NOVEMBER 1989 

COMMISSION DECISIONS 

11-08-89 

11-14-89 

11-20-89 

11-20-89 

11-21-89 

11-22-89 

11-30-89 

O'Neal Machine & Repair 

Clinchfield Coal Company 

Blue Circle Atlantic, Inc. 

A.H. Smith Stone Company 

Garden Creek Pocahontas Company 

Rochester & Pittsburgh Coal Co. 

Sec. Labor for Juan Pena v. Eisenman Chemical Co. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-01-89 

11-06-89 

11-07-89 

11-07-89 

11-07-89 

11-09-89 

11-09-89 

Midwest Minerals, Inc. 

Warren Clyde Teets v. Mettiki Coal Co. 

Sec. Labor for William J. Brock v. Blue Circle 

Sidney Coal Company 

Walsenburg Sand & Gravel Co. 

John Dixon Hacker v. Black Streak Mining 

Sec. of Labor for Michael A. Carrano v. 

Blue Circle Atlantic, Inc. 

WEVA 89-150 Pg. 

VA 89-67-R Pg. 

YORK 89-45-M Pg. 

YORK 89-46-M Pg. 

VA 88-9 Pg. 

PENN 88-152-R Pg. 

CENT 85-47-DM Pg. 

2117 

2120 

2144 

2146 

2148 

2159 

2166 

CENT 89-67-M Pg. 2169 

YORK 89-15-D Pg. 2174 

CENT 89-24-DM Pg. 2181 

KENT 89-80-R Pg. 2228 

WEST 88-96-M Pg. 2233 

KENT 89-1-D Pg. 2240 

YORK 89-47-DH Pg. 2271 

11-13-89 

11-13-89 

11-13-89 

Sec. of Labor for Fred Bartley v. Adams 

Beth Energy Hines, Inc. 

Stone Co. KENT 89-102-DM Pg.2273 

11-15-89 

11-15-89 

11-15-89 

11-17-89 

11-17-89 

11-17-89 

11-17-89 

11-20-89 

11-21-89 

11-21-89 

11:-21-89 

11-21-89 

11-24-89 

11-27-89 

11-27-89 

11-27-89 

11-28-89 

11-28-89 

11-28-89 

11-28-89 

11-29-89 

11-30-89 

Sec. of Labor for Dan Nelson and others, and 

UMWA v. Jim Walter Resources, Inc. 

Consolidation Coal Company 

Sec. of Labor for James S. Terry v.Timberline 

Energy, Inc. and Randy Burke 

Sec. of Labor for John L. Jones v. Virginia 

Carbon, Inc. and others 

Beth Energy Mines, Inc. 

Beth Energy Mines, Inc. 

Beth Energy Mines, Inc. 

Sec. of Labor for Dan Nelson and UMWA v. 

Jim Walter Resources, Inc. 

L.E.L. Construction 

Haskell County Gravel Co., Inc. 

Cyprus Emerald Resources Corp. 

Jeffrey Brown v. Beth Energy Mines, Inc. 

Asarco, Incorporated 

Joseph G. Delisio v. M~thies Coal Co. 

William D. Long, employed by K.R. Wilson 

Contracting, Inc. 

K.R. Wilson Contracting, Inc. 

Kenneth Wilson employed by K.R. Wilson Contr. 

Vandalia Sand & Gravel 

Jim Walter Resources, Inc. 

Leeco, Incorporated 

Mountain Parkway Stone, Inc. 

Blue Circle Atlantic, Inc. 

Malvern Minerals Company 

PENN 89-152 Pg. 2275 

SE 89-63-D Pg. 2277 

WEVA 89-52 Pg. 2279 

WEVA 89-105-D Pg. 2287 

WEVA 89-227-D Pg. 2297 

PENN 89-40 Pg. 2299 

PENN 89-184 Pg. 2305 

PENN 90-2-R Pg. 2308 

SE 89-107-D Pg. 2310 

WEST 88-274-M Pg. 2312 

CENT 89-69-M Pg. 2328 

PENN 88-287 Pg. 2329 

PENN 89-228-D Pg. 2350 

SE 88-82-RM Pg. 2351 

PENN 89-8-D Pg. 2353 

CENT 89-122-M Pg. 2358 

CENT 89-27-M Pg. 2359 

CENT 89-126-M Pg. 2360 

LAKE 89-36-M Pg. 2361 

SE 89-93 Pg. 2364 

KENT 89-192 Pg. 2369 

KENT 89-137-M Pg. 2374 

YORK 89-45-M Pg. 2380 

CENT 88-118-M Pg. 2382 

ADMINISTRATIVE LAW JUDGE DECISIONS (continued) 

11-30-89 

11-30-89 

11-30-89 

Kathleen I. Tarmann v. International Salt Co. 

Frederick J. Boucher v. Svonavec foal Co. 

Industrial Constructors Corporation 

ADMINISTRATIVE LAW JUDGE ORDERS 

11-03-89 

11-16-89 

Richard R. Maynes v. Phelps Dodge Corporation 

2 K Leasing 

LAKE 89-56-DM Pg. 2391 

PENN 89-248-D Pg. 2392 

WEST 89-86-M Pg. 2393 

CENT 89-132-DM Pg. 2395 

WEVA 89-103 Pg. 2396 

NOVEMBER 1989 

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

Secretary of Labor, MSHA v. O'Neal Machine and Repair, Docket No. WEVA 89-150. 

(Chief Judge Merlin, Default Order of September 20, 1989) 

Secretary of Labor, MSHA v. Rochester & Pittsburgh Coal Company, Docket No. 

PENN 88-284-R, 285-R, PENN 89-72. (Judge Maurer, October 4, 1989) 

Harry Ramsey v. Industrial Constructors Corporation, Docket No. WEST 88-246-DM. 

(Judge Morris, October 10, 1989) 

Secretary of Labor, MSHA v. Blue Circle Atlantic, Inc., Docket No. YORK 89-45-M. 

(Chief Judge Merlin, Default Order of October 26, 1989) 

Secretary of Labor, MSHA v. A.H. Smith Stone Company, Docket No. YORK 89-46-M. 

(Chief Judge Merlin, Default Order of October 24, 1989) 

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

WEVA 89-124-R, 89-204. (Judge Broderick, October 17, 1989) 

Secretary of Labor, MSHA v. Southern Ohio Coal Company, Docket No. WEVA 88-144-R, 

WEVA 88-212. (Judge Maurer, October 16, 1989) 

Rochester & Pittsburgh Coal Company v. Secretary of Labor, Docket No. 

PENN 88-309-R, 88-310-R. (Judge Weisberger, October 17, 1989) 

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

Secretary of Labor, MSHA v. Lyon Washed Sand & Gravel., Docket No. LAKE 89-28-M. 

(Judge Broderick, September 28, 1989) 

Secretary of Labor, MSHA v. A.H. Smith Stone Company, Docket No. VA 89-28-M. 

(Chief Judge Merlin, September 29, 1989) 

Kenneth Howard v. B & M Trucking Co., Docket No. KENT 89-2-D. (Judge Melick, 

October 6, 1989) 

Secretary of Labor, MSHA v. Green River Coal Company, Docket No. KENT 89-126. 

(Judge Broderick, October 20, 1989) 

Secretary of Labor, MSHA v. Eastern Associated Coal Corporation, Docket No. 

WEVA 89-192, Petition to Reconsider Interlocutory Review denied. 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 8, 1989 

Docket No. WEVA 89-150 

O'NEAL MACHINE & REPAIR, INC. 

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

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

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

September 20, 1989, Commission Chief Administrative Law Judge Paul 

Merlin issued an Order of Default finding O'Neal Machine & Repair, Inc. 

("O'Neal") in default for failure to answer the Secretary of Labor's 

Petition for Assessment of Civil Penalty and the judge's Order to Show 

Cause. The judge assessed a civil penalty of $5,300, the amount 

proposed in the Secretary's penalty petition. By letter to the 

Secretary of Labor dated September 25, 1989, O'Neal asserted that it had 

previously sent to the Department of Labor's Mine Safety and Health 

Administration ("MSHA"), within the time permitted for answering a 

penalty proposal, a written "reply to the penalties assessed against 

us." A copy of a certified mail return receipt, enclosed with O'Neal's 

September 25 letter, indicates that its May 11, 1989, reply was received 

in MSHA's Arlington, Virginia offices on May 15, 1989. O'Neal 1 s 

September 25 correspondence was subsequently forwarded to the Commission 

by the Secretary. We deem O'Neal's September 25 letter to constitute a 

request for review. See, ~· L&L Gravel, 11 FMSHRC 803-04 (May 1989). 

For the reasons discussed below, we reopen this proceeding, grant 

O'Neal's request for review, vacate the judge's default order, and 

remand for further proceedings. 

It appears from the record that O'Neal, acting pro se, attempted 

to file its answer to the Secretary's civil penalty petition within the 

30-day period of time prescribed for replying to a penalty proposal (~ 

29 C.F.R. § 2700.28). Although the document was mistakenly sent to 

MSHA, and was not filed with this Commission, an adjudicatory agency 

separate and independent from the Department of Labor and MSHA, as 

required (~ 29 C.F.R. §§ 2700.S(b) & .28), O'Neal appears to have been 

attempting in good faith to comply with its filing responsibilities. 

2117 
Under the circumstances, we conclude that O'Neal should be afforded the 

opportunity to explain its filing attempts to the judge, who shall 

determine whether final relief from default is appropriate. See, ~· 

El Paso Sand Products, Inc., 10 FMSHRC 960 (August 1988). 

For the foregoing reasons, we vacate the judge's default order and 

remand this matter for further proceedings. O'Neal's attention is 

directed to the requirement that all further papers submitted in this 

proceeding must be filed with the Commission and copies of all such 

documents served on the Secretary of Labor. 29 C.F.R. §§ 2700.S(b) 

& • 7. '!:_/ 

~ 1~4_d~4~ Richard V. Backley, Commission&r-' 

~/ Commission Procedural Rule S(b) states: 

Where to file. Until the Judge has been assigned to 

a case, all documents shall be filed with the 

Commission. After a Judge has been assigned, and 

before he issues a decision, documents shall be 

filed with the Judge, except for documents filed in 

connection with interlocutory review, which shall be 

filed with the Commission. After the Judge has 

issued his decision, documents shall be filed with 

the Commission. Documents filed with the Commission 

shall be addressed to the Executive Director and 

mailed or delivered to the Docket Off ice, Federal 

Mine Safety and Health Review Commission, 1730 K 

Street, N.W., Sixth Floor, Washington, D.C. 20006. 

29 C.F.R. § 2700.S(b). 

2118 
Distribution 

Winston R. O'Neal 

O'Neal Machine & Repair, Inc. 

P.O. Box 641 

Fayetteville, West Virginia 25840 

Page H. Jackson, Esq; 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

2119 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 14, 1989 

CLINCHFIELD COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF AMERICA 

(UMWA) 

Docket No. VA 89-67-R 

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

DECISION 

BY: Ford, Chairman; Backley and Doyle, Commissioners 

In this contest proceeding arising under the Federal Mine Safety 

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

"Act"), Clinchfield Coal Company ("Clinchfield") seeks review of a 

withdrawal order issued by the Department of Labor's Mine Safety and 

Health Administration ("MSHA"), pursuant to section 104(b) of the Mine 

Act, 30 U.S.C. § 814(b), at Clinchfield's McClure No. 1 Mine. The 

withdrawal order alleges that Clinchfield failed to abate a violation of 

30 C.F.R. § 75.326 (the application of which had previously been 

modified by the Secretary of Labor at the McClure No. 1 Mine) by 

permitting air in excess of 300 feet per minute ("fpm") to be coursed 

over the belt conveyor systems for vent~lation of working places. In 

its contest, Clinchfield seeks, inter alia, vacation.of the withdrawal 

order and extension of the time for abating the violation until 

completion of proceedings before the Department of Labor, conducted 

pursuant to section lOl(c) of the Act, 30 U.S.C. § 8ll(c), concerning 

Clinchfield's separate petition for further modification of section 

75.326, as applied at the McClure No. 1 Mine, to remove the 300 fpm 

limitation. Along with its contest, Clinchf ield also seeks from the 

Commission temporary relief from the withdrawal order pursuant to 

section 105(b) of the Act, 30 U.S.C. § 815(b). 

2120 
In expedited proceedings on Clinchfield's contest, Commission 

Administrative Law Judge James A. Broderick permitted the United Mine 

Workers of America ("UMWA") to intervene. In his written decision in 

this matter, i.ssued on August 30, 1989, 21 days after completion of a 

three-day evidentiary hearing, the judge denied Clinchfield's request 

for temporary relief Dn the grounds that he was then prepared to rule on 

the merits of the operator's contest. He vacated the section 104(b) 

withdrawal order and extended the time for abatement of the violation 

until commencement of the next hearing scheduled before the Department 

'of Labor with respect to Clinchfield's pending petition for modification. 11 FMSHRC 1568 (August 1989)(ALJ). We granted petitions for 

discretionary review ("PDR") filed by Clinchfield and the UMWA and 

granted Clinchfield's request for expedition and oral argument. 

Following completion of briefing pursuant to an expedited briefing 

schedule, we heard oral argument on November 8, 1989. For.the following 

reasons, we affirm the judge's vacation of the withdrawal order and his 

extension of the time for abatement but modify the terms of that 

extension as explained below. 

I. 

Factual and Procedural Background 

Clinchfield's McClure No. 1 Mine is an underground coal mine 

located near McClure, Virginia, and has been in operation since 1979. 

The mine is a gassy mine, liberating more than four million cubic feet 

of methane per 24-hour period. 1/ 

Pursuant to a modification petition filed by Clinchfield on 

December 21, 1979, under section lOl(c) of the Mine Act, MSHA, in 

October 1980, modified the application of 30 C.F.R. 75.326 at the mine 

by granting Clinchfield permission to use air coursed through belt 

conveyor entries to ventilate working places. ~/ MSHA's approval, 

contained in an amended proposed decision and order issued on January 

29, 1981, which became effective by operation. of law (i.e., was not 

opposed), did not limit the velocity of air coursed through the belt 

lf There was a serious explosion in a combined belt/track entry of 

the mine in 1983. Since 1983 the mine also has been evacuated a number 

of times because of excessive methane. 

~/ 30 C.F.R. 75.326 states in pertinent part: 

In any coal mine opened after March 30, 1970, the 

entries used as intake and return air courses shall 

be separated from belt haulage entries, and each 

operator of such mine shall limit the velocity of 

the air coursed through belt haulage entries to the 

amount necessary to provide an adequate supply of 

oxygen in such entries, and to insure that the air 

therein shall contain less than 1.0 volume per 

centum o.f methane, and such air shall not be used to 

ventilate active working places ••.. 

2121 
haulage entries for purposes of ventilating working places. MSHA 

imposed various conditions, including the installation of an early 

warning fire detection system based on monitoring carbon monoxide (the 

"CO system"). }./ 

On August 21, _1986, Clinchfield, in a proposed amendment to the 

modification, requested that the alarm levels of the CO system be raised 

because its system was having problems with false alarms. MSHA granted 

the request in a proposed decision and order issued February 10, 1987, 

which became effective by operation of law. The modification was 

subject to a number of conditions, however, including a limit of 300 fpm 

on the velocity of air coursed through the belt entries to ventilate 

working places. 

On July 1, 1987, Clinchfield filed another proposed amendment to 

the modification, requesting that the maximum velocity limit be 

increased from 300 fpm to 1,200 fpm. As justification, it indicated 

that there were large quantities of methane trapped in the coalbed of 

the mine and that large quantities of air were required to dilute and 

carry off the methane liberated during mining and from mined surfaces 

after mining. Clinchfield alleged that the 300 fpm restriction would 

allow methane to accumulate and result in a diminution of safety. MSHA 

investigated the request and granted the petition on September 14, 1988, 

in a proposed decision and order with conditions. No maximum velocity 

limit was prescribed in the proposed decision and order. 

On October 13, 1988, the UMWA filed a request with the Department 

of Labor for a hearing on the proposed decision and order, challenging 

elimination of the 300 fpm air velocity limit. The modification 

proceeding was assigned to a Department of Labor administrative law 

judge, and a hearing was scheduled to begin in that case on November 13, 

1989. 

On June 5, 1989, almost two years after Clinchfield had filed its 

proposed amendment to increase the 300 fpm maximum velocity limit, MSHA 

inspector James Baker issued a citation to Clinchfield alleging a 

violation of 30 C.F.R. 75.326, as modified. The citation alleges that 

the velocity of air being coursed over the belt entries was in excess of 

300 fpm. Clinchfield was given until June 30, 1989, to abate the 

violation alleged in the citation and was subsequently given an 

extension to July 31, 1989. MSHA extended the abatement time set in the 

citation on condition that Clinchfield request an expedited hearing on 

the section lOl(c) modification petition seeking the increase in air 

velocity in the belt conveyor entries. On June 21, 1989, Clinchfield 

requested an expedited hearing on the section lOl(c) petition. 

By August 1, 1989, Clinchfield had failed to abate the violation. 

Inspector Baker then issued an order of withdrawal under section 104(b) 

of the Mine Act. Specifically, this order prohibited activity in any 

}./ The terms of MSHA's January 29, 1981 decision and order were not 

implemented until 1983, some time after the 1983 explosion referred to 

in n. 2, supra. 

2122 
working place that was ventilated with belt air velocities exceeding 300 

fpm. 

On August 2, 1989, Clinchfield filed its contest of the section 

104(b) withdrawal order, challenging the validity of the order of 

withdrawal, arguing -that compliance with the order's terms would result 

in a diminution of safety to miners, and requesting expedited 

proceedings. In addition, Clinchfield argued that the time set for 

abatement of the order was unreasonable. On August 3, 1989, Clinchfield 

filed a Motion for Temporary Relief from the withdrawal order, pursuant 

to section 105(b) of the Mine Act, requesting extension of the time set 

for abatement until the issues presented in the contest proceeding were 

resolved. The judge subsequently granted the request for expedition and 

the UMWA's request to intervene. 

At the hearing before the judge on August 7-9, 1989, Clinchfield 

took the position that compliance with the withdrawal order would result 

in a diminution of safety. Clinchfield's independent consultant Donald 

Mitchell testified that the 300 fpm ceiling represented an unacceptable 

hazard to the health and safety of the miners in the mine. I Tr. 162, 

177; III Tr. 127, 135. Clinchfield also argued before the judge that 

lifting the 300 fpm ceiling would enhance safety since dilution of 

methane would be facilitated. Accordingly, in Clinchfield's view, the 

abatement time was unreasonable under the circumstances and should be 

extended at least until the section lOl(c) proceeding could be heard. 

The Secretary took the position that the 300 fpm ceiling may 

result in a diminution of safety at the mine and that lifting the 

ceiling would not adversely affect the safety of the miners. MSHA 

inspector Baker testified that the 300 fpm velocity would not dilute the 

methane liberated in the mine's belt entries to a safe amount, and that 

to enforce the 300 fpm velocity "would pose a hazard." I Tr. 44, 51, 

53. Baker also testified that additional velocity was necessary to 

ventilate the faces. I Tr. 60. Baker stated that MSHA officials who 

worked with him, including his immediate supervisor, subdistrict 

manager, and district manager, agreed that the 300 fpm ceiling posed a 

hazard. I Tr. 51-52. Additionally, MSHA District Manager/Supervisory 

Mining Engineer Robert Elam testified that abatement of the violation 

would result in diminution of safety to the miners in the mine, 

indicating that the 300 fpm ceiling was inadequate to move methane out 

of the mine and to dilute and render it harmless. I Tr. 79-80, 108, 

116-17. Thus, in Elam's view, the 300 fpm ceiling diminished safety. 

I Tr. 110, 126. See also III Tr. 61-62. Elam further testified that 

increased velocity would help in methane dilution and benefit the mine. 

I Tr. 124. 

The Secretary introduced an affidavit by Jerry L. Spicer, MSHA 

Administrator for Coal Mine Safety and Health, which states his belief 

"that the safety of miners at the McClure Mine is enhanced by removing 

the 300 fpm belt entry air velocity" MSHA-X 4. The Secretary stated 

that the Commission could: (1) determine, pursuant to section 105(d) of 

the Act, that the length of the abatement period was unreasonable and 

modify or vacate the period; or (2) grant temporary relief from the 

withdrawal order under section 105(b) of the Mine Act. 

2123 
The UMWA took the position that the 300 fpm ceiling did not result 

in a diminut.ion of safety at the mine but that lifting the 300 fpm 

ceiling would. The UMWA submitted that the 300 fpm ceiling was adequate 

to dilute the.methane, especially in conjunction with other alternatives. UMWA international representative Thomas Rabbitt testified 

that the 300 fpm ceiling could dilute and render harmless methane in the 

most inby areas in the mine. II Tr. 93, 132-33. While the UMWA 

implicitly conceded that increasing the air velocity would reduce 

methane in the working sections, it argued that the adverse effects 

resulting from the increase in velocity would, nevertheless, result in a 

diminution of safety to the miners. Rabbitt testified that greater air 

flow increases the oxygen available to fan a fire, and UMWA Deputy 

Administrator for Safety Robert J. Scaramozzino agreed that high air 

velocities would cause quick propagation of a fire. II Tr. 101, 155, 

168. The UMWA's witnesses also emphasized that float coal dust 

involving conveyor belt entries is one of the major fire and ignition 

sources in a coal mine, and that high air velocities will pick the dust 

up, suspend it in the air, and disperse it through the entry, thereby 

aggravating the hazard. II Tr. 155-56, 163, 241, 249; III Tr. 23, 124. 

UMWA Deputy Administrator in the Department of Occupational Health James 

Weeks testified that a higher air velocity has the tendency to pick up 

respirable dust. II Tr. 206-208, 220. UMWA witnesses also testified 

that higher air velocity would dilute the carbon monoxide necessary to 

activate the CO system and, as a result, a larger fire would be needed 

to generate the necessary carbon monoxide, delaying the operation of the 

sensing and warning system. I Tr. 221-22, 230-31, 249-50; II Tr. 102. 

The UMWA also argued that there were a number of alternative 

methods of methane control available to Clinchfield. These proposals 

included increasing the number of entries, point feeding, increasing the 

velocity in the intake entries, drilling degassification holes, putting 

the track and belt in the next entry, changing the design for developing 

longwall panels, staggering crosscuts involving roof support, and 

inducing water into the coal seam. 

The Secretary's witnesses rebutted the UMWA's positions by 

pointing out that all mines are required to control respirable dust and 

float coal dust, and that if control is inadequate enforcement 

activities can be instituted by the Secretary. See 30 C.F.R. §§ 70.100, 

75.316, and 75.400. II Tr. 218-19; III Tr. 35-36, 44, 56. It was also 

stated that studies by the Bureau of Mines of the United States 

Department of Interior indicate no expanded propagation of mine fires 

when air velocities are increased to as much as 800 fpm. Tr. 107, 119; 

II Tr. 154; MSHA-X 6. There was also testimony that the higher velocity 

would actually lead to a more efficient CO detection system because the 

product combustion would pass more quickly·from one sensor to the next. 

Tr. 118; III Tr. 117, 120, 121. Moreover, the Secretary's witnesses 

also stated that increasing the number of entries would cause roof 

control problems in the mine. Tr. 90, 113; III Tr. 59. Finally, the 

Secretary's and Clinchfield's witnesses tesified that the other 

alternative methods of methane control proposed by the UMWA were either 

impractical or ineffective. 

After the presentation of concluding oral argument by the parties, 

2124 
Judge Brode~ick issued a bench decision, which he incorporated in his 

written decision issued on August 30, 1989. Initially, the judge 

indicated that, because he had heard "the entire testimony on the 

merits," he was denying the motion for.section 105(b) temporary relief. 

11 FMSHRC at 1569. The judge noted that Clinchfield did not deny that 

the alleged violation existed. 11 FMSHRC at 1570. Rather, Clinchfield' s argument that the time set for abatement was unreasonable and 

should be further extended was based upon its assertion that complying 

with the standard would create a diminution of safety in the mine. The 

judge stated that Clinchfield and the Secretary had submitted a 

substantial amount of evidence that enforcement of the 300 fpm limit 

would result in a serious danger of a methane fire or explosion and that 

the UMWA had presented a substantial amount of evidence that exceeding 

the 300 fpm limit would result in a serious danger of propagating any 

belt fires and increasing float coal dust and respirable dust. 

11 FMSHRC at 1571. The judge stated, however, that he did not have 

jurisdiction to determine whether the belt entry air velocity 

requirements should be increased or kept at the same level and that the 

question before him was whether to affirm, vacate, or modify the 

contested order. Id. The judge indicated: 

... I am not in any way discounting or minimizing 

the substantial safety issues raised by the 

Intervenor, the United Mine Workers of America. 

Neither am I attempting to weigh the evidence on 

either side of the issue, which is the 

responsibility of the authorities charged with 

deciding the Petition for Modification. 

Id. However, the judge concluded as follows: 

On the bases of the substantial evidence submitted 

by [Clinchfield] Contestant and the Secretary, and 

particularly that submitted by the Mine Safety and 

Health Administration, which is the government 

agency charged with enforcing the Act in the 

interests of the safety of miners, and because there 

is a pending petition for modification which is 

intended to resolve the conflicting views relative 

to safety and hazards presented by the belt entry 

air velocity, I hereby order that [the section 

104(b)] Order of Withdrawal ... is DISSOLVED. 

* * * 

I am ... ruling that in view of the Secretary's 

position and the evidence introduced in support of 

it, that complying with the contested citation and 

order may result in a diminution of safety, and in 

view of the pending petition for modification, 

relief should be granted. I am granting it from the 

terms of the order until this matter is submitted 

for decision on the Petition for Modification. 

2125 
Id. 

Accordingly, the judge vacated the contested withdrawal order and 

modified the underlying citation by extending the time for its abatement 

until "the date the hearing commences on the pending Petition for 

Modification." 11 FMSHRC at 1572. As noted, we subsequently granted 

the PDRs filed by both Clinchfield and the UMWA and heard oral argument. 

The UMWA argues in its PDR that the judge erred by failing to make 

the findings necessary to support his conclusion that the time for 

abatement should be extended. The UMWA also asserts that even if the 

judge did enter the necessary findings, substantial evidence does not 

support them. UMWA PDR at 3-4. Accordingly, the UMWA requests that the 

decision be reversed and the withdrawal order reinstated. 

Further, noting that the effect of the judge's decision is to 

allow Clinchf ield temporary relief from the requirements of section 

75.326, the UMWA contends that the decision violates UMWA v. MSHA, 823 

F.2d 608 (D.C. Cir. 1987), which, according to the UMWA, prohibits 

temporary relief from the application of a standard, pending a decision 

on a petition for modification. UMWA PDR at 5. 

In its PDR, Clinchfield argues that the judge's decision does not 

go far enough. First, the relief granted is inadequate, in that the 

judge should have extended the abatement period until a final order is 

issued in the modification proceeding. In the alternative, the 

Commission should recognize a diminution of safety defense to the 

alleged violation, find that Clinchfield established that defense, and 

vacate the citation and order. C. PDR at 7-8. 

Second, Clinchfield asserts that the decision is inconsistent with 

the purposes of the Act because it does not protect the miners from the 

hazards of compliance once the abatement period ends. Therefore, the 

Commission should declare invalid the Secretary's policy of refusing to 

extend further the abatement period and should grant Clinchf ield 

declaratory relief to that effect. C. PDR at 8-13. 

In its brief on review, the UMWA primarily argues that the judge's 

decision must be reversed because the judge failed to make the findings 

of fact and conclusions of law necessary to support his vacation of the 

withdrawal order and his conclusion that the time for abatement should 

be extended. The UMWA asserts that although the judge concluded, in 

vacating the order, that complying with the contested citation and order 

may result in a diminution of safety, he made no factual findings to 

support that conclusion. UMWA Br. at 3-4. The UMWA alternatively argues 

that, in any event, substantial evidence does not establish that 

~ompliance with the cited standard will diminish safety because the 

record contains testimony regarding ways Clinchfield can comply with the 

300 fpm requirement without adversely affecting safety and because there 

is. testimony that non-compliance increases the danger to miners in other 

areas of the mine. UMWA Br. at 5, 8-10. Therefore, the UMWA contends 

that the effect of the judge's decision is to grant temporary relief 

without complying with the statutory requirements of section 105(b), 

which requires a specific finding that if relief is granted, the health 

2126 
and safety of miners will not be adversely affected. See 30 U.S.C. 

§ 815(b)(2)(C). UMWA Br. at 10-11. 

In its briefing to the Commission, Clinchfield first asserts that 

the relief awarded by the judge is inadequate to protect the health and 

safety of the miners. Clinchfield argues that in light of the judge's 

finding that limiting the belt air velocity to 300 fpm may create a 

diminution of safety, it is illogical not to extend the abatement time 

for the underlying citation until a final order is issued in the 

modification case. C. PDR (designated as main brief) at 7. Clinchfield 

also argues that the Commission should recognize a diminution of safety 

defense to an alleged violation when the defense is necessary to avoid 

subjecting miners to the greater hazards caused by compliance. 

C. PDR at 8. 

Finally, Clinchfield argues that, because the judge set the 

termination date of the citation to coincide with the commencement of 

the modification hearing, the probable result of his decision is that 

Clinchfield will be faced with another closure order 11 and the parties' 

attention will be refocused in the Review Commission forum. 11 C. PDR 

at 9. To end the threat of duplicative litigation in separate forums, 

the Commission should grant Clinchfield declaratory relief. Such relief 

is not prevented by UMWA v. MSHA, supra, which only addresses the 

validity of the Secretary's procedure for interim relief in a 

modification proceeding under 30 C.F.R. § 44.16. C. PDR at 10. 

Therefore, Clinchfield requests that the Commission: (1) extend the 

abatement period until a final order is issued in the section lOl(c) 

modification proceeding; (2) vacate the underlying citation on the 

grounds that a diminution of safety is a defense to the violation; or 

(3) grant temporary relief until a final order is issued in the 

modification proceeding. 

The Secretary in her brief asserts that in a contest proceeding, 

the Commission may consider safety in determining whether an abatement 

period is reasonable and, further, that the Commission may extend the 

abatement time if it finds, based on the evidence before it, that 

compliance will likely diminish safety. Sec. Br. at 9. However, once a 

petition for modification proceeding commences, the Secretary's position 

appears to be that the operator ought to seek interim relief in that 

proceeding. The Secretary argues that MSHA did not err in refusing to 

extend the abatement time because to do so would be, effectively, to 

give Clinchfield temporary relief without the procedural safeguards 

insisted upon by the Court in UMWA v. MSHA. Sec. Br. at 8. 

However, the Secretary goes on to note that while the D.C. Circuit 

in UMWA v. MSHA held that the Mine Act does not authorize the granting 

of interim relief in a modification proceeding based upon a finding that 

such relief will not adversely affect the health or safety of miners and 

without providing the procedural safeguards required by section lOl(c), 

the Court specifically stated that it was not deciding whether the 

Secretary has the authority to grant interim relief when there is a 

possibility that application of the standard will increase the danger to 

miners. Sec. Br. at 5, citing 823 F.2d at 616 n. 6. The Secretary 

points out that, following UMWA v. MSHA, the Assistant Secretary ruled 

2127 
in Utah Power and Light Co., slip op. at 8-9 (No 86-MSA-3, August 14, 

1987), that MSHA has authority to grant interim relief where application 

of a standard will result in diminution of safety to miners, provided 

there is an opportunity for a hearing and/or appeal and provided interim 

relief is of a limited duration. Sec. Br. at 5-6. Thus, Clinchfield 

may seek interim relief in the section lOl(c) proceeding in accordance 

with the UP&L guidelines, but the Secretary notes that the operator has 

not yet done so. Sec. Br. at 7. 

It is also important to note that the Secretary states that before 

the judge, MSHA offered evidence that application of the mandatory 

standard of the mine would diminish safety. However, the Secretary now 

avers that she "takes no position on that issue." That question r_emains 

to be litigated and decided by the Secretary in the course of the 

pending section lOl(c) modification proceedings. Sec. Br. at 8 n. 2. 

II. 

Disposition of Issues 

We cannot improve upon the introductory observation in Judge 

Broderick's decision that "the overriding value in the Mine Act is the 

health and safety of the miners, and all Commission decisions interpreting the Mine Act have to keep that overriding value foremost." 

11 FMSHRC at 1569. See 30 U.S.C. § 801(a). With that statutory 

objective as our guide, we conclude that the Commission possesses 

jurisdiction, in appropriate circumstances, to extend the time for 

abatement of a cited violation, upon reasonable terms and conditions, 

while a petition for modification of the cited standard is being 

considered by the Secretary pursuant to section lOl(c) of the Act. We 

further determine that the Secretary also possesses ample enforcement 

discretion to extend the time for abatement under such circumstances. 

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

decision to extend the time for abatement in this matter, although we 

modify the terms of that extension as set forth below. 

We turn first to the jurisdictional question. We note that the 

Secretary, whose interpretations of the statute, if reasonable, are 

entitled to deference, takes the position that the Commission has 

jurisdiction to extend the time for abatement under the kind of 

circumstances presented by this case. We also note that the UMWA has 

not asserted that we lack such jurisdiction. 

In a contest of a section 104(b) withdrawal order issued for 

failure to abate a cited violation, the operator, as here, may challenge 

· the reasonableness of the length of time set for abatement or the 

Secretary's failure to extend that time. See,~' Old Ben Coal Co., 

6 IBMA 294, 306-307 (1976); U.S. Steel Corp., 7 IBMA 109, 116 (1976); 

Youghiogheny & Ohio Coal Co., 8 FMSHRC 330, 338-39 (March 1986)(ALJ) 

("Y&O"). A considerable body of precedent, arising under the 1969 Coal 

Act and continuing under the Mine Act, has recognized that in such 

contests, the degree of danger that any extension of abatement time 

would cause miners is a relevant factor to be assessed in judicially 

approving such an extension. See, ~' Y&O, supra. In a similar vein, 

2128 
under the .1969 Coal Act, the Interior Board of Mine Operations Appeals 

("Board") held that an operator's filing of a petition for modification 

"should be a major consideration in determining the reasonableness of 

the time set for abatement of any alleged violation which relates to the 

••. standard sought to be modified." Reliable Coal Corp., 1 IBMA 97, 

113 (1972). The Board indicated that the time set for abatement of an 

alleged violation could be extended in an enforcement contest during the 

pendency of a separate modification proceeding upon a showing by the 

operator, inter alia, that the petition for modification was filed in 

good faith, and not for the purpose of postponing or avoiding abatement, 

and that during the period of the abatement extension "the health and 

safety of the miners will be reasonably assured." Reliable, supra. 

This precedent focuses primarily on the dangers of continued noncompliance with a cited standard during a period of abatement and not, 

directly at least, on the related question of whether compliance with 

the cited standard may pose hazards to miners. The latter subject lies 

at the heart of any petition for modification based on a claim that 

"application of [a] standard to [a particular] mine will result in a 

diminution of safety to the miners in such mine." 30 U.S.C. § 811(c). 

We also recognize that Reliable arose under the 1969 Coal Act, when both 

enforcement and modification jurisdictions were held within the same 

governmental Department. Nevertheless, we find it a reasonable 

construction of the relevant statutory language and an appropriate 

harmonizing of the modification and enforcement processes under the Mine 

Act to conclude that a challenge to the reasonableness of abatement time 

may be grounded upon the relative hazards to miners stemming from either 

immediate or deferred compliance with a cited standard. 

Specifically, where an operator has filed a modification petition 

premised upon diminution of safety with respect to application of a 

standard, we conclude that the broad concept of the "reasonableness" of 

the time set for abatement of the violation of the cited standard may 

appropriately encompass in a contest proceeding an assessment of the 

relative hazards to miners of immediate compliance or an extension of 

abatement time. In this regard, we assign considerable weight to the 

construction of the Act urged on review by the Secretary. See, ~' 

Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537 (D.C. Cir. 

1986), citing Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1552 (D.C. 

Cir. 1984). In her brief the Secretary aptly states: 

An operator does have a right ... to contest 

before the Commission a section 104(b) failure to 

abate withdrawal order and reasonableness of the 

abatement time set in a section 104(a) citation. In 

such a contest, a full record hearing is afforded 

the parties, with the right of appeal to the 

Commission and the courts. 

It is the Secretary's position that in 

adjudicating the reasonableness of abatement time in 

a case where the operator also has a modification 

petition pending with the Secretary under section 

lOl(c), the Commission may appropriately extend the 

2129 
abatement time if it finds from the record evidence 

before it a likelihood that safety of miners would 

be diminished by compliance with the cited mandatory 

standard. The purpose of the Mine Act is to protect 

miners. In determining whether an abatement period 

is reasonable, it is certainly proper for the 

Commission·· to take into account miner safety and 

provide adjudicatory relief accordingly under 

section 105(d). In so doing, the Commission will be 

acting upon record facts developed after a full 

opportunity for a hearing to all parties, including 

those opposing the relief, with rights of any 

aggrieved party to seek administrative and judicial 

review. Action by the Commission in this regard 

would not, therefore, be contrary to otherwise 

expressed congressional intent. 

Sec. Br. at 8-10 (footnotes omitted). 

This approach is a sensible harmonizing of the separate enforcement and modification processes in the Mine Act. Although the Mine Act 

allocates to the Secretary the judicial authority to hear and decide 

modification petitions, it reserves to the Commission the judicial 

authority to resolve enforcement contests involving the reasonableness 

of abatement time. Where a modification petition has not been finally 

decided, a situation may arise -- and, as explained below, we conclude 

that this case presents that situation -- where, because of the hazards 

posed by immediate compliance, extension of abatement time is called for 

in order to protect the safety of miners. Given the Act's bifurcated 

structure in this area, this conclusion represents, in our judgment, a 

logical extension of the Reliable doctrine. 

This conclusion does not conflict with the Commission's decisions 

in Sewell Coal Co., 5 FMSHRC 2026 (December 1983), and Penn Allegh Coal 

Co., 3 FMSHRC 1392 (June 1981). In those decisions, the Commission 

held, in general, that diminution of safety may not be raised as a 

defense to violation in an enforcement proceeding unless the Secretary 

has first entered a finding of such diminution in a modification 

proceeding. See Sewell, 5 FMSHRC at 2029. These decisions stand for 

·::he general proposition that the proper forum for raising and resolving 

the issue of diminution of safety is a modification proceeding. The two 

decisions also manifest a view that the Commission must not infringe 

upon the Secretary's jurisdiction in a section lOl(c) modification 

proceeding. However, Sewell specifically left open resolution of 

whether a diminution of safety defense ought to be recognized in "the 

s:_·::uation where an enforcement proceeding has been heard before the 

:?etition for modification has been finally resolved .... " 5 FMSHRC at 

2030 n.3. While these two decisions preclude any purported resolution 

in an enforcement proceeding of a modification petition based upon 

diminution of safety per se, we do not view them as barring the 

Commission from weighing the hazards to miners of compliance vs. noncompliance within the context of an extension of abatement time contest. 

?he Mine Act also clearly contemplates in its enforcement 

2130 
structure that situations may arise where temporary or other appropriate 

relief from a withdrawal order is warranted in furtherance of safety and 

health. Thus, section 105(b)(2), 30 U.S.C. § 815(b)(2), permits an 

operator to seek "temporary relief" from any order issued under section 

104 based upon a showing, in part, that "such relief will not adversely 

affect the health and safety of miners." To similar effect, section 

lOS(d) of the Act, 30 U.S.C. § 815(d), permits the Commission, in 

deciding contests of citations and orders, to "direc[t] other 

appropriate relief." These provisions are congruent with the result 

reached today. 

Therefore, taking particular account of the Secretary's views in 

this case, we hold that an operator may challenge the reasonableness of 

the time fixed for abatement, and the Commission may, in appropriate 

instances, extend it, upon a showing that: (1) the operator has, in good 

faith, filed a petition for modification of the cited standard based on 

its belief that application of the cited standard will diminish the 

safety or health of miners; and (2) the hazards of immediate compliance 

outweigh any hazards associated with deferral of the time for abatement. 

We emphasize that it is not the Commission's province to attempt any 

determination of the central issue in the modification proceeding, 

namely, whether application of the standard in the particular mine will 

result in a "diminution of safety." Plainly, the inquiry we approve 

today will involve similar issues, but the context here pertains only to 

the enforcement question of whether a particular time for abatement may 

reasonably be extended in light of the relative hazards posed to miners. 

In view of the general teaching of Penn Allegh and Sewell, we further 

hold that any extension of abatement time must be of reasonable duration 

and must not infringe upon the orderly procedures of the modification 

process. We do not read any provision of the Mine Act as specifically 

prohibiting this result. Rather, we conclude that, as a matter both of 

reasonable statutory construction in an area in which the Act is silent 

and of our development of sound policy under the Act (~ 30 U.S.C. 

§ 823(d)(2)(A)(ii)(IV) & (B)), this determination best effectuates miner 

health and safety and harmonizes the separate modification and 

enforcement processes. 

The UMWA argues that UMWA v. MSHA prohibits any Commission action 

that, in effect, amounts to modification of a mandatory standard outside 

section lOl(c) channels. We disagree. First, that decision expressly 

left open the question of the Secretary's power in modification 

proceedings to grant interim relief from application of a mandatory 

standard "when there is a possibility that application of the standard 

will increase ... danger to the miners" or when an emergency situation 

obtains. 823 F.2d at 616 n. 6. The modification decision of the 

Assistant Secretary of Labor in Utah Power & Light Co., No. 86-MSA-3 

(petition for modification proceeding)(August 14, 1987)("UP&L"), holds 

that, indeed, the Secretary may provide such inter~m relief in the 

context of a diminution of safety resulting from compliance or in an 

emergency situation, so long as appropriate procedural due process 

safeguards are provided for all parties. We would go further for we 

believe that the Secretary, under these circumstances, has an obligation 

to grant "interim relief" and not compel compliance even when, as in 

this case, the operator fails to seek interim relief in the modification 

2131 
proceeding .. ~/ Consistent with both UMWA v. MSHA and UP&L, Clinchfield 

continues to have the opportunity to seek interim relief in the pending 

modification proceeding and the Secretary has authority to grant such 

relief as may be appropriate in the modification forum. 

Second, and more to the point, UMWA v. MSHA does not purport to 

address the power of.the Commission to consider an extension of the time 

set for abatement in a citation or, pursuant to section 105(b) of the 

Act, temporary rel~ef from a section 104(b) withdrawal order. We 

conclude that UMWA v. MSHA, by itself, does not preclude the Commission 

from considering hazard-of-compliance issues in the context of an 

abatement time contest. The central concern of the Court in that case 

was what it viewed as the lack of due process attendant upon interim 

relief in the modification forum. See 823 F.2d at 617-19. Here, by way 

of contrast, any extension of the time for abatement in the enforcement 

forum would occur only after notice and adjudicative hearing with appeal 

rights to the Commission and courts of appeals. 

