jenkins amounted to a protected activity under the Act. Also, Ron Short's 

posting Jenkins's letter of December 25th was, at least in part, motivated 

by this protected activity. However, Day Mines denies that this was an act 

of discrimination against Jenkins but argues that there was a credible 

business justification for posting the letter. Having set out the facts 

and arguments of the parties, it is necessary to apply the principles that 

govern those issues as set forth by the Commission in Pasula-RobinetteChacon, supra, The first test is whether the proffered business justification is plainly incredible or implausible. Webster's New Collegiate 

Dictionary, 1973 Edition, defines incredible as "too extraordinary and 

improbable to be believed" and implausible as "provoking disbelief". 

In light of the above, I reject Jenkins's argument that Ron Short's 

explanation for posting the letter is, on the face of it, incredible. 

Considering the tragic event that occurred on December 24, 1980 and the 

serious accusations against fellow miners and mine management, by Jenkins 

in his letter of December 25, 1980, some type of reaction by both of the 

accused parties could have been expected. Short testified as to the 

circumstances leading up to the posting of the letter as follows: 

Well, in reading the letter, of course, it brought 

out a lot of questions to my mind. Being in my 

position, I am aware that not everyone is going to 

talk to me with the freedom that they would someone 

else and so I thought that there may be a chance that 

the things that Sam had mentioned in his letter, there 

may be some truth to parts of it. I didn't actually 

believe that there was, but I felt that I had to find 

out if these allegations were true. I felt that by 

posting the letter that I would find out one or two 

things: either there was some truth to it and a group 

of miners, either who signed the letter or who also 

agreed with Sam and did not sign the letter, would 

come forth to me on posting the letter and say, 

"yeah, this is true," or I would get a negative 

response in the sense that no one would come forward 

and that this would also indicate to me that there 

was no truth to what he was saying (Tr. 214-215). 

In light of all of these circumstances, I do not find that Short's 

explanation is either so weak or implausible, or so out of normal practice 

as to be a mere pretext seized upon to cloak a discriminatory motive. The 

credible evidence in this regard clearly demonstrates that the letter was 

not that private prior to its posting, as it had been read by several of 

Jenkins's fellow miners and a post-script was added thereto signed by four 

498 
of them. Also, some of the complaints about safety had been raised by 

Jenkins at an earlier meeting of miners. Also, the letter had been mailed 

by Jenkins to the mine management and to MSHA. These acts by·Jenkins 

indicate an attempt on his part to publish his views as to what he 

considered was wrong at the Republic Unit of Day Mines. Further, Short 

asked both Jenkins and Vilardi several times if they objected to the letter 

being posted and was advised that they did not. As stated by the 

Commission in Bradley v. Belva Coal Co., 4 FMSHRC 982, (June 1982): 

"Our function is not to pass on the wisdom or fairness 

of such asserted business justification, but rather 

only to determine whether they are credible and, if so, 

whether the would have motivated the particular operator 

as claimed." emphasis added). 

It would appear that posting the letter was the act that triggered a quick 

and threatening response against Jenkins, but the' evidence does not support 

the contention by Jenkins that posting the letter was intended to be a 

discriminatory act against him and such allegation is rejected. 

II Was the failure to return Jenkins to stope 4114 an adverse action? 

The evidence shows that Jenkins started working for Day Mines in 

approximately the middle of 1979. From November 1979 through March 1980, 

Jenkins was assigned to work as a contract miner with four different miners 

as partners principally in stope 3031 completing five mining cycles. From 

March 24, 1980 through December 11, 1980, Jenkins and his partner Vilardi 

completed two mining cycles in stope 4114 and two in stope 3058 while the 

sand fill operations were being performed in stope 4114. On December 12, 

1980, Vilardi and Jenkins were assigned to stope 4222 where Jenkins 

continued working until February 17, 1981, when that mining cycle was 

completed. The sand fill operation was finished in stope 4114 on January 

23, 1981 and miners Holden and Rice were assigned to mine it. Vilardi had 

transferred out of stope 4222 on February 1, 1981 and Terry Koepke had 

taken his place (Exhibit R-7). 

Jenkins argues in his brief that the alleged adverse action occurred 

after January 23, 1981 when stope 4114 became available for further mining 

and he and Vilardi were not assigned to go back to it. Jenkins argues that 

stope 4114 is considered to be one of the larger and more productive stopes 

in the Republic Unit mine. He contends that those miners assigned to the 

larger stopes have the potential to earn more in wages than is possible to 

earn in the smaller stopes. Jenkins states that both he and Vilardi were 

told by members of management that they would be returning to stope 4114 

after the sand fill operation was completed. Jenkins argues that it had 

been the usual practice in the past at this mine to return the same mining 

crew to the stope they had previously worked in when the sand fill 

operation was completed. · 

Day Mines denies this and argues that stope assignments given to 

Jenkins during the period of time after January 23, 1981 was not an adverse 

action on their part. Day Mines argues that Jenkins's assignments were 

made in accordance with the then existing policy at the mine, that is, 

498 
generally by the availability of crews. Also, they contend that by reason 

of miners receiving higher unit pay in smaller stopes, that Jenkins's 

actual earnin·gs for the year 1981, were not adversely affected. 

The same principles to prove a prima facie case of discrimination in 

Pasula-Robinette, supra, discussed earlier herein, apply to this issue. As 

to the first element, again Day Mines concedes in its brief that Jenkins 

was engaged in certain protected activities during the period of time from 

December 25, 1980 through February 4, 1981. The second element, and the 

specific issue here, is whether Day Mines took an adverse action against 

Jenkins after January 23, 1981 in not assigning him back to stope 4114 when 

it became available, and if so, was such adverse action motivated in any 

part by Jenkins's protected activities? 

The most credible evidence supports Day Mines's contention that there 

was not an existing policy at the Republic Unit mine which expressly 

guaranteed permanent stope assignments. Ron Short testified that when a 

stope becomes available, after the sand filling operation is completed, if 

the miners who previously mined this stope are available and not presently 

in an assigned operating stope, and had done a good job before, they would 

be reassigned to that same stope. However, Short stated, it was not the 

operator's policy to substitute miners during the mining cycle as this 

would be unfair to the originally assigned crew. Further, crew availability was an essential element to stope assignments. 

William Gianukakis, shift foreman at Republic Unit mine, testified 

that he had been a miner at this particular mine for over 20 years and 

shifter during the last two years having responsibility for crew 

assignments. He concurred with Short's testimony as to how stope assignments were made and stated that this had been the same policy for as long 

as he had worked there. Tom Bradley, the other shifter responsible for 

crew assignments, agreed with both Gianukakis's and Short's testimony on 

crew assignments. He stated that the understanding with Jenkins and· 

Vilardi was that they would be reassigned to stope 4114 if they were 

finished with 4222 when 4114 became available. However, it took longer 

than expected to finish the mining cycle in 4222, partly because Jenkins 

was gone for a week during that time. Bradley admitted that at times a 

stope will stand idle for a period of time, if everyone is working elsewhere. However, when stope 4114 became available, Jenkins and Vilardi were 

not finished in 4222 and other miners were waiting to go into a stope. 

About a conversation with Jenkins in January 1981 regarding his complaint 

of not being sent back to 4114, Bradley testified as follows: 

I told him basically that since he wasn't done with 

4222, we weren't going to pull him out in the middle 

of a mining cycle to put him in 4114 when we had other 

miners that were waiting to go into a stope. I didn't 

feel it would be fair to put John Holden and Tom Rice 

in 4222 on cleanup where you didn't make any money and 

then put Danny and Sam in 4114 where they'd make the 

money (Tr. 295). 

500 
John Holden testified that the usual practice was to reassign miners to 

their former stopes. Also, Holden stated that larger stopes earned the 

miners more money than the smaller ones. Holden signed a statement to the 

effect that he would have felt discriminated against if Jenkins had been 

put in stope 4114 and he had been assigned to 4222 to finish it (Exhibit 

P-9). However, at the hearing, Holden claimed he was coerced into signing 

it. Cassell Koepke testified that nine out of ten times miners will be 

reassigned to their former stopes. Terry Koepke testified that usually 

miners are returned to the stopes they formerly worked in but that it is 

not always the situation. Dan Vilardi admitted on cross-examination that 

one of the reasons that the mining cycle was not completed as soon as had 

been expected in stope 4222 was due to Jenkins being absent for a week to 

attend his father's funeral and that he didn't expect Holden and Rice to be 

pulled out of 4114 before they had finished working that stope. 

From the conflicting testimony of miners regarding stope assignments, 

I find that the policy as described by Short was most credible, A review 

of Exhibit P-7 consisting of 41 pages of stope assignments, sand fill 

completion dates, and crew assignments prepared by Ron Short from the 

operator's records support the argument of Day Mines that crews are not 

assigned to permanent stopes and that availability of stopes and crews are 

both factors in making this decision, 

I have considered Jenkins's argument that the failure to return him to 

his former stope assignment must be examined in the light of direct and 

circumstantial evidence surrounding the incident, and particularly in view 

of the tests enumerated in Phelps Dodge, supra (Pet's Brief, page 7); that 

is, the effect that Jenkins's safety complaints had on the operator's 

decision in this matter. These tests assume that such action was an 

adverse action, which I find is not substantiated. Even assuming 

that the stope assignment was partly based upon animus of the operator over 

Jenkins's safety complaints, the argument would nevertheless fail on its 

merits in light of Day Mines defense and argument that the evidence shows a 

business justification for such action which is not pretextual and neither 

incredible or implausible. Chacon v. Phelps Dodge Corp., supra. 

I find that the weight of the evidence supports Day Mines contention 

that their actions in this instance were motivated by the time schedules as 

to the availability of miners and stopes and the requirements for continued 

production in the mine. Stope 4114 became available for mining on January 

23, 1981 and Jenkins was not finished in 4222 until February 17, 1981 which 

would cause measurable loss of production if the stope was to remain idle 

during that time. 

I am not persuaded by Jenkins's argument that his having been assigned 

for the two previous mining cycles in 4114 was evidence that this was to be 

his permanent stope. That he had been given some assurance that he would 

return to this stope was conditional on his finishing the mining cycle in 

4222 which was delayed by his absences, Considering all of these facts 

together, Day Mines explanation is not incredible or implausible, and I 

find, not discriminatory. 

501 
III Was the ·two day suspension of Jenkins an adverse action motivated by 

his protected activity? 

The evidence shows that Day Mines suspended Jenkins without pay for 

two days commencing February 4, 1981 and ending February 6, 1981 after 

Jenkins signed a statement agreeing to improve his relationship with the 

other miners (Finding No. 22). This action was taken by the operator after 

management was presented a petition signed by 43 miners stating that they 

were tired of Jenkins's agitating and disruptive accusations and that they 

did not wish to work with him (Exhibit, p. 4) 

The act of suspending Jenkins for two days was the culmination of 

various events recited earlier herein, such as, the December 25th letter, 

his efforts to elect miners's representatives, and safety complaints made 

by petition and at safety meetings. Again, Day Mines has admitted that 

certain activities Jenkins engaged in during this period of time prior to 

his suspension were protected activities under the Act. In light of the 

foregoing, I conclude that the two day suspension was, at least in part, 

motivated by these protected activities. The evidence also shows there was 

animus on the part of Day Mines's management towards Jenkins because of 

these activities which caused tension amongst the miners, was disruptive to 

the operation of the mine, and reflected badly upon the supervisors. From 

all of these circumstances, I conclude that Jenkins has established, by a 

preponderance of the evidence, a prima facie case under the test set forth 

by the Commission in Fasula-Robinette, supra. 

Day Mines in its brief, denies that Jenkins has met his burden of 

proof in establishing a discriminatory motivation by its act of suspending 

him for two days. However, if it is found that Jenkins has proven a prima 

facie case as to this issue, Day Mines argues that it has shown a business 

justification for such action. Here again, the evidence of record as it 

applies to this issue, must be viewed in the light of the criteria set 

forth by the Commission in Chacon, supra, for analyzing an operator's 

business justification for its adverse action. That is, was the business 

justification so weak, so implausible, or so out of line with normal 

business practices to be merely a pretext to hide the operator's 

discriminatory motive. 

Day Mines argues that the suspension of Jenkins was an extremely 

reasonable measure motivated by concerns over production in the (Tline, the 

safety of the miners, Jenkins's personal safety, and concerns regarding 

Jenkins's personal satisfaction with continued employment (Resp's Brief, 

page 15). Adversely, Jenkins argues' that the disparate treatment between 

Jenkins and Koepke (who also had a petition presented against him by the 

miners) belies that there is a credible justification for suspending 

Jenkins (Pet's Brief, p. 11). 

502 
After a .careful review of all of the evidence and on the basis of the 

Commission's directives regarding this issue, I conclude that Day Mines's 

business justification for suspending Jenkins foi two days was not pretextual and the reasons for doing so were both credible and plausible 

enough to prompt management to take this adverse action. The suspension 

incident must be viewed in light of the existing mood of the miners at this 

time. Threats of bodily harm by fellow miners had been made against 

Jenkins and his son a month earlier which Jenkins believed were serious 

enough to be reported to the sheriff's office. Jenkins was off work for 

two days at this time and came back after Short guaranteed his safety while 

on the mine property. Even though Jenkins was absent for two weeks during 

the month prior to his suspension, apparently the tension among the miners 

did not subside. Ron Short testified that the circumstances that led to 

the decision to suspend Jenkins were the verbal complaints from the miners, 

considerable tension underground reported by the mines supervisors, and 

finally the petition by miners. Short stated that these conditions were 

affecting production and that he was concerned about the safety of the 

miners underground. Also, he did not feel Jenkins was helping correct the 

situation for he was insisting on talking to miners who did not wish to 

discuss these matters with him and forcing himself on them (Tr. 245). 

Again, it is not necessary to pass upon the wisdom or fairness of the 

decision by Short to suspend Jenkins but rather to determine whether it was 

credible, and would motivate the operator to take such action. Belva Coal 

Co., supra. I find that the explanation by Short of his reason for 

suspending Jenkins is plausible. Obviously, conditions at the mine were 

worsening and some type of action was necessary to correct the situation. 

The petition containing the names of 43 miners from a total of approximately 65 underground miners indicating they did not want to continue to 

work with Jenkins supports the action taken by mine management. The two 

day suspension and a written promise by Jenkins to try to improve his 

relationship with the miners seems reasonable under the circumstances. 

As to the alleged disparity on the part of Day Mines in not also 

suspending Koepke, Short testified that he had not had verbal complaints 

against Koepke by other miners as he had against Jenkins and he didn't 

believe the miners were against Koepke as much as against Jenkins (Tr. 

248). This is supported by the record in this case. Only 28 miners signed 

the petition against Koepke. Also, there is a lack of evidence to show 

that Koepke was in any way a leader in safety complaints although it is 

shown that he had joined Jenkins in various activities in this regards. 

However, under the circumstances it appears that the fact that Koepke was 

not suspended does not prove that the business justification by Short was 

pretextual. 

Evidence was presented in this case that Jenkins was a victim of 

harassment and vandalism by fellow miners at the Republic Unit mine 

following the filing of the complaint of discrimination on July 6, 1981. 

503 
The Secretary in its brief on behalf of Jenkins has not alleged that this 

was part of the adverse actions taken by Day Mines against Jenkins but 

instead restrict~d its argument to the three issues previously identified. 

However, I believethat this matter deserves to be addressed for it was 

discussed in both parties' s briefs. I find that the evidence fails to show 

that Day Mines was involved directly or indirectly in any of the acts of 

vandalism or harassment that was inflicted on Jenkins following the filing 

of his complaint of discrimination .. 

The evidence shows that upon notification of these acts of vandalism, 

Short took direct action by writing a memorandum to the miners which was 

posted on the mine bulletin board that vandalism was against company policy 

and would not be tolerated. Further, the memorandum stated that anyone 

caught or implicated in this would be disciplined up to and including 

discharge (Exhibit R-4). Shift bosses were directed to have a meeting with 

their crews and inform them of what was stated in the memorandum. 

CONCLUSION 

I find that complainant, Chester (Sam) Jenkins has failed to establish 

a case of discriminatory conduct on the part of the respondent, Day Mines 

in regards to their posting Jenkins letter of December 25, 1980, failing to 

return Jenkins to Stope 4114 when it became available for mining, suspending Jenkins for two days without pay, and acts of harassment and vandalism 

against Jenkins after he filed his complaint of discrimination. 

The complaint is dismissed, 

Distribution: 

Rochelle Kleinberg, Esq. 

Office of the Solicitor 

United States Department of Labor 

8003 Federal Building 

Seattle, Washington 98174 

Bruce A. Menk, Esq. 

Hall & Evans 

2900 Energy Center 

717 Seventeenth Street 

Denver, Colorado 80202 

ORDER 

Law Judge 

50 11 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAR 161983 

SECRETARY OF LABOR, : Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

FREEMAN UNITED COAL MINING 

COMPANY, A Subsidiary of 

Material Service Corp., 

Respondent 

Docket No. LAKE 82-89 

A.C. No.~00599-03084 

Orient No. 6 Mine 

DECISION 

Appearances: Mark A. Holbert, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, for 

Petitioner; 

Before: 

Harry M. Coven, Esq., Gould & Ratner, Chicago, 

Illinois, for Respondent. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

This is a civil penalty proceeding in which Respondent is 

charged with a violation of 30 C.F.R. § 50.20Ca) because of its 

failure to report to MSHA an occupational injury occurring to one 

of its employees. The case has been submitted on a written stipulation of facts, and both parties have filed memoranda in support of their respective positions. Based on the entire record 

and considering the contentions of the parties, I make the following decision: 

FINDINGS OF FACT 

1. Respondent is the operator of a coal mine in Jefferson 

County, Illinois, known as the Orient No. 6 Mine. 

2. The operation of said mine affects interstate corrunerce 

and produces products which enter interstate corrunerce. 

505 
3. There are approximately 497 employees at the subject 

mine and its annual production is 980,116 tons of coal. The production of all Respondent's mines is approximately 6,559,662 tons 

of coal annually. 

4. During the 24 months prior to the issuance of the citation involved herein, 330 violations were assessed at the subject 

mine. 

5. The imposition of a penalty in this case would not 

impair Respondent's ability to continue in business. 

6. On February 18, 1982, Fred Albers, a miner at the 

subject mine reported to work at approximately 11:00 p.m. The 

regular starting time for his shift was 12:01 a.m., February 19, 

1982. 

7. After arriving at the mine site on February 18, 1982, 

while putting on his work boots in Respondent's wash house, 

Albers experienced pain in his back. 

8. He was admitted to the Pinckneyville Community Hospital, 

Pinckneyville, Illinois, on February 19, 1982. The diagnosis was 

acute lumbosacral strain. He remained in the hospital and was 

treated with physiotherapy and medication until discharged on 

February 24, 1982. 

9. Albers returned to his regular work on March 10, 1982. 

10. The back pain which Albers experienced was not caused 

by "any external source, blow, contact, impact, stress, or 

accident." 

11. Respondent did not report the occurrence of the event 

described in Findings of Fact No. 7 and 8, on MSHA Form 7000-1, 

within 10 working days of its occurrence. 

12. On March 25, 1982, a citation was issued to Respondent 

alleging a violation of 30 C.F.R. § 50.20(a) for its failure to 

complete and mail to MSHA Form 7000-1 for the occupational injury 

occurring on February 18, 1982, and involving Fred Albers. 

13. The condition was abated and the citation terminated on 

March 25, 1982, when Form 7000-1 was completed and mailed to MSHA 

reporting and describing the incident described in Findings of 

Fact No. 7 and 8. 

506 
REGULATORY PROVISIONS 

30 C.F.R. § 50.2(e) provides: 

Ce> "Occupational injury" means any injury 

to a miner which occurs at a mine for which 

medical treatment is administered, or which 

results in death or loss of consciousness, 

inability to perform all job duties on any day 

after an injury, temporary assignment to other 

duties, or transfer to another job. 

30 C.F.R. § 50.20(a) provides: 

§ 50.20 Preparation and submission of MSHA Form 

7000-1--Mine Accident, Injury,' and Illness Report. 

(a) Each operator shall maintain at the mine 

off ice a supply of MSHA Mine Accident, Injury, and 

Illness Report Form 7000-1. These may be obtained 

from MSHA Metal and Nonmetallic Mine Health and 

Safety Subdistrict Off ices and from MSHA Coal Mine 

Health and Safety Subdistrict Off ices. Each operator shall report each accident, occupatioral 

injury, or occupational illness at the mine. The 

principal officer in charge of health and safety 

at the mine or the supervisor of the mine area in 

which an accident or occupational injury occurs, 

or an occupational illness may have originated, 

shall complete or review the form in accordance 

with the instructions and criteria in §§ 50.20-1 

through 50.20-7. If an occupational illness is 

diagnosed as being one of those listed in § 

50.20-6Cb)(7), the operator must report it under 

this part. The operator shall mail completed 

forms to MSHA within ten working days after an 

accident or occupational injury occurs or an 

occupational illness is diagnosed. When an 

accident specified in § 50.10 occurs, which does 

not involve an occupational injury sections A, B, 

and items 5 through 11 of section C of Form 7000-1 

shall be completed and mailed to MSHA in accordance with the instructions in § 50.20-1 and 

criteria contained in §§ 50.20-4 through 50.20-6. 

507 
ISSUE 

Whether the incident of February 18, 1982, involving miner 

Fred Albers, described in Findings of Fact 7 and 8 was an occupational injury and reportable under 30 C.F.R. § 50.20Ca)? 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., in 

the operation of Orient No. 6 Mine and the undersigned Administrative Law Judge has jurisdiction over the parties and subject 

matter of this proceeding. 

2. The incident of February 18, 1982, involving miner Fred 

Albers, described in Findings of Fact 7 and 8 was an occupational 

injury as that term is definea in 30 C.F.R. § 50.2(e). 

DISCUSSION 

The definition of occupational injury in the regulation has 

three factors: Cl) it is an injury to a miner; (2) it occurs at 

a mine; and (3) medical treatment is administered or death, loss 

or consciousness or disability results from the injury. The 

facts stipulated to here clearly show that the injury 

Clumbosacral strain) Cl) was sustained by a miner (2) at a mine 

and (3) resulted in medical treatment and disability. 

Although the facts clearly fit the definition and the def inition is controlling, the conclusion is also supported by a consideration of an analogous field of law--workers compensation. An 

"injury by accident" is shown under most state workers' compensation laws if an employees' usual duties cause a pathological condition such as a back strain. lB LARSON, THE LAW OF WORKMENS 

COMPENSATION§ 38.00 (1982). In the recent case of Memorial 

Medical Center v. Industrial Cowin, 72 Ill. 2d 275, 381 N.E. 2d 

289 (1978), the Illinois Supreme Court upheld a compensation 

award to an employee who sustained a back injury when bending to 

clean a door. See also Wheatley v. Adler, 407 F.2d 307 (D.C. 

Cir. 1968) (the Longshoremen & Harbor Workers Compensqtion Act). 

With respect to the question of the occupational nature of the • 

injury, under workers compensation laws, an employee having fixed 

hours and place of work is in the course of his employment going 

to and from work while on the employer's premises. 1 LARSON, 

supra, § 15.11. Certainly changing into work clothes on the 

premises of the employer is in the course of employment. 

3. Since the incident described in Findings of Fact 7 and 8 

was an occupational injury, Respondent was required to report it 

under 30 C.F.R. § 50.20(a) and failure to do so was a violation 

of the standard. 

508 
4. The violation was not shown to be serious. 

5. Respondent should have been aware of the violation, 

since it was aware of the injury. Therefore, the injury was the 

result of Respondent's negligence. 

6. An appropriate penalty for the violation, considering 

the criteria in § llOCi) of the Act is $100. 

ORDER 

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

Respondent is ORDERED to pay the sum of $100, within 30 days of 

the date of this order, for the violation found herein. 

/7 { ,, . ~. ./ ;x . .. 1,h· 

)

{{,. :, ~, ........ -5 ,,.J, fJvo0 -1--r c - James A. Broderick 

\ Administrative Law Judge 

Distribution: By certified mail 

Mark A. Holbert, Esq., Office of the Solicitor, U.S. Department 

of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 

Harry M. Coven, Esq., Gould & Ratner, 300 West Washington Street, 

Suite 1500, Chicago, IL 60606 

509 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAR 221983 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FREEMAN UNITED COAL MINING 

COMPANY, A Subsidiary of 

Material Service Corp., 

Respondent 

Docket No. LAKE 82-89 

: A.C. No. 11-00599-03084 

Orient No. 6 Mine 

CORRECTION TO DECISION 

ISSUED MARCH 16, 1983 

On page 5 of the Decision issued March 16, 1983, Conclusion of 

Law No. 5 should read as follows: 

5. Respondent should have been aware of the violation, since 

it was aware of the injury. Therefore, the violation was the 

result of Respondent's negligence. 

. A/Id I if; 

Jtv;:;:ef ~~~~:r%:H'1t Administrative Law Judge 

Distribution: By certified mail 

Mark A. Holbert, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 

Harry M. Coven, Esq., Gould & Ratner, 300 west Washington Street, 

Suite 1500, Chicago, IL 60606 

510 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6?10/1 T /12 

MAR 161983 

LANSALOT A. OLGUIN, 

Complainant 

Complaint of Discrimination 

v. 

CITIES SERVICE COMPANY, 

INSPIRATION CONSOLIDATED 

COPPER COMPANY, 

Respondents 

Docket No. WEST 82-125-DM 

Pinto Valley Mine 

DECISION 

Appearances:. David F. Gomez, Esquire, Phoenix, Arizona, for the 

complainant; E. W. Hack, Esquire, Tulsa, Oklahoma, for 

the respondent Cities Service Company; Jon E. Pettibone, 

Esquire, Phoenix, Arizona, for the respondent Inspiration 

Consolidate Copper Company. 

Before: Judge Koutras 

Statement of the Proceedings 

This is a discrimination proceeding initiated by the complainant 

against the respondents pursuant to section 105(c) of the Federal Mine 

Safety and Health Act of 1977, charging the respondents with unlawful 

discrimination. Mr. Olguin alleged that 'the r~spondents retaliated 

against him by terminating and refusing to hire him because of certain 

safety complaints he made to MSHA. 

Respondents filed answers to the complaint denying the allegations 

of discrimination, and after extensive pretrial discovery, and several 

pretrial interlocutory rulings and an appeal, the matter was scheduled 

for a hearing on the merits on Phoenix, Arizona, March 2, 1983. The 

hearing was continued and cancelled after the parties advised me that 

they had reached a settlement, and by motions filed with me on March 10 

and 14, 1983, the parties now move for approval of the settlement and 

dismissal of the case. 

511 
Discussion 

The joint motion for approval of the settlement in this case is 

executed by counsel for all parties, including the complainant Lansalot A. Olguin 

by and through his attorney. The settlement proposals reflect that Mr. Olguin 

has entered into separate settlement agreements with each of the named 

respondents, and the parties state that the settlement is intended to settle 

and dispose of any and all claims arising out of Mr. Olguin's discrimination 

cases filed in the captioned dockets. Upon approval of the settlement, 

the parties jointly move for a dismissal of this matter. 

The terms of the settlement agreements executed by the parties are 

included with the motions, and they are a matter of record. The parties 

state that in order to put this matter to rest and to avoid additional 

litigation time and expense, and upon approval of the $ettlement proposal, 

the named respondents will each pay to the complainant the sum of $1,000 

in full settlement of their respective disputes. 

Conclusion 

After full consideration of all of the pleadings filed by the parties 

in this matter, including the terms of the settlement, I conclude and find 

that the settlement disposition is a reasonable resolution of the disputes 

and that approval of same is in the public interest. 

ORDER 

In view of the foregoing, the motion for approval of the settlement 

IS GRANTED, the settlement IS APPROVED, and upon full compliance with the 

terms thereof, this matter IS DISMISSED. 

~!!.~ Administrative Law Judge 

Distribution: 

E.W. Hack, Esq., Cities Service Co., Box 300, Tulsa, OK 74102 (Certified Mail) 

David Gomez, Esq., 2001 North 3rd St., Suite. 100, Phoenix, AZ 85001-1475 

(Certified Mail) 

Jon E. Pettibone, Esq., Lewis and Roca, 1st Interstate Bank Plaza, 

100 W. Washington St., Phoenix, AZ 85003-1899 (Certified Mail) 

512 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 161983 

KANAWHA COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

KANAWHA COAL COMPANY, 

Respondent 

Contest of Order 

Docket No. WEVA 82-58-R 

Order No. 906148; 10/19/81 

Madison No. 1-A Mine 

Civil Penalty Proceeding 

Docket No. WEVA 82-177 

A.C. No. 46-04945-03029V 

Madison No. 1-A Mine 

DECISION 

Appearances: Harold s. Albertson, Jr., Esq., Hall, Albertson & 

Jones, Charleston, West Virginia, appeared for 

Kanawha Coal Company; 

Before: 

Agnes M. Johnson-Wilson, Esq., Office of the 

Solicitor, U.S. Department of Labor, Philadelphia, 

Pennsylvania, appeared ·for the Secretary of Labor. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

An order of withdrawal was issued under section 104Cd)(l) of 

the Federal Mine Safety and Health Act of 1977 on October 19, 

1981. The order alleges a violation of 30 C.F.R. § 75.200 in 

that the roof control plan was not being followed at the No. 1 

Pillar, 003 section of the subject mine. The order was modified 

on October 28, 1981, to a 104(d) Cl> citation after a review of 

MSHA records disclosed that a clean inspection had taken place 

since the last unwarrantable failure citation had been issued to 

the subject mine. MSHA thereafter filed a petition for a civil 

penalty for the violation alleged in the citation. The two cases 

were consolidated for the purposes of hearing and decision. 

513 
Pursuant to notice, the case was heard on the merits on 

November 16, 1982, in Charleston, West Virginia. Henry James 

Keith and Billy R. Browning, Federal coal mine inspectors, testified on behalf of the Secretary. Richard J. Smith and Mark Allen 

Workman testified on behalf of the operator. Both parties have 

filed posthearing briefs. 

Based on the entire record and considering the contentions 

of the parties, I make the following decision. 

1. At all times pertinent to this decision, Kanawha Coal 

Company Cthe operator) was the owner and operator of the Madison 

No. 1-A Mine in Boone County, West Virginia. 

2. The subject mine produces goods which enter interstate 

commerce and its operation affects interstate commerce. 

3. There is no evidence in the record concerning the size 

of the business of the operator nor as to its history of prior 

violations. 

4. The imposition of penalties in this case will not affect 

the operator's ability to continue in business. 

5. On October 19, 1981, Federal Mine Inspector Henry Keith 

issued a withdrawal order in which he charged that 

"The roof control plan was not being complied with 

at the No. 1 Pillar 003 Section in that adequate 

roof supports had not been installed to narrow the 

roadway to the required 16 feet width and additional turn post had not been installed into the 

pillar that had to be extracted." 

6. On October 19, 1981, when Inspector Keith entered the 

subject mine, the 003 Section was engaged in retreat mining, 

extracting pillars with a continuous miner. 

7. The roof control plan in effect at the subject mine on 

October 19, 1981, provided (Drawing No. 4, page 20) that two 

pillars were to be mined together in the following sequence: 

cuts 1, 3 and 5 to be taken from the center of Pillar No. l; cuts 

2 and 4 from the center of Pillar No. 2; cuts 6 thru 11 from the 

left side of Pillar No. l; cuts 12 through 17 from the right side 

of Pillar No. 1, cut 18 from the center of Pillar No. 2; cuts 19 

through 24 from the left side of Pillar No. 2 and cuts 25 through 

30 from the right side of Pillar No. 2. The cuts from the center 

were 20 feet wide and from the sides 10 feet wide. Two 

"fenders" C4'x4' triangles) were to be left in each pillar. 
8. The plan required that 2 rows of breaker posts be 

installed between Pillar 1 and 2 at the inby end of the pillars: 

that 2 rows of breaker posts be installed outby the left side of 

Pillar No. 1: that turn posts and roadway posts be installed to 

the right of the breaker posts, limiting the roadway between the 

pillar being mined and the next pillar outby and extending one 

full pillar outby the pillar being mined. These posts must be 

set before the first cut. Before the second cut (from pillar 

No. 2), breaker, turn, and roadway posts must be set outby pillar 

No. 2. 

