JULY 1986 

COMMISSION DECISIONS AND ORDER 

07-08-86 

. 07-16-86 

07-24-86 

07-31-86 

07-31-86 

Robert Simpson v. Kenta Energy, Inc. 

and Roy Dan Jackson 

(Order) Sec. of Labor for James Corbin, 

Robert Corbin, A.C. Taylor v. Sugartree 

Corporation, Terco, Inc. & R. Lawson 

Lonnie Jones v. D & R Contractors 

Sec. Labor & UMWA v. Jones & Laughlin 

Steel Corp., & Vesta Mining 

Sec. Labor for Michael Hogan & Robert 

Ventura & UMWA v. Emerald Mines Corp. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

07-01-86 

07-02-86 

07-03-86 

07-08-86 

07-09-86 

07-11-86 

07-11-86 

07-14-86 

07..:.14-86 

07-16-86 

07-22-86 

07-22-86 

07-24-86 

07-24-86 

07-24-86 

07-25-86 

07-28-86 

07-30-86 

Carl Holcomb v. Colony Bay Coal Co. 

Columbia Asphalt & Gravel 

John Gilbert v. Sandy Fork Mining Co. 

Sec. Labor for Frank Williams & Buddy 

Maynard v. West Fork Coal Co. 

Green River Terminal Incorporated 

M.M. Sundt Construction Co. 

Martin Marietta Aggregates & Yates 

Construction 

Greenwich Collieries 

Graf ton Coal Company 

J & C Coal Corporation 

Bob Crumby 

Cabin Coal Corporation 

Hard Rock Coal Co., Inc. 

Silas Noble v. Patsy Jane Coal Corp. 

Coors Energy Company 

Volcanite Limited 

Carlson Mining Company 

Sec. Labor for Sterling Schultz v. 

Cleveland Cliffs Iron Co. 

KENT 83-155-D 

KENT 84-255-D 

KENT 83-257-D(A) 

PENN 81-96-R 

PENN 83-141-D 

WEVA 86-135-D 

WEST 86-51-M 

KENT 86-49-D 

KENT 86-28-D 

KENT 85-198 

CENT 86-6-M 

SE 86-31-M 

PENN 85-188-R 

WEVA 86-118 

SE 85-40 

CENT 85-96 

KENT 85-149 

KENT 85-148 

KENT 86-17-D 

WEST 86-40-R 

WEST 86-78-M 

PENN 86-63 

LAKE 86-39-DM 

Pg. 1034 

Pg . 1043 

Pg. 1045 

Pg. 1058 

Pg. 1066 

Pg. 1077 

Pg. 1082 

Pg. 1084 

Pg. 1095 

Pg. 1097 

Pg. 1099 

Pg. 1101 

Pg. 1105 

Pg. 1109 . 

Pg. 1113 

Pg. 1114 

Pg. 1116 

. 1118 

Pg. 1123 

Pg. 1124 

Pg. 1127 

Pg. 1129 

Pg. 1133 

JULY 1986 

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

Emery Mining Corporation v. Secretary of Labor, MSHA, Docket No. WEST 86-35-R. 

(Judge Morris, June 10, 1986) 

Secretary of Labor, MSHA v. Youghiogheny & Ohio Coal Company, Docket No. 

LAKE 86-56. (Judge Melick, June 13, 1986) 

Odell Maggard v. Chaney Creek Coal Corporation, Docket No. KENT 86-1-D, and 

Secretary of Labor on behalf of Odell Maggard v. Chaney Creek Coal Corporation, 

Docket No. KENT 86-51-D. (Judge Melick, June 17, 1986) 

There were no cases filed in which review was denied during July. 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ROBERT SIMPSON 

v. 

KENTA ENERGY, INC. 

and 

ROY DAN JACKSON 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 8, 1986 

Docket No. KENT 83-155-D 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

I 

This case arises under section 105(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). 1/ In his decision 

below, Commission Administrative Law Judge James Broderick concluded 

~/ Section 105(c)(l) of the Mine Act provides: 

No person shall discharge or in any manner discriminate against 

or cause to be discharged or cause discrimination against or otherwise 

interfere with the exercise of the statutory rights of any miner, 

representative of miners or applicant for employment in any coal or 

other mine subject to this [Act] because such miner, representative 

of miners or applicant for employment has filed or made a complaint 

under or related to this [Act], including a complaint notifying the 

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

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

health violation in a coal or other mine, or because such miner, 

representative of miners or applicant for employment is the subject 

of medical evaluations and potential transfer under a standard 

published pursuant to section [101] of this [ActJ or because such 

miner, .representative of miners or applicant for employment has 

instituted or caused to be instituted any proceeding under or 

related to this [Act] or has testified or is about to testify in 

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

representative of miners or applicant for employment on behalf of 

himself or others of any statutory right afforded by this [Act]. 

30 u.s.c. § 815(c)(l). 

1034 
that Robert Simpson was constructively discharged in violation of the 

Mine Act. 6 FMSHRC 1454, 1463-64 (June 1984)(ALJ). The judge found 

both Kenta Energy,Inc. ("Kenta"),and Roy Dan Jackson liable, and the 

judge ordered Simpson reinstated with back pay, interest, attorney's 

fees, and litigation expenses. 7 FMSHRC at 272, 286 (February 1985) 

(ALJ) • 

We granted Jackson's petition for discretionary review of the 

judge's decision. (Kenta did not seek review). The central issue 

raised on review is whether the judge properly found that Simpson was 

discriminated against in violation of the Act. The Secretary of Labor 

participated as amicus curiae on review, arid the Commission heard oral 

argument. For the reasons that follow, we reverse the judge's decision 

and we vacate his orders requiring Simpson's reinstatement and affording 

Simpson monetary relief. 

II 

Robert Simpson was employed as a scoop operator at Kenta's No. 1 

Mine (known as the Black Joe Mine) from January 1981 until September 20, 

1982. The Black Joe Mine, an underground coal mine, located in Harlan, 

Kentucky, operated one shift per day and employed eight to ten miners. 

Jackson was the president of Kenta Energy and was responsible for mining 

operations and for the "hiring and firing" of miners at the Black Joe 

Mine. 7 FMSHRC at 277. 

For almost two years prior to September 3, 1982, Danny Noe was the 

foreman and shift boss at the mine. As foreman, Noe was certified to 

conduct the required preshift and on-shift examinations. See 30 C.F.R. 

§ 75.303-.304. Noe injured his back on September 3, 1982, and thereafter 

did not return to work. The judge found that after September 3, and for 

the remaining time that Simpson worked at the mine, no supervisor was 

present at the mine and that the required preshift and on-shift examinations were not conducted. 6 FMSHRC at 1456. These findings are supported 

by substantial evidence. 

Sometime after Noe was injured and before Simpson quit work, the 

mining operations drove right, off the main heading and in the direction 

of an abandoned mine, commonly referred to as the "old works." Substantial 

evidence of record indicates that Simpson and other members of the crew 

became concerned about cutting into the old works and of being exposed 

to the dangers of "black damp" (oxygen-deficient air), methane gas, or 

accumulated water. According to Simpson and others, the miners believed 

that the old works were 300-400 feet from where they had turned right. 

However, miners Tony Gentry and Charlie Patterson testified that the 

mine map indicated that the old works were 850 feet from where the 

miners had turned right. Tr. 225, 360. Gentry Dep. 13. 

Simpson and Robert Nelson, the cutting machine operator, asked 

Charlie Patterson, who was responsible for ordering supplies and equipment 

at the mine, to obtain a test auger so that exploratory bore holes could 

1035 
be drilled in advance of the working face in order to check for black 

damp, gas, or water. 2/ An auger was ordered but did not arrive until 

sometime after September 20, 1982. 

Simpson testified that after completing his shift on September 20, 

1982, he decided not to return to the job because of his concerns about 

the lack of a foreman and a test auger. 

On September 22, Simpson returned to the mine at mid-shift to pick 

up his personal equipment, Simpson encountered Patterson and told 

Patterson that he had quit his job because of the lack of a foreman and 

a test auger. Patterson suggested to Simpson that he return to work, 

and he would be paid for the whole day. Simpson asked whether there was 

a foreman or an auger at the mine. When Patterson ~esponded in the 

negative, Simpson said that "it still wouldn't help me none." Tr. 48, 6 

FMSHRC at 1457. Simpson made no attempt to contact Jackson to explain 

why he had quit. 1/ 

Approximately one month later, Simpson learned that a mine foreman 

had been hired and a test auger acquired. Simpson testified that he 

then attempted to telephone Jackson to ask for his job back but that he 

was unable to reach Jackson. Tr. 50, 6 FMSHRC at 1457. 

Sometime in December 1982, Simpson and Jackson met by chance at an 

auto parts store. Simpson then told Jackson that he had quit because of 

concerns about the lack of a foreman and a test auger at the mine. 

Simpson requested his job back. Jackson replied that there was no 

present opening at the Black Joe Mine but that Simpson might be able to 

get a job at another mine. According to Simpson, he also stated, "next 

time you'll learn not to get a wild hair." Tr. 51, 6 FMSHRC at 1457. 

On November 23, 1982, prior to the above encounter with Jackson, 

Simpson had filed a discrimination complaint under section lOS(c) of the 

Act with the Department of Labor's Mine Safety and Health Administration 

("MSHA"). On February 23, 1983, prior to MSHA's determination of the 

merits of Simpson's claim, Simpson, through private counsel, filed a 

discrimination complaint directly with the Commission. Following an 

investigation to determine whether a violation of the Mine Act had 

occurred, MSHA decided not to prosecute a complaint on Simpson's behalf. 

2/ 30 C.F.R. § 75.1701 requires the drilling of boreholes to a distance 

of at least 20 feet in advance of the working face when a working place 

in a mine approaches within 200 feet of any workings of an adjacent 

mine. At the time Simpson quit, the miners had advanced 250 feet in the 

direction of the old works. Tr. 84, 132, 363. It appears, according to 

the mine map (Complainant's Exhibit 1), that the drilling of boreholes 

was not required as of the time Simpson left the job if the miners were 

mining in any section other than the No. 5 entry. 

1/ As noted above, and as the judge found, Patterson was not a supervisor. 6 FMSHRC at 1462. 

1036 

\. 
The administrative law judge first found that Simpson's decision to 

leave his job represented a protected work refusal. The judge stated: 

[T]here was no qualified supervisor at the mine 

to perform the required preshift and onshift 

examinations. [Simpson) and .at least some of the 

other members of the crew believed that they were 

cutting in the direction of an abandoned mine. 

The failure to drill test holes in such a situation 

is hazardous •••• [Simpson's] work.refusal resulted 

from a reasonable good faith belief that continuing to work would be hazardous. 

6 FMSHRC at 1460. Concerning the requirement that in work refusal 

situations a miner communicate his safety concerns to the operator prior 

to or reasonably soon after his work refusal,~· e.g., Secretary on behalf 

of Dunmir.e and Estle v. Northern Coal Co., 4 FMSHRC 126, 133 (February 

1982), the judge found that Simpson had not communicated his safety 

concerns to Jackson. 6 FMSHRC at 1462. The judge concluded, however, 

that communication regarding the absence of a foreman and the failure to 

perform preshift and on-shift examinations at the mine was not necessary 

because Jackson was deemed to have known about these conditions. The 

judge stated, "I do not consider that it is necessary in order to invoke 

the protection of section lOS(c), that it be shown that the operator was 

specifically aware of the reason for a miner's work refusal, if the 

operator was aware of the hazardous conditions which prompted the refusal. ••• " 

6 FMSHRC at 1462. 

The judge further det:ermined tnat Simpson suffered an adverse 

action, in this case a constructive discharge, be~aus-eSimpson was 

subjected to working conditions that were so intolerable that he was 

forced to quit his job. 6 FMSHRC at 1460-61. The judge found that 

although Kenta and Jackson were not motivated to maintain the intolerable working conditions because of Simpson's protected activity, their 

motivation was not determinative as to whether discrimination had 

occurred. 6 FMSHRC .at 1461. 

III 

On review, Jackson argues that the judge erred in finding that 

Simpson was not required to communicate his safety concerns to management. 

Jackson contends,citing Dunmire and Estle, that a miner is required to 

report a safety hazard prior to a work refusal when possible, but in any 

event must report the ha.zard within a reasonable time after the refusal. 

Jackson argues that it was reasonably possible for Simpson to communicate 

his concerns and that the judge erred in finding it would have been 

futile for Simpson to communicate his concerns to Jackson. Conversely, 

Simpson and the Secretary assert that there are exceptions to the general 

communication requirement, futility being one, and that the judge correctly 

held it would have been futile for Simpson to communicate his safety 

complaints. 

1037 
Regarding the issue of constructive discharge, Jackson contends 

that the judge's holding that Simpson was not required to show that 

Jackson's conduct was motivated at least in part by Simpson's protected 

activity was erroneous and contrary to Commission precedent. In response, 

Simpson and the Secretary argue that it is sufficient for Simpson to 

demonstrate that Jackson intended him to work under intolerable conditions 

and that the judge correctly held that Simpson need not prove that 

Jackson specifically intended that the conditions would cause Simpson to 

quit. We now turn to a resolution of these issues. 

IV 

We conclude that the judge erred in finding that Simpson was discriminated against in violation of section 105(c) of the Mine Act. First, we 

find that the judge erred in concluding that, Simpson engaged in a work 

refusal protected under the Mine Act. Second, we further find that the 

judge erred in holding that Simpson was the subject of a discriminatory 

constructive discharge. We begin with the work refusal issue. 

Under the Mine Act, a complaining miner establishes a prima facie 

case of prohibited discrimination by proving that he engaged in protected 

activity and that the adverse action complained of was motivated in any 

part by that activity. Secretary on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds 

sub. nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd. Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal Co., 3 

FMSHRC 803, 817-18 (April 1981). The operator may rebut the prima facie 

case by showing either that no protected activity occurred or that the 

adverse action was not motivated in any part by protected activity. 

Robinette, 3 FMSHRC at 818 n.20. If an operator cannot rebut the prima 

facie case in this manner, it nevertheless may defend affirmatively by 

proving that (1) it was also motivated by the miner's unprotected 

activities, and (2) it would have taken the adverse action in any event 

for the unprotected activities alone. See also Donovan v. Stafford 

Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 

719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the Commission's 

Fasula-Robinette test). The Supreme Court has approved the National 

Labor Relations Board's virtually identical analysis for discrimination 

cases arising under the National Labor Relations Act. NLRB v. Transportation Management Corp., 462 U.S. 393, 397-403 (1983). 

A miner has the right under section 105(c) of the Mine Act to 

refuse to work, if the miner has a good faith, reasonable belie·f in a 

hazardous condition. Fasula, 2 FMSHRC at 2793, 2796; Robinette, 3 

FMSHRC at 807-12. We agree that Simpson had valid safety concerns. It 

was reasonable for him to fear for his safety in these circumstances. 

There was no foreman at the mine and no pre-shift or on-shift inspections 

were performed. These are blatant violations of the Mine Act. However, 

where reasonably possible, a miner refusing work must ordinarily communicate 

or attempt to communicate to some representative of the operator his 

belief that a safety or health hazard exists. Dunmire and Estle, 4 

FMSHRC at 133. See also Miller v. Consolidation Coal Co., 687 F.2d 194, --'----

195-96 (7th Cir. 1982). 

. 1038 
The requirement of communication of the safety concerns motivating 

a miner's work refusal is important. Such communication is a vital aid 

to both miners and operators in the performance of their duty to prevent 

and eliminate unsafe and unhealthy conditions and practices in the 

country's mines. 30 U.S.C. § 80l(e). As such, it is a requirement 

"well suited to promoting the Act's fundamental objective of promoting 

mine safety and health." Miller, supra, 687 F.2d at 196. See~ 

Dunmire and Estle, 4 FMSHRC at 133. 

Exceptions to the communication requirement exist but are limited. 

It may not be reasonably possible for a miner to communicate his safety 

concerns in all instances; exigent circumstances may prevent such communication. However, absent such exceptional circumstances, a miner must 

notify an operator of the hazards he perceives before his work refusal 

or reasonably soon thereafter. Dunmire and Estle, 4 FMSHRC at 134. 

Simpson did not communicate his safety concerns to anyone in authority 

prior to quitting his job on September 20, or even reasonably soon 

thereafter. Although his ability to do so concededly was complicated by 

t.he absence of any supervisor at the mine site on a regular basis, the 

.. judge found, and the parties do not dispute, that Simpson lived approximately four miles from Jackson, that Simpson had known Jackson for about 

15 years, and that Simpson previously had gone to Jackson's home on 

three or four occasions to borrow money from Jackson. 6 FMSRRC at 1457 • 

. While the judge found that on the day of the work refusal Jackson and 

other management personnel were not at the mine site, the record does 

not reveal any reason preventing Simpson from thereafter otherwise 

communicating his safety concerns to Jackson. Only after Simpson met 

Jackson by chance more than two months after Simpson had quit work, and 

after Simpson knew that the conditions about which he was concerned had 

been corrected, did Simpson tell Jackson that he had quit because of the 

absence of a foreman or a test auger at the mine. 

The judge excused Simpson's failure to communicate his safety 

concerns regarding the absence of a foreman and the failure to perform 

the required examinations because "communication ••• would have been 

futile." 6 FMSHRC at 1462. We disagree. The record clearly indicates 

that Simpson made no reasonable attempt to communicate his concerns to 

Jackson. We cannot simply presume that such communication would have 

been futile. The case law construing the right to make safety complaints 

and to refuse work under the Mine Act is premised on the belief that 

communication of hazards and responses to such hazards are the means by 

which the Act's purposes will be attained. Dunmire and Estle, 4 FMSHRC 

at 133-135; Secretary of Labor ex rel. Bush v. Union Carbide Corp., 5 

FMSHRC 993 (June 1983); Secretary on behalf of Pratt v. River Hurricane 

Coal Co., Inc., 5 FMSHRC 126 (February 1982). Once a reasonable, good 

faith fear of a hazard is expressed by a miner, an operator has an 

obligation to address the perceived danger. Pratt, 5 FMSHRC at 133. 

See also Metric Constructors, Inc., 6 FMSHRC 226, 230 (February 1984), 

afl1(!$Ub nom. Brock v. Metric Constructors, Inc., 766 F.2d 469, 472-73 

(11th Cir. 1985). Simpson's failure to communicate his fears concerning 

1039 
the lack of a test auger negated the opportunity for Jackson to address 

those fears by explaining the exact location of the old works.' Even 

assuming, as the judge did, that Jackson was aware of the absence of a 

foreman and the failure to conduct the required pre-shift and on-shift 

examinations, we cannot presume that Jackson would have taken no action 

had Simpson communicated his concerns to Jackson. 

Possible operator awareness of a hazardous condition does not mean 

that upon complaint by a miner an operator will continue to ignore its 

duty to.correct the hazard. In fact, communication from a miner often 

provides the impetus for an operator to act and for this reason miners 

were given such rights in the Mine Act. Here, Simpson had a reasonable 

basis for believing his working conditions were hazardous. Instead of 

following any of the statutory mechanisms available for addressing his 

fears, e.g., requesting an MSHA inspection under section 103(g)(l) of 

the Act-:--30 U.S.C. § 813(g)(l), or communicating his fears to the operator, 

he simply chose to quit his job. His right to quit in such circumstances 

is clear, but in so doing he did not trigger any protection under the 

Mine Act. 

v 

Assuming arguendo that Simpson engaged in protected activity, we 

further conclude that the judge erred in finding that Simpson was constructively discharged in violation of the Mine Act. 'l11e Commission 

first addressed the doctrine of constructive discharge in Rosalie Edwards 

v. Aaron Mining, Inc., 5 FMSHRC 2035 (December 1983). 'l11ere the Commission 

held that in order to establish a successful claim of constructive 

discharge, the miner must show that in retaliation for protected activity 

by the miner the operator created or maintained intolerable working 

conditions in order to force the miner to quit. Id. at 2037. Simpson 

and the Secretary argue here that establishing discriminatory motive is 

not always required, that it may be presumed. 'l11ey cite decisions 

construing Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., 

and urge us to apply this rationale to the Mine Act. See, e.g.,"""G'Oss v. 

Exxon Office Systems Co., 747 F.2d 885, 887-88 (3rd cir:-1984); CaIC'Ote 

v. Texas Educational Foundation, 578 F.2d 95 (5th Cir. 1978); Muller v. 

U.S. Steel Corp., 509 F.2d 923, 929 (10th Cir. 1975), cert.denied, 423 

U.S. 825 (1975). '!11is same argument was urged by the Secretary and 

rejected by the Commission in Edwards. We recognize the existence of 

case law under Title VII not requiring proof of retaliatory motive. We 

believe, however, that section 105(c) of the Mine Act essentially is an 

anti-retaliation provision and that the theory of constructive discharge 

adopted in Edwards is the appropriate approach to be followed under the 

Mine Act. 'l11e Secretary appears to have acknowledged that this determination falls within the Commission's discretion. Or. Arg. Tr. 64-65. 

See Metric Construc~ors, supra, 766 F.2d at 472-73; Donovan v. Stafford 

construction Co., supra, 732 F.2d at. 959. 

We find no evidence in this record that Kenta or Jackson were 

motivated to create or to maintain the conditions about which Simpson 

was concerned because of the exercise by Simpson of any rights protected 

1040 
by the Mine Act. Cf. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 894-96 

(1984); NLRB v. Haberman Construction Co., 618 F.2d 288, 296 (5th Cir. 

1980) mod.Ified, 641 F.2d 351, 358 (5th Cir. 198l)(en bane); J.P. Stevens 

and Co. v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972). Therefore, we conclude that Simpson was not the victim of a constructive discharge, and 

the judge's contrary finding is reversed. ~ 

Accordingly, we reverse the judge's finding of discrimination and 

vacate his award of back pay, interest, attorney's fees, and incidental 

expenses. 

VI 

On review, Simpson has moved to reopen the proceedings to determine 

whether Black Joe Coal Company ("Black Joe") is a legal succe!>sor to 

Kent~, and thus, whether Black Joe should be held liable for kenta's 

liability.' Simpson relies on the fact that only Jackson 1 pet:i.tioned the 

Commission for review of the judge's -Oecision imposing liability on 

Kenta and Jackson. Simpson claims that the judge's order therefore is. 

final insofar as Kenta is concerned. The-motion is denied. In his 

petitio~ for review Jackson raised the central issue of whether Simpson 

·was disc~iminated against in violation of the Act. We have concluded 

that no discrimination occurred in conjunction with Simpson's leaving 

the job. Because there is no violation of the Act, there is no liability 

on behalf of any respondent. In these circumstances, Simpson's argument 

that he has a binding judgment against Kenta because Kenta did not 

separately seek review is rejected. See e.g., Arnold Hofbrau, Inc. v. 

George Hyman Construction Co., Inc., 480 F.2d 1145, 1150 (D.C. Cir. 