All that we have said leads to a concomitant conclusion that the 

Secretary also possesses enforcement discretion to extend the time for 

abatement if she believes it reasonable in light of the relative hazards 

posed to miners. Indeed, the Secretary exercised that discretion by 

initially allowing 25 days for abatement and then extending the 

abatement period by an additional 31 days. The Act specifically 

reserves to the Secretary the power to set initially a reasonable time 

for abatement. 30 U.S.C. §§ 814(a) & (b). UMWA v. MSHA does not 

address this matter, and upon the same grounds articulated above, we 

hold that, in appropriate cases, the Secretary may extend abatement time 

to permit the orderly disposition of related modification proceedings. 

We are puzzled as to why the Secretary departed from that path in the 

present case. We also note that any such action may be contested by the 

appropriate representative of miners. Upon a showing that the hazards 

of any extension outweigh any hazards of compliance, the extension would 

be subject to disapproval by the Commission. 

We now apply these principles to review of the judge's decision. 

We concur with the judge's refusal to grant Clinchfield section 105(b) 

temporary relief because we are prepared to rule on the merits of 

Clinchfield's challenge to the reasonableness of abatement time. The 

judge properly premised his actions upon Clinchfield's filing of a 

modification petition. 11 FMSHRG at 1571. He also appropriately 

declined to advance any purported resolution of the underlying merits of 

Clinchfield's modification petition. 11 FMSHRC at 1570-71. While the 

judge spoke in terms of diminution of safety, it is clear from his 

decision that he examined the relative hazards of immediate compliance 

vs. extension of abatement time. 

It is true that at one point, the judge stated that he was 

refusing to weigh the evidence on the safety question. 11 FMSHRC at 

1571. That statement, however, must be read in proper context. The 

~/ Clinchfield has also utterly failed to explain adequately why it 

never sought interim relief in the pending modification proceeding. 

2132 
judge had already indicated that he was not purporting to resolve the 

underlyin~ merits of Clinchfield's modification petition, and we read 

his "refusal to weigh" language as an extension of that position. He 

did conclude, however, that "in view of the Secretary's position and the 

evidence introduced in support of it, : •. complying with the contested 

.•• order may result_in a diminution of safety, and in view of the 

pending petition for-modification, relief should be granted." 11 FMSHRC 

at 1571. While we disapprove the formulation of this result in 

diminution of safety terms, we conclude that the judge did, in fact, 

weigh the relative hazards and determine that an extension of abatement 

best promoted safety in this case. 

Although the judge's failure to identify more specifically the 

evidence of the hazards upon which he relied is troubling, the evidence 

in question, presented by both the operator and the Secretary, has been 

summarized above. In essence, it shows that permitting Clinchfield a 

higher fpm ceiling will result in improved methane dissipation and that 

enforcement of the 300 fpm ceiling could fail to achieve necessary 

methane dilution. We have carefully examined the record and conclude 

that the evidence of the operator and Secretary in this regard affords 

substantial support to the judge's ultimate disposition. 

Like the judge, we also acknowledge the UMWA evidence showing a 

level of hazard associated with any raising of the 300 fpm ceiling. 

However, the nature of the judicial inquiry in this context involves a 

weighing of the relative hazards. We are not prepared to conclude that 

the judge erred in assigning decisive weight to the evidence of the 

Department of Labor, the agency charged with the responsibility of 

enforcing the Ac.t and protecting the safety and health of miners. 

Finally, we conclude that the extension of time for abatement 

shall run until the Department of Labor administrative law judge 

presiding in the modification proceeding rules upon the diminution of 

safety issue. In our judgment, this approach to extension best respects 

the separate modification jurisdiction of the Secretary and best 

facilitates prompt resolution of the major issue dividing the parties --

a determination in the modification forum of whether application of the 

cited standard at Clinchfield's mine will result in a diminution of 

safety. 