9. In its retreat mining on section 003 in the subject 

mine, the operator always cuts in sequence from left to right. 

DISCUSSION 

On this issue, the testimony of Inspector Keith differs from 

that of the operator's witnesses, Smith and Workman. Since the 

latter were more familiar with the mining sequence followed in 

the subject mine, I am accepting their testimony on the question. 

10. At the time Inspector Keith arrived at the area of No. 

1 pillar, it had been entirely mined except for the last two cuts 

<numbers 16 & 17 on the roof control plan). Two cuts (Numbers 2 

& 4) had been removed from pillar No. 2. Pillars 3 and 4 (to the 

right of pillar 2) had not been mined. 

DISCUSSION 

In making these findings, I am again accepting the testimony 

of Mr. Smith and Mr. Workman which differed from that of Inspector Keith. This follows from and is consistent with findings of 

fact No. 9. 

11. Breaker posts, turn posts and roadway posts had been 

set outby Pillar No. 1 prior to the first cut being taken. The 

roadway posts limited the roadway between Pillar No. 1 and the 

next pillar outby to 16 feet. These posts were standing at the 

time Inspector Keith arrived at the face area. 

DISCUSSION 

On this critical issue the testimony is in conflict. I 

accept the testimony of the witnesses for Respondent because it 

is consistent with their prior testimony which I accept above. I 

believe the inspector was possibly confused, as Respondent suggests, because he travelled to the face between pillars 2 and 3, 

and apparently t~o~ght ~illar 2 was p~llar 1, and that the operator had begun mining pillar 3 on a right to left sequence without setting the required turn and roadway posts. 

51:.l 
12. While Inspector Keith and Mr. Smith were sitting outby 

Pillar No. 2, they heard a noise from behind the line curtain 

outby the pillar. They proceeded through the curtain and found 

that the section foreman Burton had been struck by a roof fall 

while setting wing posts between Pillar 1 and Pillar 2. The 

inspector and Mr. Smith assisted in getting Mr. Burton to the 

outside and did not return to the section that shift. The injury 

to the foreman was not related to any alleged violation of the 

roof control plan. The order was issued after the inspector left 

the section. Mr. Smith mistakenly believed that it referred to 

pillar No. 3 and did not discuss it with the inspector. 

13. If the condition cited by the inspector had existed CI 

have found it did not} it would be of such nature as could significantly and substantially contribute to the cause and effect of a 

mine safety hazard. 

REGULATORY PROVISION 

30 C.F.R. § 75.200 provides: 

Each operator shall undertake to carry out on 

a continuing basis a program to improve the roof 

control system of each coal mine and the means and 

measures to accomplish such system. The roof and 

ribs of all active underground roadways, travelways, and working places shall be supported or 

otherwise controlled adequately to protect persons 

from falls of the roof or ribs. A roof control 

plan and revisions thereof suitable to the roof 

conditions and mining system of each coal mine and 

approved by the Secretary shall be adopted and set 

out in printed form on or before May 29, 1970. 

The plan shall show the type of support and spacing approved by the Secretary. Such plan shall be 

reviewed periodically, at least every 6 months by 

the Secretary, taking into consideration any falls 

of roof or ribs or inadequacy of support of roof 

or ribs. No person shall proceed beyond the last. 

permanent support unless adequate temporary support is provided or unless such temporary support 

is not required under approved roof control plan 

and the absence of such support will not pose a 

hazard to the miners. A copy of the plan shall be 

furnished to the Secretary or his authorized representative an·d shall be available to the miners and 

their representatives. 

516 
ISSUES 

1. Did the operator violate the provisions of its approved 

roof control plan on October 19, 1981, by failing to provide adequate roof supports at the No. 1 pillar, 003 Section to narrow 

the roadway to 16 feet and by failing to install turn posts into 

the pillar being extracted? 

2. If the answer to issue 1 is affirmative, was the violations significant and substantial? 

3. If the answer to issue 1 is affirmative, was the violation due to the operator's unwarrantable failure to comply with 

the standard? 

4. If the answer to issue 1 is affirmative, what is the 

appropriate penalty for the violation? 

CONCLUSIONS OF LAW 

1. Kanawha Coal Company was subject to the provisions of 

the Federal Mine Safety and Health Act in the operation of its 

Madison No. lA Mine at all times pertinent herto, and the undersigned Administrative Law Judge has jurisdiction over the parties 

and subject matter of this proceeding. 

2. MSHA failed to establish that a violation of 30 C.F.R. 

§ 75.200 took place on October 19, 1981. Specifically, the evidence does not establish that the approved roof control plan was 

not being complied with at the No. 1 pillar, 003 section of the 

subject mine, in that adequate roof supports were not installed 

to narrow the roadway to 16 feet and turn posts were not 

installed into the pillar that was being mined. 

DISCUSSION 

As both posthearing briefs point out, the issue in this case 

is largely one of credibility. In general, I am accepting the 

testimony of Respondent over the sharply contradictory testimony 

of MSHA for the following reasons: The testimony of Respondent's 

safety director is supported by a union miner who has no direct 

interest in the outcome of this litigation. The inspector was 

clearly in error with respect to the procedure followed by Respondent in recovering pillars Cit always proceeded from left to 

right). Respondent's witnesses were clearly more knowledgeable 

517 
concerning the conditions on the section.· Finally, I believe the 

inspector may have been distracted because of the roof fall and 

injury (which were not related to the alleged violation) and did 

not accurately recall the conditions on the section when he wrote 

the order. 

3. Since no mandatory safety standard was violated, the 

citation must be vacated and no penalty imposed. 

ORDER 

Based upon the above findings of fact and conclusions of law 

IT IS ORDERED that the contest of the order/citation is GRANTED; 

the order/citation is VACATED; the petition for the assessment of 

a civil penalty is DISMISSED. 

(l,~1;'..l" e .M~/cd.-;,~~/(, Jame~ A. Broderick 

Administrative Law Judge 

Distribution: By certified mail 

Harold s. Albertson, Jr., Esq., Hall, Albertson and Jones, P.O. 

Box 1989, Charleston, WV 25327 

Agnes M. Johnson-Wilson, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 

518 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703} 756-6210/11/12 

tlAR 2 3 1983 

JAMES W. DICKEY, 

Complainant 

Complainant of Discrimination 

v. 

UNITED STATES STEEL MINING 

CO., INC., 

Respondent 

Docket No. PENN 82-179-D 

Cumberland C Mine 

DECISION 

Appearances: Kenneth J. Yablonski, Esquire, Washington, Pennsylvania, 

for the complainant; Louise Q. Symons, Esquire, Pittsburgh, 

Pennsylvania, for the respondent. 

Before: Judge Koutras 

Statement of the Proceeding 

This matter concerns a discrimination complaint filed by the 

complainant against the respondent pursuant to section 105(c)(3) of the 

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

Complainant claims that he was unlawfully discriminated against and 

discharged from his job by the respondent for engaging in activity 

protected under section 105(c)(l) of the Act. Respondent filed 

a timely answer denying any discrimination and asserting that the complainant was discharged for just cause. A hearing was convened in 

Washington, Pennsylvania, and the parties appeared and participated 

therein. The parties filed posthearing briefs, and the arguments presented 

therein have been considered by me in the course of this decision. 

Issue Presented 

The principal issue presented in this case is whether the Complainant's 

discharge was prompted by protected activity under the Act. Additional 

issues raised are discussed in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301 

et~ 

519 
2. Sections 105(c)(l), (2) and (3) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815(c)(l) (2) and (3). 

3. Commission Rules, 20 CFR 2700.1, et~ 

Introduction 

Mr. Dickey's discrimination complaint was filed with the Commission 

on April 5, 1982, and it was filed after he had been notified by MSHA 

on March 15, 1982, that its investigation of his complaint disclosed no 

violation of section 105(c) of the Act. Briefly stated, the background 

concerning his discrimination complaint against the respondent follow 

below. 

The complainant James Dickey is a 35 year old miner who was hired 

by the respondent in August 1977, after working some seven years with 

the Bethlehem Mines Corporation, where he worked as a continuous miner 

operator, and also served as an elected UMWA safety committeeman. During 

his employment with the respondent, he worked as roof bolter, continuous 

miner operator, and shortly before his discharge he was working in the 

preparation plant. In addition, during his tenure with the respondent, 

he either directly or indirectly filed several safety complaints and 

grievances questioning certain safety practices or otherwise challenging 

. certain safety practices or decisions on the part of mine management. 

Some of his complaints and personal grievances were directed against mine 

management personnel, and as a result of these encounters with management, 

Mr. Dickey claims he was singled out and fired over an incident involving 

himself and his common law wife, Donna Yoder, which occurred at the mine 

on September 18, 1981. In support of this conclusion, Mr. Dickey claims 

that the incident with Donna Yoder was used as a pretext by the respondent 

to make good on certain management threats and promises to fire him made 

by one Sam Pulice, the mine foreman. Mr. Dickey claims further that 

because of his intense interest in safety matters, his "safety activism" 

(even though he was not a member of the safety committee while employed by 

the respondent), and his numberous complaints and grievances, management 

considered him to be a "troublemaker" and -fired him at the first opportunity. 

The incident which precipitated Mr. Dickey's discharge took place 

at the preparation plant shortly after the start of the scheduled 12:01 a.m. 

shift on September 18, 1981. Donna Yoder also worked at the mine, and 

on that evening, she and Mr. Dickey were both scheduled to work. However~ 

Donna Yoder had asked to see plant foreman Doug Held to discuss her personal 

problems with Mr. Dickey, and while Donna Yoder was in Mr. Held's office 

speaking with him, Mr. Dickey arrived on the scene and he and Donna Yoder 

became embroiled in a heated discussion over their relationship. The 

"discussion" escalated into an exchange of cursing and threats between 

Donna Yoder and Mr. Dickey, and Mr. Held attempting to keep the two 

separated while trying to get Mr. Dickey to leave the scene and return 

to work. This proved futile, and after Donna Yoder left his office, with 

Mr. Dickey in "hot pursuit", Mr. Held followed them out and encountered 

them on a stairway landing where he discovered Mr. Dickey "pinning" 

Donna Yoder against the stair railing trying to restrain her from leaving. 

Later, after separating the two, and after Mr. Dickey had left the mine, 

Donna Yoder stated that Mr. Dickey had struck her at some point in time 

during their encounter that evening. 

520 
On the day following the incident with Donna Yoder Mr. Dickey was 

notified that the respondent had suspended him with intent to discharge 

him for his· "threatening and abusive conduct" toward Donna Yoder, which 

respondent claims resulted in injuries to Donna Yoder during the claimed 

assault on her by Mr. Dickey. The discharge was arbitrated and upheld 

under the union contract. Mr. Dickey then filed a complaint with MSHA, 

and after MSHA declined to pursue the matter further, the instant discrimination complaint was filed with this Commission. 

Respondent's defense is that Mr. Dickey's discharge was prompted 

because of his violation of a company "shop rule" which prohibits the 

use of threatening and abusive conduct by one employee on another employee. 

Respondent denies that Mr. Dickey was "singled out" for "special treatment" 

because of his prior safety complaints, grievances, and encounters with 

mine management, and maintains that he would have been discharged because 

of his conduct involving Donna Yoder whether or not he filed safety 

complaints. Respondent denies that Mr. Dickey suffered disparate 

treatment that his discharge was in any way motivated by protected 

activities, and points to the fact that an independent arbitrator judged 

Mr. Dickey's actions of September 18, 1981 alone to justify his discharge. 

Complainant's Testimony and Evidence 

Mr. Dickey testified that he began work at United States Steel's 

Cumberland Mine in August 1977, and when first hired he worked as a 

roof bolter. He then worked as a continuous miner operator from October 

to June 1981, at which time he bid on an "outside" job as a coal sampler 

in the preparation plant, and started that job on July 1st. While 

employed at the mine he was never a safety committeeman, but stated that 

he "was very active on safety matters", and confirmed that he was a 

committeeman during his past employment at the Bethelehem Mine's Marianna 

Mine in 1977 (Tr. 14-17). He explained his interests in safety as follows 

(Tr. 17-18): 

A. Well, I have always been a strong person as 

far as safety issues were concerned, and I was 

a past committeeman at Marianna. I learned a 

lot about safety and I came to realize that production 

and safety had to go hand in hand in any mining 

industry because without one, you couldn't have 

the other. 

I became very interested in safety, and I was 

approached on daily occasions by other men of my 

local at the Cumberland Mine who knew that I had 

safety experience and that I was familiar with the 

various laws and situations concerning safety; and 

they asked my opinions on different issues, and I 

gave it to them. 

521 
Mr. Dickey identified exhibit C-1 as a May 23, 1979 safety grievance 

concerning an. unsafe slope belt. The belt had several missing rollers 

which caused the slope car cable to cut into the ties and cement. 

He and several others miners reported the condition to the safety 

committeeman, and when mine management took the position that there was 

nothing wrong with the cable, Mr. Dickey exercised his safety rights 

and refused to ride the slope car into the mine. MSHA was called in 

and the respondent was cited for the condition, and the crew was paid 

for the shift (Tr. 23-25). 

Mr. Dickey identified exhibit C-2 as an October 4, 1979, safety report 

he and another miner filed concerning the slope belt emergency evacuation 

system. Mr. Dickey's complaint concerned his refusal to ride the belt 

out of the mine in other than emergency situations. He refused to ride 

the belt when the slope car was out of service, and when mine management 

refused to pay him for staying in the mine he filed one grievance for his 

pay and another one seeking to clarify the emergency use of the belt 

in question (Tr. 26-31). 

Mr. Dickey testified as to safety dispute on February 1, 1979, 

concerning the lack of adequate communications on the slope car. He 

indicated that communications had to be maintained between the car and 

the hoist operator, and on the day in question the system was not working. 

He and other crew members exercised their safety rights and refused to 

ride the car until the problem could be taken care of. Mr. Dickey stated 

that he suggested the use of walkie talkies, but that this was rejected 

by mine management. He also stated that mine superintendent Sam Pulice 

accused him of being the "ring leader" in complaining, and also told 

him he "was creating a lot of waves that shouldn't be created" (Tr. 37). 

Mr. Dickey stated that the communications on the slope car were restored 

during the day shift and he went into the mine and went to work (Tr. 36; 

exhibit C-3). 

Mr. Dickey identified exhibit C-4, as a report of an incident which 

occurred on November 30, 1979, and which Fesulted in a charge of insubordination being filed against him. Mr. Dickey stated that he was operating 

a continuous miner loading coal onto shuttle cars when he saw someone 

walking up to and along side his miner. He flashed his cap lamp at him 

and Mr. Dickey shut off the machine. The person was section foreman 

Kenny Foreman, and he spoke with Mr. Dickey about some work which needed 

to be done. Mr. Foreman was between the machine and the rib, and Mr. Dickey 

refused to start his machine until Mr. Foreman removed himself ·from a 

position of danger between the machine and the rib. Mr. Foreman would 

not move, and Mr. Foreman informed him that if he didn't start his 

machine and begin loading he would charge him (Dickey) with insubordination. 

Mr. Dickey stated tha.t when Mr. Foreman refused to remove himself 

to a safe position·, Mr. Dickey informed him that he was involing his 

safety rights and would refuse to operate the machine as long as Mr. Foreman 

522 
insisted on staying between the rib and the machine. Mr. Dickey requested 

other work, .and Mr. Foreman then spoke with shift foreman Crocker, and 

Mr. Dickey was instructed to see mine superintendent Sam Pulice. Mr. Pulice 

summoned him to his office and accused him of refusing to operate the 

miner. Mr. Pulice then sent him home, and Mr. Dickey filed a grievance 

and indicated that he was paid for the time he was off work, and that the 

incident was supposed to be removed from his record (Tr. 48). 

Mr. Dickey identified exhibit C-5 as a report concerning an incident 

which occurred on approximately March 17 or 18, 1980, concerning a cable 

on his continuous mining machine. Upon an inspection of the machine he 

discovered a spliced cable which he considered to be damaged. When a 

mechanic opened up the splice, he found it had been mashed and simply 

taped over. The mechanic gave Mr. Dickey the defective piece of cable 

which he cut out, and the next morning he took it to maintenance foreman 

Lee Gurley, and after discussing it with him realized that he had missed 

the slope car into the mine. He then took the next car in, but upon 

arrival underground, was instructed to go back outside. He was sent 

home for missing the first car, but filed a grievance and stated that he 

was paid for the day he was sent home (Tr. 51-54). 

Mr. Dickey stated that shortly after the slope car incident there 

was another incident in September 1980 involving a great deal of dust 

on the section while he and his crew were loading coal. The dust was 

corning up the track entry and the crew stopped work and went to the dinner 

hole while the section boss was attempting to find out the source of 

the dust and clear up the situation. Since most of the crew had stopped 

work, Mr. Dickey, his helper, and two shuttle car operators shut down 

their equipment and joined the rest of the crew in the dinner hole. 

Mr. Dickey stated that when he was told the crew would have to •c.ontinue 

working in the dust, he requested his individual safety rights and refused 

to work, and he was informed that the rest of the crew had done the same 

thing. Since the shift was over, the men left the section and went home. 

The next morning, foreman Dan Fraley informed Mr. Dickey that Mr. Pulice 

wanted to know "if Dickey was the guy that started this and had the guys 

leave the crew." Mr. Fraley stated to Mr. Dickey that he informed Mr. Pulice 

that Mr. Dickey did not instigate the stoppage and each miner decided 

on his own not to work in the dust. 

Mr. Dickey stated that as a result of the aforementioned dust incident, 

he was called to Mr. Pulice's office, and Mr. Pulice accused him of taking 

the crew off the section (Tr. 60). However, Mr. Dickey was not reprimanded 

or given time off because of this incident (Tr. 61). However, Mr. Dickey 

stated that Mr. Pulice told him that he was fed up with him, accused him 

of being an instigator, and told him that if he kept up with "these so-called 

safety issues", he would not have a job (Tr. 62). 

523 
Mr. Dickey identified exhibit C-6 as a grievance incident which 

occurred on approximately October 1, 1980, a week or so after the dust 

incident. Mr. Dickey discovered a taped spliced cable that connected 

the mining machine cutting motor to the miner distribution box. The 

machine was taken out of service and shut down, and Mr. Dickey was sent 

to another section after invoking his safety rights and refusing to 

operate the machine. Shortly after being assigned work cleaning the 

return, Mr. Dickey stated that he and three others were sent home. They 

were told that Mr. Pulice or Gene Barno had ordered them sent home. As 

a result of this, they filed a grievance and were subsequently paid. 

(Tr. 67-70). 

Mr. Dickey testified as to a grievance filed in October 1980, 

over an incident concerning the procedure for cutting through an underground gas well. In the past the crew was kept outside of the mine and 

put to work while the cutting was taking place. On this occasion, the 

crew was sent home and they filed a grievance. Mr. Pulice called a meeting 

with the crew over the grievance, and at the meeting he cursed Mr. Dickey 

and Mr. Dickey stated that "he told me that he was going to fire me the 

first chance he got" (Tr. 71-73). 

Mr. Dickey identified exhibit C-7 as the grievance he filed against 

Mr. Pulice for cursing him, and although he indicated that he also filed 

a separate safety grievance for being sent home he could not locate a 

copy of it (Tr. 73-74). 

Mr. Dickey stated that the grievance filed against Mr. Pulice 

was filed on October 27, 1980, and in February 1981 it had proceeded 

to step three of the grievance process. Mr. Pulice at first denied 

cursing him, but when reminded that Mr. Dickey had many witnesses who 

heard him, Mr. Pulice admitted it, cussed him again and again threatened 

to fire him (Tr. 79). Mr. Dickey stated that this took place at the 

third step grievance meeting, but that Mr. Pulice apologized to him 

and Mr. Dickey accepted it, and that ended the grievance (Tr. 79-81). 

Mr. Dickey testified that on approximately June 12, 1981, he was 

called to the mine office after finishing his work. Safety committeeman 

Goody advised him at that time that Mr. Pulice was going to fire him 

for purportedly creating some kind of an unsafe condition. Mr. Dickey 

spoke with Union district safety inspector Tom Rabbitt, who also was at 

the mine at this time, and Mr. Rabbitt advised him that mine management 

would try to fire him over the alleged incident. After Mr. Dickey 

advised Mr. Rabbitt that he did not work on the evening of the alleged 

incident, and when Mr. Rabbitt advised Mr. Pulice of this fact, the entire 

matter was dropped and nothing happened (Tr. 82-85). Following this 

incident, Mr. Dickey successfully bid on an outside job in the preparation 

plant (Tr. 86). 

Mr. Dickey testified that he bid on a surface job because he was 

concerned that mine management would find a way to fire him because 

underground superintendent Cook and Sam Pulice continually accused him 

524 
of "creating a lot of problems". In addition, Mr. Dickey stated that his 

section forerilan, William Homastat, advised him that Sam Pulice told 

him that he would fire Mr. Dickey the first chance he got (Tr. 88). 

Mr. Dickey stated that on June or July 1, 1981, he began work 

in the preparation plant and his foreman was Dale Norris. Mr. Dickey 

stated that he met with Mr. Norris and Mr. Norris stated that he had 

"heard a lot of stories" about his "safety activities" and stated "I 

understand that you are going to be a real problem for me" (Tr. 89). 

Mr. Dickey stated that he advised Mr. Norris that he never tried to create 

any problems, but that he would insist that safe working conditions be 

maintained (Tr. 90). During his work in the preparation plant, Mr. Dickey 

stated that he filed no formal safety grievances, but did discuss a dirty 

belt and a belt malfunction with his supervisors, but the conditions were 

taken care of (Tr. 90-91). 

Mr. Dickey confirmed that he and Donna Yoder lived together in a 

"common law" relationship as man and wife since 1975, or for seven and 

a half years, and that her two children by a previous marriage lived with 

them. The relationship ended on September 22, 1981. Donna Yoder was 

also employed at the mine as a utility person, and prior to the incident 

of September 18, 1981, they were having some problems (Tr. 92-95). 

Mr. Dickey testified that on September 22, 1981, he reported for 

work but was upset over his problems with Donna Yoder. He decided to 

"report off" on sick leave. He want to plant foreman Doug Held's office 

to advise him that he was taking sick leave and when he arrived at 

his office he found Miss Yoder there speaking with Mr. Held. Mr. Held 

advised Mr. Dickey that he was busy and closed his door. Mr. Dickey 

opened the door and he and Miss Yoder began swearing at each other (Tr. 99). 

Miss Yoder asked for his car keys, and when he refused to give them to 

her, she left the room and started down the stairs. He ran after her 

and they were cursing at each other. She was screaming at him, and they 

became entangled on the stairwell and he grabbed the hand rail and pressed 

against her in an effort to calm her down. At this point, Mr. Held appeared 

at the top of the stairs, and Miss Yoder told him that he (Dickey) struck 

her. Dickey and Yoder continued cursing each other, and Mr. Held asked 

Mr. Dickey to leave since he had reported off, and Mr. Held ordered him 

off the property. Mr. Dickey accused Mr. Held of interferring in his family 

life, took off his hat and threw it on the floor, and then left (Tr. 100-106). 

Mr. Dickey confirmed that following the incident at the mine, he and 

Miss Yoder ended their relationship and Mr. Dickey "moved out". Miss Yoder 

filed no criminal charges against him as a result of the incident (Tr. 106). 

Exhibit C-9 is a copy of U.S. Steel's employee "shop rules", 

and Mr. Dickey conceded that these are the employee rules of conduct 

applicable to all employees, and that everyone is given a copy and told 

to read them (Tr. 109). He confirmed that he was supposed to have 

violated rule #4, but believes that he was discharged for his safety 

activities (Tr. 110). 

.. 

525 
Mr. Dickey testified that other employees were guilty of violating 

company shop rules but were not suspended or discharged. He identified 

exhibit C-10 as a grievance filed by employee Randall Dugan against 

Sam Pulice after he was cursed and threatened by Mr. Pulice. Mr. Pulice 

was not disciplined, and the company's position was that he was a 

"company official" and the rules did not apply to him (Tr. 111-112). 

Mr. Dickey testified as to a fight which occurred in 1979 between 

employee Les Reiser and acting section foreman Rich Borzani. They were 

not suspended or discharged, but foreman Cook spoke to them and they 

apoligized to each other (Tr. 113). 

Mr. Dickey testified to an incident in 1979 where foreman Denzell 

Desmond struck shuttle car operator David Rowe, and Mr. Desmond was not 

suspended or discharged. Mr. Cook purportedly stated that had Mr. Rowe 

punched back he would have been discharged (Tr. 114). 

Mr. stated that section Foreman Kenny Foreman violated the shop 

rule by failing to observe safety regulations when he insisted on standing 

between the miner machine and the rib, but he was not disciplined (Tr. 115). 

Mr. Dickey also testified in 1979, employee Tom Pollock was caught 

falsifying a doctor's slip and was suspended for one to three days (Tr. 116). 

Mr. Dickey testified that he filed a complaint against assistant 

mine foreman Bernie Steve when Mr. Steve directed him and his helper to 

pull some ventilation back to a point which would be in violation of 

Federal or state law, but the company did not discipline Mr. Steve for 

this (Tr. 117). 

Mr. Dickey testified that employee Donny Boyle was caught sleeping 

in the mine in 1980 and was suspended for a few days (Tr. 117). Employee 

Mike Mechanic falsified a doctor slip to cover an absence, and was suspended 

for one or three days (Tr. 117). Employee Timmy Ross was caught with 

matches in the mine and was suspended for one day (Tr. 118). Employee 

Dale Williams was on company property drunk when he was supposed to be 

working, and on another occasion was caught pouring whiskey out of a 

bottle into a cup and drinking it in the bathhouse. When the company 

found out that the whiskey bottle belonged to preparation plant superintendent Dale Norris, the matter was dropped (Tr. 118-119). 

Mr. Dickey testified that employee Lisa Zern violated shop rules 

on four or five separate occasions, and was suspended one time for five 

days (Ex. C-11, Tr. 119). He also testified that employee Jane Christopher 

and another girl who worked on the belt line filed grievances against a 

foreman whose nickname is "Snuffy" because he was constantly cursing at 

them and harrassing them. The grievances were filed after Mr. Cook took 

no action against the foreman, and the girls were reassigned to another 

crew (Tr. 120). 

Mr. Dickey was cross-examined as to each of his asserted safety 

and personal complaints and grievances, and was also questioned concerning 

his contentions that other mine employees has violated certain shop 

526 
rules but were either not suspended or discharged or received less 

severe discipline than he did (Tr. 131-152; 158-167; 168-179; 241-257). 

Mr. Dickey confirmed that under the mine labor agreement he was subject 

to discipline for claiming his individual safety rights in bad faith, 

but denied that he was acting in bad faith or was disciplined for filing 

the grievance of December 7, 1979 (Tr. 159). 

In response to questions from U.S. Steel's counsel as to whether 

Mr. Dockey considered Mr. Pulice to be "volatile", Mr. Dickey responded 

as follows (Tr. 179-183): 

Q. You had a run-in with Sam Pulice? 

A. Yes, ma'am. 

Q. Would you characterize Mr. Pulice as volatile? 

A. I don't understand what you mean. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Does he a have 

a tendency to lose his temper, blow his cool, so to 

speak? 

BY MS. SYMONS: 

Q. Would you call him hot tempered? 

A. He was with me. 

Q. Do you know if he was hot tempered with anyone else? 

A. I'd say he was once in a while on different issues, 

if he thought that he was right on it, I imagine, yes, 

ma'am. I can't really tell you, you know, the man's 

personality. All I know is that he came after me a 

good bit. 

Q. Do you know if he yelled at anyone else? 

A. If he yelled at anyone else, ma'am? 

Q. Yes. 

A. Yes, ma'am. Yes, ma'am. 

Q. Do you recognize something called mine talk or shop 

talk at Cumberland Mine? 

A. Yes, ma'am. 

Q. Isn't it true that almost everyone at Cumberland 

Mine uses that kind of language on occasions? 

A. It depends on what you are saying by that kind of 

language, ma'am. 
Q. What I will categorize as four-letter words. 

A. To use a four-letter word, ma'am, in mine talk, 

is sometimes nothing, unless they are directed towards 

a person for a certain thing. 

Q. Well, is it true that sometimes at Cumberland Mine, 

you used four-letter words? 

A. You mean just in a manner of speaking? 

Q. Yes. 

A. Never addressing towards anyone that I can recall, 

no. 

Q. You accused Mr. Pulice of occasionally using fourletter wor·ds, isn't that true? 

A. I have accused him of using more than four-letter 

words, ma'am. 

Q. How do you categorize them then? 

A. Well, I don't, ma'am. I don't classify son-of-abitch as a four-letter word. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: By the same token, 

that particular expression, if you get your finger caught 

in a pinch point, is a little different than cussing 

some employee down, isn't that what we are talking about 

here? 

MS. SYMONS: Yes. 

- ADMINISTRATIVE LAW JUDGE KOUTRAS: Because if you disciplined everybody in the mines who used four-letter words, 

there wouldn't be any mining going on. 

MS. SYMONS: I think that is my point. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: But the context in 

which the question is asked and his answer is yes, he probably 

uses four-letter words like anybody else, but never directly 

to any one person as a personal insult is what I think he 

is trying to say. 

THE WITNESS: Yes, sir. 

528 
Mr. Dickey reiterated that he bid on the preparation plant 

job to get away from Sam Pulice (Tr. 191). However, he conceded that 

as mine foreman, Mr. Pulice would also be in charge of the preparation 

plant, but that he would not have to see him everyday or walk by his 

office as he did when he was assigned underground (Tr. 196). 

Mr. Dickey stated that Mr. Pulice reported to mine superintendents 

Dale Norris and Walter Cook. Mr. Norris was the preparation plant 

superintendent and that Mr. Cook was the underground mine superintendent 

(Tr. 198). Mr. Dickey believed that Mr. Pulice's authority as mine 

foreman also extended to the preparation plant (Tr. 199). 

Thomas J. Rabbitt, Safety Inspector, UMWA, District 4, confirmed 

that he was acquainted with Mr. Dickey and described him as being concerned 

with his and other's safety rights, and that he would not hesitate to 

complain about safety. Mr. Rabbitt also confirmed that he gave him 

copies of exhibits C-2 and C-3 when he came to his office to request 

them (Tr. 278-282). 

Mr. Rabbitt confirmed the incident concerning an allegation 

against Mr. Dickey that he may have caused a safety violation and that 

the matter was dropped after he (Rabbitt) told Mr. Pulice that Mr. Dickey 

was not working in the mine at the time of the incident in question 

(Tr. 285). 

On cross-examination, Mr. Rabbitt confirmed that Mr. Dickey and 

others did file a grievance concerning the slope car incident of 

October 4, 1979 (Tr. 286). He also confirmed that Mr. Dickey was involved 

in talks with management over the suggested walkie-talkie (Tr. 291). 

Mr. Dickey stated that Mr. Pulice would "blow off steam just like everybody 

does" when he got mad, but he doesn't know Mr. Pulice, nor has he ever 

been present when he may have yelled at Mr. Dickey (Tr. 294). He also 

has never been told by any union members at the mine that Mr. Pulice ever 

yelled, screamed, or used foul language to them (Tr. 295). 

Mr. Rabbitt stated that he did not feel that Mr. Dickey's discharge 

was justified, but that if he actually physically assaulted Donna Yoder, 

then the company would have just cause to discharge him under the unionmanagement conduct rules (Tr. 298). 