1973). 5/ 

- ~,c,C~~~/ Richard V. Backley, Commissioner J 

4/ The administrative law judge also concluded that respondents' 

refusal to rehire Simpson constituted "a further violation of § lOS(c) 

of the Act." 6 FMSHRC at 1464. We find insufficient record support for 

this conclusion and therefore reverse. 

5/ Chairman Ford did not participate in the consideration or decision 

of the merits of this case or the subsequent Motion to Reopen. 

1041 
Distribution 

Tony Oppegard, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P .o. Box 360. 

Hazard, Kentucky 41701 

David T. Smorodin, Esq. 

Steven D. Cundra, Esq. 

Thompson, Hine & Flory 

1~2Q N Street, N.W. 

Washington, D.C. 20036 

Vicki Shteir-Dunn, Esq, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson B.l vd. 

Arlington, VA 22203 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1042 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 16, 1986 

on behalf of JAMES CORBIN, 

ROBERT CORBIN, and 

A. C. TAYLOR 

v. Docket No. KENT 84-255-D 

SUGARTREE CORPORATION, 

TERCO, INC., and RANDAL LAWSON 

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

ORDER 

BY THE COMMISSION: 

In this matter pending on review, the Secretary of Labor has filed 

a Motion for Immediate Reinstatement of complainants James and Robert 

Corbin. Respondent Terco, Inc. ("Terco"), has filed an opposition to 

the motion. 

Pursuant to the decisions of the Commission administrative law 

judge below sustaining the Secretary's complaint of discriminatory 

discharge, both Corbins were reinstated by Terco in January 1986. 

Subsequently, Robert was discharged and James was laid off by Terco. 

Both Corbins have filed further discrimination complaints with the 

Secretary concerning their subsequent separations from employment~ 30 

U.S.C. § 815(c)(2). 

The Secretary has not made a clear showing, nor do we perceive, that 

an order of reinstatement is warranted at this time. The Secretary's 

motion and Terco's response disclose conflicting factual assertions 

surrounding the original reinstatements and the subsequent discharge and 

layoff. Under the circumstances presented, we conclude that an order of 

reinstatement at this stage of the present proceeding is inappropriate. 

1043 
·Accordingly, the Secretary's motion is denied. The Commission, 

however, will expedite the review process in the instant matter. 

~· 

z;~~ Richard V. Backley, Commi~ . · 

~t/,L/, Joyce A:DOYie; Commi~ \ 

1044 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

LONNIE JONES 

v. 

D&R CONTRACTORS 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 24, 1986 

Docket No. KENT 83-257-D(A) 

BEFORE: Hackley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY BACKLEY, DOYLE AND NELSON: 

This case involves a complaint of discrimination filed by Lonnie 

Jones pursuant to the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (1982). In his decision on the merits, the 

Commission Administrative Law Judge concluded that Mr. Jones had been 

discharged by D&R Contractors ("D&R") on April 25, 1983, in violation of 

section lOS(c)(l) of the Mine Act. 6 FMSHRC 1312 (May 1984)(ALJ). lf 

1,/ Section 105(c)(l) of the Mine Act provides: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the 

statutory rights of any miner, representative of miners or 

applicant for employment in any coal or other mine subject to 

this [Act} because such miner, representative of miners or 

applicant for employment has filed or made a complaint under 

or related to this [Act], including a complaint notifying the 

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

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

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

such miner, representative of miners or applicant for employment 

is the subject of medical evaluations and potential transfer 

under a standard published pursuant to section [101] of this 

[ActJ or because such miner, representative of miners or 

applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this [Act] or 

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

or because of the exercise by such miner, representative of 

· miners or applicant for employment on behalf of himself or 

others of any statutory right afforded by this [Act]. 

30 u.s.c. § 815(c)(l). 

1045 

/ 
In a subsequent decision concerning remedies, the judge ordered D&R to 

pay Jones back wages, certain costs and attorney's fees. 6 FMSHRC 2480 

(October 1984)(ALJ). The Commission granted D&R's petition for discretionary review. D&R contends that it was improperly joined as a 

party to this action. We agree. For the reasons that follow, we reverse 

the judge's decision and dismiss this proceeding. 

Given the nature of our disposition, the folldwing statement of 

facts is restricted to the procedural history of this case. On May 10, 

1983, Jones filed his initial Mine Act discrimination complaint, pursuant 

to section 105(c)(2) of the Mine Act, with the Department of Labor's 

Mine Safety and Health Administration (''MSHA"). ]j His complaint was 

l 

2/ Section 105(c) (2) of the M:i;'ne Act pr0vides: 

' . ' . ~ : 

Any miner or applicant·; for empldfmeflt .or representative· of 

miners who believes that he'bi;is been •ischa~ged,· interfered with, 

or otherwise discriminated against by 'an;Y person in v·iolatioμ of 

this subsection may, within 60 days af:ter such viola.ti-an occurs, 

file a complaint with the Secretary alteging such discrimination. 

Upon receipt of such complaint, the se;retary shall forward a copy 

of the complaint to the respondent and ·:13hall cause such investigation to be made as he deems appropriat,.e. Such investigation 

shall commence within 15 days of the Se~retary's receipt of the 

complaint, and if the Secretary finds tl1at such complaint was not 

frivolously brought, the Commission, on \an expedited basis upon 

application of the Secretary, shall ordet the immediate reirtstatement of the miner pending final order on\.the complaint. If upon 

such investigation, the Secretary determ~nes that the provisions of 

this subsection have been violated, he s£¥.ll immediately file a 

complaint with the Commission, with servi~e upon the alleged violator 

and the miner, applicant for employment, ~r representative of 

miners alleging such discrimination or interference and propose an 

order granting appropriate relief. The Commission shall afford an 

opportunity for a hearing (in accordance with section 554 of title 

5 [United States Code] but without regard to subsection (a)(3) of 

such section) and thereafter shall issue an order, based upor.! 

findings of fact, affirming, modifying, or vacating the Secre'tary's 

proposed order, or directing other appropriate relief. Such order 

shall become final 30 days after its issuance. The Commission 

shall have authority in such proceedings to require a person 

committing a violation of this subsection to take such affirmative 

action to abate the violation as the Commission deems appropriate, 

including, but not limited to, the rehiring or reinstatement of the 

miner to his former position with back pay and interest. The 

complaining miner, applicant, or representative of miners may 

present additional evidence on his own behalf during any hearing 

held pursuant to [this] paragraph. 

30 u.s.c. § 815(c)(2). 

1046 
filed against Ronald Perkins, who was named as foreman of Mingo Coal 

Company ("Mingo") and D&R. The complaint alleged that Jones was discharged by Perkins on April 25, 1983, because he had exercised his 

statutory right to refuse to work under hazardous conditions. 

After investigating Jones' complaint, MSHA determined administratively 

that a violation of section 105(c)(l) of the Mine Act had not occurred. 

MSHA communicated the results of its investigation to Jones in a letter 

dated June 13, 1983. The letter also advised Jones that if he wished to 

pursue his claim, he had the right, pursuant to section 105(c)(3) of the 

Act, to file a discrimination complaint on his own behalf with this 

independent Commission within 30 days of notice of MSHA's determination. 1_/ 

3/ Section 105(c)(3) of the Mine Act provides: 

Within 90 days of the receipt of a complaint filed under 

[section 105(c)(2)], the Secretary shall notify, in writing, the 

miner, applicant for employment, or representative of miners of his 

determination whether a violation has occurred. If the Secretary, 

upon investigation, determines that the provisions of this subsection 

have not been violated, the complainant shall have the right, 

within 30 days of notice of the Secretary's determination, to file 

an action in his own behalf before the Commission, charging discrimination or interference in violation of [section 105(c)(l)]. The 

Commission shall afford an op~ortunity for a hearing (in accordance 

with section 554 of title 5 [United States Code] but without regard 

to subsection (a)(3) of such section), and thereafter shall issue 

an order, based upon findings of fact, dismissing or sustaining the 

complainant's charges and, if the charges are sustained, 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. Such order shall become final 30 days after 

its issuance. Whenever an order is issued sustaining the complainant's charges under this subsection, a sum equal to the aggregate 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 against the person committing such 

violation. Proceedings under this section shall be expedited by 

the Secretary and the Commission. Any order issued by the Commission under this,·paragraph shall be subject to judicial review in 

accordance with section [106] of this [Act]. Violations by any 

person of [section lOS(c)(l)] shall be subject to tlle provisions of 

sections [108] and [llO(a)J of this [Act]. 

30 u.s.c: § 815(c)(3). 

1047 
On June 27, 1983, Jones timely filed his section 105(c)(3) discrimination 

complaint with this Commission, naming Mingo as the sole respondent. 

The complaint was served on Roger Daniel, owner and operator of Mingo. 

On August 18, 1983, Mingo filed an answer and a motion for dismissal 

or summary judgment. In addition to asserting that Jones had never been 

in its employ, Mingo alleged that Jones had been an employee or partner 

of D&R, an independent contractor that operated the mine owned by Mingo. 

Based on this allegation, Mingo argued that D&R was an indispensable 

party to the action. 

On August 22, 1983, Jones filed a motion to join D&R as a partyrespondent. In turn, Mingo opposed Jones' motion on the ground that 

joinder of D&R was untimely. Subsequently, the presiding Commission 

judge issued an order provisionally joining D&R as a party "for purposes 

of hearings on all pending motions." Unpublished Ord·er dated October 

17, 1983. The judge's order stated that all pending motions would be 

entertained at the start of the hearing, and that a hearing on the 

merits would follow, if it were deemed necessary. 

The judge's order also directed Jones to serve D&R with a copy of 

the discrimination complaint. Jones' complaint was served on D&R on 

October 25, 1983, and D&R filed its answer on November 17, 1983. Among 

other things, D&R's answer alleged that Jones was not employed by D&R, 

but rather was a joint venturer or partner of D&R. D&R further asserted 

that Jones' complaint against D&R should be dismissed because it was 

time-barred by section 105(c)(3) of the Mine Act, which provides that a 

miner's complaint is to be filed within 30 days of notification that the 

Secretary of Labor will not prosecute a complaint on the miner's behalf 

(n. 3 supra) • 

The hearing on this matter was held on February 7-8, 1984. Attorneys 

entered appearances for Jones, Mingo and D&R. At the start of the 

hearing, the judge heard arguments on Jones' motion to join D&R as a 

party. Jones' attorney explained that the motion to join was made 

"because of [Mingo's] allegations ••• that D&R Contractors [was] an indispensable party ••• , the remedy [was] not to dismiss the case, but to 

allow for the joinder of D&R •••• " Tr. 10. However, in response to 

questions by the judge, Jones' attorney stated his legal position that 

Jones "was totally an employee of Mingo ••• and not [an employee or] 

partner of D&R •••• " Tr. 11. He further stated "[s]o far as Mr. Jones 

is concerned, it's his position there is no evidence that he is an 

employee or partner of D&R Contractors." Tr. 12. Mingo asserted that 

its defense to Jones' charge was that Jones was an employee and/or 

partner of D&R and that Mingo was not responsible for his discharge. 

After inquiring of the parties whether there were any objections to the 

dismissal of D&R and receiving negative responses from the attorneys for 

1048 
both Jones and Mingo, the judge dismissed D&R. Tr. 11-17. 4/ Because 

Ronald Perkins, D&R's foreman and a partner of D&R, was subpoenaed as a 

witness, he remained,, but was sequestered along with the other witnesses. 

D&R's counsel also remained, although he did not participate in the 

hearing. 

Jones then presenfed his case on the merits. In part, he testified 

about his employment relationship with Mingo and its owner Roger Daniel. 

At the close of Jones' case, Mingo asserted that Jones had failed to 

prove his case and moved for summary judgment and a directed verdict. 

The judge decided to consider the motions overnight. 

At the start of the second day of the hearing, on February 8, 1984, 

the judge denied both of Mingo's motions. The judge opined that if there 

was to be any finding of discrimination, "the only person chargeable or 

!±_/ The following colloquies are illustrative: 

Q. (JUDGE): Do you know of any evidence, through 

your discovery or any other information, that would lead 

you to believe that ••• Mingo· and/or D&R ••• will 

produce evidence to show that Mr. Jones was an employee, 

or partner, of D&R ••• ? · 

A. (MR. ARMSTRONG, JONES' ATTORNEY): So far as Mr. Jones 

is concerned, it's his position there is no evidence 

that he is an employee or a partner of D&R •••• 

Q. (JUDGE): And that is your legal position? 

A. (ARMSTRONG): Yes. 

* * * * 

Q. (JUDGE): [L]et's get back to the question of the 

joinder of D&R •••• 

Mr. Armstrong, you do not see any necessity of 

retaining D&R as a party, is that correct? 

A. (ARMSTRONG): No, your Honor. 

Q. (JUDGE): And Mingo ••• does not see any necessity of 

retaining D&R as a party? 

A. (MR. BURTON, MINGO'S ATTORNEY): Not as against Mingo •.•• 

(JUDGE): Then D&R will be dismissed as a party in this case. 

Tr. 11-12, 17. 

1049 
the only entity chargeable with that would be D&R Contractors and/or 

Ronald Perkins. 11 Tr. 211. The judge then asked Jones' counsel whether 

he had any objections to the rejoining of D&R as a party. Jones' counsel 

had no objection. 

Admitting that D&R's joinder was 11 rather unusual" after Jones' 

case-in-chief had been completed, the judge noted that D&R's counsel had 

been present throughout the previous day's proceedings. Tr. 211-12. 

D&R, however, objected to being rejoined. It argued that the discrimination complaint against it, which had been effected by Jones' August 

22, 1983, joinder motion, was time-barred by the relevant 30-day time 

limit in section 105(c)(3) of the Act. Following a discussion off the 

record, the judge agreed with D&R's period of limitations argument. The 

judge based his determination, however, on his mistaken belief that 

Jones had filed his joinder motion in August 1984 (rather than in 1983). 

Tr. 215-17. Finding that Jones had not moved to join D&R until well 

beyond the·applicable 30-day filing period in section 105(c)(3) of the 

Act, the judge concluded, "[T]hat [ruling] I previously made that 

{D&R is] no longer a party to this proceeding would stand. 11 Tr. 217. 

Mingo renewed its motion to dismiss Jones' complaint for failure to 

join an indispensable party. The judge determined that there was sufficient 

evidence to proceed against Mingo and denied the motion. Mingo proceeded 

with its defense. The only witnesses presented by Mingo were Daniel and 

Perkins. Although D&R's counsel was present, he took no part in their 

examination or cross-examination. A£ter the testimony of these two 

witnesses, Mingo rested its case and the judge took the case under 

J;1.dvisement. 

Two weeks after the conclusion of the hearing, on February 22, 

1984, the judge arranged a conference call with the attorneys for Jones, 

Mingo and D&R. Although there is no transcript or minute of this conversation, it is clear that the judge arranged the call because he had 

recognized the computational mistake that he had made in ruling on the 

period of limitations defense raised by D&R. 6 FMSHRC at 1314 n. 2. It 

appears that during the call the judge informed the parties that his 

decision not to join D&R on February 8, 1984, was based on his miscalculation of the time that had elapsed from the date of the Secretary's 

non-prosecution letter to Jones and the date of Jones' subsequent motion 

to join D&R. Using the correct date of Jones' joinder motion, August 

22, 1983, the judge determined that Jones' filing delay of some 35 days 

was excusable. He told the parties of his intent to rejoin D&R and, 

according to his written decision in this matter, offered D&R the 

"opportunity to present additional evidence and/or to cross examine 

witnesses .••. " 5/ 

5/ During this conference call the judge also informed the parties 

that he intended to dismiss Mingo as a party because he had concluded 

that Mingo was not Jones' employer and was not responsible for his 

discharge. On March 7, 1984, the judge issued an order severing Jones' 

case against Xingo from the present case involving D&R and, on March 8, 

1984, reduced his decision in this regard to writing. 6 FMSHRC 632 

(March 1984)(ALJ). 

1050 
D&R appears to have objected to its joinder on two grounds: that 

it had been dismissed on the first day of the hearing -- with Jones' . 

consent -~ and, therefore, had not had the opportunity of participating 

in the hearing process; and, again, that Jones' motion for joinder was 

time-barred. D&R followed up its oral objection with a written statement 

of its objections and a letter informing the judge tha.t D&R was not 

going. to submit any add;itional evidence. In .its objections, D&R repeated 

that it had been dismissed with Jones' consent and had not participated 

in the hearing. On March 7, 1984, the judge joined D&R and then severed 

the case involving D&R from Jones' action against Mingo. Subsequently, 

D&R was permitted to and did file a brief on the merits of this case. 

In his decision on the merits, the judge focused most of his attention 

on D&R's timeliness argument and the evidence concerning Jones' discharge. 

The judge rejected D&R's due process objections to its joinder after the 

·hearing. In a footnote generally describing the February 22, 1984, conference call, the judge stated: 

D&R Contractors was given opportunity to present 

additional evidence and to cross-examine witnesses 

who had appeared at the hearings in this case. 

It is noted that counsel for D&R Contractors was 

present throughout the hearings and that D&R 

Contractors waived the opportunity to present 

additional evidence and/or to cross-examine 

witnesses. 

6 FMSHRC at 1314 n.2. Tbe judge concluded that Jones' discharge was in 

violation of section lOS(c) (1) .of the Mine Act and, in his subsequent 

remedial order, directed D&R and Ronald Perkins to pay Jones back wages 

with interest plus costs and his attorney's fees. We subsequently 

granted D&R 1 s pet it.ion for discretionary review, 

The procedural error claimed by D&R in this case presents us with a 

straightforward due process issue: whether the judge's post-hearing 

joinder of D&R as a party effectively denied the operator an adequate 

opportunity to defend against the claim of unlawful, discriminatory 

discharge. We hold that it did. The highly unusual procedure followed 

by the judge in this case denied D&R the fundamental right to def end 

itself in a meaningful manner, thereby depriving D&R of due process of 

law. 

The crucial procedural facts are clear. Initially, D&R was joined 

only provisionally by the judge and was dismissed as a party on the 

first day of the hearing before any testimony was taken. The grounds of 

dismissal were substantive -- viz., that D&R was not the responsible 

employer in this matter. Jone~counsel voluntarily and unequivocally 

consented to this dismissal. Tr. 10-17; see n. 4, supra, At that 

point, D&R's potential liability, if any,-was terminated. 6/ . - 6/ As noted earlier, the judge reinforced his dismissal of D&R by 

declining to rejoin it as a party at the conclusion of Jones' case-inchief. The judge ruled, "[T]hat [ruling] I previously made that [D&R' 

is] no longer a party to this proceeding would stand." Tr. 217; see 

p. 6, supra. 

1051 
Nevertheless, despite having dismissed D&R twice as a party in this 

case, the judge, following a conference call that he initiated, rejoined 

D&R two weeks after the conclusion of the hearing. We find that this 

post-hearing joinder is violative of D&R's due process rights and are 

unpersuaded by the reasons offered by the judge supporting the joinder. 

The judge noted that counsel for D&R had been present at the hearing, 

and he relied principally upon the fact that counsel for D&R had been 

given the opportunity to present evidence and to cross-examine witnesses 

who had testified at the hearing, but had declined the offer._--5ee 6 

FMSHRC at 1314 n.2. 

We hold that under the facts of this case the judge's offer to D&R 

to reopen the record did not afford sufficient due process and thus the 

post-hearing joinder of D&R was improper. Simply stated, "The fundamental 

requirement of due process is the opportunity to be heard 'at a meaningful 

time and in a meaningful manner."' Mathews v. Eldridge, 424 U.S. 319, 

333 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Given 

the fact that D&R was not a party to this litigation when the case was 

tried before the judge, the reopening of a cold administrative record 

can hardly be said to satisfy the meaningful time and meaningful manner 

requirement contemplated by the Court in Mathews v. Eldridge and Armstrong 

v. Manzo and their progeny. The fact that counsel for D&R was present 

at the hearing is not persuasive. D&R's counsel did not participate in 

the hearing -- he was only a spectator. The judge's offering D&R the 

post-hearing opportunity to present evidence and to cross-examine witnesses 

(who had testified two weeks earlier) has a hollow ring. Accordingly, 

to uphold the post-hearing joinder of D&R under the facts of this case 

would be a serious affront to the principle of due process. 

In finding the judge's post-hearing joinder of D&R to be improper, 

we are mindful of the consequences to complainant Lonnie Jones. Nevertheless, in seeking to uphold Jones' right under the Mine Act to be free 

of unlawful discrimination, we cannot infringe upon the due process 

rights of D&R. Moreover, we note that Jones' counsel substantially 

contributed to the procedural confusion that has plagued this case. As 

noted above, Jones' counsel voluntarily consented to the pretrial dismissal 

of D&R as a party. In addition Jones had every opportunity through the 

Commission's pre-trial discovery process to determine the appropriate 

employing entity. See 29 C.F.R. §§ 2700.55-.57. As the transcript 

reveals, Jones' counsel was on express notice, when he consented to 

D&R's dismissal at the outset of the hearing, that Mingo might well 

defend on the ground that it was not Jones' employer. In the adversarial 

system, Jones must live with the consequences of his counsel's consent 

to D&R's dismissal and his counsel's failure to seek the seasonable 

rejoinder of D&R. 

There must be reasonable limits to the dismissal and rejoinder of 

parties in Commission practice. In this case the sua sponte judicial 

1052 
addition of a party after its dismissal with consent and after hearing 

was fundamentally unfair and contrary to Commission process. Accordingly, 

we hold that the judge erred in joining D&R. '}_/ 

Finally, we wish to comment briefly upon the judge's sua sponte 

activity in the attempted post-hearing joinder of D&R. At least under 

the particular facts of the case, we find the judge's efforts to have 

been misdirected. The role of the Commission and its judges is to 

adjudicate, not to litigate, cases -- a procedural axiom followed by 

this Commission from its formation. See, e.g., Canterbury Coal Co., 1 

FMSHRC 1311, 1312-14 (September 1979). Pertinent to our present purposes, 

parties bring discrimination cases under the Mine Act. The Commission 

does not solicit, initiate, or revive a party's complaint. The Mine Act 

provides for the traditional adversarial hearing process familiar to 

American law and we must be vigilant in respecting that process. 30 

u. s. c. § 815. 

For the foregoing reasons, the judge's decision is reversed and 

this proceeding is dismissed with prejudice. 8/ 

~//tfuvt-- Richard V. Backley, Commissioner 

?2~.$_: .. lk::P--

6/l_;_v 

L. Clair Nelson, 

~ Commissoner 

7/ Given our disposition, we do not reach D&R's objection to Jones' 

complaint on the ground of timeliness nor the substantive merits of 

Jones' case. 

8/ Chairman Ford did not participate in the consideration or disposition 

of this matter. 