2133 
III. 

Conclusion 

For the foregoing reasons and on the foregoing bases, the decision 

of the judge is affirmed. The time for abatement of the cited violation 

is hereby extended as explained above. ~/ 

~~ 

~~~~~k 

~d-~ JOyCeA:l){;yle, ColTIJlliSSier 

~/ Commissioner Nelson did not participate in the consideration or 

disposition of this case. 

2134 
Commissioner Lastowka, concu_rring in part and dissenting in part: 

This Commission has.jurisdiction over Clinchfield Coal Company's contest 

of the withdrawal order issued by the Secretary of Labor for Clinchfield' s 

failure to abate a violation within the period of time set in a previously issued 

citation. 30 U.S.C. § 815(d). The Commission lack~ jurisdiction, however, over 

the question of whether application of the cited standard at Clinchfield's mine 

results in a diminution of safety to the miners at the mine. 30 U.S.C. §811(c). 

That question is expressly reserved by the Mine Act to the Secretary of Labor. 

Id. Because the administrative law judge and the majority, under the guise of 

reviewing the reasonableness of the abatement period set by the Secretary, 

effectively resolve the diminution of safety issue raised by Clinchfield and 

thereby improperly thrust themselves into the modification proceedings ongoing 

before the Department of Labor, I must dissent. 

I. The Reasonableness of the Abatement Period 

Section 104(a) of the Mine Act provides that a citation issued by the 

Secretary 11 shall fix a reasonable time for the abatement of the violation" 

alleged in the citation. 30 U.S.C. § 814(a) (emphasis added). Section 104(b) 

provides that if on subsequent inspection the Secretary finds: 

( 1) that a violation described in a citation issued pursuant to 

subsection (a) has not been totally abated within the period of time 

as originally fixed therein or as subsequently extended, and (2) 

that the period of time for the abatement should not be further 

extended, he shall promptly issue an order requiring the 

operator ••• to immediately cause all persons .•. to be withdrawn 

.•• until .•• the Secretary determines that such violation has been 

abated. 

30 U,S.C. § 814(b) (emphasis added). 

In the present case the Secretary issued a citation charging a violation 

of 30 C.F.R. § 75.326, as modified by the Secretary. The citation charged that 

the air velocity in Clinchfield's belt entry exceeded the 300 feet per minute 

( fpm) limit imposed on Clinchf ield by the Secretary in conjunction with a 

previously granted modification of section 75. 326. As issued, the citation 

provided a 25 day period in which compliance with the 300 fpm limit was to be 

accomplished. The Secretary subsequently extended the abatement period to 

provide an additional 31 days in which Clinchfield was to abate the violation. 

Upon expiration of the extended period for abatement set by the Secretary, the 

violation was found to still exist and the Secretary proceeded to issue a 

failure to abate withdrawal order pursuant to section 104(b). This withdrawal 

order is the order contested by Clinchf ield and in issue before the Commission. 

Where a mine operator contests a failure to abate withdrawal order, the 

Secretary must prove: 1) the existence of a previously issued citation charging 

a violation of a mandatory standard, 2) that a reasonable time for abatement of 

the violation had been provided, 3) the time for abatement had expired, and 4) 

the violation had not been abated. In the hearing before the administrative law 

judge the Secretary proved, indeed it was undisputed, that Clinchfield failed 

2135 
to comply with the applicable standard (element 1), the time set by the 

Secretary for abatement had passed (element 3), and the violation had not been 

abated (element 4). As to the reasonableness of the period of time fixed in the 

citation for abatement-of the violation (element 2), however, the Secretary's 

witnesses testified that it was their belief, and that of their supervisors, 

that abatement of the violation would create a hazard to miners. Thus, far from 

attempting to establish that the period of time set for abatement of the 

violation was reasonable, the totality of the Secretary's evidence was that 

Clinchfield's compliance with the standard would create a hazard, and that in 

the interest of safety abatement should not occur. , 

Thus, at the hearing on Clinchfield's contest of the withdrawal order the 

position of the Secretary, as presented by her witnesses and as summarized by 

counsel (III Tr. 137-40), was that although MSHA cited Clinchfield for a 

violation of the standard and shut the mine' s operations down because the 

violation was not abated, Clinchfield's compliance with the order issued by the 

Secretary will actually threaten the safety of miners. 

At this juncture, one might logically ask why MSHA, charged with the duty 

to enforce the Mine Act for the protection of miners, would nonetheless proceed 

to initiate enforcement action that MSHA believes will, in and of itself, create 

a serious safety hazard. MSHA's answer is that it is required to do so, that 

it is powerless to do otherwise, and, in effect, that this Commission must step 

in, as did the judge, to save MSHA, Clinchfield and the miners from the 

deleterious consequences of MSHA's enforcement actions.. I must reject this 

anomalous result and the theories that underpin it. 

The Commission is a creature of statute and its adjudicatory powers are 

derived from Congress' grant of authority to it. Kaiser Coal Corp., 10 FMSHRC 

1165, 1169 (September 1988). Congress has empowered the Commission with 

authority to adjudicate various types of enforcement disputes arising among the 

Secretary of Labor, mine operators and miners. One type of dispute over which 

the Commission has jurisdiction concerns whether the period of time the 

Secretary has provided for abatement of a violation is reasonable. Mine 

operators as well as miners may'contest the period for achieving compliance with 

a standard as being unreasonably short or unreasonably long. 30 U.S.C. §815(d). 

Conversely, Congress empowered the Secretary, not the Commission, with the 

authority to determine whether the terms of a mandatory standard adopted by the 

Secretary should be modified insofar as the standard applies to the operations 

at a particular mine. 30 U.S.C. § 811(c); Penn Allegh Coal Co., 3 FMSHRC 1392 

(June 1981) (disallowing diminution of safety defense in enforcement proceeding 

where modification petition would have been appropriate but had not been filed); 

Sewell Coal Co., 5 FMSHRC 2026 (December 1983) (recognizing diminution of safety 

defense in an enforcement proceeding where Secretary had concluded modification 

proceedings and had granted modification). 

In the present case, at the hearing before the Commission the parties 

framed the issue presented by Clinchfield's contest of the withdrawal order as 

being a challenge to the reasonableness of the 56 day period prescribed by the 

Secretary for abatement of the violation of 30 C.F.R. § 75.326. Clinchfield 

argued that the abatement period should be extended because compliance would 

create a hazard to miners. III Tr. 141-42. The Secretary shared Clinchfield's 

2136 
concern that abatement would diminish safety and indicated that, if the judge 

were to find that the abatement period set by the Secretary should be extended, 

the Secretary would not oppose the judge's action even though MSHA would not 

extend the period itself. III Tr. 137-40. The UMWA, on the other hand, argued 

that the question of diminution of safety is to be decided only in a section 

lOl(c) modification proceeding before the Secretary. Tr. 37. The UMWA further 

argued that abatement of the violation would be safe and that the abatement 

period set by the Secretary was reasonable. III Tr. 143. 

In his decision the judge recognized the Department of Labor's 

jurisdiction over the issue of whether the standard should be modified but, in 

view of the Secretary's evidence and assertions before him, concluded that an 

extension of the abatement period was warranted. Thus, by necessary implication 

the judge found the abatement period prescribed by the Secretary in the citation 

to be unreasonable. Also, in light of his extension of the abatement period the 

judge vacated the failure to abate withdrawal order. The majority here affirms 

the judge's extension of the abatement period and vacation of the withdrawal 

order. 

The judge and the majority err in granting relief in this case on the 

purported basis that the Commission is exercising its authority under section 

105(d) to review the reasonableness of the abatement period set by the 

Secretary. T.he problem with this basis for granting relief is that the actual 

dispute between the parties most assuredly is not over whether the Secretary 

provided Clinchfield with a reasonable opportunity to abate the violation by 

bringing its mine into compliance with the cited standard. Quite to the 

contrary, as the record clearly reflects, Clinchfield's sole argument, not 

opposed by the Secretary, is that compliance with the standard, whether within 

the 56-day period provided by the Secretary or some greater period of time, 

would result in creation of a hazard and, therefore, compliance should not be 

required at all. 

Thus, rather than being a dispute as to whether the period of time fixed 

by the Secretary for "totally abat[ing]" the violation (30 U.S.C. § 814(b)) is 

reasonable, what Clinchfield and the Secretary have presented to the Commission 

is the entirely different question of whether compliance with the standard would 

diminish safety. This is a pure section lOl(c) modification issue within the 

jurisdiction of the Secretary, not the Commission, rather than a properly 

founded challenge under section 105{d) to the reasonableness of the abatement 

period. By "weighing the relative hazards" of compliance versus noncompliance 

and concluding that an extension of· the abatement period is warranted, the 

majority improperly resolves the diminution of safety issue. 1 Therefore, insofar 

as the majo.ri ty affirms and modifies the judge's extension of the abatement 

period, I dissent. 

What's in a name? That which we call a rose 

By any other name would smell as sweet •. 

Shakespeare, Romeo and Juliet, Act II, Scene ii. 

2137 
II. The Secretary's Authority 

Before us the Secretary identifies two factors purportedly forcing MSHA 

to seek Commission relief from the undesirable safety effects caused by its 

enforcement actions, rather than acting on its own to rectify the problem. 

First, and primarily, it is claimed that the opinion of the U.S. Court of 

Appeals for the District of Columbia Circuit in Intern. Union, UMWA v. MSHA, 

823 F.2d 608 (D.C. Cir. 1987}, forecloses MSHA from itself presently providing 

Clinchfield any relief in order to avoid the danger caused by compliance with 

MSHA's order. Second, the Secretary asserts that she is constrained by the Mine 

Act itself to proceed precisely as she has in the present case. As discussed 

below, the Secretary's reliance on UMWA v. MSHA as justification for MSHA' s 

actions is misplaced. That decision did not address the situation now before 

us and does not foreclose action by the Secretary. Further, the Secretary's 

reliance on MSHA's duties under the Mine Act as explanation for its actions also 

deserves careful consideration before the anomalous result it leads to is 

endorsed. 

A. The Decision in UMWA v. MSHA 

In UMWA v. MSHA, the D.C •. Circuit concluded that, under the facts of the 

case before it, the procedures the Secretary had followed in granting indefinite 

interim relief from enforc"ement of a mandatory standard during the pendency of 

a petition for modification of the application of a mandatory standard exceeded 

the Secretary's statutory authority under section lOl(c) of the Mine Act. 30 

U.S.C. §81l(c). The court stated: 

The real issue in this case is whether the Secretary may grant 

a modification of a mandatory safety standard, without regard to the 

requirements of section lOl(c} of the Mine Act, without an 

opportunity for a hearing, upon three days' notice to the affected 

miners, over the opposition of those miners, on the basis of a oneparagraph explanation which does nothing more than paraphrase the 

challenged regulation, and with no provision for a right to appeal 

that decision. We think not. 

823 F.2d at 617. The court was careful, however, to explain the limits of its 

holding concerning the Secretary's ability to provide interim relief during the 

pendency of a petition for modification: 

We do not decide whether the Secretary would have authority to 

grant interim relief from a mandatory safety standard when there is 

a possibility that application of the standard will increase the 

danger to the miners. Nor do we decide whether the Secretary would 

have this authority in an "emergency" situation. Because the basic 

purpose of the Mine Act is to protect the miner ..• this type of 

situation would present a more difficult issue. Section 44.16(c), 

however, by its terms is not meant to address this type of 

2138 
situation. The only finding regarding the safety of the miner that 

is required by § 44.16( c) is that- "the requested relief will not 

adversely af feet the heal th or safety of miners in the affected 

mine." 

823 F.2d at 616 n.6. The court further observed, ''[a]gain, we do not decide 

whether the Secretary has inherent power to grant interim relief if essential 

to further the purposes of the Mine Act or under other compelling 

circumstances." Id. at 619 n.8. 

Thus, by the express terms of its decision the D.C. Circuit did not rule 

that the Secretary lacked the ability to grant interim relief in compelling 

circumstances, not presented by the case before it, including situations where, 

due to particular conditions existing at a specific mine, enforcing a standard 

would increase the danger to miners. Before the Commission, the Secretary has 

acknowledged the court's limitation of its holding concerning the Secretary's 

authority to grant interim relief. Sec. Br. at 5. Furthermore, the Assistant 

Secretary for Mine Safety and Health has ruled, subsequent to the court's 

decision in UMWA v. MSHA, that MSHA still possesses authority to grant interim 

relief in "cases where the application of the standard would result in a 

diminution of safety to miners , or in emergency situations." Sec. Br. at 6, 

quoting Utah Power & Light Co., 86-MSA-3 (August 14, 1987), slip op. at 8-9. 

The Assistant Secretary stated: 

Regarding the UMWA' s challenge to the validity of the Agency 

interim relief rules, the D.C. Circuit's decision in the Kaiser and 

UP&L cases has caused the Agency to reevaluate its interim relief 

procedures. *** The Court specifically did not address the question 

of "whether the Secretary would have authority to grant interim 

relief when there is a possibility that application of the standard 

will increase the danger to the miners," ••• or "in an emergency 

situation." I have concluded that the Agency has authority to grant 

interim relief in such circumstances so long as appropriate 

procedural safeguards are provided for all parties. While noting 

the issue of the authority of the Secretary in emergency situations 

was not fully addressed by the Court, this conclusion ensures that 

prudent and timely relief will be available in instances where the 

safety of miners is in jeopardy. 

UP&L, supra, slip op. at 7-8 (footnotes omitted). 

Here, in July 1987 Clinchfield requested that the Secretary modify the 

cited standard on the ground that compliance would diminish miner safety. In 

September 1988, the Administrator for Coal Mine Safety and Health approved the 

modification. 2 The UMWA contested the Administrator's decision in October 1988. 

2 The Administrator's decision makes no reference to the diminution of 

safety grounds advanced by Clinchfield in support of its petition for 

modification. Instead, the Administrator stated that the alternative method of 

compliance approved in the modification "will at all times guarantee no less than 

the same measure of protection afforded by the standard." Ex. U-2. As the 

2139 
Almost two years after Clinchfield's assertion that compliance would diminish 

safety, and nine months after the Administrator's decision to grant the 

modification, MSHA nevertheless proceeded to issue a citation for failure to 

comply with the disputed standard, and a withdrawal order for failure to abate 

the violative condition. 

Al though the reason for MSHA' s decision to issue a citation at this 

juncture is unexplained, its motivation for issuing the withdrawal order is 

clearly set forth in the record. In presenting oral arguments to the judge 

below, counsel for the Secretary explained: 

As has been testified by our witnesses, and also stated by Mr. 

Jerry Spicer, the Administrator for Coal Mine Safety and Health, in 

an affidavit that was submitted in evidence, he felt he could go no 

further as far as extending the abatement period on that citation. 

That is under the decision of [UMWA v. MSHA] that to do so would 

amount to interim relief of a petition for modification. 

So therefore, it was his decision and he made that decision known 

to the district level ..• that he had no authority to continue any 

abatement period on that citation, even though it was recognized by 

the inspector and district manager and Mr. Spicer in his affidavit 

indicated, that to go higher than the three hundred feet per minute 

would not pose a threat to the safety of the miners. As was stated 

by the testimony here by our witnesses and other witnesses, in fact, 

there could be a diminution of safety to the miners if that velocity 

cap is not lifted. 

III Tr. at 138. The affidavit of the Administrator for Coal Mine Safety and 

Health referred to by counsel states: 

*** 7. I did not authorize a further extension of abatement time 

because to do so would have been tantamount to unilaterally granting 

Clinchfield interim relief from the responsibility to comply with 

the 300 fpm belt entry air velocity limit specified by the granted 

petition for modification. In making this decision, I was aware of 

legal advice I have received concerning the decision in UMWA v. MSHA 

et al., 823 F.2d 608 at 618, and the temporary relief provisions of 

section 105(b)(2) of the Act, 30 U.S.C. 815(b)(2). See also UMWA 

v. MSHA, supra at 618. 

Secretary's witnesses made clear at the hearing before the Commission judge, 

however, compliance with the cited standard would be hazardous. Tr. 44, 51-53, 

79-80, 108-10, 116-17; see also III Tr. 61-62. Consequently, granting a 

modification on the basis that the alternative method is at least as safe as the 

present method makes little sense when that method is dangerous. Therefore, the 

Administrator's decision is more sensibly read to accord with the views of the 

Secretary's witnesses and the position expressed by counsel for the Secretary 

at the hearing before the judge that compliance with the cited standard would 

diminish safety. See, e.g., III Tr. at 138. 

2140 
*** 9. As evidenced by the proposed decision and order of September 

14, 19&8 [the Administrator's decision granting modification], and 

supporting technical information, I believe that the safety of 

miners at the McClure No. 1 Mine is enhanced by removing the 300 fpm 

belt entry air velocity limit. 

MSHA Ex. 4. 

Thus, the express reason and seemingly sole motivation for MSHA' s issuance 

of the disputed withdrawal order is that MSHA was precluded from doing otherwise 

by the court's opinion in UMWA v. MSHA. Because by its express terms that 

decision in fact does not so constrain the Secretary, the basis of MSHA's order 

requiring Clinchfield to comply with a standard that MSHA believes will create 

a hazard is removed, and the order therefore was improperly issued, constitutes 

an abuse of discretion and, accordingly, must be vacated. 

B. The Requirements of the Mine Act 

The Secretary also suggests that issuance of the underlying citation and 

the withdrawal order was required because the operator was in noncompliance with 

the terms of a mandatory safety standard and had failed to abate the violation 

within the time provided. Sec Br. at 6-7. Therefore, even though the inspector 

characterized the violation as "technical" in nature (Tr. 44), and found that 

the violation was not "significant and substantial" i.e., it was not reasonably 

likely to result in an injury of a reasonably serious nature, the Secretary 

insists that under the Mine Act MSHA was required to initiate enforcement 

proceedings to achieve compliance even though to do so would result in the 

creation of a more serious hazard. 

Although the Secretary usually is not reticent to claim that the 

Commission and the courts must give wide latitude to MSHA's enforcement 

discretion, she disavows here any possibility of even a limited amount of 

discretion enabling MSHA to refrain from taking enforcement actions that it 

believes threatens those whose safety MSHA is charged with protecting. I find 

it di ff icul t to accept that the Mine Act must be interpreted in such a 

counterproductive manner. As has been stated: 

It has been called a golden rule of statutory interpretation that 

unreasonableness of the result produced by one among alternative 

possible interpretations of a statute is reason for rejecting that 

interpretation in favor of another which would produce a reasonable 

result. It is a "well established principle of statutory 

interpretation that the law favors rational and sensible 

construction." It is fundamental, however, that departure from the 

literal construction of a statute is justified when such a 

construction would produce an absurd and unjust result and would 

clearly be inconsistent with the purposes and the policies of the 

act in question. 

2A Sutherland Statutory Construction § 45 .12 (4th ed. 1984) (footnotes and 

citations omitted)~ 

2141 
I recognize that the Mine Act by its terms does not give the Secretary 

broad discretionary authority to selec-tively enforce mandatory standards. 

Indeed, section 104(a} provides that if "the Secretary ••• believes that an 

operator ••• has violated this Act ••• he shall ••• issue a citation to the 

operator." 30 U.S.C. § 814(a). Nevertheless, even though a decision by MSHA to 

refrain from citing an operator for a violation may not be the type of 

determination "committed to agency discretion by law" (5 U.S.C. § 70l(a)(2); 

see Heckler v. Chaney, 470 U.S. 821 (1985)), it may still be appropriate, in 

extremely narrow circumstances, to recognize a carefully bounded discretion 

permitting the Secretary to consider the adverse safety effects on miners that 

would result from rote enforcement of a particular standard. See UMWA v. MSHA, 

823 F.2d at 615 n.5, 616. 

For example, in the circumstances of the present case where the mine 

operator has filed a petftion for modification based on diminution of safety, 

the Secretary's enforcement personnel and technical experts agree that 

enforcement of the standard will diminish safety, the Administrator has granted 

a modification from the standard's application and expedited proceedings in 

review of that determination are being conducted, MSHA should not be compelled 

to force the operator to take the very action that MSHA believes will create a 

hazard to miners. 

Recognition of such a carefully limited authority is particularly 

compelling in light of the standard at issue here. The 300 fpm velocity 

requirement in dispute was not mandated by Congress or promulgated by the 

Secretary through rulemaking. Rather, the 300 fpm requirement was unilaterally 

imposed on Clinchf ield by the Administrator as part of a prior modification of 

30 C.F.R. § 75.326 granted in February 1987. From January 1981 up until that 

time, no velocity ceiling had been imposed. Further, under the Administrator's 

presently proposed decision no velocity limit would be imposed in the future. 

Thus, the very condition that MSHA presently believes threatens miner safety is 

the result of unilateral action taken by MSHA in the first instance. Surely, 

MSHA must have the power to act in this circumstance to provide relief from the 

hazard its prior action has caused 

I recognize that the Assistant Secretary for Mine Safety and Health has 

ultimate responsibility for determining whether to grant or deny Clinchfield's 

petition for modification after all parties, including the UMWA who strenuously 

opposes the petition, have been given an opportunity to be heard. A decision 

to not enforce an MSHA-imposed condition now believed by MSHA to be unsafe 

pending resolution of the expedited modification proceedings would not prejudice 

the Assistant Secretary's responsibilities in the modification context. Under 

the Mine Act the Assistant Secretary has enforcement as well as modification 

duties and both of these responsibilities must be exercised so as to protect the 

health and safety of miners. 

III. Conclusion 

For these reasons, I conclude that the real basis for Clinchfield' s 

request for relief is not section 105(d)'s grant of authority to the Commission 

for review of the reasonableness of the abatement period set by the Secretary, 

but section lOl(c)'s grant of authority to the Secretary to modify a standard 

2142 
that diminishes the safety of miners. Therefore, I dissent from the majority's 

affirmance of the administrative law judge's extension of the abatement period. 

I concur in result, however, with the majority's affirmance of the judge's 

vacation of the failure to abate withdrawal order. In my view, under the 

circumstances of this case, the withdrawal order was improperly issued given 

the Administrator's erroneous belief that he was compelled to initiate 

enforcement action despite his belief that to do so would create a danger to 

miners. 

I recognize and do not view lightly the UMWA's argument that compliance 

with the present standard, rather than the proposed modification, best protects 

the safety of the miners at the McClure No. 1 mine. The proper forum for 

weighing the conflicting evidence in this regard, however, is the Department of 

Labor, not the Commission. In light of the serious safety question at. issue, 

I encourage the expedited resolution of the pending modification proceeding. 

Distribution: 

Administrative Law Judge James A. Broderick 

Office of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

James D. Crawford, Esq. 

Dennis D. Clark, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Laura E. Beverage, Esq. 

David J. Hardy, Esq. 

Jackson & Kelly 

P.O. Box 553 

Charleston, West Virginia 25322 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th Street, NW 

Washington, D.C. 20005 

2143 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 20, 1989 

Docket No. YORK 89-45-M 

BLUE CIRCLE ATLANTIC, INC. 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

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

October 26, 1989, Commission Chief Administrative Law Judge Paul Merlin 

issued an Order of Default finding respondent Blue Circle Atlantic, Inc. 

("Blue Circle") in default for failure to answer the Secretary of 

Labor's civil penalty proposal and the judge's order to show cause. The 

judge assessed the civil penalty of $900 proposed by the Secretary. By 

letter dated November 13, 1989, addressed to Judge Merlin, Blue Circle 

requests that this matter be reopened on the grounds that a settlement 

has been negotiated with the Secretary reducing the civil penalty to 

$600. Attached to the letter is Blue Circle's Motion to Reopen Default 

and to Approve Settlement. We deem Blue Circle's November 13th letter 

and attached motion to constitute a timely petition for discretionary 

review of the judge's default order, we grant the petition, and we 

remand this matter to the judge for further proceedings. 

The judge's jurisdiction in this proceeding terminated when his 

default order was issued on October 26, 1989. 29 C.F.R. § 2700.65(c). 

Under the Mine Act and the Commission's procedural rules, once a judge's 

decision bas issued, relief from the decision may be sought by filing 

with the Commission a petition for discretionary review within 30 days 

of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Here, 

Blue Circle's November 13 letter to Judge Merlin and accompanying motion 

seek vacation of, and relief from, the judge's default order and we will 

treat them as constituting a timely filed petition for discretionary 

review. See,~· Middle States Resources, Inc., 10 FMSHRC 1130 

(September 1988). 

2144 
It appears from the record that Blue Circle may have raised a 

colorable explanation for its failure to respond to the judge's show 

cause order in that the parties have been engaged in settlement 

negotiations. The Commission will afford relief from default upon a 

showing of inadvertence, mistake, or excusable neglect. ~, Amber 

Coal Co., 11 FMSHRC 131, 132 (February 1989). 

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

merits of Blue Circle's assertions but, in the interest of justice, we 

will permit Blue Circle to present its position to the judge, who shall 

determine whether appropriate grounds exist for excusing its failure to 

timely respond. ~, Perry Drilling Co., 9 FMSHRC 377, 380 (March 

1987). If the judge determines that final relief from default is 

appropriate, he shall also take appropriate action with respect to the 

parties 1 settlement agreement. 30 U.S. C. § 820 ( k). 

Accordingly, we grant Blue Circle's petition for discretionary 

review, vacate the judge's default order, and remand this matter for 

proceedings consistent with this order. 

Mark A. Lies, II, Esq. 

~~ 

-~ Richard V. Backley, Commissioner 

Jll::e.!i~ 

Seyfarth, Shaw, Fairweather & Geraldson 

55 East Monroe St. 

Chicago, Illinois 60603 

Jane S. Brunner~ Esq. 

Office of the Solicitor 

U.S. Department of Labor 

201 Varick Street, Room 707 

New York, New York 10014 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

2145 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 20, 1989 

Docket No. YORK 89-46-M 

A. H. SMITH STONE COMPANY 

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

Commissioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On October 24, 

1989, Commission Chief Administrative Law Judge Paul Merlin issued an 

Order of Default finding respondent A.H. Smith ("Smith'r) in default for 

failure to answer the Secretary of Labor's civil penalty complaint and 

the judge's subsequent order to show cause. The judge assessed civil 

penalties of $1,903, as proposed by the Secretary. By letter dated 

November 2, 1989, addressed to Judge Merlin, Smith asserted that the 

order to show cause had been misfiled and therefore overlooked. We deem 

Smith's November 2 letter to constitute a timely petition for 

discretionary review of the judge's default order. See~· Middle 

States Resources, Inc. , 10 FMSHRC 1130 (September 1988); Mohave 

Concrete & Materials, Inc., 8 FMSHRC 1646 (November 1986). We grant the 

petition and summarily remand this matter to the judge for further 

consideration. 

It appears from the record that Smith, proceeding without benefit 

of counsel, may have raised a colorable excuse for its non-response to 

the judge's order. See~· Columbia Portland Cement Co., 8 FMSHRC 

1644 (November 1986)(non-response attributable to mistake or neglect of 

a former employee); Mohave Concrete, 8 FMSHRC at 1646 (failure to 

respond attributable to mistake or neglect of a former bookkeeper). The 

Commission has previously afforded such a party relief from final orders 

of the Commission where it appears that the party's failure to respond 

to a judge's order and the party's subsequent default are due to 

inadvertence, mistake, or excusable neglect. Amber Coal Co., 11 FMSHRC 

2146 
131, 132 (February 1989); Kelley Trucking Co., 8 FMSHRC 1867 

(December 1986); M.M. Sundt Construction Co., 8 FMSHRC 1269 (September 

1986). Under these circumstances, we will accept Smith's letter as a 

petition for discretionary review and grant the petition. 

Since we are unable, on the basis of the present record, to 

evaluate the merits of Smith's assertion in this case, we will permit 

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

sufficient grounds exist for excusing Smith's failure to timely respond. 

Perry Drilling Co., 9 FMSHRC 377, 380 (March 1987), citing Kelley, 

supra, 8 FMSHRC at 1869. 

Accordingly, the judge's default order is vacated and this matter 

is remanded for proceedings consistent with this order. 

/~ 

~£~_d(~~_/ ... n-~---_ 

R~ 

Distribution 

Lisa M. Wolff, Director of Safety 

A.H. Smith Associates 

9101 Railroad Avenue 

Brnachville, Maryland 20740 

Susan M. Jordan, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

14480 Gateway Bldg. 

3535 Market St. 

Philadelphia, PA 19104 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, ~.W., Suite 600 

Washington, D.C. 20006 

2147 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

GARDEN CREEK POCAHONTAS 

COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 21, 1989 

Docket Nos. VA 88-09 

VA 88-10 

VA 88-11 

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

Commissioners 

DECISION 

BY: Ford, Chairman; Backley, Lastowka and Nelson, Commissioners 

In this civil penalty proceeding arising under the Federal Mine 

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

Act"), the issue is whether Garden Creek Pocahontas Company ("Garden 

Creek") violated 30 C.F.R. § 50.20(a), a standard requiring the 

reporting of occupational injuries occurring at a mine. J_/ The 

ll 30 C.F.R. § 50.20(a) states in part: 

Each operator shall maintain at the mine off ice a 

supply of MSHA Mine Accident, Injury, and Illness 

Report Form 7000-1 .... Each operator shall report 

each accident, occupational injury, or occupational 

illness at the mine. The principal officer in 

charge of health and safety at the mine or the 

supervisor of the mine area in which an accident or 

occupational injury occurs, or an occupational 

illness may have originated, shall complete or 

review the form in accordance with the instructions 

and criteria in§§ 50.20-1 through 50.20-7 .•.• The 

operator shall mail completed forms to MSHA within 

2148 
Secretary of Labor ("Secretary") asserts that Garden Creek violated the 

standard by failing to report to the Secretary's Mine Safety and Health 

Administration ("MSHA"), fourteen injuries, including one eye injury, 

for which medical treatment was administered to miners. The Secretary 

and Garden Creek agree that the injuries occurred at Garden Creek's 

No. 6 underground coal mine and that various medications were prescribed 

to treat the injuries. They also agree that if the injuries are 

reportable, they are reportable only "as a result of the use of a 

prescription medication and not for any other medical reason." 

Stipulation 16. 

Commission Administrative Law Judge Gary Melick held that under 

the standard "medical treatment" includes the use of prescription 

medications for the treatment of eye injuries, and, consequently, only 

an eye injury for which prescribed medication is used constitutes a 

reportable "occupational injury." Because thirteen of the injuries for 

which medications were prescribed were not eye injuries, the judge 

concluded they were not reportable. 10 FMSHRC at 1099. Regarding the 

one eye injury, al~hough the Secretary established that a prescription 

for medication was written, the judge found that the miners' use of the 

medications was not proven. The judge concluded that use of the 

prescribed medication could not be inferred from the m~ fact that 

medication had been prescribed. The judge therefore held that the 

Secretary had failed to prove a violation of section 50.20(a). 

10 FMSHRC at 1099-1100. 

The material facts are not disputed. Garden Creek owns and 

operates the Virginia Pocahontas No. 6 Mine, an underground coal mine 

located in Buchanan County, Virginia. From January through September 

1987, a number of miners suffered minor injuries at the mine and were 

issued prescriptions by their attending physicians. The medications 

prescribed typically were pain relievers and muscle relaxants. These 

injuries were not reported to MSHA by Garden Creek. 

On September 30, 1987, MSHA inspector Richard Blankenship issued 

18 citations to Garden Creek under section 104(a) of the Act, 30 U.S.C. 

§ 814(a), alleging violations of section 50.20(a) for failing to report 

the injuries to MSHA. The Secretary filed a complaint proposing the 

injury occurs or an occupational illness is 

diagnosed •..• 

30 C.F.R. § 50.2(e) defines "occupational injury" as: 

Any injury to a miner which occurs at a mine for 

which medical treatment is administered, or which 

results in death or loss of consciousness, inability 

to perform all job duties on any day after an 

injury, temporary assignment to other duties, or 

transfer to another job. 

(Emphasis added). The regulatory meaning of "medical treatment" is 

explained in 30 C.F.R. § 50.20-3, which regulation contains criteria 

differentiating between medical treatment and first aid. 

2149 
assessment of civil penalties for the alleged violations. Subsequently, 

the judge approved a settlement of four of the violations. 11 FMSHRC at 

1093. The remaining fourteen alleged violations are the subject of this 

case. The key issue is the meaning of the phrase "occupational injury" 

as used in the Secretary's reporting regulations. 

30 C.F.R. § 50.20(a) provides that "occupational injuries" be 

reported to MSHA. "Occupational injuries" are defined in section 

50.2(e), in part, as "any injury to a miner which occurs at a mine for 

which medical treatment is administered." The term "medical treatment" 

is further defined by way of example and contrast in section 50.20-3, 

which contains criteria exemplifying the differences between "medical 

treatment" and "first aid." 

Section 50.20-3(a) states in part: 

Medical treatment includes, but is not limited to, 

the suturing of any wound, treatment of fractures, 

applica~ion of a cast, or other professional means 

of immobilizing an injured part of the body, 

treatment of infection arising out of an injury, 

treatment of bruise by the drainage of blood, 

surgical removal of'dead or damaged skin 

(debridement), amputation or permanent loss of use 

of any part of the body, treatment of second and 

third degree burns •••• First aid includes any onetime treatment and follow-up visit for the purpose 

of observation, of minor injuries such as, cuts, 

scratches, first degree burns and splinters. 

Ointments, salves, antiseptics, and dressings to 

minor injuries are considered to be first aid. 

30 C.F.R. § 50.20-3(a). Following this general statement of the 

differences between medical treatment and first aid, the criteria of 

sections 50.20-3(a)(l)-(a)(8) differentiate between medical treatment 

and first aid in the treatment of specific injuries including abrasions, 

bruises, burns, cuts and lacerations, eye injuries, inhalation of toxic 

or corrosive gases, foreign objects, and sprains and strains. In the 

case of eye injuries, "medical treatment" is described as involving 

"removal of imbedded foreign objects, use of prescription medications, 

or other professional treatment." 30 C.F.R. § 50.20-3(a)(5)(ii) 

(emphasis added). Use of ·prescription medications is not otherwise 

included in the description of "medical treatment" for any other type of 

injury. 

In December 1986, MSHA issued instructional guidelines to assist 

operators in understanding the reporting requirements of Part 50. MSHA 

Report on 30 C.F.R. Part 50, Gov. Ex. 16. The 1986 guidelines replaced 

guidelines issued by MSHA in 1980. Information Report on 30 C.F.R. Part 

50, Gov. Ex. 15. The 1980 guidelines and the 1986 guidelines both state 

that medically treated injuries are reportable, while first aid treated 

injuries are not reportable, "provided there is no lost workdays, 

restricted work activity or transfer because of the injury." Gov. Ex. 

15 at 9; Gov. Ex. 16 at 9. The 1986 guidelines also provide, "any use 

2150 
of prescription medication normally constitutes medical treatment" and, 

in listing general procedures considered medical treatment, includes the 

"use of prescription medications other than a single dose or application 

given on a first visit.for the relief of pain." Gov. Exh. 16 at 10. In 

distinguishing medical treatment from first aid for specific types of 

injuries, however, the guidelines parallel the regulatory criteria and 

refer only to the use of prescription medications for treatment of eye 

injuries. Gov. Exh. 16 at 11. 

Before the judge, the Secretary maintained that the 1986 

guidelines are consistent with section S0.20-3(a) and are entitled to 

deference. The judge rejected this argument. He noted that the 

regulations at section S0.20-3 explicitly set forth only one type of 

injury for which the use of prescription medication constitutes "medical 

treatment." He stated that "by specifically mentioning in her 

regulations that the treatment of eye injuries by use of a prescription 

medication constitutes 'medical treatment' for purposes of Part SO 

reporting requirements, the Secretary has implicitly excluded the· 

treatment of all other injuries by use of prescription medicine alone 

from the term 'medical treatment' under Part SO." 10 FMSHRC at 1099. 

He concluded that the Secretary's attempt to expand the regulations 

through the guidelines to include any use of prescription medication for 

injuries was erroneous and inconsistent with the regulations. 10 FMSHRC 

at 1099. 

On review, the Secretary again argues that the interpretation of 

"medical treatment" set forth in the guidelines is consistent with the 

language of the regulations and is entitled to defer~nce. Sec. Br. 9. 

Like the judge, we disagree. 

While the Commission has recognized that in certain circumstances 

guidelines, policy memorandums, manuals or similar MSHA documents may 

"reflect a genuine interpretation or general statement of policy whose 

soundness commends deference and therefore results in the [Commission] 

according it legal effect," we have declined to do so where the 

interpretation or policy statement is inconsistent with the plain 

language of the standard. King Knob Coal Co., 3 FMSHRC 1417, 1420 (June 

1981). See also Western Fuels-Utah Inc., 11 FMSHRC 278, 28S-86 (March 

1989); Ufiite~ates Steel Corp., S FMSHRC 3, 6 (January 1983). In the 

latter circumstances, the Commission has concluded that "the express 

language of a ..• regulation unquestionably controls." King Knob, 

3 FMSHRC at 420. Here, the guidelines not only are inconsistent with 

the relevant language of Part SO, they are themselves internally 

inconsistent. Therefore, we decline to give them effect. 

The guidelines' statement that "any use of prescription medication 

normally constitutes medical treatment" is not even remotely alluded to 

in the language of Part SO. The Secretary did not include the use of 

prescription medication in the general regulatory description of 

"medical treatment" in section S0.20-3(a). To the contrary, as the 

judge properly noted, the Secretary designated the use of prescription 

medication as constituting medical treatment only in the case of eye 

injuries. 30 C.F.R. § S0.20-3(a)(S)(ii). 

2151 
The·Secretary contends, however, that section 50.20-3(a) is not 

all inclusive but rather provides illustrative examples. The Secretary 

particularly notes that section 50.20-3(a) begins "[m]edical treatment 

includes, but is not limited to" and argues that because the criteria 

that follow this language illustrate examples of "medical treatment," 

use of prescription medication for types of injuries other than those to 

the eye may constitute medical treatment. 

The Secretary's argument is at odds with regulatory structure of 

section 50.20-3. Section 50.20-3(a) lists specific procedures that are 

to be classified as medical treatment and reported to MSHA, such as the 

suturing of wounds, the treatment of infections and the treatment of 

fractures. This regulation also states that medical treatment is not 

limited to such procedures. Thus, other procedures of a like kind not 

specifically listed must be reported by mine operators as medical 

treatment. The familiar rule of statutory construction, ejusdem 

generis, provides that where general words are followed by specific 

examples in a statutory provision, the general words are construed to 

embrace only objects similar in nature to the specific examples. ZA 

Sutherland Stat. Constr. § 47.17 (4th ed). Therefore, the question is 

whether the general words of this regulation ("medical treatment") can 

fairly be read to include the use of the prescription medications at 

issue in this case, given the nature of the specific examples used in 

the regulation. We think not. The use of the medications prescribed in 

this case bears little similarity to the suturing of wounds, the 

treatment of fractures, or the other procedures specifically enumerated 

in the regulation. 

In addition, as discussed above, section 50.20-3(a)(5)(ii) 

provides that an injury to the eye is classified as medical treatment 

whenever prescription medications are used, but none of the other 

specifically listed occupational injuries designate the use of 

prescription medications as medical treatment. A regulation cannot be 

applied in a manner that fails to inform a reasonably prudent person of 

the conduct required. Mathies Coal Company, 5 FMSHRC 300, 303 (March 

1983). For the reasons set forth above, we believe that the Secretary's 

regulation failed to inform Garden Creek that it was required to report 

the thirteen non-eye injuries involved here, and we affirm the judge's 

ruling that Garden Creek's failure to report them did not violate 

section 50.20-3(a). 

In concluding that Garden Creek had not violated section 50.20-

3(a) in connection with the one eye injury, the judge found that 

although the Secretary proved that the miner suffered an eye injury for 

which a physician prescribed medication, the Secretary failed to prove 

that the miner used the medication. 10 FMSHRC at 1099-1100. The judge 

rejected the Secretary's contention that use of the medication should be 

inferred from the fact that it was prescribed, holding that the 

necessary causal connection did not exist to support the inference. 

10 FMSHRC at 1110. Again, we agree with the judge. 

The Mine Act imposes on the Secretary the burden of proving the 

violation the Secretary alleges by a preponderance of the evidence. See 

Consolidation Coal Co., 11 FMSHRC 966, 973 (June 1989). The Commission 

2152 
has recognized that in certain circumstances the Secretary may establish 

a violation by inference. Mid-Continent Resources, 6 FMSHRC 1132 (May 

1984). Any such inference, however, must be inherently reasonable and 

there must be a rational connection between the evidentiary facts and 

the ultimate fact inferred. Mid-Continent Resources, 6 FMSHRC at 1138. 

Here, the required connection is lacking because common experience 

teaches the use of medication does not always follow its prescription. 

Although a prescription may be written, its use may become unnecessary 

because a transitory medical condition has abated. Also, intervening 

factors, such as a decrease in the severity of an injury, the 

disappearance of symptoms may cause the patient to forego the filling of 

a prescription or the use of a prescribed medication. 

Moreover, recognition of an inference is largely influenced by the 

difficulty of obtaining the direct evidence necessary to establish the 

fact to be inferred. See ~' Mid-Continent, 6 FMSHRC at 1138. Here, 

the record does not establish that proof of the use of the medication 

was unavailable to the Secretary or was unreasonably difficult to 

obtain. Compare FMC v. Svensea American Union, 390 U.S. 390 U.S. 238, 

248-49 (1968). Indeed, the inspector testified that he spoke with some 

of the miners regarding their prescriptions, and the parties stipulated 

that in three instances involving non-eye injuries the prescribed 

medication was taken. Stipulation 12. The Secretary did not explain 

why similar information was not elicited from the miner who suffered the 

eye injury. 

Thus, we are hard pressed to give credence to the Secretary's 

assertion that requiring proof of the use of the prescribed medications 

would be "unduly burdensome." The litigation process requires the 

parties to obtain the evidence necessary to prove their allegations. 

Should the Secretary truly find that proving the use of a prescription 

medication is onerous, the Secretary should revise her regulation to 

make the prescription of medication, rather than its use, a 

determinative factor of "medical treatment." ~/ 

~/ Indeed, MSHA currently is reviewing the regulations in Part 50 to 

improve illness, injury and accident reporting under the Mine Act. Of 

particular relevance here, the Secretary has solicited comments and 

information on how the current regulatory definition of "occupational 

injury" should be revised and what the term "medical treatment" should 

include. 53 Fed. Reg. 45878 (1988). The Secretary has a similar effort 

underway regarding reporting requirements under the Occupational Safety 

and Health Act of 1970, 29 U.S.C. § 651 et..seg., ( 11 0SHAct 11 ), under which 

employers also must record occupational injuries requiring medical 

treatment. 29 C.F.R. § 1904. One suggested revision of the OSHAct 

regulations would require any medication prescribed for use for more 

than 48 hours to be considered "medical treatment" and therefore 

reportable. This proposal comes from "the Keystone National Policy 

Dialogue On Work-related Illness and Injury Recordkeeping, 11 January 31, 

1989, The Keystone Center, Keystone, Colorado at 32. 

2153 
Accordingly, we hold that the judge properly vacated the fourteen 

citations at issue, and we affirm the judge's decision. 

Richard ~-V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

2154 
Commissioner Doyle, concurring in part and dissenting in part: 

In this case, the Secretary of Labor ("Secretary") cited the 

operator, Garden Creek Pocahontas Company ("Garden Creek"), for its 

alleged failure to report fourteen instances in which medical treatment had been rendered to miners. In each instance, the medical treatment consisted entirely of the use of prescription medication by the 

injured miner. The majority, in affirming the administrative law 

judge, concludes that the use of prescription medication comprises 

medical treatment only when that use is in conjunction with the 

treatment of eye injuries. The majority also concludes that the 

Secretary has not proven actual use of the prescription medication in 

the one case involving an eye injury. While I concur with the majority 

in its determination that the Secretary has failed to prove actual use 

of the prescription medication in the eye injury case, I must respectfully dissent from their determination that the use of prescription 

drugs does not constitute "medical treatment" of injuries other than 

eye injuries. 

As noted by the majority, 30 C.F.R. §50.20-3(a) sets forth a 

general definition of "medical treatment," prefaced by the words 

"includes, but is not limited to •.• " Listed within that definition 

are a number of medical procedures with respect to fairly serious 

injuries that may occur in mines, such as fractures, amputations, loss 

of use of bodily parts, wounds, infections arising out of injuries, 

and second and third degree burns, as well as bruises requiring blood 

drainage. Following this definition of "medical treatment," the regulation provides a general. definition of "first aid" that includes onetime treatment of minor injuries such as cuts, scratches, first degree 

burns and splinters, as well as follow-up observation of those injuries. 

Following these definitions, there is set forth in 30 C.F.R. 

§S0.20-3(a)(l)-(8) a list of eight categories of injuries, the 

treatment of which may involve either "medical treatment" or "first 

aid." For the most part, these categories do not include injuries 

listed in the general definition of "medical treatment." 1/ The 

Secretary contends that the categories in section S0.20-3(a) are not 

all-inclusive but, rather, set forth illustrative examples. I agree. 

The doctrine of ejusdem generis, relied on by the majority to 

reach its determination that treatment of injuries by use of prescription drugs is not included in the definition of "medical treatment," is inapplicable to the standard in issue, That rule of 

statutory construction is used when there is "an incompatability 

1/ The exceptions are burns, which, if they are second or third degree, 

fall within the general definition of injuries requiring "medical treatment," and cuts, which, to the extent they are wounds requiring sutures, 

also fall within that definition. 

2155 
between specific and general words so that all words in a statute •.• 

can be given effect, •.• " Sutherland Stat. Const. §47.17 (4th 

ed.). (emphasis added.) There is no incompatability between the 

general and specific words in section 50.20-3(a)'s description of 

medical treatment. 

More importantly, the doctrine is inappropriate in this case 

because the regulation specifically does not restrict itself to the 

terms listed, but instead provides that the general term, medical 

treatment, "includes, but is not limited to," the specific examples 

that follow. (emphasis added.) 

Of more relevance to the issue at hand is the rule of construction with respect to definitions. A definition that uses the term 

"includes" is "more susceptible to extension of meaning by construction" than a definition that uses the term "means." Sutherland Stat. 

Const. §47.07 (4th ed.) The "word 'includes' is usually a term 

of enlargement, and not of limitation ••. It, therefore, conveys the 

conclusion that there are other items includable, though not 

specifically enumerated •.. " id. 

The regulation itself contains other indications that use of 

prescription medication as a form of "medical treatment" is not 

limited to eye injuries. Within the eight categories of section 

50.20-3(a), three categories make specific reference to prescription 

or non-prescription medication. Category (5), "Eye Injuries," lists 

use of non-prescription medication as "first aid" and use of prescription medication as "medical treatment." Category (3), "Burns, Thermal 

and Chemical," lists use of non-prescription medication as "first aid" 

but makes no reference to the use of prescription medication in the 

description of "medical treatment." Category (7) ~ "Foreign Objects," 

also lists application of non-prescription medication as "first aid" 

and makes no specific reference to prescription medication in the 

description of "medical treatment." As this language indicates, one 

form of "first aid" is the use of non-prescription medication. By 

defining "first aid" to include the use of non-prescription medication, 

I believe it can reasonably be inferred that the use of prescription 

medication falls within the definition of "medical treatment." 2/ 

2/ The use of prescription medication could also be inferred to constitute medical treatment in at least two additional categories. 

Category (6), "Inhalation of Toxic and Corrosive Gases," limits "first 

aid" to the removal of the miner to fresh air and the one-time administration of oxygen. ''Medical treatment" is described as any professional treatment beyond "first aid." Category (8), "Sprains and 

Strains," limits "first aid" to soaking, compresses, and bandages. 

"Medical treatment" includes "other professional treatment." 

2156 
In addition, I believe that the common meaning of the words "including, but not limited to," would put a reasonably prudent person on 

notice that the list is not all-inclusive. 

I also find that the Secretary's interpretation, to the effect that 

"medical treatment" includes the use of prescription medication except 

where a "single dose or application is given on the first visit merely 

for relief of. pain," is a reasonable one, consistently held and fully 

consonant with the purposes of the Mine Act. Information Report on 30 