Jane Christopher, testified that she has been employed at the mine 

since December 1978. She testified that on several occasions she and 

another female miner, Helen Kozloski, were harrassed practically daily 

by Foreman Ed Yanik who stood beside them and swore at them. They 

complained to Mr. Pulice and Mr. Cook but no action was ever taken against 

Mr. Yanik (Tr. 316-318). 

On cross-examination, Ms. Christopher stated that she filed a 

regular grievance to be removed from Mr. Yanik's crew sometime in 

April 1980, but that after the grievance was filed she was taken off of 

his crew (Tr. 320). 

529 
Ms. Christopher testified that she knew Mr. Pulice, characterized 

him as "h.ot tempered", and confirmed that she has heard him use profanity 

or obscentities at the time that she complained to him about the language 

Mr. Yanik was using (Tr. 325). 

Gerald E. Swift, Executive Board member, UMWA District No. 4, 

confirmed that he has been involved in grievances brought against mine 

bosses for cursing at employees at the mine. However, the grievances 

were withdrawn because of questions raised as to whether there was 

actual cursing and because the contract does not provide for the union 

to tell mine management how to discipline its salaried personnel 

(Tr. 329). 

On cross-examination, Mr. Swift confirmed that two miners filed a 

grievance against a supervisor for cursing them but that it was withdrawn 

because he could not process it under the contract (Tr. 332). He identified 

exhibit C-7 as the grievance filed by Mr. Dickey against Mr. Pulice, 

and he indicated that grievances of this kind where the employee is seeking 

an apology are usually resolved or settled at the third stage (Tr. 334). 

Mr. Swift confirmed that two employees, Dave Smith and Ralph Korzum, 

were discharged for insubordination and using obscene language towards 

a supervisor, but when they filed cross complaints against the supervisor 

for using the same type of language against them, management took the 

position that there was nothing to be gained by going to arbitration 

because under the contract the union couldn't force management to 

discipline salaried managers (Tr. 339). Mr. Swift also confirmed that 

employee Chris Watson was discharged for falsifying a doctor's slip 

(Tr. 337). 

Danny Litton testified that he is employed at the mine in question 

and that on some occasions he worked on the same crew with Mr. Dickey as 

a "fill in". He confirmed that Mr. Dickey was concerned about safety 

and that he and other miners on occasion consulted with Mr. Dickey 

about safety problems. He stated that Mr. Dickey was not afraid to 

stand up for safety issues (Tr. 350), and-he confirmed that he had overheard 

a conversation betv.e=n Mr. Dickey and Mr. Sam Pulice in the mine office 

during an incident concerning the cutting through of a gas well, and his 

testimony in regard to this incident is as follows (Tr. 352-353): 

Q. What was it you heard Pulice say to Dickey? 

A. Well, Sam Pulice looked at him between me and 

said some swear words and pointed his finger and 

said he'd fire him if it was the last thing he ever 

done. 

Q. Would you tell us how that happened to occur, 

that you heard this? 

A. Well, they called the whole crew, told us 

that they were going into the office or something; 

and that's all we knew. So me and a couple of my 

530 
friends went into the office to see what was going 

on, you know, because it might concern the rest of 

us, too; so we just, you know, we went in and then 

I just kind of stayed in the back and listened to 

him talk. 

Q. Do you recall what the incident was that they 

were called in about? 

A. I believe it was about the gas well at the time. 

Q. Was there a grievance filed over the gas well? 

A. Yes. 

Q. You say you heard Pulice using some pretty choice 

language directed at Dickey? 

A. Yes. 

Q. Did he accuse Dickey of being the instigator of 

this thing? 

A. He said something to that effect. 

Q. Then somewhere along the line, you also heard him 

say to Dickey that I will fire you if it's the last 

thing I do? 

A. Yes; he did say that. 

Mr. Litton stated that he particpated in the grievance filed over 

the miner cable (exhibit C-6), and he indicated that he has never had any 

"encounters" with Mr. Pulice and had chosen "to stay away from him 

whenever I could" (Tr. 358). 

Bruce G. Diges, testified that he is employed at the mine and that 

he worked with Mr. Dickey when he was there for about a year as Mr. Dickey's 

miner helper. He described Mr. Dickey as being "very safety conscious", 

and would always check out his machine (Tr. 362). 

Mr. Diges confirmed that grievances were filed over the miner 

cable and gas well, and that as a result of these incidents Mr. Dickey 

was threatened by mine management (Tr. 364). He stated that at the 

grievance meetings in the mine office Mr. Pulice advised his crew that 

he "was going to break us up", that "he will fire us if he can", and 

that he proceeded to argue with Mr. Dickey and they were cursing back 

and forth (Tr. 365). Mr. Diges also indicated that Mr. Pulice indicated 

to him that he should sever his relationship with Mr. Dickey, and that if 

he didn't "I would be fired" (Tr. 369). 

531 
Mr. Diges testified further that "Sam Pulice was a rat. He was 

very hot ~empered; very easy to fly off the handle" (Tr. 376). He had 

never known Mr. Dickey to "fly off the handle" on safety issues (Tr. 377). 

Mr. Diges confirmed that he had received a couple of absentee notices 

from management, and he confirmed that when Mr. Pulice and Mr. Dickey 

were arguing over the grievances which were filed, Mr. Dickey did not 

curse back (Tr. 380). 

Walter E. Cook, Jr., testified that he has been the underground 

mine superintendent at the Cumberland Mine since approximately 1977, 

and that he knew Mr. Dickey as a safety oriented person who was always 

involved if there were any "safety confrontations" on his shift. He 

considered Mr. Dickey to be "right up there" with some of his good 

continuous miner operators. Although he and Mr. Dickey occasionally 

exchange words, he did not consider Mr. Dickey to be a "hot head" in 

his daily operations (Tr. 384). 

Mr. Cook stated that most of the time Mr. Dickey was astute and 

knowledgeable on safety matters, and he conceded that most of the safety 

issues brought to his attention were important issues (Tr. 384). Although 

he disagreed with Mr. Dickey's complaints over the slope car communications, 

he did not believe that Mr. Dickey was trying to "blow it out of proportion" 

or that he was "agitating for the sake of agitating" (Tr. 385-386). 

Mr. Cook stated that he was not involved in the decision to discharge 

Mr. Dickey, and that the decision in this regard was made by outside 

superintendent Dale Norris, general superintendent J. W. Boyle, and he 

indicated that "our Pittsburgh Corporate Office would have been consulted 

in this matter" (Tr. 387). He confirmed that he learned of Mr. Dickey's 

discharge "after the fact" (Tr. 389). 

Mr. Cook indicated that he was aware of the grievance filed by 

employee Randall Dugan against Mr. Pulice because of Mr. Pulice's alleged 

abusive language to Mr. Dugan, and he con~irmed that he gave Mr. Pulice 

a verbal reprimand, but he could not recall telling Mr. Dugan about this 

reprimand (Tr. 394). Mr. Cook could not recall any fighting incident 

between employees Les Reiser and Rich Borzani, or any incident between 

employees Denzell Desmond and David Rowe (Tr. 395). He did recall the 

incident concerning Mr. Dickey and foreman Kenny Foreman, and he confirmed 

that he verbally reprimanded Mr. Foreman over the matter, but gave no 

official notice of this to anyone (Tr. 396). He also confirmed that 

the record of Mr. Dickey's one-day suspension in the matter should have 

been removed from his personnel file (Tr. 397), and he did not know why 

it was still in his file (Tr. 400; exhibit C-12). He also identified 

exhibit C-13 as a written reprimand to Mr. Dickey for being absent from 

work, and he could not explain why the copy does not show that it was 

ever delivered to Mr. Dickey, even though this is required (exhibit C-13; 

Tr. 401). 

532 
Mr. Cook confirmed that he liftedthe one-day suspension given to 

Mr. Dickey over the incident with Kenny Foreman, and he did so because 

"I don't think the foreman did act in the proper fashion in suspending 

Mr. Dickey, and I didn't think I had a cause to argue under the contract 

and I settled that case from that standpoint" (Tr. 409). Mr. Cook 

confirmed that he knew about the disciplinary action against employee 

Dennis Boyle which resulted in a 3-day suspension for sleeping on the job, 

and he indicated that Mr. Boyle was suspended with intent to discharge, 

but was given the opportunity to resign rather than being discharged 

(Tr. 411). He also indicated that he was not familiar with the outcome 

of any disciplinary action against Dale Williams for drinking on company 

property, nor could he confirm that Dale Norris was disciplined for having 

whiskey on company property (Tr. 412-413). He also confirmed that he was 

aware of the three-day suspension given employee Tim Ross for having 

matches in his dinner bucket, and while management contemplated discharging 

Mr. Ross, the union intervened, and based on all of the facts of his 

case, it was decided to suspend him for three-days instead of discharging 

him (Tr. 417). 

Mr. Cook also confirmed that he was aware of the disciplinary case 

against Lisa Zern for an "absentee problem", but he indicated that he was 

not familiar with all of the details of her case, and while he recalled 

that she may have resigned, he could not state that she was not discharged 

(Tr. 424). Mr. Cook indicated that since his supervisory personnel are 

not under the UMWA/BCOA contract he can discipline them "in a little 

different fashion than I can a bargaining unit employee" (Tr. 431). 

He confirmed that he spoke with Ed Yanik about cursing and harrassing 

Jane Christopher, but did not suspend or fire him and simply "talked to 

to him" (Tr. 431). He also confirmed that he did not discipline Mr. Pulice 

over the incident where he cursed Mr. Dickey, and he stated that "I don't 

have too many people who are as rambunctious as Mr. Pulice" (Tr. 434). 

He also stated that Mr. Pulice did not receive a bonus and that one of 

the reasons for this was the cursing incident with Mr. Dickey (Tr. 435), 

but he conceded that Mr. Pulice's personnel file did not reflect this fact 

and that no one knew about it (Tr. 436). He confirmed that he has suspended 

foremen for safety infractions, and stated that foremen would "receive 

some discipline" for harrassing employees. When asked about any action 

against Mr. Pulice, Mr. Cook testified as follows (Tr. 439-441): 

Q. What happened to Sam Pulice insofar as Jim Dickey 

was concerned? 

A. I look at that really as being in Sam's nature. 

I don't look at that as being threatening and abusive 

per se. 

Q. Cl involved a situation with the cussing and 

threatening of James Dickey by Sam Pulice, right? 

A. Yes. 

533 
Q. Without my reading all of that into the 

record, are you telling me that you didn't, because 

it happened to be Sam Pulice, that you didn't 

consider this to be a very serious situation? 

A. That's basically right, yes, sir. 

Q. In other words, if you are Sam Pulice, you are 

allowed to do this sort of things? 

A. Yes, sir; and there was some question as to 

exactly, in the step three, if that was exactly the 

way the words were stated. 

Q. Didn't he in fact, and doesn't the grievance 

indicate, that the grievance was withdrawn because 

he apologized to Dickey and he admitted that he had 

said these things? 

' A. To the best of my knowledge, there was a step 

three meeting, and in the step three meeting, Jim was 

asking for an apology. I don't know that Sam actually 

said, I apologize. I know they went round and round. 

I can't recollect the exact words. 

Q. Well, I show you C7 again. It's signed by 

Mr. Passera and Mr. Antonelli, and doesn't it say he 

apologized to Jim Dickey on the back of step three? 

A. Apolqgized to Jim Dickey on the back, yes. 

Q. Wasn't that the settlement? 

A. Must be, sir. Like I said, I can't recall the 

exact wording that Sam used with Mr. Dickey. 

Q. Notwithstanding all that, that is not nearly 

as important or as serious as Mr. Dickey getting into the 

altercation with his common-law wife, Donna Yoder, 

was it? 

A. No. sir, it wasn't. 

Q. This injury that Mr. Yoder received never resulted 

in any Workmen's Compensation claim being filed against 

U.S. Steel? 

A. I can't answer that; not to my knowledge. 

Q. As far as you know, it never cost U.S. Steel a dime, 

did it? 

A. I don't know. I don't handle the Preparation Plant, 

so I am not sure if there was any time lost on it. 

5"34 
On cross-examination, Mr. Cook identified a copy of exhibit C-7 

as respondent's file copy concerning Mr. Dickey's grievance against Mr. Pulice 

and he confirmed that it contains no notations concerning any apology 

made by Mr. Pulice over the incident (Tr. 442). Mr. Cook confirmed that 

he is the mine superintendent for the underground operation, and that 

he reports to J. W. Boyle, the general mine superintendent. He confirmed 

that the "outside" superintendent who is also in charge of the preparation 

plant, is equal in rank to him. He also confirmed that Sam Pulice worked 

for him as the general mine foreman in charge of the underground mine, 

but that he had no authority to fire anyone. Mr. Pulice and the general 

foreman of the preparation held comparable supervisory positions (Tr. 448-450). 

Mr. Cook stated that during the time Mr. Pulice worked for him he often 

received complaints that he was "very verbal". However, he indicated that 

he did not believe that Mr. Pulice discriminated against Mr. Dickey by 

the language he used because "sam used that language toward everyone, 

including myself on occasions", and.that he (Cook) did not take him 

seriously (Tr. 455). 

Mr. Cook confirmed that Sam Pulice had no input into the decision 

to fire Mr. Dickey, and he based his conclusion on the fact that "since 

Mr. Pulice worked for me and I wasn't involved, I am sure that he wasn't 

involved" (Tr. 457). He conceded, however, that the possibility exists 

that Mr. Pulice could have contacted those responsible for Mr. Dickey's 

discharge, but found this "rather unlikely" (Tr. 458). 

In response to further questions, Mr. Cook stated that Mr. Pulice 

resigned his job in January 1982, for "personal reasons", and that he had 

worked at the mine since 1977. When asked to explain why at least two 

miners, including Mr. Dickey, went out of their way to avoid Mr. Pulice, 

Mr. Cook responded "That was basically the way he did business. I don't 

condone it; don't get me wrong. I have talked to him quite numberously 

about, you know, his handling of people." (Tr. 462). When asked to 

explain the circumstances surrounding Mr. Pulice's resignation, Mr. Cook 

testified as follows (Tr. 462-463): 

ADMINISTRATIVE LAW JUDGE KOUTRAS: How long has 

he been in a management position at U.S. Steel? 

THE WITNESS: He was in a position probably two 

years; eighteen months to two years. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Prior to his 

resignation? 

THE WITNESS: Yes. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Did any of that 

have anything to do with the personal reasons for 

his resigning? 

THE WITNESS: It had part of it, part of it to 

do with the problem. 
ADMINISTRATIVE LAW JUDGE KOUTRAS: Did management 

kind of give him a nudge or was it all of the sudden, 

his decision to voluntarily resign for personal 

reasons? 

THE WITNESS: He wasn't given an ultimatum, if you 

want to put it that way. If you want to put it in 

that fashion no, sir. He made the electio.n to resign 

himself. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Did someone talk 

to him? 

THE WITNESS: Talk to him to try to get him to stay, 

yes, sir. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Did somebody talk 

to him, trying to nudge him out? 

THE WITNESS: No, sir. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Did his resignation 

have anything to do with the filing of this Complaint? 

THE WITNESS: No, sir; it did not. 

Mario L. Antonelli, Executive Board Member, UMWA District #4, 

testified that he knew Mr. Dickey to be "always concerned for safety", 

and he confirmed that he was involved in several grievances filed by 

Mr. Dickey ~gainst mine management (Tr. 475). He confirmed that Mr. Pulice 

apologized for the language used against Mr. Dickey, and that this in effect 

settled the grievance (Tr. 478). He also confirmed that Mr. Pulice admitted 

stating during the grievance that if he had a chance he would fire Mr. Dickey 

(Tr. 480). He also confirmed that at the grievance meeting concerning 

Mr. Dickey's complaint, Mr. Pulice was "h<:>t headed" (Tr. 480). 

David B. Rowe, testified that he is employed at the mine in question, 

and he confirmed that he was involved in an incident where he was "grabbed" 

by the neck and "smacked" by a supervisor who believed he was part of a 

practical joke to "grease" the supervisor. He explained that miners 

sometimes put grease over a man who is new on the job or who is there 

for his last day, and the supervisor thought that he was going to do this 

to him. Mr. Rowe did not report the incident, and other miners told 

him that he (Rowe) would have been fired had he retaliated and struck the 

supervisor (Tr. 493). 

On cross-examination, Mr. Rowe conceded that "greasing" a supervisor 

is "horseplay", and he admitted that other miners had selected him (Rowe) 

to do the "greasing" (Tr. fr.94). He also confirmed that during the two 

years or so that he worked for the supervisor in question, they had no 

problems (Tr. 500). 

536 -
Testimony and Evidence Adduced by the Respondent 

Douglas· Held, Preparation Plant Operating Foreman, testified that 

Mr. Dickey worked for him four days before his discharge. He testified 

that while he could recognize Mr. Pulice, he did not know him personally 

and had no contacts with him. He confirmed that Mr. Dickey was a good 

worker during the four days that he worked for him, and that he had no 

problems with him prior to his discharge on September 18, 1981 (Tr. 516-519). 

Mr. Held testified that on Friday, September 18, 1981, he arrived 

at the mine shortly after twelve midnight and went to the central control 

room of the preparation Plant. Donna Yoder called him over the mine phone 

and asked to speak with him. She came to his office, and since she 

indicated she wanted to speak with him in private, he closed his office 

door. Miss Yoder began telling him about her problems ¥ith Mr. Dickey, 

and at that point Mr. Dickey opened the door and "wanted to know what 

the hell was going on". Mr. Held responded "Jim, it's none of your business; 

leave the room" (Tr. 520). He left, but then returned, and he and Miss Yoder 

exchanged words, began cursing each other, and argued over keys to a car 

and the trailer where they both lived. Mr. Held stated that he requested 

Mr. Diekcy to return to work, but Mr. Dickey replied "I don't have to 

do a 'F'ing thing you tell me because I quit", and when Mr. Held again 

advised him to return to work and that he shouldn't quit over such an 

incident, Mr. Dickey repeated his statement (Tr. 522). 

Mr. Held stated further that after his exchange with Mr. Dickey, 

Miss Yoder left the room and Mr. Dickey followed her out. Mr. Held left 

the room to call superintendent Dale Norris and as he went down the stairway 

he found that Mr. Dickey had pinned Miss Yoder against the stair railing 

with her back against the rail. He split them up and directed her to go 

to the utility room. She went to the room and Mr. Dickey followed her 

in and Mr. Held asked the four men who were there to try and keep the two 

separated while he went to phone Mr. Norris. After speaking with Mr. Norris 

he again asked Mr. Dickey to go back to work, and Mr. Dickey informed 

him again that he had quit. Mr. Norris then asked him to leave the property, 

and as he left the room he threw his hat back towards him and he left 

(Tr. 526-527). Later, he learned that Miss Yoder wanted to leave work 

early and she told him that Mr. Dickey had struck her, that her back and 

jaw were sore and that she had lost a contact lens. Miss Yoder filled 

out an "early-out" slip at approximately 3:00 a.m., and left the property 

(Tr. 530). 

Mr. Held testified that after Miss Yoder left the property, he 

called Mr. Dickey on the phone and advised him that "it was a real 

ridiculous thing to lose your job over", and he asked him to report to 

the office at 7:30 a.m., that morning so that he could discuss the matter 

with him and Miss Yoder. Mr. Held stated that Mr. Dickey told him he 

"didn't have to do a damn thing I told him and hung up" (Tr. 531). Mr. Dickey 

did not come to the office, but ·he called him (Held) at 7:00 a.m., and 

Mr. Held again asked him to come to the office so that he could help him 
get. his job back and Mr. Dickey informed him that "I reported off" (Tr. 531). 

Miss Yoder came in at 7:30 a.m., but Mr. Held did not speak with her, but 

she did speak with Mr. Norris (Tr. 532). 

Mr. Held stated that the incident in question did not affect mine 

production, but that the employees who were in the utility room used an 

hour of nonproductive time (Tr. 534). Mr. Held confirmed that he had only 

known Mr. Dickey for the four days he worked for him and he knew nothing 

about his being a "safety activist" (Tr. 535). 

On cross-examination, Mr. Held confirmed that he did not make the 

decision to discharge Mr. Dickey. He stated that since Mr. Dickey informed 

him that he had quit, there was no decision to make (Tr. 536). He also 

indicated that Nr. Norris was involved in the decision to suspend 

Mr. Dickey with intent to discharge him (Tr.536). Mr. Held also indicated 

that he prior to the incident in question, he had no knowledge that Miss Yoder 

and Mr. Dickey were living together, and that she informed him the evening 

of the incident that she "wanted to throw his clothes out", and he surmized 

from this conversation that they were living together (Tr. 538). He also 

confirmed that Miss Yoder told him that she and Mr. Dickey had lived 

together for some time and were having marital problems, that they had 

some trouble that evening, and that "she was fed up with it and she wanted 

to get out" (Tr. 538). He also confirmed that Mr. Dicket was agitated 

and upset that evening, and that when he entered his office the second time 

he asked Mr. Held whether he and Miss Yoder were discussing their problems 

and Mr. Held conceded that it appeared to him that the two were having "a 

lovers or marital quarrel" (Tr. 541). He also confirmed that Miss Yoder 

and Mr. Dickey were both cursing each other, and were making accusations 

to each other (Tr. 542). 

Mr. Held stated that he did not know whether Miss Yoder filed any 

workmen's compensation claims for her injuries, but he confirmed that she 

lost no work time as a result of any injuries (Tr. 543). He also confirmed 

that Miss Yoder required no medical attention, and that he did not suggest 

she see a doctor (Tr. 544). Mr. Held also indicated that while Miss Yoder 

was emotional, he observed nothing about ~er condition that would lead him 

to believe that she was in serious pain or needed medical attention 

(Tr. 545). Mr. Held also indicated that because of Mr. Dickey's "attitude", 

he was concerned that "anyone who got in his way was going to get knocked 

down the stairs", but that this did not happen (Tr. 547). He also 

confirmed that all of Mr. Dickey's activities that evening were directed 

at Miss Yoder, and to his knowledge Mr. Dickey did not threaten anyone 

else and that the preparation plant did not shut down over this incident 

(Tr. 548). 

Mr. Held stated that while he did not participate in the decision 

to discharge Mr. Dickey, he did participate in the company investigation 

of the incident and told Mr. Norris and general plant foreman Parfitt about 

the incident. Mt. Held was not at the arbitration hearing, nor was he 

present when management made the decision to suspend Mr. Dickey with intent 

to discharge him (Tr. 549). He made no recommendations in the matter, but 

he acknowledged that he told Mr. Parfitt and Hr. Norris that Miss Yoder 

538 
reported that Mr. Dickey had struck her, and he also informed them that 

Miss Yoder's comments concerning her desire to end the relationship with 

Mr. Dickey. Mr. Held confirmed that he considered the incident to be 

between "two employees", and said nothing about any "marital quarrel" 

(Tr. 551). 

Mr. Held confirmed that Mr. Dickey appeared upset when he first appeared 

at his office, but that the incident on the stairway happened after he 

and Miss Yoder were quarreling and cursing each other. He also confirmed 

that he made no recommendations to discipline Mr. Dickey or Miss Yoder 

over the incident that evening (Tr. 558). 

In response to further questions, Mr. Held stated that he made 

no recommendations concerning Mr. Dickey because Mr. Dickey told him he 

had quit. When asked why the respondent fired him if he had quit, Mr. Held 

responded "because the following morning, he did not quit. He called me 

at 7:00 a.m., and said, I told him to report back to the mine, and he said 

why, I reported off" (Tr. 563). Mr. Held confirmed that Mr. Dickey had not 

"reported off", worked only one hour the evening of September 18th, 

and his pay was docked for the seven hours he did not work when he left 

the property (Tr. 565). When asked why he docked Mr. Dickey if he had 

quit his job, Mr. Held then stated "Well, I'd have to say I don't really 

remember about docking him. I don't even know what became of his time 

that night". He also indicated that Mr. Dickey did not report for his 

next scheduled work shift because he was suspended (Tr. 569-570). Mr. Held 

confirmed that he had not met Miss Yoder prior to the incident of 

September 18th, and that he did not personally observe Mr. Dickey strike 

her other than "just restraining her" (Tr. 573). 

James F. McNeeley, preparation plant maintenance foreman, stated that 

prior to the incident of September 18th, he did not know Mr. Dickey, had 

no contact with him, had never met him, and Mr. Dickey never worked for 

him. He confirmed that Mr. Dickey told Mr. Held that he had quit and 

did not have to do what Mr. Held told him. He also confirmed that when 

he observed Miss Yoder in the utility room he saw blood on her teeth, she 

appeared to have been crying, and he could see a slight puffiness on her 

lower left lip. When Mr. Held told Mr. Dickey to leave the property, 

Mr. Dickey "pushed his way past Mr. Held", and two other employees held 

Mr. Dickey on each arm while Mr. Held was trying to get him to leave. 

He observed Mr. Dickey throw his hat on his way out of the room, and after 

he left Mr. McNeeley instructed the two employees who were holding Mr. Dickey 

to patrol the parking lot to insure that Mr. Dickey had left the property, 

and they confirmed that he had in fact left (Tr. 579). 

On cross-examination, Mr. McNeeley confirmed that he made no recommendation~ 

concerning the discharge of Mr. Dickey, but did give a statement during 

the investigation. He was not present during the 24/48 discharge meeting, 

did not hear Miss Yoder curse Mr. Dickey, and simply informed fellow 

employee Ms. Groves to "try to clean her up and calm her down" because 

Miss Yoder was upset (Tr. 580). 

539 
Dale W. Norris, testified that he is presently employed as manager 

of preparation for the Kerr-McGee Coal Corporation, Harrisburg, Illinois, 

that he has held this position since February 2, 1982, and that he 

previously worked at the Cumberland Mine as the outside superintendent. 

Part of his responsibility was the preparation plant, but he had no 

responsibility for the underground mine since that was under Walter Cook's 

jurisdiction (Tr. 591). Mr. Norris stated that Mr. Pulice never worked 

for him and did not tell him how to direct his work force. He confirmed 

that Mr. Dugan worked for him (Norris), and he confirmed that Mr. Dugan 

filed a grievance against Mr. Pulice (exhibit C-10), and that Mr. Pulice 

had lost his temper over the slope car incident and that "Mr. Cook, was, 

needless to say, a little bent out of shape" over the incident (Tr. 593). 

The grievance was withdrawn and he confirmed that Mr. Pulice apologized to 

Mr. Dugan (Tr. 595). 

Mr. Norris identified his general foreman as Paul Parfitt, and he 

indicated that Mr. Parfitt had no authority to fire anyone. He explained 

the procedure for discharging an employee as follows (Tr. 596): 

Q. If you want to fire someone at U.S. Steel, 

what are the steps that have to be taken? 

A. Before we make any discharge, the first thing 

that we have to do is, of course, if Paul were 

handling the initial part of the case like he was 

in this incident, he has to notify me. I then 

talk to Mr. Boyle, who was and at this time still 

is general superintendent at Cumberland. We then 

bring in our local labor relations man, who at 

that time was Robert Hoover. Then we jointly 

contact Pittsburgh Labor relations, as well as 

Pittsburgh operations. In other words, we go to 

the corporate office of the coal group, and then 

a decision is jointly reached after that discussion 

and issued. 

When asked what he knew about Mr. Dickey before he came to work for 

him, Mr. Norris stated as follows (Tr. 597): 

A. I was aware of his past activities and reputation as a somewhat rowdy individual; and I had 

in fact talked to both Mr. Pulice and Mr. Cook about 

that, and I felt that I wouln be remiss not to find 

out what sort of person he was from these people 

that managed him before I was receiving --

Q. What did they tell you of his safety activities? 

A. They told me that he was in fact very safety 

conscious and that he wouldn't be a problem. 

540 
With regard to any knowledge on his part concerning the relationship 

between Mr. Dickey and Donna Yoder, Mr. Norris acknowledged that "we had 

heard about their sort of relationship", and that they were split up and 

assigned to different crews. However, they were later assigned to the 

same crew at their request for reasons of travel, et cetera, and we 

condescended and let that happen" (Tr. 598). 

Mr. Norris conceded that Mr. Dickey was doing a good job as a sampler 

when.he was reassigned to the preparation plant. He explained the 

procedures for."reporting off" work by an employee once he reports for 

work, and he indicated that it was not uncommon for employees to report 

for work in their work clothes, and then "report off". After it became 

a problem, supervisors were instructed to require an employee to sign an 

"early quit slip" when they reported off (Tr. 600). 

Mr. Norris stated that he was not at the mine during the incident 

of September 18, 1981, but found out about it the next morning from his 

general foreman, Paul Parfitt. Mr. Norris then contacted Mr. Boyle and 

Mr. Hoover, and then spoke with Mr. Held to find out what had happened. 

Mr. Held informed him that Mr. Dickey had been asked to report to the 

mine at 7:30 a.m., and when he did not appear, he (Norris) called Mr. Dickey 

at home, and Mr. Dickey informed him that he had no way to get to the 

mine. Donna Yoder was there and she explained the events of the evening 

before to him while they were in his office. Donna Yoder told him that 

Mr. Dickey had struck her and that he had lost her contact lens. 

Mr. Parfitt was present during this conversation, and Mr. Norris confirmed 

that he had taken notes of the conversation with Donna Yoder (exhibit R-6). 

He also confirmed that he again met with Donna Yoder the next day, 

Saturday, September 19, and that Mr. Hoover and Mr. Vernon Baker, a UMWA 

committeeman assigned to the preparation plant were also present. Donna Yoder 

went over the notes of the previous days' conversation, and she confirmed 

that they were essentially accurate (Tr. 605). 

Mr. Norris testified that after the second meeting with Donna Yoder, 

he met with Douglas Held, Mr. McNeely, Paul Parfitt, employee relations 

superintendent Bob Hoover, and J.W. Boyle to discuss the entire episode. 

In addition, he contacted the respondent's labor management relations 

manager Ernie Helms, and Mr. Helms recommended or "advised" that Mr. Dickey 

be discharged (Tr. 606, 609). Since a thorough investigation had to 

be made in a discharge case, it was decided to suspend Mr. Dickey with 

intent to discharge him, rather than to immediately discharge him (Tr. 606). 

Since the incident with Ms. Yoder was a "pretty grave offense", Mr. Norris 

concurred in the decision to suspend Mr. Dickey with intent to discharge, 

and this was a "joint-type decision" (Tr. 608). The people who were 

part of the "joint" or "group" decision regarding Mr. Dickey were identified 

by Mr. Norris as "himself, Mr. Boyle, our local labor relations, as well 

as labor relations in.Pittsburgh". He stated that Ernie Helms only "advised" 

that Mr. Dickey should be "discharged after a thorough investigation", 

and that "we concurred" (Tr. 609). 

Mr. Norris acknowledged that he knew that Mr. Dickey and Ms. Yoder 

were living together and that they lived in the same town that he lived in. 

541 
He "did not .believe" that any consideration was given to the fact that 

they lived together when the decision to discharge Mr. Dickey was made, 

and he stated that had they been strangers, the same decision would have 

been reached (Tr. 610). When asked what effect Mr. Dickey's safety 

activities had on the decision by the group to discharge Mr. Dickey, 

Mr. Norris responded as follows (Tr. 610-611): 

Q. Have you had any safety complaints from 

Jim Dickey? 

A. No, I hadn't. 

Q. Had his supervisor reported to you that he 

had made any safety complaints in the Preparation 

Plant? 

A. Not that I was aware of. Our policy was if 

possible, when a safety complaint was made by an 

employee, we checked it out, took care of it. 

Q. Did Mr. Dickey's prior record have anything to 

do with the decision to suspend with intent to discharge? 

A. Well, it's my opinion and in the past it has been 

true, Mr. Dickey had not been the first person we 

had ever received that had any sort of prior reputation 

that I was aware of. We felt in a lot of cases that 

people were not particularly happy in the mine. They 

actually wanted to work outside, and as a result, we had 

seen really no problem with people prior to that that 

had come outside; so I tried to the best of my capability 

to keep that as a fresh start. 