1053 
Commissioner Lastowka, dissenting: 

The administrative law judge concluded that Lonnie Jones was discharged by D&R Contractors in violation of section 105(c)(l) of the Mine 

Act. On review D&R challenges the judge's decision on procedural grounds 

only, contending "that it was improperly joined as a party to this 

action." Slip op. at 2. Agreeing with D&R, my colleagues hold that the 

joinder below "effectively denied the operator an adequate opportunity 

to defend against the claim of unlawful, discriminatory discharge ••• 

thereby depriving D&R of due process of law." Slip op. at 7. I agree 

that the determination of the proper respondent in this discrimination 

proceeding followed an unusual and tortuous path. I cannot conclude, 

however, that the judge's ultimate joinder of D&R impugned D&R's constitutional due process rights to a fair hearing. 

In evaluating the merits of D&R's procedural objection it must be 

kept foremost in mind that we are dealing with administrative proceedings 

provided by Congress to determine civil liability under an important and 

particularly remedial section of a safety and health statute. Such 

proceedings, of course, must be conducted consistent with the dictates 

of due process. Due process, however, does not .require that "administrative hearings ••• be conducted with all the formalities and strictures 

of a criminal case." Mack v. Florida State Board of Dentistry, 430 F.2d 

862, 864 (5th Cir. 1970), cert. denied, 401 U.S. 954 (1971). Rather, 

the touchstone of procedural due process in administrative proceedings 

requires consideration of whether substantial prejudice has occurred. 

Arthur Murray Studio v. F.T.C., 458 F.2d 622, 624 (5th Cir. 1972). 

Notably absent from the record in this case is any demonstration of substantial prejudice suffered by D&R as a result of the judge's reconsideration of his previous denial of Jones' joinder motion. Quite to 

the contrary, as discussed below the record amply demonstrates that no 

prejudice resulted from the judge's ruling. 

First, D&R was named by Jones in his initial complaint of discrimination filed with MSHA 15 days after his' asserted illegal discharge. 

Thus, D&R had prompt notice of Jones' claim against it and cannot assert 

prejudice based on surprise or faded witness memories. Second, although 

the complaint filed with the Commission initially named only Mingo Coal 

Company as respondent, Jones promptly moved to add D&R as a respondent 

following the filing of Mingo's answer asserting that D&R, not Mingo, 

was his employer. Third, D&R was offered a hearing once the judge 

realized that his denial of joinder at the hearing in part had been 

based on his own obvious computational error in determining a pertinent 

time period. D&R refused a hearing, however, choosing instead to rely 

on procedural objections to its "late joinder." Fifth, the rampant 

confusion evident in this record over the nature of Jones' employment 

relationship with D&R and Mingo is attributable in large part to the 

less than clear "partnership" arrangement used in this case, and 

apparently commonly used in Kentucky, primarily as a device to avoid 

1054 
obligations under workers' compensation and other programs. Tr. 152-

156, 199-206. See also BNA, Mine Safety and Health Reporter, February 5, 

1986, at 342 {State~Kentucky to take corrective action addressing use' 

of mining partnership agreements, which are .described as "a significant 

problem area in need of attention", due to widespread confusion over 

ownership responsibilities). Sixth, as a result of the partnership 

arrangement, through which Roger Daniel as sole owner of Mingo contracted with D&R, comprised of Ronald Perkins as foreman/partner and 

Jones and several other miners as additional partners, all of the 

principals with knowledge of the circumstances surrounding the disputed 

discharge who testified at the proceedings involving Mingo are the same 

individuals who would have testified in the proceeding against D&R. 

Therefore, the witnesses were known to D&R and readily available at the 

time of its joinder. Reopening the hearing to permit their further 

testimony and cross-examination and for the introduc.tion of additional 

evidence does not contravene due process. Little Sandy Coal Sales, 

7 FMSHRC 313 {March 1985). 

In light of the above, I conclude that the showing of substantial 

prejudice necessary to sustain a procedural due process objection has 

not been established in this record. By refusing the judge's offer to 

reconvene the hearing, D&R deprived itself of the very opportunity to 

defend against the merits of Jones' complaint that it now protests it 

has been unfairly denied. 

Insofar as the administrative law judge's authority to reopen the 

hearing is concerned, I cannot agree with my colleagues' suggestion that 

the judge's actions constituted inappropriate advocacy rather than 

impartial adjudication. Slip op. at 9. "Until the matter is closed by 

final action, the proceedings of an officer of a department are as much 

open to review or reversal by himself, or his successor, as are the 

interlocutory decrees of a court open to review upon the final hearing." 

City of New Orleans v. Paine, 147 U.S. 261, 266 (1893). Accord, Bookman v. 

U.S., 453 F.2d 1263, 1264-65 (Ct. Cl., 1972); Faircrest Site Opposition 

Committee v. Levi, 418 F. Supp. 1099, 1109 n. 3 (N.D. Ohio, 1976). 

Here, Jones' complaint was still pending within the jurisdiction of the 

judge. While the case was before him, he determined that he had committed a basic and obvious factual error in denying joinder. He decided 

to rectify rather than ignore his error. In doing so he acted appropriately; 

the failure to do so would have been error. 1_/ 

1_/ An apt parallel to the judge's actions in the present case might be 

drawn from the following comments by the court in Faircrest Site Opposition Committee v. Levi, supra: 

. The second action challenged by plaintiff under the 

arbitrary and capricious standard is the L.E.A.A!s ultimate 

dacision to issue a negative declaration. Plaintiff 

points to the fact that the deciding representative of 

L.E.A.A., Eldon James, changed his mind on this issue no 

less than three times in less than a month. Clearly such 

actions are not, to say the least, conducive to the public 

confidence in the responsibility of Washington administrators; nor is this Court impressed with the procedural 

1055 {Footnote continued) 
Federal Rule of Civil Procedure 21 provides further support for the 

judge's action. Rule 21 provides: 

Misjoinder of parties is not ground for dismissal 

of an action. Parties may be dropped or added 

by order of the court on motion of any party or 

on its own initiative at any stage of the action 

and on such terms as are just. 

{Emphasis added). Pursuant to Rule 21, the judge possessed the authority 

to rejoinD&R and his offer to reconvene the hearing to allow it to 

present its case is a just term for permitting the joinder. See Connnission 

Procedural Rule l{b), 29 C.F.R. § 2700.l(b)(Federal Rules of Civil 

Procedure applicable to Commission proceedings insofar as practicable). 

In sum, while I agree that "there must be reasonable limits to the 

dismissal and rejoinder of parties in Commission practice" (slip op. at 

8), considering the clear remedial purpose underlying section 105(c) of 

the Mine Act, to conclude that such limits were exceeded in the present 

case is to adopt a "hypertechnical and purpose-defeating interpretation." 

Donovan v. Stafford Construction Co. and FMSHRC, 732 F.2d 954, 959 (D.C. 

Cir. 1984). Therefore, I respectfully dissent from the majority's 

dismissal of Jones' complaint. 

Footnote continued 

lapses and indecisiveness demonstrated by L.E.A.A. in this 

action. However, the issue herein presented is whether its 

decision is arbitrary 0r capricious. These demonstrations 

of sporadic indecisiveness are merely evidence of said legal 

characterization; they are not proof thereof • 

•.•• [W]hile James' wavering decisions certainly appear 

on the surface to be the result of arbitrary and capricious 

action, upon reflection it is apparent that ·they were not. 

418 F. Supp. at 1104-05. 

1056 
Distribution 

Jeffrey A. Armstrong, Esq. 

Appalachian Research & Defense 

Fund of Kentucky, Inc. 

P.O. Box 919 

Barbourville, Kentucky 40906 

Guy E. Millward, Jr., Esq. 

Millward & Jewell 

P.O. Box 650 

Barbourville, Kentucky 40906 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1057 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY A...~D HEALTH 

ADMINISTRATION (MSHA) 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 31, 1986 

UNITED MINE WORKERS OF AMERICA 

(UMWA) 

v. 

JONES AND LAUGHLIN STEEL 

CORPORATION 

and 

VESTA MINING COMPANY 

Docket No. PENN 81-96-R 

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This case is before us on remand from the U.S. Court of Appeals for 

the District of Columbia Circuit, "for a determination of whether [30] 

U.S.C. § 863(d)(l) ••• and 30 C.F.R. § 75.303 (1983) require coal mine 

operators to conduct pre-shift examinations of coal-carrying conveyor 

belt entries where miners are normally required to work or travel." 

International Union, UMWA v. FMSHRC and Vesta Mining Co., No. 83-1867, 

slip op. at 3 (D.C. Cir. March 9, 1984); 731 F.2d 995 (D.C. Cir. 1984) 

(table). 1/ For the reasons explained below, we find that the coall/ 30 U.S.C. § 836(d)(l), section 303(d)(l) of the Federal Mine Safety 

and Health Act of 1977, and the identical implementing mandatory safety 

standard, 30 C.F.R. § 75.303, provide in part: 

[l] Within 3 hours immediately preceding the beginning 

of any shift, and before any miner in such shift enters 

the active workings of a coal mine, certified persons \ 

(Footnote continued) 

1058 
carrying belt conveyor entries that are the subject of this proceeding 

are entries in which miners are normally required to work or travel, and, 

as such, are subject to the pre-shift examination requirements of section 

303(d)(l) of the Act and of 30 C.F.R. § 75.303. 

Footnote 1/ continued 

designated by the operator of the mine shall examine 

such workings and any other underground area of the 

mine designated by the Secretary or his authorized 

representative. [2] Each such examiner shall examine 

every working section in such workings and shall make 

tests in each such working section for accumulations 

of methane with means approved by the Secretary for 

detecting methane and shall make tests for oxygen 

deficiency with a permissible flame safety lamp or 

other means approved by the Secretary; examine seals 

and doors to determine whether they are functioning 

properly; examine and test the roof, face, and rib 

conditions in such working section; examine active 

roadways, travelways, and belt conveyors on which 

men are carried, approaches to abandoned areas, and 

accessible falls in such section for hazards; test 

by means of an anemometer or other device approved 

by the Secretary to determine whether the air in each 

split is traveling in its proper course and in normal 

volume and velocity; and examine- for such other hazards 

and violations of the mandatory health or safety 

standards, as an authorized representative of the Secretary may from time to time require. [3] Belt conveyors on which coal is carried shall be examined after 

each coal-producing shift has begun. Such mine examiner 

shall place his initials and the date and time at all 

places he examines. [Sentence numbers added.] 

Further, section 318(g) of the Mine Act and the Secretary's standards 

identically define key terms used in section 303(d)(l): 

"lW]orking section" means all areas of the 

coal mine from the loading point of the section 

to and including the working faces, "active 

workings" means any place in a coal mine where 

miners are normally required to work or travel. 

30 U.S.C. § 878(g)(3) and (4); 30 C.F.R. § 75.2(g)(3) and (4). 

1059 
The case arose when Jones and Laughlin Steel Corporation ("J&L") 

was issued a citation and withdrawal order by an inspector of the 

Department of Lao'or 's Mine Safety and Health Administration ("MSHA") 

pursuant to section 104(d)(l) of the Min~ Act. The citation and withdrawal order alleged that J&L violated 30 C.F.R. § 75.303 by failing to 

pre-shift examine certain coal-carrying belt conveyor "flights" before 

miners entered areas along the flights and began work. ]:_/ The citation and withdrawal order also alleged that the violations of 30 C.F.R. 

§ 75.303 were significant and substantial and were caused by the unwarrantable failure of J&L to comply with the mandatory standard. 30 U.S.C. 

§ 814(d)(l). 

J&L contested the citation and withdrawal order and a hearing was 

held before a Commission administrative law judge. At the hearing the 

parties stipulated that the belt conveyors in question transported coal 

only, that both violations were cited on coal~producing shifts, and that 

on both occasions an examination of the nature specified in 30 C.F.R. 

§ 75.303 had not been made within three hours preceding the beginning of 

the shift, or before miners entered and began to work in the areas along 

the cited belt flights. 3 FMSHRC at 1723-24. ]./ 

The history of this matter is fully set forth in our previous 

decision (5 FMSHRC 1209 (July 1983)) and need not be repeated in full 

here. The judge fQund that the Secretary had not proved a violation of 

section 75.303. The judge concluded that the Secretary had cited J&L 

for failing to pre-shift examine the equipment, i.e., the coal carrying 

belt conveyors, and that MSHA had failed to establish that the standard 

and the Act require coal-carrying belt conveyors to be pre-shift examined. 

3 FMSHRC at 1734. Therefore, the judge vacated the citation and withdrawal order. 3 FMSHRC 1721, 1734 (July 19Sl)(ALJ). 

The Commission granted petitions for discretionary review filed by 

the Secretary and the UMWA. !±_/ The Secretary argued on review that J&L 

violated section 303(d)(l) of the Act and 30 C.F~R. § 75.303 because no 

pre-shift examination was made of areas in the coal-carrying belt conveyor entries where miners were working. 2_/ J&L responded that in 

']) As used here the term "flight" refers to one conveyor belt in a 

connected tandem series of belts. See Bureau of Mines, U.S. Dept. of 

the Interior, Dictionary of Mining,"!1ineral, and Related Terms 440 

(1981). 

1/ Following the hearing, the motion of the United Mine Workers of 

America ("UMWA") to intervene and file a brief was granted. 

!±_/ The American Mining Congress ("AMC"), the Bituminous Coal Operators 

Association, and Keystone Bituminous Coal Association filed briefs as 

amici curiae. 

2/ This argument, which distinguished betwe,en belt conveyor entries 

and the belt conveyors themselves, represented a new position for the 

Secretary. It was not refined and clarified until the Secretary's reply 

brief to the Commission on review and·was not announced to the public 

until three months after the Commission granted review. 5 FMSHRC at 

1212, n. 5; see also MSHA Policy Memorandum No. 82-76 (March 3, 1982). 

1060 
distinguishing between the belt flights themselves and the entries in 

which that belt conveyor equipment was located, the Secretary was 

arguing a position not raised before the judge below. The Connnission 

agreed that the Secretary was improperly attempting to litigate an issue 

not raised below. 30 U.S.C. § 823(d)(A)(iii). Accordingly, the Commission left the issue of whether the statute and the regulation require 

the pre-shift examination of coal-carrying belt conveyor entries for a 

case in which it was properly raised. 5 FMSHRC at 1211-12. The Commission concluded, however, that section 303(d)(l) of the Act and 30C.F.R. 

§ 75.303 do not require the pre-shift examination of coal-carrying belt 

conveyors themselves. 

The. Commission's decision was appealed to ·the U.S. Court of Appeals 

for the District of Columbia Circuit by the UMWA. Prior to the appeal 

Vesta Mining Co. ("Vesta") purchased the mine in question. Vesta then 

intervened and filed a brief on appeal. (The Secretary and the AMC, 

participating as amici curiae, also filed briefs.) Before the court, 

Vesta altered the position taken by its predecessor, J&L, and argued 

that the question of whether belt conveyor entries had to be pre-shift 

examined had been properly before the Commission on review. The court 

conceded that "the distinction between coal-carrying [belt conveyor] 

equipment and the entries was perhaps not carefully articulated below." 

Slip op. at 3. Nevertheless, the court reversed the Commission's 

decision "to the extent that it holds that the parties did not· present 

to the ALJ the question of whether entries in which coal-carrying belts 

are located are subject to a mandatory pre-shift inspection." Slip op. 

at 3. The court further stated: 

Given that the statute and regulation require a 

preshift examination of 'the active workings of a coal 

mine' and that coal-carrying conveyor belt entries in 

which miners are normally required to work or travel 

clearly fall within the definition of 'active workings,' 

the statute and regulation appear to require coal mine 

operators to conduct a preshift examination of such 

entries. It would be anomalous if the mere addition 

of coal-carry~ng conveyor belts to an entry had the 

effect of removing the entry from the scope of the 

preshift examination requirement. 

Slip op. at 3. Recognizing, however, that there might be "other considerations not apparent to this Court that bear on the proper interpretation of the statute and regulation," the court remanded the matter to 

the Commission. Slip op. at 3. 

1061 
On remand the parties have filed new briefs presenting their positions and arguments on the issue of whether the statute and the standard 

require pre-shift examinations of coal-carrying conveyor belt entries 

where miners are normally required to work or travel. The parties 

present three very different interpretations of how the statute and the 

standard apply to this case. Vesta argues that the subject areas along 

the coal-carrying belt conveyor flights are not required to be pre-shift 

examined for either of two reasons. First, Vesta asserts that the 

record establishes they are not "active workings," that, is, they are 

not areas where "miners are normally required.to work or travel." 

Second, assuming that the areas are "active workings," Vesta asserts 

that they are specifically exempted by the third sentence of section 

303(d)(l) and the standard. ("Belt conveyors on which coal is carried 

shall be examined after each coal-producin·g shift has begun.") The UMWA 

draws a contrary conclusion. The UMWAasserts that because·the third 

sentence of section 303(d)(l) itself requires the on-shift·examination 

of belt conveyors on which coal is carried, miners are "normally required 

to work or travel" in the entries. Thus, according to the UMWA, all 

coal-carrying belt conveyors are active workings and must be pre-shift 

examined. The Secretary argues that the sole consideration in determining whether a pre-shift examination is required in a coal-carrying 

belt conveyor entry is whether a particular area in an entry is an 

"active working." The Secretary asserts that the evidence in this case 

establishes that "miners are normally required to work or travel" in the 

cited areas of the coal-carrying belt conveyor flights at issue. 

In a succession of federal mine safety and health acts, Congress 

has demonstrated increasing concern that coal miners be assured of 

entering underground work areas that provide as safe and healthy an 

environment as possible. Section 209(d) of the Federal Coal Mine 

Safety Act of 1952, 30 U.S.C. § 471 et~· (1955), required pre-shift 

examinations to be conducted in "every active working place" of the 

underground areas of a gassy coal mine within four hours immediately 

preceding the beginning of a coal-producing shift. The first sentence 

of section 303(d)(l) of the Federal Coal Mine Health and Safety Act of 

1969, 30 U.S.C. § 801 et~· (1976), adopted without change by the 1977 

Mine Act, required that pre-shift examinations be performed within three 

hours immediately preceding the beginning of any shift and throughout 

all active workings of every coal mine. 

The first sentence of section 303(d)(l) sets forth the general preshift examination requirement followed by more particular inspection 

requirements. Thus, the second sentence of section 303(d)(l) contains 

the more specific requirements for the pre-shift examination of "working 

sections" and for the pre-shift examination of other specified areas in 

underground coal mines. The third sentence excepts coal-carrying belt 

conveyors from the general and particularized pre-shift examination 

mandates. Clearly, the intent of section 303(d)(l) is to make safer 

those areas where miners are normally required to work or to travel. We 

1062 
agree with the court that to remove coal-carrying belt conveyor entries 

where men normally work or travel from the general pre-shift inspection 

mandate of the statute and the standard would be a deviation from the 

statutory pre-shift inspection scheme. 

We next consider whether the areas of the coal-carrying belt conveyor entries at issue were "active workings." George Pizoli, mine 

manager for J&L, testified that on almost every shift at the Vesta No. 5 

mine miners were assigned to work at places along the belt as the need 

arose. Tr. 131-32. Stephen Hajdu, J&L's assistant safety director, 

testified that anytime during any shift it was possible that miners 

would be working along coal-carrying belt conveyors and that it was 

"normal practice"· at the Vesta No. 5 mine for men to work in belt 

entries without a pre-shift examination. Tr. 95-96. Thus, at the 

Vesta No. 5 mine, it was a normal practice to require miners to work at 

particular tasks as needed in areas of the coal-carrying belt conveyors, 

and we conclude that these areas were places where miners were "normally" 

required to work. Thus, once J&L assigned miners to work in particular 

areas along coal-carrying conveyor belts, J&L was required by section 

303(d)(l) of the Mine Act and by 30 C.F.R. § 75.303 to pre-shift examine 

those specific areas. 

Our conclusion is consistent with the Secretary's interpretation of 

the pre-shift examination requirements of the Act and the standard 

relating to the examination of coal-carrying belt conveyor entries. 

That interpretation requires the pre-shift examination of "[a]ny area of 

a coal mine in which miners are normally required to work or travel 

during the shift, including areas along conveyor belt lines in which 

miners are assigned to work or travel." The interpretation also states 

that it is the Secretary's policy to require the examination of areas 

along a belt entry "[w]hen miners are assigned duties." MSHA Policy 

Memorandum No. 82-7C at 1 (March 3, 1982). 61 Thus, to comply with the 

pre-shift examination requirements imposed by the statute and the standard, 

an operator is not required to pre-shift examine all of the coal-carrying 

belt conveyor entries in its mine, but only those areas of the entries 

where miners are assigned duties requiring work or travel. II 

!il We note that it is also the Secretary's policy to allow the operator 

to combine, under certain circumstances, the on-shift examination of 

belt conveyors on which only coal is carried with the pre-shift examination of the areas of coal-carrying belt conveyor entries in which miners 

are assigned duties. MSHA Policy Memorandum No. 82-7C (March 3, 1982) 

at 2; see also Sec. Br. on Remand 27-30. Under the facts of the present 

case the validity of this policy need not be explored here. 

II As we have stated previously, the inspection requirements imposed 

by section 303(d)(l) of the Mine Act must be determined by reading that 

section as a whole and in a harmonious and consistent manner. 5 FMSHRC 

at 1212. Consonant with this approach, and based upon the structure of 

section 303(d)(l) and the statutory and regulatory definition of "active 

workings," the Commission previously concluded that coal-carrying belt 

conveyors themselves are not subject to the pre-shift examination requirements of the statute and regulation but must be examined "after each 

coal producing shift has begun." 5 FMSHRC at 1212-14. These conclusions 

were not disturbed by the court. 

1063 
J&L assigned duties to miners requiring work in areas along the 

coal-carrying belt conveyor flights. J&L did not examine these areas 

prior to the miners entry into the areas. Accordingly, we reverse the 

judge and conclude that J&L violated the pre-shift examination requirements of section 303(d)(l) of the Act and mandatory safety standard 30 

C.F.R. § 75.303. 

Because_J;;h._e judge who heard the case originally is no longer with 

the Commission, we remand to the Chief Administrative Law Judge for 

assignment to another judge to.determine whether, as alleged, the violations were of a significant and substantial nature and whether the 

violations were caused by J&L's unwarra~table failure to comply with the 

Act and the mandatory safety standard. :§_/ 

_,.,,,/ 

V. Backley, Commissioner 

Commissioner 

§_/ Chairman Ford did not participate in the consideration or disposition 

of this case. 

1064 
Distribution 

Ann Rosenthal, Esq. 

Anna Wolgast, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Henry Mee. Ingram, Esq. 

Rose, Schmidt, Dixon & Hasley 

900 Oliver Bldg. 

Pittsburgh, Pennsylvania 15222 

Kurt Kobelt, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Henry Chajet, Esq. 

American Mining Congress 

1920 N Street, N.W. 

Washington, D.C. 20036 

Charles P. O'Connor, Esq. 