C.F.R Part 50, (1980), Gov. Ex. 15, MSHA Report on 30 C.F.R. Part 50, 

(1986), Gov. Ex. 16. It is thus entitled to deference by the Commission. Bushnell v. Cannelton Indus., Tnc., 867 Fed. 2d. 1432, 1438 

(D.C. Cir. 1989). 

For the foregoing reasons, I would reverse· the administrative law 

judge's determination that the Secretary, by specifically mentioning 

the use of prescription medication only in the eye injury category, 

has thereby excruded the treatment of all other injuries by use of 

prescription medication alone from the definition of "medical treatment." Accordingly, I would find a violation in those instances where 

the judge found that prescription medication was actually used. 

2157 
Distribution 

Marshall S. Peace, Esq. 

Garden Creek Pocahontas Co. 

P.O. Box 11430 

Lexington, Kentucky 40575 

Timothy M. Biddle, Esq. 

Thomas C. Means, Esq. 

Margery A. Bugen, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Mary K. Spencer, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Robert Stropp, Esq. 

United Mine Workers of America 

900 15th St., N.W. 

Washington, D.C. 20005 

Administrative Law Judge Gary Melick 

Federal Mine Saf~ty & Health Review Commission 

5203 Le~sburg Pike, Suite 1000 

Falls Church, Virginia 22041 

2158 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

ROCHESTER & PITTSBURGH 

COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

November 22, 1989 

Docket No. PENN 88-152-R 

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

Commissioners 

DECISION 

BY THE COMMISSION: 

This proceeding was brought under section 107(e)(l) of the Federal 

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

"Mine Act") by Rochester and Pittsburgh Coal Company ( 11R&P11 ) to review 

an imminent danger withdrawal order issued by an authorized representative of the Secretary of Labor ("Secretary") at R&P's Greenwich 

No. 2 Mine. ll Commission Administrative Law Judge Gary Melick found 

that an imminent danger existed and upheld the withdrawal order. For 

the reasons that follow, we affirm. 

ll Section 107(e)(l) provides in pertinent part: 

Any operator notified of an order under this section 

or any representative of miners notified of the 

issuance, modification, or termination of such an 

order may apply to the Commission within 30 days of 

such notification for reinstatement, modification or 

vacation of such order. The Commission shall 

forthwith afford an opportunity for a hearing (in 

accordance with section 554 of title 5 but without 

regard to subsection (a)(3) of such section) and 

thereafter shall issue an order, based upon findings 

of fact, vacating, affirming, modifying, or 

terminating the Secretary's order. 

30 U.S.C. § 817(e)(l). 

2159 
On February 25, 1988, Robert L. Coy, a pltimber at R&P's Greenwich 

No. 2 Mine was assigned to repair a leaking, six-inch water pipe. With 

the assistance of other miners, he repaired the pipe with a new 0-ring 

and other parts. The pipe was parallel to and directly underneath the 

Main T Number 1 coal conveyor belt (the "belt"). The repair crew 

started the belt after the repairs were completed. 

After the belt was started, Coy noticed that the pipe was sagging 

at one location. He walked underneath the moving belt to pick up a 

concrete block to place under the sagging pipe. At that location, the 

pipe was supported by a 52-inch high concrete block wall that was under 

and perpendicular to the belt. As Coy was placing the block on this 

wall under the pipe, Gerry I. Boring, an inspector of the Secretary's 

Mine Safety and Health Administration (MSHA), observed Coy under the 

moving belt in a stooped position. Inspector Boring asked Coy what he 

was doing and Coy .replied that he was retrieving a block. The inspector 

immediately issued an imminent danger withdrawal order pursuant to 

section 107(a) of the Mine Act requiring that Coy be immediately removed 

from under the moving belt. ~/ Inspector Boring observed that the mine 

floor in that location was covered with wet, soupy accumulations of coal 

and other material that ranged between eight and fifteen inches in 

depth. After Coy came out from under the belt, Inspector Boring 

measured the height of the belt near where he observed Coy. The 

distance from the top of the accumulations to the edge of the belt was 

64 inches. 

Inspector Boring issued the imminent danger order because Coy was 

working under a moving belt that was a short distance above him and the 

inspector believed that a danger of contact was present. The inspector 

required that Coy.immediately be removed from the danger and instructed 

~/ Section 107(a) provides in pertinent part: 

If, upon any inspection or investigation of a coal 

or other mine which is subject to this chapter, an 

authorized representative of the Secretary finds 

that an imminent danger exists, such representative 

shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an 

order requiring the operator of such mine to cause 

all persons, except those referred to in section 

814(c) of this title, to be withdrawn from, -and to 

be prohibited from entering, such area·until an 

authorized representative of the Secretary 

determines that such imminent danger and the 

conditions or practices which caused such imminent 

danger no longer exist. 

30 U.S.C. § 817(a). 

2160 
as to the hazards of working under a moving belt. 3/ The inspector also 

issued a citation under section 104(a) of the Mine-Act, 30 U.S.C. 

§ 814(a), alleging a violation of 30 C.F.R. § 75.1722(a), a mandatory 

safety standard requiring that exposed moving machine parts on 

mechanical equipment be guarded. ~/ 

The belt carried coal from various working sections of the mine to 

the main P belt, its dumping point, which was located outby Coy. The 

belt was supported by chains attached to the mine roof and was tilted at 

an angle in Coy's work area as it approached the main P belt. The 

inspector observed Coy under the moving belt approximately three to four 

feet inby the concrete block wall that supported the water pipe. 

Because the belt was at an angle in relation to the mine floor, the 

distance between the floor and the belt would increase if Coy approac~ed 

the concrete block wall and would decrease if he walked inby away from 

the wall. Coy is 67 inches tall. Administrative Law Judge Melick 

determined that at the location Coy was observed, the belt was between 

72 and 79 inches above the solid mine floor, considering the eight to 

fifteen inches of wet accumulations and the 64 inches between the 

accumulations and .the bottom belt. 10 FMSHRC 1580. These-findings were 

not contested by R&P and are supported by substantial evidence. 

At the hearing, Inspector Boring testified that Coy's presence 

under the belt presented four hazards. First, he stat~d that the belt 

could break, strike Coy, knock him down and possibly drag him back 

through the bottom roller that was inby Coy. Second, the inspector was 

concerned that a defective belt splice lacer could hang down, catch Coy 

and drag him. (A splice lacer is a metal device that resembles a three-

}/ In the withdrawal order, the inspector stated: 

Observed Robert C~y (UMWA) standing under the 

operating Main T No. 1 belt conveyor (near the belt 

head). The clearance between the bottom of the belt 

and the coal accumulation on the mine floor is 64 

inches. Mr. Coy had been repairing a water line and 

was retrieving a block from underneath said belt 

when observed. Exposed machine parts which may be 

contacted by persons and which may cause injury to 

persons shall be guarded. 30 C.F.R. § 75.1722(a). 

Gov. Exh. 6. The inspector stated that the order was immediately 

terminated because: 

Mr. Coy removed himself from under the belt 

immediately. Joe DeSalvo, safety inspector, 

instructed Mr. Coy about hazards involved with 

working under moving belts. Gov. Exh. 6. 

~/ The administrative law judge vacated the citation and the 

Secretary did not seek review before the Commission. 

2161 
inch long staple that is riveted to the belt and is used to interlock 

sections of belt.) The third hazard of concern to the inspector was 

that Coy could sustain an eye injury from the fine coal that falls from 

the underside of the belt. Finally, Inspector Boring was concerned that 

Coy's arm or hand could come in contact with the belt if he slipped in 

the wet accumulations on the mine floor. The inspector testified that 

if he touched the bottom of the moving belt he could be knocked over and 

sustain a serious head, arm or hand injury. 

Coy and another miner, Dennis Kopp, testified that they did not 

consider it hazardous to go under the moving belt at that location 

because they believed the clearance was sufficient. Coy stated that for 

the entire eight to ten seconds he was under the belt he was stooped 

over. Paul Enedy, a mining engineer employed by R&P, testified that the 

belt was unlikely to break because it was in good condition and that if 

it did break it would likely break at the top without a risk of injury 

to Coy. He also testified that it is uncommon for belts to break or 

become defective at a splice. 

The administrative law judge upheld the inspector's finding of an 

imminent danger and affirmed the withdrawal order. He determined that 

although there was "no evidence in this case that the belt was worn or 

otherwise likely to break or that any of the splices were deficient, ••• 

the other hazards were such that the cited condition 'could reasonably 

be expected to cause serious physical harm' if not discontinued." 

10 FMSHRC 1581. Thus, it is apparent that the judge relied upon the 

inspector's testimony that Coy could have been seriously injured if he 

came in contact with the belt or if debris fell off the belt into his 

eyes. 

R&P's challenge to the administrative law judge's decision is a 

narrow one. In its petition for discretio~ary review, R&P raises two 

issues. First, it argues that the judge failed to recognize that the 

condition (Coy's presence under the moving belt) was an isolated event 

that would not have continued or recurred. It maintains that the judge 

improperly assumed that the condition would continue when he held that 

harm could result from the condition "if not discontinued." 11 FMSHRC 

1581. R&P emphasizes that it is undisputed that it is the normal 

practice at the mine to deenergize a belt whenever work is to be 

performed under it. Thus, it contends that the judge failed to decide 

the case on the basis of the precise facts presented. 

Second, R&P argues that the condition cited by the inspector could 

not reasonably be expected to cause death or serious physical harm. It 

contends that the evidence shows that the likelihood of a serious injury 

resulting from Coy's presence under the belt was too remote to 

constitute an imminent danger. 

The Secretary argues that if an inspector encounters a condition 

that he reasonably determines to present the potential of death or 

serious physical harm, he is required to issue a section 101(a) order of 

withdrawal. She maintains that if the inspector's conclusion that an 

imminent danger existed was reasonable at the time it was made, the 

order should be upheld. She argues that Inspector Boring's 

2162 
determination was reasonable and substantial evidence supports the 

judge's affirmance of the order. 

The Mine Act defines an imminent danger as "the existence of any 

condition or practice in a coal or other mine which could reasonably be 

expected to cause death or serious physical harm before such condition 

or practice can be abated." Section 3(j) of the Mine Act; 30 U.S.C. 

802(j). This definition was not changed from the definition contained 

in the Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. 

(1976)(amended 1977)(the "Coal Act"). 

In analyzing this definition, the U.S. Courts of Appeals have 

eschewed a narrow construction and have refused to limit the concept of 

imminent danger to hazards that pose an immediate danger. See ~· 

Freeman Coal Mining Co. v. Interior Bd. of Mine Op. App., 504 F.2d 741 

(7th Cir. 1974). Also, the Fourth Circuit has rejected the notion that 

a danger is imminent only if there is a reasonable likelihood that it 

will result in an injury before it can be abated. Eastern Associated 

Coal Corp. v. Interior Bd. of Mine Op. App., 491 F.2d 277, 278 (4th Cir. 

1974). The court adopted the position of the Secretary that "an 

imminent danger exists when the condition or practice observed could 

reasonably be expected to cause death or serious physical harm to a 

miner if normal mining operations were permitted to proceed in the area 

before the dangerous condition is eliminated." 491 F.2d at 278 

(emphasis in original). The Seventh Circuit adopted this reasoning in 

Old Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 F.2d 25, 33 

(7th Cir. 1975). 

Applying this precedent to the first issue raised by R&P, the 

question is whether, given the continuation of normal mining operations, 

the condition could have seriously injured Coy at any time before the 

dangerous condition was eliminated. Contrary to R&P's contentions, it 

was proper for the judge to consider the hazards presented by the 

condition if normal mining operations were allowed to continue before 

Coy was removed from under the moving belt. The Secretary has 

consistently interpreted the definition of imminent danger to exclude 

consideration of abatement time and, as discussed above, this 

interpretation has been supported by the courts. Thus, the judge was 

correct to analyze the hazards without assuming that the condition would 

have been quickly discontinued. 

Whether Coy's presence under the moving belt could reasonably be 

expected to cause physical harm is a question of fact. We must affirm a 

judge's finding of fact if it is supported by substantial evidence. 

Substantial evidence is "such relevant evidence as a reasonable mind 

might accept as adequate to support [the judge's] conclusion." 

Consolidation Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In 

assessing whether a. finding is supported by substantial evidence, the 

record as a whole must be considered including evidence in the record 

that "fairly detracts" from the finding. Universal Camera Corp. v. 

NLRB, 340 U.S. 474, 488 (1951). Measured against this standard, we find 

substantial evidence in the record to support the judge's findings. R&P 

offered little evidence to rebut the two hazards relied upon by the 

judge to affirm the order. The judge determined that the miner might 

2163 
(1) "contact the belt (presumably by extending an arm) and break a 

finger or be knocked against a wall" and (2) "sustain serious eye 

injuries from debris falling off the belt." 10 FMSHRC at 1581. On 

review, R&P simply argues that the chance of either of these two events 

occurring is remote. The judge determined otherwise and his findings 

are supported by the record. 

In addition, R&P's focus on the relative likelihood of Coy being 

injured while under the moving belt ignores the admonition in the Senate 

Committee Report for the Mine Act that an imminent danger is not to be 

defined "in terms of a percentage of probability that an accident will 

happen." S. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted in 

Senate Subcommittee on Labor of the Committee on Human Resources, 95th 

Cong., 2nd Sess, Legislative History of the Federal Mine Safety and 

Health Act of 1977 at 626 (1978). Instead, the focus is on the 

"potential of the risk to cause serious physical harm at any time." Id. 

The Committee stated its intention to give inspectors "the necessary 

authority for the taking of action to remove miners from risk." Id. 

R&P's argument also fails to recognize the role played by MSHA 

inspectors in eliminating imminently dangerous conditions. Since he 

must act immediately, an inspector must have considerable discretion in 

determining whether an imminent danger exists. The Seventh Circuit 

recognized the importance of the inspector's judgment: 

Clearly, the inspector is in a precarious position. 

He is entrusted with the safety of miners' lives, 

and he must ensure that the statute is enforced for 

the protection of these lives. His total concern is 

the safety of life and limb .... We must support the 

findings and the decisions of the inspector unless 

there is evidence that he has abused his discretion 

or authority. (emphasis added). 

Old Ben, supra, 523 F.2d at 31. 

Applying this rationale, the question is whether Inspector Boring 

abused his discretion when he determined that Coy could be seriously 

injured while working under the moving belt. The hazards of working 

under a moving belt are well known as evidenced by R&P's policy against 

such a practice. Inspector Boring observed a miner working under a 

moving belt, where the clearance was tight, picking up a concrete block 

and placing it on a wall to support a pipe located less than a foot 

below the moving belt. While he was primarily concerned with what might 

happen if the belt or a belt lacer broke, the inspector also believed 

that the miner could be seriously injured if he contacted the belt. The 

evidence demonstrates that the floor was covered with wet, soupy 

accumulations, that Coy's hands were close to the belt when he placed 

the block under the pipe and that Coy could have slipped and 

inadvertently contacted the moving belt. The fact that the belt was not 

parallel to the floor and the accumulations made walking difficult, 

increased the chance that Coy could come in contact with the belt. 

Finally, the inspector testified that if Coy contacted the belt he could 

have fallen and seriously injured himself. Based on this evidence and 

2164 
the findings of the administrative law judge, we cannot conclude that 

the inspector abused his discretion. 

We thus conclude that the judge's finding of an imminent danger is 

supported by substantial evidence. Accordingly, we affirm the judge's 

decision. 

V-r_/-~~/~/{cv~~\ Richard V. Backley, Commissioner j 

Lastowka, Commissioner 

Distribution 

Joseph A. Yuhas, Esq. 

Pennsylvania Mines Corporation 

P.O. B.ox 367 

Ebensburg, PA 15931 

Tina Gorman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

L. Clair Nelson, 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

2165 

1 

I 

. . _; . Ct_ . r 

I I , -

. {j _.)(__5>.J-.(.,"--1'\._;' 

Commissioner 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of JUAN G. PENA 

v. 

EISENMAN CHEMICAL COMPANY 

November 30, 1989 

.. 

Docket Nos. CENT 85-47-DM 

85-68-DM 

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

Commissioners 

ORDER 

--- BY THE COMMISSION: 

Juan G. Pena has filed with the Commission a letter requesting 

that this discrimination proceeding be reopened and a previously 

approved settlement be set aside. For the reasons that follow, Pena's 

request is denied. 

On April 15, 1985, the Secretary of Labor filed a discrimination 

complaint on behalf of Pena alleging that Eisenman Chemical Company 

("Eisenman") unlawfully discriminated against Pena in violation of 

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

Act"), 30 U.S.C. § 815(c). Eisenman denied the allegation, and the 

matter was assigned to Commission Administrative Law Judge Roy Maurer. 

On December 18, 1985, at an evidentiary hearing, the Department of 

Labor attorney representing Pena and counsel for Eisenman stated to the 

judge that the parties agreed to settle the matter. Tr. 2. Counsel for 

Pena read the proposed settlement into the record, and the attorneys 

jointly moved the judge to approve the settlement. The judge asked rena 

if he agreed to the settlement as stated, and when Pena answered "yes," 

the judge granted the motion and stated that upon receipt of the 

transcript he would issue an order incorporating the terms of the 

settlement, requiring compliance therewith, and dismissing the case. 

Tr. 5. 

2166 
Subsequently, the judge issued a written decision, approving the 

settlement. 8 FMSHRC 142 (January 1986)(ALJ). In his decision the 

judge repeated the settlement agreement, which, in pertinent part, 

required Eisenman to pay the sum of $13,000 "in full and complete 

satisfaction of back wages," and which stated that "[t]he intent ... is 

to settle all claims Complainant may be due under the provisions of 

Section 105(c) of the Act." 8 FMSHRC at 143 (quoting Tr. 3). The judge 

stated, "I conclude and find that [the settlement] reflects a reasonable 

resolution of the complaint. Further ... all of the parties, including 

Mr. Pena personally, are in accord with the agreed upon disposition of 

the complaint." 8 FMSHRC at 143. The judge ordered Eisenman to fully 

comply with the terms of the agreement and dismissed the complaint. 

8 FMSHRC at 142, 144. 

On October 30, 1989, the Commission received a letter from Pena 

requesting that the matter be "re-open[ed] for trial because of breach 

of contract on the settlement concerning my claim." Pena letter 1. 

Pena states that although Eisenman paid him $13,000, the company did not 

pay "taxes, withholding, and etc.," as promised. Id. 1, 2. Pena 

alleges that he has been "defrauded ... by my representatives from the 

U.S. Dept[ment] of Labor and [by my] ex-employer," and Pena requests 

"triple damages for fraud, and breach of contract at my new trial." Id. 

Pena did not file, a timely petition for discretionary review of 

the judge's decision approving the settlement within the 30-day period 

prescribed by the Mine Act. 30 U.S.C. § 823(d)(2)(A)(i). See also 

29 C.F.R. § 2700.70(a). Nor did the Commission direct review on its own 

motion within this 30 day period. Thus, by operation of statute the 

judge's decision became a final decision 40 days after its issuance. 

30 U.S.C. § 823(d)(l). Under these circumstances, Pena's submission 

must be construed as a request for relief from a final Commission order. 

29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply in absence 

of applicable Commission rules); Fed. R. Civ. P. 60 (Relief from 

Judgment or Order). See Danny Johnson v. Lamar Mining Co., 10 FMSHRC 

506, 508 (April 1988); Kelley Trucking Co., 8 FMSHRC 1867, 1868-69 

(December 1986). 

Relief from a final judgment or order on the basis of fraud, 

misrepresentation, or other misconduct is available to a movant under 

Fed. R. Civ. P. 60(b)(3) and Fed. R. Civ. P. 60(b)(6). 

To the extent that Pena is claiming that Eisenman, the adverse 

party, defrauded him, the motion is seriously untimely. Pena's 

submission was received by the Commission almost four years after the 

settlement was agreed to and the decision was issued. Rule 60(b)(3) 

states that a motion for relief due to fraud, misrepresentation or 

misconduct by an adverse party must be made within a reasonable time and 

must be made not later than "one year after the judgment." This limit 

is an extreme limit, and a motion made under clause (3) must be denied 

as untimely if made more thin one year after judgment regardless of 

whether the delay was reasonable. The limit may not be extended. C. 

Wright & A. Miller, Federal Practice and Procedure§ 2866 at 233-234 

(1973). 

2167 
Under either clause (3) or (6) of Rule 60(b), a movant must 

establish by clear and convincing evidence that the alleged fraud or 

misconduct occurred. Pena fails to meet this test. Pena's submission 

contains only his unsupported allegation of fraud. The record contains 

no evidence of fraud or misconduct by the attorneys representing the 

parties. At the hearing, counsel representing Pena stated that the 

parties agreed that Eisenman's payment of $13,000 to Pena would 

represent "full and complete satisfaction of back wages" and that the 

intent of the agreement was to "settle all claims [Pena] may be due 

under the provisions of section 105(c) of the Act." Tr. 3. When asked 

by the judge if he understood the settlement, if it was in accord with 

what he had been told, and if he agreed to it, Pena responded 

affirmatively and without constraint. Tr. 4-5 

Accordingly, the motion to reopen this proceeding is denied. 

~ 

Juan G. Pena 

2038 Rockford Drive 

Corpus Christi, Texas 78416 

Steven R. Baker, Esq. 

Fulbright and Jaworski 

Bank of the Southwest Bldg. 

Houston, Texas 77002 

Richard 

~~,c~~~ V. Backley, Conunissioner 

gc=~r 

L. Clair Nelson, Conunissioner 

Administrative Law Judge Rov Maurer 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

2168 
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 

NOV 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MIDWEST MINERALS, INC., 

Respondent 

11989 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-67-M 

A.C. No. 23-00199-05503 

Jasper #15 Mine 

DECISION 

Appeacances: Charles w. Mangum, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Kansas City, Missouri for Petitioner1 

Alan Stotz, Midwest Minerals, Incorporated, 

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," chat:'ging Midwest 

Minerals, Inc. (Midwest) with four violations of the 

regulatory standard at 30 C.F.R. § 56.9002. The general 

issue before me is whether Midwest violated the cited· 

regulatory standard and, if so, the appropriate civil penalty 

to be assessed in accordance with Section llOCi) of the Act. 

The four citations, issued pursuant to Section 104(a) of 

the Act alleged, as amended, "significant .and substantial" 

violations and charged as follows: 

Citation No. 3273075 

The R22 Euclid Haul truck company number 854, did 

not nave a [sic] operating grade retarder. The 

truck is used to stockpile crushed limestone and 

travels on the level most of the time except when 

it is on top of a stockpile. At the time the 

violation became apparent, the truck was parked and 

in re3ponse to questions it wa8 learned that the 

retarder didn't work. 

2169 
Citation No. 3273076 

The grade retarder on the R22 Euclid, company 

number 855, was not working. The truck was not in 

operation when this iriformation was learned, but 

came to lite (sic] when company personnel was (sic] 

questioned about the operation of the truck. The 

truck is used to stockpile crushed limestone and 

runs on the level most of the time except when it 

is on top of the stockpile. 

Citation No. 3273077 

The grade retarder on the R22 Euclid haul truck, 

company number 851, was not operating. The truck 

was not in operation when the violation wa3 learned 

and came to lite (sic] when company personnel was 

(sic] questioned about the operation of the truck. 

The truck ia used to stockpile crushed limestone 

and runs on the level most of the time, except when 

it is on top of the stockpile. 

Citation No. 3273078 

The grade retarder on the R22 Euclid (Company 

No. 859) was unhooked. The truck was parked when 

this information came to lite (sic] while company 

personnel were being questioned about the operation 

of the truck. The truck is used to stockpile 

crushed limestone and runs on the level most of the 

time except when it is on the top of a stockpile. 

The cited standard, 30 C.F.R. § 56.9002, provides that 

"equipment defects affecting safety shall be corrected before 

the equipment is used." 

The Secretary's evidence is not disputed. Robert Earl, 

an inspector for the Federal Mine Safety and Health 

Administration (MSHA} testified that he was familiar with the 

Midwest Jasper No. 15 Mine since he had formerly worked there 

and had previously conducted a compliance (courtesy} 

inspection at the mine. A courtesy inspection is designed to 

advise the operator of potentially violative conditions at 

his mine without being penalized or cited. At the courtesy 

inspeciton Earl provided about a month before the instant 

citations were issued he advised mine supervisor Crumpecker 

that non-functioning 9rade retarders on the Euclid haul 

trucks would be cited if not repaired. Grade retarders are 

2170 
designed for trucks with automatic transmissions to reduce 

speed to 3 1/2 miles per hour without the use of brakes. The 

R22 Euclid haul trucks were capable of hauling 20 to 25 tons 

of rock and had a net weight of about 20 tons. 

On August 11, 1988, inspector Earl returned to the 

Jasper No. 15 Mine £or a routine regular inspection and found 

that the grade retarders had not been repaired on the cited 

haul trucks. Earl accordingly issued the citations now at 

issue. 

It is not disputed that the cited trucks were available 

for service and were QSed to stockpile crushed limestone. 

According to the undisputed testimony of Inspector Earl a 

ramp is built onto the atockpile and over which these trucks 

operate. Eventually the ramp would be developed with a 15 

percent grade and up to 35 feet long. According Earl it is 

the industry practice for the grade retarders to be used to 

reduce speed and it was a particularly important safety 

device on the Euclid trucks which had "notoriously bad 

brakes". It is not di.:;puted moreover that the trucks he.re 

cited were also operating in a congested area. Earl opined 

that it was therefore likely that the trucks might be 

involved in an accident implicitly causing serious injuries 

to one or both drivers. 

Within the above framework of evidence it is clear that 

the violations are proven as charged that the violations were 

"significant and substantial". Particularly in light of the 

undisputed evidence that these haul trucks would be operating 

in a congested area on a 15 degree ramp and had "notoriously 

bad breaks" it is clear that the violations involved a 

discreet safety hazard, that there was a reasonable 

likelihood that the hazard contributed to would result in an 

injury from a truck accident and there was a reasonable 

likelihood that the injuries would be of a reasonably serious 

nature. Secretary v. Mathies Coal Co., 6 FMSHRC 1 (1984); 

Secretary v. Consolidation Coal Co., 8 FMSHRC 890 (1986). 

Under the circumstances I also reject Midwesc's proffered 

defense that grade retarders are not safety devices or 

subject to the cited regulation. The fact that grade 

retarders may also be used to reduce brake wear, as Midwest 

maintains, only serves to underline the fact that grade 

retard€rs are indeed safety devices. 

I further find that Midwest is chargeabie with high 

negligence. It is undisputed that several weeks before these 

citations were issued In3pector Earl advised Midwest 

2171 
officials at a courtesy inspection that the grade retarders 

must be functioning or citations would be issued. There is 

no evidence that Midwest then disputed MSHA's position that 

grade retarders were "safety devices" subject to the 

provisions of 30 C.F.R. § 56.9002. In any event the failure 

of Midwest to have repaired the defective grade retarders 

before the inspection at bar and the continued use of the 

trucks without grade retarders therefore constitutes high 

negligence. 

It is also undisputed that as of the date of hearing the 

grade retarders had still not been repaired. Moreover 

apparently to avoid making the repairs the cited trucks were 

moved.out of the MSHA district in which they had been cited. 

Indeed the evidence shows that they had been moved to the 

State of Kansas under the jurisdiction of the MSiiA Topeka 

District off ice. According to the testimony of Midwest 

official Alan Stotz those trucks have since been inspected 

within that MSHA district and have not been cited for failure 

to have grade retarders. It is not clear however whether 

that MSHA off ice had knowledge of the non-iunctioning grade 

retarders. In any event the evidence is clear that the cited 

violations have not been abated and the mine operator is 

making conscious efforts to avoid abatement. Accordingly I 

reject the stipulation by the parties (Joint Exhibit No. 1) 

that "the Respondent demonstrated good faith in abating the 

alleged violation". 

'rhe penalty assessment in this case must appropriately 

re£lect the findings on these important criteria as well as 

the size and history of violations. Under the circumstances 

I find that civil penalties of $300 for each violation are 

appropriate. 

ORDER 

Midwest Minerals, Inc., is directed to pay civil 

penalties of $1,200 within 30 days of the date of this 

decision. The Secretary of Labor is directed to report to 

the undersigned within 30 days of the date f this decision 

as to whether the violations herein have be n abated and, if 

not, what further action will be taken. 

2172 

strative 

756-6261 
Distribution: 

Charles w. Mangum, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 2106, 911 Walnut Street, Kansas 

City, MO 64106 (Certified Mail) 

Mr. Alan Stotz, Safety Director, Midwest Minerals, Inc., P.O. 

Box 412, Pittsburg, KS 66762 (Certified Mail) 

nt 

2173 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

NOV 

WARREN CT .. YDE 'rEE'rS,. DISCRIMINATION P.ROCEEDING 

Complainant 

v. 

METTIKI COAL COMPANY, 

Respondent 

-

Docket No. YORK 89-15-D 

MORG-CD-88-16 

Prep Plant 

DECISION 

Appearances: Thomas w. Rodd, Esq., for the Complain3.nt; 

A.nn R. Klee, Esq., for the Respondent. 

Before: Judge Fauver 

This proceeding was brought by Complainant under § 105(c) of 

the Federal Mine Safety and Health A.ct of 1977, 30 C.F.R. ~ 801 

et ~, alleging a discriminatory discharge. 

Having considered the hearing evidence aud the r~cotd as a 

whole, I find that a preponderance of the substantial, raliable, 

and probative evidence establishes the following Findings of Fact 

and additional findings in the Discussion below: 

FINDINGS OF FACT 

1. The Mettiki Preparation Plant is owned and operated by 

Mettiki Co~l Corporation. 

2. Complainant was a 1.niner and an employee of Mettik.i Coal 

Corporation from October 2, 1978, until his discharge on June 21, 

1988, when he wa3 woclcin.J at the Preparation Plant. 

3. On June 21, 1983, about 9:00 p.m., Complainant was 

ob:3·:rved by his Sllpervlsor at the time, Harold Upole, carrying a 

case oE sealant from the Preparation Plant Warehouse. 

4. Mr. Uoole watched Comolainant waU: frotn the Preparation 

Plant Wacehous~ to the U)per R~ad wh·:re he t...irned in a weste~ly 1irection towards Table Rock Road. 

2174 
5. At about 11:20 p.m., at the .end of the shift, Mr. Upole 

observed Complain-9.nt walking from the direction of Table Rock 

Road carrying a case of sealant to his personal vehicle. When 

questioned by Mr. Upole, Complainant stated that he had received 

permission from the PreparaJ,ion Plant Superintendent, John 

Laughton, to take the sealant home for his personal use. 

6. When Mr. Upole telephoned Mr. Laughton to verify 

Complainant's claim, Mr. Laughton stated that he had not given 

Comr;>lainant authocization to take sealant home. Mr. Laughton 

then spoke with Co:nplainant on the telephone. Complainant again 

claimed that he had ceceived permission from Mr. Laughton at some 

time previously to take the sealant home. Complainant told Mr. 

Laughton that he was going to use the sealant to seal his steps 

at home. Mr. Laughton then spoke to Mr. Upole again, and told 

him to discharge Complainant for stealing company property. 

7. The Mettik.i_Employee Manual states that employees will 

be discharged for theft of company property. All Mettiki 

employees, including Complainant, were given copies of this 

Manual. · 

8. Mettiki officials held a meeting with Complainant and 

others on June 22, 1988, to di8cuss further the incident leading 

to Complainant's dischacge. At that meeting, Complainant stated 

again that he had received permission to take sealant home for 

his personal use. Alternatively, he suggested that someone else 

might have placed the case of sealant in his pecsonal vehicle. 

Neither Complainant nor anyone else observed any person place a 

case of sealant in Complainant's vehicle. Complainant did not 

suggest at that time that he had been discharged for raising 

safety complaints with his supervisors. 

9. After consideration of Complainant's ex:pln.nation on June 

22, 1983, as well as the statetnents of Mr. Upole and others, ~r. 

Laughton .::i.f f.irmed the discharge of Complainant for theft of 

cotnpany i;>ropecty. 

10. Complainant subsequently filed a discrimination claim 

with the Mine Safety and Health Administration against Mettiki. 

Complainant .::t.l leged, among other things, that he had been 

dischacged for making safety co:nplaints. The MSHA Off ice of 

'I'echnicn.l Compliance r.tnd Investigation conducted an investigation 

of the incident leadin:J to Complainant's discharge. :.iSH:i\ 

concluded that Complainant had not been discharged for engaging 

in ~rotected activity Qnder section 105(c) of the Act. 

11. After a state evidentiacy heacing on the events leading 

to Complainant's· discharge, the M::iryland Une1nployinent Insurance 

Benefits Office found that Co1nplainant had been discharged for 

theft of company property and was guilty oE gross misconduct. A.s 

a result, he was disqualiEied fro<n receiving une1nployment 

insurance benefits. 

2175 
12. Complainant did not notify either Mr. Upole or Mr. 

Laughton of any alleged hazards or health or safety violations at 

the Preparation Plant at any time prior to his discharge on June 

21, 1988. . 

13. If Complainant notified other Mettiki supervisors of 

alleged dangers or safety or health violations, neither Mr. Upole 

nor Mr. Laughton - - the Mettiki officials who directed and 

implemented his discharge - - was aware of it. Nor did Mr. Upole 

or Mr. Laughton have knowledge that Complainant may have spoken 

with an MSHA inspector regarding an alleged ice hazard in the 

Preparation Plant nine months before his discharge. 

14. Mr. Laughton decided to discharge Complainant for theft 

of company policy, and for no other reason. 

DISCUSSION WITH FURTHER FINDINGS 

Section 105Cc> of the Mine Act provides in relevant part 

that: 

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 right of any miner • • . because 

such miner • • • has filed or made a 

comolaint under or related to this chaoter, 

including a complaint notifying the operator 

or the operator's agent, or the 

representative of the miners at the coal or 

other ~ine of an alleged danger or safety o~ 

health violation in a coal or other mine . . • 

or because such miner has instituted or 

caused to be instituted any proceeding under 

or related to this chapter or has testified 

or is about to testify in any such 

proceeding, or because of the exercise by 

such miner • . . on behalf of himself or 

others of any statutory right afforded by 

this chapter. 

In order to establish a violation of § 105(c), a coniplainant 

must prove that he engaged in protected activity within the scope 

of § 105 and that the action taken .:i.gainst him was motiv::ited at 

least in part by that activity. 

2176 
To rebut a orima facie case, an operator must show that no 

protected activity occurred or that the adverse action was in no 

part motiv~ted by protected activity. If the operator cannot 

rebut the prima facie case _in this manner, it inay nevertheless 

affirmatively defend by proving that Cl> 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. 

The operator bears the burden of proof with regard to the 

affirmative defense; the ultimate burden of persuasion that 

discrimination has in fact occurred does not shift frorn the miner. 

Secretary on behalf of Robinette v. United Castle Co., 3 FMSHRC 

803 (1~81). 

Complainant has not p~oved by a preponderance of credible 

evidence that he was engaged in protected activity that had any 

teinpot:'al or causal nexus with his discharge. 

On the contrary, the credible evidence shows that 

Complainant was considerably less activ9 than other employees in 

eApressing safety concerns or complaints and other employees, who 

were active in safety complaints, were not disciplined or given 

adverse treatment because of their safety activities. 

Complainant has not tnade a prirna facie case of 

discrimination. 

On the other hand, Respondent has proved by a preponderance 

of the credible evidence that Complainant was discharged because 

of theft of company property and for no other reason. 

Respondent's written policy provided for the discharge of 

any employee caught stealing coinpany property. This policy was 

given effect at Mettiki. The testimony revealed, for example, 

that Rodney Bird, anothet:' Mettiki employee caught stealing 

company property, was promptly discharged by his supervisor, To•n 

Shrout, and the Vice-?l'.'esident of Operations, Fred Polee. 

Complainant's discharge followed company policy and precedent. 

Mr. Upole testiEied clearly and consistently as to the 

events that led to Complainant's discharge. He stated that he 

f irat observed Complainant leaving the Preparation Plant 

Warehouse and wal~ing toward a path to the Northwest of the 

Warehouse on the evening of June 21, 1988, about 9:00 p.m. (See 

Ex. R-1-(Map)). At the time, 'vir. Upole was driving up the 

Warehouse Road towards the Maintenance Shop. When Complainant 

saw Mr. Upole, he stopped at a ~ipe rac~ located 60-70 feet to 

i:he Northwest of the Warehouse. Tr. 593-601. Mr. Upole's 

suspicions were arotised because Compl:iinant was carrying a case 

of sealant, a product ~ot generally used by production shift 

em9loyees becau~e of its exteμded setting time (Tr. 183; 265, 

2177 
401; 561-565) and because Complainant had no business at the pipe 

rack which was located in the opposite direction from the 

Preparation Plant. 

Mr. Upole then parked h-is truck and, from the Maintenance 

Shop door, observed Complainant walk down the Warehouse Road 

toward the Preparation Plant. Tr. 595-597. Complainant 

did not go back to the Preparation Plant with the case of sealant. 

Instead, he turned to the right when he reached the Upper Road 

and walked toward Table Rock Road and the Storage Area, away from 

the Preparation Plant. !./ 

After Complainant was out of sight, Mr. Upole went to the 

Warehouse to verify that Complainant had checked out a case of 

sealant (which he had done) and then attempted unsuccessfully to 

search for the sealant on the property. Complainant, in the 

interim, returned to the Preparation Plant and was working there 

at about 9:30 p.m.- when Mr. Upole arrived to pick up ,the 

production reports for Mr. Laughton. When Mr. Upole telephoned 

Mr. Laughton to report the production numbers, he also told him 

about his observations and his suspicion that Complainant was 

stealing. Mr. Laughton directed Mr. Upole to investigate the 

incident and report any developments. Tr. 612-613; Tr. 846-848; 

Ex. R-5; Ex. R-9. 

In accordance with these directions, at about 10:~5 p.m., 

Mr. Upole positioned himself in the woods to the north of the 

Storage Area. From there he observed Complainant leave the 

bathhouse at about 11:20 p.m., cross Table Rock Road and walk 

along the path toward the Storage Area. When Complain3.nt was out 

of sight, Mr. Upole walked across Table Rock Road to the 

laboratory fro1n which he could see Complainant's vehicle in the 

parking lot. In about five minutes, Mr. Upole observed 

Complainant walking toward his vehicle carrying a case of sealant 

on his shoulder. •rhe parking lot was well lighted and Mr. Upole 

had a clear view of Complainant walking towards his vehicle. 

1/ At the direction of the judge, a site visit was conducted by 

~ounsel for both parties with Complainant and Mr. Upole, on June 

29, 1989. The observations there confirmed Mr. Upole's physical 

description of the 3.rea and the relative loc3.tions of the 

Warehouse, Maintenance Shop, pipe rack and Storage Area. The 

site visit and careful tests and photographs at the site 

confic~ed that Mr. Upole could -- despite Complainant's contrary 

alle9.'ltions at trial -- have seen Complainant turn onto the U9per 

Road frotn the Maintenance Shop. Supp. Ex. I at 4; .Joint 

Statement Regarding June 29, 1989 Site Visit; Supp. Ex. II 

Annotated Map. 

2178 
Before Complainant reached the driver's door of his vehicle, 

Mr. Upole stepped out and greeted Complainant from a distance. 

Complainant immediately tried to conceal the case of sealant by 

putting it under his truck -behind the wheel on the driver's side. 

When Mr. Upole questioned him about the package, Complainant 

stated that it was sealant and that Mr. Laughton had given him 

permission to take it home. Based upon his previous conversation 

with Mr. Laughton, Mr Upole suggested that he and Complainant go 

inside and call Mr. Laughton together to verify Complainant's 

claim. Complainant was visibly nervous, but agreed. 

Mr. Laughton confirmed over the phone to both Mr. Uphole and 

Complainant that he had not given Complainant authority to take 

home a case of sealant. During the conversation, Complainant 

stated that he was taking the sealant home to seal his steps. 

In concluding the phone conversation, Mr. Laughton directed Mr. 

Upole to discharge Complainant for theft, and Mr. Upole did so. 

The decision to discharge Complainant was solely Mr. Laughton's. 

Members of Mettiki Management, including Mr. Laughton and 

Mr. Upole, met with Mr. Upole and two of his co-workers the next 

day to discuss the circumstances of Complainant's discharge. At 

that meeting, Complainant admitted again that he had planned to 

take the sealant home to seal his front steps and claimed he had 

received permission to do so. Mr. Laughton affirmed his decision 

to discharge Complainant for theft. 

I credit management's evidence summarized above and find 

that Complai.oant was discharged for theft of company property and 

for no other reason. This is not a case of a miner who actively 

pursued concerns about the safety of his workplace and was 

discharged for expressing those concerns. Complainant was caught 

stealing by his supervisor, and was fired for that reason. 

The record and the law do not permit, in these 

circumstances, a finding of ~ violation under§ 105(c) of the 

Mine Act. 

CONCLUSIONS OF LAW 

1. The judge has jurisdiction over this ~roceeding. 

2. Complainant failed to prove a violation of § 105(c) of 

the Act 

ORDER 

The Complaint is DISMISSED. 

2179 

J1).1Jt! ~ ]--a..w ... ~ ~am Fauver 

Administrative Law Judge 
Distribution: 

Thomas W. Rodd, Esq., 264 High Street, Morgantown, WV 26505 

CCertifed Mail) 

Ann R. Klee, Esq., Crowell and Moring, 1001 Pennsylvania Avenue, 

N.W., Washington, D.C. 20004-2505 (Certified Mail 

iz 

2180 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NO-V 71989 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

Docket No. CENT 89-24-DM 

MSHA Case No. MD 88-10 

WILLIAM J. BROCK, 

Complainant Tulsa Plant 

v. 

BLUE CIRCLE, INC., 

Appearances: 

Before: 

DECISION 

E. Jeffery Story, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for the 

Complainant; 

Mark A. Lies, II, Esq., Seyfarth, Shaw, 

Fairweather & Geraldson, Chicago, Illinois, for 

the Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed by 

the Secretary of Labor {MSHA), on behalf of the complainant 

pursuant to section 105(c) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815{c). The complainant alleges that 

the respondent discriminated against him by giving him a verbal 

and written warning for taking too long at work breaks and lunch, 

a written disciplinary·warning for unsatisfactory job performance, and a 1-day suspension with pay for calling a supervisor at 

2:00 a.m., to inform him that he was going on a work break, and 

that it did so because of his reporting safety violations to mine 

management and calling MSHA to address these violations. MSHA 

requests a finding that the respondent discriminated against the 

complainant in violation of section 105(c) of the Act, an order 

directing the respondent to expunge the complainant's employment 

records of all references to the aforesaid disciplinary actions, 

an order directing respondent to pay to the complainant all 

expenses occasioned by these adverse actions, with interest, and 

it seeks a civil penalty assessment against the respondent in the 

amount of $2,000, for the alleged violation. 

2181 
The respondent filed a timely answer to the complaint 

denying that it has discriminated against the complainant. 

Respondent asserts that the disciplinary actions taken against 

the complainant were justified on their merits and w~re unrelated 

to the filing of any safety complaints. A hearing was held in 

Tulsa, Oklahoma, and the parties appeared and participated fully 

therein. The parties filed posthearing briefs, and I have 

considered their ,arguments in my adjudication of this matter. 

Applicable Statutory and Regulatory Provisions 

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

30 U.S.C. § 301 et seq. 

2. Sections 105(c) (1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. §§ 815(c) (1), (2) and 

( 3) • 

3. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

Issues 

The critical issue in this case is whether or not the 

disciplinary actions taken against the complainant by the respondent were motivated by the respondent's desire to punish him, or 

otherwise retaliate against him, because of his safety complaints 

to management and MSHA. Additional issues raised by the parties 

are identified and disposed of in the course of this decision. 

stipulations 

The parties stipulated to three documents which reflect the 

disciplinary action taken against Mr. Brock, and they are as 

follows (Tr. 5) : 

1. A memorandum from Mr. Jim King to Mr. Brock, 

dated August 28, 1987, concerning a verbal warning 

given to Mr. Brock on August 17, 1987, "for taking too 

long at breaks and lunch" (Exhibit C-1). 

2. A memorandum from Mr. Jim King to Mr. Brock 

dated September 18, 1987, and titled "Disciplinary 

Letter-Unsatisfactory Job Performance" (Exhibit C-2). 

3. A memorandum dated September 29, 1987, from 

Mr. Jim Hicks, addressed to Mr. Brock and others, as 

well as his "personnel file," concerning a disciplinary 

meeting held on September 28, 1987, to discuss 

Mr. Brock's "work performance and conduct" (Exhibit 

C-3) . 

2182 
The parties also stipulated to the respondent's history of 

prior civil penalty assessments for the period August 17, 1987 

through August 16, 1987 (Tr. 6, exhibit C-4). 

Complainant's Testimony and Evidence 

Complainant William J ~· (Jerry) Brock, testified that he has 

worked for the respondent for approximately 19 years, and that he 

is classified as a repairman-welder working in the maintenance 

department under the supervision of Mr. Jim King. Mr. Brock 

confirmed that he serves as the vice-president of his local 

union, International Brotherhood of Boilermakers, and also serves 

as the miner's representative, and member of the safety committee. His duties in this regard include safety matters, and 

accompanying MSHA inspectors on theil:' mine inspections. He 

confirmed that he received a safety complaint on or about 

August 11, 1987, concerning some roofing work being done by 

independent contraetors at the plant. He explained that he 

pursued the complaint with several management officials at the 

mine, including Mr. King, and that he was permitted to go to the 

area where the work was being performed to look into the complaint, and that he subsequently contacted MSHA to report the 

matter. He stated that the respondent's safety and employee 

relations manager Bob McCormick informed him that the contractor 

personnel were non-union and "they were none of my business." 

Mr. Brock confirmed that MSHA inspectors came to the mine in 

response to his complaint, and that he subsequently met with them 

at the mine on August 14, 1987. However, since the contractors 

were not working that day, he was informed by the inspectors that 

"there wasn't anything they could do about it" (Tr. 9-18). 

Mr. Brock identified exhibit C-1 as a "verbal warning" he 

received on August 17, 1987, from Mr. King for taking long lunch 

and other breaks, and he confirmed that he discussed the matter 

with Mr. King and asked him to be more specific, but that 

Mr. King was unable to tell him the specific days and times that 

he took too' long for lunch or breaks (Tr .. 19). Mr. Brock also 

identified a memorandum dated September 18, 1987, from Mr. King 

concerning his unsatisfactory work performance in connection with 

work which he performed on two sliding gates and two screws on 

the No. 2 clinker/cooler dust collector (Tr. 20). 

Mr. Brock stated that the verbal warning was not justified 

because all of the miners took their allotted lunch hour and 

breaks together and "that when its time to go everybody just kind 

of gets up and goes" (Tr. 22). Mr. Brock stated that all lunches 

and breaks are taken together in the same room, and that the 

normal allotted time for lunch is 35 minutes, from 12 to 12:35, 

and that the normal breaks are for 15 minutes each, at 9:30 and 

2 : 0 0 (Tr . 2 5 ) . 

2183 
Mr. Brock explained the work that he and a trainee performed 

on the dust collector in question on September 16, 1987. He 

confirmed that after he requested Mr. King to explain his statement that he was spending too much time away from his work on 

personal business, Mr. King gave him a written explanation "a 

couple of days to a week" ~fter he received the memorandum of 

September 18, 1987, and informed him that anything not related to 

his job was considered to be "personal business." ·Mr. King did 

not give him any specific instances of ''personal business" on 

that particular day (Tr. 27-30). 

Mr. Brock identified exhibit C-3 as a memorandum concerning 

a September 28, 1987, meeting with maintenance manager John 

Bayliss and plant manager J. R. Hicks over an incident which 

occurred on September 25, 1987. Mr. Brock explained that on that 

day, he was rinsing off his face and hands during the day shift 

at 11:40 or 11:45 a.m., before the lunch hour, after working in a 

dusty hopper. Mr. Bayliss accused him of washing up early, and 

instructed him that before taking any future breaks he was to 

call him (Bayliss) before taking a break. Mr. Brock stated that 

he requested Mr. Bayliss to give him a letter confirming that he 

was to call him before taking any breaks, and Mr. Bayliss then 

informed him that he was to call him, or supervisors Jim King or 

Frank Vargas before he washed up for any breaks (Tr. 33). 

Mr. Brock stated that he worked the midnight shift on 

September 25, 1987, and that following Mr. Bayliss' instructions, 

he called Mr. Bayliss at his home at 2:00 a.m., to inform him 

that he was washing up before taking a break. Mr. Brock stated 

that he called Mr. Bayliss because Mr. Vargas and Mr. King were 

not working the shift. The meeting in question was called to 

discuss this call, and Mr. Brock was suspended for 1 day with 

pay, and was told "that I was to .take the day off and think about 

whether I wanted to continue working for Blue Circle or not" (Tr. 

35). Mr. Brock understood that he was given the day off because 

of his call to Mr. Bayliss, and he believed that the disciplinary 

actions taken against him were the result of his calling MSHA 

(Tr. 36-37). Mr. Brock stated that his last disciplinary action 

occurred approximately a year and a half prior to the verbal 

warning of August 17, 1987 (Tr .. 37). 

On cross-examination, Mr. Brock confirmed that he had permission from Mr. Bayliss to observed the work of the contractors 

on August 11, but that he (Brock) had no knowledge as to the 

respondent's policy concerning its dealing with contractors. 

Mr. Brock confirmed that prior to this time he had brought a 

number of safety matters to the attention of management during 

monthly safety meetings and no action was ever taken against him 

by the respondent for doing this. Mr. Brock could not recall 

that Mr. King spoke with him a week prior to the verbal warning 

of August 17, concerning his leaving his job too early to wash up 

2184 
for lunch and that he was going to the shop too early to wash up 

to leave work before the regular quitting time (Tr. 38-43). 

Mr. Brock testified to the work that he and a trainee performed on the slide gate. Mr. Brock stated that Mr. King was 

upset with him because he told him that he did not know whether 

the gate was opened or closed, and that Mr. King told him that 

his workmanship on the gate in question was not satisfactory (Tr. 

43-49) . 

Mr. Brock confirmed that at the time he received the letter 

from Mr. King concerning his verbal warning for being away from 

his job on personal business, Mr. King said nothing about MSHA or 

the roofing contractor, and said nothing about his safety complaint (Tr. 50). With regarq to the washing-up incident, 