Q. So what effect did his prior record have in this 

decision to suspend him? 

A. It was not taken into account as far as I know. 

Q. Was there any mention made during that discussion 

of September 18th, about his problems underground? 

A. No, ma'am. 

Q. Was there any mention ma'de of safety activities? 

A. No, ma'am. 

Mr. Norris confirmed that an investigation of the incident was 

conducted on Saturday morning, September 19, 1981, and he identified 

the individuals who were interviewed. Present during the interviews 

542 
were Mr. Hoover and Mr. Baker, and he identified the statements taken 

from the employees (Exhibits R-7 through R-13). He confirmed that the 

statements were reviewed with Mr. Dickey's unibn representative during 

the 24/48 hour labor-management conference concerning the proposed 

discharge, ·and the statements were also used during the arbitration 

hearing (Tr. 617). Mr. Norris also confirmed that the reason for taking 

the statements was to support management's decision as to the ultimate 

discipline to be given to Mr. Dickey, and he stated that the union took an 

active part in the investigation, including witnessing the taking of the 

statements from each of the employees who gave one, and he identified 

one of the union representatives who was present as Vernon Baker (Tr. 623). 

Mr. Norris explained that after an employee is suspended with intent 

to discharge, management has five days to decide whether to go ahead 

with the discharge, or to impose a lesser penalty such as a suspension. 

He confirmed that the fact that Ms. Yoder suffered injuries "was all 

important" to any decision, and he "believed" that the suspension with 

intent to discharge Mr. Dickey would have been made even if Ms. Yoder 

had not been physically injured (Tr. 629). He further elaborated as 

follows (Tr. 629-630): 

Q. Did it make any difference to your decision on 

September 18th, to issue the suspension with intent 

to discharge as to whether or not her injuries 

resulted from Mr. Dickey striking her or a slip and 

fall or anything of that nature? 

A. I would say they had some bearing in the case, 

but it wasn't the overall important thing in the 

investigation. 

Q. Once you got Mr. Berdar's statement that he was 

an eye witness to the blow, what effect did that 

have on the ultimate decision to change the suspension 

to a discharge? 

A. It was taken into consideration with the balance 

of the other statements that we had received during 

the investigative period on the 19th. 

Mr. Norris testified that the decision to discharge Mr. Dickey was 

made after the investigation and 24/48 hour meeting which took place 

on Monday, September 21, 1981, and that this was the first time that 

he heard Mr. Dickey's side of the incident which had occurred the previous 

Thursday. Mr. Norris confirmed that at the 24/48 meeting, Mr. Dickey 

did not allege that management was using the incident as a pretense 

to "get him" for having filed past safety complaints, that Mr. Dickey 

never mentioned those complaints, nor did he ever mention anything about 

discriminatory discipline (Tr. 641). 

543 
Mr. Norris testified that the decision to escalate the suspension 

to a discharge was made in "caucus" after the 24/48 meeting and after a 

review of all of the information gathered by management during its 

investigation. Mr. Norris confirmed that during the interim between 

the incident of September 18 and the 24/48 meeting, he discussed the 

circumstances surrounding Mr. Dickey's discharge with Wally Cook, but 

that he did not seek Mr. Cook's advice, and Mr. Cook offered none. 

Further, Mr. Dickey's safety activities were not discussed with Mr. Cook. 

Although he also discussed the matter with Sam Pulice, Mr. Norris denied 

that they discussed Mr. Dickey's discharge, and while he was also 

"pretty sure" that Mr. Pulice was aware that Mr. Dickey was being 

discharged, Mr. Pulice did not mention Mr. Dickey's safety activities to 

him (Tr. 643). Mr. Norris also conceded that it was "common knowledge" 

among labor and management that a decision whether to discharge Mr. Dickey 

was in process (Tr. 643). 

Mr. Norris denied that Mr. Dickey's discharge by management was 

"a set up", stated that "I would hardly subject one of my foreman to 

what Mr. Held had to go through", and indicated that he was aware of no 

reason why Mr. Dickey would not still be employed at the mine had the 

incident of September 18, with Ms. Yoder not happened (Tr. 644). 

On cross-examination, Mr. Norris confirmed that Dale Williams 

was accused of drinking whiskey which belonged to him (Norris) on the 

job, and that he was suspended with intent to discharge. Mr. Norris 

stated that he recommended that Mr. Williams be discharged, and that he 

(Norris) "would take my own lumps". While Mr. Williams was not discharged, 

he agreed to abide by a "last chance" mine policy, and he was in fact 

discharged several weeks later (Tr. 645). Although Mr. Norris did not 

actually sign a "last chance" agreement, Mr. Norris indicated that he 

was basically under such an agreement because the whiskey found on mine 

property was his (Tr. 646). 

Mr. Norris stated that he knew Sam Pulice and Walter Cook very well, 

and believed that he would have heard about the incident concerning 

Mr. Pulice's threatening to fire Mr. Dickey. He also confirmed that he 

was aware of the fact that Mr. Pulice and Mr. Dickey had "multiple 

run-ins". He also confirmed that he was aware of the fact that "Mr. Dickey 

was safety conscious and I was told by Mr. Cook that it was not a problem" 

(Tr. 649). He also confirmed that it was "common knowledge that Dickey 

was a hard nose on safety and that kind of thing and filed a number of 

grievances relative to safety and so forth" (Tr. 648). He also confirmed 

that it was "common knowledge" among the work force when a superviso~ 

has to apologize to an employee for cursing him (Tr. 649). When asked 

whether a supervisor would be happy over such an occurrence, Mr. Norris 

responded "if they handle themselves so poorly that they put themselves 

in that position, that's what they should -- that's absolutely what they 

should do" (Tr. 650). 

Mr. Norris testified that he was ignorant of the incident concerning 

David Rowe's assertion that he had been struck by a supervisor, and knew 
nothing about it. He also indicated that he was not aware of a 

purported fight between Les Reiser and Rich Borzani, and stated that 

he did not know Mr. Borzani (Tr. 650). Although foreman Kenny Foreman 

did not work for him, Mr. Norris confirmed that he was aware of 

Mr. Dickey's safety grievance against Mr. Foreman, and in fact stated 

that he sat in on the grievance hearing (Tr. 651). Mr. Norris denied 

any knowledge of the incident concerning Timmy Ross having matches 

in the mine, and stated that he did not know Mr. Ross (Tr. 652). 

Mr. Norris stated that the fact that Mr. Dickey had been a good 

worker was taken into consideration when the decision to discharge 

him was made, but he considered the incident with Ms. Yoder to be a very 

serious matter, and while acknowlecging that it took place on a stairway 

landing, it could just as well have happened around moving machinery, 

thereby raising a possibility of more serious injuries to Ms. Yoder had 

she fallen into said equipment. He confirmed that he had nothing to do 

with the decision resolving his "whiskey incident", and acknowledged 

that no consideration was given to the possibility of giving Mr. Dickey 

a "last chance agreement". He also confirmed that Mr. Dickey's prior work 

record, includesa past incident of insubordination, were not considered 

during the decisional process to fire him, and that no one looked at 

his personnel file (Tr. 656-658; 675). Mr. Norris confirmed that the 

sole basis for Mr. Dickey's discharge was for his "threatening and abusive 

conduct towards Donna Yoder" (Tr. 667-668), and he believed that this 

was just cause for discharge under the union-labor contract (Tr. 668). 

He confirmed that Mr. Helms is the respondent's labor-management representative 

for respondent's coal operations, located in Pittsburgh, and if any 

grievances related to safety are filed on a standard UMWA form used for 

that purpose, Mr. Helms would be aware of them. He conceded that Mr. Helms 

might be informed of any such grievance decisions after the third step, 

but pointed out that he handles five districts as part of his job (Tr. 670). 

Mr. Norris identified J.W. Boyle as the general superintendent for 

Cumberland Coal's operations, and while he had never communicated any of 

Mr. Dickey's safety encounters with Sam Pulice to Mr. Boyle, Mr. Norris 

"assumed" that Mr. Boyle "is aware of what goes on in his mine" (Tr. 671). 

Mr. Norris identified Bob Hoover as Mr. Helm's "counterpart on the 

local level", confirmed that Mr. Hoover works for Mr. Boyle, and when 

asked whether Mr. Hoover would have been aware of Mr. Dickey's safety 

complaints, grievances, and encounters with Sam Pulice, he responded 

"I would think so" (Tr. 672). Mr. Norris denied that while he could not 

speak for Mr. Boyle, Mr. Hoover, or Mr. Helms, Mr. Dickey's safety activities 

and encounters with Sam Pulice were personally never considered by him 

in the decision to discharge Mr. Dickey, and he indicated that the subject 

was never mentioned during the discussion with this group of individuals 

(Tr. 672). 

Mr. Norris indicated that he had been involved in four or five 

suspensionswith intent to discharge actions while he was at the mine, 

545 
and when asked whether it was a practice to first check an employee's 

background in those instances, before discharging them, he replied 

(Tr. 673-674): . 

Q. Isn't it a part of your practice when determining whether or not you should discharge a man 

to look at his record, find out whether he is a 

good guy, bad guy? 

A. It's all dependent on what sort of offense 

is involved. 

Q. Well, let me ask you this. Wouldn't you 

think that it would have been helpful to know 

whether Mr. Dickey was a chronic absentee, whether 

he was caught drinking on the job, whether he was 

an unsafe worker, whether he was insubordinate to 

foremen and so forth, wouldn't that have helped 

you in making your decision to make a discharge 

determination? 

A. It would have neither helped nor hindered in 

a decision. 

Q. Why not? 

A. Because that is a matter of safety and abusive 

behavior towards an employee. How can you let 

somebody's past record impact an action that they 

took like this. I don't understand that. 

Q. Don't you think the person's past record is 

important in determining whether you want him around 

anymore or not? 

A. I think he should have considered his past record 

before he was involved in this instance. 

Mr. Norris indicated that while it was entirely possible that he did 

discuss Mr. Dickey with Sam Pulice, he had no specific recollection as 

to any specific incident which may have been discussed, except ~he grievance 

case concerning Mr. Foreman. As for any conversations with Wally Cook, 

Mr. Norris stated that it was "routin.e" for he and Mr. Cook to discuss 

"different situations and what not that we were handling; and that was 

going on about the mine" (Tr. 678). Regarding Mr. Dickey's prior reputation, 

Mr. Norris stated as follows (Tr. 678-681): 

Q. I believe you testified that when Dickey came 

to work for you, you knew he was a rowdy or something 

of that nature. 

A. I had heard that, yes. 

546 
Q. How was he described as a rowdy? What is a 

rowdy as you knew it to be? 

A. I just heard that he was a little radical; and 

that can imply anything, and I knew -- The reason 

I know about all the safety grievances now is I sat 

and listened to them yesterday; but up to that point 

in time, the only incident I was aware of yesterday 

was the incident with Kenny Foreman. 

Q. Let's get back to your original description of 

rowdy. Now you said radical. What is your understanding of him being a radical? 

A. That he could be trouble. 

Q. What kind of trouble could he be? 

A. Just general pain in the back trouble. 

Q. Over what? 

A. Just anything; just trouble. 

Q. You mean that is the label Dickey had, that he 

was just a trouble maker over everything? 

A. I didn't say that. I said that I was informed 

that he could be trouble. 

Q. Who informed you that he could be trouble? 

A. I believe that when I found out who was getting 

the job, I probably talked to Mr. Cook; but you have 

to remember what I also said is that Mr. Cook said that 

Jim was a good man. 

Q. I understand; he said that three times, sir, and I 

understand the purpose in saying that, but what I want 

to get at is this business of Wally Cook telling you that 

this guy was a radical or a rowdy and he was trouble. 

A. I said he could be. 

Q. I'd like to know as best you recall because you 

recall some things pretty specifically here; I'd like 

you to recall as best you can what Wally Cook told you 

with reference to this man being a rowdy or a radical 

or general trouble. 

A. I think I just did tell you to the best that I can 

recall. 

Q. What was it? 

547 
A. I was informed that he could be trouble. It was 

not pinned down as to why; that he could just be a 

pain in the back. 

Q. That was Wally Cook's opinion of him? 

A. Like I said before, he also said that he was a good 

man on the job. 

Q~ Did he describe to you that he could be trouble 

where safety was concerned? 

A. All he said was that he could be trouble. 

Q. I may be wrong on this, so you correct me if I 

am wrong, but it's my recollection that in your original 

testimony, that you said that Wally Cook told you that 

he had a reputation for being tough on safety or what 

have you. 

A. That is not what I said. I said that Wally Cook 

told me that he was safety conscious. That was not 

all he told me. If you remember, I also said that 

was no trouble. It was after the fact that he said 

that he could be trouble, just a general pain in the 

back; and the comment, I don't know to me, he stated 

to me the safety part of it was not the problem; that 

the guy could just generally be a pain. 

And, at pgs. 688-689: 

Q. Did Mr. Pulice ever tell you that he wanted to 

get Mr. Dickey? 

A. He never told me he wanted to get Dickey; not 

me personally. 

Q. Did Mr. Pulice ever ask you to help him get Mr. Dickey? 

A. No. 

Q. Could you explain what you mean when you said it's 

your job to find out about people before they come to work 

for you and what do you do with that information once 

you have it. 

A. Well, it's like this, you know. Before you would 

even hire anybody, you would interview them to find out, 

you know, what sort of personality traits they have; 

how they handle themselves; what past occurrences might 

have been in their previous employment, things like that; 

and to me, it's no different. 

548 
The only difference is that when a person is coming 

out of the mine on a bid situation, you can't accept. 

or reject him because of that. It's a power bid, 

so you do try to find out, you know, what is this guy 

like, what is she like, any problems here that you 

know of. 

Q. What do you do with this information once you 

have it? 

A. Keep it in my own memory. It's not entered 

into any personnel file; it's just for my own 

edification. 

Mr. Norris stated that he could recall no tho~ght being given to 

suspending Mr. Dickey rather than discharging him, and he indicated that 

each offense which could lead to disciplinary action against an employee 

must be looked at on its own facts (Tr. 681-685). Mr. Norris confirmed 

that Sam Pulice did not work for him, and he indicated that during the 

time Mr. Dickey filed many of his grievances Mr. Boyle was not the mine 

superintendent (Tr. 687). He also stated that Mr. Pulice "had a reputation 

of just walking in and saying, gees, I'd like to fire you", but that he 

personally had no authority to fire anyone (Tr. 697). He described 

Mr. Pulice as "a character", and indicated that he (Norris) "wouldn't 

put up with that sort of behavior from my foremen" (Tr. 698). 

Mr. Norris confirmed that he had no knowledge of the extent of 

Mr. Dickey's involvement in safety grievances until the instant hearing 

(Tr. 703). He confirmed that Mr. Helms would have been aware of the 

grievances, if in fact grievances were held (Tr. 704). He also confirmed 

that he (Norris) was involved in the "Dugan grievance", and that since 

Mr. Dugan was his employee, Mr. Norris had to hear the case. He also 

confirmed that Mr. Pulice agreed that he had said what Mr. Dugan accused 

him of, but that since Mr. Dugan was insubordinate, he withdrew his 

grievance at step two (Tr. 705). 

Mr. Norris stated that he did not consider that Mr. Dickey had quit 

his job because when he spoke with him the morning after the incident, 

Mr. Dickey informed him that he had "reported off work" (Tr. 732). Further, 

he had no written resignation from Mr. Dickey, and stated that he did 

not know that he was actually not paid for the day or that he was absent 

without his supervisor's approval (Tr. 732). 

Discussion 

In Secretary of Labor on behalf of David Pasula v. Consolidation Coal 

Company, 2 FMSHRC 2786 (October 14, 1980) (hereinafter Pasula), the 

Commission analyzed section 105(c) of the Act, the legislative history 

of that section, and similar anti-retaliation issues arising under other 

Federal statutes. The Commission held as follows: 

549 
We hold that the complainant has established 

a prima facie case of a violation of Section 105(c)(l) 

if a preponderance of the evidence proves (1) that he 

engaged in a protected activity, and (2) that the 

adverse action was motivated in any part by the protected 

activity. On these issues the complainant must bear 

the ultimate burden of persuasion. It is not sufficient 

for the employer to show that the miner deserved to have 

been fired for engaging in the unprotected activity; if 

the unprotected conduct did not originally concern the 

employer enough to have resulted in the same adverse 

action, we will not consider it. The employer must 

show that he did in fact consider the employee deserving 

of discipline for engaging in the unprotected activity 

alone and that he would have disciplined him in any 

event. Id. at 2799-2800. 

In several decisions following Pasula, the Commission discussed, 

refined, and gave further consideration to questions concerning the burdens 

of proof in discrimination cases, "mixed-motivation discharges", and "work 

refusal" by a miner based on an asserted safety hazard. See: MSHA, ex rel. 

Thomas Robinette v. United Castle Coal Company, 3 FMSHRC 803 (April 1981). 

MSHA ex rel. Johnny N. Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2508 

(November 1981), pet. for review filed, No. 81-2300 (D.C. Cir. December 11, 

1981). 

In Robinette, the Commission held that a miner may refuse and cease 

work if he acted in good faith and reasonably believed that the performance 

of the work would expose him to a hazard. Robinette complained about 

being taken off a job as a miner's helper and being reassigned as a 

conveyor belt feeder operator. Robinette ceased to operate and shut 

down the belt after his cap lamp cord was rendered inoperative and he 

could not see. Robinette and his section foreman exchanged heated words 

over the incident and Robinette uttered several cuss words. Robinette's 

prior work record included prior warnings.for unsatisfactory job performance 

and insubordination, and his section foreman was not too enchanted with 

his work. The section foreman testified that "anytime Robinette had 

to do something he did not like, he usually messed it up". 

Judge Broderick treated the Robinette case as a "mixed motivation" 

discharge case. Although finding that Robinette's work was "less than 

satisfactory" and that he was "obviously belligerent and uncooperative" 

with his section foreman as a result of his change in job classification, 

Judge Broderick concluded that the "effective" cause of Robinette's 

discharge was his protected work refusal, and he rejected the operator's 

contentions that the primary motives for the discharge were insubordination 

and inferior work. 

550 
In Chacon, the Commission affirmed the Fasula-Robinette test, and, 

at 3 FMSHRC 2516-17 explained the following criteria for analyzing an 

operator's business justification for taking an adverse action against 

an employee: 

Commission judges must often analyze the merits 

of an operator's alleged business justification for 

the challenged adverse action. In appropriate cases, 

they may conclude that the justification is wo weak, 

so implausible, or so out of line with normal practice 

that it was a mere pretext seized upon to cloak 

discriminatory motive. But such inquiries must be 

restra4.ned-. 

The Commission and its judges have neither the statutory charter nor the specialized expertise to sit as 

a super grievance or arbitration board meting out 

industrial equity. Cf. Youngstown Mines Corp., 

1 FMSHRC 990, 994 (1979). Once it appears that a 

proffered business justification is not plainly 

incredible or implausible, a finding of pretext is 

inappropriate. We and our judges should not substitute 

for the operator's business judgment our views on 

"good" business practice or on whether a.particular 

adverse action was "just" or "wise". Cf. NLRB v. 

Eastern Smelting & Refining Corp., 598 F.2d 666, 

671 (1st Cir. 1979). The proper focus, pursuant 

to Pasula, is on whether a credible justification 

figured into motivation and, if it did, whether it 

would have led to the adverse action apart from the 

miner's protected activities. If a proffered 

justification survives pretext analysis ..• , then 

a limited examination of its substantiality becomes 

appropriate. The question, however, is not whether 

such a justification comports with a judge's or our 

sense of fairness or enlightened business practice. 

Rather, the narrow statutory question is whether the 

reason was enough to have legitimately moved that 

operator to have disciplined the miner .. Cf. R-W Service 

System Inc., 243 NLRB 1202, 1203-04 (1979) (Articulating 

an analogous standard). 

Thus, in Chacon, the Commission approved a restrained analysis of a 

mine operator's proffered business justification for discharging a miner 

to determine whether it amounts to a pretext. The Commission then held 

that once it is determined that a business justification is not pretextual, 

then the judge should determine whether "the reason was enough to have 

legitimately moved the operator" to take adverse action. In a further 

551 
refinement of the "limited" or "restrained" analysis of an operator's 

"business justification" for taking an adverse action against a miner, 

the Connnission stated "our function is not to pass on the wisdom or 

fairness of such asserted business justifications but rather only to 

determine whether they are credible and, if so, whether they would have 

motivated the particular operator as claimed." Bradley v. Belva Coal Co., 

4 FMSHRC 982, 993 (June 1982). 

Absent any direct evidence that a mine operator's adverse action 

against a miner was motivated in any part by his protected activity, the 

Commission, in the Chacon case, suggested four criteria to be utilized 

in analyzing the operator's motivation, and these are as follows: 

1. Knowledge of the protected activity. 

2. Hostility toward protected activity. 

3. Coincidence in time between the protected activity 

and the adverse action. 

4. Disparate treatment of the complainant. 

Complainant's post-hearing arguments 

After arguing that he has established that he filed safety related 

complaints and grievances, Mr. Dickey concludes that he earned the ire 

of the respondent for being a safety activist, that the respondent through 

its agents was highly irritated with him for his safety activity, and 

that his discharge was motivated in part by management's displeasure 

with these safety activities. Mr. Dickey argues further that all of 

his safety activities were reasonable and good faith acts designed to 

protect himself and his coworkers from being exposed to unsafe hazards. 

Mr. Dickey asserts that the record in this case supports a conclusion 

that the respondent's improper reaction t~ his protected activities is 

"glaringly obvious and pervasive", and when one considers the respondent's 

reactions to his activities, he concludes that they indicate more than 

"some feeling of resentment". He claims that the respondent's reactions 

to his activities were clearly intended to chill him and others from 

engaging in protected activity. Mr. Dickey asserts that in each instance 

when he exercised his protected rights, respondent attempted to punish him. 

In support of his argument that respondent attempted to punish him 

when he exercised his right to complain, Mr. Dickey first mentions the 

slope car incident when management attempted to dock his pay (Exhibit C-1). 

He then mentions the October 1979 incident when he refused to ride an 

unsafe belt for routine exit from the mine (Exhibit C-2), and asserts 

that "they tried to dock his pay". He goes on to cite his complaint 

about unsafe communications on the slope car and management's alleged 

characterization of him as a "ring leader" and accusations that he 

was causing a "wild-cat strike" (Exhibit C-3). He then cites an incident 

when he assertedly attempted to protect the safety of a foreman and was 

called insubordinate and had his pay docked and was verbally abused 

(Exhibit C-4; Tr. 46-48). 

552 
Mr. Dickey cites additional incidents of alleged "retribution" 

against him, including a day when he claims management tried to send 

him home without pay when he was late entering the mine because of a 

discussion over a damaged electric cable (Exhibit C-5), verbal abuses 

and threats to fire him made by superiors over certain alleged hazardous 

dust conditions, attempts by management to dock the pay of Mr. Dickey's 

crew after his innnediate supervisor shut down a dangerous machine and 

gave the men alternative work (Tr. 60, 62; Exhibit C-6), and attempts 

by management to discriminate against Mr. Dickey's entire crew over 

the gas well incident which resulted in a grievance by the crew, and 

in particular, management's focus on Mr. Dickey for verbal abuse and threats 

(Tr. 71, 73). 

Mr. Dickey asserts further that the incident of June 12, 1981, 

when he was called to the mine foreman's office for assertedly creating 

an alleged unsafe mine condition, only to be exonerated when it was 

discovered that he was not at work that day, is indicative of the kind 

of treatment afforded him by the respondent because of his safety activities. 

Mr. Dickey goes on to argue that it was impossible for the respondent 

to have forgotten and forgiven him for his "past transgressions against 

them from February 1979 until the sunnner of 1981", and that the clear 

and unequivical language of mine foreman Sam Pulice, in October 1980, 

when he announced in front of the entire crew that he would. fire him at 

the first opportunity (Tr. 73), left no doubt about the respondent's 

attitude towards him. 

Mr. Dickey notes that it is interesting to note that there is no 

record evidence to indicate that the respondent ever told Mr. Pulice 

to discontinue his threats nor did they warn him not to carry them out. 

Additionally, he argues that knowledge of the respondent's attitude 

toward him was not limited to Sam Pulice, Mr. Cook and Mr. Pasera, and 

he cites his testimony that section foreman, William Homastat, in June 1981 

told him that Sam Pulice had told the foreman that he was going to have 

him fired the first chance he got (Tr. 88). Mr. Dickey concludes that it 

is impossible to believe that all of this animosity did not play "any 

part" in his discharge. Of equal importance, states Mr. Dickey, is the 

"incredible explanation" of the respondent that they never even looked 

at his personnel file before taking discharge action, and he concludes 

that the evidence clearly establishes that he has met his burden and 

proven that his discharge was motivated in part by his protected activity. 

In response to the respondent's affirmative defense, Mr. Dickey 

first points out that the charges against him are limited to his alleged 

abusive and threatening conduct towards Ms. Yoder, and that respondent's 

counsel's suggestions at the hearing that respondent also discharged him 

for assertedly abusing a supervisor (Douglas Held) should be rejected. 

As for his conduct involving Ms. Yoder, Mr. Dickey admits that he lost 

his temper, admits to arguing and cursing, and admits to becoming 

entangled with her. However, he denies striking her and suggests that 
since he and Ms. Yoder had a common-law relationship, the very nature 

of this relationship makes is somewhat different that the usual 

confrontation between two employees. 

Mr. Dickey argues that there is no direct evidence offered by the 

respondent to prove that he physically abused Ms. Yoder, and he points 

out that the respondent did not subpoena Ms. Yode~ or any other witnesses 

to prove it. He also argues that the "statements" offered by the 

respondent to establish that he struck Ms. Yoder should not be accepted 

as proof of that fact, and should be rejected as hearsay. Even if they 

are accepted, he asserts further that they are contradictory and nonclusive as to any physically abusive conduct on his part towards Ms. Yoder, 

and that Mr. Yoder denied that he struck her. 

Mr. Dickey asserts that since he has proven by a preponderance of 

the evidence that he engaged in protected activity, and that part of 

the respondent's motive for his discharge was this protected activity, 

respondent's affirmative defense in support of its discharge action 

must be judged by its past treatment of other violators of the shop rules. 

At pages 19 through 21 of his brief, Mr. Dickey cites the testimony of 

respondent's chief witness, Dale Norris, and concludes that it "is 

fraught with inconsistencies and evasions and is, therefore, not credible". 

Further, Mr. Dickey asserts that the failure by the individuals who 

made the decision to discharge him to look at his personnel file indicates 

a predetermined decision to fire him at the first opportunity, and in 

support of this contention he cites the advice given by respondent's 

labor relations representative in Pittsburgh to Mr. Norris "to discharge 

Mr. Dickey after a thorough investigation" (Tr. 609). 

At nages 23 through 25 of his brief, Mr. Dickey cites a number of 

incidents concerning violations of company shop rules by other wage 

employees, as well as supervisors, all of which he claims resulted in 

no punishment being meted out, or punishments less than discharge. 

Mr. Dickey points out that his safety activity began in February 1979, 

that his last safety incident was June 19~1, that the mine was on strike 

from March 1981 until June 1981, and that his discharge came just three 

months later. Under these circumstances, he argues that there was no 

great lapse of time between his safety activity and his discharge, and 

he concludes that it is inconceivable that anyone can believe that his 

discharge was totally divorced from his safety activities. 

Respondent's posthearing arguments 

Citing the Pasula case, respondent points out that the burden of 

proof is on Mr. Dickey to establish a prima facie case that he was 

discharged for engaging in protected activity. Respondent maintains that 

Mr. Dickey's own testimony contradicts his assertion that he was discharged 

for engaging in protected activity in that (1) he filed safety grievances 

and prevailed in them; (2) he obviously was not afraid of retaliatory conduct 

554 
by mine management since he pursued safety grievances as long as he 

worked underground; (3) others who joined him in filing grievances are 

still employed by the respondent; and (4) he knew when he bid on his 

last job in the preparation plant that he was moving out of the area and 

jurisdiction of foreman Sam Pulice, his asserted nemesis. 

Respondent argues that after the incident of September 18, 1981, 

Mr. Dickey did not take up the offer of his foreman to come to the mine 

to discuss the matter and see whether it could be resolved short of 

discharge, and that his refusal to do so was based on his conviction 

that he would not be discharged (Tr. 232). Respondent points out that 

Mr. Dickey had only worked for Mr. Held for four days prior to the incident 

in question, and that Mr. Held had no knowledge of his prior employment 

history, and considered him to be a good worker. Respondent suggests 

that Mr. Dickey's assertion that he did not believe he would be fired 

"is a strange assertion by a man who supposedly was worried by Sam Pulice's 

threats to discharge him". Respondent concludes that Mr. Dickey was 

not seriously worried about Mr. Pulice because he knew that Mr. Pulice 

did not have the authority to fire anyone. 

Respondent argues further that even assuming Mr. Dickey can establish 

a prima facie case, it can rebut this by showing that he would have been 

discharged for threatening and abusive conduct toward a fellow employee 

regardless of whether he filed safety complaints. In support of this 

argument, respondent points to the face that the four management officials 

who participated in the decision to discharge Mr. Dickey did not consider 

his prior record because they believed the incident of September 18, 1981, 

sufficient grounds for discharge, and that the notice to suspend him, 

and the subsequent grievance, all focus on that one incident. Respondent 

suggests that if Mr. Dickey r~ally believed his discharge was because 

of his problems with foreman Pulice, he did not timely raise this allegation, 

took no steps to mention it during the arbitration, and waited until 

the arbitrator ruled against him to file a complaint with this Commission 

on Jaunary 20, 1982. 

Respondent concedes that Dale Norris, the preparation plant 

superintendent, was aware of Mr. Dickey's prior activities through conversations with Walter Cook, the underground superintendent, but emphasizes 

that Mr. Norris found him to be a good worker and had no problems with 

him. Respondent also concedes that Bob Hoover, employee relations 

superintendent, was aware of Mr. Dickey's prior history because he 

handled company grievances, that Ernie Helms, respondent's labor relations 

manager in the Pittsburgh office, handles grievances from all miners 

employed by the respondent, but that it is hardly likely that Mr. Dickey 

made any particular impression on him. As for J. W. Boyle, the general 

superintendent, respondent points out that he had only been at the mine 

since Marc~ of 1981 and "probably had more important things to do that 

rehash old gossip." Respondent concludes that it has established that 

protected activities were not part of the decision to discharge Mr. Dickey 

555 
and that its testimony clearly shows that the factors considered by 

management were that an employee suffered physical injury, and it was 

pure chance that the altercation happened where a supervisor was in a 

position to prevent further injury, and that it was just as likely had 

Ms. Yoder gone to work without requesting to speak to Mr. Douglas Held, 

the altercation would have happened near moving machinery with a likelihood 

of greater injury. 

Respondent maintains that the use of threatening and abusive conduct 

by one employee on another employee resulting in physical injuries is a 

serious matter in the workplace, and that in and of itself, such conduct 

is considered grounds for discharge pursuant to Rule 4 of the mine rules 

of conduct, and Mr. Dickey is not the only employee of the mine who has 

been terminated for threatening and abusive conduct (Tr. 337). In further 

support of its argument, respondent cites the testimony of superintendent 

Walter Cook that the factors used to judge whether conduct is considered 

threatening and abusive are "the voice tone and flexion, mannerisms with 

hands, arm gesture, the underlying dispute and the actual words used" 

(Tr. 455-456). Respondent also cites the testimony of UMWA District 4 

Safety Inspector Rabbitt, who indicated that if Mr. Dickey assaulted 

Ms. Yoder, the respondent had just cause to fire him (Tr. 298). 