E. Carl Uehlein, Jr., Esq. 

Robert A. Dufek, Esq. 

Morgan, Lewis & Bockius 

1800 M Street, N.W. 

Washington, D.C. 20036 

1065 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of MICHAEL HOGAN 

and ROBERT VENTURA 

and 

UNITED MINE WORKERS OF AMERICA 

v. 

EMERALD MINES CORPORATION 

July 31, 1986 

Docket No. PENN 83-141-D 

BEFORE: Doyle, Lastowka and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This case involves a discrimination complaint brought by the Secretary 

of Labor on behalf of miners Michael Hogan and Robert Ventura, pursuant 

to the Federal Mine Safety and Health Act of 1977, 30 U .s .C. § 801 et 

seq. (1982)(the "Mine Act"). The complaint alleges that Emerald Mines 

Corporation ("Emerald") unlawfully suspended the complainants in violation 

of section 105(c)(l) of the }line Act for refusing to ride the mine's main 

hoist elevator. 1/ The complainants alleged that the main hoist elevator 

was in an unsafe-condition. Following a hearing on the merits, Commission 

!/ Section lOS(c)(l) of the Mine Act provides: 

No person shall discharge or in any manner discriminate against 

or cause to be discharged or cause discrimination against or otherwise 

interfere with the exercise of the statutory rights of any miner, 

representative of miners or applicant for employment in any coal or 

other mine subject to this [Act] because such miner, representative 

of miners or applicant for employment has filed or made a complaint 

under or related to this [Act], including a complaint notifying the 

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

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

health violation in a coal or other mine, or because such miner, 

representative of miners or applicant for employment is the subject 

of medical evaluations and potential transfer under a standard 

published pursuant to section [1011 of this [ActJ or because such 

(footnote 1 continued) 

1066 
Administrative Law Judge George Koutras dismissed the complaint. 5 

FMSHRC 2174 (December 1983)(ALJ). The Commission granted the petitions 

for discretionary review filed by the Secretary and the Un.ited Mine 

Workers of America ("UMWA") and heard oral argument. For the reasons 

that follow, we reverse the judge's dismissal of the discrimination 

complaint, conclude that Emerald unlawfully suspended the complainants, 

and remand to the judge for consideration of appropriate relief. 

The events at issue involve the main elevator at Emerald's No. 1 

Mine, a large underground coal mine located in southwestern Pennsylvania. 

At the time of these events, the mine was operating three shifts daily. 

Hogan and Ventura were working underground on the 4:00 p.m. to midnight 

shift. Neither miner had any prior disciplinary history. Both were 

considered good and conscientious employees by their shift foreman, 

Denny Smith. 

The usual route underground and into the mine is via an enclosed 

elevator that carries a maximum of 24 persons. The elevator shaft is 

600 feet deep. The elevator normally runs on automatic mode at a speed 

of 900 feet per minute. 

On December 27, 1982, there were mechanical problems with the 

elevator. At about 5:30 p.m., Denny Smith rode the elevator underground. 

After he exited, the elevator did not return automatically to the surface. 

The elevator constituted one of two required fresh air escapeways. If 

the elevator could not be repaired within 30 minutes the miners had to 

be given the option of leaving the mine by the remaining fresh air 

escapeway--up the slope. Therefore, all of the miners underground, 

including Hogan and Ventura, were notified of the ·elevator malfunction. 

Denny Smith called the underground maintenance foreman who repaired the 

elevator. 

Ventura testified that he was told by Mark Sunyak, a miner who also 

worked on the 4:00 p.m. to midnight shift and who used the elevator to 

leave the mine following its repair, that the elevator had not leveled 

properly at the bottom of the shaft. On the midnight shift of December 28, 

1982, the elevator malfunctioned again. Maintenance representatives 

from Houghton Elevator Company were called to make repairs, which took 

some time and delayed the entrance of the day shift employees until 

approximately 9:45 a.m. 

Footnote 1 end. 

miner, representative of miners or applicant for employment has 

instituted or caused to be instituted any proceeding under or 

related to this [Act] or has testified or is about to testify in 

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

representative of miners or applicant for employment on behalf of 

·himself or others of any statutory right afforded by this [Act]. 

30 u.s.c. § 815(c)(l). 

1067 
The elevator malfunctioned again on December 28 when at 3:00 p.m. 

the doors did not open. Jackie Smith, a maintenance foreman, was called 

to repair the elevator. He corrected the problem by recycling the power 

and running the elevator up and down several times. 

Later that day, at about 3:50 p.m., Hogan, Ventura, and other 

afternoon shift miners were standing on the elevator platform when the 

doors opened and a group of day shift miners exited. Hogan and Ventura 

testified that the miners exiting the elevator appeared highly agitated, 

excited, and shaken and were talking about an elevator malfunction that 

occurred on their ride up. Miners testified that the elevator cage was 

proceeding up the shaft at the normal speed (900 feet per minute) when, 

at about 100 feet from the top, it stopped suddenly. The cage appeared 

to some to fall, stop, start back up, and stop a third time. Those 

inside the elevator telephoned the elevator contrpl room and Jackie 

Smith brought the elevator up manually at inspection speed (180 feet per 

minute). Miners who experienced the elevator incident testified that 

the stopping and dropping of the elevator jarred them and caused their 

knees to buckle. Some feared that the cage might fall to the bottom of 

the shaft, seriously injuring them. 

One of the miners on the elevator, Jerry Kessler, testified that 

immediately upon leaving the cage he advised Denny Smith, the shift 

foreman, that "there [was] something wrong with the cage, it dropped." 

Tr. 207, 213. Kessler stated that Smith did not appear to hear him 

although they were only one and one half feet apart. Kessler proceeded 

to tell every man he saw on his way to the bathhouse about the incident 

including Martin Willis, the UMWA's safety committeeman. Kessler told 

Ventura, "If anybody rides that damn elevator, they are a fool because 

somebody is going to get killed." Tr. 113. 

Willis proceeded to the mine foreman's office to see what management 

intended to do about the incident. Meanwhile, Jackie Smith ran the 

empty elevator up and down without a recurrence of the incident and the 

afternoon crew was ordered to enter the mine via the elevator. 

As the afternoon shift began caging down, Hogan and Ventura separately 

approached management representatives and told them that they believed 

that the elevator was unsafe and that they would not cage down. Ventura 

testified that he asked Alan Hager, the mine foreman, who had arrived at 

the elevator platform, whether he was aware of the problems with the 

elevator. Hager responded that there was nothing wrong. Hogan testified 

that he told Hager he did not believe the elevator was safe and that he 

was invoking his individual safety rights. Both Hogan and Ventura also 

asked Jackie Smith about the malfunction of the elevator and testified 

that Smith told them he did not know what was wrong with the elevator 

and could not guarantee that it was safe. However, Smith testified that 

he told Hogan and Ventura that he had not found anything wrong with the 

elevator and that it was "the safest piece of e·quipment at the mine." 

Ti'.-'. 386. 

1068 
Hogan and Ventura were called to mine foreman Hager's office where 

they met with Hager and other management officials. Hager offered to 

take the two miners into the mine by either the slope car or by running 

the elevator manually. When safety questions were raised about these 

options, Hager withdrew the offer to transport the miners in by the 

slope car. The miners were then assigned alternate work at surface 

areas of the mine, which they performed. 

Hager then called the state and federal inspectors, who arrived at 

about the same time as John Lusky, a mechanic from the Houghton Elevator 

Company who had been called by management to examine the elevator. 

Hager had previously told Hogan and Ventura that, depending on the 

result of the investigation of the elevator by the inspectors, they 

might be disciplined. At about 8:00 p.m., after testing the elevator 

and replacing several parts, Lusky advised the inspectors, Hager and 

other management personnel that he considered the elevator to be safe 

and that none of the elevator safety features were defective. The 

inspectors, who also examined the elevator, did not issue any citations 

for safety violations. 

Hager then summoned Hogan and Ventura to his office. He told them 

that in management's view nothing was unsafe about the elevator at the 

time of their refusal to cage down and that, therefore, they would 

receive a five-day suspension. Hager's stated reason for the suspensions 

was that the miners had interfered with management's right to direct the 

workforce and that the complainants had acted "arbitrarily and capriciously 

and not in good faith" in refusing to ride the elevator. Tr. 55, 125. f:_/ 

Hogan and Ventura subsequently filed a complaint with the Department 

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

discrimination under§ 105(c)(l) of the Mine Act. Following an investigation by MSHA, the Secretary filed with the Commission a discrimination 

complaint on behalf of Hogan and Ventura. 

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

the complainants' work refusals were not protected by the Mine Act and 

that the five-day work suspensions did not constitute unlawful retaliation 

under section 105(c). In reaching this conclusion, the judge focused 

solely upon the so-called "drop incident" of December 28. He concluded 

that the earlier mechanical problems with the elevator could not serve 

as a basis for a good faith, reasonable belief that the elevator was 

hazardous. 5 FMSHRC at 2211. The judge found that at the time of their 

work refusal on December 28, the complainants did not possess a good 

2/ Hager testified that under the Bituminous Coal Wage Agreement of 

l9'81 (the "Contract") a dispute between miners and management may be 

resolved by calling in state and federal mine inspectors. According to 

Hager, if the inspectors find that the conditions complained of do not 

constitute a violation of any safety standards, management is free under 

the Contract to discipline the miners. 

1069 
faith, reasonable belief that riding the elevator was hazardous. The 

judge was influenced by what he termed the complainants' lack of "credible 

first-hand information indicating that the elevator would more than 

likely fall to the bottom of the shaft if they were to ride it." 5 

FMSHRC at 2212. The judge further found that the miners had failed to 

communicate the "drop incident" to management as the reason why they 

refused to ride the elevator. 5 FMSHRC at 2210, 2213. Additionally, 

the judge was impressed with what he viewed as Emerald's positive and 

affirmative steps to address the elevator problems. 5 FMSHRC at 2206. 

On review, the Secretary and the UMWA argue that in evaluating the 

complainants' good faith, reasonable belief that the elevator was hazardous, 

the judge incorrectly applied an "objective" test rather than the applicable 

test -- whether the miners had a reasonable basis for believing that 

riding the elevator was hazardous. They also argue that the judge erred 

in focusing solely upon the "drop incident." They assert.that the prior 

malfunctions of the elevator were known to Hogan and Ventura and influenced 

their decision on December 28 to refuse to ride the elevator. They 

further contend that Hogan and Ventura adequately communicated their 

safety concerns to management. 

Conversely, Emerald accepts the judge's emphasis of the "drop 

incident" as the focal point for analysis of the complainants' good 

faith, reasonable belief that the elevator was hazardous, and argues 

that the judge correctly found that Hogan and Ventura did not adequately. 

communicate that incident as the basis for their work refusals. Alternatively, Emerald contends that the complainants' work refusals should be 

viewed as continuing ones during which Emerald provided assurances and 

took remedial action so as to remove the refusal from the Act's protection. 

We conclude that the judge erred in finding that Hogan and Ventura 

were not discriminated against in violation of section 105(c) of the 

Mine Act. First, we find that the judge erred in concluding that the 

complainants did not possess a good faith, reasonable belief that the 

elevator was hazardous. Second, we find that the judge erred in concluding 

that the miners did not communicate sufficiently their safety concerns 

to Emerald. We begin with the issue of the miners' good faith, reasonable 

belief. 

Under the Mine Act, a complaining miner establishes a prima facie 

case of prohibited discrimination by proving that he engaged in protected 

activity and that the adverse action complained of was motivated in any 

part by that activity. Secretary on behalf of Pasula v. Consolidation 

Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds 

sub. nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd. Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal Co.t 3 

FMSHRC 803, 817-18 (April 1981); The operator may rebut the prima facie 

case by showing either that no protected activity occurred or that the 

adverse action was not motivated in any part by protected activity. 

Robinette, 3 FMSHRC at 818 n. 20. If an operator cannot rebut the prima 

facie case in this manner, it nevertheless may defend affirmatively by 

1070 
proving that (1) it was also motivated by the miner's unprotected activity, 

and (2) it would have taken the adverse action in any event for the 

unprotected activity alone. See also Donovan v. Stafford Construction Co., 

732 F.2d 954, 958-59 (D.C. CiX::-1984); Boich v. FMSHRC, 719 F.2d 194, 

195-96 (6th Cir. 1983)(specifically approving the Commission's PasulaRobinette test). The Supreme Court has approved a virtually identical 

analysis for discrimination cases arising under the National Labor 

Relations Act. NLRB v. Transportation Management Corp., 462 U.S. 393, 

397-403 (1983). 

A miner has the right under section 105(c) of the Mine Act to 

refuse work, if the miner has a good faith, reasonable belief in a 

hazardous condition. Fasula, 663 F.2d at 1217 n. 6, 1219; Miller v. 

Consolidation Coal Co., 687 F.2d 194, 195 (7th Cir. 1982); Secretary 

of Labor on behalf of Phillip Cameron v. Consolidation Coal Co., 7 

FMSHRC 319 (March 1985), on remand 7 FMSHRC 1682 (October 1985), aff'd sub. 

nom. Consolidation Coal Co. v. FMSHRC and Secretary of Labor on behalf 

of Phillip Cameron, No. 85-2369, slip op. at 8-9 (4th Cir. July 8, 

1986); Robinette, 3 FMSHRC at 807-12. However, this right to refuse to 

work is not unconditional. Where reasonably possible, a miner refusing 

work should ordinarily communicate or attempt to communicate to some 

representative of the operator his belief that a safety or health hazard 

exists. Simpson v. Kenta Energy Inc., KENT 85-155-D, slip op. at 5-7, 8 

FMSHRC (July 8, 1986); Secretary on behalf of Dunmire and Estle v. 

NortherU-Coal Co., 4 FMSHRC 126, 133 (February 1982); See also Miller, 

687 F. 2d at 195-96. - --

Initially, we conclude that the judge's view regarding the scope 

of the complainants' safety concerns is overly narrow and unsupported by 

the record. The record clearly reveals that from December 27 up to the 

complainants' refusal to ride the elevator on December 28, the elevator 

malfunctioned several times. The "drop incident" which preceded the 

complainants' refusal to ride was but the latest in a series of malfunctions. Hogan and Ventura were aware of these incidents. In 

concluding that the elevator problems on December 27 could not serve as 

a basis for a good faith, reasonable belief that the elevator was hazardous 

at the time of the work refusal on December 28, the judge emphasized the 

fact that the compla~nants knew that the earlier problems had been 

corrected. 5 FMSHRC at 2210-11. Regardless of whether the complainants 

knew that the prior problems had been corrected, the problems provided a 

valid basis for the complainants' safety concerns in light of the 

subsequent occurrence of further problems. The elevator malfunctions 

created an atmosphere in which the complainants understandably distrusted 

the elevator's reliability, and we conclude that the prior problems 

logically cannot be severed from the overall mood of distrust which, for 

the complainants, culminated in the "drop incident." 

With this in mind, we find that it is clear from the overwhelming 

weigqt of the evidence that the complainants possessed a good faith 

belief that riding the elevator would be hazardous. A good faith belief 

simply means an honest belief that a hazard exists. The purpose of this 

1071 
requirement is to remove from the Mine Act's protection work refusals 

involving fraud or other forms of deception. Robinette, 3 FMSHRC at 

808-10. Hogan and Ventura knew that the elevator had malfunctioned on 

their December 27 shift. They were told of subsequent malfunctions. 

They observed and talked to miners who were involved in the so-called 

"drop incident" immediately after it happened. Thus, they had sufficient 

reason to have a good faith belief that the elevator was defective at 

the time they refused to ride it. There is nothing in the context of 

events to suggest an ulterior motive. Nor does the record indicate any 

evidence in either employees' personnel history suggesting a likelihood 

of pretext or ulterior motive for their actions. Equally important, 

each complainant initially acted individually, without knowledge of the 

intentions of the other. We therefore hold that Hogan and Ventura had a 

good faith belief that it would be hazardous to ride the elevator and 

that the judge's contrary conclusion is not supported by substantial 

evidence. 

In addition to being held in good faith, the miner's belief in a 

hazard must be reasonable. Unreasonable, irrational, or completely 

unfounded work refusals do not warrant statutory protection. Robinette, 

3 FMSHRC at 811. This requirement necessitates a showing that the 

miner's honest perception of a hazard be a reasonable one under the 

circumstances. Cameron, No. 85-2369, slip op. at 8-9 (4th Cir. July 8, 

1986); Robinette, 3 FMSHRC at 812; Haro v. Magma Copper Co., 4 FMSHRC 

1935, 1944 (November 1982). Thus, reasonableness is to be evaluated 

from the viewpoint of the refusing miner at the time of refusal. 

Objective proof that an actual hazard existed is not required. Robinette, 

3 FMSHRC at 810; Haro, 4 FMSHRC at 1943-44; Pratt v. River Hurricane 

Coal Co., Inc., 5 FMSHRC 1529, 1533-34 (September 1983). ]_/ 

In finding that the complainants did not possess a reasonable 

belief that the elevator was hazardous to ride, the judge made errors of 

law and of fact and applied an objective standard. The judge held that 

Hogan and Ventura knew, prior to their refusal, of the efforts of Hager 

to locate and correct the problem with the elevator, including test runs 

of the elevator with the union president on board. The judge also held 

that the complainants knew that Hager had summoned state and federal 

inspectors and that, prior to their refusal, Hogan and Ventura had 

received Hager's offer to take them into the mine by operating the 

elevator on manual mode. 5 FMSHRC at 2209. The record contains uncontroverted evidence that the complainants had, at best, only limited 

knowledge of inconclusive testing that had been performed before the 

afternoon shift began to cage down in the elevator. At the time of his 

3/ In interpreting the Contract to permit the discipline of a miner 

when the complained of conditions are found not to be violations of 

mandatory safety standards, Emerald runs the risk ·of imposing discipline 

in violation of section 105(c) of the Mine Act. See Oral Arg. Tr. 

47-48. The fact that the perceived hazard does not violate a mandatory 

health or safety standard does not mean the miner lacked a good faith, 

reasonable belief in the hazard at the time of his refusal. Robinette, 

3 FMSHRC at 411-12. 

1072 
refusal to board the elevator, Hogan was not aware of any steps taken by 

management to locate the reason for the elevator drop, or of any repairs 

or maintenance done on the elevator after the incident. Hogan knew only 

that the empty cage had been run up and down a few times. Further, 

Hogan was not aware that the union president had ridden in the cage or 

that the Houghton mechanic had been summoned. Similarly, at the time of 

his refusal, Ventura was unaware of any testing of the elevator. Re 

knew only that management was unaware of the source of the elevator's 

problems and had summoned the Houghton mechanic. Moreover, there is no 

question but that Hager's offer to manually cage down the complainants 

and Hager's call to state and federal inspectors came after Hogan and 

Ventura refused to ride the elevator. Hager's testimony alone makes 

this clear. 4/ 

In evaluating the reasonableness of the complainants' belief that 

the elevator was hazardous, the judge concluded that the malfunctions of 

the elevator prior to the "drop incident" could not serve as a basis for 

a reasonable belief that the elevator was hazardous. The judge noted 

that repairs had been made. 5 FMSHRC at 2211. While it is true that 

the complainants were aware that the problem of December 27 had been 

corrected, they did not know whether any subsequent repairs had been 

made. More importantly, given the fact that the complainants heard from 

the other miners that the elevator continued to malfunction, it was 

reasonable, regardless of the repairs to the elevator, for the complainants 

to assume that the elevator was experiencing continuing and repeated 

safety problems, the underlying causes of which were unknown. 

On December 28, Hogan actually saw the miners as they got off the 

elevator or immediately after they got off the elevator. His first hand 

impression was that they were agitated and that a few of them were so 

upset that they were "really scared" and "actually white." Tr. 34. 

Both Hogan and Ventura heard a number of miners report that something 

serious had just happened on the elevator. These observations corroborated and heightened their already existing concerns regarding the 

safety of the elevator. Given the complainants' knowledge of the elevator's 

prior malfunctions and the complainants' observation of and discussions 

with miners immediately after the "drop incident," we conclude that the 

great weight of the evidence establishes that the complainants did possess a 

reasonable belief that riding the elevator would be hazardous. The 

complainants were not required to be presented with "first-hand information 

indicating that the elevator ••• would more than likely fall to the 

bottom of the shaft if they were to ride on it." 5 FMSHRC at 2212. 

We recognize that management attempted to address complainants' 

fears. Hager talked to the complainants in his office. Hager initially 

impressed that the inspectors did not issue any 

no cause for the elevator stopping was discovered. 

4/ The judge was 

citations and that 

5 FMSHRC at 2209. 

confirm an actual 

ness of a miner's 

The fact that a subsequent investigation fails to 

violative condition does not vitiate the reasonablework refusal. Robinette, 3 FMSHRC at 411-12. 

1073 
told the complainants-that they could enter the mine via the slope, 

which offer was later retracted. He also offered to have the elevator 

operated manually. The Houghton mechanic was called. Jackie Smith, the 

maintenance foreman, also talked to Hogan and Ventura after their initial 

refusal. The judge found that Smith told the complainants that he did 

not find anything wrong with the elevator and that it was safe. 

A continuing work refusal in the face of corrective measures taken 

by management at some point loses the protection of the Mine Act. Bush 

v. Union Carbide Corp., 5 FMSHRC 993, (June 1983). However, we conclude 

that Hager and Smith did not convey sufficient information to the complainants to allay their reasonable fears. They were told by Hager and 

Smith that the elevator was safe, but they were not told what caused the 

malfunctions or why it was now considered safe. They were told that the 

mechanic from the elevator company was coming to inspect the elevator, 

but when they were told the results of his inspection they were also 

simultaneously informed that they were being suspended. They were told 

that they could enter the mine by going down the slope, but this offer 

was withdrawn. They were told that they could enter the mine while the 

elevator was operated manually, but manual operation of the elevator 

would not assure its safety if something other than the elevator's 

electric controls was defective. Finally, although Hogan learned, 

following his refusal to ride the elevator, that test runs of the 

elevator had been made with an empty cage, he reasonably discounted 

these tests because of the lack of weight on the elevator. 

Not ·only must a miner have a good faith, reasonable belief in the 

hazard that is the basis for his work refusal, "where reasonably possible, 

a miner refusing work should ordinarily communicate ••• to some representative of the operator his belief in the safety or health hazard at 

issue." Dunmire and Estle, 4 FMSHRC at 133. See also Simpson, KENT 

85-155-D, slip op. at 5-7, 8 FMSHRC (July 8-:-I'986). The judge found 

that the only basis for the complainant's work refusal was the "drop 

incident" and that Hogan and Ventura "did not communicate the asserted 

elevator 'dropping' to anyone at anytime prior to their work refusal." 

5 FMSHRC 2213. Like the judge's analysis of the reasonableness of the 

complainants' refusal, we find his analysis of the communication requirement too restrictive. 