Mr. Brock confirmed that Mr. Bayliss told him he was washing up 

too early, and that he was to contact him before he took his 

break or when he was washing up to take a break so that he would 

know when he was starting his break. Mr. Brock denied that 

Mr. Bayliss advised him that same afternoon that he was to contact his shift supervisor and tell him that he was taking his 

breaks, and he stated that Mr. Bayliss told him to contact 

Mr. King or Mr. Vargas (Tr. 52). 

Mr. Brock confirmed that he telephoned Mr. Bayliss at his 

home at 2:00 a.m., and advised him that he was calling to inform 

him that he was going to wash up before taking his break, and 

that Mr. Bayliss responded "Is this some form of harassment" (Tr. 

52). Mr. Brock confirmed that he tried calling Mr. Bayliss again 

at 6:00 a.m. that same morning but his line was busy, and that he 

did so because "He never changed his orders" (Tr. 53). 

Mr. Brock confirmed that at the meeting of September 29, his 

prior disciplinary letters which were in his personnel file, as 

well as his phone calls to Mr. Bayliss, were discussed. He also 

confirmed that plant manager J. K. Hicks, who was in charge of 

the meeting, informed him that his personnel file did not reflect 

a good work record or attitude, and that Mr. Hicks informed him 

that he would be given a day off to think about whether he wanted 

to continue working for the company. Mr. Brock confirmed that he 

took the day off with pay, and upon his return, he continued to 

serve as a union officer ~nd miner's representative, and that the 

respondent has taken no action against him because of any safety 

complaints since his return to work (Tr. 56). 

Mr. Brock identified certain documents from his personnel 

file, exhibits R-1 through R-7, as copies of prior disciplinary 

warnings he received from 1978 up to and including September 

1987, regarding attendance, absenteeism, and tardiness (Tr. 

56-57). In response to a question concerning prior ongoing 

counseling given to him and all others in his maintenance department concerning timely breaks and lunch hours, Mr. Brock stated 

2185 
that "Mr. King would just say watch your breaks and stuff like 

that, you know, to everybody. Kind of a general statement" (Tr. 

58) . 

Mr. Brock confirmed that Mr. King became his supervisor on 

approximately January 1, 19_87, and that he (King) had previously 

served as president of the union local. Mr. Brock.did not know 

whether or not Mr. King had also served as the miner's representative, and he.could not recall whether Mr. King began counseling 

all employees in his department in 1987 about lunch hours and 

breaks because Mr. Hicks was "leaning on him" about these matters 

(Tr. 58) . 

In response to further questions, Mr. Brock stated that he 

believed that the safety of contractor employees, even though 

they are non-union, fall within his safety duties as long as they 

are on mine property, and that if he observes such employees in 

his work area without proper safety equipment, he will speak with 

them. He stated further that "most of the time" he will seek 

management's permission before leaving his job to speak with 

contractor employees, and that when Mr. Hertzog advised him that 

contractor employees "wasn't any of my business," this was the 

first time he had been told this (Tr. 64). 

Mr. Brock confirmed that when he received the safety complaint concerning contractor employees, he did not seek·out the 

employees or speak with them, but he did speak wit~ Mr. Bayliss 

about it before calling MSHA. Mr. Brock stated that he did not 

know whether Mr.· Hicks or others in management were aware of the 

fact that he had called MSHA (Tr. 65). He also confirmed that he 

had previously called MSHA inspectors about "general questions" 

and complaints. He believed management knew that he had called 

MSHA because "I went and asked Mr. King if I could use the phone 

to call them" (Tr. 66). 

Mr. Brock stated that he got along "fair-to-middling" with 

Mr. King, and that "I've had better relationships but I've had 

worse too." He confirmed that when he called Mr. Bayliss at 

2:00 a.m., he "guessed" that he woke him up, and he stated that 

Mr. Bayliss sounded "sleepy" and "agitated" (Tr. 69). Mr. Brock 

stated that after the meeting concerning this call, he was 

instructed to call the supervisor who was on duty, rather than 

Mr. Bayliss, when he was going to take a break, and he confirmed 

that Mr. Bayliss never put these instructions in writing (Tr. 

70). Mr. Brock confirmed that after attempting to call 

Mr. Bayliss again at 6:00 a.m., he informed production foreman 

Jake Barber that Mr. Bayliss's phone was busy and that he was 

going to take his break (Tr. 71). 

Mr. Brock stated that the complaint concerning the contractor employees and roofers was the only time he made a safety 

complaint to management, and he believed that the verbal warning, 

2186 
disciplinary letter, meetings, and Mr. Bayliss' instructions 

concerning lunch and other breaks were all the result of management 1 s punishing him for calling MSHA. In support of this conclusion, Mr. Brock stated that he had not previously been 

counseled by management "on anything of that nature," and that 

Mr. King had previously informed him that "I was twice as productive as I used to be" (Tr.· 72). 

Mr. Brock stated that as a result of his call to MSHA, two 

inspectors came to the mine and met with him and Mr. Bayliss and 

Mr. Hicks, to discuss the contractors' use of safety glasses and 

hard-toed shoes, but that no violations were issued because no 

contractors were working that day. Although no one from management discussed his call to MSHA, Mr. Brock stated that he was 

under the "general impression" by the "way they were acting" and 

their "general tones," that "they weren't too happy about it" 

(Tr. 7 4-7 5) . 

Robert Joe Thompson, respondent's lab technician, testified 

that he previously worked as a maintenance welder repairman, and 

that he serves as president of the local union at the mine. He 

confirmed that he attended the September 28, 1987, meeting with 

Mr. Brock and management concerning his work performance, and 

that Mr. Brock's telephone call of 2:00 a.m. to Mr. Bayliss was 

discussed. Mr. Thompson stated that Mr. Bayliss told him that he 

had given Mr. Brock a direct order to call him, Mr. Vargas, or 

Mr. King, before washing up for any breaks. ·Mr. Thompson also 

stated that he repeatedly asked Mr. Hicks for instructions as to 

who Mr. Brock was to call in the future, but received no answer, 

and Mr. Hicks kept referring to Mr. Brock's work record and 

attitude, and indicated that "he should act as an adult" (Tr. 

79) . 

Mr. Thompson stated that on August 11 or 12, 1987, Mr. Brock 

requested him to call MSHA because contractors were working on a 

.roof without wearing safety equipment. He confirmed that he did 

not tell management about the call, and management did not indicate that they knew he (Thompson) had called. However, 

Mr. Hertzog stated to him that there was no sense in Mr. Brock 

calling MSHA because such matters should be handled "in-house" 

(Tr. 80). 

Mr. Thompson stated that he knew of no one being previously 

suspended with pay and he explained the procedures for employee 

breaks, and stated that while working in the maintenance department, he observed employees abusing the time for breaks and 

lunch, that it happens "everyday" (Tr. 84). When asked how 

management addresses these abuses, Mr. Thompson replied "it 

depends on who you are, how much brown nosing you do with the 

foreman. If th~ superintendent don't like you, you're going to 

take 2 or 3 minutes to get to break, take a break and get back to 

work. If they like me I can take 30, 45, an hour" (Tr. 85). 

2187 
Mr. Thompson believed that Mr. Brock was being treated differently from other employees because "right after they thought he 

made this call to MSHA, he gQt into a big argument with 

Mr. Hertzog and Mr. McCormick" (Tr. 86). He also believed that 

the respondent intends to fire Mr. Brock, and is awaiting the 

outcome of this proceeding_~o do so (Tr. 87). He also stated 

that the respondent did not know until his testimony in this 

hearing that it was he who called MSHA, and that Mr. Hertzog 

suspected that Mr. Brock had called (Tr. 88). 

Mr. Thompson confirmed that he serves as an alternate on the 

mine safety committee, and while he believed he had the authority 

to ask a contractor employee about wearing a hard hat, he has 

always contacted management and requested it to insure that 

contractor employees wear hard hats or safety glasses (Tr. 89). 

Mr. Thompson disagreed with management's position that the safety 

of contractor employees is within management's prerogative, and 

is of no business of the regular safety committee. Mr. Thompson 

stated that he did not know whether contractor employees are 

union or non-union (Tr. 93). 

Mr. Thompson stated that he gets along fine with Mr. King, 

but that everyone does not get along "fine" with each other, that 

there is a lot of "chain pulling" going on, and although he does 

not sometimes tell management how to run the mine, management 

sometimes tells him to "mind his own business" (Tr. 94). 

Mr. Thompson believed that management was "fed up" with Mr. Brock 

when they thought he called MSHA after telling him that "it was 

none of his business" (Tr. 96). Mr. Thompson wa~ not aware of 

any other employee being disciplined over breaks or lunch time, 

and that prior to Mr. Brock's case, he was never called in to any 

management meetings about such matters (Tr. 100). 

On cross-examination, Mr. Thompson confirmed that his conversation with Mr. Hertzog concerning the handling of safety 

complaints "in-house" took place in October or November of 1987 

in the conference room when Mr. Hertzog came to the mine to 

explain insurance benefits to mine employees (Tr. 107-108). 

Mr. Thompson stated that Mr. Hertzog was referring to the meeting 

between Mr. Brock, Mr. Hertzog, and Mr. McCormick when he made 

the statement that it was not Mr. Brock's business, and the fact 

that he believed Mr. Brock had called MSHA (Tr. 109). 

Mr. Thompson confirmed that he checked no company records to 

support his statement that no other employees have ever 

previously been suspended for a day with pay. He also confirmed 

that Mr. Brock filed a grievance over the suspension, and that it 

is still pending (Tr. 111). 

Arthur Wayne Roache, repairman/welder, confirmed that he has 

worked for the respondent for 21 years, and that he attended the 

September, 1987, meeting in Mr. Bayliss' office as a witness on 

2188 
behalf of Mr. Brock. Mr. Roache stated that the meeting concerned Mr. Brock's telephoning Mr. Bayliss during the night, and 

that at the meeting, Mr. Brock requested Mr. Bayliss to put in 

writing his instructions as to who he was supposed to call before 

taking any breaks. Mr. Roache stated that Mr. Bayliss told 

Mr. Brock that he did not have to put it in writing, and after 

the meeting got "a little heated," Mr. Bayliss stated that 

Mr. Brock was to call him, Mr. King, or Mr. Vargas before taking 

any breaks (Tr. 113). 

Mr. Roache confirmed that he worked the same hours as 

Mr. Brock, but on different jobs, and that they took their breaks 

at the same time. When asked whether he (Roache) had ever gone 

beyond the normal break hours, Mr. Roaches responded "I've took 

more; I've took less." He also stated that it was not unusual 

for other employees to take more time, and that "sometimes you 

get in later and go later," and that "sometimes the clocks will 

be a little different or whatever, and it will be some that go 

earlier." He admitted that lunch and break hours have been 

abused, and that "sometime last week I probably abused it. I 

probably went early," and that he had "probably" done this during 

August or September of 1987, but received no verbal or reprimands 

for doing so (Tr. 117). He identified miner Bob Clark as one who 

"went down 2 or 3 minutes early," and he stated that "all of us· 

do it. Everybody is going to exceed it a little," and he confirmed that this was an ongoing practice during August and 

September of 1987, as well as "today." He further stated that 

"we have a whistle. Sometimes it works; sometimes it doesn't" 

(Tr. 118). 

Mr. Roache confirmed that Mr. King was his main supervisor 

in August and September of 1987, and that Mr. Bayliss and 

Mr. Vargas also served as his supervisor. He confirmed that he 

was aware of the fact that Mr. Brock had received disciplinary 

warnings for exceeding lunch or break times, but knew of no other 

employees who have received any such actions. He stated that 

"we're generally called together as a group and told to watch our 

breaks and lunches," and that he was not aware of any other 

occasions that Mr. Brock was singled out over this issue (Tr. 

119). He confirmed that he was not aware of the prior disciplinary actions taken against Mr. Brock, although he did recall that 

"they was on him over being late," but did not recall the time 

frame (Tr. 120). 

Mr. Roache confirmed that he has been the subject of disciplinary action by management for being late or missing work, 

and has been counseled over missing too much work (Tr. 120). He 

explained management's absentee policy and program which was 

established by Mr. Bayliss, and he confirmed that employees were 

aware of it. He also confirmed that he had been called to 

Mr. Bayliss' office and counseled about missing too much time 

from work, but that nothing further happened to him (Tr. 121). 

2189 
On cross-examination, Mr. Roache confirmed that nothing was 

said about employee health and safety at the meeting he attended 

with Mr. Brock, and there was no discussion about MSHA. He 

believed the meeting lasted 10 minutes, and he did not hear 

Mr. Bayliss tell Mr. Brock· to call the supervisor who was on duty 

before taking a break. He ·confirmed that the respondent has had 

an absentee program in effect since he has worked at the mine, 

that management monitors attendance and absenteeism, and that 

once an employee is in the program he is subject to further 

discipline. He believed that Mr. Brock was placed in this program, but did not know when, and he explained that when management decides that an employee has missed too much work "they call 

you in and you start through the steps." He stated that he has 

never been "singled out" and counseled about his breaks or lunch, 

and that this is always done as a group. He was aware of one 

employee who was counseled "one-on-one" about his absenteeism, 

but could not reca-11 the details (Tr. 127) . He confirmed that he 

has attended meetings when Mr. Bayliss has talked about "tightening up on going to breaks, coming from breaks, and same time 

periods in going to lunch and coming back from lunch," and that 

Mr. Bayliss holds meetings ori this subject "when he thinks it's 

needed" (Tr. 127). Mr. Roache confirmed that "counseling" is the 

first step leading to further discipline, and that following 

counseling, written or verbal warnings may be issued (Tr. 129). 

David Mike st. John, accounts payable clerk, and member of 

the local union, testified that his office is in the general area 

of Mr. Hicks' office. He confirmed that he was at work when the 

two MSHA inspectors came to the mine on August 13, 1987, and met 

with Mr. Hicks and Mr. Bayliss just outside of Mr. Hicks' office 

door. Mr. Brock was not present then, but was called in later. 

Mr. st. John stated that he asked Mr. Bayliss what was going on, 

and that Mr. Bayliss was agitated and stated "that god damn Brock 

called MSHA on us." Mr. st. John stated further that he overheard a conversation that same afternoon or the next day when 

Mr. Brock, Mr. Hertzog, and Mr. McCormick were meeting "with the 

MSHA people," and heard Mr. Hertzog tell Mr. Brock that "this was 

a family matter and he didn't have any business calling MSHA, and 

that would Jerry (Brock) like for him to call the IRS on him" 

(Tr. 132). Mr. st. John stated that Mr. Hertzog appeared 

agitated. 

On cross-examination, Mr. st. John confirmed that he had 

never previously heard Mr. Bayliss swear, and that he is a very 

soft spoken individual. He confirmed, however, that he "didn't 

use soft words at that time" and that Mr. Bayliss made the statement as he was passing through the hallway (Tr. 134). He was not 

sure of the time this was said, and stated that "I just know that 

they were talking about Jerry calling MSHA," and that he overheard the second conversation while he was passing through the 

hallway coffee shop (Tr. 135). 

2190 
Mr. St. John confirmed that he was serving as the elected 

union secretary/treasurer in August of 1987, and still serves in 

that capacity. He confirmed that he recalled Mr. Hertzog's 

statement because he considered it a threat to Mr. Brock and told 

him that "you'd better look out." Mr. St. John stated that 

Mr. Brock responded that "we have to do what we have to do" (Tr. 

138) • 

Anthony Rodney Sutherland, laborer, confirmed that he has 

worked for the respondent for over 8 years, and that he previously worked in the maintenance department for about 5 months, 

including August and September, 1987, on the evening shift. 

Mr.King was his supervisor at that time, and Mr. Brock was working the day shift. Mr. Sutherland confirmed that on one occasion, he was on a break with Mr. King and other members of the 

work crew, and that the break lasted for 25 minutes. He confirmed that he ang the other maintenance employees did not 

receive any verbal or written warnings for taking excessive 

breaks, and that he has occasionally exceeded the allotted 

15 minute break period for "a minute or two," and that he has 

observed other employees doing the same thing (Tr. 144). He 

confirmed that Mr. King was aware of the fact that he took a 

25 minute "that one night," but that he was not aware of the 

other instances when this has occurred (Tr. 144). 

On cross-examination, Mr. Sutherland stated that he could 

not recall the date that he took the 25-minute break with 

Mr. King, but confirmed that it occurred during a shutdown period 

when maintenance was being performed and when the work schedule 

was a "little bit" different (Tr. 146). He confirmed that this 

was the only time during his 8 years at the mine that Mr. King 

took an extended break. He also confirmed that he has attended 

meetings where Mr. King has talked "about attendance and keeping 

your break times to what they should be and your lunch times to 

what they should be," and that he has heard Mr. King state "Watch 

your breaks. Don't come in early. Don't leave early. Take a 

15-minute break" (Tr. 147). 

In response to further questions, Mr. Sutherland stated that 

Mr. Hicks was the plant manager and Mr. King's supervisor at the 

time of the extended break. He did not know whether Mr. Hicks 

was aware of the extended break, and confirmed that Mr. Hicks 

would not be in a position to know when employees took breaks 

unless someone were to tell him (Tr. 149). Mr. Sutherland confirmed that he has never been counseled for being late (Tr. 149). 

Maurice Lamar Harris, laborer, stated that he has worked for 

the respondent for 15 years, and that on September 26, 1987, he 

was working in the maintenance department as a trainee. He 

confirmed that he worked with Mr. Brock for 3 days during this 

time, and that Mr. Vargas had instructed them to repair the gates 

2191 
on the No. 2 dust collector at the "west end." There were four 

or five different gates in the area, and Mr. Vargas did not 

specify the particular gate in need of repair, and after searching for the equipment required to make the repairs, he and 

Mr. Brock went to the area and proceeded to take one of the gates 

apart. While they were wotking, Mr. King arrived in the area and 

asked them what they were going, and that he explained to 

Mr. King that they were taking the gate apart. Mr. King advised 

them that it was the wrong gate and instructed them to put it 

back together, and that this took an hour or two to finish. 

Mr. King then pointed out the correct gate which was in need of 

repair, and the work was finished by 3:00 p.m., a half-hour 

before the shift had ended (Tr. 150-156). 

Mr. Harris stated that Mr. Vargas had come to the area where 

he and Mr. Brock were working on the gate before Mr. King did, 

and that Mr. Brock had gone to have his blood pressure checked at 

that time and was not there. Mr. Harris stated that he and 

Mr. Brock took the-normal 15-minute break and 35-minute lunch 

hour that day. However, Mr. Harris confirmed that on other 

occasions, he and other employees had taken more than their 

allotted time for breaks, and that he was never reprimanded for 

doing this (Tr. 157). Although Mr. Harris believed that he and 

Mr. Brock had done a good job in repairing the gate, Mr. King 

informed them that the work was "shoddy," and Mr. Harris stated 

that the latex caulking would come out at the edges when it is 

pressed down, but that the gate was working when they finished 

the job (Tr. 158). 

On cross-examination, Mr. Harris stated that the· work on the 

gate in question was the first time he had ever worked on such a 

gate, that Mr. Brock was showing him how to repair it, and that 

they received the work assignment at 7:00 a.m. He confirmed that 

Mr. Brock pointed out the gate which they believed needed to be 

repaired, and he explained the time spent on gathering up the 

needed tools to do the job. He stated that Mr. King showed up 

before 9:30 a.m., and after informing him that they were working 

on the wrong gate, he proceeded to reinstall the gate bolts which 

he had removed, and Mr. King left the area. Mr. Brock returned 3 

or 4 minutes later, and was there before 8:00 a.m. Mr. Harris 

stated he informed Mr. Brock that Mr. King had been by and 

informed him that they were working on the wrong gate, arid that 

Mr. Brock had been gone for about 15 minutes to get his blood 

pressure check, but was back at 10:15 or 10:30 a.m. The wrong 

gate had been repaired and reinstalled before the lunch break 

(Tr. 166) . 

Mr. Harris stated that after lunch, Mr. Brock went to see 

Mr. McCormick, and returned to work on the gate at 1:00 p.m., or 

shortly thereafter (Tr. 167). Mr. King returned again in the 

afternoon, and discussed the work being performed on the gate 

with him, and Mr. Harris heard Mr. King use the term "shoddy" in 

2192 
referring to the work he and Mr. Brock were performing on the 

gate (Tr. 169). Mr. Harris stated that he could not recall he 

and Mr. Brock sitting in the storeroom laughing and talking with 

another employee when Mr. King came in and told them "You're ten 

minutes past the break. It's time to get back" (Tr. 169). He 

did recall Mr. King comingto the storeroom while he and 

Mr. Brock were there, but did not hear Mr. King's statement (Tr. 

170). Mr. Harris confirmed that another crew was working on 

gates nearby, but did not know how many gates they had completed, 

and that he did go to the area to borrow a tool from the other 

crew (Tr. 171). He confirmed that he and Mr. Brock discussed 

Mr. King's comment about the "shoddy" work, and that Mr. Brock 

told him "Don't even worry about it" (Tr. 174). He also confirmed that although Mr. Brock spent some time looking for ·a 

welder, there was no need for any welding work on the second gate 

which they repaired (Tr. 175). He also confirmed that Mr. Brock 

went to get his blood pressure checked because that was the only 

time the mine nurse was available, and that this was part of a 

routine check available to employees (Tr. 177). 

Robert A. Clark, repairman/welder, confirmed that he has 

been employed by the respondent for 21 years, and that on approximately September 16, 1987, he was performing work on some dust 

collector slider gates adjacent to the area where Mr. Brock and 

Mr. Harris were working. He confirmed that he began work on this 

job a week or so prior to this time, and that on September 16, he 

repaired "two, maybe three" gates, and he explained the work he 

performed, and the amount of time required to do the work. He 

confirmed that after completing his work, he helped Mr. Brock and 

Mr. Harris repair the gate they were working on because they had 

some alignment problems (Tr. 179-184). 

Mr. Clark confirmed that he .and other employee$ have taken 

more than the allotted 15 minutes for breaks, and that he has 

taken more than 35 minutes for lunch and that Mr. King, 

Mr. Vargas, and Mr.; Bayliss were aware of it because "they may be 

present when I come in to wash up early. Or, if it's getting 

back late, they may be present when I get back to the job." He 

could not recall that he or any other employee were ever given 

any oral or written reprimands for taking excessive break or 

lunch times (Tr. 185). 

On cross-examination, Mr. Clark confirmed that he observed 

Mr. King and Mr. Vargas "coming and going" in the area where 

Mr. Brock and Mr. Harris were working on the gate, and that they 

were working approximately 35 feet from where he was working. He 

confirmed that the subject of overextending lunch periods and 

breaks has been discussed with the people in the maintenance 

department periodically at safety meetings (Tr. 188). He confirmed that he has observed Mr. Brock stop and "chit-chat" with 

people around the workplace, and has· observed him being slow in 

2193 
coming back from breaks and lunch because he's talking to people 

(Tr. 189-190). 

Mr. Clark identified exhibit C-1, the memorandum concerning 

the August 17, 1987, meeting between Mr. King and Mr. Brock, and 

although the document reflects that he was present, Mr. Clark 

could not recall being at the meeting (Tr. 191). Mr. Clark 

confirmed that he was aware of the fact that Mr. Brock was a 

member of the safety committee, that he has approached him with 

safety complaints, that it was possible that Mr. Brock was discussing safety matters and union business when he stops and talks 

to people, and that he has been present when this has happened 

(Tr. 192). 

Respondent's Testimony and Evidence 

James R. King_, maintenance supervisor, testified that he has 

been employed by the respondent since 1972, and he confirmed that 

he served as the elected president of the local union from 1975 

to 1977, and again from 1979 to 1984, and served as vicepresident in 1978. He also confirmed that he served as the 

miner's representative for each of the years that he served as 

president of the union, with the exception of 1975. He also 

confirmed that he was familiar with the Act and the employee's 

rights under the Act, that he was involved in reporting health 

and safety complaints on behalf of employees while a member of 

the union, and that he was never discouraged from doing so by the 

respondent. He stated that during the time he served as union 

president and representative of miners, he was not aware of any 

miners ever being disciplined by the respondent for calling MSHA, 

that he himself has called MSHA, but was never disciplined for 

doing so (Tr. 199). 

Mr. King stated that he accepted a management position with 

the respondent in February, 1986, and became the maintenance 

supervisor in January, 1987, and he described his duties. He 

confirmed that during his tenure with the union, he received 

"group counselling" from the respondent regarding the proper time 

periods for lunch periods and morning and afternoon work breaks 

from time-to-time, and that when he became the maintenance supervisor, he conducted such counselling for the employees he was 

responsible for. He explained that he did this at safety meetings, and that Mr. Brock was present when this was done. He 

confirmed that he also conducted "one-on-one" talks with each 

employee in his department with respect to what he expected on 

the subject of breaks, and that after his initial counseling he 

still had problems with Mr. Brock, and employees Bill Hobbs and 

Dean McKellips. He explained that his individual talks with 

Mr. Hobbs and Mr. McKellips took place on the same day that he 

spoke with Mr. Brock, and that Mr. Hobbs and Mr. McKellips 

responded to his talks and improved their work habits and break 

practices (Tr. 199-205). 

2194 
Mr. King confirmed that he spoke with Mr. Brock concerning 

his breaks and he explained what transpired at the meeting as 

follows (Tr. 205-208): 

Anyway, I told Jerry that he was taking too long on 

breaks, that I'd been.:..·-you know, I'd been paying 

particular attention to the breaks. They all knew I 

had been. Jerry's response was, "Give me a specific 

instance and time." And I said, "Jerry, for the last 

week, you've been late every break, every lunch during 

the past week." I said, "You come in too early, you 

leave too late on each and every of fifteen occasions 

that I've watched you." 

Jerry said, "well, I don't believe I have. Give 

me a specific example." I said, "Jerry, I'm telling 

you, each and every time, you're the last one back to 

the shop. You're the first ~ne to come in. This deal 

with going to break in the afternoon and taking a 

30-minute shit after the break has got to stop." Jerry 

said, "That's just a normal function of mine." And I 

said, "If it is, I'd be thinking about clocking out." 

And that was the words I used to do that. Jerry said 

he didn't feel like he was abusing it. I said, "Well, 

this is a verbal warning because I feel like you are. 

I want to document it, so I'm giving you a verbal 

warning." And that was the results of that meeting. 

* * * * * * * 

Q. And the week that you were referring to that you 

had observed him. You said you observed him for a week 

before you gave him this warning. Was that the week of 

August 10th, 1987? 

A. Yes, I assume. Yes, sir. 

Q. And you said that you had observed him at all the 

breaks. How were you able to do that? Was he coming 

into the shop near you, or how were you--

A. I was being back in the shop at the time the guys 

were coming to and from their breaks and their lunch 

period. I was making a point to be in the shop to 

watch everybody, because they come in from all 

different placed. 

And secondly, the way we assign our jobs, everybody is not out for the day. Some guys may be coming 

back in. They may be through with their jobs at ten or 

fifteen minutes till break, and at that time, it's time 

2195 

• 
.. 

to reassignment them and communicate with them what you 

want. There's no sense in trying to send them out; 

they don't have time to get back to the job. But it's 

the best time to communicate with everybody how the 

jobs are going because I can't be on all the jobs at 

once. 

Mr. King confirmed that a week prior to Mr. Brock's receipt 

of his verbal warning, Mr. Brock spoke to him about his belief 

that contractor employees were not following MSHA's guidelines on 

safety equipment. Mr. King stated that he informed Mr. Brock 

that he would look into the matter, and th~t he immediately 

checked on the contractor employees and spoke with them about 

wearing hard-toed shoes, hard hats, and safety glasses, but could 

not recall whether he informed Mr. Brock that he had done so. 

Mr. King denied that the verbal warning had anything to do with 

Mr. Brock's complaint concerning contractors or with MSHA, and 

that this was never brought up. He stated that at the time of 

the verbal warning-to Mr. Brock, he had no information that 

Mr. Brock called MSHA. He also.confirmed that the decision to 

issue the verbal warning was his (Tr. 209-210). 

Mr. King explained the circumstances under which Mr. Brock 

and Mr. Harris were assigned to do some work on the slide gates 

on September 16, 1987, and he confirmed that the work assignment 

was made at 7·: oo a.m., and that barring any problems, he would 

have expected the work to be completed by 1:00 p.m. He stated 

that he checked the progress of the work at 9:30 a.m., 

11:50 a.m., and 3:00 p.m., and also visited the shop and waited 

there until the employees came back from their break. During his 

initial visit to the work area, Mr. King confirmed that Mr. Brock 

was not there, and that he advised Mr. Harris that he was working 

on the wrong gate, and asked about Mr. Brock's absence. 

Mr. Harris stated "I don't know. He went to use the bathroom or 

something" (Tr. 213). Mr. King later visited the storeroom at 

the conclusion of the 2:00 p.m., break, and Mr. Harris was there, 

but Mr. Brock came in later and he and Mr. Harris talked until 

2:27 p.m., and then "kind of casually" returned to their work 

(Tr. 214). At the conclusion of the work shift, he found 

Mr. Brock back at the shop at 3:17 p.m., standing by his locker 

ready to go home, and he confirmed that normal "wash-up" time 

starts at 3:20 p.m., and that Mr. Brock was cleaned up and ready 

to leave at 3:17 p.m. (Tr. 216). 

Mr. King stated that when he returned to the slide gate 

area, the gate was still stuck, and that he had previously told 

Mr. Brock about this and that it needed to be corrected. 

Mr. King stated that he assigned a night shift repairmen, M. U. 

Taylor, to fix the gate and he stayed until the work was completed. He confirmed that the repairs took approximately 

20 minutes (Tr. 217). Mr. King confirmed that as a result of 

2196 
Mr. Brock's work performance with respect to the gate in question, he took disciplinary action against Mr. Brock, and he 

explained as follows (Tr. 217-220): 

A. What I said to him was that I felt like, you know, 

the entire job that day was entirely wasted because he 

hadn't applied himself. And the basic problem we had 

that day was Brock wasn't on the job. The only time I 

found Brock.on the job was at three o'clock when I came 

back. 

The other times where I looked up on the job or I 

went up on the job, he wasn't there. And he told me 

that he had seen Mr. Hicks and that he had went down to 

take his blood pressure and saw Mr. Hicks in the 

console, and he had talked to him for 30 minutes or so, 

one time. At this meeting, that's what he told me. 

And I knew that he had been to see Mr. McCormick 

at--right after lunch. They had to finish a safety 

meeting or something. But that didn't take very long, 

as it turned out. It just took 30 minutes or-- He was 

supposedly back on the job by 1:00. 

Q. Were you the person that made the determination to 

issue this disciplinary letter, sir? 

A. Yes. 

-

Q. And did your issuance of this disciplinary letter 

have anything to do with the fact that Mr. Brock had 

told you about the outside contractors not wearing 

personal protective equipment? 

A. No, didn't have anything to do with it. 

Q. And did the issuance of this disciplinary letter 

have anything to do with any discussions that Mr. Brock 

may have had on September 16th with Mr. McCormick about 

the safety committee? 

A. I wouldn't have known what those were. That conversation was • 

Q. Now, in the letter or in the warning, you talk 

about "taking care of personal business." What did you 

mean by that? 

A. Taking-- Well, he'd been down to get his blood 

pressure checked. Any time any of the employees leave 

the job to be gone, anything other than job-related 

trips such as to get parts or go find equipment or 

2197 
something, and they're going to be gone for any period 

of time over like five minutes, they're supposed to 

tell me. 

He had been gone 30, 45 minutes, and he hadn't 

notified me. Which puts me in a spot because if my 

supervisor or the plant manager asks me, "What's he 

doing over there?" I'm supposed to know. I'm supposed 

to know where he's at unless he's looking for-- I'm 

assuming it's needed tools unless .... 

Mr. King reiterated that his disciplining of Mr. Brock had 

absolutely nothing to do with anything he may have done with 

MSHA, and while he knew that Mr. Brock was·a committeeman, he 

stated that "I had no idea of anything he was doing with MSHA" 

(Tr. 221). 

Mr. King stated that he issued no warning to Mr. Harris 

about his work activities of September 17, 1987, and while he 

assumed that he had previously spoken with him about breaks at 

one of his meetings, he could not recall doing so. He explained 

that Mr. Harris was a probationary employee, and he identified 

exhibit R-8 as a copy of a probationary work report concerning 

M~. Harris, including his notations that he warned Mr. Harris 

about taking excessively long breaks on September 16, 1987, and 

October 7, 1987 (Tr. 222-223). He explained that he spoke with 

Mr. Harris about his break of September 16, but did not formally 

"warn" him under the applicable disciplinary procedure, and that 

he simply observed him taking an excessive break on October 7, 

but could not recall talking to him about it (Tr. 224). 

Mr. King confirmed that he was at work on September 25, 

1987, and that he was seated at his desk in Mr. Vargas' office, 

approximately 10 feet away from where Mr. Bayliss and Mr. Brock 

were discussing Mr. Brock'~ breaks. Mr. King explained what 

transpired as follows (Tr. 225-227): 

A. John had called Jerry in to the office. He had 

told me at the lunch period he was aggravated because 

Jerry was continually in too early to wash up, and 

every time he asked him, he always had a reason. And 

he had just asked him what he was doing in at fifteen 

till or approximately that. And Jerry said he had dust 

in his eyes. He was just washing his face. And he was 

going to warn Brock about doing that. So, they were in 

the office, and John's first statement was, "I want you 

to tell me any time you go to break, to wash up or go 

to break." And Jerry says, "You want me to tell you?" 

And John said, "I want you to tell your supervisor any 

time you leave." 

2198 
Q. There's no question in your mind that Mr. Bayliss 

indicated that Mr. Brock should call his supervisor? 

A. No, there's no question because I was listening to 

it, and it caught my ear when John said, "call me." 

And I thought, no, he· .don't want him to do that. And 

John changed it to "call your supervisor," which is 

first of all, myself, Frank Vargas, and when we're not 

present due to the normal operations of the plant, it's 

the shift foreman that is on charge. 

Q. So that on the morning of September 26th of 1987 at 

about two o'clock in the morning, there would have been 

what? A shift supervisor or someone there for 

Mr. Brock--someone at the plant--

A. That's correct. 

Q. --for Mr. Brock to call and tell him that he was 

going on break. 

A. Mr. Brock had asked to come in that day at 

midnight. We had offered overtime to everybody on that 

Saturday. Jerry had come to me and said, "I would like 

to come in at midnight instead." And I was granting 

his wish. And that is the reason he was working at 

that hour, some--only twelve hours after this conversation with John. 

On cross-examination, Mr. King confirmed that Mr. Brock 

spoke with him about independent contractors working on the roof, 

and that at the end of the day, Mr. Brock stated to him that "I'm 

not getting any results. I want to call MSHA" (Tr. 229). 

Mr. King also confirmed that a company nurse is available for 

routine blood pressure checks, and that many employees wash up 

three or four minutes early. He also confirmed that he did not 

issue a formal warning to Mr. Harris because he was on probation 

and stated that "If he don't make it, he doesn't stay" (Tr. 229). 

Mr. King confirmed that in May, 1987, he began to try and 

"crack down" on excessive use of break time and lunch times, and 

that during the week of August 10, 1987, he observed Mr. Brock 

using excessive time. He confirmed that he was in the break room 

observing employees, and that he also watched them coming back to 

t:qe maintenance shop from his office. He confirmed that he kept 

no notes on the exact times Mr. Brock was "going in and coming 

back out, i• and stated that "He was the first one in and the last 

one out" (Tr. 231). 

In response to further questions, Mr. King stated that when 

Mr. Brock asked to use the phone to call MSHA, it was close to 

the end of the work shift and that he asked Mr. Brock to wait 

2199 
until the shift was over, and that he responded "Okay" (Tr. 241). 

Mr. King confirmed that he had no personal knowledge that 

Mr. Brock in fact called MSHA (Tr. 231). He also confirmed that 

Mr. Brock had never previously asked his permission to call MSHA, 

and that he asked him to wait because it was a busy time in his 

office, and since the shift was almost over, he did not believe 

that it made any difference for Mr. Brock to wait (Tr. 233). If 

Mr. Brock had asked him to use the phone at the start of the 

shift, he would have allowed him to do so (Tr. 233). 

Mr. King explained that he spoke to the contractor employees 

in response to Mr. Brock's concerns, and informed them about the 

need to wear hard hats and safety glasses. Mr. King assumed that 

Mr. Bayliss was responsible for the contractor employees, and 

·that he discussed the matter with him at a later time. Mr. King 

could not recall whether Mr. Brock had previously discussed 

contractor employees with him (Tr. 234-239). 

Mr. King confirmed that he had no knowledge of the disciplinary meeting between Mr. Brock and Mr. Hicks, and was not present 

at this meeting because he was not asked to attend and was not 

involved in the incident concerning Mr. Brock's calls to 

Mr. Bayliss at his home. Mr. King did not know whether Mr. Hicks 

was aware of his prior verbal and written warnings to Mr. Brock 

at the time of the meeting, and he confirmed that Mr. Hicks and 

Mr. Bayliss never discussed Mr. Brock's calling MSHA inspectors 

with him at any time (Tr. 238-241). 

John Bayliss, maintenance manager, stated that he has worked 

for the respondent for 3 years, and that Mr. King and· Mr. Vargas 

are two of seven maintenance managers who work under his supervision. He stated that employee breaks and lunch hours have been 

an "ol)going problem," and that "it manifests itself in Mr. Hicks 

noticing the maintenance department that the laborers are taking 

too long breaks, and he instructs me to tighten up." Mr. Bayliss 

confirmed that he "passed the word" to Mr. King in 1987 to 

"tighten up on the break times and the lunch times." He also 

confirmed that he was aware that Mr. Brock was the miner's representative, and he explained the functions of the safety committee, and explained that safety complaints concerning mechanical 

and electrical matters are assigned to each of those departments 

for corrective action. He stated that the respondent has never 

prevented any employee from making complaints to MSHA, and has 

never taken any disciplinary action against any employee for 

doing so (Tr. 242-245). 

Mr. Bayliss confirmed that he received a call from 

Mr. Robert McCormick on August 10, 1987, concerning a roofing 

contractor who was doing some work at the mine. Mr. McCormick 

informed him that he had received a complaint that contractor 

employees were not wearing safety equipment, and that he went to 

the job site with union repairman and welder Durst as a witness 

2200 
to verify that he was pursuing the complaint. Mr. Bayliss stated 

that he spoke with the contractor employees and they advised him 

that someone else had been there earlier, and that they explained 

to Mr. King that they did not wear safety shoes on the roof 

because they would damage the roofing membrane material, and that 

the wearing of hard hats o~ the roof presented a problem. 

Mr. Bayliss stated that he informed the contractor employees to 

wear hard hats when they came down from the roof, and they 

accepted this instruction. Mr. Bayliss stated that,he met with 

Mr. Brock later that day in the maintenance shop and informed him 

that he had visited the roof and did not believe that the 

employees working on the roof needed to wear hard hats, but that 

Mr. Brock disagreed and stated that "they have to wear hats all 

the time the same as we do" (Tr. 248). Mr. Bayliss later saw 

Mr. Brock without a hard hat in the maintenance shop, and when he 

asked him about it, Mr. Brock responded "If they don't have to 

wear a hat, I don't have to wear a hat." After Mr. Bayliss 

pointed out to Mr. arock that a crane was above them and it was 

essential that he wear a hard hat, Mr. Brock "started wearing his 

hat" (Tr . 2 4 9 ) • 

Mr. Bayliss con.firmed that he attended a meeting in 

Mr. Hick's office on August 13, 1987, and that two MSHA inspectors were present. Inspector Lavell informed him that 

Mr. Thompson had called MSHA about a roofing contractor, and 

Mr. Bayliss informed the inspector that the contractor was not 

working that day. The inspector then told Mr. Bayliss that he 

wanted to discuss the matter, and Mr. Brock was called to the 

meeting. Mr. Bayliss stated that at this time, the MSHA inspectors said nothing about Mr. Brock calling MSHA, and only 

Mr. Thompson was identified as the person who made the call. 

Mr. Bayliss stated that since the contractor was not working that 

day, everyone present went to lunch together, including the 

inspectors, Mr. Brock, Mr. Hicks, and himself, and that they 

discussed "MSHA in general, and the new political situation and 

administration in Washington" (Tr. 251). Mr. Bayliss stated that 

some 6 months after this meeting, MSHA began issuing citations to 

contractors working at the mine (Tr. 249-252). 

Mr. Bayliss denied that he ever made the statement that 

"That god damn Brock called MSHA on us." He stated that he 

considers such language to be blasphemous, and while he sometimes 

used "flowery language," Mr. Bayliss stated that "that is not a 

word I ever use." Since the inspector informed him that 

Mr. Thompson had made the call to MSHA, Mr. Bayliss stated that 

he had no intention of saying anything about Mr. Brock making the 

call, and that he would have been surprised if Mr. Brock had made 

the call, but not surprised that Mr. Thompson made it because he 

felt that Mr. Thompson didn't know what was going on, and "so he 

called them" (Tr. 254-255). 

2201 
Mr. Bayliss stated that he had nothing to do with the disciplinary letters issued by Mr. King to Mr. Brock. He confirmed 

that he observed Mr. Brock washing up too early before the lunch 

break on September 25, 1987, and remarked that "it was too early 

to get washed up." Mr. Brock informed him that he was getting 

dust out of his eyes and intended to go back to work, and 

Mr. Bayliss remarked "Well, I hope you are because you're always 

looking for specific instances of taking breaks or lunches, and 

this is one that I'm going to tell you about." Mr. Brock then 

stated that he was going back to work, and Mr. Bayliss said 

nothing to him at that time about Mr. Brock's need to tell him 

before taking any breaks (Tr. 256). 

Mr. Bayliss stated that at approximately 2:00 p.m. on the 

afternoon of September 25, 1987, he met with Mr. Brock in the 

maintenance office, and that Mr. King was in the office. 

Mr. Bayliss stated that the following conversation took place 

with Mr. Brock (Tr. 257-258): 

A. I said to him that before--that he's got to be 

careful and that before he goes on breaks, he should 

tell me before he goes on breaks. And then, I realized 

that I was going to fall into a trap here because I'm 

never--or, very rarely in the vicinity of where he 

might be able to find me. So, I said, "You better 

don't call me, call your supervisor that's responsible 

for you at that time." And I meant either Jim or Frank 

or the shift foreman. 

Q. Now, would a shift foreman be the-- Strike that. 

The individuals you named, as well as the shift foreman, that would be someone that would be on duty 

basically 24 hours a day, so that if he were working an 

off shift, he'd have somebody to report to; is that 

right? 

A. And that's why I restated my position on this. 

Because he--

Q. And what did he say after you told him that? 

A. He wanted it in writing what he's supposed to do. 

Q. All right. And what did you say? 

A. I didn't want to give it to him in writing. 

Q. And why didn't you want to give it to him in 

writing? 

A. Because we're in a real dynamic situation out 

there, and it's terribly difficult to cover every 

2202 
eventuality for what a guy should do when he's going on 

breaks or leaving a job. 

Mr. Bayliss stated that on the day following his meeting of 

September 25, 1987, with Mr. Brock, Mr. Brock telephoned him at 

his home at 2:00 a.m. in the morning and said "This is Jerry. 

I'm ready to go on break. Is that okay." Mr. Bayliss confirmed 

that the call woke him, but that he was not angry and was a light 

sleeper. He stated that he told Mr. Brock "Jerry, this is 

harassment. You understand what I mean, And let's talk about it 

tomorrow" (Tr. 258). Mr. Bayliss stated further that Mr. Brock 

was friendly and was not abusive, and said "Okay," and that he 

then took the phone off the hook, and subsequently learned that 

Mr. Brock tried to call him again at 6:00 a.m. (Tr. 259). 

Mr. Bayliss confirmed that a meeting was held with Mr. Brock 

and others on Monday, September 28, 1987, to discuss the telephone calls by Mr. Brock, and he identified exhibit C-3 as a 

memorandum concerning that meeting. He stated that Mr. King was 

not present at the meeting because Monday was a busy day and that 

enough people were present to take care of the matter. 

Mr. Bayliss confirmed that he participated in the decision to 

give Mr. Brock a one-day suspension with pay, and that there were 

no discussions at the meeting concerning Mr. Brock's involvement 

with the roofing contractor, his safety activities, or his 

activities involving MSHA. Mr. Bayliss also stated that 

Mr. Brock's disciplinary history with the respondent was completely reviewed during the meeting, and that the suspension had 

nothing to do with any MSHA related activities. Mr. Bayliss also 

confirmed that the matter concerning Mr. Brock's reporting in to 

anyone before taking a break was discussed at the meeting, and he 

explained what transpired as follows at (Tr. 261-262): 

Q. Was there a complete review on that date of 

Mr. Brock's disciplinary history with the company? 

A. Yes. 

Q. Now, did Mr. Brock ask, during the course of this 

meeting, whether he should continue reporting in to 

anyone regarding when he was going on break? 

A. Yes, he did. 

Q. And what was said to him at this meeting regarding 

that? 

A. We said that he should tell his supervisor when 

he's going on break, and he wanted it written down 

exactly what we were saying, how he should do it, what 

he should do, and we declined that. 

2203 
We felt like-- Or, I felt that he'd been there 

seventeen years. He knew the chain of command. He 

knew that his first-line supervisor was the first guy 

he should call. If he wasn't there, the second guy or 

myself. or, if nobody was there, the shift foreman. 

He knew who was responsible for the plant, and we felt 

like, after seventeen years, he should know how to 

behave. 

Q. Do you know whether the company has a policy of 

having the supervisory management people issue written 

orders to every employee about how they're supposed to 

do their job or when they're supposed to do their job? 

A. We don't have a written order. 

On cross-examination, Mr. Bayliss stated that he presumed 

that Mr. Hicks summoned Mr. Brock to the August 13, 1987, meeting 

with the MSHA inspectors because Mr. Brock was the miner's representative. He confirmed that Mr. Brock never contacted him 

directly about any problems with contractors, and it is his 

understanding that Mr. Brock contacted Mr. McCormick in this 

regard. Mr. Bayliss stated that he told no one about Inspector 

Lavell's telling him that Mr. Thompson had called MSHA because he 

didn't feel that it was important to do so (Tr. 264). 

Mr. Bayliss confirmed that he never directed any other 

employee to call his supervisor before taking a break, and he 

explained that when Mr. King discussed the letter he had sent to 

Mr. Brock concerning his breaks, Mr. King told him that Mr. Brock 

was the only employee who did not accept the fact that he was 

taking long breaks and this was why Mr. King gave him the letter. 

Mr. Bayliss also confirmed that he told Mr. Brock that he was to 

contact Mr. King or Mr. Vargas because all other employees 

accepted this as the "chain of command," and that Mr. Brock 

"chose to say that he didn't know what the chain of command was" 

(Tr. 265). 

In response to further questions, Mr. Bayliss confirmed that 

when he met with Mr. Brock about his calling him in the morning, 

he was aware of the fact that Mr. King had previously issued him 

verbal warnings concerning his work performance. When asked why 

he did not specifically discuss these prior matters with 

Mr. Brock, Mr. Bayliss stated that he believed the letters were 

in Mr. Brock's file and that there "were general discussion about 

his file. We just ·went over everything in his file" (Tr. 266). 

Mr. Bayliss denied that there was any friction between Mr. Brock 

and mine management, and stated as follows at (Tr. 270-271): 

A. Some guys, if you give them a letter for a tardy or 

you give them, like I did with Wayne Roache, I 

counselled him on absenteeism, he just said, "Thanks. 

2204 
I'm sorry I've done it," and go on. He don't write a 

grievance against me for doing that. Brock will never 

accept, "Thanks, I'm going to go on." So, whenever we 

get a situation involving Brock, and not anybody else, 

he will grieve that discipline. 

* * * * * * * 

A. I think that we--I feel like we try to be really 

creative in our punishment. Our punishments at Blue 

Circle--I've been there only three years, but we're 

extremely creative. We try to give a punishment that 

does not hurt the guy at all. We try to be just as 

fair and as positive as we can. We're not trying to 

run people off. In fact, we never run people off. 

I've never seen a guy, in three years, run off here. 

And we try to make a good employee out of a question- .. able one. And that's my whole object in discipline. 

My discipline is not a situation--And I think that 

you can see our disciplines are not vindictive, nasty, 

I'm going to hurt you for what I consider to be kind of 

silly stuff. We're going to give you a day off to 

think about things and try to work with you to make you 

into a nice employee who's got a positive outlook on 

the company. · That's what we try to do. 

J. K. Hicks, operations manager, stated that he is in charge 

of the entire plant and has served in that position for 5 years. 

He stated that under no circumstances have any employees been 

disciplined for making safety complaints to MSHA or cooperating 

with MSHA. He confirmed that no action has ever been taken by 

the respondent against a miners' representative for performing 

his duties in connection with MSHA. He also confirmed that he is 

involved in the selection of contractors, and that company policy 

requires contractors to comply with MSHA's regulations while on 

/ 

mine property. He identified a copy, of the respondent's safety 

and work rules, exhibit R-10, and confirmed that he was not aware 

of any employee ever being disciplined for reporting safety 

hazards, and that in many cases, employees have been thanked for 

reporting unsafe incidents (Tr. 275-278). 

Mr. Hicks confirmed that he has observed some employees 

being tardy in coming to and from lunches and breaks, and that he 

discussed it with Mr. Bayliss in 1987, as well as with other 

managers and supervisors, and requested that they bring employees 

back to their normal time limits. He also confirmed that in 

August, 1987, he became aware of a complaint concerning a roofing 

contractor, and that he attended a meeting on August 13, 1987, 

when this was discussed. He stated that he summoned Mr. Brock to 

the meeting after the MSHA people advised that they were there in 

response to a complaint about the contractor. Mr. Hicks stated 

2205 
that he was aware of a problem with contractor personnel wearing 

hard hats and had discussed it with Mr. Bayliss, and was informed 

that the matter had been resolved. Mr. Hicks stated that 

Mr. Thompson's name was mentioned during the meeting, and that he 

never heard Mr. Bayliss make any statement that "That god damn 

Brock called MSHA on us," b.ad never heard Mr. Bayliss use such 

language, and that he would have been surprised if he made any 

such statement (Tr. 278-282). 