In response to Mr. Dickey's arguments that he was treated disproportionately to the offense, respondent points out that although the 

union contract allows an employee to argue that he was treated differently 

than others similarly situated, the complainant did not raise this defense 

during the arbitration. Regarding the two incidents were Mr. Dickey 

claims that foremen struck wage employees and were not disciplined, 

respondent answers that he failed to establish that anyone in mine management 

was aware of the incidents. Although Hr.; Dickey claimed that Walter Cook 

told Mr. Reiser and Mr. Borgani to apologize after an altercation (Tr. 113), 

respondent points out that Mr. Cook had no recollection of the incident 

(Tr. 394), and assumed that because of the physical disparity between the 

two men he would have heard of any altercation (Tr. 451). Further, 

respondent points to the fact that Mr. Borgani is still employed at the mine, 

"obviously is a friend" of Mr. Dickey's, but that Mr. Dickey never subpoenaed 

him to testify at the hearing (Tr. 243, 246). 

Regarding an alleged incident between David Rowe and Denzell Desmond 

as testified to by Mr. Dickey (Tr. 114), respondent points out that Mr. Cook 

was not aware of the incident and that Mr. Rowe testified that he told 

no one in management of the incident and had heard "locker room gossip" 

that Mr. Cook would have fired both him and Mr. Desmond if the incident 

had escalated (Tr. 491, 493). With regard to Mr. Dickey's attempts to 

equate an assault on a fellow employee with absenteeism, forging doctor's 

slips, and sleeping on the job, respondent argues that common sense 

dictates that an incident involving a physical injury to an employee 

would be treated differently than one involving only economic injury. 

55£ 
In response to Mr. Dickey's arguments that allowances should be 

made for his behavior because the woman involved was his common law wife, 

respondent states that following this to its logical conclusion, had 

management "shrugged the matter off", and had Mr. Dickey proceeded to 

continue his assualt on Ms. Yoder, respondent would have exposed itself 

to liability, compensation, and grievances by Ms. Yoder. 

Respondent maintains that the circumstances of this case shows no 

animus toward Mr. Dickey. In support of this claim, the respondent 

points to the fact that when Mr. Dickey and Ms. Yoder wanted to work the 

same shift, the company accommodated them to the extent possible (Tr. 194). 

When he brought safety items to the attention of management in the 

preparation plant, the conditions were quickly remedied (Tr. 90-91). 

He was not given a particularly onerous job (Tr. 598), and admits that 

his problem with Ms. Yoder began outside the work environment (Tr. 95). 

In response to Mr. Dickey's assertion that Mr. Douglas Held agitated 

the situation because he tried to physically separate him and Ms. Yoder, 

respondent maintains that this was done to prevent Ms. Yoder from suffering 

injuries, and that Mr. Held was obviously not out to get Mr. Dickey for 

he made every effort to solve the problem short of discharge. 

Finally, respondent maintains that the one person who Mr. Dickey 

accuses of being out to get him, Sam Pulice, was obviously not capable 

of carrying out his threats to discharge him during the two years he 

worked underground. Aside from the question of establishing a motive 

for Mr. Pulice to arrange the firing of an employee who no longer worked 

for him and therefore was not causing him any trouble, respondent points 

to the fact that the incident of September 18, 1981, occurred when Mr. Pulice 

was not at work and that the original decision to suspend Mr. Dickey with 

intent to discharge was made so quickly that Mr. Pulice could not have 

had any input. Respondent maintains that Mr. Dickey's attempts to forge 

a chain of circumstantial evidence to bridge the gap between his problems 

with Mr. Pulice underground and his termination at the preparation plant 

must fail, and he has failed to carry his burden of proof in establishing 

that he suffered disparate treatment or that his firing was motivated 

by protected activities. 

Findings and Conclusions 

Mr. Dickey's safety complaints 

It is clear that Mr. Dickey has an absolute right to make safety 

complaints about mine conditions which he believes present a hazard to 

his health or well-being, and that under the Act these complaints are 

protected activities which may not be the motivation by mine management 

in any adverse personnel action against him. Sec. ex rel. Pasula v. 

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

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

Cir. 1981), and Sec. ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 

557 
803 (April 1981). In order to establish a prima facie case Mr. Dickey 

must prove by a preponderance of the evidence that: (1) he engaged in 

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

by the protected activity. Further, his safety complaints must be made 

with reasonable promptness and in good faith, and be communicated to mine 

management, MSHA ex rel. Michael J. Dunmire and James Estle v. Northern 

Coal Company, 4 FMSHRC 126 (1982). 

In this case; there is no evidence that Mr. Dickey ever personally 

filed any safety complaints with MSHA or any State mining enforcement 

agency. Further, while Mr. Dickey may have served as a member of the mine 

safety committee at his previous place of employment, during his employment 

with the respondent he apparently lost his bid for election to the mine 

safety committee and had no official connection with that committee at 

the Cumberland Mine. However, he has established that during his employment 

with the respondent he did file safety grievances and complaints, and 

while he may not have been the direct moving party who initiated each of 

those complaints or grievances, his participation in those complaints 

and grievances was such as to lead one to conclude that he participated 

in them. 

Mr. Dickey was first employed by the respondent in August 1977, 

and his safety complaints and grievances took place during the period of 

approximately May 1979 through June 1981, and were confined to his period 

of employment underground. In his deposition of June 16, 1982, Mr. Dickey 

confirmed that during the time he was assigned to the surface preparation 

plant, June 1981 to the date of his discharge, while there were some 

problems with dirty belts and screens, management always took care of these 

matters and he filed no safety complaints (deposition, pg. 27). The record 

in this case reflects that his complaints and grievances began in May 1979, 

when several miners, including Mr. Dickey, had some differences over the 

safe operation of a slope car, and the miners refused to ride the car out 

of the mine. The grievance included a claim for pay by the agrieved 

miners, and while the respondent was apparently cited by MSHA for the 

condition of the cable on the slope car, the grievance was settled after 

the miners were compensated for their lost-work time (exhibit C-1). 

Subsequent safety grievances concerned the use of an emergency evacuation 

belt system, and an asserted lack of an adequate communications system 

on the slope car, and these were filed by the mine safety committee on 

October 4, 1979, and February 1, 1979 (exhibits C-2 and C-3). The grievance 

concerning the emergency belt included a claim by the miners, including 

Mr. Dickey, for compensation for lost wages. 

Other safety grievances in which Mr. Dickey was involved include a 

September 1980, incident concerning an asserted unusual amount of coal 

dust exposure on the section where Mr. Dickey and his crew were working, 

and an incident in October 1980, concerning the procedure for cutting 

through an underground gas well (exhibit C-6). These grievances apparently 

included miner claims for compensation for time lost because of these 

incidents, and disputes over whether or not miners were given other work, 

and the grievances appear to have been settled by the payment of compensation 

to the miners. 

558 
Safety grievances in which Mr. Dickey was directly involved as 

the moving party concerned an incident where he refused to operate 

a continuous mining machine while his section foreman was standing 

within his line of travel, and an incident where he missed a man trip 

into the mine during the start of his work shift because he had stopped 

by a maintenance foreman's office to show him a defective cable splice 

which had been removed from his machine the day before. Mr. Dickey was 

sent home over both incidents, and his grievances included claims for 

compensation. He prevailed on each of these claims and was subsequently 

compensated for the time lost. A third grievance stemming from the 

asserted defective cable splice concerned Mr. Dickey's reassignment to 

other work and then being sent home. He apparently prevailed in his 

claim for lost wages over that incident. 

Mr. Dickey's grievance against Sam Pulice for cursing him was filed 

on October 27, 1980, (exhibit C-7), and the record reflects that after 

going through the grievance step 2, it was withdrawn on February 3, 1981, 

at setp 3 after Mr. Pulice apologized to Mr. Dickey. 

In view of the foregoing, it seems abundantly clear from the record 

that Mr. Dickey did file safety grievances and complaints with the 

respondent, and that mine management was aware of them. At least two 

of the grievances and complaints personally involved general mine foreman 

Sam Pulice and section foreman Kenny Foreman. Walter Cook, the underground 

mine superintendent, acting as management's reviewing official for some 

of the grievances, initially denied several of Mr. Dickey's grievances. 

Further, in its post-hearing brief respondent concedes that preparation 

plant superintendent Dale Norris and employee relations superintendent 

Bob Hoover were aware of Mr. Dickey's grievances and complaints. 

Mr. Dickey's discharge 

The September 18, 1981, notification to Mr. Dickey that he was 

suspended with intent to discharge, effective that same day, exhibit C-8, 

specifically charged him with the following violation of Mine & Shop Conduct 

Rule 114: 

On September 18, 1981, Midnight Shift, your abusive 

& threatening conduct towards a fellow employee of 

the Company resulted in her multiple injuries. 

The general language of the Mine and Shop Conduct Rules, exhibit C-9, 

cautions all mine employees to "avoid conduct which violates reasonable 

standards of an employer-employee relationship", and included among the 

10 classes of such "conduct" is Rule 114 which states: 

Insubordination (refusal or failure to perform work 

assigned or to comply with supervisory direction) 

or use of profane, obscene, abusive or threatening 

language or conduct towards subordinates fellow ' employees, or officials of the Company. 

559 
Shop Rule lf8 prohibits "fighting", but Mr. Dickey was not charged 

with an infraction of this rule. Although the September 18, 1981, incident 

in question raised the question of Mr. Dickey's refusing to comply with 

Mr. Norris' directive to leave his office and return to work, and also 

gave rise to a possible charge of "abusive conduct" towards Mr. Norris, 

respondent opted not to include these matters as ·part of the charge 

initially levied at Mr. Dickey to support his suspension and subsequent 

discharge, and counsel's attempts to expand the charges during the course 

of the hearing is rejected. 

Mr. Dickey's assertion that assistant plant foreman Douglas Held's 

actions at the time of the incident with Ms. Yoder somehow contributed 

to Mr. Dickey's "blow up" and subsequent discharge is rejected. Mr. Held 

was conducting a private conversation in his own office with Ms. Yoder 

at her request. The testimony in this case establishes that Mr. Dickey 

intruded into that conversation and conference by barging into Mr. Held's 

office uninvited, and demanding to know "what the hell is going on here". 

Mr. Dickey refused to heed Mr. Held's request to return to work, and his 

insistence on pursuing the confrontation with Ms. Yoder precipitated the 

incident in question and was the direct result of his actions, not Mr. Held's. 

As a matter of fact, based on the testimony presented here, including the 

fact that Mr. Dickey had to be physically restrained and ultimately 

escorted off the premises, I am of the view that Mr. Held exercised 

remarkable restraint in the circumstances. Further, when Mr. Held subsequently contacted Mr. Dickey by telephone in an effort to have him come 

to the mine the next morning to discuss the matter further, Mr. Dickey 

insisted that he had "reported off", did not have to do "a damn thing" 

Mr. Held told him, and hung up on him. 

Management's alleged hostility to Mr. Dickey's safety complaints 

Mr. Dickey's post-hearing arguments suggest that "mine management's 

attitude" towards him because of his safety activities manifested itself 

in the "treatment" accorded him by Mine Foreman Sam Pulice, Mine Superintendent 

Walter Cook, and a supervisor identified as R. T. Passera. As indicated 

earlier, Mr. Pulice and Mr. Passera did not testify in this case. Absent 

an opportunity to hear their testimony and observe their demeanor on the 

witness stand, I am constrained to make my findings on the basis of the 

available testimony and evidence of record on this question. Based on 

the unrebuted testimony and evidence adduced by Mr. Dickey, while I may 

find and conclude that Mr. Pulice was hostile towards Mr. Dickey, I find 

nothing in the record to support such a finding and conclusion concerning 

Mr. Cook or Mr. Passera, and my reasons in this regard follow. 

I take note of the fact that the respondent has presented no evidence 

to establish that Mr. Dickey's safety complaints and grievances were made 

in bad faith or that they were made to harass mine management. As a matter 

of fact, respondent has never advanced this as an argument, and Mr. Cook 

took Mr. Dickey's safety complaints as serious and not frivolous. Further 

560 
during the grievance filed by Mr. Dickey against Mr. Pulice, it was 

Mr. Cook and Mr. Passera who insisted that Mr. Pulice apologize to Mr. Dickey 

and the grievance was terminated on that basis. Mr. Dickey seems to 

read something "sinister" into Mr. Cook and Mr. Passera's motivations 

or "attitudes" which I simply cannot find supported by any credible testimony 

or evidence of record. While it may be true that Mr. Cook may not have 

publicly chastised Mr. Pulice over his outbursts during the grievance 

hearing, and particularly with regard to his alleged statements at the 

third stage grievance that he would "fire him (Dickey) tomorrow if I get 

the chance", Mr. Dickey testified that Mr. Cook interrupted Mr. Pulice, took 

him out of the room, and returned shortly thereafter with an apology 

(Tr. 79). 

I reject Mr. Dickey's broad and general assertioμ that in each instance 

where he filed a grievance, mine management attempted to punish him. There 

are two sides to a safety complaint or grievance, and the fact that a 

miner chooses to file such an action does not in and of itself indicate 

that he is right. Further, simply because mine management chooses to 

exercise its right to answer the complaint and to run its mine and supervise 

the work force in a manner in which it believes it has a right to do does 

not necessarily mean that management is trying "to chill the rights of 

the miner". For example, one of the grievances filed by Mr. Dickey involved 

his missing the man trip into the mine at the beginning of a work shift. 

His explanation is that he missed the trip because he decided to stop 

off at the maintenance office fo discuss a cable splice with the maintenance 

foreman. Mine management obviously expected him to ride the trip in and 

to go to work, and I do not consider his being sent home or disciplined 

for missing the trip as "punishment", notwithstanding the fact that Mr. Dickey 

may have prevailed on his grievance on this issue. 

In support of his post-hearing argument that mine management became 

"infuriated" and refused to pay Mr. Dickey and his crew for the extra time 

they were forced to remain in the mine when they refused to ride the 

emergency slope belt out, Mr. Dickey refers to exhibit C-2. That exhibit 

is a copy of UMWA Safety Inspector Rabbitt's report of the incident. 

That report shows that a grievance was filed claiming two hours and 15 minutes 

double time compensation, and a requested clarification as to when the belt 

could be used. It also shows that 80 other employees either walked out 

of the mine or rode the belt, and Mr. Rabbitt's opinion was that the men 

who opted to stay in the mine were only entitled to compensation for an 

hour and fifteen minutes. This is hardly evidence of management's being 

"infuriated" or acting out of retribution. As a matter of fact, miner 

representative Rabbitt's assessment of the claimed compensation is contrary 

to the miners who filed the grievance. 

The fact that mine superintendent Cook chose not to implement 

Mr. Dickey's suggestion that hand-held walkie talkies be used as a means 

of communications on the slope car and rejected this suggestion does not 

establish any animus towards Mr. Dickey by Mr. Cook, and Mr. Dickey's 

56t 
conclusion that Mr. Cook rejected his suggestion simply because he 

(Dickey) made it is simply Mr. Dickey's conclusion, and his transcript 

reference to pg. 37 simply does not support his assertion. Mr. Cook's 

testimony concerning this incident simply shows that he disagreed with 

Mr. Dickey's assessment for the necessity of walkie talkies, and since 

it was his (Cook's) decision to make, he rejected it. Further, the 

record shows that the communications problem was ultimately corrected, 

and I cannot read into the grievance which was filed over the incident 

a conclusion that mine management had "a heavy-handed reaction" to that 

incident. As a matter of fact, Mr. Cook testified that he did not believe 

that Mr. Dickey "agitated" this incident or attempted to "blow it out of 

proportion". 

Mr. Dickey's post-hearing arguments concerning management's reaction 

over the slope car incident simply makes references to "exhibit C-3", which 

is a copy of the "findings and recommendations" of UMWA District 114 

Safety Inspector Thomas J. Rabbitt. Mr. Rabbitt was called as a witness 

by Mr. Dickey, and he simply confirmed the fact that a grievance had 

been filed. He gave no testimony concerning this incident and I have given 

no weight to the hearsay conclusions and statements made in his report. 

The fact that mine management believed that the refusal of the crew to ride 

the slope car was an illegal work stoppage for which the men should not 

be paid stands as management's "opinion" and "position" on that issue, and 

I cannot conclude that it was a "heavy handed" attempt to retaliate against 

Mr. Dickey or the other members of the crew. 

Mr. Dickey argues that as a result of his safety activities, Mine Foreman 

Sam Pulice became hostile, verbally abused him, threatened to fire him 

at the first opportunity, and otherwise made life miserable for him. So 

much so, that Mr. Dickey claims he was scared to walk by Mr. Pulice's 

office, and eventually prompted him to bid on a surface job in the preparation 

plant to get away from Mr. Pulice. Mr. Dickey has produced credible 

testimony and evidence to support his contentions that Mr. Pulice did in 

fact harass and threaten him with discharge over his safety complaints 

and grievances. In addition to the verbal abuse which led to a grievance 

against Mr. Pulice, the incident concerning Mr. Dickey's refusal to run 

his machine for fear of running over his section foreman, the incident 

concerning Mr. Pulice's unfounded accusation that Mr. Dickey may have 

been involved in a safety infraction, and the incidents concerning work 

stoppages over a gas well and dusty mine conditions, all of which resulted 

in Mr. Pulice berating and intimidating Mr. Dickey, make it clear to me 

that Mr. Pulice was not too enchanted with Mr. Dickey and was hostile towards 

him because of his safety activities. Given all of these circumstances, I 

conclude and find that Sam Pulice was openly hostile towards Mr. Dickey, 

and that this hostility resulted from Mr. Dickey's protected safety activities. 

Insofar as Mr. Pulice's role in Mr. Dickey's discharge is concerned, 

respondent has established through credible testimony that notwithstanding 

Mr. Pulice's threats to fire Mr. Dickey, Mr. Pulice had no such authority 

and did not in fact personally discharge Mr. Dickey. Further, there is 

no direct evidence to establish that Mr. Pulice made any input into the 

r: 6 ')· u {.., 
management decision to discharge Mr. Dickey, nor is there any direct 

evidence to establish any nexus between Mr. Pulice's open hostility and 

displeasure with Mr. Dickey over his safety activities and his discharge. 

On the facts of this case, had Mr. Pulice actually discharged Mr. Dickey, 

recormnended that he be discharged, or participated in the management decision 

to discharge Mr. Dickey, Mr. Dickey would have a strong prima facie argument 

that his discharge was motivated in part by Mr. Pulice's hostility and 

displeasure over his protected safety activities. In such a situation, 

since Mr. Pulice is part of mine management, any illegal discharge made in 

retaliation for Mr. Dickey's exercise of his protected safety rights would 

be imputed to the respondent, and it would be held accountable for 

Mr. Pulice's actions if it could not establish by a preponderance of the 

evidence that the discharge was motivated by unprotected activities and 

that management would have discharged Mr. Dickey in any event for those 

unprotected activities alone. On the other hand, if I conclude that Mr. Pulice 

had no connection with the decision to discharge Mr. Dickey, the question 

still remains as to whether the management members who did make that 

decision were motivated in part by Mr. Dickey's safety activities, or 

whether he would have been discharged anyway over the Yoder incident. 

Mr. Dickey maintains that the management decision to discharge him was 

made because management wished to rid themselves of a "safety thorn" in 

their side, and that respondent's assertion that his safety activities 

played no role in the discharge decision is simply incredible. Findings 

on these issues are discussed later in this decision. 

The asserted disparate treatment of Mr. Dickey 

One of the critical elements of Mr. Dickey's case is the argument 

that mine management treated other employees different from him when 

disciplining them for infractions of the shop rules. Mr. Dickey concludes 

that the evidence and testimony presented in this case establishes beyond 

any doubt that he was dealt with more harshly than others. As indicated 

earlier, the "shop rules" are set forth in a one page exhibit C-9. Aside 

from the exhibit itself, the rules contain no explanations as to the 

mechanics of their application, the relative severity of each enumerated 

infraction, and there is no further explanation of the terms "discipline 

or discharge". 

As previously noted, at pages 23 through 25 of his brief, Mr. Dickey 

itemizes and summarizes a number of examples of what he believes to be 

disparate treatment of other employees for infractions of the shop rules. 

In each of the cited instances, Mr. Dickey claims that mine management 

either meted out less severe punishment, or no punishment at all, for 

more serious offenses than what he was charged with. 

As one example of disparate treatment, Mr. Dickey states that 

Sam Pulice cursed him and employee Randall Dugan, but that Mr. Pulice 

was never disciplined for these violations of the shop rule. The fact 
is that Mr. Pulice was the subject of grievances filed by Mr. Dickey and 

Mr. Dugan. Mr. Dickey's grievance was dropped at stage 113 after Mr. Pulice 

apologized, and Mr. Norris confirmed that Mr. Dugan's grievance was also 

withdrawn after Mr. Pulice apologized to him. Management's position in 

both instances was that Mr. Pulice had not violated the labor-management 

agreement, and both grievances were settled after the apologies were made. 

The fact that mine management did not see fit to discipline Mr. Pulice 

further was its decision, and as explained by Mr. Cook, he did not take 

Mr. Pulice seriously, and Mr. Norris obviously believed that the apology 

to Mr. Dugan was punishment enough, and he also considered the fact that 

Mr. Dugan had been charged with insubordination. Mr. Cook did confirm 

that Mr. Pulice did not receive a scheduled bonus, and cited his cursing 

of Mr. Dickey as the reason for this. He also confirmed that he had 

suspended foremen for safety infractions. 

Other instances of supervisors cursing wage employees were brought 

out by the testimony of UMWA representative Swift and miner Jan Christopher. 

Grievances were.filed by the employees allegedly cursed, but they were 

withdrawn after the union apparently accepted mine management's position 

that the contract did not provide for mine management disciplining its 

own salaried management personnel. The record here strongly suggests 

that the "typical" case concerning supervisors cursing wage employees was 

either settled at the third stage of the grievance by the supervisor 

apologizing, the employees being assigned to other supervisors, or the 

matter was dropped by the union because it could not dictate to management 

how it should discipline its managers and supervisors. 

Another example of alleged disparate treatment cited by Mr. Dickey 

concern employees charged with absenteeism and abuse of sick leave, 

including falsifying doctor's excuses. Mr. Dickey takes the position 

that since none of these employees were discharged for these offenses, 

which he characterized as more serious than his confrontation with Ms. Yoder, 

management obviously had it in for him. However, the fact is that in 

each instance of absenteeism cited by Mr. Dickey, the employee was in 

fact disciplined and suspended without pay_ for the infraction. In the 

case of Lisa Zern, she was suspended on several occasions for absenteeism, 

and Mr. Cook testified that the last incident resulted in a five-day 

suspension with intent to discharge her, but that under the union contract 

he could not make out a case for discharge, but that she subsequently 

resigned while under charges for other offenses. Union representative 

Swife confirmed that employee Chris Watson was discharged for fa~si~ying 

a doctor's excuse. 

Copies of previous personnel actions taken against Mr. Dickey for 

infractions of the shop rules dealing with absenteeism and insubordination 

while he was employed at the Cumberland Mine, reflect that Mr. Dickey had 

also received verbal reprimands, warnings and suspensions, and in each 

case he was advised that "future violations similar in nature may result 

in more severe discipline", (exhibit C-12 and exhibit C-13),and the 
notifications to him for these infractions are signed by section foreman 

Kenneth Foreman and mine superintendent Walter Cook. The notices were 

issued on December 5 and 31, 1979,and they include references to previous 

infractions concerning absenteeism, "excessive early quite", and 

insubordination during various periods in 1978 and 1979. 

Other examples of alleged disparate treatment cited by Mr. Dickey 

concern incidents of fights involving miner Les Risor and face boss 

Rich Borzani, and an incident where section boss Denzell Desmond allegedly 

struck contract employee David Rowe. Mr. Dickey claims that no discipline 

was meted out for these alleged encounters. Superintendent Cook testified 

that he had no knowledge of those incidents, and absent any credible 

evidence that the incidents were ever reported to mine management, and 

that mine management was aware of them, I fail to understand how Mr. Dickey 

expects management to address the problem. Hearsay statements that these 

incidents were matters of "common knowledge" is insufficient to impute any 

knowledge of these events to management. 

Mr. Rowe testified that the supervisor who allegedly "smacked" 

him and "grabbed him by the neck" did so after learning that Mr. Rowe 

had been designated by his fellow miners to "grease" the supervisor as 

some sort of "horseplay ritual" or "practical joke". Mr. Rowe admitted 

that this was the case, and he conceded that he did not report the incident 

and that he and the supervisor in question had never had any problems. 

In my view, the Rowe-Desmond incident cited by Mr. Dickey as an example 

of a supervisor "fighting" with a rank and file miner is taken totally 

out of context. Since Mr. Rowe was a willing participant in the prank 

to "grease" the supervisor, any attempts to carry out his mission was 

undertaken at the risk of the supervisor resisting. In short, given these 

circumstances, if the supervisor "smacked" Mr. Rowe, I believe Mr. Rowe 

had it coming. 

Mr. Dickey characterizes Mr. Cook's apparent lack of zeal in publicly 

disciplining his supervisory personnel to be "incredible". He also takes 

issue with Mr. Cook's testimony that the personnel records of supervis.ory 

personnel are not noted when they are disciplined, and that any discipline 

given to supervisors is done privately. Mr. Cook's position is that 

supervisory personnel do not come under the UMWA/BCOA contract provisions, 

and that it is management's prerogative co determine when and how supervisors 

are to be disciplined. UMWA District #4 Executive Board Member Swift's 

testimony strongly suggests to me that he is in agreement with Mr. Cook 

on this issue, and in the grievances in which he was involved he conceded 

that the union did not take them to arbitration because they could not 

force management to discipline its management salaried employees under 

the contract. 

Part of Mr. Dickey's argument concerning disparate treatment 

is based on the premise that management's failure to treat its management 

employees the same as wage and contract employees in disciplinary matters 

565 
is patently arbitrary and illegal. The fact is that management has seen 

fit to run its affairs in this manner, and whether its decisions made in 

a given case involving supervisory or other personnel may be just or fair 

is beside the point. Absent a showing that management has violated any 

rule of law, the manner in which it chooses to run its business affairs 

is not a subject for judicial scrutiny by this Commission, Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508, 2 MSHC (BNA) 1505 (1981), appeal filed, 

No. 81-2300 (D.C. Cir. December 11, 1981). 

As for Mr. Dickey's arguments that other employees were dealt with 

less severely than him for more serious offenses, I simply cannot reach 

that conclusion from the record in this case. As indicated above in my 

discussion and findings concerning the disciplining of employees for 

infractions of the shop rules, management's decision in each of those 

instances was obviously made on a case-by-case basis and on the basis 

of the the then prevailing facts. Lisa Zern resigned after repeated infractions 

of the absentee rule; Chris Watson was discharged for falsifying doctor's 

leave slips; and Mr. Dickey admits and concedes that other employees were 

suspended and disciplined for various infractions of the shop rules. 

Mr. Dickey would have me substitute my judgment for mine management in 

each of those instances. This I decline to do. 

Management's motivation for the discharge 

Respondent maintains that the decision to discharge Mr. Dickey 

was premised on the fact that management had reasonable cause to believe 

through its investigation of the altercation with Ms. Yoder that Mr. Dickey 

had physically assaulted her by striking her with his fist, and that this 

assault resulted in physical injuries to Ms. Yoder. UMWA District #4 

Safety Inspector Rabbitt testified that assuming Mr. Dickey had actually 

physically assaulted Ms. Yoder, respondent would be justified in discharging 

him (Tr. 298). 

At the hearing in this case, the parties went to great lengths to 

establish whether or not Mr. Dickey actually struck Ms. Yoder, and the 

testimony is in conflict. Mr. Dickey denied that he struck Ms. Yoder 

with his fist, and claimed that she suffered her injuries during their II 1 II h • entang ement on t e stairway as he chased after her, and suggested 

that it was possible that her injuries occurred when a hard hat may 

have fallen off during their struggle and hit her, or that his head 

may have bumped into her check (Tr. 741). He also testified that when 

Douglas Held interceded at the stairway, Ms. Yoder told Mr. Held that 

he (Dickey) had hit her (Tr. 103). Ms. Yoder did not testify in the 

instant case, and Mr. Dickey called no witnesses who may have been 

present during his altercation with Ms. Yoder. 

The only witnesses called by the respondent with regard to the 

altercation in question were Mr. Held and Mr. McNeeley. Mr. Held 

testified that he personally did not observe Mr. Dickey strike Ms. Yoder, 

but he confirmed that when he encountered them on the stairway Mr. Dickey 

had her pinned against the stairway railing with her back bent over the 

566 
railing. ·He also confirmed that Ms. Yoder told him that Mr. Dickey had 

struck her, that her back and jaw were sore, that she lost a contact 

lens during the altercation, and that she wanted to go home. She filled 

out an "early quit" slip and left the mine at approximately 3:00 a.m. 

Mr. Held confirmed that Ms. Yoder required no medical attention, did 

not appear to be in serious pain, and while she was emotionally upset 

over the incident, he did not suggest that she a doctor. He also 

confirmed that she lost no subsequent time from work over the incident. 

Mr. NcNeeley testified that he observed Ms. Yoder after she was 

taken to the preparation plant utility room and saw blood on her teeth, 

observed a slight puffiness on her left lower lip, and she appeared to 

have been crying. He instructed one of her fellow miners to take her 

to the ladies room to "clean her up and try to calm her down'' because she 

appeared to be upset. 

At the hearing, respondent's counsel produced copies of statements 

taken during respondent's investigation of the incident in question 

(exhibits R-6 through R-13). The statements were taken the day after the 

incident by Mr. Norris and Mr. Hoover, and they include statements by 

Ms. Yoder and other mine employees who witnessed the events the previous 

morning. None of the statements are sworn or signed, no verbatim transcripts were made, and they are simply summaries of the statements made 

by the witnesses to management's representatves who were making the inquiry. 

Further, none of the individuals who made the statements in question were 

called to testify in the instant case. Under all of these circumstances, 

while management saw fit to use these statements as the basis for its 

discharge action taken against Mr. Dickey, I have given them no weight 

insofar as establishing that Mr. Dickey had in fact struck Ms. Yoder. 

However, the fact I have rejected them as credible proof of the actual 

assault on Ms. Yoder by Mr. Dickey does not necessarily give rise to 

any conclusions that management's use of those statements in its decision 

to discharge Mr. Dickey was unreasonable or illegal. 

The question of whether there is sufficient evidence to establish 

that Mr. Dickey actually struck Ms. Yoder is really not that critical. 

In this regard, the testimony by Mr. Held and Mr. McNeeley as to Ms. Yoder's 

physical appearance shortly after the encounter with Mr. Dickey on the 

stairway, and her statements to Mr. Held at the time of the event, give 

rise to a strong inference that Mr. Dickey struck her. However, Mr. Dickey 

is not charged with assaulting or striking Ms. Yoder. The respondent 

charged him with "abusive and threatening conduct" resulting in "her 

multiple injuries". 

On the basis of the evidence and testimony of record before me, 

I conclude and find that the respondent has established its charge 

against Mr. Dickey by a preponderance of the credible evidence. The 

fact that the respondent presented no eye-witness testimony, or conclusively 

proved that Mro Dickey actually struck Ms. Yoder with his fist, does not 

detract from the fact that his abusive and threatening conduct towards 

56'7 
Ms. Yoder was the proximate cause of her injuries. In short, the 

fact that I cannot conclude that there is sufficient evidence of record 

before me to make a finding that Mr. Dickey actually struck Ms. Yoder 

with his clenched fist with intent to do her bodily harm, does not mean 

that mine management was wrong or unreasonable in drawing that conclusion 

when it decided to discharge Mr. Dickey. 