In Dunmire and Estle, 4 FMSHRC at 134, the Commission stated, 

"[O]ur purpose is promoting safety, and we will evaluate communication 

issues in a common sense, not legislative manner. Simple, brief communication will suffice •••• " In articulating a safety complaint, a miner 

need not make a detailed statement as to the nature of the hazard, as 

long as the operator has notice of the hazard that the miner believes 

exists. The goal is to adequately apprise the operator so that it may 

address the perceived hazard. Simpson, KENT 85-155-D, slip op. at 6, 8 

FMSHRC (July 8, 1986). Thus, the communication must be evaluated 

not only in terms of the specific words used, but also in terms of the 

circumstances within which the words are used and the results, if any, 

that flow from the communication. 

1074 
The record indicates that Hogan and Ventura individually advised 

Denny Smith and Alan Hager that they did not believe the elevator was 

safe. Smith and Hager confirmed that the complainants expressed concern 

to them about the safety of the elevator. It is clear that the complainants' questions and statements stimulated Emerald to act. Emerald 

understood the substance of the complainants' concerns and moved to 

address the hazard the complainants perceived. Hager summoned a 

mechanic from Houghton to inspect the elevator. He also called the 

state and federal mine inspectors who reviewed the elevator's operation. 

Consequently, in these circumstances, we conclude that the complainants' 

statements and questions regarding the safety of the elevator were 

sufficient to satisfy the obligation of a miner who refuses work to 

articulate the reason for his work refusal. 

Thus, we hold that the complainants had a good faith, reasonable 

belief that riding the elevator was unsafe, and that they adequately 

communicated their safety concerns to mine management. We further 

conclude that the complainants' initial refusal to ride the elevator was 

protected by section 105(c) of the Mine Act, and that before their fears 

could be sufficiently allayed by management they were suspended for 

their protected activity. The judge's contrary conclusions are not 

supported by substantial evidence and are contrary to law. 

There is no dispute that the five-day suspension of Hogan and 

Ventura was motivated by the complainants' protected activity. 

Accordingly, we reverse the judge's finding that no violation of section 

105(c) occurred and we remand for determination of appropriate 

remedies. l_/ 

5/ Chairman Ford and Commissioner Backley did not participate in the 

consideration or decision of the merits of this case. 

1075 
Distribution 

Linda Leasure, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

R. Henry Moore, Esq. 

Rose, Schmidt, Chapman, Duff & Hasley 

900 Oliver Bldg. 

Pittsburgh, Pennsylvania 15222 

Mary Lu Jordan, Esq. 

UMWA 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

1076 

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 

JUL 1 1986 

CARL HOLCOMB, DISCRIMINATION PROCEEDING 

complainant 

v. 

COLONY BAY COAL COMPANY, 

Respondent 

Docket No. WEVA 86-135-D 

DECISION 

Appearances: Carl Holcomb, pro se1 Thomas L. Woolwine, Coal 

Labor Inc., for Respondent. 

Before: Judge Broderick 

STATEMENT OF THE CASE 

Complainant contends that he was discharged from his job 

with Respondent because of safety complaints. Respondent's 

position is that complainant was fired for insubordination. 

Pursuant to notice, the case was heard in Beckley, West Virginia 

on May 19, 1986. Carl Holcomb testified on his own behalf, and 

called as witnesses Richard Wells, Gary Walker, Jr., Edward 

Kincaid, and Joe C. Rotenberry: James Steven Mink, Robert T. 

Bolen, and James R. Caldwell testified on behalf of Respondent. 

Both parties have submitted posthearing written arguments. I 

have carefully considered the entire record and the contentions 

of the parties in making this decision. 

FINDINGS OF FACT 

From July 19, 1981 until November 8, 1985, Complainant 

worked as a bulldozer operator for Respondent's coal company. He 

moved overburden that had been dislodged by drilling and blasting 

to uncover the coal seams in a strip mine. Respondent produced 

coal which entered into interstate commerce, and its operation 

affected interstate commerce. Complainant had previously worked 

in the coal mining industry for more than ten years as a truck 

driver, bulldozer operator, grader operator and loader operator. 

Complainant is a skilled bulldozer operator. In the opinion of 

Respondent's superintendent, "he's one of the best dozer men I've 

ever seen." (Tr. 166) 

1077 
Complainant contends that as he continued on the job, 

management put more and more pressure on him, forcing him to work 

while others were "just playing and carrying on." (Tr. 11) 

Complainant alleges that he was always required to work in hard 

rock and in dusty places and that he was given the dangerous 

assignment on the top of the highwalls. He also stated that he 

was unfairly denied sick leave rights and "could not get a 

grievance filed with the Committeeman." (Tr. 12) 

Complainant had been placed on probation in 1984 after 

apparently threatening the General Superintendent. He was 

suspended with intent to discharge following the incident, but 

the discipline was reduced to one year probation during the 

grievance procedure. · 

In mid-1984, Complainant's dozer was used in an attempt to 

clear an area pf burning coal in a 5-block seam. The heat 

apparently burned the seals around the air conditioning unit in 

the cab. This resulted in more dust coming in the cab through 

the air conditioner, causing Complainant bronchial problems. 

Complainant asked his foreman and superintendent ,for a transfer 

to less dusty conditions. When the transfer was refused, 

Complainant filed a grievance but the company would not meet with hi~ on the grievance. However, on May 31, 1986, Respondent 

conducted a dust sample survey of the cab of his dozer. The 

sample was taken to the MSHA Field Office where it showed 1.0 

milligrams of respirable dust. On June 3, 1985, Complainant 

filed a request under section 103(g) of the Act for an MSHA 

inspection of the environment in his bulldozer. An MSHA 

inspector came to the mine and examined the bulldozer. He found 

two holes in the bottom of the blower compartment which were not 

sealed. The holes and dust vents were sealed and on June 6, 1985 

a dust sample was collected which showed 0.8 milligrams of dust 

per cubic meter of air (0.8 mg/m3). Complainant continued to 

complain of dust in his cab, and further work was.done on the 

seals in June and July 1985. Complainant filed a second 103(g) 

complaint on October 9, 1985 alleging excessive dust in his cab. 

An outside contractor was called in to clean and reseal the unit 

and an MSHA inspector inspected the unit on October 11, 15 and 

16, 1985. Respirable dust samples were taken on October 11 and 

October 15 which showed 1.2 mg/m3 and 0.8 mg/m3 respectively. 

Complainant states that the dust in his cab resulted in 

bronchial problems and he was treated for respiratory problems at 

the Southern West Virginia Clinic beginning in May 1985 by 

Dr. Norma J. Mullins. Dr. Mullins made a diagonsis of asthma 

exacerbated to some degree by exposure to dust. Complainant was 

treated with medication and an inhaler, and was referred to 

Dr. D. L. Rasmussen on November 14, 1985: X-rays showed no 

1078 
evidence of coalworkers pneunoconiosis; pulmonary function 

studies showed no lung impairment. 

On November 7, 1985, complainant, who normally worked from 

7:00 a.m. to 5:00 p.m. asked his foreman Tom Bolen to bring his 

paycheck, because he intended to leave at about 3:00. Bolen went 

for the check, but did not bring it to Complainant who kept 

working until about 4:00. At that time Complainant drove 'to his 

own vehicle and took off his mining gear as the foreman drove up. 

complainant told him he could take the check and stick it. 

complainant then drove home. Bolen went to the mine office and 

reported the incident to the Superintendent and the Union 

Management Communications Committee. Bolen requested a meeting 

concerning the incident and one was scheduled' for the next 

morning, November 8. 

Bolen appxoached Complainant after he began work on 

November 8, and asked him to come to the office for a meeting. 

Complainant refused. Bolen returned to the 9ff ice and informed 

~he superintendent James Caldwell. Caldwell returned to the mine 

s1t.-e with two union committeemen who urged Complainant to come to 

the meeting. He again refused. Caldwell called the Union 

Distriat Representative, at whose direction the committeemen 

returnea to Complainant, but he again refused to come to the 

office f'or a meeting. Complainant was then given a written 

suspension from work subject to discharge. The action was stated 

to be "based on gross insubordination displayed toward management 

and for refusing to follow specific directives of management." 

Complainant filed a grievance which was denied. He took the 

matter to arbitration and the arbitration upheld the discharge in 

an award issued December 27, 1985. 

ISSUES 

1) Did Complainant 1 s discharge on November 2, 1985 result 

from activities protected under the Act? 

2) If it did, what remedies is Complainant entitled to? 

CONCLUSIONS OF LAW 

I. JURISDICTION 

Complainant was a miner~ Respondent was a mine operator. 

Both were subject to the Act, and I have jurisdiction over the 

parties and subject matter of this proceeding. 

II. PROTECTED ACTIVITY 

1079 
To establish a prima facie case of discrimination, 

Complainant must show that he was engaged in activity protected 

under the Act, and that the adverse action was motivated in any 

part by that activity. Houser v. Northwestern Resources Company, 

8 FMSHRC (June 20, 1986), and cases cited therein. 

The evidence before me clearly establishes that Complainant 

complained to his supervisors on many occasions of excessive dust 

in his cab. These complaints were related to what Complainant 

believed was an unhealthy working environment. They constituted 

activity protected under the Act. The requests complainant made 

under section 103(g) of the Act for MSHA investigations of his 

working environment were also protected activity. Complainant 

was experiencing excessive dust in his cab·, even though the dust 

samples were within allowable limits. Respondent admitted that 

Complainant's cab was dustier than the other bulldozers at the 

min~ site. However, th~ evidence establishes that Respondent was 

making reasonable efforts to take care of the problem, including 

calling in an outside contractor. There is no probative evidence 

that Respondent was deliberately causing excessive dust in 

Complainant's work environment, nor was any credible motive for 

such a practice suggested: 

The incident involving the alleged threat made by 

Complainant to the Superintendent was not protected activity, and 

this is so regardless of fault, since it did not involve any 

employment health or safety matter. Nor is the incident 

involving Complainant's check in itself activity protected under 

the Mine Safety Act. 

ADVERSE ACTION 

Complainant was discharged. Is there any evidence that the 

discharge was motivated in any part by the protected activity 

described above?. Complainant testified that on October 11, 1985 

after an MSHA inspection, as Complainant was driving home, he met 

Superintendent Caldwell driving up the road about 50 to 60 miles 

per hour and "he run me clean out of the road when he came 

through." (Tr. 17) On the succeeding days, Caldwell began 

checking Complainant's work area frequently, which he had never 

done before. Complainant was off work from October 25 to 

October 29, 1985 and from the latter date until he was discharged 

the company "didn't let up. They kept pushing me to do more. 

The more work I done, the more they wanted me to do.n (Tr. 21) 

Complainant believes that these facts show that Respondent 

was retaliating against him for his complaints to management and 

to MSHA about his dusty environment. However, there is no 

evidence of such a retaliatory intent. I have carefully 

considered this evidence, and Complainant's other evidence, 

1080 
written and oral, and conclude that it does not establish that 

his discharge was motivated in any part by his protected activity. 

Therefore, he has failed to establish a prima facie case of 

discrimination. 

Even if a prima facie case were established, the evidence 

clearly establishes that Respondent would have taken the adverse 

action for unprotected activity alone, viz, for Complainant's 

verbal abuse of his foreman, and his repeated refusal to attend a 

company-union meeting to discuss the matter. See Houser v. 

Northwestern Resources Company, supra~ Haro v. Magma Copper Co., 

4 FMSHRC 1935 (1982). 

For the above reasons, I conclude that the evidence does not 

establish that Complainant was discharged for activity protected 

under the Mine Act. No violation of section 105(c) of the Act 

has been shown. 

ORDER 

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

the Complaint of Discrimination and this proceeding are 

DISMISSED. 

Distribution: 

Jt·Vl·Lf·:{ ,./f1~''t:J le 1'·l ~l[/ James A. Broderick 

Administratiave Law Judge 

Carl Holcomb, P.O. Box 103, Daniels, WV 25832 (Certified Mail) 

Thomas L. Woolwine, President, Coal Labor, Inc., Box 1389, 

Princeton, WV 24740 (Certified Mail) 

J. R. Caldwell, General Superintendent, Colony Bay Coal Company, 

P.O. Box 1085, Beckley, WV 25801 (Certified Mail) 

slk 

1081 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COLUMBIA ASPHALT & GRAVEL, 

Respondent 

July 2, 1986 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-51-M 

A. C. No. 45-00764-05508 

Parker Pit 

ORDER DISAPPROVING SETTLEMENT 

ORDER 'l'O SUBMI'I' INFORMA·IION 

Before: Judge Merlin 

. I am unable to approve the Motion To Approve Settlement 

filed by the Solicitor on June 30, 1986, because it fails to 

provide necessary information and contains many inaccuracies. 

For Citation No. 2667782 the Solicitor recommends a 

reduction from $136 to $70, but gives no reasons. 

For Citation No. 2667784 he recommends a nominal reduction 

from $136 to $130, but here again, gives no reasons. 

For Citation No. 2667785 a very substantial reduction from 

$136 to $45 is recommended and in support thereof the Solicitor 

states that the wiring referred to in the citation was in excellent condition. However, the citation itself states that the 

electric feed cable to the water pump was deteriorating. Can a 

deteriorating wire be in excellent condition? 

In seeking a reduction from $136 to $45 for Citation No. 

26677786 the Solicitor refers to the excellent condition of the 

wiring (paragraph 3(b)), but as his motion subsequently 

recognizes, that violation dealt with guarding (paragraph 3(d)). 

The Solicitor advises that the operator did not receive any 

assessed violations 6uring the prior 24 months. However, the 

printout attached to his penalty petition shows 19 violations. 

The Solicitor must explain the foregoing discrepancies 

before any settlement, much less one like this involving such 

substantial redactions, is approved. 

1082 
This is a simple and routine case. I have difficulty in 

understanding how the Solicitor could submit such a faulty 

motion. Such a submission results in extra and unnecessary work 

for both this Commission and the Solicitor. And of course, it 

does not further the purposes of the Act. 

Finally, I note that the Solicitor filed a Notice of Settlement on February 20, 1986, but did not file his settlement motion 

until more than four months later. This case has been pending 

far too long. 

Accordingly, it is ORDERED that subject settlement motion be 

Disapproved and that the Solicitor submit the necessary 

information on or before August 1, 1986. 

Faul Merlin 

Chief Administrative Law Judge 

Distribution: 

Daniel w. Teehan, Esq., Regional Solicitor, U. s. Department of 

Labor, 8003 Federal Office Building, Seattle, WA 98174 

(Certified Mail) 

Ernest Scott, Jr., Esq., Office of the Solicitor, U. S. Department of Labor, 8003 Federal Office Building, Seattle, WA 98174 

(Certified Mail) 

Thomas Mascolino, Esq., Trial Litigation, Office of the 

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

Room 414, Arlington, VA 22203 (Certified Mail) 

Mr. Philip Sali, Columbia Asphalt & Gravel, Inc., P. O. Box 134, 

Parker, WA 98939 (Certified Mail) 

/gl 

1083 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LJ\W JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

JUL 3 1986 

JOHN A. GILBERT, 

Complainant 

v. 

SANDY FORK MINING COMPANY, 

INCORPORATED, 

Respondent 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHAt 

ON BEHALF OF 

JOHN A. GILBERT, 

Complainant 

v. 

SANDY FORK MINING COMPANY, 

INCORPORATED, 

Respondent 

. . 

. . 

. . 

. • 

. 

• 

. . 

: 

: 

: 

: 

. . 

. . 

. 

• 

. . 

: 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-49-D 

MSHA Case No. BARB CD 85-61 

DISCRIMINATION PROCEEDING 

Docket No. KENT 86-76-D 

MSHA Case No. BARD CD 85-61 

No. 12 Mine 

DECISION 

Appearances: Tony Oppegard, Esq·., and Stephen A. Sanders, 

Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., Hazard, Kentucky, for John A. 

Gilbert; 

Carole M. Fernandez, Esq., Office of the 

Solicitor, U.S. Department of Labor, Nashville, 

Tennessee, for the Secretary of Labor; Willia~ A. Hayes, Esq., Middlesboro, Kentucky, 

for Respondent. 

Before: Judge Melick 

Background 

On August 8, 1985, John A. Gilbert filed a complaint 

with the·Department of Labor, Mine Safety and Health Administration CMSHA), alleging that on August 7, 1985, he had been 

discharged by Sandy Fork Mining Company, Incorporated (Sandy 

Fork) in violation of section 105(c)(l) of the Federal Mine 

1084 
Safety and Health Act of 1977, 30 U.S.C. 801 et~, the 

"Act."l/ It is not disputed that the Secretary of Labor 

began his investigation pursuant to section 105(c)(2) upon 

receipt of that complaint.2/ Subsequently, after the expiration of the 90-day notification period following the receipt 

of that complaint provided under section 105(c)(3) of the Act 

the Secretary advised Mr. Gilbert by letter dated November 15, 

1985, that the investigation of his complaint had not been 

1; Section 105(c){l) reads as follows: - No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or· applicant for employment in any coal or other mine subject to this 

Act because such miner, representative of miners or applicant 

for employment, has filed or made a complaint under or 

related to this Act, including a complaint notifying the 

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

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

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

such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 101 

or because such representative of miners or applicant for 

employment has instituted or caused to be instituted any 

proceedings under or related to this Act or has testified or 

is about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miners or applicant 

for employment on behalf of himself or others of any statutory right afforded by this Act. 

2/ Section 105(c)(2) reads in part as follows: - "Any miner or applicant for employment or representa- . tive of miners who believes that he has been discharged, 

interfered with, or otherwise discriminated against by any 

person in violation of this subsection may, within 60 days 

after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such 

complaint, the Secretary shall forward a copy of the complaint to the respondent and shall cause such investigation 

to be made as he deems appropriate. Such investigation shall 

commence within 15 days of the Secretary's receipt of the 

complaint •••• " 

1085 
completed and that it had not yet been determined whether or 

not a violation of section 105(c} had occurred.~/ 

Thereafter, on December 23, 1985, Mr. Gilbert filed 

his own complaint with this Commission pursuant to section 

105(c}(3) and Commission Rule 40(b), 29 C.F.R. § 2700.40Cb).4/ 

Subsequently on February 24, 1986, the Secretary filed his own 

complaint with this Commission on behalf of Mr. Gilbert against 

Sandy Fork Mining Inc. under section 105(c)(2} and proposed a 

civil penalty for the alleged violation. On April 3, 1986, the 

Secretary filed a motion to dismiss maintaining that Mr. 

Gilbert's complaint filed under section 105Cc)(3} (Docket No. 

KENT 86-49-D) should be dismissed as without a jurisdictional 

basis in light of the complaint filed by the Secretary on 

behalf of Mr. Gilbert (Docket No. KENT 86-76-D). 

Motion to Dismiss 

In his motion to dismiss the Secretary argues that he 

need not comply with the requirements of the Act that he make 

a determination as to whether or not discrimination has 

occurred within 90 days of his receipt of a complaint. He 

further argues that should the aggri~ved individual file his 

own complaint under section 105(c)(3) after the statutory 

90~day period, that case will become null and void as lacking 

a jurisdictional basis if the Secretary later decides to file 

a complaint of his own under section 105(c)(2). 

Indeed the Act itself does not provide express guidance 

as to the procedures to be followed by an individual complainant under section lOSCc} in the event the Secretary does 

not make his decision (as to whether a violation of the Act 

3/ Se~tion 105Cc}(3) of the Act provides in part as follows: 

- "Within 90 days of the receipt of a complaint filed 

under paragraph (2),· the Secretary shall notify, in writing, 

the miner, applicant for employment, or representative of 

miners of his determination whether a violation has occurred. 

If the Secretary, upon investigation, determines that the 

provisions of this subsection have not been violated, the 

complainant shall have the right, within 30 days of notice of 

the Secretary's determination, to file an action in his own 

behalf before the Commission, charging discrimination or 

interference in violation of paragraph (1). 

4; commis~ion Rule 40Cb) reads as follows: 

- "A complaint of discharge, discrimination or interference under section 105(c} of the Act, may be filed by the 

complaining miner, representative of miners, or applicant for 

employment if the Secretary determines that no violation has 

occurred, or if the Secretary fails to make a determination 

within 90 days after the miner complained to the Secretary." 

1086 
has occurred) within the 90-day time frame set forth under 

section 105(c)(3). 

It is clear however that Congress intended that the 

miner have the right to file a complaint on his own upon the 

failure of the Secretary to act within the prescribed 90-day 

period. Indeed in recognition of this Congressional intent 

this Commission promulgated its Rule 40(b) under which the 

aggrieved miner is specifically provided the right to file 

his own complaint under these circumstances. Secretary on 

behalf of Hale v. 4-A Coal Company, Inc., 8 FMSHRC , 

Docket No. VA 85-29-D, slip opinion p. 3 n. 3 (June 25, 1986) •. 

This admi.nistrative interpretation is entitled to great 

weight. Chevron, U.S.A., Inc. v. National Resources Defense 

council, 104 S.Ct. 2778 (1984); Manufacturers Ass'n v. 

National Resources Def~nse Council, 105 s. Ct. 1102 (1985); 

Federal Election Commission v. Democratic Senatorial Campaign 

committee, 102 s.ct. 38 (1981) and Zenith Radio corp. v. 

United States, 98 S.Ct. 2441 (1978). 

Such a construction is, moreover, consistent with the 

liberal construction to be accorded safety legislation. 

Whirlpool Corp. v. Marshall, 100 s. Ct. 883 (1980}. More 

specifically this construction is essential to accomplish the 

objective of the statute and to avoid unjust and oppressive 

consequences to aggrieved_ miners where the Secretary fails to 

act within the prescribed time. Caminetti v. United States, 

37 S. Ct. 192 Ci917). Administrative notice may be taken of 

a recent case in which the Secretary delayed almost 4 years 

before deciding not to represent a miner on his lOSCc) complaint. (Dan Thompson v. Cypress Thompson Creek, MSHA Case 

No. 82-27). The miner is seriously prejudiced by such delay 

as witnesses move, memories fade and documents are lost or 

destroyed, and may suffer unwarranted economic hardship. 

Such a result is clearly contrary to the objectives of the 

Act. 

Under the circumstances it is clear that this judge has 

jurisdiction to entertain Mr. Gilbert's case (under section 

105(c){3) and Commission Rule 40(b)) as well as the Secretary's case'brought on behalf of Mr. Gilbert under section 

105(c)(2) of the Act. The Secretary's Motion to Dismiss is 

denied. 

The Merits 

In order to establish a prima facie violation of section 105(c)(l) of the Act, it must be proven by a preponderance of the evidence that Mr. Gilbert engaged in an 

activity protected by that section, that adverse action was 

taken against him and that this adverse action was motivated 

1087 
in any part by that protected activity. Secretary on behalf 

of David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 

(1980), rev'd on other grounds sub nom. Consolidation Coal 

Company v. Marshall, 663 F.2d 1211 (3d Cir. 1981). See also 

Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983) and NLRB v. 