Mr. Hicks stated that the respondent never took any disciplinary action against Mr. Brock because of any involvement 

with a complaint about contractors, and that he would strongly 

disapprove of any such action (Tr. 283). Mr. Hicks confirmed 

that he issued the September 29, 1987, memorandum concerning 

Mr. Brock's call to Mr. Bayliss after the meeting which was held 

to discuss that matter, and that Mr. Bayliss had discussed the 

matter with him earlier in the day before the meeting. Mr. Hicks 

confirmed that the disciplinary letter in question was his idea, 

and that the meeting with Mr. Brock had nothing to do with 

Mr. Brock's involvement in calling MSHA, and that other than 

knowing that Mr. Brock accompanied inspectors as the miner's 

representative, he had no knowledge that Mr. Brock called MSHA 

(Tr. 284) . 

Mr. Hicks explained what took place at his meeting with 

Mr. Brock as follows (Tr. 285-287): 

A. Well, basically, in the meeting we reviewed the 

personnel file of Mr. Brock and made him aware that he 

had quite a number of disciplinary incidents in his 

file, and he had recently been disciplined for some--

some events-- incidents which we regarded as pretty 

serious. Such things as he was getting into an area 

where we may not have any choice but to take further, 

very negative discipline to him. And we did not want 

to do that. 

* * * * * * * 

A. I told him that his file was disturbingly getting 

more disciplinary letters and disciplinary actions 

against him in it and that he was getting to the point 

in his career where he needed to make a decision, that 

the decisions of his own which led to his getting those 

disciplines were his decisions. There weren't his 

supervisor's or mine or anyone else's. They were his 

decisions. And if he continued to make decisions to do 

things which would lead to further discipline and he 

knew the rules, he had the book, and we had had enough 

other with him-- "We" being his supervisors and other 

personnel in the plant. --that he was coming to the 

point in his career when he needed to decide if he 

2206 
wanted to continue to be a member of our organization 

or not. And that we could take further discipline 

against him at that time, such as, days off or further 

discipline, and we had elected not to do that, that we 

had thought that he needed to consider very carefully 

what his future would-be with the company and we were 

going to give him a day to do that with pay. At the 

end of that day, he was to come back and his actions 

would tell us what kind of decision he had come up 

with. We proceeded with that situation, and to my 

knowledge, Jerry has responded very positively. 

Mr. Hicks stated that the disciplinary action he took 

against Mr. Brock was in compliance with the provisions of the 

applicable labor-management agreement, exhibit R-11, and he 

confirmed that he had not previously given a similar disciplinary 

suspension to any other employee, and explained as follows (Tr. 

288) : 

A. Not precisely. We have tried to tailor disciplines 

to meet the matter at hand. We have given other 

disciplines, we believe, of a similar, positive 

disciplinary nature to other employees, again which we 

tailor to their particular situation. 

Q. Do you feel that this discipline in any way singled 

Mr. Brock out? 

A. No, I do not. 

Q. Why do you say that, sir? 

A. I believe we-- that Mr. _Brock, in regard to his 

previous disciplinaries over a period of a number of 

years, was coming to the point where he was walking a 

tightrope as far as his future with the company, and I 

believed that the man had a lot of good in him and that 

it was up to us to try to figure out a way how to get 

that out of him. 

On cross-examination, Mr. Hicks confirmed that all of the 

documents concerning prior disciplinary actions against Mr. Brock 

were reviewed by him prior to the September 18, 1987, meeting 

with Mr. Brock, and were considered at that meeting. He confirmed seeing a statement in Mr. Brock's file concerning a 

commendation to him from Mr. Bayliss for excellent attendance, 

and stated that "we try to give credit when its due" (Tr. 

289-292) . 

Mr. Hicks confirmed meeting with MSHA Inspector Jim E. 

Jones, during his investigation of Mr. Brock's discrimination 

2207 
complaint, but stated that he did not know it was a discrimination complaint, and did not recall Mr. Jones mentioning 

Mr. Brock's name. He also did not recall telling Mr. Jones that 

management assumed that Mr. Brock had called MSHA because its 

inspectors were raising the same issues that Mr. Brock had raised 

(Tr. 293) . 

In response to further questions, Mr. Hicks identified 

copies of prior disciplinary actions taken against Mr. Brock on 

April 13, 1986, May, 1986, and December 31, 1984. With regard to 

the April action, he stated that Mr. Brock could have been suspended for 4 days without pay, but was only suspended for 3 days. 

He confirmed that these actions, as well as the others found in 

exhibits R-1 through R-7, were in his file and considered at the 

time he took his disciplinary action against Mr. Brock (Tr. 

293-295). 

Mr. Hicks stated that he had no reason to believe that 

Mr. Brock had any involvement in contacting MSHA about any complaints, and that -Mr. King and Mr. Vargas never advised him that 

Mr. Brock may have called in the inspectors. He confirmed that 

MSHA inspectors have been called in before and that no action has 

been taken against anyone for doing this, and he recognized the 

right of employees to call MSHA or their union representative as 

required (Tr. 298). 

Robert Kenneth McCormick, industrial relations manager, 

stated that safety related matters fall within his job duties. 

He confirmed that in December, 1986, MSHA Inspector Jim Smeerz 

came to the mine in response to a complaint concerning three mine 

areas, and that he had a list of employee names who apparently 

had some knowledge of the complaint. Mr. McCormick stated that 

all of the employees in question .and their miners' representative 

Nick Adams were allowed to communicate with the inspector, and no 

action was ever taken by the respondent against any of these 

employees for participating in the investigation of the complaint. Mr. McCormick also mentioned another MSHA complaint 

earlier this year, concerning an aluminum additive, and that 

Mr. Harris took samples of the material and no action was taken 

against any employee who participated in the inspection (Tr. 

301-302). 

Mr. McCormick confirmed that he was aware that Mr. King had 

disciplined Mr. Brock because the documents came to him to be 

placed in Mr. Brock's personnel file. He confirmed that he was 

at the meeting conducted by Mr. Hicks concerning Mr. Brock's 

calls to Mr. Bayliss, and that everything in Mr. Brock's file was 

reviewed at that meeting (Tr. 302). He confirmed that mine 

supervisory personnel do not report to him, and that he does not 

spend time watching employees to see whether they are taking long 

breaks. He also stated that each individual supervisor handles 

any "problem" employees working for them and that each supervisor 

2208 
is responsible for disciplining their employees as needed (Tr. 

304) . 

On cross-examination, Mr. McCormick stated that in August, 

1987, Mr. Brock indicated that he had received complaints from 

employees concerning contractors, and that Mr. Brock told him 

that he was going to call MSHA. Mr. McCormick stated that subse- . quent to this time he believed that Mr. Brock had called MSHA, 

and stated that "He told me he was going to so I believed him" 

(Tr. 304). When asked whether he shared this with other management officials, Mr. McCormick stated "I don't know whether I did 

or not. It's not anything out of the ordinary" that someone 

would call MSHA. He denied that he told Mr. King at any time 

before he (King) disciplined Mr. Brock that he thought Mr. Brock 

had called MSHA (Tr. 305). 

Mr. Maurice Lamar Harris was recalled by the court, and 

confirmed that Mr. King had spoken to him about taking long 

breaks in September; 1987. He stated that Mr. King told him that 

"I'm going to get you away from Brock because it will get you in 

trouble," and Mr. Harris assumed that Mr. King made this statement because "I guess, because they were watching Brock" (Tr. 

307). Mr. Harris could not recall that Mr. King spoke to him on 

September 16, and October 7, about taking excessive breaks, and 

he stated that he only had two meetings with Mr. King "about my 

progress as a repairman." He stated that the only time Mr. King 

said anything to him about long breaks was when he and Mr. Brock 

were taking their breaks together (Tr. 308). Mr. Harris also 

stated that when he and Mr. Brock completed their work on the 

gate, it was working properly, that they both tested it and found 

it operable, but that he did not hear all of the conversation 

between Mr. Brock and Mr. King when Mr. King was there (Tr. 309). 

MSHA's Arguments 

MSHA asserts that after receiving a complaint concerning - independent contractors at the plant who were not wearing safety 

equipment, Mr. Brock presented these concerns to mine management, 

including the maintenance supervisor and the industrial relations 

manager, and that through Mr. Brock's efforts, the matter was 

subsequently investigated by MSHA. MSHA concludes that the 

reporting of what Mr. Brock perceived to be safety violations 

concerning the independent contractors is clearly protected 

activity within the meaning of the Act. 

MSHA asserts that subsequent to Mr. Brock's safety complaint 

to management on August 11, 1987, and the MSHA investigation of 

August 13, 1987, the following adverse actions were taken against 

Mr. Brock by the respondent: 

1. August 17, 1987 - Brock received a verbal warning 

for taking too long at breaks and lunch. 

2209 
2. August 28, 1987 - The verbal warning of August 17, 

1987, was memoralized in writing. 

3. September 18, 1987 - Brock was issued a written 

disciplinary warning for unsatisfactory job performance. The disciplinary specifically 

referenced a job Brock was assigned to on 

September 16, 1987. The disciplinary stated that 

Brock had spent entirely too much time away from 

the job on breaks and taking care of personal 

business. Also, it was stated that the assigned 

job had not been done properly. 

4. September 25, 1987 - Brock was ordered to report 

to certain supervisors prior to going on breaks. 

5. September 25, 1987 - A disciplinary meeting was 

held to discuss Brock's having called a supervisor 

at 2:00 a.m., to inform the supervisor that he was 

going on break. Brock was given a one day suspension and was to consider if he wanted to continue 

working for respondent. 

In response to the respondent's assertions that the actions 

taken against Mr. Brock were for non-protected activities (abuse 

of break time and poor job performance), and the respondent's 

reliance on evidence of prior disciplinary actions taken against 

Mr. Brock, MSHA points out that these actions were tdken years 

prior to the subject adverse actions, and that the most recent 

disciplinary action against Mr. Brock prior to August 17, 1987, 

was taken on May 22, 1986. MSHA further points out that 

Mr. Brock was commended by maintenance manager John Bayliss on 

January 9, 1987, for his excellent attendance record in 1986, and 

for his contribution to the department. MSHA concludes that such 

a commendation is inconsistent with the respondent's contention 

that the actions taken against Mr. Brock were for non-protected 

activities. 

MSHA argues that the evidence in this case establishes that 

the respondent suspected that Mr. Brock had reported safety 

violations to MSHA and that its belief that he had done so was 

the motivating factor in taking the adverse actions against him. 

MSHA asserts that the abuse of break and lunch periods was an age 

old problem at the plant, and although employees testified that 

they had exceeded established time limits for breaks and lunch on 

various occasions, Mr. Brock was the only employee disciplined 

for abuse of break time. MSHA concludes that the respondent 

cannot claim ignorance of violations of break and lunch times by 

other employees because the evidence establishes that respondent's management observed such violations on occasion. 

2210 
MSHA asserts that consideration should be given to the 

statements attributed to Mr. Bayliss, "one of the key players" in 

the disciplinary actions. MSHA points out that Mr. st. John 

testified that Mr. Bayliss commented "that god damn Brock called 

MSHA on us," and that Mr. st. John also testified that industrial 

relations manager Hertzog t.old Mr. Brock that "this was a family 

matter and he didn't have any business calling MSHA, and that 

would Jerry like for him to call the IRS on him" (Tr. 132). MSHA 

points out that Mr. st. John felt that this statement was a 

threat and told Mr. Brock "you'd better look out." 

MSHA concludes that where adverse action closely follows 

protected activity, an illicit or discriminatory motive is established, and that in this case, the first adverse action against 

Mr. Brock was taken on August 17, 1987, only 6 days after he 

engaged in protected activity. Together with the failure of 

management to treat other employees' abuse of break time in the 

same manner as Mr. Brock, and the statements attributed to 

management officials, MSHA further concludes that Mr. Brock's 

engagement in protected activity was the motivating factor for 

the adverse actions taken against him. 

Respondent's Arguments 

Respondent argues that there is no nexus between the respondent's actions in this case and Mr. Brock's protected activity. 

Respondent asserts that the verbal warning to Mr. Brock on August 

17, 1987, was given by maintenance supervisor Jim King, who made 

the sole determination with respect to this action. Respondent 

maintains that Mr. King was completely unaware at this time that 

Mr. Brock had called MSHA, and that his action had nothing to do 

with the complaint about roofing contractors. Respondent asserts 

that Mr. Brock's assumption that Mr. King knew that he had called 

MSHA is based on Mr. Brock's mentioning to Mr. King the use of a 

telephone for that purpose. Respondent points out that Mr. Brock 

testified that he did not really know for a fact that Mr. King, 

or any other management official, were aware of his call, and 

that Mr. King's credible denial is more reliable than Mr. Brock's 

supposition. 

Respondent confirms that Mr. King was also responsible for 

giving Mr. Brock the written warning on September 16, 1987, for 

unsatisfactory work performance. However, respondent maintains 

again that Mr. King was unaware that Mr. Brock had called MSHA at 

the time of this action, and that Mr. King's action had nothing 

to do with the complaint about roofing contractors or any other 

of Mr. Brock's safety activities. Respondent asserts that 

Mr. King disciplined Mr. Brock because of his job performance and 

taking too much time away from the job. 

Respondent confirms that Mr. Bayliss was responsible for 

having Mr. Brock report to his supervisor before washing up for 

2211 
breaks or lunch beginning on September 25, 1987. Respondent 

asserts that the action taken by Mr. King was in response to 

Mr. Brock's abuse of break and lunch times, and that contrary to 

any suggestion that Mr. Bayliss knew that Mr. Brock had called 

MSHA, Mr. Bayliss in fact believed that it was Mr. Thompson who 

was responsible for the MSHA inspectors coming to the mine to 

look into the contractors' violations. With regard to the statement attributed to Mr. Bayliss by Mr. St. John, respondent 

asserts that Mr. Bayliss and Mr. Hicks testified that such a 

comment is wholly inconsistent with Mr. Bayliss' character. 

Respondent further confirms that Mr. Hicks was responsible 

for the disciplinary meeting and 1-day suspension of Mr. Brock on 

September 28, 1987, for calling Mr. Bayliss at his home at 2:00 

and 6:00 a.m., the previous Saturday morning. However, respondent maintains that Mr. Hicks was unaware of Mr. Brock's prior 

call to MSHA. 

Respondent concludes that none of the management personnel 

who disciplined Mr. Brock between August 17, 1987 and 

September 29, 1987, knew that Mr. Brock had called MSHA, and that 

those individuals who concerned themselves with the matter 

thought that Mr. Thompson had called. Respondent maintains that 

confirmation of this fact lies in Mr. Brock's own testimony that 

he had no knowledge as to whether or not mine management in fact 

knew that he had called MSHA {Tr. 65). Respondent concludes that 

under the circumstances, MSHA has failed to show a nexus between 

the disciplinary actions and any protected activity by Mr. Brock. 

As an affirmative defense, the respondent maintains that the 

evidence establishes that the disciplinary actions taken against 

Mr. Brock were motivated by unprotected activity and would have 

been taken in any event because of this unprotected activity. In 

support of its argument, the respondent asserts that each warning 

Mr. Brock received was warranted by, and a direct result of, his 

unprotected activity. Respondent points out that over the course 

of the week before the August 17, 1987, verbal warning, Mr. King 

observed Mr. Brock taking extended breaks and lunches at every 

opportunity, and that the warning was given after Mr. Brock had 

received group counselling and Mr. King had tried to convince him 

through individual counseling to willingly conform to company 

policy. Respondent further points out that Mr. Brock filed a 

grievance concerning this action and that it was summarily denied 

by an arbitrator on May 1, 1989. 

With regard to the September 18, 1987, disciplinary warning 

for unsatisfactory job performance, the respondent asserts that 

the record clearly demonstrates that this warning was justified, 

and that this conclusion is reinforced by an arbitrator's 

decision of May 2, 1989, denying Mr. Brock's grievance with 

respect to this unsatisfactory job performance warning. 

2212 
With regard to the instruction by Mr. Bayliss to Mr. Brock 

on September 25, 1987, to call his supervisor before washing up, 

respondent argues that Mr. Bayliss' response to Mr. Brock's 

"rebellious" attitude with regard to break and lunch time 

restrictions, was a constructive effort to foster Mr. Brock's 

cooperation, and that the warning was given after Mr. Bayliss 

observed Mr. Brock washing up early. 

With regard to the September 29, 1987, disciplinary meeting 

and 1-day off with pay given to Mr. Brock by Mr. Hicks, respondent asserts that it was provoked specifically by Mr. Brock's 

calls to Mr. Bayliss in the middle of the night, and was the 

culmination of many disciplinary problems that Mr. Brock had 

recently created, as well as those he had been continually having 

since coming to work for the respondent. Respondent concludes 

that all of the disciplinary actions in question were in response 

to unprotected activity brought on by Mr. Brock himself, and that 

his combativeness with management and his disregard for his work 

responsibilities are unprotected activities, regardless of his 

involvement with safety or his safety concerns. Respondent 

further concludes that the Act simply does not protect an unsatisfactory worker, and that the instant case has nothing to do 

with safety in the workplace. 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

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

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way 

motivated by protected activity. If an operator cannot rebut the 

prima facie case in this manner it may nevertheless affirmatively 

defend by proving that it was also motivated by the miner's 

unprotected activities alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma 

Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of 

persuasion does not shift from the complainant. Robinette, 

supra. See also Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and Donovan v. Stafford Construction Company, No. 83-1566 D.C. 

Cir. (April 20, 1984) (specifically-approving the Commission's 

2213 
Pasula-Robinette test) . See also NLRB v. Transportation 

Management Corporation, U.S. , 76 L.ed.2d 667 (1983), 

where the Supreme Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983); 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). 

As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in 

NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 

1965) : 

It would indeed be the unusual case in which the 

link between the discharge and the [protected] activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, 

circumstantial or direct, the [NLRB] is free to draw 

any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June 

1982), the Commission stated as follows: 

As we emphasized in Fasula, and recently 

re-emphasized in Chacon, the operator must prove that 

it would have disciplined the miner anyway for the 

unprotected activity alone. Ordinarily, an operator 

can attempt to demonstrate this by showing, for 

example, past discipline consistent with that meted to 

the alleged discriminatee, the miner's unsatisfactory 

past work record, prior warnings to the miner, or 

personnel rules or practices forbidding the conduct in 

question. our function is not to pass on the wisdom or 

fairness of such asserted business justifications, but 

rather only to determine whether they are credible and, 

if so, whether they would have motivated the particular 

operator as claimed. 

2214 

,, 
Protected Activity 

It is clear that Mr. Brock enjoys a statutory right to voice 

his concern about safety matters or to make safety complaints to 

mine management or to MSHA".or one of its inspectors without fear 

of retribution or harassment by management. Management is prohibited from interfering with such activities and may not harass, 

intimidate, or otherwise impede a miner's participation in these 

kinds of activities. Secretary of Labor ex rel. Fasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on 

other grounds sub nom. Consolidation Coal Co. v. Marshall, 

663 F.2d 1211 (3d Cir. 1981), and Secretary of Labor ex rel. 

Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). 

Baker v. Interior Board of Mine Operations Appeals, 595 F.2d 746 

(D.C. Cir. 1978); Chacon; supra. 

Unprotected Activity 

The respondent asserts that the disciplinary actions taken 

against Mr. Brock for poor work performance and for abusing lunch 

and work breaks were justified. Respondent also asserts that the 

disciplinary meeting resulting in Mr. Brock's being given a day 

off with p_gy was prompted by Mr. Brock's calling his supervisor 

in the middle of the night to obtain permission to cleanup and 

was indicative of his combative attitude and disregard for his 

work responsibilities. If the acts and conduct attributed to 

Mr. Brock which resulted in the disciplinary actions in questions 

are true, I conclude and find that they may not be considered 

protected activities under the Act. 

The Alleged Disparate Treatment of Mr. Brock 

While it is true that other employees may not have been 

formally disciplined pursuant to the applicable labor-management 

rules and procedures, the fact is that other employees have been 

counseled and talked to by supervisors with respect to their 

abuses of work and lunch breaks. Given the graduated disciplinary punishment scheme for offenses, I can only conclude that all 

employees are equally at risk for repeat offenses which may lead 

to suspension or discharge. 

Mr. Thompson confirmed that employees abuse their break 

times, and Mr. Roache, who also worked for Mr. King, conf.irmed 

that he had been counseled for missing too much work. He 

explained that the respondent's absentee policy and program 

includes a graduated disciplinary plan which begins with 

counseling, and then moves to a letter, time off from work, and 

termination (Tr. 120-121). Mr. Sutherland confirmed that 

Mr. King has counseled employees at various meetings about taking 

extended breaks (Tr. 147). Mr. Clark testified that he has 

observed Mr. Brock "chit-chatting" with people at the workplace, 

2215 
and has observed him coming back "slow" from his lunch and work 

breaks because he would stop and talk with people (Tr. 190). 

Mr. King testified that he spoke with employee Maurice 

Harris about taking excessively long breaks on September 16, 

1987, but did not formally_"warn" him under the disciplinary 

rules. He also observed him taking another long break on 

October 7, 1987, but said nothing to him. Mr. King explained 

that Mr. Harris was not issued a formal warning because he was a 

probationary employee and that if he did not successfully complete his probation, he would not be retained (Tr. 229). The 

record shows that Mr. Harris did not satisfactorily complete his 

probationary period because of his failure to perform adequately, 

and was not accepted in the position of repairman welder 

(Arbitrator's decision of May 2, 1989, pg. 4, Appendix B to 

respondent's brief). 

Mr. King alsq testified that during his prior tenure as an 

hourly employee and union official and miners' representative, he 

was counseled by the respondent about the use of lunch and work 

breaks. He confirmed that during this time he was unaware of any 

employee being disciplined for calling MSHA, and he stated that 

he had called MSHA and was never disciplined for doing so (Tr. 

199) . 

Mr. King confirmed that after he became a supervisor, he 

continued his "one-on-one" counselling with his employees concerning lunch and work breaks, including Mr. Brock and two other 

employees, all of whom had "problems" with their breaks. 

Mr. King confirmed that Mr. Hicks informed him that there was a 

need to "tighten up" the lunch and work breaks by his employees 

and that this would be one of his priorities. He confirmed that 

sometime in May, 1987, he began counselling his employees in 

group sessions, and found that Mr. Brock, and employees Bill 

Hobbs and Dean McKellips were still having problems with their 

lunch and work breaks. He spoke with Mr. Hobbs and Mr. McKellips 

during the same d~y in August 1987, when he spoke with Mr. Brock 

concerning their long breaks, and that Mr. Hobbs and 

Mr. McKellips acknowledged they were taking too long on their 

breaks and agreed to improve. Under these circumstances, 

Mr. King believed that his talks with these two employees was all 

that was necessary, and that they responded and showed improvement in their work (Tr. 205). 

Mr. King stated that when he met with Mr. Brock and his 

union representative on August 17, 1987, to discuss his extended 

lunch and work breaks, Mr. Brock took the position that he was 

not abusing his breaks and asked him for more specific information. Mr. King informed Mr. Brock that he had personally 

observed his comings and goings during the prior week, and that 

on at least 15 sepa+ate occasions he observed that he was late 

for every break. 'Mr. King confirmed that on the basis of his 

2216 
personal observations as stated to Mr. Brock he concluded that 

Mr. Brock was abusing his break times and he decided to give him 

a verbal warning in order to document his conclusion and action 

(Tr. 206). 

Industrial relations manager Robert McCormick confirmed that 

the disciplining of individual employees is left to the discretion of their supervisors. Operations manager Hicks testified 

that individual disciplinary actions are tailored to the particular circumstances concerning each employee. He did not believe 

that Mr. Brock was singled out for disciplinary action. He 

confirmed that Mr. Brock's previous disciplinary record over a 

number of years of his employment with the respondent was considered and discussed with him at the time he disciplined him on 

September 29, 1987, and that Mr. Brock had reached the point 

where "he was walking a tightrope as far as his future with the 

company" was concerned (Tr. 288). 

Mr. Brock denied receiving any counseling from management 

prior to the disciplinary actions in question (Tr. 71-72). 

However, the record reflects the following prior disciplinary 

actions taken by the respondent against Mr. Brock for violations 

of company rules and policies: 

May 22, 1986. 

lost time 

Mr. Brock 

analysis. 

Disciplinary suspension for 3 days for 

accident. In lieu of the suspension, 

was required to prepare a job safety 

(Exhibit R-14). 

December 31, 1984. Verbal warning for a safety rule 

infraction. 

July 27, 1984. Supervisory warning for excessive time 

in the use of toilet facilities. 

September 21, 1984. Supervisory warning for reading 

newspaper in the toilet for thirty minutes 

(exhibit R-7). 

July 27, 1984. Supervisory counseling for leaving job 

without foreman's permission, and for leaving job 

early to go home. (Exhibit R-6). 

March 17, 1983. Supervisory counseling for leaving job 

early repeatedly. (Exhibit R-5). 

April 23, 1982. Disciplinary warning for tardiness. 

The warning noted that Mr. Brock had been 

counseled on August 25, 1981, and given a written 

warning on September 16, 1981, for tardiness. 

(Exhibit R-4). 

2217 
September 16, 1981. Disciplinary warning and reprimand 

for leaving work without foreman's permission. 

(Exhibit R-3). 

April 3, 1986. Five day suspension without pay for 

failing to follow supervisor's safety instructions 

and failing to take steps to insure his (Brock's) 

safety in connection with an accident in which 

Mr. Brock broke his foot. (Exhibit R-13). , 

September 25, 1979. Disciplinary warning and five day 

suspension for sleeping on the job. The warning 

noted that Mr. Brock had been previously 

disciplined for sleeping on the job. 

(Exhibit R-2). 

February 1, 1978. Supervisory counseling for excessive 

tardiness. (Exhibit R-1). 

I find no credible or probative evidence to establish or 

suggest that Mr. King, Mr. Bayliss, and Mr. Hicks conspired to 

reach out and isolate or treat Mr. Brock any differently from 

other employees because of his safety activities or involvement 

with the MSHA visit concerning the complaint about independent 

contractors. The record establishes that each of the disciplinary actions in question were taken independent of each other, 

and were based on the facts then known to management. Further, 

Mr. Brock's record reflects a consistent application of its 

disciplinary rules by the respondent in each instance where such 

action was warranted. The record establishes that Mr. Brock was 

put on notice by the respondent that he would be subject to more 

severe disciplinary sanctions for repeat offenses, and absent any 

evidence to the contrary, I can only conclude that what set 

Mr. Brock apart from other employees was his record of noncompliance with company work rules over a rather extended period 

of time. The fact that he serves as a union official and member 

of the safety committee does not insulate Mr. Brock from legitimate managerial business-related non-discriminatory personnel 

actions. UMWA ex rel Billy Dale Wise v. Consolidation Coal 

Company, 4 FMSHRC 1307 (July 1982), aff'd by the Commission at 

6 FMSHRC 1447 (June 1984); Ronnie R. Ross, et. al v. Monterey 

Coal Company, et al., 3 FMSHRC 1171 (May 1981). 

MSHA's conclusions that the commendation letter given to 

Mr. Brock by Mr. Bayliss on January 9, 1987, is inconsistent with 

the respondent's contentions that the disciplinary actions taken 

against Mr. Brock were for non-protected activities is rejected. 

The letter in question recognized Mr. Brock's excellent attendance record in 1986. The individual actions in question had 

nothing to do with Mr. Brock's attendance per se. They deal with 

conduct which took place while Mr. Brock was at work, and concern 

separate and distinct violations of work rules and policies. 

2218 
Mr.Hicks acknowledged the letter and commented that he believed 

in "giving credit where credit is due," and he confirmed that he 

saw the letter when he considered Mr. Brock's overall employment 

record at the time of his disciplinary action of September 29, 

1987. 

The Disciplinary Actions Taken Against Mr. Brock 

As noted earlier, Mr. Brock's grievances concerning the 

August 17, 1987, verbal warning for taking long work and lunch 

breaks, and the September 18, 1987, disciplinary action for 

unsatisfactory job performance, were both denied and the arbitrators who heard those cases found ample cause for the actions 

taken against him. Although I am not bound by decisions of 

arbitrators, I may nonetheless consider such decisions. 

Chadrick Casebolt v. Falcon Coal Company, Inc., 6 FMSHRC 485, 495 

(February 1984); David Hollis v. Consolidation Coal Company, 

6 FMSHRC 21, 26-27 _(January 1984) ; Secretary on behalf of Fasula 

v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on 

other grounds sub nom. Consolidation Coal Co. v. Marshall, 

663 F.2d 1211 (3d Cir. 1981). 

With regard to the August 17, 1987, verbal warning for 

abusing break times, I take note of the arbitrator's findings 

that there was sufficient evidence that Mr. Brock was guilty of 

taking excessive breaks and lunch p~riods and gave no indication 

to management that he would improve, and that management had good 

cause to issue the verbal warning. I also take particular note 

of the arbitrator's comments at page 8 of his decision, that 

while it was true that two other employees did not receive verbal 

warnings for similar offenses, they both indicated to their 

supervisor that they recognized the problem and would correct 

their abuse of break times. I agree with the arbitrator's findings. I further find and conclude that the preponderance of the 

evidence adduced in the instant case establishes that Mr. Brock 

abused his break privileges, and given the fact that he had been 

previously counseled in this regard, I further conclude and find 

that Mr. King's action was clearly justified and warranted. 

With regard to the September 18, 1987, written disciplinary 

warning for unsatisfactory job performance, I take note of the 

arbitrator's findings that Mr. Brock was away from his work 

excessively on the day in question, was inattentive in the manner 

in which he performed the work, that his work productivity and 

performance on that day was below what was expected by management, and that he was shirking his duty and avoiding work. 

Although the arbitrator took into account the union's assertions 

that Mr. Brock was being punished because of certain union 

activities, for allegedly reporting som2 unspecified ''alleged 

discrimination" .to a government agency, and that management 

accorded him disparate treatment, the arbitrator nonetheless 

concluded that these factors did not account for Mr. Brock's 

2219 
overall lack of productivity and most of his absences from his 

assigned work place in question, and that this incident was not 

an isolated one and indicated a course of conduct on the part of 

Mr. Brock which had been carried on over a period of time about 

which he had been warned repeatedly (Arbitrator's decision, pgs. 

9-10). 

I also take note of the credibility findings by the arbitrator with respect to Mr. King. The arbitrator concluded that 

Mr. King, who was shortly removed from the union ranks before he 

became a management supervisor, could not have had the motivations attributed to him in the area of "union discrimination" 

(Arbitrator's decision, pg. 10). The arbitrator also found that 

Mr. King was a credible witness and was sincere in disciplining 

Mr. Brock for his unsatisfactory job performance, and had no axes 

to grind since his past history with the union indicated that he 

would have a good understanding of Mr. Brock's perspective in the 

grievance case (Arbitrator's decision, pg. 8). 

Although I am in agreement with the arbitrator's findings, 

on the basis of my own independent observations of Mr. King 

during the course of the hearing, I conclude and find that he is 

a credible witness. With regard to the merits of Mr. King's 

conclusions that Mr. Brock's work performance on the day in 

question was less than adequate, I find that his testimony and 

assessment of Mr. Brock's work performance on the day in question 

supports the actions taken by him and was clearly within his 

managerial authority and discretion. Mr. King testified that he 

assigned the work in question to Mr. Brock and his helper at 

7:00 a.m., and he expected the work to be normally completed by 

at least 1:00 p.m. Mr. King stated that he made occasional 

visits to the work area, and when he visited the area at 

11: 50 a.m., Mr. Brock was absent,_ and Mr. King found that the 

helper, who was a trainee probationary employee, was working on 

the wrong gate. When asked about Mr. Brock's absence, the 

trainee informed Mr. King that he did not know where Mr. Brock 

was, and speculated that he had gone to use the rest room. 

Mr. King later visited the storeroom area at the conclusion of 

the 2:00 p.m. break, and found the helper there, and Mr. Brock 

walked in later and spoke with the helper before they both 

"casually" walked back to their work area. Mr. King later found 

Mr. Brock at his locker cleaned up and ready to go home 3 minutes 

before the norip.al "wash-up" time. 

Mr. King testified that Mr. Brock had wasted the entire day 

because he did not apply himself to the job to which he was 

assigned. Mr. King indicated that the only time he found 

Mr. Brock on the job was at 3:00 p.m., when he visited the area. 

He further stated that Mr. Brock informed him that he had left 

the job to get nis blood pressure checked, visited with Mr. Hicks 

for approximately 30 minutes, and had attended a safety meeting 

which took another 30 minutes. The helper, Mr. Harris, confirmed 

2220 
that Mr. Brock left the work area several times, and that when 

Mr. King found them in the store room, he ordered them back to 

work because they had overstayed their break time by 10 minutes. 

Mr. Harris also confirmed that when he advised Mr. Brock about 

Mr. King's assessment of their "shoddy work," Mr. Brock told him 

"not to worry about it. 11 

After. careful consideration of all of the testimony concerning Mr. Brock's work performance which led to the disciplinary 

warning of September 18, 1987, including Mr. Brock's and 

Mr. Harris' versions of the incident, I believe Mr. King's version of the events which led him to issue the disciplinary 

action, and I conclude and find that it was warranted and 

justified. 

With regard to Mr. Bayliss' order of September 25, 1987, to 

Mr. Brock instructing him to report to his supervisors before 

taking a break, I £ind nothing unusual about this action, nor do 

I find that it rises to the level of an adverse disciplinary 

action. Given Mr. Brock's record of abuse of break times, I 

believe that it was well within Mr. Bayliss' supervisory authority to instruct Mr. Brock to report to a supervisor before taking 

breaks. The fact that the respondent has no written policy 

authorizing supervisors.to do this, and the fact that other 

employees may not have been similarly instructed is irrelevant. 

It seems obvious to me from the record, that management has had 

an ongoing problem with Mr. Brock in that he does not appear to 

accept or recognize the fact that he abused his break times, 

while other employees do and agree to improve their work habits. 

This attitude by Mr. Brock sets him apart from the other 

employees who were counseled about their break times, acknowledged their abuses, and promised to improve. Under these circumstances, I find nothing discri.minatory about the instructions 

given to Mr. Brock by Mr. Bayliss. 

Mr. Bayliss testified that Mr. Hicks had informed him to 

"tighten up" on maintenance department employees taking extended 

lunch and work breaks, and that after observing Mr. Brock washing 

up early before his lunch break on September 25, 1987, he dis~ 

cussed it with him, and that Mr. Brock informed him that he was 

simply washing dust out of his eyes. Mr. Bayliss stated that he 

met with Mr. Brock at 2:00 p.m., that same day and initially 

instructed him that he was to tell him (Bayliss) before taking 

any breaks, but after realizing that this may be a problem 

because Mr. Brock may not be able to find him, he instructed 

Mr. Brock to contact his responsible supervisor. Mr. Bayliss 

stated that he had in mind the shift foreman, or Mr. King, or 

Mr. Vargas, as the supervisors to be contacted. 

Mr. King testified that he was present when Mr. Bayliss 

instructed Mr. Brock to inform his supervisor before taking a 

break. Mr. King acknowledged that Mr. Bayliss first told 

2221 
Mr. Brock to contact him (Bayliss), but then told him to call his 

supervisor. Mr. King confirmed that he and Mr. Vargas were 

Mr. Brock's normal shift supervisors, but that the shift in 

question when the phone call was made was a midnight Saturday 

shift and was not Mr. Brock's normal work shift. The company had 

offered overtime for anyone. willing to work that day, and 

Mr. Brock had requested to work the midnight shift, and Mr. King 

allowed him to do so. 

Mr. Brock testified that Mr. Bayliss instructed him to call 

him (Bayliss),· or Mr. King or Mr. Vargas before washing up for 

breaks. Since Mr. Vargas and Mr. King were not present during 

the midnight shift in question, Mr. Brock confirmed that he 

telephoned Mr. Bayliss at his home, and that he did so because he 

was simply following his instructions. Mr. Brock confirmed that 

he called Mr. Bayliss at 2:00 a.m., and that he sounded "sleepy 

and agitated." He also acknowledged that he attempted to call 

him again at 6:00 a.m., but that the phone was busy. He then 

informed shift foreman Jake Barber that Mr. Bayliss' phone was 

busy and that he was informing Mr. Barber that he was taking a 

break. 

Mr. Bayliss testified that the phone call by Mr. Brock woke 

him up, but that he was not angry, that Mr. Brock was friendly 

and not abuse, and that after the call, he took the phone off the 

hook. Mr. Bayliss further testified that he informed .Mr. Brock 

that he considered the call as harassment and that he would 

discuss the matter with him the next day. 

Mr. Hicks testified that he made the decision to initiate 

the disciplinary meeting of September 29, 1987, and to give 

Mr. Brock a day off with pay to consider his future with the 

company. Mr. Hicks confirmed that he took the action because of 

the call made to Mr. Bayliss, and because of Mr. Brock's record 

of disciplinary incidents and actions. He also confirmed that 

the action taken was in compliance with the applicable labormanagement agreement, and that after this action was taken, 

Mr. Brock has responded "very positively" (Tr. 287). 

Mr. Brock acknowledged that when he called Mr. Bayliss at 

2:00 a.m., Mr. Bayliss informed him that he believed he was being 

harassed. Notwithstanding this initial conversation, Mr. Brock 

again called Mr. Bayliss at 6:00 a.m., and found that the phone 

was busy. (Mr. Bayliss had taken it off the hook). Mr. Brock's 

explanation for not contacting Mr. Vargas or Mr. King was that 

they were not at work. I find this to be a rather weak excuse, 

since Mr. Bayliss also was not at work. Mr. Brock could have 

called Mr. Vargas or Mr .. King at their homes, but instead, he 

chose to call Mr. Bayliss. Mr. Brock also chose not to initially 

speak to the foreman who was at work on the same shift, and only 

spoke with him to inform him that he was taking a break after he 

could not reach Mr. Bayliss at 6:00 a.m. In my view, if 

2222 
Mr. Brock truly believed that he was required to contact only 

Mr. Bayliss before he could take a break, the prudent thing for 

him to have done was not to take his 6:00 a.m. break since he 

could not reach Mr. Bayliss at that time. Instead, he informed 

the foreman who was on the shift and took his break. 

Given the fact that Mr. Bayliss had spoken with Mr. Brock on 

two occasions the day before the phone calls, and the fact that 

Mr. Brock attempted to again call Mr. Bayliss after he had 

awakened him in the middle of the night knowing full well that 

Mr. Bayliss considered the initial call to be harassment, I 

believe that Mr. Bayliss' conclusion in this regard has a ring of 

truth about it. I further believe that Mr. Brock's calls to 

Mr. Bayliss were prompted by Mr. Brock's prior encounters with 

Mr .. Bayliss about his abuse of break times, Mr. Bayliss' refusal 

to put his instructions in writing, and Mr. Brock's obvious 

disagreement that he was abusing his break privileges. I also 

believe that Mr. Brock wished to "make his point" by calling 

Mr. Bayliss in the middle of the night. Although Mr. Brock may 

have made his point, he also precipitated the disciplinary action 

taken against him. Under all of these circumstances, I conclude 

and find that this action was justified and warranted. 

Respondent's Knowledge of Mr. Brock's Safety Complaint to MSHA 

Mr. Brock confirmed that in his capacity as a safety committeeman, he has on past occasions called and spoken with MSHA 

inspectors concerning safety complaints and "general questions" 

(Tr. 65). I find no evidence that the respondent has ever 

inhibited Mr. Brock from performing his safety duties· in this 

regard. As a matter of fact, Mr. Brock confirmed that upon his 

return to work after his 1-day suspension with pay for having 

called Mr. Bayliss in the middle of the night, the respondent 

took no action against him because of his involvement with mine 

safety matters (Tr. 56). 

Mr. Hicks testified that he recognized the right of an 

employee to call MSHA or their union to the mine, and that MSHA 

inspectors have been called to the mine in the past and no action 

has ever been taken by management against anyone for doing so 

(Tr. 298). He also confirmed that no action has ever been taken 

by management against any miners' representative for performing 

any MSHA related safety activities (Tr. 275-278). Mr. Bayliss 

testified that the respondent has never prevented any employee 

from making complaints to MSHA, and that no disciplinary action 

has ever been taken against any employee for doing so (Tr. 

242-245). I find Mr. Hicks and Mr. King.to be credible 

witnesses, and the record is devoid of any evidence that the 

respondent ·has ever prevented or inhibited any employee or safety 

committeeman from exercising their safety rights. 

2223 
Mr. McCormick testified that an MSHA inspector came to the 

mine in December, 1986, in response to employee safety complaints, and that the miners' representative was permitted to 

meet with the inspector and that no action was taken against any 

of the miners for making the complaint. He also mentioned 

another recent complaint by an employee which resulted in an MSHA 

inspection, and confirmed that no action was taken against the 

complaining miner. 

The crux of MSHA's case lies in its belief that mine management, and in particular Mr. King, Mr. Hicks, and Mr. Bayliss, 

believed that Mr. Brock had called MSHA to come to the mine to 

look into a complaint concerning certain alleged violations by 

independent contractors and that the disciplinary actions taken 

against Mr. Brock were taken to retaliate against him for calling 

MSHA to the mine. 

Mr. Brock testified that he was under the "impression" that 

mine management was not too happy about his calling MSHA about 

the independent contractors. When asked the basis for this 

impression, he responded "the way they were acting and just 

general tones" (Tr. 74). He confirmed that at no time during his 

disciplinary meetings with Mr. King, Mr. Bayliss, and Mr. Hicks 

did anyone say anything to him about his calling MSHA (Tr. 

74-75). 

Mr. King testified that at the time he issued the verbal 

warning of August 17, 1987, he had no information that Mr. Brock 

had called MSHA about the independent contractors. However, he 

acknowledged that a week earlier, Mr. Brock spoke to him about 

his belief that contractor employees were not following MSHA's 

safety equipment guidelines. He also acknowledged that Mr. Brock 

told him that he was not getting any results concerning his 

contractor complaint and wanted to call MSHA, and that he (King) 

asked Mr. Brock to wait until the end of the shift before using 

the phone to call. I take note of the arbitrator's comments in 

his decision of May 1, 1989, that the respondent in that proceeding acknowledged that Mr. King told Mr. Brock to go ahead and 

call MSHA when he got off work (Arbitrator's decision, pg. 6). 

Although Mr. King denied that he had any personai knowledge 

that Mr. Brock had called MSHA about the independent contractors, 

his own testimony supports a conclusion that he knew that 

Mr. Brock was concerned about the contractors, expressed his 

dissatisfaction with what he perceived to be management's 

inaction, and that he specifically notified Mr. King that he 

wanted to call MSHA. Further, Mr. King told Mr. Brock that he 

could use the office phone to call, but to wait until the end of 

the shift to place the call because of pressing business in the 

office. Under all of these circumstances, I conclude and find 

that there is a strong inference that Mr. King either knew or 

2224 
suspected that Mr. Brock had called MSHA about the complaint 

concerning the roofing contractor. 

With regard to the statement attributed to Mr. Bayliss by 

Mr. st. John, having viewed Mr. st. John during the course of his 

testimony, I find him to be. a credible witness. Notwithstanding 

Mr. Bayliss' denials to the contrary, and taking into account his 

admission that he sometimes uses "flowery language," I believe 

that he made the statement in question. Aside from the statement, I believe that there is other sufficient evidence to 

support a reasonable inference that Mr. Bayliss also knew or 

suspected that Mr. Brock was responsible for the MSHA inspectors 

coming to the mine to follow up on the complaint concerning the 

contractors. 

Mr. Bayliss acknowledged that he was first informed about 

the complaint concerning the contractors on August 10, 1987, and 

that he discussed the matter with Mr. Brock later that same day. 

The testimony establishes that Mr. Bayliss and Mr. Brock had a 

difference of opinion concerning the contractors' wearing of hard 

hats, and Mr. Bayliss admonished Mr. Brock for not wearing his 

hard hat. 

Mr. Bayliss contended that one of the MSHA inspectors who 

came to the mine in response to the contractor complaint informed 

him that Mr. Thompson had called MSHA, and Mr. Brock was summoned 

to the meeting simply because he was safety committeeman. The 

inspector who was named did not testify in this case, and I have 

given no weight to Mr. Bayliss' hearsay testimony that the 

inspector revealed the name of the informant. I have serious 

doubts that an inspector would divulge the name of any informant 

and place himself at risk for disciplinary action for doing so. 

Although there is no direct evidence that Mr. Bayliss knew 

for a fact that Mr. Brock was responsible for the call which 

brought the MSHA inspectors to the mine to look into the complaint concerning contractors, I conclude and find that the 

aforementioned circumstances concerning Mr. Bayliss' knowledge 

about Mr. Brock's concern for contractor safety violations, and 

his discussions with Mr. Brock concerning the matter, support a 

reasonable inference that Mr. Bayliss was not totally oblivious 

to Mr. Brock's involvement in the complaint and that he more than 

likely suspected that the visit by the inspectors was the result 

of some action on the part of Mr. Brock. 

Mr. Hicks denied any knowledge of Mr. Brock's "involvement 

with MSHA," and he also denied any knowledge that Mr. Brock may 

have called MSHA about the contractor complaint. However, 

Mr. Hicks confirmed that prior to the August 13, 1987, meeting 

with the MSHA inspectors, which was held just outside his office, 

he was aware of the complaints concerning the roofing contractors, and that Mr. Bayliss told him that he had discussed the 

2225 
matter with Mr. Brock (Tr. 279, 281). Mr. Hicks had previously 

visited the area where the roofing contractors were working to 

ascertain whether or not they were wearing the required safety 

equipment, and I believe that he did this in response to 

Mr. Brock's concerns to Mr. Bayliss. Mr. Hicks confirmed that 

during the meeting with th~ inspectors, he explained to them, as 

well as to Mr. Brock, the actions taken by management to insure 

contractor compliance with the safety regulations. Under all of 

these circumstances, I believe that Mr. Hicks also either knew or 

suspected that Mr. Brock was responsible for the inspectors' 

visit to the mine. 

The fact that the respondent may not have known as a fact 

that Mr. Brock had called MSHA is immaterial. In Moses v. 

Whitley Development Corporation, 4 FMSHRC 1475 (1982), the 

Commission held that a complaint may establish a prima facie case 

by proving that (1) the operator suspected that he had engaged in 

protected activity; and (2) the adverse action was motivated in 

any part by such suspicion. See also: Judge Broderick's similar 

holding in Larry Brian Anderson v. Consol Pennsylvania Coal 

Company, 9 FMSHRC 413 (March 1987). 

In view of the foregoing, I conclude and find that there is 

sufficient probative circumstantial evidence to support a reasonable inference that the three management official's who disciplined Mr. Brock in this case, either knew or suspected that he 

was responsible for the MSHA inspectors coming to the mine to 

look into the complaint concerning roofing contractors. 

Mr. King's verbal warning to Mr. Brock came a few days after the 

visit by the inspectors, and the subsequent actions taken by 

Mr. King, Mr. Bayliss, and Mr. Hicks followed within the next 

45 days or so. These disciplinary actions, which fairly closely 

followed an MSHA inspection which I believe was prompted by 

Mr. Brock's complaint, coupled with what I believe was knowledge 

or suspicions by these officials that Mr. Brock was responsible 

for the inspection visit, raises an inference that the disciplinary actions were prompted in part by Mr. Brock's protected 

activity, and sufficiently establishes a prima facie case. 

On the facts of this case, even though the complainant may 

have established a prima facie case, I conclude and find that the 

respondent has successfully rebutted any inference or prima facie 

showing of illegal discrimination. I conclude and find that the 

respondent has established by a preponderance of the evidence 

that the independent disciplinary actions taken by Mr. King, 

Mr. Bayliss, and Mr. Hicks, were clearly warranted and justified 

on their merits. Coupled with the lack of any probative evidence 

that the respondent was guilty of any disparate treatment of 

Mr. Brock, the lack of any probative evidence of animus, harassment, or other acts by the respondent inhibiting Mr. Brock from 

exercising his safety rights under the Act, I simply cannot 

conclude that Mr. Brock has made out a case. To the contrary, I 

2226 
conclude and find that the disciplinary actions taken by the 

respondent's management personnel were motivated by unprotected 

factors alone, namely, Mr. Brock's abuse of work and lunch 

breaks, his unsatisfactory job performance, and his calling of a 

supervisor on the phone at his home in the middle of the night. 

ORDER 

In view of .the foregoing findings and conclusions, and on 

the basis of the preponderance of all of the credible and probative evidence adduced in this case, I conclude and find that the 

complainant has failed to establish that the respondent discriminated against him. Accordingly, the complaint IS DISMISSED, and 

the complainant's claims for relief ARE DENIED. 

Distribution: 

Kdministrative 

GJf'~,;f(; 

, efr11/ 

Koutras 

ef_ 

Law 

~ 

Judge 

E. Jeffery Story, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mark A. Lies, II, Esq., Seyfarth, Shaw, Fairweather & Geraldson, 

55 East Monroe Street, Chicago, IL 60603 (Certified Mail) 

/fb 

2227 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

N.OV 71989 

SIDNEY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFE•ry AND HEALTH 

ADMINISTRATION (MSHA), · Respondent 

SECRE·rARY OF LABOR, 

MINE SAFETY AND HEAL'rH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SIDNEY COAL COMPANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. KENT 89-80-R 