Mr. Norris, who at the· time of the hearing in this case was no 

longer employed by the respondent, testified as to the results of his 

investigation into the incident. His investigation includes a statement 

by plant attendant Mike Berdar that he witnessed Mr. Dickey strike Ms. Yoder 

in the face with his fist and hard hat and that she screamed. Other 

statements to Mr. Norris indicated that Ms. Yoder told him that Mr. Dickey 

had struck her, and others confirmed that they personally observed her 

puffy and bloody lip, and observed blood on the ground. Mr. Norris also 

testified that Ms. Yoder was called as a Union witness at the arbitration 

hearing, that the Union represented Mr. Dickey, and that Ms. Yoder testified 

at that grievance hearing that "she was highly anxious during that period 

and she wasn't exactly sure at that point in time what occurred, whether 

she had slipped and fallen or had been struck by Mr. Dickey or what 

exactly had occurred" (Tr. 639). 

When Mr. Norris was asked whether Ms. Yoder characterized Mr. Berdar's 

assertion made during the investigation or 24/48 hour meeting that he 

witnessed Mr. Dickey strike her as "a bunch of baloney" or "hogwash", 

he responded that he did not remember such remarks on her part. He then 

said that it was possible that she said it, but that if she did, "that 

was not the way she said it" (Tr. 658). He also stated that he did 

not recall all of the details of the 24/48 hour meeting, but confirmed 

that Ms. Yoder said she had "no recoliection or she couldn't honestly 

say she had been struck by Mr. Dickey", and when asked whether Ms. Yoder 

had actually seen Mr. Berdar's prior statement, Mr. Norris responded 

that "she heard the statement at the 24/48 hour meeting" (Tr. 659). 

Upon refreshing his recollection from some notes from the 24/48 

hour meeting, Mr. Norris testified as follows during a bench colloquy 

(Tr. 664-666): 

BY MR. YABLONSKI: 

Q. Mr. Swift asked you, he was the company representative, he asked Yoder, do you think Dickey did anything 

intentionally to cause you bodily harm, and then she 

said not intentionally. 

A. That's correct. 

Q. He then asked Yoder, when you talked with D. Norris 

in the meeting, were you upset. She said she was upset, 

humiliated, and had not sleptafter she got a chance to 

think it over, over the weekend. She didn't really 

know if he had hit her, fell into her, or what. 

568 
A. That is what she said according to those notes. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: 

So at the 24/48 hour meeting, Ms. Yoder's testimony 

was that she wasn't too clear on what happened two 

days before, and after sleeping it off, she felt 

that, no, I don't think he hit me. Isn't that the 

way you would analyze it? 

THE WITNESS: Yes, sir. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: 

And Mr. Yablonski's next question faced with that 

information would be, why did you decide to go ahead 

and fire Mr. Dickey. Didn't you believe Ms. Yoder? 

I don't want to take over your cross, Mr. Yablonski. 

MR. YABLONSKI: You asked the question, Judge. Let 

him answer it. 

THE WITNESS: There was a preponderance of evidence 

other than Ms. Yoder's statement. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: 

In other words, you just chose not to believe Ms. Yoder, 

and that what she was really doing when she recants it 

was because she just didn't want to see Mr. Dickey lose 

his job? 

THE WITNESS: I didn't chose to believe or disbelieve. 

And, at Tr. 667-668: 

BY MR. YABLONSKI: 

Q. You say that Mr. Helms is the one that recommended 

that Mr. Dickey be discharged to the group? 

A. That was his counsel to us, that based on the evidence 

and what we had learned in the 24/48, that we would let the 

suspension convert to a discharge. 

Q. Just to clear up. one thing, when you made the decision 

to proceed with the discharge, you chose to discharge 

Mr. Dickey for threatening and abusive conduct towards 

Donna Yoder, right? 

A. Right. 

569 
Q. That was the sole basis of your discharge? 

A. That's correct. 

Q. At that time, you had heard everything that was 

to hear, I guess? 

A. Correct. 

Mr. Dickey attacks the credibility of Mr. Norris, and at page 21 

of his brief asserts that his testimony "is fraught with inconsistencies 

and evasions" and so "clearly incredible relative to the discharge action", 

Mr. Dickey notes that Mr. Norris admitted that: he was aware that 

Dickey was a rowdy (597), he did not consider the connnon-law relationship 

between the parties (610), he did not consider Mr. Dickey's prior record 

(611), he was aware of Dickey's run-ins with management (647), he didn't 

care about Dickey's prior good record (656), he knew Donna Yoder repudiated 

her previous charges (657), Cook had told him Dickey was a radical (679), 

and the injury to Yoder was so slight that she didn't need medical attention 

(676). 

Mr. Norris no longer works for the respondent, and he confirmed that 

since February 1982, he has been employed with Kerr-McGee in Illinois. 

He confirmed that when Mr. Dickey first came to work for him at the 

preparation plant on June 21, 1981, he was aware of his reputation as 

"a rowdy", and that Mr. Pulice and Mr. Cook informed him of this after he 

(Norris) had inquired. Mr. Norris also confirmed that Mr. Pulice and 

Mr. Cook also told him that Mr. Dickey was "safety conscious and would 

not be a problem" (Tr. 597). Mr. Norris also confirmed that while 

Mr. Dickey worked for him Mr. Dickey made no safety complaints, and he 

was not aware of any safety complaints made by Mr. Dickey to any supervisors 

while he worked at the preparation plant (Tr. 710). 

It is true that Mr. Norris knew that Ms. Yoder and Mr. Dickey lived 

together, since he lived in the same home town. It is also true that 

he did not consider their relationship in the decision to discharge 

Mr. Dickey. While it is true that Mr. Norris responded "that's correct", 

and confirmed that he had knowledge that Ms. Yoder had repudiated her 

statement that Mr. Dickey had struck her, he went on to explain his answer 

and to point out that Ms. Yoder said she was not sure of what happened. 

Further, contrary to Mr. Dickey's characterizations of Mr. Norris' testimony 

at transcript pg. 676, Mr. Norris did not testify that Ms. Yoder's 

injury "was so slight" that she did not need medical attention. Mr. Norris 

testified that Ms. Yoder did~ repudiate the fact that she did in fact 

receive injuries (Tr. 675). He then confirmed that he was informed that 

no doctor was called. 

With regard to Mr. Dickey's past record, while it is true that Mr. Norris 

confirmed that he did not look at his personnel file at the time the 

decision was made to discharge Mr. Dickey, the record does not support 

570. 
the conclusion that he "did not care about his prior good record". 

Mr. Norris' testimony is that he was aware that Mr. Dickey was considered 

a good worker, but since Mr. Dickey had not worked for him underground 

he was not aware of any reputation that he may have had as "one of the 

better continuous miner operators". While Mr. Norris did ·respond "that's 

correct" when asked to confirm that he "didn't care" how good Mr. Dickey's 

record was, taken in context, the same response could have made if he 

were asked about Mr. Dickey's "bad record". As previously noted, exhibits 

C-12 and C-13 are copies of previous notifications to Mr. Dickey concerning 

his violation of the shop rules concerning absenteeism, contain notations 

of previous similar infractions, as well as notations concerning "early 

quits" and "insubordination", for which Mr. Dickey apparently received 

warnings and suspensions. 

Respondent concedes that Mr. Dickey's prior record did not influence 

the decision by management to discharge him because the "conunittee" that 

made that decision did not look at his personnel file. Respondent's 

position is that the group decision to fire Mr. Dickey was based solely 

on the incident of September 18, 1981, and respondent argues that this 

incident, standing alone was, sufficiently grave and serious to warrant 

Mr. Dickey's discharge, and that he would have been discharged regardless 

of his prior record, good or bad. On the other hand, Mr. Dickey takes 

the position that the failure of the group who decided to fire him to 

consider his past record clearly indicates that they had some predisposition 

to fire him and were simply waiting for an excuse to do so. 

Mr. Dickey suggests that the decision to discharge him was cast 

in concrete, and he implies that management's investigation was simply 

a sham to support its preordained decision to fire him for his safety 

activities. In support of this conclusion, Mr. Dickey cites the testimony 

of Mr. Norris to the effect that Mr. Helms advised him to "discharge 

Mr. Dickey after a thorough investigation" (Tr. 609). 

Mr. Norris testified that the initial decision to suspend Mr. Dickey 

with intent to discharge, rather than to discharge him outright, was in 

keeping with normal procedure in discharge cases so that a thorough 

investigation could be made. Since he considered the incident in question 

to be a "grave offense" and a "severe infraction", tL•_ decision was made 

to suspend Mr. Dickey with the intent to discharge, and the investigation 

of the incident began immediately. Mr. Norris then identified his notes 

concerning Ms. Yoder's August 19, 1981, statement taken during the 

investigation, exhibit R-6, and he also confirmed that after taking her 

statement, he met with Mr. Held, Mr. NcNeeley, Paul Parfitt, Bob Hoover, 

and J. W. Boyle to "discuss the whole situation". He also confirmed 

that he was in contact with labor relations manager Ernie Helms, from 

the respondent's corporate Pittsburgh headquarters, and that his reconunendation 

to the group was that Mr. Dickey be discharged (Tr. 606). However, Mr. Norris 

also confirmed that his statement interview with Ms. Yoder was prepared 

before he conducted the other interviews with the crew who witnessed 

the incident the previous morning (Tr. 606). 

571 
After careful scrutiny of all of Mr. Norris's testimony concerning 

management's investigation, I find nothing to support the contention 

that it was somehow "rigged" against Mr. Dickey. As a matter of fact, 

one of the individuals who was present during the employee interviews, 

and who also gave a statement adverse to Mr. Dickey, was Vernon Baker, 

a UMWA local union officer. Further, the record establishes that M~. Dickey 

was given at least two opportunities to come to the mine and give his 

side of the story. The first opportunity was wh.en Mr. Held called him 

and Mr. Dickey hung up on him. The second opportunity presented itself 

when Mr. Norris called him and Mr. Dickey advised him that he had no way 

of getting to the mine. 

While I have found that Mr. Pulice was hostile towards Mr. Dickey 

because of his safety grievances and complaints, respondent has established 

through credible testimony that, notwithstanding Mr. Pulice's threats to fire 

Mr. Dickey, Mr. Pulice had no such authority, and there is no direct evidence 

that Mr. Pulice ever initiated or recommended that Mr. Dickey be discharged. 

Further, Mr. Held's testimony is that he was not a part of the group 

management decision to discharge Mr. Dickey, and Mr. Dickey has presented 

no evidence to dispute that fact. 

In his post-hearing brief, Mr. Dickey points out that his last "safety 

incident" occurred in June 1981, and that his discharge came just three 

months later. His conclusion is that this is hardly enough evidence to 

support a finding of lack of coincidental timing between the protected 

activity and his discharge, or that his safety activities were so far 

in the past that it was forgotten by the mine management personnel who 

made the decision to discharge him. However, Mr. Norris testified that 

Mr. Dickey came to work for him on June 21, 1981, and as the outside mine 

superintendent, Mr. Norris also supervised the preparation plant where 

Mr. Dickey was assigned. Therefore, from June 21, 1981 to the date of 

his discharge, Mr. Dickey's supervisors would have been Mr. Norris and 

Mr. Held. Neither Mr. Pulice nor Mr. Cook reported to, or worked for, Mr. Norris 

and their supervisory authority over Mr. Dickey ceased when he successfully 

bid on the surface job in the preparation plant and reported there on 

or about June 21, 1981. Mr. Norris' supervisor was J. W. Boyle. 

With regard to any hostility on the part of Mr. Held, he testified 

that Mr. Dickey had only worked for him for four days prior to his discharge, 

and that he considered him a good worker and had no problems with him. 

Mr. Held also testified that he did not know Mr. Pulice personally and 

had no contacts with him. I find Mr. Held to be a credible and straightforward witness and cannot conclude that he was hostile towards Mr. Dickey 

because of any safety activities. However, since Mr. Held was "in the 

middle" of the Yoder-Dickey altercation of September 18, 1981, any "hostility" 

on his part would stem from that incident. Given the circumstances of 

that incident, I believe that any "adverse impression" of Mr. Dickey by 

Mr. Held would be justified. In any event, I cannot conclude that Mr. Held 

had any impact or input on management's decision to discharge Mr. Dickey 

because of any protected activity on his part. 

572 
With regard to Mr. Cook, Mr. Dickey testified that he continually 

accused him of "creating a lot of problems". However, neither Mr. ·Dickey 

nor anyone else testified that Mr. Cook ever overtly or directly threatened 

to discharge Mr. Dickey over his safety activities. Although Mr. Dickey 

testified that he bid on the surface job in the preparation plant because 

of his fear that Mr. Pulice and Mr. Cook would find a way to fire him, 

on cross-examination, he stated his belief that Mr. Pulice was also in 

charge of the preparation plant, and that he (Dickey) would not have to 

walk by his office every day if he were in the preparation plant. Further, 

Mr. Dickey conceded that he and Ms. Yoder often worked on and asked to be 

assigned to the same shift, both underground and in the preparation plant, 

(Tr. 193-194), and Mr. Norris confirmed that Mr. Dickey and Ms. Yoder 

asked to work on the same shift in the preparation plant because of travel 

and other reasons, and management "condescended and let that occur" (Tr. 598). 

In light of the foregoing circumstances, I believ~ it is just as likely 

as not that Mr. Dickey's bid for a surface job in the preparation plant 

was made for personal reasons to accomodate him and Ms. Yoder. Mr. Norris 

testified that the job of sampler, which Mr. Dickey bid on and held at 

the time of his discharge, was the lowest paying UMWA job. Since Ms. Yoder's 

transfer to a surface job in the preparation plant occurred at the same 

time as Mr. Dickey's (Tr. 597), there is just as strong an inference that 

Mr. Dickey bid on that job to be with Ms. Yoder, rather than to escape 

from of Mr. Pulice or Mr. Cook. Since Mr. Dickey did not impress me as 

the type of individual who could be intimidated over his safety activities, 

and since there is no evidence to establish that Mr. Pulice or Mr. Cook 

ever attempted to initiate discharge action against Mr. Dickey, I doubt 

very much that Mr. Dickey would bid on a low paying union job solely because 

of Mr. Pulice's conduct. 

While one may question Mr. Cook's level of tolerance with regard 

to Mr. Pulice's conduct towards his subordinates, and Mr. Pulice's 

lack of sensitivity and apparent lack of managerial judgment in berating 

and cursing his subordinates, Mr. Cook stated that he constantly counseled 

Mr. Pulice about his shortcomings and his obvious lack of discretion in 

dealing with his subordinates. The fact that management did not see fit 

to fire Mr. Pulice does not in my view necessarily mean that management 

condoned his actions. The record here shows that it was Mr. Cook who 

apparently denied Mr. Pulice a bonus because of his behavior, and it was 

Mr. Cook who interceded at a grievance and obviously directed him to 

apologize to Mr. Dickey for cursing him. Although Mr. Cook denied that 

Mr. Dickey's complaint in this case had any direct connection with Mr. Pulice's 

resignation, and while he indicated that he tried to talk Mr. Pulice out 

of resigning, he conceded that Mr. Pulice's manner of handling his personnel 

played a role in his resignation. 

Mr. Cook conceded that he and Mr. Dickey occasionally exchanged words 

over safety matters and that whenever any safety confrontations occurred 

on Mr. Dickey's shift, Mr. Dickey was always involved in them. Mr. Cook 

also conceded that it was possible that Mr. Pulice could have contacted 

those persons responsible for the decision to discharge Mr. Dickey, but he 

found this highly unlikely. As for his own role in the discharge, aside 

573 
from stating that he had no input in that decision, he testified that he 

found out about it after Mr. Dickey had been discharged. However, Mr. Cook 

asserted that he considered Mr. Dickey to be a competent and good worker, 

that he was safety conscious and took safety matters serious, and Mr. Cook 

did not believe that Mr. Dickey's safety complaints or grievances were 

frivilous or made to "hassle management". 

Mr. Norris testified that during the interim between management's 

investigation and the 24/48 hour meeting, namely, September 19 and 21, 1981, 

he did discuss the facts or circumstances surrounding Mr. Dickey's discharge 

with Mr. Cook, but he denied that he sought Mr. Cook's advice or that 

Mr. Cook gave him any. He also denied that he and Mr. Cook discussed 

Mr. Dickey's safety activities (Tr. 642). When asked whether he had similar 

conversations with Mr. Pulice during this period of time, he denied that 

he and Mr. Pulice discussed Mr. Dickey's discharge, but admitted that he 

had conversations with Mr. Pulice "but we didn't talk about discharging 

Dickey at that point in time" (Tr. 643). 

Later in his testimony, when asked whether he had earlier testified 

that he never discussed Mr. Dickey with Mr. Pulice at any time, Mr. Norris 

responded as follows (Tr. 676): 

A. No. It was my testimony that I had been brought 

up to date on things that occurred around the mine by 

Mr. Pulice and Mr. Cook is what I testified to earlier; 

and its entirely possible that he had discussed Dickey. 

Q. Do you recall what Sam Pulice may have told you 

about Jim Dickey? 

A. I don't recall any particular incident except the 

case that I actually sat it on, step three. 

Q. Did he have nice things to say about Dickey or 

not so nice things to say about Dickey? 

A. I don't know. 

Q. Well, did he tell you about having to apologize to 

Dickey and how he felt about that? 

A. I think I said once before that I didn't know about 

that, whether he did or didn't. 

Q. So your recollection is that you vaguely may have 

remembered conversations about Dickey with Sam Pulice, 

but you don't remember what they consisted of? 

A. That's right. 

Q. What about with Wally Cook? 
A. With Wally Cook, again, as I said earlier, it was 

our routine to discuss different situations and what 

not that we were handling; and that was going on about 

the mine. 

Mr. Norris' testimony is in direct conflict with Mr. Cook's assertion 

that it was "highly unlikely" that Mr. Pulice contacted anyone involved 

in the decision to discharge Mr. Dickey prior to the making of that decision. 

As for Mr. Cook's assertion that he had no "input" into the decision to 

discharge Mr. Dickey, the fact is that Mr. Norris confirmed that he did 

in fact discuss the facts and circumstances surrounding the discharge with 

Mr. Cook. In response to a question as to whether he told Mr. Pulice 

that management was in the process of discharging Mr. Dickey at the time 

of their conversation, Mr. Norris responded as follows (Tr. 643): 

A. There is common knowledge on the management side, 

as well as the union side; and I am pretty sure that he 

had been aware that Mr. Dickey was being discharged. 

Hr. Norris' testimony that he was sure that Mr. Pulice was aware of 

the fact that management was disposed to discharge Mr. Dickey gives rise 

to a strong inference that Mr. Cook was also aware of that fact at the 

time of his discussions with Mr. Norris, and contradicts Mr. Cook's assertion 

that he found out about it after the fact. 

Mr. Norris confirmed that the decision to "upgrade" Mr. Dickey's 

suspension to a discharge was made after management's investigation was 

completed, and after the conclusion of the 24/48 hour grievance hearing 

held on Monday, September 21, 1981. Mr. Norris confirmed that Mr. Dickey 

was represented by a UMWA representative at that hearing, and he confirmed 

that at the conclusion of that hearing, the management group who made 

the decision to discharge Mr. Dickey "caucused" to review the information 

received at that hearing, that a "recommendation" was made to convert 

the suspension to a discharge, and that the "local staff" at the mine 

concurred in this "recommendation". The group then went back into the 

meeting and "indicated that we would not bring back Mr. Dickey and that 

the intent to discharge stood" (Tr. 642). Mr. Norris identified the 

person who made the "recommendation" to the group that Mr. Dickey be 

discharged as Mr. Helms, and Mr. Norris stated that Mr. Helms advised 

the group "that based on the evidence and what we had learned in the 24/48, 

that we should let the suspension convert to a discharge" (Tr. 667). 

Later, in response to bench questions, Mr. Norris explained the 

decisional process to discharge Mr. Dickey as follows (Tr. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Who made the 

decision to discharge and at what stage; the three 

of you? 

THE WITNESS: Yes. There was, well, four, I guess. 

It's a joint decision, you know. It's like checks 

and balances. 

575 
ADMINISTRATIVE LAW JUDGE KOUTRAS: I got the 

impression that three people, like three men on an 

ad hoc committee looked at all the reports, had all 

the information that the union put on the table at 

the 24/48 hour meeting, and three of you decide to make 

a recommendation as to discharge and Mr. Helms is the 

guy who said, fine, I concur. Is that the way it 

happened? 

THE WITNESS: He concurred, yes. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Mr. Helms, he got 

the file placed on the desk after three people made 

the reconnnendation? 

THE WITNESS: After the fact. We went over the facts 

of the case over the phone at that point in time. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: With Mr. Hemls? 

THE WITNESS: Yes. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: He is down in Pittsburgh? 

THE WITNESS: Yes. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Mr. Helms probably 

said, what, something to the effect that it soulds like 

you got a good case; go ahead and can the guy? 

THE WITNESS: I believe that he said to discharge. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Did Mr. Helms have 

the prior privilege of looking at any of the papers, any 

statements? 

THE WITNESS: I really don't know, sir. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Is this kind of a 

rush, rush; you go to the 24/48 hour; you come up with a 

position and you jockey back and forth and management 

people are talking and union people are talking; you say 

we got to do something; you run out and call down to 

corporate headquarters, Pittsburgh, give them the facts 

over the phone. He says sounds good to me, go for 

discharge. Is that essentially how it happened? 

THE WITNESS: That's part of it, yes. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: So Mr. Helms has more 

or less bought the recommendation of the three people 

that were right immersed in this whole controversy? 

THE WITNESS: Right. 

576 
ADMINISTRATIVE LAW JUDGE KOUTRAS: You and Mr. Hoover 

conducted the investigation; you and Mr. Hoover and 

Mr. Boyle had an input into the recommendation; and 

Mr. Helms simply said, sounds good to me. Is that 

essentially what happened? 

THE WITNESS: Right; but again, he could not override; 

but at least put that decision on hold and involve 

somebody from Pittsburgh operations as well. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Why would he want 

to do that? Is there a delegation here, wouldn't 

you think? What is Mr. Helm's position now; does he 

have authority over the mines or he will pretty much 

take whatever punishment comes to him from managers, 

wouldn't he? 

THE WITNESS: I would assume he is a check and balance 

man. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: What reason would he have 

to say listen, I think you three fellows, I don't think 

your recommendation holds water and I caution you not to do it. 

THE WITNESS: He could think the case was unprepared or that 

the evidence that you have was not substantial enough. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: But he obviously didn't 

think that in this case? 

THE WITNESS: That's correct. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Why didn't he; that is what 

I am driving at. You must have made a pretty good presentation to him over the telephone. 

THE WITNESS: No. I think we had good evidence and it was a 

serious offense. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: You convinced him of that, 

is that correct? 

THE WITNESS: I don't know that I convinced him; I informed 

him that was my position. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: So in effect, what you are 

telling me then, the decision to discharge Mr. Dickey ultimately 

was not the decision of one man; it was a group decision 

between you, Mr. Hoover, Mr. Boyle, and Mr. Helms collectively? 

THE WITNESS: I would say that's correct. 

577 
ADMINISTRATIVE LAW JUDGE KOUTRAS: Who would you say 

of all these people had a greater impact and input on 

the decision of the four of you? 

THE WITNESS: I don't know. I believe it's a check 

and balance. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Is it a closed 

ballot? You do not vote on it by ballot? 

THE WITNESS: No. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: Was anybody for suspension 

of Mr. Dickey rather than discharge? 

THE WITNESS: No; not that I recall. I don't remember, but 

I don't think so. 

The thrust of Mr. Dickey's case is the assertion that the management 

decision to discharge him was made not because of his encounter with Ms. Yoder, 

but was made because he had become -;-rrsafety thorn" in management's side 

because of his complaints and grievances. In this regard, while I have 

concluded that Mr. Pulice was hostile to Mr. Dickey because of his safety 

grievances and complaints, I cannot conclude that Mr. Dickey has established 

any open hostility because of his safety activities on the part of those 

management individuals who actually made the decision that he should be 

discharged. Of the four individuals who made that decision, Mr. Norris 

was the only one called as a witness in this case. Since Mr. Boyle, 

Mr. Hoover, and Mr. Helms did not testify, I have no way of assessing 

their demeanor or credibility. Mr. Pulice did not testify, and he is 

no longer employed by the respondent, having resigned for "personal reasons". 

Mr. Norris left his employment with the respondent in February 1982, 

and is currently employed with another company in Illinois, and he was 

not an employee of the respondent when he testified in this case. Apart 

from Mr. Dickey's grievance concerning section foreman Kenny Foreman, 

Mr. Norris' testified that he had no personal knowledge of the extent 

of Mr. Dickey's underground mine safety activities prior to his transfer 

to the surface preparation plant. Mr. Norris conceded that he did make 

an inquiry about Mr. Dickey after he bid on the surface job, and that 

Mr. Cook characterized Mr. Dickey was a "rowdy" or "radical", and that 

he could be a "general pain in the back problem" (Tr. 676). Mr. Norris 

explained that he made the inquiry simply to learn the type of person 

who would be coming to work for him, and that he had no choice but to 

accept Mr. Dickey because of his union bid for the job. However, Mr. Norris 

also indicated that Mr. Cook also told him that Mr. Dickey was safety 

conscious and ,a "good man", and there is no evidence that during his 

employment tenure under Mr. Norris' jurisdiction Mr. Dickey filed safety 

complaints or grievances or otherwise caused Mr. Norris any problems. 

578 
Mr. Norris testified that at the time Mr. Dickey was first assigned 

to him on June 21, 1981, he had no initial conversations with him .(Tr. 597). 

He confirmed that Mr. Dickey's immediate supervisor, plant engineer 

Rudy Dulik, reported that Mr. Dickey was doing a good job as a dust sampler, 

and he confirmed that in a subsequent conversation with Mr. Dickey he (Norris) 

told him that he was doing a good job (Tr. 599). However, on cross-examination, 

Mr. Norris admitted that he was aware of Mr. Dickey's "multiple run-ins" 

with Mr. Pulice, but was not clear as to what may have caused them. He 

also admitted it was "conunon mine knowledge" that Mr. Dickey was a "a hard 

nose on safety" and had "filed a number of grievances relative to safety", 

and that he was aware of these facts (Tr. 648-649). In response to a 

question from me, Mr. Norris stated that he "didn't know all the background" 

of Mr. Dickey's grievances until the hearing in this case (Tr. 703). 

Although I find Mr. Norris' testimony concerning his knowledge of 

Mr. Dickey's prior safety grievances at the time he contributed to the 

decision to discharge him to be somewhat contradictory, I cannot discount 

all of his testimony in this case. After viewing him on the stand during 

his testimony, while some of his testimony was inconsisten4 I cannot 

conclude that he was hostile to Mr. Dickey because of his prior safety 

activities, nor can I conclude that during the period June 21 to the date 

of his discharge, Mr. Norris did anything to discourage Mr. Dickey's 

involvement in safety matters, or otherwise harassed or intimidated him. 

The record in this case establishes that a number of miners who 

filed safety complaints and grievances similar to Mr. Dickey are still 

employed by the respondent. Danny Litton was part of the grievance filed 

over the miner cable (exhibit C-6), and he is still employed at the mine. 

Jane Christopher filed grievances against a foreman for alleged acts of 

harassment and cursing, and while no action was apparently taken against 

the foreman, Ms. Christopher was taken off his crew (Tr. 320), and 

is still employed at the mine. Bruce Diges testified that Mr. Pulice 

threatened to fire him if he didn't "sever his relationship" with Mr. Dickey. 

Mr. Diges confirmed that he had received several "absentee notices" 

from management, but he is still employed at the mine. Mr. Dugan, who 

worked under Mr. Norris' jurisdiction, filed a grievance against Mr. Pulice 

because he cursed him, and Mr. Dugan is apparently still employed at 

the mine. Given these circumstances, I reject Mr. Dickey's assertion 

that his discharge has had a "chilling effect" on the work force and 

that miners are afraid to exercise their rights. The record in this case 

simply does not support that conclusion, and based on the testimony of 

record in this case, I cannot conclude that the miners who are employed 

at the Cumberland Mine are passive and inactive when it comes to the 

exercise of their rights to file grievances and complaints. 

It seems clear to me under Fasula and its progeny, once a showing 

has been made that a mine operator's disciplinary decision was tainted 

or motivated "at least in part" by a miner's protected activity, the burden 

then shifts to the miner operator to show that while this may be true, 

mine management was also motivated by the miner's unprotected activity, 

579 
and that management would have taken the adverse action against the miner 

in any event for the unprotected activity alone. The Commission, in 

Chacon, supra, held that a mine operator has carried its burden in 

establishing its motive for an adverse action if it can establish that 

such action was "not plainly incredible or implausible". 

Mr. Dickey has established by a preponderance of all of the credible 

testimony and evidence in this case that he did in fact file a number 

of safety complaints and grievances against mine management personnel 

during his underground employment at the mine. He has also established 

that these complaints and grievances resulted in hostility and animosity 

against him by mine foreman Sam Pulice, and that Mr. Pulice's conduct 

towards Mr. Dickey was a direct result of Mr. Dickey's safety complaints 

and grievances. Although Mr. Pulice had no authority to carry out his 

threats to fire Mr. Dickey, I believe it is reasonable to infer from 

the record in this case that Mr. Cook was not completely oblivious 

to the fact that Mr. Dickey was a source of irritation to Mr. Pulice 

because of his safety activities. It is also reasonable to infer that, 

notwithstanding Mr. Cook's assertions that Mr. Dickey was a good worker 

and safety conscious, Mr. Cook did not totally erase Mr. Dickey's safety 

activities from his mind during the investigation conducted by management 

immediately prior to his discharge. 

While I find Mr. Cook and Mr. Norris to be generally credible witnesses, 

their contradictory and somewhat equivocal testimony concerning certain 

conversations and contacts between them, as well as Mr. Pulice, during 

the interim between the incident of September 18, 1981 and the 24/48 meeting 

held on September 21, 1981, give rise to a strong inference that Mr. Cook 

and Mr. Pulice made known to Mr. Norris all of Mr. Dickey's prior safety 

activities and grievances, and that Mr. Norris, as one of the group who 

decided to discharge Mr. Dickey, was not totally divorced from these past 

events at the critical time that decision was being considered. Further, 

while Mr. Boyle, Mr. Helms, and Mr. Hoover did not testify in this proceeding, 

I believe the testimony by those who did establishes that these individuals 

were also aware of Mr. Dickey's past safety grievance and complaint history 

at the time of management's discharge deliberations. 

Given the foregoing findings and conclusions, although the timing 

of his discharge did not come directly after or fairly close to his last 

safety complaint, and even though I have found a lack of disparate treatment 

on management's part in discharging him, the record in this case, taken 

as a whole, does establish a strong inference that the management decision 

to discharge Mr. Dickey was motivated in part by his past safety grievances 

and complaints. However, the critical question here is whether the 

respondent has nonetheless established a credible justification for the 

discharge, and if so, whether its decision to discharge Mr. Dickey would 

have been made in any event regardless of his protected activity. 

With regard to Mr. Dickey's arguments and inferences that management's 

failure to look at his personnel file before making the decision to fire 

him supports a conclusion that management was predisposed to fire him, 

580 
respondent's responsive and persuasive argument that management 

believed it had sufficient reasons and cause to support the discharge 

is just as believeable and not patently implausible. As a matter of 

fact, Mr. Dickey's counsel conceded as much during the following bench 

colloquy during the hearing at Tr. 631-634: 

ADMINISTRATIVE LAW JUDGE KOUTRAS: That is a little 

bit along what I conunented on earlier, Mr. Yablonski. 

It seems to me that your theory is, if your theory 

prevails, I mean, if United States really wanted to 

get rid of a trouble maker like you say they believed 

Mr. Dickey was, it seems to me they'd have a locked 

case. They wouldn't do such a slipshod job, quite 

frankly, on the letter of charging him, and they 

would have been specific in there; assaulted a 

supervisor, insubordination in that he refused to 

leave the premises, you were forced to call a guard, 

and they would have this down here, A through Z, and 

by God, they'd have a locked case against Mr. Dickey, 

but in no way in the world do we have that, but here 

we have got quite frankly a letter, a statement of 

charges that leaves very much to the imagination; 

and that is it. 