Transportation Management Corp., 462 U.S. 393 Cl98~ 

affirming burden of proof allocations similar to those in the 

Pasula case. 

In this case Mr. Gilbert maintains that he was unlawfully discharged on August 7, 1985, because of his refusal to 

operate a continuous miner on August 6, 1985, under conditions which he claims were unsafe. More specifically he 

argues that he refused to operate the continuous miner 

because of hazardous roof conditions at the face of the No. 3 

entry in Sandy Fork's No. 12 mine, and that Sandy Fork subsequently discharged him .,without addressing his safety concerns. 

A miner's work refusal is protected under section lOSCc) of 

the Act if the refusal is based on the miner's good faith and 

reasonable belief in a hazardous condition. Miller v. FMSHRC, 

687 F.2d 194 {7th Cir. 198); Secretary on behalf of Robinette 

v. United Castle Coal Co., 3 FMSHRC 803 (1981); and Secretary 

v. Metric Constructors Inc., 6 FMSHRC 226 {1984) aff'd sub nom. 

Brock v. Metric Constructors Inc., 766 F.2d 469 Cllth Cir. 1985). 

At the time of his discharge Mr. Gilbert had only 3-1/2 

years experience as a coal miner and all of that was in the 

employ of Sandy Fork. He had been a continuous miner 

operator for 2-1/2 of those 3-1/2 years and was working in 

that capacity on August 6, 1985. As Gilbert and his crew 

were entering the mine on that date the miner operator on the 

previous shift warned them that the roof was "bad and 

breaking up. 11 Gilbert and the other miner operator on his 

shift~ Carmine Caldwell, then checked the section and the 

faces. According to Gilbert they checked the five headings 

and the No. 4 kick~ack. 

Gilbert recalled that in the No. 3 entry there was a 

hill seam on the left side of the rib and a crack in the top 

having dirt or yellow mud in it. On the right side of the 

entry there was a fresh stress crack that had dropped 1/2 

inch to 1 inch. According to Gilbert the No. 4 heading had 

previously been abandoned because of a hill seam that had 

dropped from 4 to 5 inches. Accordingly coal was being mined 

in the No. 4 entry by way of a kickback (See Appendix A & B 

attached). Gilbert recalled that in the crosscut approaching 

the No. 4 kickback there was also a hill seam 1/2 inch to 

1-1/2 inches wide with mud in it. 

Because of the top conditions Gilbert,and Caldwell 

received permission from section foreman Willie Sizemore to 

"run together." Thus one operator could keep watch for the 

other rather than simultaneously operating both machines as 

1088 
was customary. According to Gilbert, however, after 

examining the face areas he told his partner that he was 

going to refuse to cut coal because of dangerous conditions. 

Gilbert then left his job assignment to find his section 

foreman (Sizemore) and located him about 4 to 5 breaks from 

the face. Gilbert says that he told Sizemore he was afraid 

of the top and asked him what he would do about it. Sizemore 

responded that he would have crib blocks placed under the 

noted roof areas and would stand by and observe the roof as 

they worked. Gilbert was apparently dissatisfied and told 

Sizemore that they needed longer bolts or collars. However 

before Sizemore could take any remedial action Gilbert walked 

out of the mine. 

Outside the mine Gilbert met Ed Spurlock·the general 

mine foreman. Gilbert told Spurlock that he was afraid of 

the top and asked SpurlDck how he intended to support the 

roof. Spurlock told Gilbert to check back the next day. 

Gilbert went home and returned the next day around 9:00 a.m. 

He later talked to Sandy Fork superintendent Willy Begley 

after Begley had been underground to inspect the area of 

Gilbert's complaint. Gilbert says that he told Begley that 

they needed collars and longer bolts for roof support in the 

area and asked Begley how they were going to support it. 

According to Gilbert, Begley responded that "they were 

supporting it the best way they could." Gilbert claims that 

he then requested to work at another mine or away from the 

faces at the No. 12 mine but Begley responded that the only 

job available was as miner operator at the No. 12 mine. 

Gilbert then handed over his safety equipment and left the 

mine. 

According to Superintendent Begley, Gilbert visited him 

at his home on the evening of August 6. Gilbert said he was 

afraid of the top and wanted to know what Begley was going to 

do about getting him another job. Begley told Gilbert to 

meet him at the mine the next morning. Primarily because of 

Gilbert's complaint Begley entered the mine the next morning 

and examined all the faces. At a later meeting Gilbert again 

told Begley that he was afraid of, and would not work at, the 

No. 12 mine but would accept a transfer to another mine. 

Begley told Gilbert that the only work then available was at 

the No. 12 mine. According to the undisputed testimony of 

Begley, Gilbert could have even then returned to work at the 

No. 12 Mine but rather, walked off the job. 

According to the undisputed testimony of section foreman Willie Sizemore, Gilbert and his partner were assigned to 

begin cutting the No. 4 kickback at the beginning of his 

shift on August 6, and there was 4 to 5 hours of work to be 

done in that entry "to catch the right side 'up." It is undisputed that Gilbert was to begin cutting with the continuous 

miner in the No. A kickback where the larger "X" appears on 

1089 
Exhibit R-8 (Appendix A). It is further undisputed that 

Sizemore told Gilbert to complete the No. 4 kickback before 

moving to the No. 3 entry where the hill seam was. However 

before they even began cutting in the No. 4 kickback Sizemore 

met Gilbert coming out. Gilbert told Sizemore that he was 

afraid of the top in the No. 3 entry. Sizemore then told 

Gilbert that he was going to have cribs built on both sides 

of the No. 3 entry before they began cutting in that entry. 

Gilbert responded by saying that he wanted to talk to Superintendent Begley and Mr. Phipps and proceeded to leave the 

mine. 

According to Sizemore, Gilbert never did state what he 

wanted done to make the roof safe and did not ask for alternate work.5/ After Gilbert left the mine Sizemore spent the 

remainder of the shift building cribs in the No. 3 entry. 

Sizemore opined that Gi·lbert knew he would not force him to 

work under what Gilbert believed was unsafe roof because on 

prior occasions, when miners were concerned about roof conditions, Sizemore himself had worked the mining equipment. 

Darrell Huff, a graduate mining engineer and Sandy 

Fork's chief engineer and acting safety director, examined 

the No. 4 kickback on the morning of August 7. He noted on 

Exhibit R-9 (Appendix B) the location of the hill seam in the 

crosscut approaching the No. 4 kickback. This testimony is 

consistent with the location of the hill seam in the crosscut 

described by Gilbert himself .6/ 

Within this framework of evidence I find that Gilbert 

did not at the time of his work refusal entertain either a 

reasonable or a good faith belief that to continue working in 

5/ In light of the undisputed evidence that Gilbert had some 

4 to 5 hours of work then remaining in the No. 4 entry, an 

area he did not challenge as being unsafe, I find Sizemore's 

testimony (that Gilbert neither requested alternate work nor 

stated what additional roof control he desired) to be the · more credible. 

6/ Indeed only one witness, MSHA Inspector Gary Harris, claimed 

that there was a hill seam existing in the No. 4 kickback 

where Gilbert was to begin working at the beginning of his 

shift on.August 6. This testimony conflicts with that of 

both Gilbert and Huff. Inspector Harris testified that hill 

seams were required under the roof control plan to be 

strapped. Since there was no strapping in the No. 4 kickback 

Harris would undoubtedly have cited Sandy Fork for a 

violation of its roof control plan if indeed a hill seam 

existed in the No. 4 kickback. For these reasons I believe 

Harris was in error about the existence of an exposed hill 

seam in the No. 4 kickback. 

1090 
the No. 4 kickback, as he was expected to do for some 4 to 5 

hours at the commencement of his shift on August 6, 1985, 

would have been hazardous. It is not disputed that Gilbert 

was indeed assigned to cut coal in the No. 4 kickback for 

some 4 to 5 hours before moving on to the No. 3 entry which 

he claimed was then hazardous. Gilbert cites no specific 

hazard wi~hin the No. 4 kickback and indeed there is no credible evidence that any unusual hazard did in fact exist in 

the No. 4 kickback. Thus even assuming, arguendo, that a 

hazardous condition then existed in the No. 3 entry, 

Gilbert's refusal to work in the No. 4 kickback was not 

reasonable. 

Moreover since there were still 4 to 5 hours of work to 

be done in the not unsafe No. 4 kickback Gilbert's refusal to 

perform work in that location demonstrated a lack of good 

faith. It was clearly premature for Gilbert to have excer~ 

cised any work refusal for alleged hazards in the No. 3 entry 

some 4 to 5 hours before he would be expected to work in that 

entry and before any of the supplemental roof support 

promised by his section foreman had been erected. Indeed the 

uncontradicted evidence shows that section foreman Sizemore 

had assured Gilbert that before any work would be done in the 

No. 3 entry (the only entry about which Gilbert expressed any 

fears to Sizemore) he would have additional crib blocks set 

up for roof support. It was incumbent on Gilbert to at least 

wait and see what additional support would be provided before 

exercising a work refusal. Accordingly the work refusal was 

neither reasonable nor made in good faith. 

I also observe that Gilbert had not been discharged and 

was given the opportunity to return to work on August 7, the 

day after he refused to work and walked out of the mine. At 

that time there had already been a roof fall in the No. 3 

entry and conditions had significantly changed. Indeed it 

appears that when Gilbert was told on August 7, that he could 

return to his job in the No. 12 mine as a continuous miner 

operator he declined and insisted on being transfered to a 

different mine. At this time he had been given no specific 

work assignment and could not have known where in the No. 12 

mine he would be working. Thus again he could not at this 

time have entertained a reasonable or a good faith belief 

that he would have been required to work in a hazardous 

condition. 21 

In the context of whether Gilbert acted in good faith 

it is also significant that he had been, for some time before 

his work refusal, attempting to transfer to the day shift. 

7; This evidence also supports Respondent's contention that 

Gilbert was never actually discharged and therefore suffered 

no adverse action. 

1091 
Indeed only a few weeks before he walked of the job Gilbert 

told coworker Harvey Gibbs that he wanted to work the day 

shift and told Gibbs that, if necessary, he would quit to get 

on the day shift. In addition, scoop operator Lonnie Cecii 

said that Gilbert told him on several occasions that he might 

have to quit to get on the day shift. Gilbert had also requested only the day before he walked off the job to transfer 

to the day shift. Thus it appears that Gilbert's refusal to 

work and his insistence on transfering to another mine may 

actually have been motivated by a pressing desire to work on 

a different shift. 

In any event since I have found that Mr. Gilbert did 

not entertain either a reasonable or a good faith belief in 

any hazardous condition warranting a work refusal in the No. 

4 kickback where he was expected to be working for 4 to 5 

hours I do not find that his work refusal was protected under 

the Act. Moreover I find that Gilbert was never in fact 

discharged and suffered no adverse action by the operator. 

He gave up his job voluntarily on August 7, 1985, at a time 

when he was not faced with any specific esignated hazard. 

See footnote 7, supra. Under the circums ances Mr. Gilbert's 

complaint of unlawful discharge must be d ied and these 

cases dismissed. 

Law Judge 

Distribution: 

Carole M. Fernandez, Esq., Office of the Solicitor, U.S. 

Department of Labor; 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified 

Mail) 

Stephen A. Sanders, Appalachian Research & Defense Fund of 

Kentucky, Inc., 205 Front Street, Prestonsburg, KY 41653 

(Certified Mail) 

William A. Hayes, Esq., P.O. Box 817, Middlesboro, KY 40965 

(Certified Mail) 

rbg 

1092 
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I • 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUl 8 1986 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 86-28-D 

ON BEHALF OF FRANK WILLIAMS 

AND BUDDY R. MAYNARD, PIKE CO 85-14 

Complainants 

No. 1 Mine 

v. 

WEST FORK COAL COMPANY, A 

Corporation, 

Respondent 

DECISION 

Before: Judge Fauver 

This proceeding was brought by the Secretary in behalf of 

Frank Williams and Buddy R. Maynard for reinstatement and 

other relief under section 105(c) of the Federal Mine Safety 

and Health Review Act, 30 u.s.c. § 801, et seq., based upon 

an alleged discriminatory discharge, and-rora-civil penalty under 

section llO(i) of the Act for such violation. 

Respondent ceased 1 operations in October, 1985, and 

filed a petition for bankruptcy on May 19, 1986, in the 

United States Bankruptcy Court, Western District of Virginia. 

The above parties and the Trustee in Bankruptcy have moved 

to settle this case by an order for certa~n limited relief 

and withdrawal of the prayer for civil penalty, on the grounds 

of inactivity and anticipated dissolution of Respondent and 

the futility of the imposition of a civil penalty. It is 

expected that a claim will filed in the bankruptcy proceeding 

based upon the order in this case. 

I have reviewed the representations and documentation 

submitted, and conclude that the proposed settlement is 

consistent with the purposes of the Act. Accordingly, the 

motion to approve the settlement will be granted. 

1095 
CONCLUSIONS OF LAW 

1. The Commission has jurisdiction in this proceeding. 

2. Respondent violated section lOS(c) of the Act by 

discriminatorily discharging Frank Williams and Buddy R. 

Maynade from its No~ l Mine on May 31, 1985. 

3. The Secretary is entitled to an order for permanent 

reinstatement of Frank Williams and Buddy R. Maynard in 

Respondent's employ with full restoration of their employment 

status and rights, including seniority and back pay, retroactive to 

May 31, 1985, with interest (computed in accordance with the 

interest formula reported in the Commission's decisions) 

from that date until payment is made. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall off er 

permanent reinstatement to Frank Williams and Buddy R. Maynard, 

within 30 days of this Decision, with full restoration of their 

employment status, including retroactive seniority and backpay. 

4. Based upon the approval of the above settlement, the 

hearing scheduled for July 8, 1986, is CANCELLED and these 

proceedings are CONCLUDED. 

~~VQll- William Fauver 

Administrative Law Judge 

Distribution: 

Frederick W. Moncrief, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Charlie R. Jessee, Esq., 180 East Main Street, Abingdon, VA 24210 

(Certified Mail) 

Robert E. Wick, Jr., Trustee, P.O. Drawer 8, Bristol, VA 24203 

(Certified Mail) 

West Fork Coal Company, Rt., 1, Box 207A, Honaker, KY 24260 

(Certified Mail) 

Mr. Dennie Coleman, President, West Fork Coal Company, P.O. Box 

226, Rosedale, VA 24280 (Certified Mail) 

Mr. Jim Arrington, Vice President, West Fork Coal Company, P.O. 

Box 226, Rosedale, VA 24280 (Certified Mail) 

kg 

1096 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 9 I 1986 

SECRETARY OF LABOR, 

MINE SAF'E'rY AND HEALTH 

ADMINIS'fRATION CMSHA) , 

Petitioner 

v. 

GREE.t\l RIVER TERMil.\JAL 

INCORPORATED, 

Respondent 

. 

. 

: 

: 

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. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 85-198 

A. C. No. 15-15035-03501 

Green River Terminal Mine 

ORDER OF RECISSION 

ORDER TO SUBMIT INFORMATION 

Before: ,Judge Merlin 

The Solicitor has filed a Motion for Recission in this case. 

'I'he facts are as follows. 

on September 10, 1985, the Solicitor filed a penalty petition in this case assessing a $20 penalty against the operator. 

On April 15, 1986, the operator was ordered to answer the petition or show cause for its failure to do so~ In a letter of 

April 21, 1986, the operator reported that the penalty had been 

paid. Based on this information, an order of dismissal was 

issued on May 27, 1986. The Solicitor, contending that the 

penalty had not been paid, filed a motion for recission on 

June 19, 1986 and moved for a default. Further investigation 

indicates that the operator paid $20 to MSHA on January 29, 1986. 

The Solicitor maintains, however, that the payment of January 29,' 

1986 was for another violation not involved in this case. The 

operator apparently believes it does not owe anything. 

Rather than grant the Solicitor's motion for default at this 

time, the fairer course would be for both parties to check their 

records, consult with each other and report back to me in writing 

within 21 days. 

1097 
Accordingly, the motion for recission of the order of 

May 27, 1986 is GRAN'rED and the parties are ORDERED to communicate, by telephone or otherwise, and to report the results of 

their discussions in writing to me no later than 21 days from the 

date of this order. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Charles F. Merz, Esq., Office of the Solicitor, u. S. Department 

of Labor, 280 U. S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Ms. Alice M. Sanders, Secretary/Treasurer, Green River Terminal, 

Inc., Post Office Box 696, Sebree, KY 42455 (Certified Mail) 

Mr. Ronald Sanders, President, Green River Terminal, Inc., Post 

Office Box 696, Sebree, KY 42455 (Certified Mail) 

/gl 

1098 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 JUL 111986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

M.M. SUNDT CONSTRUCTION CO., 

Respondent 

. 

. 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 86-6-M 

A.C. No. 29-01936~05503 

Sundt Crusher 

ORDER OF DISMISSAL 

Before: Judge Morris 

Respondent failed to comply with a prehearing order issued 

on June 6, 1986 and further failed to comply with an order to 

show cause issued on June 26, 1986. 

Accordingly, I find respondent in default and I enter the 

following: 

ORDER 

1. The order of June 26, 1986 granting the Secretary 

additional time to comply with the prehearing order is vacated. 

2. The notice of contest filed by respondent is dismissed. 

3. Citation 2091027 and the proposed penalty of $20 are 

affirmed. 

4. Citation 2091028 and the proposed penalty of $20 are 

affirmed. 

5. Respondent is ordered to pay to the Secretary the sum of 

$40 within 40 days of the date of this order. 

Law Judge 

1099 
Distribution: 

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

Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

M. M. Sundt Construction Company, Mr. Brian H. Murphy, Loss 

Control Manager, P.O. Box 27507, Tucson, AZ 85726 (Certified 

Mail) 

/blc 

1100 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA '22041 

JUL 11 1986. 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) I 

Petitioner 

v. 

MARTIN MARIETTA AGGREGATES, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

YATES CONSTRUCTION CO., INC., 

Respondent 

. • 

. . 

. . 

. . 

: 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

: 

. . 

Docket No. SE 86-31-M 

A.C. No. 31-00052-05504 

Pomona Quarry 

CIVIL PENALTY PROCEEDING 

Docket No. SE 86-28-M 

A.C. No. 31-00052-05501 J2K 

Pomona Quarry 

ORDER DENYING MOTIONS 

FOR SUMMARY DECISION 

On June 18, 1986, Respondent Martin Marietta Aggregates 

(Martin Marietta) filed a Motion for Summary Decision together 

with a memorandum of law in support of the motion, affidavits of 

Charles K. Moore, Al Van Drop and Ira Michael Shepard, Esq. The 

last named affidavit included attachments. On June 26, 1986, 

Respondent Yates Construction Company, Inc. (Yates) filed a 

Motion for Summary Decision adopting the motion, memorandum and 

attachments previously filed by Martin Marietta. On July 1, 

1986, the Secretary filed a Response to the Motion, together with 

an affidavit of Merle E. Slaton. On July 9, 1986, Martin 

Marietta filed a Reply to the Secretary's Response. 

In this consolidated proceeding, Martin Marietta is charged 

with two violations, one of 30 C.F.R. § 56.3005 and the other of 

30 C.F.R. § 56.18002(a). Yates was originally charged with three 

violations, but has agreed to pay the assessed amounts in two of 

them subject to the court's approval, and is presently contesting 

only the alleged violation of 30 C.F.R. § ·56.3005. 

30 C.F.R. 56.3005 provides as follows: 

1101 
Persons shall not work near or under dangerous banks. 

Overhanging banks shall be taken down immediately and 

other unsafe ground conditions shall be corrected 

promptly, or the areas shall be barricaded and posted. 

The alleged violative condition in the Martin Marietta 

citation issued May 1, 1985 is described in part as follows: 

On April 15, 1985, loose and unconsolidated material 

came off the top of a 35-40 foot wall causing the 

loader operator • • • to retreat • • • • the loader 

backed into the rear of a truck waiting to be loaded, 

fatally injuring the driver •••• 

On September 9, 1985 the citation was modified to include the 

following: 

part: 

The unsafe ground conditions were not corrected and the 

area was not posted or barricaded. 

The citation issued to Yates on April 16, 1985, reads in 

A loader had been working under a high wall, when loose 

material was visible. The loose material came out of 

the wall and the loader operator trying to get out of 

the way of the falling material backed the loader into 

the rear of a truck • • • fatally injuring the truck 

driver •••• 

The two citations are describing in different words the same 

incident which occurred at about 9:00 a.m. on April 15, 1985. 

Martin Marietta submitted affidavits of the Plant Manager 

and Pit Foreman that preshift examinations of the site of the 

accident performed at about 6:45 a.m. on April 15, 1985 did not 

reveal any indication of loose material, cracks or other 

hazardous conditions. Martin Marietta also referred to the 

depositions of Federal Inspectors Thel Hill and Merle Slaton. 

Hill, who issued the citations, was asked: 

Q. Okay. Could you tell me what proof you have that 

there was loose and unconsolidated material on the high 

wall before the work started? 

A. Before the work started? 

Q. Yes. 

1102 
A. I have no way of knowing. 

Slaton, a supervisory inspector, testified that he did not take 

pictures of the site and did not speak to anyone who saw the site 

before work started who told him that there was loose material on 

top of the high wall. When asked what proof he had of loose and 

unconsolidated material on the high wall before work started, he 

replied, "General conditions." 

The Secretary submitted an affidavit from Slaton with its 

Response to the Motion in which he stated that on April 16, 1985, 

he observed several cracks at the top of the wall which in his 

opinion were of such nature that they could not have resulted 

from a recent failure or collapse of the wall. 

I conclude that the entire record including the pleadings, 

depositions and affidavits does not show that there is no genuine 

issue as to any material fact concerning the citations above 

referred to. On the contrary, the record affirmatively shows an 

issue of fact whether there were unsafe ground conditions ·not 

promptly corrected which resulted in the accident. Martin 

Marietta attempts to discredit Slaton's affidavit, terming it 

"conjecture" and contrasts it with its (Martin Marietta's) 

"direct evidence." In deciding a motion for summary judgment, it 

is not my responsibility to weigh the evidence, but only to 

determine whether an issue of material fact exists. I conclude 

that on this issue, it does. Summary decision is therefore not 

appropriate as to the alleged violations of 30 C.F.R. § 56.3005. 

30 C.F.R. 56.18002(a) provides: 

(a) A competent person designated by the operator shall 

examine each working place at least once each shift for 

conditions which may adversely affect safety or health. 

The operator shall promptly initiate appropriate action 

to correct such conditions. 

Citation 2385994 issued to Martin Marietta on May 1, 1985 

charges it with not having a competent person check the working 

conditions of the area on a daily basis. 