Citation No. 3158690; 1/12/89 

No. l Mine 

Mine ID 15-07082 

DECISION 

CIVIL PENALfY PROCEEDING 

Docket No. KENT a9-133 

A.C. No. 15-07082-03575 

No. 1 Mine 

Appearances: G. Elaine Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee 

for U.S. Department of Labor; 

Lynn M. Rausch, Esq., and Michael Heenan, Esq., 

Smith, Heenan and Althen, Washington, D.C. for 

Sidney Coal Company. 

Before: Judge Melick 

These consolidated cases are before me under 

section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq., the "Act," to challenge one 

citation issued by the Secretary of Labor against the Sidney 

Coal Company (Sidney) and for review of civil penalties 

proposed by the Secretary for the violation alleged therein. 

The citation at bar, No. 3158690, alleges a "significant 

and substantial" violation of the mandatory standard at 

30 C.F.R. § 75.400 and charges as follows: 

Accumulations of float coal dust deposited on dry, 

damp cock dusted surface, is present in the No. 1, 

No. 2, and No. 3 conveyor belt entry's [sic] and 

connecting crosscuts ranging in depth from paper 

thin to 1/8 inch (approximately> from dark gray to 

black in color, beginning at the No. 1 head drive 

2228 
and extends inby to the No. 3 tail roller. The 

distance of (approximately) 3,350 feet~ 

The cited standard provides as follows: 

Coal dust, including-float coal dust deposited on 

rock-dusted surfaces, ~oose coal, and other 

combustible materials, shall be cleaned up and not 

be permitted to accumulate in active workings, or 

on electric equipment therein. 

According to Inspector Charles Skeens of the Federal 

Mine Safety and Health Administration CMSHA) the cited 

conditions were found during his inspection on 

January 12, 1989. The alleged float coal dust was 

purportedly dark gray to black in color and was purportedly 

located on the ribs, floor and roof of the Nos. 1, 2, and 3 

belt entries. Skeens opined that the substance was indeed 

float coal dust because of its coloration and the fact that 

the material then being transported on the beltline included 

coal as well as rock. 

According to Skeens there had been a ~oof fall on the 

001 section and the £all material was then being removed on 

the.beltline. The area of the mine being cleaned had also 

been previously mined with blocks of coal some 50 feet square 

remaining. Coal from the tibs was being put through the 

crusher thereby, according to Skeens, contributing to tne 

coal dust. According to Skeens no Sidney official r~quested 

him to take any coal samples and he therefore did not take 

any samples. 

Underground Mine Foreman Arthur Maynard accompanied 

Skeens during his inspection and was present at a later 

closeout conference. According to SKeens, Maynard did not 

protest the citation when it was issued. Skeens also 

testified that Maynard did not challenge the existence of the 

cited float coal dust nor challenge the citation at the tirne 

ot the closeout conference. John Barnes an MSHA Electrical 

Inspector was also present at the closeout conference on 

March 6, 1989. According to Barnes, Maynard acknowledged 

that he agreed with the citation. 

Maynard testified that in June 1988, Sidney began 

rehabilitating the No. 1 Mine by cleaning up abandoned areas 

including the clean up of a large roof fall in order to put 

in a belt line. (Sei Exhibit R-11. When the citation was 

issued they were tcansporting rock from the roof fall via 

scoop to the conveyor. According to Maynard the pile 

consi~ted ot 6 to 8 Eeet of flaKy dac~ shale, 4 to 6 feet of 

hard blue sanustone, and below that 6 feet of softec dark 

shale. Maynard maintains that the cutting of tne rock with a 

2229 
special bit was causing float rock dust. He denied that 

there was any float coal dust present. 

Maynard also claimed\at hearing that when he learned 

that Skeens was about to issue a citation for float coal dust 

he requested that Skeens take a sample. Skeens purportedly 

responded that he needed equipment in his truck outside the 

mine to obtain a sample. Skeens never in fact did obtain a 

sample. When they arrived at the surface, Mine 

Superintendent Lavender purportedly asked Skeens if he had 

taken a sample. Maynard testified that the dust in the mine 

was rock dust some of which was gray but none was black. 

Maynard testified that it was standard company 

procedure to request coal sample tests when issued citations 

for float coal dust. Maynard did not deny however that 

Sydney was cited the previous November 1988 for coal dust and 

no request was made for sampling. Maynard further testified 

that he was prese~t at the March 1989 closeout conference 

and, contrary to the testimony of both MSHA insoectors, 

protested the instant citation. ~ 

Finally, Maynard testified tnat rock dusting was 

performed at the No. 1 Mine only to help underground vision 

and not for the purpose of protecting from float coal dust. 

Danny Casey a rock duster for an independent contractor 

agreed that rock dusting was done at the No. 1 mine only for 

appearance and not because of coal dust. Casey testified 

that he had not seen any accumulations of coal dust on any oi 

the rock dusted services. 

Whether I find that there was a violation in this case 

depends on my assessment of witness credibility. On the one 

hand there is the testimony of Inspector Skeens--a coal mine 

inspector having seven years experience as an inspector and 

having 30 years eKperience in the coal mining industry. His 

visual observations are clearly sufficient, standing alone, 

to establish the violation. See Exhibit No. R-3, p.49. No 

motivation has been shown to discredit the testimony of this 

highly qualified and experienced man. 

While Respondent attempts to discredit this testimony by 

alleging that Skeens failed to take dust samples even upon 

the request of its underground mine foreman (an allegation 

denied by Skeens}, the Respondent certainly had the 

opportunity to take its own samples. Indeed since Respondent 

maintained at trial that it has always vigocously denied the 

exiatence of any float coal dust, it would be reasonable 

to expect under the circumstances that it would have taken 

its own samples to establish its innocence. In any event I 

cannot infer under the circumstances, even assuming Skeens 

did not take samples after being requested to do so, that 

Skeens' observations were deficient. 

2230 
In addition I find the testimony of urtderground mine 

foreman Arthur Maynard to be less than credible. Maynard 

testified for example that it was the uniform practice at 

Sidney to request coal dus_t sampling when float coal dust 

citations have been issued. The evidence shows however that 

only a few months before the instant citation was issued 

Maynard himself was presented with a float coal dust citation 

and according to the issuing inspector, Maynard never 

requested a coal dust sample. While Maynard denies that he 

was then present, there is no dispute that, contrary to 

Maynard's testimony, none of Sydney's employees asked for 

coal dust sampling. 

In addition, the existence of a citation for coal dust 

only a few months before the one at bar lends doubt to 

Maynard's (as well as Casey's) claim that coal dust simply 

did not exist in the mine (only rock dust) while the mine was 

being rehabilitated. The additional evidence of more recent 

citations, including one issued the 3ame day as the citation 

at issue, for loose coal and coal dust further discredits 

this claim. 'rhe Respondent's claim that coal dust simply did 

not exist in its coal mine is in itself also patently 

incredible. 

Finally, I note the failure of Sidney to have called a 

key witness, former mine superintendent Charles Lavender, 

regarding the the alleged practice of challenging float coal 

citations and his purported request to Skeens for coal 

sampling. It was not shown that Lavender was unavailable for 

trial and no effort was apparently made to contact Lavender 

although his area of residence was known. I infer from the 

failure of Respondent to have produced this essential witness 

under the circumstances that the testimony would not have 

been favorable to Respondent in this regard. See Karavos 

Compania, Etc., v. Atlantic Export Corp. 588 F.2d l (2nd 

Cir. 1978); Midland Enterprises Inc., v. Notre Dame Fleeting 

& Towing Service, Inc., 538 F.2d 1356 (8th Cir. 1976). Under 

all the circumstances I find the Secretary's case to be the 

most credible and that float coal dust did indeed exi3t as 

charged. The violation i~ accordingly proven as charged. 

The testimony of Inspector Skeens that the violation was 

"significant and substantial" is not challengedl/. Skeens 

noted that within the cited area there were ele~trical power 

cables providing a potential ignition source. He also 

observed that the automatic fire extinguishing system was not 

then functionin~. A permanent overcast was also then 

1/ Respondent denied the existence of any float coal 

dust Eut failed to provide evidence to alternatively defend 

against the "significant and substantial" and "negligence" 

f indin·gs. 

2231 
defective and allowed intake air to enter the belt entries. 

Further, the mine had a history of high levels of methane. 

Skeens opined that under these circumstances it would be 

reasonably likely fo.c the __ eight miners then working to suffer 

fatal injuries presumably from fire, smoke, suffocation or 

explosion. Within this framework of evidence I find that the 

violation was of high gravity and indeed was "significant and 

substantial". Mathies Coal Co., 6 FMSHRC 1 (1984). 

I further find that the violation was the result of 

operator negligence. It is undisputed that company officials 

walk-ed and inspected the belt lines on a daily basis. It may 

reasonably be inferred that the float coal dust should have 

been discovered. The failure to have discovered this 

condition and either have it rock dusted or removed was 

therefore Lhe result of negligence. 

Considering these and the other criteria under section 

llO(i) of the Act I find that the proposed civil penalty of 

$126 is appropriate in this case. 

ORDER 

I 

Citation No. 3158690 is affirmed and the Sidney Coal 

Company is directed to pay a civil penalty of $1~6 within 30 

days of the date of this decision. 

r1 ,t 

{ J ,/I \.L / 

i 

./. 

/ 

{ t .'·~ .1 .. ~ ,/ ( \ (' \ . - ,_f { '~ .. ~/ · .... .,., ,- .· .•\ 

\. \ 

Distribution: 

.Gary M lick 

Admini trative 

(703) 56-6261 

Judge 

G. Elaine Smith, Esq., Office of the Solicitor, U.S. 

Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 (Certified Mail) 

Lynn M. Rausch, Esq., 1110 Vermont Avenue, N.W., Suite 400, 

Washington, DC 20005-3593 (Certified.Mail) 

nt 

2232 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

WALSENBURG SAND & GRAVEL 

COMPANY, INCORPORATED, 

Respondent 

NOV 71989 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 88-96-M 

A.C. No. 05-03920-05502 

Docket No. WEST 88-142-M 

A.C. No. 05-03920-05503 

Vezzani Pit 

DECISION 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

For Petitioner; 

Ernest u. Sandoval, Esq., Walsenburg, Colorado, 

For Respondent. 

Before: Judge Cetti 

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 seg., the "Act", for the alleged violation of three regulatory 

standards. 

The Secretary charges the operator of the Vezzani Pit, 

Walsenburg Sand & Gravel Company, Inc. (Walsenburg), with the 

violation of 30 C.F.R. § 50.30, § 56.9032, and § 56.14001. 

Walsenburg filed a timely appeal from the Secretary's 

proposal for penalty. After notice to the parties the matter 

came on for hearing before me at Pueblo, Colorado. Oral and 

documentary evidence was introduced and the matter was submitted for decision without the filing of post-hearing briefs. 

The general issues before me are whether Walsenburg 

Sand & Gravel violated the cited regulatory standards, whether 

or not the violations were significant and substantial, and, if 

violations are found, what is the appropriate civil penalty to 

be assessed in accordance with Section llOCi) of the Act. 

2233 
The federal mine inspector, Lyle K. Marti, testified he 

inspected the Vezzani Pit and found it to be a small intermittent seasonal operation. It consisted of a pit, a crusher 

with screening facilities, a maintenance shop and a hot plant. 

Raw material is extracted from the earth and processed. The 

product produced is used in asphalt paving and road construction. 

The parties stipulated the operation was a small one. 

When the pit is open only three employees on average operate 

the facility. On the day of the inspection the plant and 

crusher were not running and only one a~ployee was at the 

site. 

-Docket Number WEST 88-96-M 

Citation No. 3065794 

When Inspector Marti arrived at the mine off ice, the 

first thing he did was review the required records. One of 

the required records is a quarterly employment report, MSHA 

Form 7000-2, which states the number of hours worked and the 

average number of employees who work at that pit during the 

quarter. This report must be submitted quarterly to the Health 

Analysis Center in Denver within 15 days after the end of the 

quarter. The inspector found the first and second quarter 

reports were timely submitted but the third quarter report due 

by October 15th had not been submitted as of November 4th, the 

date of his inspection. 

Inspector Marti informed Evelyn Vezzani, SecretaryTreasurer and wife of Louis P. Vezzani, the President of the 

corporation, that Walsenburg was in violation of 30 C.F.R. 

§ 50.30 since the third quarter report had not been submitted 

in time to arrive at the Denver center by October 15th. Mrs. 

Vezzani told him the report had been overlooked. She explained 

that they were closing-out their business at the pit so they had 

a lot of different reports to get out and the third quarterly 

report was just overlooked. 

The inspector testified that the citation was abated before 

he arrived at the pit the next day, by Respondent's mailing the 

required report to the center in Denver. 

Louis P. Vezzani, Respondent's President, testified that the 

failure to send in MSHA Form 7000-2 within 15 days of the end of 

the third quarter was "strictly a clerical oversight" on the part 

of his wife. 

2234 
The undisputed testimony clearly established a violation 

of 30 C.F.R. § 50.30. Citation No. 3065794 alleging a violation of 30 C.F.R. § 50.30 for failure to submit the third 

quarterly report, MSHA Form 7000-2, to the MSHA Heal th and 

Safety Analysis Center within 15 days after the end of the 

third calendar quarter, is affirmed. 

The Secretary originally characterized the violation as not 

significant and substantial and proposed a penalty of $20. At 

hearing counsel for the Secretary contended that the negligence 

was high and proposed to increase the penalty from $20 to $100. 

In determining the appropriate penalty for this violation 

I have considered the statutory criteria set forth in section 

llO(i) of the Act including the operator's small size. I credit 

the undisputed testimony that the failure to submit the report 

in a timely manner was due only to a clerical oversight. I see 

no basis for determining negligence to be high enough to warrant 

the higher penalty proposed. I find the appropriate penalty for 

this violation is the $20 penalty originally proposed by the 

Secretary. 

Citation No. 3065796 

This citation alleges a violation of 30 C.F.R. 56.9032, 

which provides: 

"Dippers, buckets, scraper blades, 

and similar moveable parts shall 

be secured or lowered to the ground 

when not in use." 

Approximately 110 feet from the west side of the crusher 

Inspector Marti observed a Caterpillar road grader that had a 

12 foot long blade. The road grader was parked unattended with 

the blade in a raised position. The blade was not secured or 

lowered to the ground as required by the cited safety standard. 

The blade had not been lowered to the ground because the 

grader might have to be pulled a few feet in order to start it. 

The grader could not be "pull-started" with the blade on the 

ground. 

Inspector Marti testified that he was concerned that there 

could be a mechanical or a hydraulic failure that could accidentally cause the blade to come down. If someone were working 

with their foot under the blade when it came down it could cause 

a permanent disabling injury. 

2235 
Mr. Louis Vezzani testified that without starting and 

running the motor of the road grader, there was "no possible 

way" that the blade could fall or come down. The engine has to 

be running in order to mechanically power the blade up or down. 

The blade lift is mechanically gear driven. It is not a hydraulic mechanism. Consequently, there is no possibility that 

there could be a release of hydraulic pressure that would drop 

the blade. The operator has to start the engine and mechanically 

lower the blade. Mr. Vezzani has used the road grader since 

1961 to maintain the pit access road and there has never been 

an injury involving that equipment . 

. Inspector Marti stated that the violation was abated during 

the afternoon of the day of his inspection by an operator who 

started the engine of the road grader and lowered the blade. 

This citation, No. 3065796, was originally marked and issued 

as a non-S&S violation. At the hearing counsel for the Secretary 

stated that she believed the evidence would show that the violation was significant and substantial and that the negligence 

was very high. Counsel proposed to amend the assessed penalty 

from $20 to $200. 

The Commission has stated that a "significant and substantial" violation is described in section 104(d}(l) of the Mine 

Act as a violation "of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard." A violation is properly 

designated significant and substantial "if, based upon the particular facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to will result in 

an injury or illness of a reasonably serious nature." Cement 

Division, National Gypsum Co., 3 FMSHRC 822. 

In Mathies Coal Company, 6 FMSHRC 1, 3-4 (January 1984), 

the Commission further explained its interpretation of the term 

"significant and substantial" as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory safety standard~ (2) a 

discrete safety hazard--that is, a measure of 

danger to saf ety--contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury 

in question will be of a reasonably serious 

nature. 

2236 
On review and evaluation of the evidence I find that a preponderance of the evidence fails to establish the third element 

of the Mathies Coal formula. A preponderance of the evidence · 

fails to establish a reasonable likelihood that the hazard contributed to will result in an injury. This finding is consistent 

with the low exposure to the hazard and the history of no injury 

involving the road grader since it was acquired by the operator 

in 1961. 

Considering the criteria set forth in section llOCi> of the 

Act, it is found under the particular facts surrounding this 

violation, that the Secretary's original proposed penalty of $20 

is appropriate for the violation. 

Docket WEST 88-142-M 

Citation No. 3065797 

This citation reads as follows: 

"The fan blade on the motor-grader 

(CAT.- NO 12 SN: 8Tl6519) was not guarded 

against personal contact." 

The citation alleges a significant and substantial violation, 

of 30 C.F.R. § 56.14001 which provides as follows: 

§ 56.14001 Moving machine parts 

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

and takeup pulleys; flywheels; couplings; 

shafts; sawblades; fan inlets; and similar 

exposed moving machine parts which may be 

contacted by persons, and which may cause 

injury to persons, shall be guarded. 

Inspector Marti testified that the same Caterpillar roadgrader cited for failure to lower the blade was also cited for 

a violation of 30 C.F.R. § 56.14001 because he believed the blade 

of the engine fan was exposed to personal contact. He testified 

it had no guard that would prevent accidental finger contact. 

The engine had no side panels. If the motor had side panels, 

Inspector Marti would have considered this adequate protection 

from the hazard of the fan blade and would not have issued the 

citation. Contact with the blade could cause serious injury 

such as loss of a finger. 

2237 
Respondent presented evidence that the road grader was 

used only to maintain the access road to the pit. It was manufactured in 1951 without any side panels. Its engine fan had 

and still has, a shroud which is a semi-covering around the 

fan blade. The shroud covers and thus guards half the blade. 

Respondent has owned the road grader for the last 27 years and 

there has never been an accident or injury involving that piece 

of equipment. 

There has been no one working at the pit site since 

October 15, 1987, approximately 20 days before the inspection. 

Before that date the work at the pit had been seasonal and intermittent. ~t the end of the access road leading ·to the site is a 

gate that was kept locked except when someone was working at the 

pit. When the pit was open and working an average of three men 

operated the facility. Consequently, exposure to the hazard of 

the partially guarded fan blade was low. 

Louis Vezzani testified that after the inspection he abated 

the alleged violation by removing the equipment from the mine 

site. Except for purposes of abatement the equipment was last 

used at the mine site on October 15, 1987, which was approximately 20 days before the November 4th inspection. No work had 

been done at the mine site since October 15, 1987. 

Inspector Marti testified that he never returned to the pit 

after his inspection, but on the basis of information given to 

him by respondent, all violations were abated within the extended 

time he allowed for abatement. 

A preponderance of the credible testimony established a 

violation of 30 C.F.R. § 56.14001 in that the revolving fan blade 

was inadequately guarded. 

The Secretary originally assessed a penalty of $54 for this 

violation. At the beginning of the hearing counsel for the 

Secretary stated that "primarily due to the lack of abatement of 

the violation" the proposed penalty should be increased to $400. 

I find, however, that the unrebutted testimony of Mr. Vezzani 

and the testimony of Inspector Marti clearly shows there was an 

abatement of the violation. 

The Secretary has the burden of proving that a violation 

is significant and substantial. Under Mathies Coal the Secretary 

of Labor must prove all four elements of the Mathies formula. 

The third element is "a reasonable likelihood that the hazard 

2238 
contributed to will result in an injury." A "reasonable likelihood" is more than just a possibility. The evidence in this case 

established that the revolving blade of the fan was partially 

guarded by a shroud, that the road grader was used only to maintain the access to the pit, and that only three people seasonally 

and intermittently worked at the site. Exposure to contact with 

the fan blade of the motor was very limited. Upon evaluation of 

the actual circumstances surrounding this violation I find tpat 

a preponderance of the evidence established a possibility that 

the hazard contributed to will result in an injury but not a 

likelihood. Therefore, I find that the violation was not significant and substantial. 

Considering the statutory criteria set forth in section 

llOCi) of the Act and the circumstances surrounding this violation, I find the appropriate penalty for the violation is $40. 

For the foregoing reasons I enter the following: 

ORDER 

1. Citation No. 3065794 and the Secretary's original 

assessment of a $20 penalty is affirmed. 

2. Citation No. 3065796 and the Secretary's original 

assessed penalty of $20 is affirmed. 

3. Citation No. 3065797 is modified to strike the 

characterization of the violation as significant and substantial and a civil penalty of $40 is assessed. 

The respondent is directed to pay to the Secretary of 

Labor a civil penalty in the sum of $80 within 30 days of the 

date of this order. 

F. Cett1 :fr~· 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building,\1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

Louis P. Vezzani, President, Walsenburg Sand & Gravel, P.O. 

Drawer 352, Walsenburg, CO 81089 (Certified Mail) 

/ot 

2239 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 91989 

JOHN DIXON HACKER, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. KENT 89-1-D 

MSHA Case No. BARB CD 88-57 

BLACK STREAK MINING, 

Respondent No. 1 Mine 

Appearances: 

Before: 

DECISION 

John c. Carter, Esq., Harlan, Kentucky, for the 

Complainant; 

Otis Doan, Jr., Esq., Harlan, Kentucky, for the 

Respondent. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a discrimination complaint filed by 

Mr. Hacker with the Commission on October 4, 1988, against the 

respondent pursuant to section 105(c) of the Federal ·Mine Safety 

and Health Act of 1977. Mr. Hacker initially filed his complaint 

with the Secretary of Labor, Mine Safety and Health Administration (MSHA), at its District 7 Field Office on August 15, 1988, 

and in a statement executed by him on that day on an MSHA complaint form, Mr. Hacker made the following complaint statement: 

At the end of our shift I ride the belt outside. On 

07/25/88 while riding the belt to the surface I 

observed a rock fall on the belt and where the fall was 

the belt was cribbed on both sides. When I jumped off 

the belt I hit one of the cribs and it threw me back 

into the belt structure. As of this date I have 

received no workman compensation. I have been told 

that I no longer have a job at this company. 

I want my job back with backpay. Also I want the 

workman's compensation due me and all my medical bills 

paid. 

In a statement given to an MSHA Special Investigator on 

August 19, 1988, in the course of an investigation into his 

2240 
complaint, Mr. Hacker stated that mine management instructed him 

to ride the belt into the mine, that riding the belt was illegal, 

and had he refused, he would not have a job. He stated that 

approximately a week prior to his alleged injury he informed an 

MSHA inspector who was at the mine that he rode the belt into the 

mine and that the belt stop cord was inoperative, and that the 

inspector issued several violations to the respondent. He 

further stated that he received medical treatment for his alleged 

injuries, was hospitalized for 9 days, and.that when he contacted 

mine management on August 16, 1988, to inquire whether he still 

had a job, management informed him that he had quit and would not 

be given his job back. During the course of the hearing, 

Mr. Hacker alleged for the first time that he was discharged by 

the respondent for speaking with the inspector, and he suggested 

that he was fired because his conversation with the inspector 

resulted in violations being issued to the respondent. He also 

asserted ttiat the respondent retaliated against him for informing 

the inspector about his riding the belt and the inoperable stop 

cord. 

After the completion of its investigation of Mr. Hacker's 

complaint, MSHA advised him by letter dated September 15, 1988, 

that on the basis of the information gathered during the course 

of its investigation, a violation of section 105(c) of the Act 

had not occurred. Mr. Hacker pursued his complaint further with 

the Commission, and in a letter dated September 26, 1988, which 

accompanied his complaint, Mr. Hacker stated in relevant part as 

follows: 

I have lost my job due to an injury that I received 

while being employed by Black Streak Mining. I have 

filed a workmen's compensation claim. I have yet to 

receive workmen's comp. or anything due to this injury. 

I want to know from you all is it right to lose your 

job while under a doctor's care? I have doctor's 

statements and X-rays due to this condition, and I also 

have witnesses stating verification of getting treated 

by a doctor at the emergency room in Pineville at the 

hospital. 

The respondent filed an answer to the complaint denying that 

it discriminated against Mr. Hacker, denying that he was injured 

in any mine accident, and asserting that Mr. Hacker quit his job 

because he did not return to work on July 26, 1988, and did not 

supply a valid reason for not returning to work. 

A hearing was held in Kingsport, Tennessee, and the parties 

appeared and participated fully therein. The parties filed 

posthearing briefs, and I have considered their arguments, as 

well as the arguments made by counsel during the course of the 

hearing. 

2241 
Issues 

The issue-s presented in this proceeding are ( 1) whether or 

not Mr. Hacker was discharged or voluntarily quit or abandoned 

his job; (2) whether or not his alleged discharge or voluntary 

termination was motivated or otherwise prompted by his engaging 

in any protected safety activity; and (3) whether or not the 

respondent retaliated or otherwise discriminated against 

Mr. Hacker by either discharging him or forcing his termination 

because of his.engaging in any protected safety activities. 

Applicable Statutory and Regulatory Provisions 

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

30 U.S.C. § 301 et seq. 

2. Sections 105(c) (1), (2), and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1), ~2) and 

( 3) • 

3. Commission Rules, 29 C.F.R. § 2700.l et seq. 

Complainant's Testimony and Evidence 

Complainant John Dixon Hacker testified that on July 25, 

1988, at the end of his shift, he rode the conveyor belt out of 

the mine, and when he observed a rock on the belt in an area 

which had been cribbed, he jumped off the belt to avoid the rock 

and he was thrown back against the belt structure. He then 

.waited until fellow miners Joe Stapleton and Mark LeMasters came 

into the area and he advised them that he was "all right." 

Mr. LeMasters returned to the outside to get a bar to break down 

the rock, and Mr. Hacker reversed the belt and went back to the 

belt head to obtain a hammer. He then rode the _belt back to the 

location of the rock and helped Mr. LeMasters and Mr. Stapleton 

break down the rock. After they finished, they all left and 

exited to the outside (Tr. 11-14). 

Mr. Hacker stated that he left the mine after the incident 

in question because he was "shook up pretty good" and "was pretty 

well scared and everything and I didn't think I was hurt that 

bad." When he arrived home he "was hurting bad" and could not 

get out of his car. His wife called the mine in an effort to 

contact the mine operator about taking him to the hospital but no 

one answered the phone. His wife then called mine operator 

Darrell Middleton's wife at a store which they operate and she 

told his wife to take him to the emergency room. Mr. Hacker 

stated that the calls were made by his wife because he wanted to 

report the accident, and in order for someone to verify for the 

hospital that he worked at the mine for workmen's compensation 

purposes (Tr. 15-17). 

2242 
Mr. Hacker confirmed that Windell Middleton is the company 

vice-presiden~ and was his supervisor, and that his brother 

Darrell Middleton was the president. He stated that the lack of 

belt clearance where the rock was located contributed to his 

injuries, and that he had to turn his head sideways to clear the 

rock while riding the belt. He also confirmed that the belt was 

equipped with pull ropes but they were inoperative {Tr. 18). 

Mr. Hacker stated that approximately a week before he was 

injured he spoke with MSHA Inspector Chaulk Myers "about the 

belts and stuff" and "the belt in general" {Tr. 20). He stated 

that he informed Mr. Myers that he rode the belt into the mine 

and that Mr. Myers advised him that he was not supposed to do 

this because there was no belt clearance. Mr. Hacker stated 

further that sometime between July 14 and 17, 1988, Mr. Myers was 

at the mine to conduct an electrical inspection and asked him to 

call the base to shutdown the belt so that he could inspect it. 

However, no one would answer the phone, and Mr. Myers waited an 

hour and a half before the belt was shutdown. Mr. Myers then 

told Mr. Hacker that he was "going to get him" for interfering 

with an inspection for not shutting the belt down (Tr. 23). 

Mr. Hacker stated that he did not shut the belt down because 

he lacked the authority to do so and he was specifically told 

that if he ever shutdown the belt he would lose his job. He 

explained that shutting down the belt while it was loaded would 

make it difficult to restart and could result in belt damage {Tr. 

24) • 

When asked whether the inspector issued any citations as a 

result of his riding the belt and the inoperative pull ropes, 

Mr. Hacker answered "to my knowledge, there was." When asked how 

he knew that citations were issued, he stated that the outside 

man, Johnny Brooks, informed him that the inspector was mad when 

he left the mine and that he wrote up a violation "for interfering with the inspector's job and for the belt. There were 

several violations on the belt." Mr. Hacker stated that this 

occurred a week to a week and a half prior to his injury (Tr. 

25) • 

Mr. Hacker stated that he rode the belt to and from his work 

station and that it was illegal for him to do so. He explained 

that it was illegal because of the lack of clearance and the 

inoperative pull cords. He also stated that if the cords were 

operational, it would have been legal to ride the belt, but that 

the cords have never been operational for as long as he worked at 

the mine {Tr. 26-27). 

Mr. Hacker stated that he rode the belt to his work station 

because that was the only way to reach the belt head to turn it 

on in order to transport the coal out of the mine. He also 

stated that Windell Middleton required him to ride the belt. 

2243 
Mr. Hacker confirmed that he had previously quit his job at the 

mine when "I was starting to get scared," and that he was rehired 

(Tr. 28). He also confirmed that he did not inform Mr. Middleton 

that it was illegal to ride the belt because "if I would have 

complained to Mr. Middleton about the belt he would have first 

replaced me and got somebody else" (Tr. 29). 

Mr. Hacker stated that after getting out of the hospital he 

spoke to Darrell Middleton on approximately August 9, 1988, and 

that Mr. Middleton "told me that he'd like to handle it more or 

less under the table and that, come on back to work." Mr. Hacker 

stated that he did not return to work because he was under a 

doctor's care at that time and that he so informed Mr. Middleton 

(Tr. 31-32). 

Mr. Hacker stated that after filing his complaint with MSHA, 

the MSHA investigator suggested that he call Mr. Middleton and 

ask for his job ba-ck (Tr. 33). Mr. Hacker stated that he filed 

the complaint "because of the job and everything. And the 

injury. They was stating that nothing happened and stuff" (Tr. 

34) • 

Mr. Hacker stated that he was never told he did not have a 

job, but that Mr. Middleton told his wife that he did not have a 

job because nothing happened to him. He also stated that Windell 

Middleton informed him on August 16, 1988, that nothing had 

happened "and for me to sue him" and that "I no longer had a job 

there" (Tr. 36). 

When asked for his opinion as to why he no longer had a job 

with the respondent, Mr. Hacker replied as follows (Tr. 36-38): 

A. If I was to give my opinion, I'd say that I was 

starting to be a heartache for them. 

Q. Okay, why were you a heartache? 

A. Well, they try to do the best they can running coal 

and stuff and the people goes to, you know, talking and 

everything, and stuff like that, they don't like that, 

and stuff. 

* * * * * * 

Q. And you think that you, specifically, however, 

you're a heartache to them? You said you thought you 

was a heartache to them? 

* 

A. By, like, talking to that mine inspector and stuff. 

And it got ·right back over to them that, over that. 

And they know that • • . 

2244 
You know, some of the people take a lot of stuff, 

and I'm the type of feller, I won't take too much of 

anything. 

Respondent's counsel stated that Mr. Hacker's workmen's 

compensation claim filed against the respondent has been settled 

and that Mr. Hacker will receive $12,000 from the respondent's 

insurance carrier as an "out of court settlement" for his injury 

claim (Tr. 39-41). 

Mr. Hacker confirmed that he has not been employed since he 

left the respondent's employ, and although he is able to work, he 

has not looked for work because of his pending workmen's compensation claim (Tr. 41). 

On cross-examination, Mr. Hacker confirmed that the respondent disputed his claimed injury and workmen's compensation 

claim. He also confirmed that Inspector Myers told him that he 

was going to ride the belt out of the mine, but that he never 

observed him doing so (Tr. 44). Mr. Hacker further confirmed 

that he has no copies of any of the violations allegedly issued 

by MSHA, that he did not subpoena Mr. Myers to testify in this 

case, and that the only evidence he has to support his contention 

that violations were issued was based on what someone may have 

told him (Tr. 45). 

Mr. Hacker confirmed that no one else was present when he 

spoke to Inspector Myers about the belt and that he did not tell 

either of the Middleton brothers that he had complained to the 

inspector about the belt (Tr. 46). He also confirmed· that he was 

injured abo~t a week after speaking with Mr. Myers, and that 

during that week his job status was not changed, and that he 

still worked as a belt headman and received the same pay. He 

also confirmed that Windell Middleton "has never jumped on me," 

and that although Darrell Middleton "has chewed on us a little 

bit," this occurred prior to speaking to the inspector and his 

injury, and that during the week after he spoke to the inspector, 

the Middleton brothers never "jumped on him for anything" (Tr. 

4 7) • 

Mr. Hacker stated when he rode the belt into the mine to his 

work station on July 25, 1988, he observed a rock hanging down on 

the belt and reported it. At the end of the shift, while riding 

the belt out of the mine, he jumped off the belt to avoid the 

rock which he knew was there and was hurt when he hit a crib and 

was thrown back into the belt structure. He confirmed that after 

this occurred, he helped take down the rock by using a sledge 

hammer while he was bent down, and that this job took approximately 30 to 45 minutes (Tr. 61). 

Mr. Hacker stated that after the rock was taken down, he and 

the other two men who helped do the work rode the belt out of the 

2245 
mine. His brother-in-law Johnny Brooks was outside, and 

Mr. Hacker stated that he told Mr. Brooks that "I took a pretty 

good jolt" but did not tell him that he was hurt or needed to go 

to the hospital. Mr. Hacker stated that after coming out of the 

mine, and before leaving to go home, he told no one that he had 

been hurt and had to go to a doctor, and that the Middleton 

brothers were not present at that time (Tr. 63). 

Mr. Hacker confirmed that the Middleton brothers never told 

him that he had been fired, that he "got along good with them," 

that "they were good men to work with and work for," that "payday 

was always there," and that they never gave him "a hard time" 

(Tr. 66). Mr. Hacker denied that his dispute with the Middleton 

brothers arose because of his workmen's compensation case, and 

when asked why the dispute arose, he responded as follows (Tr. 

66-67) : 

THE WITNESS: _Well, mainly the dispute arised because 

my wife was trying to get a hold of Darrell Middleton ~- and she kept, or he kept on putting her off and he put 

her off for like three or four days and then the 

following week she had called back again and then they 

finally told her that nothing had happened and he 

wasn't going to do nothing, and that's why the dispute 

arised, sir. 

JUDGE KOUTRAS: So, that all had to do with your compensation claim, doesn't it? 

THE WITNESS: Sir? 

JUDGE KOUTRAS: You claimed you were injured in the 

mine and they kept denying it. 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: And is that why the dispute arose? 

THE WITNESS: Well, no, not really. I mean, the dispute. rised because there was a lot of unsafe working 

conditions there. 

Q. You never, but you never filed any injury 

complaints? 

A. No. 

Q. And you never complained to them prior to the time 

this dispute arose over this workers' compensation 

case, did you? 

A. I just quit once. 

2246 
And, at (Tr. 68-70): 

Q. Maybe I'm not explaining it right. What I'm saying 

is, prior to the time you say you got hurt and you 

filed your worker's compensation case, you never filed 

any complaints with MSHA, you never complained to these 

fellows. 

You say they were good men to work for and then 

after you filed this worker's compensation case, and 

they disputed notice, then's when all this problem came 

up, isn't it? 

A. No, when I, like what I say, when I was dazed and 

everything, when I talked to Windell and stuff there, 

and then he's the one that brought it all out. 

Q. But I'm talking about, that happened and you 

say 

A. Because I wasn't getting nowhere. 

Q. Okay, let me ask you this. You said, you just 

testified that the week from, that you talked to the 

inspector about a week before you got hurt and up until 

July 25th, you say you didn't, they didn't harass you. 

You didn't have any problem with them and they didn't 

fire you? 

A. Right. 

Q. And a week has passed and the reason you left work 

was because you say you got injured, isn't that right? 

They never fired you or ran you off or anything? Did 

they? 

A. Well, what is it when . . . 

Q. No, just answer my question. 

A. No, okay. 

Q. Did they? 

A. Did they what? 

Q. Did they fire you or run you off? Prior to your 

date of injury, July 25th? 

A. No, sir. 

2247 
In response to bench questions concerning his discrimination 

claim, Mr. Hacker stated as follows (Tr. 83-85): 

JUDGE KOUTRAS: Now, let me ask you this question, why 

do you believe you were discriminated against here? 

THE WITNESS: Why do I believe I was? 

JUDGE KOUTRAS: Yeah? 

THE WITNESS: I, to my knowledge, I just say that, you 

know, with me talking to the mine inspector and stuff 

like that, I believe that they don't, they didn't 

really take too good to that. 

JUDGE KOUTRAS: Take too good to what? 

THE WITNESS: To me, you know, talking to them and 

everything. Because the mine inspector, Chaulk Myers, 

told me, he said, anything that you say and everything, 

he said, they can't use against you and stuff like 

that. 

The mine inspector had told me this himself and he 

said, you know, they can't get rid of you on your job 

and stuff and he said, answer it honestly. 

JUDGE KOUTRAS: How did this conversation come up with 

this inspector a week before you were injured? 

THE WITNESS: How did it? 

JUDGE KOUTRAS: Yeah, how did the subject come up about 

your riding the belt and all that business? 

THE WITNESS: Well, the man had . See, my job, my 

job consists of doing nothing but watching my belt. Do 

you understand what I'm saying? I watch the belt and 

make sure that the coal's running right and then do 

little odd jobs and stuff like that. Okay, what it 

consists of is not too much of anything. Just being 

there and making sure that the belt runs right. Okay, 

I had this free time while this inspector was in there 

trying to do his job. Okay, he didn't get to do his 

job, so we just sat there and chit-chatted, is what it 

amounted to. You know, just talked. And, you know, he 

was talking, asking me questions and, you know, I asked 

him a few and you know, we just chit-chatted, is what 

I'm trying to say. 

JUDGE KOUTRAS: What do you mean, he couldn't do his 

job? 

2248 
THE WITNESS: Well, he told me to shut the belt down 

and I was told not to shut the belt down. 

And, at (Tr. 95-97): 

JUDGE KOUTRAS: Now, I'm going to ask you up front, did 

somebody suggest to you, well, listen, in addition to 

your compensation·claim, maybe you can say that you 

talked to the inspector and that the company fired you 

because you talked to the inspector and suggested to 

you that you file a discrimination complaint? 

THE WITNESS: When I was more or less fired that's when 

I took further action. That's when it was. 

JUDGE KOUTRAS: Yeah, but you never raised any issue 

then that you were fired for talking to the inspector. 

Are you trying to convince me that the Middleton's 

fired you for talking to an inspector, or wouldn't give 

you a job back because you complained to an inspector? 

THE WITNESS: That, more or less, that's what a lot of 

it amounted it. I mean, they wouldn't give me my job 

back because of the accident. That's the whole main 

thing right there. 

JUDGE KOUTRAS: Because of the accident. 

THE WITNESS: But a lot of things, it's because they 

work illegal in the mine and then they get away with 

it. 

JUDGE KOUTRAS: Have you ever reported their illegal 

activity? 

THE WITNESS: No, sir, I have not. 

JUDGE KOUTRAS: Why not? 

THE WITNESS: Well, if you report it you wont' have a 

job there. 

JUDGE KOUTRAS: But how do they know you're going to 

report it. You know, you can pick up the telephone and 

make anonymous complaints. 

THE WITNESS: Okay. 

JUDGE KOUTRAS: Can't you do that? Can't you call up 

the, you know where the MSHA district office is in your 

neighborhood or in your local where you live? 

2249 
THE WITNESS: Yeah, I know where it's at. 

JUDGE KOUTRAS: Do you know who the inspectors are? 

THE WITNESS: I just, I know that Chaulk Myers and, no, 

I don't know him personally, no. 

Mr. Hacker confirmed that during his 8 months of employment 

at the mine he never reported any safety violations to MSHA, and 

when asked to identify the alleged "illegal things" at the mine, 

Mr. Hacker stated "I just soon not comment on it" (Tr. 101). He 

stated that he had informed the Middletons about the existence of 

the rock over the belt, but nothing was done about it (Tr. 102). 

He confirmed that he had quit his job in the past because "the 

top was bad" and because he was scared to work under the top (Tr. 

105). He also confirmed that he told Windell Middleton that the 

top was bad and needed to be taken care of (Tr. 114). 

Mr. Hacker stated that when he last quit his job at the mine 

because he was scared he had never worked in a mine before and 

that "it was all new to me" (Tr. 120). Mr. Hacker confirmed that 

he never told the Middleton's about his conversation with Inspector Myers, and he has no proof that Mr. Myers told them about 

their conversation (Tr. 120). He also confirmed that he never 

spoke to any other inspectors during the time that he worked at 

the mine (Tr. 121). 

Mrs. Virginia Hacker, complainant's wife, stated that she 

was at the mine on July 25, 1988, and observed her husband come 

out at 5:30 p.m. Her husband told her that "his back was bothering him." Present at this time was her brother John Brooks, and 

miners Joe Stapleton and Mark Masters (sic). Mrs. Hacker stated 

that after arriving home, her husband informed her that his back 

"was hurting rather bad" and she called the mine to see about 

taking him to the Pineville Hospital. There was no answer at the 

mine, and she placed a call to Darrell Middleton's wife, Mary 

Lynn, at a local store which they operate, and Mrs. Middleton 

instructed her to take Mr. Hacker to the doctor. Upon arrival at 

the hospital, Mrs. Hacker stated that someone from the hospital 

emergency room called Mrs. Middleton to verify Mr. Hacker's 

employment (Tr. 125-132). 

Mrs. Hacker stated that on July 27, 1988, Mr. Hacker 

returned to the doctor at the hospital because "he was hurting 

real bad," and that she called the mine that day and spoke to 

Windell Middleton about filing an accident report, and that 

Mr. Middleton informed her that he would have to talk with his 

brother about the matter. Mrs. Hacker stated that she called 

again, and then went to the mine to pick up her husband's check, 

and that Windell Middleton advised her that he had spoken to his 

brother and that no accident had occurred and no accident report 

2250 
would be made. Mrs. Hacker stated that she informed 

Mr. Middleton that she would see a lawyer and that he told her 

"that would be the thing for you to do." She confirmed that she 

has not spoken to the Middleton brothers since that time, and 

nothing was said about her husband returning to work (Tr. 

132-134) . 

On cross-examination, Mrs. Hacker stated that when her 

husband came out of the mine on the belt he did not need any help 

in getting off the belt, and she did not hear her husband tell 

anyone else that he had been hurt. He only told her that "his 

back was hurting" (Tr. 134). Mrs. Hacker stated that her husband 

attended work regularly and had never been suspended or fired 

during his approximate 8 or 9 months of employment with the 

respondent, but that he had previously quit his job at the mine, 

and then returned to work there again (Tr. 137). 

Mrs. Hacker stated that her husband had complained to her 

about the rock while he was employed at the mine and that "he was 

scared of it because he was not used to coal mining" (Tr. 146). 

She also stated that her husband "was all the time talking about 

the belt and the rock," and that "they wanted him to cut the belt 

off and he wouldn't cut it off because he was afraid he'd lose 

his job over it" (Tr. 149). She had no knowledge of any specific 

conversations that her husband may have had with any inspectors 

about the belt or rock, but that they discussed the mine "all the 

time" (Tr. 149). She believed that riding the belt was illegal, 

and that her husband had informed her that the belt pull cord was 

not working (Tr. 153). She confirmed that she had ridden the 

belt when she was employed at the mine when it was op·erated by 

another company, and that the only information she had about the 

respondent's operation of the mine is that whic~ she received 

from her husband (Tr. 156-157). 

Robert G. Hunley, stated that he has never worked for the 

respondent, but that he has worked in an underground mine for a 

couple of years. He stated that he knew Mr. Hacker for a couple 

of years and took him to the doctor on July 27, 1988, and then to 

the hospital emergency room where he was admitted. When asked 

about his knowledge of the case, Mr. Hunley stated that· 11 all I 

know is, was he got hurt in the mines" and that he learned this 

from Mr. Hacker (Tr. 160). Mr. Hunley stated that Mr. Hacker 

informed him that "there was a rock hanging over the belt about 

to fall," but that he gave him no advice as to how to proceed 

with this case (Tr~ 161) . He stated that Mr. Hacker had complained to him about the rock hanging over the belt for a month 

or so before he was injured (Tr. 161). 

Mr. Hunley stated that he had worked in low coal seams, and 

that some mines have problems with the top in low coal, and that 

it is an inherent condition of mining. He agreed that a mine is 

2251 
a "scary place" for a young man on the job a few months (Tr. 

162). He stated that his conversations with Mr. Hacker concerning the mine took place while he was eating at a restaurant 

operated by Mr. and Mrs. Hacker, and that he told Mr. Hacker that 

the rock may or may not be dangerous depending "on what it looked 

like." He could not recall any comments by Mr. Hacker in this 

regard, and that from what he knew the rock problem was only at 

one location over the belt (Tr. 164). Mr. Hunley denied that he 

suggested to Mr. Hacker to call a mine inspector about the rock, 

and that this conversation never came up (Tr. 165). 

Mr. Hacker's counsel made a proffer that Mr. Hacker's 

sister, Russella Horner, was present at the mine on July 25, 

1989, with Mrs. Hacker, and that if called to testify, she would 

state that she was present when Mr. Hacker complained to his wife 

about his back on that day. Respondent's counsel accepted the 

proffer and Mrs. Horner was not called to testify (Tr. 167). 

John Brooks, stated that he works for the respondent and 

that he is married to Mr. Hacker's sister, and that Mr. Hacker is 

married to his sister. Mr. Brooks stated that he works at the 

mine as an outside man taking care of the outside and the No. 1 

belt, back to the No. 2 belt. He confirmed that he worked at the 

mine during the entire time that Mr. Hacker was employed there, 

and that he was at work on July 25, 1988. He stated that 

Mr. Hacker, Mr. LeMasters, and Mr. Stapleton came out of the mine 

at the same time at the end of the shift, and that Mr. Hacker 

said nothing to him about being injured. Mr. Brooks explained 

that Mr. LeMasters and Mr. Stapleton had come out earlier, but 

went back in after Mr. Hacker called out (Tr. 171-175). 

Mr. Brooks stated that at 11:30 p.m., the evening of 

July 25, 1988, Mr. Hacker came to his home and informed him for 

the first time that he had injured his back when he jumped off 

the belt to avoid a rock. Mr. Hacker informed him that he would 

not be at work the next day, and gave him a doctor's excuse. 

Mr. Brooks said that he did not look at it, and laid it on the 

night stand next to his bed. The next day, he called Windell 

Middleton and informed him that he would need someone for the 

belt head that day, but Mr. Brooks was not sure whether he 

explained the reason for needing someone that day. Mr. Brooks 

could not recall what he did with the doctor's slip that 

Mr. Hacker had given him, but he confirmed that he did not give 

it to Windell or Darrell Middleton. He confirmed that he later 

informed the Middleton's that Mr. Hacker would not be coming to 

work because he injured his back, and he believed that he advised 

them of this within 2 days of the accident (Tr. 175-177). 

Mr. Brooks stated that he and Mrs. Hacker have discussed 

Mr. Hacker's working at the mine, and that Mrs. Hacker did not 

want her husband working there because "he didn't like the idea 

2252 
of working in them, underground, ... and he said he didn't like 

riding under the rock on the belt and stuff" (Tr. 178). 

On cross-examination, Mr. Brooks confirmed that Mr. Hacker 

said nothing to him about being injured when he came out of the 

mine on July 25, 1988, and that he jumped off the belt after 

exiting the mine and said nothing about going to the hospital 

(Tr. 178-182). Mr. Brooks stated that he has observed MSHA 

Inspector Myers riding the belt in question, and that there are 

pull cords on the belt. The purpose of the cords is to stop the 

belt in the event of any problems (Tr. 183). 

Mr. Brooks stated that Mr. Hacker "was skittish" about 

working in the mine, and that he (Brooks) has had no problems 

working for the Middletons and that they have never harassed him 

(Tr. 185). He confirmed that Mr. Hacker could crawl to his work 

station at the belt head, but that "it would be a long crawl" 

(Tr. 185). Mr. Brooks further confirmed that Windell Middleton 

instructed him to keep the pull cords working, and he was not 

aware of any violations being issued on the pull cords. He was 

aware of a violation concerning inadequate crawl space next to 

the belt. The condition was created when the belt was cribbed, 

and the space needed to be widened, and Windell Middleton 

instructed the crew to correct the problem (Tr. 187). 

In response to further questions, Mr. Brooks stated that the 

belt in question was approximately 3,500 feet long, and he was 

not aware of any citations issued by Inspector Myers for the 

failure of the respondent to cooperate with him in shutting the 

belt down. He confirmed that he had no knowledge of any citations which _may have been issued at the mine, and he explained 

that any citations would be posted in another mine area from 

where he works (Tr. 190). 

Mr. Brooks stated that the pull cords on the No. 1 belt in 

question were operational on July 25, 1988, and that the No. 2 

belt is not equipped with a pull cord because it is not an 

authorized mantrip. Mr. Brooks confirmed that when Mr. Hacker 

called out and told him about the rock on the belt, the 

Middletons were not present, and that he sent Mr. LeMasters and 

Mr. Stapleton in to see about the problem. Mr. Hacker had 

advised him earlier about the rock, but told him that "he was 