One of the critical questions in this case is whether 

I am bound by that, or whether I am going to let her 

come on after the fact and try to show how the real 

reason for discharge was insubordination, throwing 

the hat at Mr. Held, physically putting his hands on 

him and all that business. That is all hindsight as 

far as I am concerned. It cuts both ways here. 

MR. YABLONSKI: I understand it cuts both ways, Judge, 

but I suspect and I have seen enough of these arbitrations 

to know, that they took what they thought was their best 

to get this guy. They didn't think they needed anymore 

than that and they went with what they had. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: You mean in 

arbitration? 

MR. YABLONSKI: That's right; in their initial charge 

against him. 

ADMINISTRATIVE LAW JUDGE KOUTRAS: What that is, I am 

saying, so that if that is what happened, how can you 

now argue that they had some devious motive as a safety 

activist? 

MR. YABLONSKI: I think this was the basic motivation, 

everything they did. Sure, they were waiting for this 

guy to do this and then they grabbed him. They went 

with whatever they felt they needed and that is what they 

chose. 

58J. 
ADMINISTRATIVE LAW JUDGE KOUTRAS: That is an unusual 

argument, Mr. Yablonski. The problem is, all these 

arguments are made well after the fact. 

MR. YABLONSKI: But the fact of the matter is, Judge, 

they'd have a serious problem even proving what they 

charged. We haven't seen an eye witness yet as to this 

thing. Donna Yoder has never been here to testify as to 

what heppened. 

ADMINISTRATIVE LAW KOUTRAS: Where is she? Can't you 

subpoena her? You have got the burden here; the initial 

burden. 

MR. YABLONSKI: Let me proceed with my cross-examination 

on this, and then we will see if we need Donna Yoder. 

After careful and considered scrutiny of the entire record in this 

case, I conclude.and find that the respondent's decision to discharge 

Mr. Dickey, as made by the management personnel designated and charged 

with making that decision, was made because of his altercation with Ms. Yoder 

on September 18, 1981, and were it not for that incident, Mr. Dickey 

would not have been discharged and would still be in the respondent's employ. 

I reject Mr. Dickey's argument that because of his asserted Common Law 

relationship with Ms. Yoder at the time the incident took place on mine 

property, management should have treated the incident as something different 

from the usual confrontation between two employees. The fact is that 

at the time of the altercation, Mr. Dickey and Ms. Yoder were mine employees, 

and the fact .that mine management treated them as such and disregarded 

or refused to consider their relationship for purposes of making an adverse 

disciplinary decision under the applicable mine shop rules does not 

establish that management acted arbitrarily or exceeded its legitimate 

interests in disciplining its own work force. 

As indicated earlier in my findings and conclusions concerning the 

altercation of September 18, 1981, the information available to the mine 

management decision makers at the time of its investigation, including 

the information developed during the 24/48 meeting at which Mr. Dickey was 

represented, supports the charges lodged against him. In addition, 

Mr. Norris' testimony that management considered the incident to be a 

most serious and aggravated offense because it did in fact result, in 

injuries to Ms. Yoder at the work site and could have happened around 

moving machinery, thus exposing Mr. Yoder to the potential for more serious 

injuries, cannot be totally discounted. · I conclude and find that respondent 

had ample justification for taking the adverse personnel action that it 

did take in this case. 

I conclude and find that the respondent has established that it would 

have discharged Mr. Dickey for his unprotected activity alone, that is, his 

altercation with Ms. Yoder, and this conclusion and finding is made by me 

582 
after careful consideration and review of the record taken as a whole, 

including all of the testimony and evidence adduced by the parties at 

the hearing in this case. In short, I believe that the respondent has 

carried its burden as enunciated by the Pasula line of cases, as well as 

the more recent Commission decisions on this subject; Bradley v. Belva 

Coal Company, supra; MSHA ex rel. Johnny N. Chacon v. Phelps Dodge Corp., 

supra; Lloyd Brazell v. Island Creek Coal Company, 4 FMSHRC 1455 (1982). 

Conclusion and Order 

In view of the foregoing findings and conclusions, I conclude and 

find that the record in this proceeding does not establish by a preponderance 

of any reliable, credible, or probative evidence that the respondent 

discriminated against the complainant because of any protected safety 

activities on his part. Under the circumstances, the complaint IS DISMISSED, 

and the relief requested IS DENIED. 

Distribution: 

Louise Q. Symons, Esq., U.S. Steel Corp., 600 Grant St., Pittsburgh, PA 

15230 (Certified Mail) 

Kenneth J. Yablonski, Esq., Yablonski, King, Costello & Leckie, 505 

Washington Trust Bldg., Washington, PA 15301 (Certified Mail) 

583 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 t1AR 25 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

CIVIL PENALTY PROCEEDING 

Docket No. BARB 79-56-PM 

Petitioner A.C. No. 08-00729-05001 

v. 

Belcher Mine 

BELCHER MINE, INC., 

Appearances: 

Before: 

Respondent 

DECISION 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, .Virginia, for Petitioner; 

Warren C. Hunt, President, Belcher Mine, Inc., Aripeka, 

Florida, for Respondent. 

Judge Gary Melick 

This case is before me upon the petition for assessment of civil 

penalty filed by the Secretary of Labor pursuant to section 105(d) of 

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

~., the "Act," for alleged violations of regulatory standards. The 

general issue before me is whether Belcher Mine, Inc., has violated the 

cited regulatory standards and, if so, the amount of civil penalty to be 

assessed for the violations. A bench decision was rendered following 

hearings on these issues. That decision, which I now affirm, is set 

forth below with only nonsubstantive modifications. 

I am prepared to render a bench decision at this time. In light of 

the Secretary's request for withdrawal of Citation No. 93605 and my 

acceptance of that request to withdraw, Citation No. 93605 is of course 

vacated. In addition, for the reasons already given, and I incorporate 

those reasons into this bench decision, Citation No. 93802 is also 

vacated. !/ 

1/ The citation was vacated at hearing in the following ruling from 

the bench: 

The particular standard cited, 30 CFR § 56.12-32, provides 

as follows: "Inspection and cover plates on electrical equipment and junction boxes shall be kept in place at all times except 

during testing and repairs." The thrust of the standard is to 

584 
2 

That leaves us with six citations to consider. Four of those citations are not disputed in the sense that the operator concedes that 

there was a violation. In those cases, he contests only the amount of 

penalty proposed. The remaining citations are contested both as to the 

fact of the violation and the amount of penalty. 

Under section llO(i) of the Federal Mine Safety and Health Act of 

1977, certain criteria are to be considered by me in determining the 

amount of any penalty assessed. Those criteria are as follows: the 

operator's history of previous violations. In this case, I note that 

there is no prior history of violations. The appropriateness of the 

penalty to the size of the business of the operator charged. I note in 

this case that the operator had 20 employees at the relevant time and 

therefore was a small business. The third criteria is whether the 

operator was negligent. I will consider that element separately with 

respect to each of the citations in this case. The fourth is the effect 

of the proposed penalty on the operator's ability to continue in business. There has been no allegation in this case that any penalty that I 

might impose would adversely affect the operator's ability to continue· 

in business. Fifth, the gravity of the violation~ I will also consider 

this element separately with respect to each of the citations. Finally, 

the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

I am also considering in assessing penalties in this case, the fact 

that the Mine Safety and Health Administration has since the date of 

these violations modified its policy for initial inspections to what it 

calls "C A V" visits. The policy, which according to the evidence hers 

been in effect for about a year and a half, allows the operator to have 

one advisory inspection wherein no penalties will be assessed., In this 

case, the inspection on March 16, 1978, leading to the citations herein, 

was the first inspection following the enactment of the 1977 Act. 

Fn. 1 cont'd. 

the requirement that when you have a junction box, you will keep 

its inspection and cover plates in place at all times. The 

standard cannot, in my opinion, be construed, as the solicitor 

suggests, to require the existence of junction boxes themselves. 

No such inference can be drawn from the plain meaning of the 

standard. If MSHA wants to require junction boxes and deems 

the existence of junction boxes to be that important, then a 

standard should be precisely drawn to cover that particular 

problem. This does not mean to say that a violation might not 

have existed under a different standard, but the standard cited, 

in my opinion, is inapplicable. Citation No. 93802 is accordingly vacated. 

585 
3 

Let me now proceed then to the specific citations. With respect to 

Citation No. 93601, the alleged violation was that a supervisory employee on the second shift was not trained in first aid. The standard 

cited, 30 CFR § 56.18-10, requires as follows: 

Selected supervisors shall be trained in first aid. First 

aid training shall be made available to all ~nterested 

employees. 

I do not find that the standard cited was violated in this case. 

The standard only requires that selected supervisors be trained in first 

aid. The evidence as presented by the government does not support a 

finding that selected supervisors had not been trained in first aid. 

The only violation cited was that a supervisory employee on the second 

shift was not trained in first aid. No such requirement is found in the 

standard and therefore I find no violation. Citation No. 93601 is 

accordingly vacated. It is in fact to the credit of the mine operator, 

however, that he did have someone trained in first aid on the second 

shift, and apparently many times only that one person was working on 

that second shift. 

The violation alleged in Citation No. 93602 is that the drive belt 

on the feeder motor on the portable crusher was not guarded. The standard cited is 30 CFR § 56.14-1. This was one of the citations that the 

operator argued did not charge a violation. The standard reads as 

follows: 

Gears, sprockets, chains, drive heads, tail, and take-up 

pulleys, couplings, flywheels, shafts, saw blades, fan inlets, 

and similar exposed moving machine parts which may be contacted 

by persons and which may cause injuries to persons shall be 

guarded. 

The credible and substantially undisputed testimony of MSHA Inspector Russell Morris was that indeed the drive belts on the portable 

crusher (as depicted in Exhibit R-1 and Court Exhibit No. 1) did create 

two pinch points that were within reach of an individual who would be 

walking or working about on the walkway of the crusher. The undisputed 

testimony of Inspector Morris was that an individual who might have been 

passing those exposed drive pulleys and belts (for example, to inspect a 

hot bearing or to check on vibration in the equipment) beyond the .location of the drive pulleys could expose his hand, thereby creati~g a 

further possibility of broken bones or loss of fingers or a hand. The 

inspector testified that the pulleys were located some three to four 

feet from the walkway at a height which would make the exposure not 

unlikely. 

586 .. 
4 

The seriousness of the violation is attenuated somewhat, however, 

in that the inspector thought that it was improbable and only a "slight 

chance" that a man could get his hand caught in the pulley pinch points. 

He observed, however, that such injuries have in fact occurred in similar circumstances. I accept Inspector Morris' assessment of negligence. 

The condition.was one, in my opinion, that should have been known because of the reasonably close proximity of the exposed pulley to the 

walkway. I note that abatement was completed within the time specified 

in the citation. Under all the circumstances, I assess a penalty of $25 

for that violation. 

The next citation under consideration is Citation No. 93603. It 

also charges a violation of the standard at 30 CFR § 56.14-1. Drive 

pulleys were also exposed on the other side of the crusher and two pinch 

points were located within three to four feet of the walkway. An employee could pass within two feet of those pinch points, exposing hands 

or fingers and causing broken bones or the loss of the hand or fingers. 

The inspector opined that the hazard here was also "improbable" 

since it was unlikely that employees would be in the vicinity of these 

pinch points. I accept the inspector's opinion that the operator should 

have known of these violations since they were in plain view. I therefore find the operator negligent. The same penalty of $25 should be 

imposed here. Obviously, I am also finding that there were violations 

with respect to these' two citations because of the danger of exposure to 

moving machine parts, namely, a drive pulley. 

Citation No. 93604 charges a violation of the reg~lation ~t 30 CFR 

§ 56.11-2. That standard requires that crossovers, elevated walkways, 

and elevated ramps and stairways be of substantial construction, provided with handrails, and maintained in good condition. In this case, 

it was charged that a handrail on the outer-side of the walkway of the 

crusher was broken in two places. The uncontradicted testimony of the 

inspector is that the upper handrail located about belt height would 

give way approximately six inches. I note, however, that there was also 

a midrail located about two feet above the walkway that was in sound 

condition. I also note the testimony of the inspector that, in his 

opinion, injuries were improbable because the rail would expand only 

about six inches, that a person would not likely fall through the rail, 

and that it was therefore unlikely to cause injury. I also accept the 

testimony of the inspector that the negligence of the operator was very 

low, since this condition was not very obvious. Under the circumstances, I would assess a penalty fo $10 for that violation. 

Citation No. 93606 charges a violation of the regulation at 30 CFR 

§ 56.9-87. That standard requires that heavy duty mobile equipment be 

provided with certain audible warning devices. When the operator of 

such equipment has an obstructed view to the rear, the standard requires 

58'1 
5 

that the equipment must have an automatic reverse signal alarm which is 

audible above the surrounding noise level or an observer must be present 

to signal when it is safe to back up. 

The undisputed testimony in this case is that the 966 C Caterpillar 

front end loader, No. 339, had a defective automatic reverse signal 

alarm when cited on the 16th day of March 1978. It is undisputed that 

it was customary for truck drivers to be walking in the vicinity of that 

operating front end loader, thereby being exposed to the hazard of the 

equipment backing into them with possible fatal injuries. The testimony 

is somewhat attenuated, however, by the fact that the inspector did not 

precisely recall where the front end loader was working and could not 

testify as to seeing any people actually walking in the vicinity of that 

loader. His testimony was based strictly upon experience and opinion 

that truck drivers have a tendency to walk around where their trucks are 

being· loaded. 

I accept the inspector's testimony concerning negligence and I 

believe that the operator should have known of the faulty condition. 

Equipment operators are indeed required by regulation to check equipment 

before operation, and since the machine operator could have heard the 

a!arm working or, conversely, could have been aware that the signal 

alarm was not working and had a duty to report tqat to his supervisory 

personnel I believe that there was some negligence involved in this 

particular violation. I note, however, again, that abatement was made 

within the time specified. Under the circumstances, I feel that a 

penalty of $10 is appropriate. 

The last citation at issue is Citation No. 93801. - That charges a 

violation of the standard at 30 CFR § 56.12-30. That standard states as 

follows: 

When a potentially dangerous condi~ion is found, it 

shall be corrected before equipment or wiring is energized. 

The undisputed testimony is that the stationary half of the plug on 

what is known as the "S-0 cord" extending to the product conveyor motor 

located on the B Mine portable crusher control box was broken off, and 

indeed that is the condition that is cited. There is accordingl¥ no 

dispute that the violation did occur. In determining the appropriate 

penalty, I also consider that the inspector admitted that it would be 

unlikely that an employee or individuai would be exposed to the hazard. 

However, should an individual be exposed to that hazard, the extent of 

th~ hazard was quite. serious and indeed the individual could be subjected to shock or ~lectrocution by exposure to up to 277 volts. 

The testimony of the inspector concerning negligence was somewhat 

ambivalent. On one hand, he testified that the condition was readily 

observable, but on the other hand he testified that it would be readily 

588 
6 

observable to someone performing a very close inspection of the area 

cited. Since the operator has an obligation to make a thorough inspection of the equipment before operating it, I conclude that some degree 

of negligence existed. The violation should be assessed at $25. 

Order 

Citations No. 93601, 93605, and 93802 are vacated. The following 

penalties are to be paid by Belcher Mine, Inc., within 30 days of the 

date of this decision: 

Citation No. 93602 - $25, Citation No. 

Citation No. 93604 - $10, Citation No. 9360 

tion No. 93801 - $25. 

Law Judge 

Distribution: By certified mail. 

Mr. Warren C. Hunt, President, Belche ,1ne, Inc., •• Box 86, Aripeka, 

FL 33502 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

589 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HAR 2 5 1983 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTcH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

FREEMAN UNITED COAL MINING 

COMPANY, 

Respondent 

Docket No. LAKE H2-3 

A.C. No. 11-02236-03081 

Crown No. 2 Mine 

DECISION 

Appearances: Rafael Alvarez, Esq., and Richard J. Fiore, Esq., 

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

Chicago, Illinois, for Petitioner; 

Before: 

Harry M. Coven, Esq., Gould & Ratner, Chicago, 

Illinois, for Respondent. 

Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

In this proceeding, the Secretary seeks civil penalties for two 

alleged violations of mandatory safety-standards for which citations 

were issued during an inspection on J~ly 29, 1981. Each citation 

contained a finding that the violation was significant and substantial. Respondent challenges with respect to each citation the fact 

of violation and the significant and substantial finding. The 

latter finding is not necessarily at issue in a civil penalty proceeding, but both parties have introduced evidence and advanced argument concerning the issue, and, following the precedent of Secretary 

v. Cement Division, National Gypsum Co., 3 FMSHRC 822 Cl981) (also a 

penalty proceeding), I will decide the issue. 

Pursuant to notice, the case was heard on the merits in 

St. Louis, Missouri on October 26, 1982. John D. Stritzel, a 

federal coal mine inspector, and Rick Reed testified for the Petitioner. David Lee Webb and Paul Budzak testified for Respondent. 

Both parties have filed posthearing briefs. 

Based on the entire record and considering the contentions of 

the parties, I make the following decision. 

590 
FINDINGS OF FACT APPLICABLE TO BOTH CITATIONS 

1. At all times pertinent to this proceeding, Respondent was 

the owner and operator of an underground coal mine 'located in 

Macoupin County, Illinois, known as the Crown No. 2 Mine. 

2. The operation of the subject mine affects interstate 

commerce. 

3. The subject m~ne produces approximately 6,000 tons of coal 

daily. It employs approximately 90 miners on the surface and 

465 miners underground on three shifts. I find that Respondent is a 

large operator. 

4. During the period from January 1, 1980 to July 28, 1981, 

the operator had a history of approximately 243 paid violations, 

approximately 25 of which were ventilation violations. Government's 

Exhibit No. 6 covers the period from January 1, 1980 to August 25, 

1982, the latter date being more than 1 year after the citations in 

question were issued. For that reason, it is of limited relevance. 

I find that Respondent's history of prior violations was moderate. 

5. There is no evidence that penalties assessed for the 

alleged violations will affect Respondent's ability to continue in 

business. Therefore, I find that they will not. 

FINDINGS OF FACT APPLICABLE TO CITATION NO. 1114857 

6. On July 29, 1981, Federal Coal Mine Inspector John D. 

Stritzel conducted a regular inspection of the subject mine. He was 

accompanied by David L. Webb, assistant to the mine superintendent, 

and Rick Reed, a miner and union walkaround representative. They 

proceeded to the face of the 4th southwest section which was at 

Room 24. The rooms were approximately 20 feet wide, and 6 to 8 feet 

high. 

7. Inspector Stritzel issued Citation No. 1114857 at about 

9:30 a.m., on July 29, 1981, charging a violation of 30 C.F.R. 

§ 75.316 because there was no ventilation to the working face in the 

section in question. 

8. The MSHA-approved ventilation plan in effect at the subject 

mine on the date of the above inspection provided (Exhibit No. M-3, 

page III, para. E, subpara. (a)): "Exhaust fan tubing or exhaust 

line curtain '*Used only in case of auxiliary fan failure.' (inby 

end maintained within 10' of face). Both must have minimum mean 

entry velocity of 60 FPM." 

9. At the time of the inspection referred to above, the continuous miner was cutting coal from Room 24 and it was being removed by 

591 
shuttle car. The miner was taking a right-sided cut and had penetrated 8 to 10 feet into the face. 

10. At the time of the inspection, the fan was being moved 

from the No. 4 entry between Room 21 and 22 and the tubing had been 

removed from the face area of Room 24. 

11. At the time of the inspection, there was little or no air 

going to the working face. The miner operator was sitting about 

5 feet outby the inby rib and was in fresh air. The air movement at 

the face was substantially less than 60 feet per minute. The continuous miner and the shuttle car did not act as a line curtain in 

ventilating the face area. I find that the miner was positioned at 

approximately a 90 degree angle to the face cutting coal straight on. 

On this issue I am accepting the testimony of Inspector Stritzel, 

which is supported by the testimony of Mr. Reed, as against the contradictory testimony of Mr. Webb. 

12. At the time of the inspection the atmosphere in the face 

area where the continuous miner was operating was dusty and there 

was little or no air movement. The room was well rockdusted. 

13. The methane monitor on the continuous miner was operating 

properly at the time of the inspection. There were no permissibility violations on the continuous miner. 

14. The subject mine was classified as a gassy mine because it 

had been tound to liberate excessive quantitie$ of methane and was 

on a 10-day spot inspection program under section 103Ci) of the Mine 

Safety Act. 

15. Checks for methane on July 29, 1981, did not reveal any 

methane accumulations in the face area of the fourth southwest section of the subject mine. 

16. The alleged violation was abated and the citation terminated by the repositioning of the fan in the last open crosscut 

between Room 23 and 24, with three or four sections of tubing on the 

fan extending to within 10 feet of the face. Thereafter, an air 

reading was taken which showed the air velocity was 64 feet per 

minute. 

FINDINGS OF FACT APPLICABLE TO CITATION NO. 1114859 

17. After the abatement described in finding 16, the inspector, Mr. Webb and Mr. Reed proceeded to the last open crosscut 

between Rooms 21 and 22. The inspector attempted to take an air 

reading with his anomometer but was unable to do so. He then took 

an air reading by using a chemical smoke cloud test which showed a 

volume of 7,654.5 cubic feet of air per minute. 

592 .. 
18. Inspector Stritzel issued a citation for a violation of 

30 C.F.R. § 75.301 because the minimum quantity of air reaching the 

last open crosscut was less than 9,000 cubic feet per minute. 

19. I find that the air reaching the last open crosscut 

between Rooms 21 and 22 in the 4th southwest section of the subject 

mine was approximately 7,654.5 cubic feet per minute when the inspector performed the test described in finding 17. I reject the testimony which attempted to challenge the accuracy of the test. 

20. At the time the citation w~s issued the continuous miner 

was not operating. There were seven miners working on the section. 

21. The alleged violation was abated and the citation terminated by reerecting a curtain which had been partially knocked down 

and tightening other curtains separating the intake from the return 

air. Following this, an air reading was taken which showed 10,800 

cubic feet of air per minute reaching the last open crosscut. 

REGULATIONS 

30 C.F.R. § 75.316 provides: 

§ 75.316 Ventilation system and methane and dust 

control plan. 

[STATUTORY PROVISIONS] 

A ventilation system and methane and dust control plan and revisions thereof suitable to the conditions and the mining system of the coal mine and 

approved by the Secretary shall be adopted by the 

operator and set out in printed form on or before 

June 28, 1970. The plan shall show the type and location of mechanical ventilation equipment installed 

and operated in the minef such additional or improved 

equipment as the Secretary may require, the quantity 

and velocity of air reaching each working face, and 

such other information as the Secretary may require. 

Such plan shall be reviewed by the operator and the 

Secretary at least every 6 months. 

30 C.F.R. § 75.301 provides: 

j 75.301 Air quality, quantity, and velocity. 

[STATUTORY PROVISIONS] 

All active workings shall be ventilated by a 

current of air containing not less than 19.5 volume 

per centum of oxygen, not more than 0.5 volume per 

centum of carbon dioxide, and no harmful quantities 

593 
of other noxious or poisonous gases; and the volume 

and velocity of the current of air shall be sufficient to dilute, render harmless, and to carry away, 

flammable, explosive, noxious, and harmful gases, and 

dust, and smoke and explosive fumes. The minimum 

quantity of air reaching the last open crosscut in 

any pair or set of developing entries and the last 

open crosscut in any pair or set of rooms shall be 

9,000 cubic feet a minute, and the minimum quantity 

of air reaching the intake end of a pillar line shall 

be 9,000 cubic fe~t a minute. The minimum quantity 

of air in any coal mine reaching each working face 

shall be 3,000 cubic feet a minute. The authorized 

representative of the Secretary may require in any 

coal mine a greater quantity and velocity of air when 

he finds it necessary to protect the health or safety 

of miners. In robbing areas of anthracite mines, 

where the air currents cannot be controlled and measurements of the air cannot be obtained, the air 

shall have perceptible movement. · 

CONCLUSIONS OF LAW 

1. Freeman United Coal Mining Company was subject to the provisions of the Federal Mine Safety and Health Act in the operation of 

the Crown No. 2 Mine at all times pertinent hereto, and the undersigned Administrative Law Judge has jurisdiction over the parties 

and subject matter of this proceeding. 

2. On July 29, 1981, Respondent violated the mandatory standard in 30 C.F.R. § 75.316 because it had little or no ventilation 

in the working face at Room 24, 4th southwest section of the subject 

mine, in contravention of the approved roof control plan for the 

subject mine. 

DISCUSSION 

There can no longer be any doubt that the provisions of an 

approved ventilation plan are enforceable under the Mine Act and 

that a violation of a requirement in such a plan is a violation of 

the Act. Zeigler Coal Company v. Kleppe, 536 F.2d 398 CD.C. Cir. 

1976); Secretary v. Mid-Continent Coal and Coke Company, 3 FMSHRC 

2502 (1981). 

Respondent does not seriously dispute the allegation 1n the 

citation that exhaust fan tubing or an exhaust line curtain were not 

maintained within 10 feet of the face. It is clear that the fan and 

tubing had been removed from the face area before the room was mined 

out in order to get a jump on production in the new face area. The 

contention that the continuous miner and the shuttle car acted as 

substitute line curtain is almost frivolous and I reject it. 

594 
3. The violation described in Conclusion No. 2 was serious. 

It was of such nature as could significantly and substantially contribute to the cause and effect of a coal mine safety or health 

hazard. 

DISCUSSION 

The failure to provide air to the working face poses a two fold 

hazard: the possibility of a methane explosion and the buildup of 

coal dust. The latter can propagate an explosion and can contribute 

to lung disease in miners working in the area. Although at the time 

the citation was issued, the miner operator and helpe,r were in fresh 

air, as cutting continued they would not be. No provision was made 

to supply air to the face. Even though methane was not detected on 

the day the citation was issued, it is a constant threat in a gassy 

mine. It is of the utmost importance that air be kept on the face 

area while coal is being mined. Under the test laid down by the 

Commission in Secretary v. Cement Division, National Gypsum Company, 

supra, there is a reasonable likelihood of a methane or dust explosion if there is no face ventilation. In the event of such an explosion, serious injuries or fatalities would result. 

4. The violation described in Conclusion No. 2 was due to the 

gross negligence or deliberate flouting of the standard by the 

operator. 

DISCUSSION 

The operator moved the fan and tubing from the face area before 

the coal cutting was completed. It is obvious that the operator was 

aware of the fact that the continuous miner was still cutting coal 

in Room 24. Production was placed ahead of· safety to the miners. 

5. An appropriate penalty for the violation of 30 C.F.R. 

§ 75.316 is $500 considering the criteria in section llO(i) of the 

Act. 

6. On July 29, 1981, Respondent violated the mandqtory standard in 30 C.F.R. § 75.301 in that it failed to provide a minimum of 

9,000 cubic feet per minute of air at the last open crosscut between 

Rooms 21 and 22 in the 4th southwest section of the subject mine. 

DISC!USSION 

Respondent raised issues concerning the accuracy of the smoke 

test which the MSHA inspector conducted which resulted in his finding of 7,645.5 cubic feet of air per minute. It argues that the 

area tested was not perfectly regular, that the procedures followed 

by the inspector could have been improved upon, and that a stop 

.. 595 
watch rather than a regular watch should have been used. It is significant, however, that Respondent, which had the opportunity to do 

so, did not itself take a smoke test. The inspector's reading -

approximately 85 percent of the minimum air reading - is of course 

subject to a margin of error in either direction. I conclude that 

the test was validly taken and the results showed a violation. 

7. The violation described in Conclusion No. 6 was moderately 

serious. It was of such nature as could signf icantly and substantially contribute to the cause and effect of a coal mine safety or 

health hazard. 

DISCUSSION 

The violation found here is not as serious as that found in 

Conclusion No. 2. However, the same hazards are posed by this violation as by the prior one: the possibility of a methane or dust 

explosion and the presence of respirable dust in the atmosphere. 

The reduced air in the last open crosscut contributes significantly 

and substantially to those hazards. It results in a reasonable likelihood of serious injury. 

8. The violation described in Conclusion No. 6 was due to the 

negligence of the operator. 

DISCUSSION 

The reduction in air in the last open crosscut was due to loose 

and torn curtains. These conditions are obvious and should have 

been known to the operator. 

9. An appropriate penalty for the violation of 30 c~F.R. 

§ 75.301 is $150 considering the criteria in section llO(i) of the 

Act. 

ORDER 

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

IS ORDERED that Respondent, within 30 days of the date of this decision pay the sum of $650 for the two violations found herein to have 

occurred. 

Jtld1td6 A-13 y'l)& '// 7~::,;f James A. Broderick 

Administrative Law Judge 

596 
Distribution: By certified mail 

Rafael Alvarez, Esq., and Richard J. Fiore, Esq., Office of the 

Solicitor, U.S. Department of Labor, 230 South Dearborn Street, 8th 

Floor, Chicago, IL 60606 

Harry M. Coven, Esq., Gould & Ratner, 300 West Washington Street, 

suite 1500, Chicago, IL 60606 

59? 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 28 1983 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No: LAKE 82-90 

A/O No: 33-01068-03166 A 

BILL GARRIS, 

Appearances: 

Before: 

Sunnyhill No. 9 South 

v. 

Respondent 

DECISION 

Inga Watkins Sinclair, Esq. Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, 

Virginia, for Petitioner 

Michael 0. McKown, Esq., P.O. Box 235, St. Louis, MO 

for Respondent 

Judge Moore 

At approximately 8 a.m. on June 19, 1980, the victim, Mr. Wa~ter 

Strohl was crushed between the bed of his supply truck and a concrete 

loading dock. He died shortly thereafter. 

No one saw the accident occur and the victim did not live long 

enough to tell anyone what happened. MSHA's version of how the accident 

happened is admittedly speculation based-upon circumstantial evidence. 

When the would-be rescuers found the victim they were understandably 

more intent on saving him than on noticing the surrounding conditions. 

They did notice a three-thousand pound pallet of Mandoseal resting 

partially on the truck and partially on the loading dock. The rescuers 

moved the truck forward slightly to release the victim and then blocked 

the truck against further movement. Those witnesses who not~d the 

position of the cable on the winch said that it was wound up on the 

spool, and thus not hooked to the Mandoseal pallet. There was no evidence 

presented which would indicate that the winch had previously been hooked 

to the Mandoseal pallet and somewhow become unhooked. Therefore, Mr. 

Bill Garris' theory that the winch pulled the truck into the victim 

seems highly unlikely. 

Mr. Strohl's normal method of loading Mandoseal at the pole barn 

loading dock was to back the truck up flush with the dock, place a metal 

bar behind the Mandoseal pallet, attach cables to the aforesaid bar and 

attach the other ends of the cables to his winch cable. He would then 

598 
. operate the winch and pull the Mandoseal on to the truck bed. No one 

knows what procedure the victim followed on the day of the accident but 

the bar that he usually put behind the Mandoseal pallet was found between 

the pallet and the concrete loading dock as though he had somehow pulled 

it under the pallet and he could not have done that by hand; so there 

was speculation that he had hooked the truck directly to the Mandoseal 

pallet and pulled the Mandoseal to the edge of the loading dock. Actually, 

the Mandoseal pallet which was 4' x 4' was almost halfway off of the 

loading dock after the accident. How much of the weight was resting on 

the truckbed is unknown. When the would-be rescuers arrived at the 

accident site the truckbed was about 4" from the loading dock and the 

victim was squeezed in this 4". He was facing the loading dock. 

MSHA speculates in its accident report that the victim started the 

the loading operation in his normal manner with the truckbed flush 

against the loading dock. When the load was almost halfway on the 

truckbed, for some reason, probably because the winching gear had become 

fouled, he moved the truck away from the dock for a distance of not more 

than twentyfour inches. While it is not spelled out clearly I assume 

MSHA reached this conclusion because it thought the Mandoseal pallet 

would have toppled if the truckbed had been moved completely out from 

under it. The accident report then speculates that for some reason the 

victim went in between the truckbed and the loading dock probably to try 

and remedy the fouled gear. Then the report concludes "the accident 

· occured because the supply truck drifted backwards due to the parking 

brake being inoperative." 