The Motion for Summary Decision argues that the citation 

should be vacated since the standard does not require a preshift 

or commencement of shift examination, and only two hours of the 

shift had passed at the time of the accident. It further asserts 

that two preshift inspections were made and attaches affidavits 

from the plant manager and pit foreman that they each inspected 

the work area at approximately 6:45 a.m. The affidavit of 

Inspector Slaton attached to the Secretary's Response states that 

the Plant Manager Charlie Moore told Slaton "that there had been 

llo3 
no inspection of the area in question." In the depositions of 

Slaton and Hill each testified that Moore told them that he had 

not inspected the area in question. Slaton testified that Moore 

said no one inspected before the shift began. There is clearly 

an issue of fact as to whether an inspection was made prior to 

the accident. The citation charges that the mine operator was 

not having a competent person check the working conditions of the 

area on a daily basis. The issues before me are whether that 

allegation is correct and whether it constitutes a violation of 

the standard. I do not believe the record to date establishes 

that there is no dispute as to the first issue. 

Therefore, I conclude there is a a genuine issue as to a 

material fact concerning this citation. Summary decision is 

not appropriate. 

Accordingly, the motion for Summary Decision is DENIED. The 

case will be called for hearing on August 27, 1986 in accordance 

with the notice issued June 23, 1986. 

Distribution: 

)

CL,(,U,£.1.A A' ;i1/'dt,£r-ttg 

James A. Broderick 

Administrative Law Judge 

Kenneth R. Keller, Esq., Tuggle, Duggins, Meschan & Elrod, P.A., 

Drawer X~ Greensboro, NC 27402 (Certified Mail) 

Ira Michael Shepard, Esq., Schmeltzer, Aptaker & Sheppard, 1800 

Massachusetts Avenue, N.W., Washington, o.c. 20036--1879 

c-certif ied Mail) 

Larry A. Auerbach, Esq., U.S. Department of Labor, Office of the 

Solicitor, 1371 Peachtree Street, N.E., Room 339, Atlanta, GA 

30367 (Certified Mail) 

slk 

1104 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 141986 

GREENWICH COLLIERIES, 

.DIVISION OF PENNSYLVANIA 

MINES CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GREENWICH COLLIERIES, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. PENN 85-188-R 

Order No. 2256015; 3/29/85 

Docket No. PENN 85-189-R 

Order No. 2256016; 3/29/85 

Docket No. PENN 85-190-R 

Order No. 2256017; 3/29/85 

Docket No. PENN 85-191-R 

Order No. 2256018; 3/29/85 

Docket No. PENN 85-192-R 

Order No. 2256019; 3/29/85 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 86-33 

A. C. No. 36-02405-03614 

Greenwich No. 1 Mine 

PARTIAL SUMMARY DECISION 

Before: Judge Maurer 

Counsel for the Greenwich Collieries, Division of 

Pennsylvania Mines Corporation ("PMC") has moved for summary decision in these cases under Commission Rule 64, 29 

C.F.R. § 2700.64. 

These cases involve five (5) orders issued under section 104(d) (1) of the Federal Mine Safety and Health Act of 

1977 (the "Act") on March 29, 1985, as the result of an 

investigation of a multiple fatality mine explosion which· 

had occurred in.the Greenwich No. 1 Mine on 'February 16, 

1984, and their associated civil penalties. 

PMC avers that the orders are invalid on the following 

three grounds: 

1105 
1. The Orders were not issued as a result of, 

and the alleged violations were not detected 

during, an inspection, as required by 

§ 104(d) (l); on the contrary, MSHA concluded 

that the alleged violations had occurred 

based on an investigation after the alleged 

violations no longer existed; 

2.· ~he Orders were not issued within 90 days of 

the issuance of the § 104(d) (1) citation upon 

which they were based; and 

3. The Orders were not issued forthwith as is 

required by the Act. 

Furthermore, PMC contends that these orders cannot be 

modified to section l04(a) citations because they were not 

issued with "reasonable promptness." 

On February 16, 1984, an explosion occurred at the 

Greenwich No. 1 Mine. Three miners were killed and several 

others were injured. Shortly after the exp~osion, MSHA 

organized an investigation team, and began the accident investigation. The underground inspection portion of the investigation was begun on February 25, 1984, and was completed on April 5, 1984, and numerous citations and orders 

were issued to PMC. Additionally, beginning on March 27, 

1984, and until April 27, 1984, sworn statements were received from 66 persons who participated in the mine recovery 

operations or persons who could have had knowledge of the 

conditions in the affected areas prior to the explosion. On 

September 6, 1985, the Secretary i·ssued his final report on 

this investigation •. 

On March 29, 1985, thirteen (13) months after the explosion, the Secretary issued the five (5) section 104(d) (1) 

orders which are contested herein. The orders each state 

that they are based on Citation No. 2016261, a section 

104(d) (1) citation which was issued to PMC on February 24, 

1984, approximately one year earlier. · 

I -find that these orders were issued as a result of the 

accident investigation that followed the explosion as opposed 

to an inspection and for violations which no longer existed. 

The orders were in fact terminated at the same point in time 

that they were issued. I conclude, therefore, that the 

essential underlying facts surrounding the, issuance of these 

orders are not in dispute and I find that PMC is entitled to 

a partial summary decision as a matter of law. 

1106 
The first issue raised by PMC herein concerning the 

validity of these section 104(d) orders, to wit, that they 

are invalid because they were not issued based on a finding 

by an MSHA inspector of an existing violation observed or 

detected during an inspection, but rather are based on an 

investigation of pre-existing, terminated violations is 

dispositive. 

In the recent past, five Commission Administrative Law 

Judges have considered and consistently decided the issue 

presented in the instant case. See, Westmoreland Coal Com~any, Docket Nos. WEVA 82-34-R--et al. (May 4, 

198) (Judge Steffey); Emery Mining Corporation, 7 FMSHRC 

1908, 1919 {1985) (Judge Lasher); Southwestern Portland 

Cement Company, 7 FMSHRC 2283, 2292 (1985) (Judge Morris); 

Nacco Mining Companf, 8 FMSHRC 59 (1986), review pending 

(Chief Judge Merlin ; Emerald Mines Corporation, 8 FMSHRC 

324 (1986), review pending (Judge Melick), and White County 

Coal Corporation, FMSHRC {June 9, 1986) (Judge Melick). ~~ ~~ 

I do not think it necessary to restate herein the 

rationale of those decisions. I agree with the extensive 

rationale set forth in Judge Steffey's Westmoreland decision and those that have followed it pertaining to this 

issue. 

I find that Order Nos. 2256015-2256019 are invalid as. 

section 104(d) (1) orders because an order issued under 

section 104(d) should be based on an inspection as opposed 

to an investigation and the above orders state on their 

face that the violations which had allegedly occurred are 

based on an investigation and no longer then existed. 

Section l04(a), on the other hand, allows MSHA to 

issue citations on the basis of an inspection or an investigation and permits the issuance of a citation even though 

the alleged violative condition or practice is no longer 

in existence at the time of its issuance. The only condition being that it be issued "with reasonable promptness." 

I conclude that under the totality of the circumstances 

herein, the above orders, modified by this decision to 

§ 104(a) citations, were issued "with reasonable promptness." 

In accordance with the foregoing, the motion of PMC 

for summary decision is g~nted in part and denied in part. 

The orders at bar are hereby-modified to citations under 

section 104(a) oLthe Act. Therefore, further proceedings 

will be required to 1l~spose of all the issues in the captioned cases. 

• · urer 

tM~ is ative Law Judge 

1107 
Distribution: 

Thomas c. Means, Esq., Crowell & Moring, 1100 Connecticut 

Ave., NW, Washington, DC 20036 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Earl R. Pfeffer, Esq., United Mine Workers of America, 900 

15th St., NW, Washington, DC 20005 (Certified Mail) 

yh 1108 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 141986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

GRAFTON COAL COMPANY, 

Respondent 

. . 

. . 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 86-118 

A.C. No. 46-02450-03516 

Harrison County Mine 

(Kincheloe No. 4 Job) 

Appearances: William T. Salzer, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania for Petitioner; 

James R. Christie, Esq., Clarksburg, West 

Virginia for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

105Cd> of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seq., the "Act," charging one violation 

against the Grafton Coal Company (Grafton) of the regulatory 

standard at 30 C.F.R. § 707.1605(k). The issues before me 

are whether Grafton has committed the violation as alleged 

and if so whether that violation was of such nature as could 

have.significantly and substantially contributed to the cause 

and effect of a coal or other mine safety or health hazard, 

i.e., whether the violation was "significant and substantial." 

If a violation is found it will also be necessary to determine the appropriate civil penalty to be assessed in accordance with the criteria set forth in section llO(i} of the 

Act.~/ 

I; The violation herein was cited under section 104(d)(l) of 

the Act and it is alleged that it was caused by the "unwarrantable failure" of the operator to comply with, the standard. 

However, since the citation was not contested within 30 days 

of its issuance as required under sectio~ 105(d) of the Act 

the issue of whether or not the violation was caused by the 

"unwarrantable failure" of the operator to comply is not 

before me in this civil penalty proceeding. See Pontiki Coal 

Corporation v. Secretary, 1 FMSHRC 1476 (1979.Ta'nd Wolf Creek 

Collieries Co., 1 FMSHRC (1979). 

1109 
The citation before me, No. 2702082, alleges a "significant and substantial" violation of the noted standard and 

alleges as follows: 

Berms or guards were not provided on the outer bank 

of elevated roadway for a distance of approximately 

800 feet, where two International 350 pay haulers 

were observed hauling spoil material to the dumping 

location at the Kincheloe Pit. 

The cited standard requires that "berms or guards • 

be provided on the outer bank of elevated roadways." 

Inspector James M. Bailey of the Federal Mine Safety and 

Health Administration CMSHA) was conducting a regular inspection at the Grafton Coal Company Kincheloe Pit on October 16, 

1985, when he observed two International 350 pay haulers 

carrying overburden over the haulage road. According to 

Bailey the elevated portion of the road was.approximately 800 

feet long and rose to an elevation of 40 feet above the 

surrounding ground. One side of the road abutted the hillside and the other side, unprotected by any berm or guard, 

sloped down an embankment. It is not disputed that the 

embankment at its steepest location had a 68% slope. 

Bailey recalled that the road was approximately 14 to 15 

feet wide with the exception of two locations where the trucks 

could pass and that the pay haulers were approximately 14 

feet wide. These measurements were rough estimates not made 

with a tape measure or other measuring device. According to 

Bailey there was absolutely no evidence of any berm along the 

entire length of the elevated road and no evidence that any 

berm had ever existed there. 

Bailey concluded that under the circumstances it was 

reasonably likely for serious injuries or fatalities to occur 

if one of the vehicles should overtravel the road and overturn down the unprotected embankment. He also observed that 

the road was composed of nature spoil material and that rain 

would make the material slippery and more likely for a 

vehicle to lose control. Bailey also believed that the 

violation was the result of operator negligence. According 

to Bailey the mine foreman, Al Schrock, admitted that he knew 

the roadway was not bermed. Bailey had also issued three 

citations over the preceding year for similar violations at 

other Grafton mines. 

Grafton Safety Director, Steve Cvechko was not present 

at the Kincheloe Pit on the date of the violation. Cvechko 

did however pace off the cited road and found it to be 25 fee~ wide at its narrowest location. He opined that the 
outslope or embankment at the upper portion of the road was 

68% and acknowledged that a truck overtraveling the embankment would likely overturn. When Cvechko had last been at 

the cited Kincheloe Pit he saw a knee-high berm over 300 to 

400 feet along the upper road. He acknowledged however that 

the berm could have been subsequently graded off. 

The surface foreman at the Kincheloe Pit, Allen Schrock, 

claims that the elevated portion of the cited roadway (the 

upper 500 feet) had "somewhat of a berm, about a foot or so 

high. 11 Schrock acknowledged that a berm was required there 

and thought that it was only a "matter of opinion" as to the 

adequacy of the berm he claims was there. Schrock conceded 

however that he had no conversation with Inspector Bailey 

about the adequacy of his alleged berm. Schrock further 

conceded that he knew MSHA required the berms to be of axle 

height and that the axle height of the 350 hauleage vehicle 

was 1-1/2 to 2 feet. 

In evaluating the conflicting evidence·before me I find 

the testimony of Inspector Bailey to be the more credible. 

If there had been "somewhat of a berm" in place as Schrock 

claims and there was only a "difference of opinion" as to its 

adequacy it would be reasonable to expect some discussion 

between Schrock and Inspector Bailey about the matter. 

Schrock concedes that there was no such discussion. In 

addition if a berm of some size was in place and only its 

height was at issue, it would be reasonable to expect that 

Bailey would have taken some measurements to more precisely 

determine the adequacy of such a berm. Similarly if Schrock 

had actually believed in good faith that his alleged berm was 

adequate it would be reasonable to expect that he too would 

have measured that berm in the presence of Inspector Bailey 

to prove his point. Finally, I find Schrock's testimony that 

he had "somewhat of a berm" so equivocal as to be lacking ,in 

probative evidentiary value. Within this framework I find 

that a serious violation has been proven as charged and that 

it was "significant and substantial." Secretary v. Mathies 

Coal Company, 6 FMSHRC 1 (1984). 

Particularly since Grafton officials knew that a berm 

was required along the outer bank of its elevated haul road, 

it is clear that the violation was caused by its negligence. 

The fact that the Graf ton Safety Director also had knowledge 

of three prior citations for inadequate berms at other Grafton 

Mines in the region also suggests laxity in compliance with 

the cited standard. This factor adds to the finding of 

operator negligence herein. 

In determining the appropriate penalty in this case I 

have also considered that the operator is of moderate size 

and has a history, of 3 violations of the standard nere at 

1111 
issue over the 13 month period preceding the instant violation. I also observe that the operator abated the violative 

condition promptly and in a good faith manner. Under the 

circumstances I find that the Secretary's proposed penalty of 

$600 is appropriate. 

ORDER 

Graf ton Coal Company is hereby order to pa 

penalty of $600 within 30 days of the date of d 

Distribution: 

Gq'ry Me 

Adminis 

William T. Salzer, Esq., Office of th Solicitor, .s. Department of Labor, Room 14480-Gateway Building, 3535 Market St., 

Philadelphia, PA 19104 (Certified Mail) 

James R. Christie, Esq., PO Box 2150, Clarksburg, WV 26302 

(Certified Mail) 

rbg 

1112 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

July 16, 1986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

J & C COAL CORPORATION, a/k/a 

J C Corporation, 

Respondent 

Docket No. SE 85-40 

A.C. No. 40-02268-03527 

Docket No. SE 85-46 

A.C. No. 40-02268-03528 

Pee Wee No. 1 

Campbell County, TN 

ORDER MODIFYING DECISION 

TO CORRECT OVERSIGHT 

FOR GOOD CAUSE SHOWN, the Secretary's Motion for Modification 

of Decision and Order is GRANTED. 

WHEREFORE IT IS ORDERED that the Decision and Order 

dated May 7, 1986, are MODIFIED to add "Citation No. 2475963" 

with a Civil Penalty of "$79" to the columnized items at 

page 5; to change the total amount of civil penalties from 

"$3,042" to "$3,121" in both places where a total appears at 

page 5; and to change six monthly payments of $507 each to 

the following: "five monthly payments of $520 each beginning 

June 1, 1986, and becoming due on the first day of each 

successive month and a final payment of $521 due on November 

1, 1986." 

Distribution: 

William Fauver 

Administrative Law Judge 

Charles F. Merz, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Mr. Stuart P. Bradley, Treasurer, J & C Coal Corporation, 

P.O. Box 174, Jacksboro, TN 37757 (Certified Mail) 

Mr. Charles M. Asbury, President, J & C Coal Corporation, 

P.O. Box 174, Jacksboro, TN 37757 (Certified Mail) 

kg 

1113 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BOB CRUMBY, 

Respondent 

July 22, 1986 

: 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 85-96 

A. C. No. 14-01116-03501 IlF 

Fort Scott Mine 

ORDER VACATING DEFAULT 

ORDER OF ASSIGNMENT 

Before: Judge Merlin 

On July 23, 1985, the Secretary filed a proposal for penalty 

against the respondent for an alleged violation of the Federal 

Mine Safety and Health Act of 1977. Because no answer had been 

received, the respondent was ordered on January 28, 1986 to file 

an answer within 30 days or to show good reason for his failure 

to do so. As of May 29, 1986 the Commission had received no 

response and on that date the respondent was found in default and 

ordered to pay $625, the full amount of the proposed penalty. 

However, on June 12, 1986, the Commission received a letter from 

the respondent stating that it had filed an answer. Further 

investigation revealed that respondent had filed his answer with 

the Solicitor~ but not with the Commission. The answer was 

postmarked February 22, 1986, well within the 30-day period for 

response granted by· the order of January 28, 1986. The Solicitor 

now has forwarded the respondent's answer to the Commission which 

should have been done at the time. Although the answer should 

have been filed with the Commission rather than the Solicitor, 

the operator is pro se. Accordingly, I accept the answer as 

timely filed. 

The default of May 29, 1986 was based on a mistake of fact, 

i.e. that no answer was filed. I find it is the interest of 

justice to vacate the default and to allow the case to proceed. 

Accordingly, the Order of Default of May 29, 1986 is hereby 

RESCINDED. 

This case is hereby assigned to Administrative Law Judge 

Gary Melick. 

1114 
All future communications regarding this case should be 

addressed to Judge Melick at the following address: 

Federal Mine Safety and Health 

Review Commission 

Off ice of Administrative Law Judges 

Two Skyline Place, Suite 1000 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-6261 

-=?J.. 

Paul Merlin 

• 

Chief Administrative Law Judge 

Distribution: 

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

of Labor, 911 Walnut Street, Room 2106, Kansas City, MO 64106 

(Certified Mail) 

Mr. Bob Crumby, Box 186, Arcadia, KS 66711 (Certified Mail) 

/gl 

1115 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CABIN COAL CORPORATION, 

Respondent 

JUL 221986 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 85-149 

A. C. No. 15-10271-03502 

Lancer Tipple Mine 

Appearances: Mary Sue Ray, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner; 

·Before: 

Richard Sims, President, Cabin Coal Corporation, 

Prestonsburg, Kentucky, pro se. 

Judge Maurer 

The Secretary of Labor, on behalf of the Mine Safety 

and Health Administration (MSHA), charges respondent with 

a violation of the safety regulations promulgated under 

the Federal Mine Safety and Health Act, 30 u.s.c. § 801 

et seq., (the A~t). 

After notice to the parties, a hearing was held on 

the merits at Pre.stonsburg, Kentucky, on May 30, 1986. 

Samuel V. Trossky, a surface mine inspector employed 

by MSHA, had occasion on April 22, 1985, to inspect the 

Lancer Tipple. 

On that occasion he observed a front end loader moving 

coal from the stock pile and taking it to the hopper. He 

issued § 104(a} Citation No. 2468999 for a violation of 

30 C.F.R. § 77.1605(a) because the windshield of that 

vehicle had numerous cracks directly in the line of sight 

of the operator so as to impair his vision. 

The front end loader had to go up a 5-foot elevated 

ramp.to dump coal into the hopper and therefore because 

1116 
of the driver's impaired vision, he possibly could run into 

the hopper, or maybe run into a truck according to the inspector. However, the inspector testified that he didn't 

know how likely it would be that the operator would run 

into something and he further testified that there was infrequent vehicular traffic in the area this front end loader 

was operating in and no pedestrian traffic. 

The facts of this case establish a non-S&S violation 

of the cited regulation and I conclude that a civil penalty 

of $20 is appropriate. 

Conclusions of Law 

1. The Commission has jurisdiction to decide this case. 

2. Respondent violated the mandatory safety standard 

published at 30 C.F.R. § 77.1605(a) as alleged in Citatiqn 

No. 2468999. 

3. The violation was not "significant and substantial" 

within the meaning of the Act. 

4. The appropriate penalty for the violation is $20. 

ORDER 

Citation No. 2468999 is affirmed as non-significant 

and substantial and the respondent IS ORDERED to pay a 

civil penalty of $20 to the Secretary within 30 days of the 

date of this decision. 

Roy J 

Administrative Law Judge 

Distribution: 

Mary Sue Ray, Esq., Office of the Solicitor, u. S. Department 

of Labor, 801 Broadway, Rm. 280, Nashville, TN 37203 

(Certified Mail) 

Richard Sims, President, Cabin Coal Corp .. , Goble-Roberts 

Addition, Prestonsburg, KY 41653 (Certified Mail} 

yh 1117 
FEDERAL MINE SAFETY AND HEALTll REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 4 1986 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HARD ROCK COAL CO., INC., 

Respondent 

. . 

. . 

. . 

DECISION 

Docket No. KENT 85-148 

A.C. No. 15-14218-03504 

No. 1 Strip 

Appearances: Theresa Ball, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee 

for Petitioner; · Frank Dossett, Esq., LaFollette, Tennessee for 

Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seq., the "Act," charging Hard Rock Coal Co., 

Inc. (Hard Rock) with one violation of the regulatory 

standard at 30 C.F.R. § 77.1303Cuu) and thereby causing the 

death of miner Don Douglas on November 5, 1984. The issues 

before me are whether Hard Rock committed the violation as 

alleged and if so whether the violation was of such a nature 

as could have significantly and substantially contributed to 

the cause and effect of a coal or other mine safety or health 

hazard, i.e., whether the violation was "significant and substantial." If a violation is found it will also be necessary 

to determine the appropriate civil penalty to be assessed in 

accordance with the criteria set forth in section llOCi) of 

the Act. 

The one citation at issue, No. 2057047, charges a "significant and substantial" violation of the cited standard 

and, as amended, alleges that: "(w)here charging operations 

were being conducted and electric detonators were being used 

the operator failed to withdraw the men to a safe location 

upon the approach of an electrical storm." The cited standard requires that "when electric detonatqrs are used, 

charging shall be suspended and men withdrawn to a safe 

location upon the approach of an electrical storm." 

1118 
It is not disputed that during the course of the day on 

November 5, 1984, Robert Baird, an employee of Wash Ridge 

Coal Company had loaded five rows of drill holes (approximately 34 holes} with explosives in preparation for blasting 

overburden along the face of the Hard Rock No. 1 surface mine 

located in Kensee, Kentucky.l/ Baird was loading the explosives under the general direction of his supervisor, Roger 

Kidd. Kidd showed Baird the type of delay blasting caps to 

be u.sed in the various holes to provide a sequential . blast 

with a 50 millisecond separation between rows. In accordance 

with accepted practice Baird did not connect the shot wires 

to the lead line in order to prevent accidental ignition from 

stray electrical sources or static electricity. Baird knew 

that the explosives could nevertheless even then be triggered 

by lightning. 

Baird had finished loading the holes by 3:00 p.m. and at 

that time took his afternoon break. He was waiting for his 

supervisor to return to check his work and to detonate the 

explosives. According to Baird the shots were usually set 

off at 5:30 p.m. after the end of the shift. 

Upon his arrival at the job site around 6:30 that 

morning Baird found wet and muddy conditions from rain the 

night before. However, according to Baird, until the 

lightning actually struck later in the afternoon the weather 

was sunny and clear. As late as 3:15 in the afternoon Baird 

observed that the sky was clear and blue with no clouds, no 

rain, and no thunder. The first indication of any storm was 

when lightning struck and triggered the explosives. Baird 

recalled that even after the lightning struck there was no 

rain and no further lightning. Baird testified that he was 

1/ The evidence shows that Hard Rock Coal Co., Inc., is the 

owner and operator of the subject strip mine and accordingly 

had been issued the corresponding identification number from 

the Federal Mine Safety and Health Administration for the 

operation of that mine. On the day in question a number of 

employees of the wash Ridge Coal Company, (Wash Ridge), including Robert Baird, supervisor Roger Kidd and the deceased, 

Don Douglas, were assigned by Danny Ray Chambers and his 

father, Dean Chambers, to work for Hard Rock. Danny Ray 

Chambers was at that time Superintendant for both Hard Rock 

and Wash Ridge and was President of Hard Rock and Vice 

President of Wash Ridge. Dean Chambers was then President of 

Wash Ridge and Vice President of Hard Rock. According to 

Danny Chambers, he and his father generally made all the 

de.cisi.ons for both companies and from time to time would 

interchange employees as needed on various jobs. Under the 

circumstances supervisor Roger Kidd was during relevant times 

an agent of Hard ~ock. 

1119 
aware of the dangers presented from an approaching electrical 

storm and that he would have moved clear of the explosives 

had he seen any evidence of an electrical storm. 

When the lightning struck and prematurely set off the 

explosives the overburden was thrown upon front-end-loader 

operator Donald Douglas who was working in the pit below. 

Douglas was buried by the debris and asphyxiated by external 

chest compression as he was pinned in the cab of his loader. 

Supervisor Roger Kidd was driving out of the pit along 

the pit road shortly after 3:00 p.m. that day with co-worker 

Art Bowlen. As they drove around a "point" on the mountain a 

dark cloud came into view. Kidd told Bowlen that they had 

better get Baird "off the shots" but within 30 to 60 seconds 

he saw the flash of lightning and the explosion. Kidd said 

that as soon as he saw the dark cloud he wanted to first warn 

Baird who was on the top of the shots and then warn Douglas 

who was working in the pit below. According to Kidd there 

was no rain or other sign of adverse weather before the dark 

cloud appeared and the lightning struck and even after that 

there was only some drizzle. 

Ted Ivey was also working at the mine that day. He 

testified that the weather was clear before the accident and 

there was no sign of bad weather. Arvil Lewallen was also 

working at the mine. According to Lewallen the sun was 

shining at the time the lightning struck and there was no 

warning of its approach. 

Other witnesses testified concerning storm activity in 

surrounding areas that day. MSHA Inspector James Payne 

recalled that there were several heavy rain storms in Jellico, 

Tennessee, about 2 "air miles" from the mine site. Payne 

thought that it had last rained in Jellico that day about 30 

minutes before he left the office at 4:02 p.m. The weather 

had cleared by the time he left the off ice however and was 

clear upon his arrival at the mine site. Payne acknowledged 

that it was unusual for electrical storms to be in the region 

at that time of the year. 

Helen Douglas, the widow of the deceased, testified that 

she left Corbin, Kentucky in her car at about 3:30 p.m. that 

day and was thereafter driving south on highway I-75 in and 

out of heavy rains and electrical storms. She recalled 

hearing an explosion as she drove along highway I-75 within 

approgimately 2 miles of the mine site. 

It is well established that under the Act an operator 

may be held liable for violations of mandatory safety standards regardless of fault. Secretary v. El Paso Rock Quarries, 

Inc., 3 FMSHRC 35 (1981). Thus for purposes of determining 

whether the cited violation occurred it is immaterial whether 

1120 
the operator was negligent. There is no dispute in this case 

that electric detonators were being used by the mine operator, that an electrical storm did in fact approach, and that 

neither the shot loader, Robert Baird nor the deceased, who 

was working in the pit below, were withdrawn to a safe 

location. The violation is thus proven as charged. As the 

facts in this case clearly demonstrate the violation was also 

quite serious and "significant and substantial." Secretary 

v. Mathies Coal Co., 6 FMSHRC 1 (1984). 

I find however that the operator is chargeable with but 

little negligence. The uniform testimony of those trial 

witnesses present at the mine site that day was that the 

weather was clear and sunny until moments before the 

lightning struck. Indeed one of the miners who it would be 

expected would be the most sensitive to weather conditions, 

Robert Baird, specifically observed that only a few minutes 

before the lightning struck the sky was clear. With Baird's 

knowledge that lightning could trigger the explosives he was 

standing over it is not reasonable to believe he would have 

remained in this area had there been any evidence of an 

approaching electrical storm. 

In addition supervisor Roger Kidd testified that as he 

rounded a "point" on the pit road he observed for the first 

time a black cloud approaching. He expressed his intent to 

warn Baird but the lightning struck within 30 to 60 seconds 

before any warning could be given. In the absence of any 

directly contradictory evidence I am constrained to find that 

indeed the operator could not reasonably have known of the 

approaching storm in time to withdraw his miners to a safe 

location. 

In reaching this conclusion I have not disregarded the 

testimony of other witnesses concerning evidence of heavy 

rains and electrical storms as close as 2 miles to the mine 

site. According to one witness however, apparently because 

of the mountainous terrain, it is not unusual for storms in 

the area to be localized. Thus Mrs. Douglas observed as she 

drove along highway I-75 that she was passing in and out of 

such storms as she passed from one hollow to another. 

I have also considered the Secretary's argument that the 

operator was negligent for allowing the deceased, in the first 

place, to work in the pit area while explosives were being 

loaded in the overburden area above. Whether or not the 

operator was negligent in this regard is not however relevant 

to whether or not the operator was negligent in violating the 

specific standard at bar. The standard at bar does not 

forbid work in the pit area while e'xplosi ves are being loaded . 

in an overburden area above but rather requires only the 

withdrawal of miners to a safe place upon the approach of an 

electrical storm. 

1121 
In assessing a penalty herein I have also considered 

that the operator is relatively small in size, has a mimimal 

history of reported violations, and had abated the violation 

in good faith in accordance with the Secretary's directions~ 

ORDER 

Citation No. 2057047 is hereby affirmed with its "significant and substantial" findings. Hard Roe Coal Co., Inc., 

is directed to pay a civil penalty of $100 ithin 30 ys of 

the date of this decision. 

Distribution: 

Theresa Ball, Esq. I Off ice of the So i i tor, u. . o·epartment 

of Labor, 280 U.S. Courthouse, 801 Br adway, Nashville, TN 

37203 (Certified Mail) 

Frank Dossett, Esq., Fleet Building, LaFollette, TN 37766 

(Certified Mail) 

rbg 

1122 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 241986 

SILAS NOBLE, . . DISCRIMINATION PROCEEDING 

Complainant 

v. . . Docket No. KENT 86-17-D . 

. MSHA CASE.NO BARB CD 85-34 

PATSY JANE COAL CORPORATION, 

Respondent . . Surf ace No • 1 Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

The. Complainant, Silas Noble, alleges in a Complaint of 

Discrimination that he was laid off because "[a]t the time I 

was laid off they kept people that had less seniority than I 

had." Respondent thereafter moved to dismiss the Complaint 

on the grounds that it failed "to state a claim upon which 

relief can be granted under section lOSCc>." 

An Order to Show Cause was then issued providing the 

Complainant with an opportunity to explain why this case 

should not accordingly be dismissed. No respons~ to that Order 

has been filed and the Respondent's Motion to Dismiss is thus 

granted. 

The captioned case is accor ingly dismissed. 

Distribution: 

Gar Melic 

Administr 

{ 703) 756 

Mr. Silas Noble, General Delivery, Hindman, KY 41822 

(Certified Mail) 

Randall Scott May, Esq., Barret, _Haynes, May, Carter & Roark, 

P.s.c., P.O. Drawer 1017, Hazard, kY 41701 (Certified Mail) 

rbg 

1123 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COtORADO 80204 JUL 2 41986 

COORS ENERGY COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

COORS ENERGY COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

APPLICATION FOR REVIEW 

Docket No. WEST 86-40-R 

: Order No. 2831341; 11/14/85 

Keenesburg Mine 

CONTEST PROCEEDINGS 

Docket No. WEST 86-186-R 

Citation No. 2831343; 11/14/85 

Docket No. WEST 86-187-R 

Citation No. 2831344; 11/14/85 

Keenesburg Mine 

DECISION 

Appearances: Earl K. Madsen, Esq., Bradley, Campbell & Carney, 

Golden, Colorado, 

for Applicant/Contestant; 

James H. Barkley, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Respondent. 

Before: Judge Carlson 

Docket number WEST 86-40-R came on regularly for hearing at 

Denver, Colorado on June 17, 1986. The matter arose out of an 

inuninent danger withdrawal order issued by a representative of 

the Secretary of Labor on November 14, 1985, under section 107(a) 

of the Mine Safety and Health Act of 1977. The order, number 

2831341, .did not allege in block 9 of the Secretary's citation 

and order form that the condition or practice which accounted 

for the inuninent danger was caused by a violation of a mandatory 

safety standard. The narrative description of the conditions 

which caused the order to issue, however, referred to two citations written under section 104(a) of the Act which the Secretary's 

inspector issued contemporaneously with the order. The alleged 

104(a) violations, citations numbered 2831343 and 2831344, were 

described in the order as "contributing factors to the order." 

1124 
In the instant proceeding, the parties jointly requested 

they be permitted to resolve all three matters, the order and 

two citations, in the single proceeding since all thr~e arose 

out of what was essentially a single occurrence. 

The parties also represented that the two citations should 

have been before the Commission for adjudication since Coors 

Energy had lodged timely contests with the Secretary at the same 

time as it filed its application for review of the withdrawal 

order. Counsel for Coors produced documentation for this claim, 

including copies of the receipts for certified mail signed by 

an agent for the Secretary and copies of the contests dated 

December 9, 1985, the same date as the application for review in 

the file of docket WEST 86-40-R, the 107(a) case. At the hearing 

the Secretary stipulated that the two notices of contest were 

timely filed (Tr. 5). 

Nevertheless, as this judge has verified, the files of the 

Commission's Docket Clerk contain no records that the notices 

of contest were received and docketed. They show only that the 

application for review of 107(a) withdrawal order 2831341 was 

received and docketed. 

At the hearing this judge concluded upon the record that 

Coors Energy had done all those things required of it by the 

applicable law and regulations to contest the two citations. 

It followed that the operator was entitled to have its contests 

docketed. This has now been done by the assignment of docket 

numbers and assembling of files for each contest. Citation 

number 2831343 was assigned docket number WEST 86-186-R; Cita.tion 

number 2831344 was assigned docket number WEST 86-187-R. Also, 

in accordance with a determination made by this judge at the 

hearing, the order and citation dockets are now consolidated 

for decision. 

We now turn to the parties proposed agreement for disposition 

of the three dockets. The Secretary agrees to withdraw the 107(a) 

order on grounds that post-order conferences with the operator 

convinced the Secretary's representatives that its issuance was 

not warranted. 

Coors Energy, on the other hand, moved to withdraw its contest 

of the two citations for violations of mandatory safety standards, 

conditioned upon the granting of the Secretary's motion to reclassify the violations from "significant and substantial" to 

"non-significant and substantial." 

Having considered the representations and explanations of 

the parties, I conclude that the actions proposed are appropriate· 

and should be approved. 

1125 
One further matter merits consideration. The parties also 

recited for the record an agreement that the penalties for each 

of the two citations should be set at $20.00. Some question 

exists, however, as to whether this case is in the proper posture 

to assess penalties. The contests of citations at stake here . 

involve only the question of violation and special findings which 

relate to violation. Consequently, no order is issued here 

respecting penalty. The penalty aspect of the parties' agreement 

is firmly on the record, however, and may surely be effected 

administratively without difficulty. 

In accordance with the foregoing, the 107(a) order challenged 

by Coors Energy in docket WEST 86-40-R is ORDERED vacated1 the 

citations contested in WEST 86-186-R and WEST 86-187-R are ORDERED 

affirmed; and the violations involved in both are ORDERED reduced 

from "significant and substantial" to "non-significant and substantial." 

Distribution: 

John A. Carlson 

Administrative Law Judge 

Earl K. Madsen, Esq., Bradley, Campbell & Carney, 1717 Washington 

Avenue, Golden, Colorado 80401-1994 (Certified Mail) 

James H. Barkley, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 

80294 (Certified Mail) 

/ot 

1126 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL'rH 

ADMINISTRATION (MSRA), 

Petitioner 

v. 

VOLCANITE LIMITED, 

Respondent 

July 25, 19 86 

. . 

. . 

: 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 86-78-M 

A. C. No. 51-00086-05501 

Puuwaawaa Pit & Mill 

DECISION APPROVING SETTLEMENT 

·Before: Judge Merlin 

The Solicitor has filed for approval a settlement agreement 

·for the two violations involved in this matter. ~he original 

assessed penalties were $1,300 and the proposed settlements are 

$865. 

Citation No. 2086735 was issued for violation of 30 C.F.R. 

§ 55.9022 because the oerms on the east side of the operator's 

pit bank were not built high enough to prevent rubber-tired equipment from going over the edge. Citation No. 2086736 was issued 

for violation of 30 C.F.R. § 55.3003 because of the excessive 

height of the east bank of the pit. The original assessments 

were based upon the fact that a dozer operator had been killed 

after driving off the edge of the pit. However, it now appears 

from the materials filed that the dozer operator had a stroke 

while driving the dozer and that this was the cause of the 

accident. Indeed, the Solicitor advises that there was no 

relationship between the height of the bank and the accident. 

The Solicitor further states that there is insufficient evidence 

to attribute the accident to the inadequate height of the berms. 

However, violations did exist and they were serious. Based upon 

the foregoing circumstances the proposed reduction for Citation 

No. 2086735 is from $1,000 to $665. The proposed reduction for 

Citation No. 2086736 is from $300 to $200. Finally, the 

Solicitor sets forth that the operator has no previous history of 

violations and is very small, having only 197 man-hours of 

production per year. 

The representations of the Solicitor are accepted. 

1127 
Accordingly, the settlement agreements are APPROVED and the 

operator is ORDERED TO PAY $865 within 30 days of the date of 

this decision. 

• 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Esq., Office of the Solicitor, u. s. Department of Labor, P. O. Box 36014, San Francisco, CA 94012 

(Certified Mail) 

Michael M. Payne, Esq., Grosvenor Center, Mauka Tower, 737 Bishop 

Street, Suite 2020, Honolulu, HI 96813 (Certified Mail) 

/gl 

1128 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 JUL 281986 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CARLSON MINING COMPANY, 

Respondent 

Docket No. PENN 86-63 

A. C. No. 36-01423-03503 

Carlson No. l Strip 

DECISION 

Appearances: Susan M. Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; · · 

Mr. Alan Carlson, New Castle, Pennsylvania, for 

Respondent. 

Before: Judge Maurer 

This case is before me upon a petition for assessment 

of civil penalty under section 105(d) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. section 801, et 

seq., the "Act," in which the Secretary charges the Carlson 

Mining Company with a violation of the mandatory safety 

standard at 30 C.F.R. § 77.409(a). The general issues 

before me are whether the company has violated the regulatory 

standard as alleged in the petition and, if so, the appropriate civil penalty to be assessed for the violation. 

The hearing was held as scheduled on May 22, 1986, at 

New Castle, Pennsylvania. Documentary evidence, including 

the deposition of Inspector Klingensmith was received into 

evidence and oral testimony was received from both parties. 

The Mandatory Standard 

Section 77.409(a) of the mandatory standards, 30 C.F.R. 

§ 77.409(a) provides as follows: 

§77.409 Shovels, draglines, and tractors. 

(a) Shovels, draglines, and tractors shall 

not be operated in the presence.of any person 

exposed to a hazard from its operation and all 

such equipment shall be provided with an adequate 

1129 
warning device which shall be sounded by the 

operator prior to starting operation. 

The Cited Condition or Practice 

Citation No. 2402051 cites a violation of 30 C.F.R. 

§ 77.409(a) for the following conditions: 

The warning device, which shall be sounded by 

the operator prior to starting operations, for 

the Fiat Allis FD 50 bulldozer serial no. 

42504006 operating at pit 004-0 was not operative. 

Stipulations 

At the hearing, the parties agreed to the following 

stipulations which were accepted (Tr. 7-9): 

1. No. 1 Carlson Strip Mine is owned and operated 

by the respondent, Carlson Mining Company. 

2. Carlson No. 1 Strip is subject to the jurisdiction 

of the Federal Mine Safety and Health Act of 1977. 

3. The presiding Administrative Law Judge has jurisdiction over the proceedings. 

4. Citation No. 2402051, and its termination, were 

properly served by an authorized representative of the 

Secretary upon an agent of the respondent at the date, time, 

and place stated on the citation, and may be admitted into 

evidence for the purpose of establishing its issuance. 

5. The parties stipulate to the authenticity of their 

exhibits, but not to the relevancy or truth of the matters 

asserted therein. 

6. The alleged violations were abated in a timely 

fashion. 

7. The total annual production of Carlson No. 1 

Strip is, approximately, eighty thousand tons of coal per 

year. 

8. The computer printout reflecting the operator's 

history of violations is an authentic copy, and may be admitted as a business record of the Mine Safety and Health 

Administration. 

1130 
9. The imposition of the proposed civil penalty wi 

have no effect on the respondent's ability to remain in 

business. 

Discussion and Analysis 

The inspector who issued the instant citation testified 

by deposition that he visited the Carlson Strip Mine on 

October 30, 1985. While there he observed the cited bulldozer operating on the bench area from a distance of approximately a thousand feet away. When he got up to the equipment, about ten (10) minutes after first observing it, the 

operator had just pulled it over to the side of the bench 

and was getting off of it. He inspected it there and talked 

to the equipment operator at that time about the condition 

of the safety equipment. He states that the bulldozer 

operator made no mention of the dozer being out for repairs. 

Thereafter, he issued the subject citation for the inoperative start-up warning device. 

The start-up alarm's purpose is to give a warning to 

people before the equipment is moved forward. 

He also marked the significant and substantial box on 

the citation because this piece of equipment operates in 

an area where there are people and other equipment also 

operating. The particular hazard he identified was the 

danger to a person or persons who might be afoot in the 

area when this equipment was working without the start-up 

warning device operating and thereby exposing them to a 

possibly serious injury. 

The respondent does not dispute the fact that the 

start-up warning device was inoperative but rather the 

respondent's defense is that the bulldozer was not operating 

on the day in question. Respondent sponsored the testimony 

of Mr. Gerald Mccurdy, who testified to the effect that 

although he had started the bulldozer that morning to see if 

he could find a reported leak, he had not moved the machine 

prior to the arrival of the inspector. 

Therefore, on the ultimate issue of whether or not· 

the bulldozer in question was operating that morning, I 

must make a credibility finding between the inspector's 

testimony and that of Mr. Mccurdy. The record demonstrates 

that the inspector's notes and the citation itself, written 

at or near the time of the violation, agree with his later 

testimony by deposition on all pertinent points. Further, 

the respondent was unable to shake his testimony by crossexamina tion concerning possible misidentification of the 

bulldozer. Mr. McC~rdy, on the other hand, while steadfastly maintaining that he had not operated the dozer that 

1131 
morning, was unable to satisfactorily account for his time 

between 7 and 8:30 a.m., the hour and a half just prior to 

the issuance of the citation. I therefore make the necessary 

credibility finding in favor of the Secretary's witness. 

In accordance with the testimony recited herein of Inspector Klingensmith which I find to be credible, I conclude 

that the cited violation did occur and that it was "significant and substantial" as that term is defined by National 

Gypsum Co., 3 FMSHRC 822 (1981) and Mathies Coal Co., 

6 FMSHRC 1 (1984). 

Considering the criteria in section llO(i) of the Act, 

I conclude that the civil penalty proposed in this case, 

i.e., $58, is appropriate under all the circumstances. 

ORDER 

Citation No. 2402051 is AFFIRMED. Carlson Mining Company is ORDERED to pay a civil penalty of $58 within 30 days 

of the date of this decision. 

Distribution: 

Roy J aurer 

Admiifi.strative Law. Judge 

Susan M. Jordan, Esq., Office of the Solicitor, u. s. Department of Labor, 3535 Market St., Philadelphia, PA 19104 

(Certified Mail) 

Alan Carlson, R.D. #6, Box 43, New Castle, PA 16101 (Certified Mail) 

yh 1132 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYl.INE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

July 30, 1986 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

ON BEHALF OF STERLING 

SCHULTZ, 

Complainant 

v. 

CLEVELAND CLIFFS IRON CO., 

Respondent 

: 

. . 

DISCRIMINATION COMPLAINT 

Docket No. LAKE 86-39-DM 

MSHA Case No. MD 85-03 

Tilden Mine 

ORDER OF DISMISSAL 

Before: Judge Broderick 

The Secretary filed this complaint on behalf of Sterling 

Schultz alleging that on September 18, 1984, Respondent 

intimidated Complainant because he assisted MSHA inspectors 

in conducting safety and health inspections. Respondent 

denied the allegation. The case does not involve any claim 

for back pay or damages. On July 22, 1986, the Secretary 

filed a Motion to Dismiss this proceeding. It included a 

settlement for the Secretary and Respondent. Respondent 

agrees to abide by section lOS(a) of the Act and states that 

it will not take any disciplinary action against Complainant · 

for exercising his rights under section lOS(a). Respondent 

states that Complainant's personnel records do not contain 

any reference to the incidents of September 18, 1984, for 

which this complaint was filed. Respondent regrets the 

incident of September 18, 1984, and any misunderstanding 

that may have arisen from it. 

Based on the facts stated in the motion and the agreement of the parties, the motion is GRANTED, and this proceeding 

is DISMISSED. 

; 

,/ 

James A. Broderick 

Administrative Law Jud~ 

1133 
Distribution: 

Rafael Alvarez, Esq., U.S. Department of Labor, Office of the 

Solicitor, 230 South Dearborn Street, Chicago, IL 60604 

(Certified Mail) 

Mr. Sterling Schultz, Route 1, 37538 County Road 496, Champion, 

MI 59814 (Certified Mail) 

Ronald E. Greenlee, Esq., Clancy, Hansen, Chilman, Graybill & 

Greenlee, P.C., Peninsula Bank Building, Ishpeming, MI 49849 

(Certified Mail) 

slk 

1134 *U, S. GOVERNMENT PRINTING OFFICE 1986; 491-223/53105