The accident report was received in evidence at the trial. 1_/. The 

version of the accident contained in the accident report does not account 

for the fact that the winch was wound up or for the fact that when Mr. 

Van moved the truck so the victim could be removed, he found the parking 

brake handle in the off position. The condition of the parking brakes 

could hardly be a factor if they were not used. Under the theory, which 

was not advanced at the trial, that the victim did not use the parking 

brakes because he thought they were ineffective, one is faced with the 

proposition that if the victim wanted the truck to remain stationary, 

why did he not put it in gear since the engine was off or put chocks, 

which he had available, under the wheels? 

There is conflicting testimony as to when the truck was first moved 

to a different location and when the brakes were tested. The inspectors 

say the brakes were tested on June 20 by havi~g someone engage the 

parking brake handle and then the inspector looked at the brake housing 

and could see that it was not holding. The truck was then pulled forward 

and it rolled back. The inspectors say that the truck was not moved 

until noon of the 20th. The Respondent and Mr. Diose both testified 

that the truck was moved on June 19 to the maintenance area and that the 

parking brakes were tested by putting the truck in gear and engaging the 

1_/ The other items obtained during pretrial discovery were neither 

offered in evidence or used for impeachment purposes. 

599 
parking brakes to see if they would hold the truck while it was in gear. 

The testimony was that the parking brake would hold on a slight grade 

but would not hold against the power of the engine. Mr. Diose said that 

the brakes held enough to bog the engine. It was the contention of the 

government that if the truck was moved on the 19th it was in violation 

of a 103(k) order that had been issued right after the accident. That 

order was in my opinion of questionable validity. (See Secretary 

of Labor vs. Eastern Associated Coal Company, 2 FMSHRC 2467 (September 

2, 1980). But I can see no advantage to Mr. Garris in the fact that the 

truck was moved on the 19th instead of the 20th. There is no reason. 

that I can think of why he and Mr. Diose would make up such a story. 

Nor can I see any advantage to the inspector's side of the case in 

having the truck moved on the 20th rather than on the 19th. I think 

memories differ and that no perjury was involved. 

Mr. Diose thought the area where the accident occurred was so level 

that a truck should not roll there. He moved his car into the same 

area, put it in neutral with the brakes off to see if it would roll. It 

did not. What the inspectors should have done in my opinion was to put 

the truck in the position where they thought it was prior to the accident 

and then test to see how much force it took to get the truck rolling, 

both in its empty condition and with the Mandoseal resting on part of 

the truckbed. It would seem that if almost half the weight of the 

Mandoseai had been resting on the truck it would have made the truck 

very difficult to move. I also wish they had determined the location of 

the metal bar that the victim customarily used to operate the winch and 

I wish they had determined the position of the winch control. These 

facts would shed light on whether the victim used the winch prior to the 

accident. If he had used the winch prior to the accident it does not 

make sense that he would wind the winch all the way back up so that the 

cable hook was in front of the truckbed because he obviously would need 

it to get the rest of the Mandoseal on the truck. 

Mr. Garris testified that he was told by the victim about 30 days 

prior to the accident that the truck had been driven with the parking 

brake on. Mr. Garris said that thereafter he checked the parking brake 

every week and that Company records so indicate. On the last check he 

made, he said the parking brakes were weak but they would hold. As 

stated earlier, he and Mr. Diose both stated they had tested the brakes 

after the accident. Mr. Garris said he drove the truck and his testimony 

will be discussed later. I find that Mr. Diose tested the brakes and 

found they would hold enough to make the engine bog down but that they 

would not hold completely against the engine. Mr. Garris had ordered 

parts to repair the brakes but the wrong parts had been sent and the 

right ones had not come in at the time of the accident. But inasmuch as 

the only evidence concerning the victim's use of the parking brake was 

that on the day of the accident he did not engage it, I can not make a 

finding that the condition of the brakes had anything to do with the 

600 
fatality. ·As stated before, if the victim wanted the truck to remain 

stationary he would have used the parking brake, and probably left the 

truck in gear. There were no tests or engineering studies made to 

determine from the position of the Mandoseal what, if any, part of its 

three thousand pound weight was resting on the truckbed. The truckbed 

was one inch lower than the dock and unless the pallet was flexible 

(again no evidence) it would be possible to have almost half of the 

pallet hanging over the edge of the dock without putting any weight on 

the truckbed. In that almost balanced condition it would take a very 

small force to partially topple the Mandoseal so that some of its weight 

would be resting upon the truckbed. 

A version of the accident that was not put forth at the trial by 

the accident investigating team, but by the inspector who issued the 

citation, would account for the Mandoseal being partially on the truck 

and also account for the winch not having been used. I am adding some 

of my own speculations to this theory. Under this version the victim 

would for some reason pull the Mandoseal out towards the edge of the 

dock with the truck and miscalculate so as to pull it to where almost 

half of it was hanging over the edge of the dock. After observing how 

far he had pulled the Mandoseal and realizing that a spill was innninent 

he tried to back the truck under the Mandoseal. If the pallet is sufficiently 

rigid, it should be possible to back the truck under the pallet. If it 

happened this way, then, during the actual crushing of the victim, 

sufficient force must have been applied to the Mandoseal to topple it 

because in the various photographs of the scene, the Mandoseal does 

appear to be resting on the truckbed. This version does not account for 

why the truck moved (unless the victim got out of the truck while the 

truck was still moving toward the dock or used a prybar to move it), 

but it does account for how almost half of the Mandoseal got on to the 

truckbed without the use of the winch. Also, in attempting to free the 

towing rig the victim may have toppled the Mandoseal and it may have hit 

some portion of the truck making the truck move backwards before the 

Mandoseal came to rest on the truckbed. It is certainly easier to 

conceive of the truck rolling before the Mandoseal came to re~t on its 

bed. 

The possibility that the victim was trying to move the truck under 

the Mandoseal with a crowbar was not given consideration by any of the 

witnesses. Of course it is all speculation as to how the accident might 

have occurred. I think the latter version is more likely than MSHA's 

version or the one put forth by Mr. Garris but regardless of what actually 

happened, I can find no nexus between.the fatal accident and the condition 

of the parking brake. 

Respondent Bill Garris did not manifest an ability to make himself 

understood, at leas~ by me, during the trial. He constantly answered 

questions before they had been finished and this made it very difficult 

to know whether his answer was to the question as asked or some question 

that he thought was going to be asked. He contradicted himself constantly 

601 
either because he was unable to make himself clear or because he was 

unable to understand the questions. For example, when questioned about 

testing the brakes in front of the shop he said he tested them by putting 

them on an incline and that the brakes would hold. "But it wouldn't 

hold the brake--it would--it would drift back on the steeper incline in 

gear." (Tr. 172). When asked if the parking brake would keep the truck 

from moving he stated'lt would--it would hold it, but you had to put it 

in gear. It would move in gear--no problem. It would hold--it would 

hold the truck in neutral is what I'm saying.I/ (Tr. 173). Referring to 

the 20th of the month Mr. Garris stated that the inspectors conducted 

the test on the steep slope in front of the shop. The following appears 

at 186 of the transcript. 

Q. And what were the results when they tested it? 

A. Like I said a minute ago, it wouldn't--it would 

not hold. 

JUDGE MOORE: It was the same as when you tested it? 

WITNESS: That's right. 

JUDGE MOORE: It wouldn't hold but it wouldn't--

WITNESS: In fact, I tested it for him. I drove the 

truck. 

After testifying that he had moved the truck on June 19th and that 

he had not been present when the (k) order was issued on June 19th but 

that he had been present on June 20th when the citation alleging faulty 

brakes (it was an order but referred to in the testimony as a citation) 

was issued, he was asked if he had read the citation (Tr. 194) and the 

following ensued: 

A. "I just drove it to the shop. I was mainly interested 

in trying to get the brake fixed 

Q. After the citation was issued. 

A. After the--yeah, the order was wrote up. 

Q. The citation for bad brakes. 

A. Yeah. 

He is in effect testifying under oath that he moved the truck on 

June 19 right after he had received the order on June 20th. I can not 

decipher his testimony and I am therefore discounting most of it. 

The first government witness was Inspector Tipple. From reading 

his entire direct testimony it would appear that the accident investigation 

took place on June 20th and that the only thing that happened on June 

19th the day of the fatal accident, was the issuance of a 103(k) order 

602 
by Inspector Tackett who happened to be at the mine at the time of the 

accident. The other inspectors, Homko and Beck, say that the investigation 

started on June 19th and concluded on June 20th. For some reason that 

they tried to explain, but did not explain to my satisfaction, they 

issued no citations or orders on June 19th. They waited until the next 

day for a surface inspector Mr.Tipple to come and issue the necessary 

order even though they had full authority to do so. 

The test conducted by Mr. Tipple is not supported by sufficient 

evidence. He told someone to engage the emergency brake; then he looked 

at the braking mechanism and observed while the truck rolled backwards. 

He does not know whether the brake was in fact engaged or whether the 

one in the truck understood the instruction to engage the brake. For 

that test to be sufficient someone would have to testify that he either 

engaged the parking brake or saw someone else engage the parking brake. 

As it stands it proves little. Mr. Diose on the other hand tested the 

brakes on level ground by pulling through them with the engine. He 

stated that there was enough brake left to bog the engine. There was 

not enough to prevent the truck from moving with the engine, however. 

There are all degrees of braking efficiency. Any time a brake is 

applied some lining is worn off and when a brake is driven through 

(driven_with the engine with the parking brake engaged) it wears more 

lining. This lining had been driven through to the extent that the 

operator could smell burning brake lining. Obviously somewhere along 

the line between brand-new brakes and linings and brakes that will not 

hold at all, there comes a point where failure to repair the brakes 

immediately would be a "knowing" violation. I think the government had 

the burden of showing that the brake had gotten to that point in order 

to prevail. I find that the government has not carried its burden of 

proof that Respondent was guilty of a knowing violation. 

I find in favor of the Respondent and the case is accordingly 

DISMISSED. 

Distribution: By Certified Mail 

~ c~ ?l!~~ Charles C. Moore, Jr. 

Administrative Law Judge 

Inga Watkins Sinclair, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, 

VA 22203 

Michael O. KcKown, Esq., P.O.B. 235, St. Louis, MO 63166 

603 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE; 

FALLS CHURCH, VIRGINIA 22041 

CONSOLIDATION COAL COMPANY, 

Successor to Pocahontas Fuel 

Company, 

ttAR 3 0 1993 

DOCKET NO: HOPE 75-680 

v. 

SECRETARY OF LABOR, et al 

and 

UNITED MINE WORKERS OF AMERICA, 

on behalf of Howard Mullins 

IBMA 75-39, 75-40 

ORDER OF DISMISSAL 

The above case has been settled to the satisfaction of all 

parties by the payment of $500 to Mr. Mullins. The operator's motion 

to withdraw its Application for Review filed under the 1969 Act 

is GRANTED and the case is DISMISSED. 

Distribution: By Certified Mail 

~CJ?J~/rz. Charles C. Moore, Jr., 

Administrative Law Judge 

Fredk. W. Moncrief, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut Ave., NW., 

Washington, D.C. 20036 

Steven B. Jacobson, Esq., Decastro, West & Chodrow, Inc., 10960 

Wilshire Boulevard, Los Angeles, CA 90024 

Harrison B. Combs, Esq., United Mine Workers of America, 900 15th 

Street, NW., Washington, D.C. 20005 

604 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 t1AR 3 0 \983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PLATEAU RESOURCES LIMITED, 

Respondent 

DECISION 

Civil Penalty Proceeding 

Docket No. WEST 82-114-H 

A/O No. 42-01150-05017 

Lucky Strike Mine 

This matter is before me on the Secretary's motion to withdraw 

Citation 584335 and the parties' waiver of hearing and cross motions 

for summary decision with respect to Citation 584333. The latter 

came on for oral argument on the parties' stipulation of material 

facts not in dispute. in Salt Lake City, Utah on March 23, 1983. 

Citation 548335 

This citation charged a violation of 30 C.F.R. 57.6-103 which 

provides: 

Areas in which charged holes are awaiting firing shall 

be guarded or barricaded and posted or flagged. 

The citation was issued because an area in which charged holes 

were awaiting firing "was not guarded or barricaded from unauthorized 

entry." The only warning of the existence of charged holes was the 

presence of an empty explosives' sack which had been hung on a wire 

hanging from the left rib. The Secretary's motion to withdraw is 

predicated on the view that the standard does not require both a 

physical barrier and visual warning but only one or the other and 

that the sack con~tituted a sufficient visual warning. 

I do not agree. The existence of charged holes is an extrahazardous condition that clearly warranted greater precautions than 

hanging an empty sack from a wire on the left rib. Such an equivocal 

"warning" could easily be overlooked or misunderstood. 

In my view, the standard was designed to require that anyone 

approaching the area be confronted with both a physical barrier and 

605 
an unmistakeable visual warning of the existence of an explosives 

hazard. The mere hanging of an explosives' sack that may or may not 

have been readily observable or legible provided an inadequate warning 

of the hazard against which the standard was directed. 

Accordingly, it is ORDERED that the motion to withdraw and 'dismiss 

be, and hereby is, DENIED. It is FURTHER ORDERED that the operator pay 

the amount of the penalty proposed, $32.00, on or before Friday, 

April 15, 1983, unless prior thereto the operator requests an evidentiary 

hearing. 

Citation 584333 

This citation was issued for a claimed violation of 30 C.F.R. 57.6-50. 

This provides that in the cargo space of a conveyance containing explosives, 

detonating cord or detonators, no other materials shall be placed except 

safety fuses or properly secured, nonsparking equipment that is to be 

used in the handling of the explosives, detonating cord or detonators. 

The stipulated facts show the citation issued because the rear 

compartment space of a drill buggy was found to contain (1) an uncovered 

powder box containing 3-1/2 boxes of explosives powder, (2) a covered 

plywood box that was full of detonators, (3) a metal jackleg with a 

pneumatic air drill on the end that weighed 70 to 100 pounds, (4) a 

pneumatic machine oiler of metal construction and weighing from 5 to 8 

pounds, (5) solid metal drill steels 4' to 6 1 long and 111 in diameter, 

(6) molded metal strips with clamps for holding ventilation tubing in 

place, (7) rolls of 3/4" pneumatic hoses with metal wing nuts, and 

(8) metal drill bits approximately 1-3/4" by 1-1/2" long. Lying beside 

the box of detonators was a metal tool box containing metal chains 

and oil. 

None of the extraneous equipment or material was "properly secured, 

nonsparking equipment used expressly in the handling of such explosives, 

detonating cord or detonators." (Stipulation, Para. 9.) 

The dispositive issue is whether the term "cargo space" embraces 

the entire open space in the rear compartment of the drill buggy. The 

operator argues that it does not and that the term should be defined so 

as to include only the two boxes in which the explosives and the detonators 

were placed. 

I do not agree. As the transcript shows, the Secretary persuasively 

pointed out that this and related standards in Part 57.6 are designed to 

keep the carriage, storage and placement of explosives and detonators 

separate from extraneous materials which might provide the source for an 

ignition of the detonators and fire of the explosives. With this understanding of the hazard against which the standard is directed, I have no 

difficulty in accepting the plain meaning of the term "cargo space" as 

embracing the entire rear cargo compartment of the drill buggy. 

606 
For these reasons, I find the Secretary's motion should be granted 

and the operator's denied. 

I further find that the violation charged did, in fact, occur; that 

it posed a significant and substantial risk of death or a disabling 

injury and that it resulted from the operator's negligent failure to 

under-stand that safety demands some sacrifice in effi.ciency. Finally, 

after giving due weight to the operator's prompt abatement, its size 

and history of prior violations, as stipulated to by the parties, I 

conclude that the amount of the penalty warranted is that proposed by 

the Secretary, namely, $98.00. Let me add, however, that this mine 

does not have a good safety record, that I consider the penalty assessed 

minimal, and that in the event of a future violation of this or any of 

the related explosives standards a much heavier penalty may be warranted. 

Accordingly, it is ORDERED that 

$98.00, on or before April 15, 1983. 

Distribution: 

operator pay the penalty assessed, 

Phyllis Kirk Caldwell, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Bldg., 1961 Stout Street, Denver, CO 80294 

(Certified Mail) 

James A. Holtkamp, Esq., Van Cott, Bagley, Cornwall & McCarthy, 

50 South Main, Suite 1600, Salt Lake City, UT 84144 (Certified 

Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAR 3 o 1983 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FORD COAL COMPANY, 

Respondent 

Docket No. WEVA 82-106 

A. C. No. 46-03839-03013V 

No. 2 Surface Mine 

DECISION 

Appearances: Matthew Rieder, Esq., Office of the Solicitor, U. S. 

Department of Labor, Philadelphia, Pennsylvania, for 

Pe ti ti oner; 

Susan Cannon-Ryan, Denny & Caldwell, Charleston, 

West Virginia, for Respondent 

Before: Judge Lasher 

A hearing on the merits was held in Charleston, West Virginia, on 

December 15-16, 1982, at which both parties were represented by counsel. 

After consideration of the evidence submitted by both parties and proposed 

findings and conclusions proffered by counsel during closing argument, a 

decision was entered on the record. This bench decision appears below as 

it appears in the official transcript aside from minor corrections. 

This proceeding was initiated hy the filing of a petition for assessment of civil penalty by the Secretary of Labor 

on December 28, 1981, pursuant to Section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. Section 

820(a), (1977). 

This proceeding involves three alleged violations which 

were initiated by the issuance of a citation and two with- · 

drawal orders alleging violations of 30 CFR 77.1605(b). The 

Secretary initially sought a penalty of $400 each for the 

three violations. 

Citation No. 886455 

This part of my decision is confined to Citation No. 

886455 which was issued on August 24, 1981. 

Citation No. 886455 describes the violative condition as 

follows: "The 769 Caterpillar haulage truck (CO No. 2217) was 

not equipped with adequate brakes in that the diaphragm was 

608 
ruptured in the air brake chamber which provided air pressure for the left and right front brakes, this truck was 

being operated on a steep elevated roadway of about 19 per 

cent grade, going down to a valley fill at the mine worksite." 

The citation was issued at 0900 hours and was terminated 

at 1300 hours on the same day. The regulation allegedly violated, 30 CFR 77.1605(b), is part of a series of regulations 

pertaining to "Loading and haulage equipment; installation" 

and it provides: "Mobile equipment shall be equipped with adequate brakes, and all trucks and front-end loaders shall also 

be equipped with parking brakes." 

The Respondent contends that the key word in the regulation is "adequate" and that even though the front brakes were 

shown to be defective to an unspecified degree, the primary 

braking system on the 769(b) Caterpillar truck in question 

were the rear brakes and the rear brakes constituted an adequate braking system for the truck within the meaning of the 

regulation. The Secretary on the other hand contends that 

the brakes were inadequate. 

Inspector James E. Haynes, a surface mining inspector for 

the Mine Safety and Health Administration (MSHA) issued Citation No. 886455 during an inspection of the Respondent's No. 2 

mine. 

The Respondent, Ford Coal Company, a West Virginia enterprise, has two surface mines and at the No. 2 mine involved 

here the annual tonnage is 108,747 tons and the payroll consists of 24 employees. The "controlling entity" of Respondent 

is an individual, L. W. Hamilton, and his annual production as 

an operator is 681,719 tons from the two mines of Ford Coal 

Company and other entities which he controls. 

In proximity to the time the citation was issued there 

was one working shift at the Respondent's No. 2 mine and the 

Respondent had in use four trucks similar in type to the one 

involved in this proceeding (769 Caterpillar) and two Euclid 

trucks and employed six drivers to operate the same. One of 

the functions of the truck in question-and presumably the 

other four Caterpillar trucks-was to carry overburden which 

had been removed from an area called the upper Kittaning coal 

seam, to a place called the lower Kittaning coal pit where a 

fill was under construction. In the process of doing so, the 

trucks would negotiate an elevated haulage roadway constructed 

of compacted rock approximately 1,250 feet in length and 50 

feet wide except for a 200-foot stretch toward the bottom of 

the haulageway where its width was approximately 30 feet wide. 

(See testimony of Respondent's dozer operator, Gerald Spencer). 

609 
The percent of grade along the haulageway, which runs 

along the side of a hill for most of its distance, is approximately 19 percent near the top and at the bottom and ranges 

from 12 percent to 19 percent in the middle. The distance in 

vertical drop from the top of the Kittaning coal seam to t~e 

bottom is 160 feet which as previously noted is negotiated by 

the haulageway's distance of 1,250 feet. Along the left side 

of the haulageway are berms which range from three to five 

feet in height and are approximately ten to twelve feet in 

width at the base. About halfway down the haulageway is a 

dropoff which actually runs to the left of the haulageway 

approximately 800 feet and which at its maximum height is 

55 feet. 

The front brakes of the 769(b) truck in question are 

"air-over-oil" actuated expander tube type and they have a 

brake lining surface of 496 square inches. The rear brakes 

are Caterpillar oil-cooled, air-over-oil actuated disc brakes 

which provide both surf ace and retarder braking and which 

have a braking surface of 7,869 square inches. In addition 

the truck has a parking brake and an emergency brake which is 

air-over-oil actuated, and which has independent air reservoirs for both the front and rear brakes which, if air pressure drops below 80 pounds per square inch, sounds a horn to 

warn the operator. If air pressure drops to 45 pounds per 

square inch, the emergency brakes automatically apply to stop 

the truck. (Exhibit R-1, Page 2). 

The truck's surface brakes include all four wheels. The 

rear brakes which are disc brakes, according to the Caterpillar 

Company's specification guide (Exhibit R-1), resist fading 

even with repeated braking. If pressure drops below 60 PSI 

in the surface retarder system, a buzzer and red light warn 

the operator of the truck. The rear disc brakes are designed 

to absorb high torque loads at the wheels, reducing stress on 

the power train. The adjustment free discs and each rear 

brake are fade resistant because the oil which surrounds them 

is continuously cooled by a water-to-oil heat exchanger. The 

rear brakes have two master cylinders, one for each wheel, 

while the front brakes have one master cylinder (Exhibit R-1, 

Page 3; testimony of Linwood Young). The front brakes can be 

deactivated by a "front wheel brake control lever" on the 

righthand side of the dashboard of the truck (shown in Exhibit 

R-2 at Page 7), the purpose of which will be shown more clearly 

subsequently herein. 

The truck which weighs 60,760 pounds has a capacity of 35 

tons (Exhibit R-1, Pages 1 and 5) and is designed to go down 

grades steeper than 20 percent. (Testimony of Linwood Young; 

See also brake performance chart, Exhibit R-1, Page 6) •. Thus, 

although the grade of the haulageway in question is steep, the 

truck is designed to handle steeper grades. 

610 
Because of its width, there is room on the haulageway 

for trucks going in different directions to pass each other. 

On August 24, 1981, and at the time observed by Inspector 

Haynes, the diaphragm was ruptured in the air brake chamber 

which provided air pressure for the left and right front brakes. 

The degree to which this condition reduced braking power of 

the front brakes is conjectural. l_/ 

The surface of the haulageway is wet approximately 50 

percent of the time (testimony of Frederick Miller), and when 

the surface is wet a majority of the truck drivers transporting 

overburden over the haulageway would drive the Caterpillar 

trucks with the front brakes switched off, the rea~on being 

that when the road is slippery applying the front brakes could 

create the situation where the front wheels would lock up and 

cause the rear axle to swing around (testimony of Frederick 

Miller). ]:../ 

The dispositive question involved in this proceeding is 

whether the brakes on the truck were "inadequate," or as stated 

in the precise language of the regulation itself, whether this 

piece of mobile equipment 11 was "equipped with adequate brakes." 

Various subissues not having direct relevance to this 

issue were litigated at some length during this proceeding presumably for purposes of lessening the credibility of witnesses 

and the weight to be attached to various aspects of their testimony, and also for the purpose of creating a factual background 

from which inferences could be drawn. However, in the final 

analysis, the critical question in this case comes down to a 

determination of what facts are to govern the "adaequacy" issue. 

One of the difficulties is that the regulation itself provides 

no clear guidance as to what is to be considered "adequate 

brakes." Such a regulation necessarily must be articulated in 

somewhat general terms in order to cover the myriad of equipment used in the mining industry. In considering what constitutes adequate brakes at least some of the factors which must 

be considered are the overall braking system of a given vehicle, 

the uses to which it is to be put, and the conditions under 

1/ Inspector Haynes in his testimony indicated that because the front 

brake chamber was ruptured there were no foot brakes. There is, however, 

no evidence that the front brakes were inoperable and the testimony of 

Frederick Miller, the mine superintendent at the No. 2 mine, to the effect 

that while there was an air leak in the front brakes "they were not inoperable" is credited. 

2/ I infer from Miller's testimony that loss of control of the truck 

could occur on the haulageway's grade by applying the brakes to the 

front wheels. 

3/ The parties stipulated that the 769(b) truck in question was "mobile 

equipment" within the meaning of the regulation. 

611 
which it is to he used--all of which should be considered in 

the background of the experiences and common understanding of 

the particular facet of the industry in question. No specific 

factual standard for determination of what "adequate brakes" 

would mean insofar as the truck in question is concerned was 

delineated by the Secretary, nor has such standard been delineated to my knowledge by the Secretary either through administrative action, promulgation of other regulations, or in 

other ways. Thus, the standard by which "inadequacy" is to be 

measured is absent from the Secretary's proof, if indeed there 

is such an ascertainable standard. 4/ 

The clear language of the regulation establishes a requirement only that mobile equipment shall be equipped with 

adequate brakes. Such a regulation as this without specific 

standards does not provide constitutionally sufficient warning 

to a mine operator unless interpreted to penalize only conduct 

or conditions unacceptable in light of the common understanding and experience of those working in the industry. See 

United States v. Petrillo, 332 U.S. 1, 91 L.Ed. 1877 (1947). 

Unless the mine operator has actual knowledge that a condition 

or practice is hazardous, the test is whether a reasonably 

prudent man familiar with the circumstances of the industry 

would have protected against some hazard. Cape and Vineyard 

Division of the New Redford Gas and Edison Light Company v. 

OSHA, 512 F.2d 1148 (1st Cir., 1975). 

In the instant proceeding there was evidence with respect 

to the common understanding and experience of those working in 

the industry from Respondent's witness Linwood Young, an employee of Halker Machinery (an equipment supplier of Respondent 

4/ The Secretary did introduce evidence in the form of an opinion expressed by Inspector Haynes which was apparently based completely on the 

hearsay opinion of a mechanic with whom he discussed the matter the day 

before the hearing commenced. This opinion stated by the Inspector was 

that the truck, because of the defect in the front brakes, "would lose 

30 to 35 percent of its stopping ability." One is left to speculate, 

however, whether the mechanic's opinion of this loss was based on an 

assumption that all of the front braking power was lost--which I, again, 

note was apparently the Inspector's belief--or based on the assumption 

that there was some degree of loss which was unspecified resulting from 

the ruptured diaphragm. 

I am unable to accept this opinion of the Inspector which was nothing 

more than his expression of the opinion of another who was not present for 

cross-examination, whose qualifications to render such an opinion were not 

delineated, and the bases for whose opinion on this critical question are 

unknown since they were not expressed. 

Likewise, the opinion of Robert Dearfield, the second witness who 

testified for the Secretary in this proceeding, that after the truck was 

"fixed" subsequent to issuance of the citation he "could stop it in almost 

half the distance" was overwhelmed by the evidence presented by Respondent, 

the acceptance of which is reflected in my general fact findings here and 

a hove. 

612 
and a representative of Caterpillar), to the effect that field 

tests had been performed on the Caterpillar truck in the early 

1970's with the 769 truck carrying a gross test weight of approximately 131,000 pounds (similar to a truck carrying a 

70,000 pound load) travelling at a speed of 20 miles per hour 

and rated in terms of stopping ability with both the rear and 

front brakes on and with only the rear brakes on. Tested with 

the front brakes deactivated the stopping distance was 74 feet, 

whereas with the front and rear brakes both operating the stopping distance was 54 feet. According to Mr. Young, whose testimony I credit and which was not rebutted by the Secretary, 

OSHA guidelines mandate a performance acceptability of 143 

feet stopping distance. Thus, even with the front brakes off 

such tests indicate that the 769(b) truck has approximately a 

100 percent margin of safety. In addition, other clear unrebutted testimony in this case indicates that the primary, if 

not overall, braking payload on the 769(b) truck is carried in 

the rear hraking system. This is also reflected in the truck's 

specifications by the disparity between the braking surfaces of 

the rear brake (7,869 square inches) and the front brake (496 

square inches), the fact that there is actually a cut-off 

switch on the dashboard to deactivate the front braking system, 

and the very credible evidence in the record that approximately 

50 percent of the time it might be preferable practice to drive 

the truck--when the surface of the haulage way is wet--with the 

front braking system deactivated. 

Can it be said that the defect in the front braking system 

caused this truck to be without "adequate" brakes? I find that 

on the basis of the evidence of record that the answer to this 

question is no, particularly when it appears that for a significant percentage of the time it is the preferable practice to 

operate without the front brakes and that a majority of the 

drivers do so. 5/ 

Accordingly, I find that the condition of the truck in 

question at the time it was cited by Inspector Haynes on 

August 24, 1981, was such that it was provided with adequate 

brakes within the meaning of the pertinent regulation. Since 

I find no merit in the Secretary's petition with regard to 

this citation, Citation No. 886455 is vacated. 

5/ As Respondent points out (1) it was charged, (2) this proceeding was 

processed, and (3) this matter was litigated on the basis of an allegation 

of violation of 30 CFR 77.1605(b). While it is possible that a violation 

of 30 CFR 77.1606(c) occurred, that was not litigated or established by 

evidence which I can accept in this proceeding. This latter regulation 

(77.1606(c)) provides "equipment defects affecting safety shall be corrected before the equip~ent is used." 

613 
Withdrawal Order No. 886456 

The proposed settlement involving Withdrawal Order No. 

886456 dated August 24, 1981, was approved at the hearing. 

The Petitioner's motion at the hearing to modify this Section 

104(d)(l) Withdrawal Order to a simple Section 104(a) citation 

with the "significant and substantial" allegation contained on 

the face of the order deleted was granted. See Secretary v. 

Consolidation Coal Company, 4 FMSHRC 1791. (October 29, 1982). 

The parties agreed that an appropriate penalty for the citation is $50 since it appeared that the hazard contemplated was 

less than originally believed, thus diminishing the penalty 

assessment factor of seriousness. 

In view of the modification and resultant reduction in 

the gravity of the violation, the settlement is approved. 

Withdrawal Order No. 886459 

The Secretary's motion to withdraw the penalty assessment 

petition insofar as it related to Withdrawal Order No. 886459 

was granted at the hearing and the Order was vacated. 

ORDER 

(1) Citation No. 886455 is VACATED. 

(2) With respect to Order of Withdrawal No. 886456, Respondent, within 30 days from the date hereof, shall pay the 

Secretary of Labor a penalty in the sum of $50.00. 

(3) Withdrawal Order No. 886459 is VACATED. 

(4) All proposed findings of fact~and conclusions of law 

not expressly incorporated in this decision are rejected. 

#~/7.~~,ZA 

Michael A. Lasher, Jr., Judge 

Distribution: 

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

of Labor, 3535 Market St., Rm. 14480, Philadelphia, PA 19104 

(Certified Mail) 

Susan Cannon-Ryan, F.sq., Denny & Caldwell, 1110 Kanawha Valley 

Bldg., Charleston, WV 25301 (Certified Mail) 

T. W. Tolley, Safety Director, Ford Coal Company, P. O. Rox 175, 

Hansford, WV 25103 

614