going to stop and get it on his way out" (Tr. 193-195). 

Mr. Brooks stated that at the time Mr. Hacker came to his 

home on the evening of July 25, 1988, he lived 25 miles away, and 

drove to his home with his wife. Mr. Hacker woke him up, 

informed him that he had hurt his back and would not be at work 

the next morning. Mr. Brooks also confirmed that Mr. Hacker gave 

him a "pink slip," but he did not look at it and just put it on 

his night stand. Mr. Brooks stated that on his way to work that 

morning, he stopped and called Windell Middleton and informed him 

2253 
.... 

that Mr. Hacker would not be at work, but he did not explain why. 

When asked why he did not explain to Windell Middleton the reason 

for Mr. Hacker's inability to report for work, Mr. Brooks stated 

"I don't really know" (Tr. 198). When asked if Mr. Middleton 

sought any explanation from him as to why Mr. Hacker would not be 

able to come to work, Mr. Brooks responded "this has been over a 

year, and I don't remember" (Tr. 199). Mr. Brooks confirmed that 

his wife misplaced the slip that Mr. Hacker had given him, that 

it never got to Mr. Middleton, and when Mr. Hacker informed him 

that he could get a copy, Mr. Brooks did not search for the slip 

(Tr. 200). When asked if he knew what the instant case was all 

about, Mr. Brooks responded "not for sure, ... I'm not clear on 

whether its compensation or disability, .•. I don't know what, 

really" (Tr. 202). 

Mr. Brooks explained the operation of the belt, and he 

stated that it is normally started and stopped from the outside 

by a switch, and that the pull cords are only to be used in an 

emergency. He confirmed that he started and stopped the belt 

from the outside on July 25, 1988, and that Mr. Hacker informed 

him by telephone that "he had a rock on a belt and he was going 

to have to bust it up" (Tr. 205). 

Mr. Brooks stated that he was not aware of any safety complaints made by Mr. Hacker to the Middleton's or anyone else, but 

that Mr. Hacker has stated to him (Brooks) that he did not like 

riding the belt under the rock, and did not like being that far 

back underground. Mr. Brooks did not agree that the Middleton's 

were not concerned about safety or the lack of operational cords 

on the belt, or that anyone who did not ride the belt would be 

out of a job (Tr. 207). Mr. Brooks confirmed that he has never 

been cited for any violations on the Number 1 belt or any other 

equipment that he is responsible .for (Tr. 208) . 

Mr. Brooks stated that Mr. Hacker informed him that he had 

spoken to Inspector Myers about a week before he was injured, but 

Mr. Brooks could not recall what was said, and he confirmed that 

he did not speak with the inspector (Tr. 209). Mr. Brooks 

explained that in the event the number 1 belt is loaded and needs 

to be shutdown, he was instructed to contact someone to make sure 

the belt was empty before it was shutdown, and he could not 

recall receiving any calls from anyone to shut the belt down on 

the day that the inspector was there. However, he confirmed that 

he was aware of the fact that someone was trying to contact the 

face area where coal was being run to stop loading coal so that 

the belt could be stopped, but that the face area was a long 

distance away and "we .have phone trouble every once in a while." 

Mr. Brooks stated that the inspector did not like the fact that 

the belt wasn't stopped, but said nothing to him about it. He 

confirmed that the inspector shut the belt down from the outside 

because he wanted to check the smoke roller test switches, and 

that he inspected the belt. Mr. Brooks recalled that he had to 

2254 
clean some dirt off one.of the mats in front of the belt switch 

box (Tr. 210-210). 

Mr. Brooks confirmed that the number 1 belt pull cord was 

broken, but denied that it was broken during all the time that 

Mr. Hacker worked at the mine. Mr. Brooks stated that he had 

worked on the cords three or four times at locations "where it 

was old," and that he conducts the inspections on the belt. He 

stated that while Mr. Myers was inspecting the belt, he (Brooks) 

was inspecting it to make sure that the cord switches were all 

working (Tr. 216). He confirmed that the inspector shut the belt 

down because of a smoke roller slippage switch, but could not 

recall whether he worked on the belt before or after the 

inspection (Tr. 219). 

Mr. Brooks stated that as far as he knew, Mr. Hacker got 

along with the Middleton's, and that although Mr. Hacker told him 

(Brooks) several times that he did not like working at the mine, 

he never said anything to him about safety violations, rocks 

falling on the belt, or that the Middleton's did not care about 

safety and were intimidating mine inspectors. Mr. Brooks stated 

that he has never heard the Middleton's intimidating any 

inspectors (Tr. 226). 

Jimmy Joe Stapleton testified that he now works at another 

mine company owned by the Middleton's, but worked for Black 

Streak on July 25, 1988. Mr. Stapleton stated that a day or two 

later, Windell Middleton asked him if Mr. Hacker had been injured 

at the mine on July 25, 1988, and Mr. Stapleton informed him that 

he had no knowledge of any injury. Mr. Stapleton stated that he 

was working on the number 1 belt "running fire sensor line," and 

that he had to crawl into the mine because he was working on the 

belt. He confirmed that he and Mr. LeMasters went back into the 

mine that same evening to help Mr. Hacker break up a rock. He 

stated that he crawled out of the mine, but was not sure whether 

Mr. LeMasters rode the belt out because he was already outside 

when he came out, and they waited until Mr. Hacker came out (Tr. 

233) . 

On cross-examination, Mr. Stapleton stated that he never 

observed anything "illegal" at the mine, that "it was in fair 

shape" and "safe to me," and that he had worked in the mines for 

14 years and would not work in any unsafe faces (Tr. 234). He 

explained the roof timbering, cribbing, and roof bolting work 

which was done at the mine pursuant to the roof-control plan, and 

confirmed that the number 1 belt was cribbed on both sides 

"almost all the way from outside to in" (Tr. 235). He confirmed 

that the mine was "low seam" with a 34-40 inch seam, and that 

"rock will fall every now and then" because of weather changes 

(Tr. 236). 

2255 
Mr. Stapleton confirmed that Mr. Hacker helped him and 

Mr. LeMasters break up the rock in question and that Mr. Hacker 

used a sledge hammer on the rock while he and Mr. LeMasters were 

throwing the pieces out of the way. He also confirmed that 

Mr. Hacker said nothing to him about being hurt or going to the 

hospital, and if he had, he would have reported it. 

Mr. Stapleton stated that to his knowledge, the belt pull cords 

were operational (Tr. 237). 

Mr. Stapleton stated that when he came out of the mine after 

working on the belt sensor line on July 25, 1988, he saw no 

reasons why anyone could .not ride the belt out, and that "there 

was plenty of height over it" (Tr. 238). He confirmed that when 

he went back in to help Mr. Hacker break up the rock, he rode the 

belt in, and rode it back out after taking care of the rock (Tr. 

239). He was not aware of any violations on the belt that day, 

and the only other violations he was aware of were "maybe rock 

dust or something _like that" (Tr. 240) . 

Mr. Stapleton stated that he knows Inspector Myers and has 

observed him at the mine-two or three times, and that he was 

aware of no problems on the belt in question, or any problems 

with Mr. Myers stopping the belt. He confirmed that Windell 

Middleton has instructed him and Mr. Hacker not to shut the belt 

off when it is loaded with coal because it will not start up 

again (Tr. 241). Mr. Stapleton stated that he has worked for the 

Middleton's for 2 years and that "they're good people to work 

for." He has never known them to make any miners work in unsafe 

conditions (Tr. 241). 

Mark LeMasters confirmed that he has worked at the mine for 

18 months, and although he knew Mr. Hacker worked as a belt 

headman, he never worked closely with him. He recalled that on 

or after July 25, 1988, when Mr. Hacker did not come back to 

work, he was assigned to do his work on the belt head (Tr. 247). 

Mr. LeMasters stated that he performed this work for several 

days, and that he was then replaced by Rusty Ledford. He confirmed that he did work with Mr. Hacker making belt splices, and 

that he could recommend him for this work (Tr. 249). 

Mr. LeMasters stated that he observed no one get hurt while 

he and Mr. Stapleton were helping Mr. Hacker break up and load 

out the rock in question. Mr. Hacker was using an 8 or 10 pound 

sledge hammer to break up the rock, and said nothing to him about 

being hurt or that he had to go to the hospital. Mr. LeMasters 

stated that the mine was safe, and that he had never observed the 

Middleton's "harass Mr. Hacker or do anything out of the.way to 

Mr. Hacker." He confirmed that he filled in 4 or 5 days doing 

Mr. Hacker's job after he failed to return to work (Tr. 252). 

Mr. LeMasters stated that he had once quit working at the 

mine, but came back at a later time. He has never observed 

2256 
anything illegal going on at the mine, and had plenty of supplies 

to work with. He did not know whether his replacement Rusty 

Ledford worked at any other mine operated by the Middleton's (Tr. 

255) . 

Mrs. Mary Lynn Middleton, confirmed that she is Darrell 

Middleton's wife,~ and that she knows Mrs. Hacker, but does not 

know Mr. Hacker. She could not recall speaking with Mrs. Hacker 

on July 25, 1988, and did not recall Mrs. Hacker calling her that 

day. She also could not recall anyone calling her from a 

doctor's office or from a hospital to inquire as to any workmen's 

compensation insurance coverage at the mine (Tr. 256-257). 

on cross-examination, Mrs. Middleton stated that she operates a grocery store, is not employed at the mine, has no authority to clear workmen's compensation, and that she is not familiar 

with everyone working for her husband (Tr. 258). 

Respondent's Testimony and Evidence 

Windell Middleton, testified that he and his brother Darrell 

operate the mine as a partnership, and have operated it since 

October, 1987. Mr. Middleton stated that he is the mine superintendent and served as Mr. Hacker's supervisor. He confirmed that 

the number 1 belt is a designated man-trip and is equipped with 

functional pull cords, and that they were working in July, 1988. 

He confirmed that he advised the belt headman not to shut the 

belt down if it is loaded except if there is an emergency, and he 

explained that if the belts are shutdown while loaded, they will 

usually break if the belt is started again while still loaded 

with coal (Tr. 263). 

Mr. Middleton stated that Mr. Hacker could either ride the 

belt into the mine to his work station, or crawl in along a crawl 

space adjacent to the belt. He described the belt cribbing used 

for roof support, and the prevailing roof conditions, and he 

stated that bad top is always taken down when detected (Tr. 264). 

Mr. Middletbn confirmed that he hired Mr. Hacker as a belt 

headman, and that he had previously" quit his job because "he was 

scared over a piece of rock ... beside the belt." 

Mr. Middleton stated that the rock was taken down, but Mr. Hacker 

quit and was hired back after calling him for 2 weeks asking for 

his job back. Mr. Middleton confirmed that Mr. Elijah Myers is 

an MSHA inspector known as "Chaulk," and that he has inspected 

the mine 8 or 10 times since it was opened. He also confirmed 

that a state inspector is at the mine at least once every 

2 months conducting inspections (Tr. 266-267). 

Mr. Middleton stated that he has no knowledge of Mr. Hacker 

speaking with Inspector Myers prior to his complaint. He was 

aware of the fact that Mr. Myers visited the belt head where 

2257 
Mr. Hacker was working on one occasion, but he has no idea as to 

what they may have talked about (Tr. 268). Mr. Middleton stated 

that the citations he received in July of 1988 from Mr. Myers 

were citations for rock dust on the belt line, and a safeguard on 

the belt dealing with inadequate crawl space. He confirmed that 

the safeguard was complied with, and as long as the pull cords 

were working, adequate crawl space was not required, and that the 

safeguard only provided for an additional precaution. He confirmed that the violations were all abated (Tr. 270). 

Mr. Middleton stated that he first learned that Mr. Hacker 

was not coming to work when Mr. Brooks called him and informed 

him that he would need someone to watch the number two belt head. 

Mr. Brooks informed him that Mr. Hacker came to his home at 11 or 

12 p.m. on July 25, 1988, and told him that he was not going back 

to work at the mine because "he was scared of the mines and that 

he was going to tell us that he got his back hurt, cleaning that 

rock up" (Tr. 271). Mr. Middleton stated that he never saw a 

doctor's excuse for Mr. Hacker's absence from work and that no 

one ever mentioned such an excuse to him (Tr. 271). 

Mr. Middleton stated that after Mr. Hacker failed to report 

for work he assigned Mark LeMasters to watch the belt for 4 or 

5 days, and since Mr. Hacker had quit his job before, 

Mr. Middleton believed that he wOuld call him again and ask for 

his job back. Mr. Middleton stated that he waited 2 weeks to 

hear from Mr. Hacker before hiring Rusty Ledford to replace him, 

and when Mr. Hacker called him and informed him that he was ready 

to come back to work, Mr. Middleton told him that he thought he 

had quit and had hired someone else to replace him. 

Mr. Middleto.n stated that Mr. Hacker never called to inform him 

that he had been hurt, and that he has never seen a medical 

excuse of any kind. He confirmed that he made an inquiry into 

Mr. Hacker's alleged injury, and that Mr. Brooks and 

Mr. LeMasters told him that they had no knowledge of any injury 

sustained by Mr. Hacker, observed no injury, and that Mr. Hacker 

"didn't act like he was hurt" when he used a sledge hammer to 

break up the rock and throw it out of the way (Tr. 273). I 

Mr. Middleton stated that he operates a safe mine, has never 

threatened any mine inspectors, and he believed that Mr. Hacker 

filed the discrimination complaint because "he's too lazy to work 

and he wants somebody to hand him out something" (Tr. 273). 

Mr. Middleton confirmed that the company disputed Mr. Hacker's 

workmen's compensation claim, and that he had never harassed 

Mr. Hacker "or done anything out of the way to him" (Tr. 274). 

On cross-examination, Mr. Middleton stated that Mr. Brooks 

called him at the beginning of the shift on the morning of 

July 26, 1988, and informed him that he needed to have someone 

else watch the belt head because Mr. Hacker claimed that he hurt 

his back. Mr. Middleton confirmed that during his 9 or 10 months 

2258 
of employment, Mr. Hacker had the same job and could have ridden 

the belt to his work station or crawled in for a distance of 

3,500 feet to his work station. He stated that the belt head 

area where Mr. Hacker was assigned was at the end of the number 1 

belt line, and that this belt was the only permissible belt which 

could be ridden (Tr. 278). 

Mr. Middleton stated that Mr. Hacker had previously worked 

for him for 5 months before he quit, and that after returning, he 

worked for an additional 4 or 5 months. He stated that 

Mr. Hacker did his work "most of the time," but that he complained about his difficulty in loading the belt and did not want 

to "muck the belt line." Mr. Middleton stated that Mr. Hacker 

required assistance when making belt splices, and that he 

assigned Mr. Brooks to help him. When asked if Mr. Hacker ever 

complained about rock, Mr. Middleton responded "he didn't have to 

complain about it. All he had to do was tell us if he saw a 

loose piece of rock and we would go in there and take it down" 

(Tr. 279). Mr. Middleton stated further that "I don't think 

there was a man at the mine that liked him. Or liked to work 

with him or around him," including his brother-in-law John 

Brooks, who Mr. Middleton stated tried to talk him out of 

rehiring Mr. Hacker after he had quit his previous job at the 

mine (Tr. 281). 

Mr. Middleton confirmed that he also received a violation 

for the water dilute system on the belt head that Mr. Hacker was 

responsible for, and he explained that the safeguard required 

additional shoveling of a crawl space to be used in the event the 

pull cords were not working .. He confirmed that there were times 

when the cords were not working, but that they were always 

repaired when they broke down (Tr. 285). 

Mr. Middleton could not recall the date Mr. Hacker called 

him, but confirmed that when he called approximately a month 

after he last worked, that was the first time he had spoken with 

him about the matter (Tr. 285). Mr. Middleton explained further 

as follows at (Tr. 285-286): 

Q. And you had told him at that time that as far as 

you was concerned he had quit and that he didn't have 

his job? 

A. Well, that's what I had thought he had done. Like 

he done the first time. And I also told him, he 

started raving about his compensation. I told him, if 

he had just told me that he got hurt the day before he 

left work, we would have filled out an accident report 

on him, regardless whether he got hurt or not and he 

could have been drawing his compensation. 

2259 
Mr. Middleton stated that the number 1 belt line is a legal 

belt line and has been a designated mantrip with pull cords since 

the mine opened. He also stated that the MSHA inspector rides 

the same belt, and no inspector has ever advised him that the 

belt may not be ridden (Tr. 288). He stated that Mr. Hacker has 

never complained to him about any safety violations, and whenever 

he said anything to him about loose rock, "we always tried to 

take it down" (Tr. 289). Mr. Middleton also stated that when 

Mr. Hacker complained about dusty conditions at his belt head, he 

was permitted to leave the mine, and the belt would be shutdown 

at the face, ahd he would then return to his work station if he 

wanted to come back and would ride the belt back into the mine 

(Tr. 289). Mr. Middleton stated that his work rules require an 

employee to inform him about any injury before he leaves the 

mine, and he explained as follows at (Tr. 291-292): 

Q. The day Mr. Hacker left in July of 1988 were you 

mad at him about anything? 

A. No, I wasn 1t. 

Q. Okay. 

A. I thought everything was all right. I mean, I 

didn't know he was •••. I didn't know that he was 

mad at us or whatever. 

Q. And the first conversation you had with him, after 

he left the mines on July 25th of 1988 was August the, 

around August 16th, of 1988, almost a month later? 

A. Yes. I guess, I don't know what date it was. 

Q. If he'd came back to work on the 26th or 27th, 

would his job been available, of July? 

A. Well, if he'd just told me that he'd got hurt, you 

know. 

Q. What would you have done if he had told you he got 

hurt? 

A. I'd of filled out an accident report. 

have been drawing his comp. or whatever. 

told him on the phone when he called. 

He could 

Just like I 

Q. What's your normal procedure when you do have a man 

get hurt? What do you do? 

A. Well, I usually, we, you know, we've got signs up 

to report all injuries and accidents before you leave 

the work. You know, before leaving work. 

2260 
And, at (Tr. 296-297): 

JUDGE KOUTRAS: So, you're saying that had Mr. Hacker 

told you before leaving the mine that afternoon that, 

you know, I fell off the belt and hurt my back and 

might not be back to work tomorrow, that he would 

probably then have said, yeah, well, we'll s~e how it 

is or • . . 

THE WITNESS: No, there wouldn't been any probably 

about it. I would have filled an accident report out 

on him, then, and we would have turned it in so he 

could have got his benefits. 

JUDGE KOUTRAS: Well, an accident report, a reportable 

accident has to result in some injury, doesn't it? 

THE WITNESS: Yes. But I would have went ahead and 

filled out an accident report. 

JUDGE KOUTRAS: You ever had occasion to do that in the 

past? Fill an accident report on employees that are 

knocked about or get hurt? 

THE WITNESS: Yes, we have. 

Mr. Middleton believed that Mr. Hacker concocted his claim 

of injury, and that Mr. Hacker had previously advised him that he 

had sued someone over a back injury resulting from an· automobile 

accident (Tr.. 295) . Mr. Middleton also believed that Mr. Hacker 

quit his job because he was afraid to work in the mine (Tr. 298). 

Mr. Mid91eton denied that anyone ever required Mr. Hacker to 

ride the belt into the mine, and that Mr. Hacker had the option 

of riding the belt or crawling into the mine to reach his work 

station. He confirmed that there is no prohibition against 

anyone stopping the belt when its empty, and that he has 

instructed Mr. Hacker not to turn off the belt if it is loaded 

except in an emergency (Tr. 300). Mr. Middleton denied any 

knowledge of Inspector Myers having any qifficulty with the belt 

or getting someone to shut it down, and that this never came to 

his attention. He also denied ever being cited for his failure 

to cooperate with an inspector or for obstructing any inspection 

(Tr. 303) . 

Darrell Middleton testified that he is the president and 

part owner of the company, but that his brother oversees the 

operation of the Black Streak Mine "mostly on his own" (Tr. 310). 

Mr. Middleton stated that he was familiar with the number 1 belt, 

and he confirmed that it is a designated mantrip which the belt 

headman may use to reach his work station. He stated that the 

2261 
belt headman could also crawl to his work station, "or go around 

to the other side of the mountain and ride the scoop and crawl 

the other belt" (Tr. 311). Mr. Middleton stated that the mine is 

preshifted by his brother, and that all reports are kept at the 

mine office located on the "Flatland side" of the mine (Tr. 312). 

Mr. Middleton stated that he was not present at the mine on 

July 25, 1988, when Mr. Hacker was reportedly injured, and that 

during an inquiry into the matter, he spoke with Mr. Stapleton, 

Mr. LeMasters, and Mr. Brooks, and when they could not confirm 

that Mr. Hacker had been injured, no accident or compensation 

report was made (Tr. 313). Mr. Middleton denied that he ever 

threatened any mine inspector, and that apart from a dust violation on the number 1 belt, he was unaware of any other violations 

on the number 1 belt. He confirmed that training is provided for 

all of the miners, and he believed that Mr. Hacker filed his 

discrimination complaint "when we objected to him being on compensation" (Tr. 314). He confirmed that the company has never 

had any prior discrimination claims filed against it (Tr. 314). 

On cross-examination, Mr. Middleton confirmed that he spoke 

with Mr. Hacker's wife a week or two after July 25, 1988, and 

that she initiated the call. He stated that he spoke with her 

two or three times and that she wanted to know about compensation 

for her husband. Mr. Middleton stated that the only time he 

spoke with Mr. Hacker was when he called to inquire how he would 

respond to his discrimination claim, and that he never spoke with 

him about his compensation. Mr. Middleton confirmed that he 

discussed Mrs. Hacker's calls with his brother, and after speaking with the other individuals who were present on July 25, 1988, 

when Mr. Hac~er claimed he was injured, they decided not to fill 

out any accident report in order to protect their compensation so 

that their costs would not be increased (Tr. 316). 

Mr. Middleton questioned the reason for Mr. Hacker's 

attempting to ride the belt back out of the mine knowing the 

existence of the rock which he encountered while riding the belt 

in to work, and stated that he and his brother concluded that 

Mr. Hacker had ridden the belt out of the mine so that he could 

claim that he was hurt. Mr. Middleton believed that Mr. Hacker 

should have called the outside man to shutdown the belt and have 

the rock taken down before attempting to ride the belt out of the 

mine (Tr. 318). Mr. Middleton stated that he later learned of 

Mr. Hacker's pre-existing back injuries, and that the respondent 

decided- to settle his compensation claim rather than to pay a 

lawyer to dispute it (Tr. 320). 

Mr. Brooks was recalled by the court, and he stated that 

when he informed Windell Middleton about Mr. Hacker's claimed 

back injury, he did not believe that he told him that Mr. Hacker 

would claim that he was hurt, but told him that Mr. Hacker said 

2262 
that he had hurt himself, and that he (Brooks) had no knowledge 

that Mr. Hacker had been injured (Tr. 332-333). 

Mr. Hacker was recalled by the court, and he confirmed that 

the only thing he told Mr. LeMasters and Mr. Stapleton was that 

"I took a pretty good jolt," and that he did not tell them that 

he had jumped off the belt to avoid the rock (Tr. 336). 

Mr. Hacker confirmed that he had a pre-existing back injury which 

occurred in January, 1982, when he was in a truck accident and 

that he had a fusion done on his lower back. Mr. Hacker was not 

sure whether he disclosed this injury on his application form 

when he applied for work with the respondent, but stated .. that he 

informed the Middleton's about his prior surgery and that they 

knew about it (Tr. 338). 

Mr. Hacker explained that he took the doctor's slip to 

Mr. Brooks so that he could take it to work with him, and he 

confirmed that he did not call the mine or Mr. Middleton the day 

following his injury, and that his wife did the calling (Tr. 

340-341). 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Fasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.· 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 

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

Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981), rev'd on other grounds sub nom. Donovan v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator 

may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way 

motivated by protected activity. If an operator cannot rebut the 

prima facie case in this manner it may nevertheless affirmatively 

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

unprotected activities alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma 

Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of 

persuasion does not shift from the complainant. Robinette, 

supra. See al~o Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); 

and Donovan v. Stafford Construction Company, No. 83-1566 D.C. 

Cir. (April 20, 1984) (specifically-approving the Commission's 

Fasula-Robinette test). See also NLRB v. Transportation 

Management Corporation, U.S. , 76 L.ed.2d 667 (1983), 

where the Supreme Court approved the NLRB's virtually identical 

2263 
analysis for discrimination cases arising under the National 

Labor Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983); 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). 

As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in 

NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 

1965): 

It would indeed be the unusual case in which the 

link between the discharge and the [protected] activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial 

evidence. Furthermore, in analyzing the evidence, 

circumstantial or direct, the [NLRB] is free to draw 

any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity; 

coincidence in time between the protected activity and the 

adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

Mr. Hacker's Protected Activity 

It is clear that Mr. Hacker enjoys a statutory right to 

voice his concern about safety matters or to make safety complaints to a mine inspector without fear of retribution or 

harassment by management. Management is prohibited from interfering with such activities and may not harass, intimidate, or 

otherwise impede a miner's participation in these kinds of 

activities. Secretary of Labor ex rel. Pasula v. Consolidation 

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

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

(3d Cir. 1981), and Secretary of Labor ex rel. Robinette v. 

United Castle Coal Co., 3 FMSHRC 803 (April 1981). Baker v. 

Interior Board of Mine Operations Appeals, 595 F.2d ~46 (D.C. 

Cir. 1978); Chacon, supra. 

In his posthearing brief, Mr. Hacker's counsel asserts that 

the respondent discharged Mr. Hacker after he was injured on 

July 25, 1988, and that the respondent's refusal to hire him back 

was based on the fact that approximately a week prior to his 

2264 
injury, Mr. Hacker spoke to an MSHA inspector who was at the mine 

conducting an inspection and complained to the inspector about 

the working conditions and safety at the mine. Counsel argues 

that the respondent retaliated against Mr. Hacker for complaining 

to the inspector by not hiring him back. 

In response to the respondent's contention that Mr. Hacker 

failed to return to work on July 26, 1988, after his purported 

injury, and failed to notify mine management that he was injured 

and would not be returning to work, counsel asserts that 

Mr. Hacker produced medical evidence to support his injury, and 

that the evidence establishes that Mr. Brooks informed management 

that Mr. Hacker would not be returning to work on July 26, 1988, 

because he was complaining to have been injured and that the wife 

of one of the co-owners of the mine gave her approval for the 

hospital treatment of Mr. Hacker's injury. Counsel concludes 

that this supports a conclusion that the respondent was aware 

that Mr. Hacker had been injured and would not be returning to 

work because of those injuries, and that its denials to the 

contrary were made in order to avoid the fact that Mr. Hacker was 

discharged for complaining to the inspector. 

The record in this case establishes that Mr. Hacker failed 

to call Inspector Myers to testify in this case, and also failed 

to obtain his pretrial deposition. I take particular note of the 

fact that at the time Mr. Hacker filed his complaints with MSHA 

and with the Commission, he did not allege that he was discharged 

because of any protected activities. The thrust of both complaints focused on the failure by the respondent to acknowledge 

Mr. Hacker's purported injury and to agree to pay him· workmen's 

compensation.. Mr. Hacker's contention that the respondent fired 

him, or refused to rehire him, was raised during the course of 

the hearing when Mr. Hacker first suggested that the respondent 

discharged him because he informed Inspector Myers that he rode 

the belt into the mine to his work station, and that the belt 

stop cord was inoperable. Mr. Hacker asserted that the inspector 

issued several violations on the belt, including violations for 

riding the belt and the inoperative cord, and that the inspector 

also accused him of impeding his inspection for not shutting the 

belt down to facilitate the inspection. Mr. Hacker suggested 

further that the respondent was aware of his conversation with 

the inspector and discharged him because his complaints to the 

inspector resulted in violations being issued to the respondent 

because of the illegal belt conditions revealed by Mr. Hacker to 

the inspector. 

I find no credible or probative evidence in this case to 

establish that Mr. Hacker's conversation with the inspector 

amounted to a safety complaint. The inspector did not testify, 

and there were no witnesses to the conversation. Mr. Hacker 

conceded that he did not inform the Middletons about his conversation with the inspector, and there is no evidence that the 

2265 
inspector ever spoke to management about the encounter with 

Mr. Hacker. Further, Mr. Hacker admitted that he had never filed 

any safety complaints with MSHA or management, had never reported 

any safety violations to MSHA, and had never spoken to any 

inspectors other than Mr. Myers. 

Mr. Hacker testified that his conversation, or "chit chat" 

with Mr. Myers was about the belt "in general," and that when he 

informed the inspector that he rode the belt into the mine, the 

inspector informed him that he should not do this because of the 

lack of clearance. Mr. Hacker also alluded to the fact that the 

inspector was angry at him for not shutting the belt down so that 

it could be inspected. Mr. Hacker believed that the inspector 

issued a violation for interfering with his inspection, and also 

issued some violations for certain belt conditions. Mr. Hacker 

also believed that riding the belt was illegal, and he contended 

that the belt stop cords had never been operational during the 

entire time that he worked at the mine. 

Windell Middleton, who was Mr. Hacker's immediate supervisor, denied any knowledge of Mr. Hacker's conversation with the 

inspector, and there is no evidence that his brother Darrell was 

aware of any such conversation. As the mine superintendent, 

Windell Middleton exercised day-to-day supervision of the mining 

activities,· and he confirmed that the No. 1 belt in question was 

a designated mantrip, and that the belt was equipped with operating stop cords. Mr. Middleton acknowledged that Inspector 

Myers issued some citations for certain belt conditions, but 

denied being cited for impeding any inspections or because of 

anyone riding the belt illegally. 

Mr. Hacker's counsel submitted copies of all citations 

issued by MSHA inspectors at the mine from October, 1987, through 

July 25, 1988. Included in these submissions are several section 

104(a) citations issued by Inspector Myers on July 13, and 18, 

1988. Some of the citations were issued on the Nos. 2, 3, and 4 

belts, and two were issued on the No. 1 belt because of the lack 

of water sprays and a slippage switch at the belt conveyor drive. 

I find no indication that any of the citations were issued 

because of the respondent's purported interference with the 

inspector's inspection, or because of the respondent's purported 

illegal use of the belt as a mantrip. Further, in each instance, 

Inspector Myers noted that the mine was not in production during 

his inspections of July 13 and 18, 1988, and he extended the 

citations. All of the citations were ultimately terminated after 

the respondent abated the conditions. 

Mr. Hacker's brother-in-law, John Brooks, confirmed that he 

was not aware of any pull cord violations, or any violations by 

Inspector Myers because of the lack of cooper~tion by the respondent during an inspection. Mr. Brooks confirmed that Mr. Hacker 

told him he did not like riding the belt under the rock, but that 

2266 
he was unaware of any safety complaints made by Mr. Hacker to 

management or anyone else. 

Mr. Brooks stated that Mr. Hacker never complained to him 

about any safety violations, never indicated to him that management did not care about safety, and that Mr. Hacker got along 

well with management. 

Miners Jimmy Stapleton and Mark LeMasters, testified that 

they were unaware· of any "illegal" activities at the mine. 

Mr. Stapleton was not aware of any problems on the belt or with 

Inspector Myers. He believed that mine management were "good 

people to work for" and he has never known management to assign 

miners to work in unsafe conditions. Mr. LeMasters stated that 

he has never known management to harass Mr. Hacker or "do anything out of the way" to him. 

After careful consideration of all of the testimony and 

evidence adduced in this case, I cannot conclude that Mr. Hacker 

filed any safety complaint with Inspector Myers. Even assuming 

that one could conclude that Mr. Hacker's conversation with the 

inspector amounted to a safety complaint, I find no credible or 

probative evidence to establish, or even suggest, that the 

Middletons were aware of any such conversation, or that the 

citations issued by Mr. Myers resulted from any safety complaints 

lodged by Mr. Hacker. According to the MSHA "type of inspection" 

code found in item 19 on the face of the citations (CBA), 

Mr. Myers was conducting a regular electrical inspection of the 

entire mine, and I can only conclude on the basis of the evidence 

presented in this case that he issued the citations in the normal 

and routine course of his inspections after observing the cited 

conditions independent of any conversations that he may have had 

with Mr. Hacker. 

Mr. Hacker testified that after speaking with the inspector, 

his pay and job status were not affected, and that the respondent 

displayed no anger towards him. He also agreed that management 

never told him that he was being fired, that he got along well 

with management, was always paid his wages on time, and that the 

Middletons never gave him a "hard time." Mr. Hacker confirmed 

that Windell Middleton hired him back after he had previously 

quit his job at the mine. I find no evidence that the Middletons 

ever harassed, threatened, or intimidated Mr. Hacker because of 

any safety matters or protected activity, or that they treated 

him any differently from other employees. Mr. Hacker conceded 

that the Middletons "were good men to work with and work for" 

(Tr. 66). 

On the basis of all of the evidence and testimony adduced in 

this case, I agree with the respondent's contention that the 

dispute in this case between Mr. Hacker and the Middleton 

brothers arose as a result of the respondent's challenge to 

2267 
Mr. Hacker's.workmen's compensation claim in connection with his 

purported injury of July 25, 1988. Mr. Hacker admitted as much 

several times during the course of his testimony, and his consistent claim prior to the hearing focused on the respondent's 

refusal to acknowledge that his injury was job related and that 

he was entitled to any compensation for his purported injury. 

The record reflects that the respondent settled the compensation 

claim on the day before the hearing in this case (see copy of 

agreement award submitted by Mr. Hacker's counsel). Mr. Hacker 

testified that although he is able to work, he did not look for 

any work after his injury because of his pending compensation 

claim. This raises a strong inference that Mr. Hacker did not 

want to return to work for fear of jeopardizing his workmen's 

compensation claim. 

The record establishes that Mr. Hacker's last day of work 

was July 25, 1988, when he claimed that he injured his back. 

Darrell Middleton testified that Mr. Hacker never communicated 

with him again until he called to find out how he (Middleton) 

would respond to his discrimination complaint. Mr. Middleton 

confirmed that he spoke with Mrs. Hacker several times after 

July 25, 1988, and that the conversations focused on Mr. Hacker's 

compensation claim for his injury. Mrs. Hacker's testimony 

reflects that any conversations that she had with the Middleton 

brothers were in connection with her husband's claimed injury and 

his compensation claim, and she conceded that nothing was ever 

said about her husband returning to work at the mine. As a 

matter of fact, Mrs. Hacker's brother, John Brooks, testified 

that Mrs. Hacker did not want Mr. Hacker working underground 

because of his fear of the belt and the rock. Mr. Brooks confirmed that Mr. Hacker had told him on several prior occasions 

that he did not like working underground, and Mrs. Hacker confirmed that her husband always complained about the rock because 

he "was not used to coal mining." 

Windell Middleton testified that he heard nothing further 

from Mr. Hacker concerning his claimed back injury and has never 

seen any medical excuse attesting to his claimed injury. 

Mr. Middleton confirmed that when Mr. Hacker failed to report for 

work after July 25, 1988, he assigned his job duties to 

Mr. LeMasters for 4 or 5 days, believing that Mr. Hacker would 

contact him and ask for his job back as he had done on a prior 

occasion when he quit his job. After waiting for 2 weeks to hear 

from Mr. Hacker, Mr. Middleton hired someone else to replace him, 

and when Mr. Hacker finally called on the advice of an MSHA 

inspector who was looking into his discrimination complaint, 

Mr. Middleton informed Mr·. Hacker that he thought he had quit his 

job and that someone else had been hired to replace him. 

Mr. Hacker admitted that his first contact with Mr. Middleton 

about his job came on August 16, 1988, approximately 3 weeks 

after he claimed injury, and he conceded that neither Windell or 

2268 
Darrell Middleton ever said anything to him to indicate that he 

had been fired .• 

All of the witnesses who were working with Mr. Hacker on the 

evening of his claimed back injury were consistent in their 

testimony that Mr. Hacker showed no visible physical signs of any 

injury, and that he never complained to them about any injury or 

the need for any medical attention. I believe that Windell 

Middleton's doubts concerning Mr. Hacker's claimed back injury, 

and his reluctance to agree to the workmen's compensation claim, 

were based on the information given him by these witnesses, and 

the fact that Mr. Hacker failed to promptly and directly communicate with him regarding his asserted injury. I also believe that 

Mr. Middleton's doubts were influenced by the fact that 

Mr. Hacker had previously abandoned or quit his job because· of 

his fear of underground mining, that he had sued someone in the 

past over a back injury received in a traffic accident, and 

Mr. Middleton's view that Mr. Hacker was "too lazy to work" and 

was looking for a "handout." 

Having viewed the Middleton brothers during the course of 

their testimony in this case, I find them to be straightforward 

and credible individuals. I find no credible or probative evidence to establish, either directly or indirectly, that the 

refusal by Windell Middleton to give Mr. Hacker his job back 

after he finally contacted Mr. Middleton was motivated in any way 

by Mr. Hacker's conversation or contact with MSHA Inspector 

Elijah "Chaulk" Myers, the filing of any complaint with 

Mr. Myers, or any other protected activity on the part of 

Mr. Hacker. 

I find no credible or probative evidence in this case to 

establish that Mr. Hacker was either directly or indirectly 

discharged by the respondent. To the contrary, I conclude and 

find that on the facts here presented, Windell Middleton.had a 

reasonable and plausible basis for concluding that Mr. Hacker 

voluntarily quit his job as he had done before, and that the 

hiring by Mr. Middleton of another individual to replace 

Mr. Hacker was not illegal or discriminatory under the Act. In 

short, I conclude and find that Mr. Hacker has failed to make out 

a case of discrimination. 

ORDER 

In view of the foregoing findings and conclusions, and on 

the basis of the preponderance of all of the credible and probative evidence.adduced in this case, I conclude and find that the 

2269 
complainant has failed to establish that the respondent discriminated against him. Accordingly, the complaint IS DISMISSED, and 

the complainant's claims for relief ARE DENIED. 

~~: 

~~/ Kout~ £'~~---_, · 

Administrative Law Judge 

Distribution: 

John c. Carter, Esq., 117 West Central Street, Harlan, KY 40831 

(Certified Mail) 

Otis Doan, Jr., Esq., 119-A First Street, Harlan, KY 40831 

(Certified Mail) 

/fb 

2270 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

MICHAEL A. CARRANO, 

Complainant 

v. 

BLUE CIRCLE ATLANTIC, INC., 

Respondent 

91989 

DISCRIMINATION PROCEEDING 

Docket No. YORK 89-47-DM 

MD 88-79 

DECISION APPROVING SETTLEMENT 

This proceeding was brought by the Secretary of Labor in 

behalf of Michael A. Carrano, under§ 105(c)(2) of the Federal 

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

certain corrective relief to undo the effects of alleged 

discrimination against him, and for a· civil penalty for an 

alleged violation of § 105(c) of the Act. 

The parties have moved for an order approving a proposed 

settlement. I have considered the representations and 

documentation submitted and I conclude that the proferred 

settlement i$ consistent with the criteria in§§ 105(c) and 

llO(i) of the Act. 

ORDER 

WHERFORE IT IS ORDERED that: 

1. The motion for settlement is GRANTED. 

2. Respondent shall comply with all the terms of the 

settlement herein. 

3. Respondent shall pay a civil penalty of $400 within 30 

days of this Decision. 

4. Subject to full compliance with the above, this 

proceeding is DISMISSED. 

&lit,,;,,, 1-~v~ William Fauver 

Administrative Law Judge 

2271 
Distribution: 

Jane S. Brunner, Esq., Office of the Solicitor, U. s. Department 

of Labor, 201 Varick Street, New York, NY 10014 (Certified Mail) 

Mr. Thomas P. Marnell, Director of Personnel, Mr. Paul w. 

Gardner, Labor Rel~tion Safety Manager, Blue Circle Atlantic 

Inc., Post Office Box 3, Ravena, NY 12143 (Certified Mail) 

iz 

2272 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 13 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

ON BEHALF OF FRED BARTLEY, 

Complainant 

v. 

ADAMS STONE CORPORATION, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 89-102-DM 

Jenkins Quarry 

SUPPLEMENTAL DECISION 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for Complainant; David Adams, Esq., 

Vice-President, Adams Stone Corporation, 

Pikeville, Kentucky, for Respondent. 

Before: Judge Broderick 

On October 18, 1989, I issued a decision on the merits in 

the above case in which I determined that the layoff of Fred 

Bartley by Respondent on March 29, 1988, was in violation of 

section 105Cc) of the Mine Act. I ordered that he be paid back 

wages from the date of the layoff to the date of his 

reinstatement with interest thereon computed in accordance with 

the Commission decision in UMWA v. Clinchfield Coal Co., 10 

FMSHRC 1493 {1988), as we11--as-other benefits to which he was 

entitled and which were withheld during the time of· his layoff. 

I directed that Res~ondent be given credit for the amount paid as 

back wages following the arbitrator's decision which reinstated 

him to his position as crusher operator. I directed the parties 

to attempt to agree on the amount due under my order, failing 

which, I directed the Secretary to submit a statement, within 20 

days of the date of the decision, of the amount due. Respondent 

was given 10 days thereafter to reply. On October 23, 1989, the 

Secretary filed a statement of the amount claimed as back wages. 

Respondent has not replied to the statement. 

I have considered the Secretary's statement, and the record 

in this proceeding, and on the bases thereof, IT IS ORDERED: 

1. The findings, conclusions and orders of the decision 

issued October 18, 1989, are REAFFIRMED. 

2273 
2. Respondent shall, within 30 days of the date of this 

Supplementary Decision, pay to Complainant the sum of $4,770.45 

representing back wages still owing, vacation pay still owing and 

interest to October 16, 1989. From October 16, 1989 until the 

total amount is paid, Respondent shall pay 1.10 per day interest. 

3. Respondent shall, within 30 days of the date of this 

Supplementary Decision pay to the Secretary a civil penalty in 

the amount of £.1000 for the violation of section 105(c) of the 

Act. 

4. This decision is FINAL • 

' . .,,;' 

Distribution: 

. 't /f J;\' j . I~ 

f

, ' .. ~1:.~ .. ':f/f, . ·,·•o;J ;'7/_.P..._ -. _, '·~l··· 1· , 1 ·........_._, 

.James A. Broderick 

Administrative Law Judge 

Thoma3 A. Grooms, Esq., U.S. Department of Labo.-r, Office of the 

Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Mr. David H. Adams, Vice President, Adams Stone Corporation, P.O. 

Box 2320, Pikeville, KY 41501 (Certified Mail) 

slk 

2274 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 13 1989 

SECRE'rARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFE~Y AND HEALTH 

ADMINISTRA'rION, (MSHA), 

Petitioner 

v. 

BE·rH ENERGY MINES, INC., 

Respondent 

Docket No. PENN 89-152 

A.C. No. 36-00840-03681 

Cambria Slope No. 33 

DECISION APPROVING SETTLEMENT 

Appearances: Paul.D. Inglesby, Esq., U.S. Department of Labor, 

Office of the Solicitor, Philadelphia, Pennsylvania, 

for Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh, 

Pennsylvania for Respondent. 

Before: Judge Melick 

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 (the Act). At hearing Petitioner has 

filed a motion to approve a settlement agreement and to 

dismiss the case. A reduction in penalty from $3,147 to $297 

was proposed. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set 

forth in Section llO(i} of the Act. 

WHEREFORE, the motion for approval of se 

GRANTED, and it is ORDERED that Respondent pa 

$297 within 30 days of this order. 

Gary Me ick. 

Adminis ative Law Judge 

(703) 7--1 -6261 

2275 

of 
Distribution: 

Paul D. Inglesby, Esq., U.S. Department of Labor, Office of 

the Solicitor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant Street, 

58th Floor, Pittaburgh, PA 15219 (Certified Mail) 

nt 

2276 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 13 1989 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SA~ETY AND HEALTH 

ADMINISTRATION, CMSHA), 

on behalf of 

DAN NELSON, 

RONALD SONEE'F, 

TOMMY BOYD, 

STAt~LEY ODOM, 

CARROLL JOHNSON, 

Complainants 

and 

Docket No. SE 89-63-D 

Case No. OTC&I-CD-88-01 

Mine No. 7 

UNITED MINE WORKERS OF AMERICA: 

Intervenor 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

DECISION 

AND 

ORDER OF15ISMISSAL 

Appearances: Colleen Geraghty, Esq., Office of the Solicitor, 

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

for Complainants; · 

Patrick K. Nakamura, Esq., Longshore, Nakamura, 

and Quinn; Birmingham, Alabama, for United Mine 

Worker of America; 

David M. Smith, Esq., Maynard, Cooper, Frierson 

and Gale; Birmingham, Alabama, for Petitioner. 

Before: Judge MelicK 

Complainant requests approval to withdraw her Complaint in 

the captioned case on the grounds that the parties have reached 

a mutually agreeable settlement of the underl~ing issue. Under 

the circumstances herein, permission to withdoaw is granted. 

29 C.F.R. § 2700.11. This crse i( therefore 1ismissed. 

!'-- , , '.(t lJ.-, "--, ' . , ,f 

M . k I: ./I_,(__~ Gary e ic ·· - · I / \' Adminis~rative Law Judge 

c 703) ~6-6261 If 

l 

2277 
Distribution: 

Colleen Geraghty, Esq., Office of the Solicitor, Department of 

Labor, 4015 Wilson Boulevard, 4th F~oor, ALlington, VA 22203 

{Certified Mail) 

Patrick K. Nakamura, Esq., 2101 City Federal Building, 

Birmingham, AL 35203 {Certified Mail) 

David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C., 

12th Floor Watts Bldg., Birmingham, AL 35203 {Cercified Mail) 

nt 

2278 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 15 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

AOMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DF.CISION 

Docket No. WEVA 89-52 

A.C. No. 46-01318-03850 

Robinson Run No. 95 Mine 

Appearances: Ronald Gurka, Esq., Office of the Solicitor, 

u. s. Department of Labor, Arlington, Virginia, for 

the Secretary; 

Michael R. Peelish, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for Respondent. 

Beforei Judge Weisberger 

Statement of the Case 

On December 30, 1988, the Secretary (Petitioner> filed a 

petition for assessment of civil penalty, alleging a violation by 

the Operator (Respondent) of 30 C.F.R. § 75.1725(a). Respondent 

filed an Answer on January 30, 1989. On April 7, 1989, this case 

was reassigned to the undersigned and pursuant to notice, the 

case was heard on August 9 - 10, 1989, in Morgantown, West 

Virginia. Bretzel W. Allen and Stephen G. Sawyer testified for 

Petitioner. Bernard W. Koleck, Kenny Henline, and Larry D. Patts 

testified for Respondent. Post Hearing Briefs were filed by 

Respondent and Petitioner, respectively, on October 16, and 18, 

1989. 

St!pulations 

1. The Parties have stipulated that Consolidation Coal 

Company is a large coal mine operator. 

2. The Parties have stipulated that Robinson Run No. 95 

Mine is a large mine. 

2279 
3. The Parties have stipulated that the history of previous 

violations reveals a total of 997 assessed violations and 

1,016 inspection days in a 24-month period preceding the order at 

issue in this case for a ratio of .98.violations per inspection 

day. 

4. Parties stipulate that assessment of a civil penalty in 

this case would not affect Consolidation Coal Company's ability 

to continue in business. 

5. The Parties stipulate that a withdrawal order pursuant 

to section 104Cd) of the Mine Act had been issued within the 

90-day period preceding the issuance of the order at issue in 

this case. 

~ind~ngs of Fact and Conclusions of Law 

On August 29~ 1988, Bretzel w. Allen, an MSHA Inspector, 

observed "excessive wear" on both ends of a wheel axle on a belt 

tension unit. He issued a section 104(2)(d) Order (Order 

No. 3117715) alleging a violation of 30 C.F.R. § 75.1725(a). 

The belt tension unit in question has two axles, each of 

which has two wheels, which ride on tracks or I beams. The unit 

is attached to the belt line and controls the pressure on the 

belt line. The tension on the belt line is adjusted by an 

hydraulic jack which is attached to the belt tension unit by a 

tension rope. This rope allows the tension unit to ride back and 

forth on the I beams, thus adjusting the tension on the belt line 

to which it is connected. The belt tension unit is equipped with 

vertical guide rollers to prevent the wheels and carriage from 

moving in a lateral direction.~/ 

Section 75.1752(a), in essence, requires that mobile and 

stationary equipment and machinery shall be maintained in "safe" 

operating condition and if, "in unsafe condition," the equipment 

shall be removed from service immediately. The axle in question 

had been, according to the uncontradicted testimony of Allen, 

worn at both ends. At one end CBxhibit J-3, J-5) it had been 

worn from an original diameter of 30.5 millimeters to a diameter 

of 21 millimeters. Allen opined that the axle was unsafe due to 

the amount of wear, and its color observed by him to be a shiny 

silver to deep blue, which indicated that it was over-heated and 

17" Petitioner's evidence is insuf fLcient to establish that the 

subject unit did not have such rollers as depicted in Joint 

~xhibit 4, Section E-B. Allen's statement, that he did not 

recall seeing these vertical guide rollers when he issued the 

Order in question, does not negate their existence. 

2280 
that its temper h.:id changed.~/ According to Allen, the amount of 

wear on the axle .:ind the color, which indicated that the tem9er had 

changed, led him to conclude that the a.1Cle could fail at any tiine. 

Respondent's witnesses did not ~eny the amount of wear on 

the axle, as testified to by ~llen, but opined that it nonetheless was safe. Larry D. Patts, Respondent's Assistant Vice 

President in charge of safety, opined that the axle, made out of 

1020 steel, is ductile, and that accordingly, with continued 

we.:ir, •.vo._1ld bend before it would break. Not much weight was 

acco~ded his opinion .as he indicated on cross-examination that 

ductile material can fail in a brittle Eashion. 

Koleck presented mathematical calculations as to the maximal 

Qrincipal stress (or ~ctaal applied load) to which the axle in 

question is subjected. He indicated that this figure takes into 

account shear stress, which is based on the weight of the cart 

and tension of the -belt, and the bending stress, which is based 

on the weight of the carriage and the Eorce of the belt. By 

dividing the minimum strength of the material of the axle (as set 

Eorth by manufacturers of the steel) by the maximal principal 

stress, he arrived at a safety Eactor of 1.27. Essentially, 

according to Koleck, a safety factor of 1.27 indicates that the 

aKle was safe, as bendin,~ would occur if the safety factor was 

less than 1. 

Petitioner presented a Le'outtal witness, Stephen G. Sawyer, 

who did not contradict Koleck's calculations. However, Sawyer 

indicated that Koleck's calculations did not take into account 

the effect of fatigue, i.~., the stress on the axle caused by 

repeated loading and unloading the belt, which would be between 

40 and 60 percent of the manufacturer's figure for tensile 

strength.~/ 

2/ Although the axle was covered by a wheel and washer, that 

9rotruded from the wheel approximately a quarter of an inch, and 

extended from the a~le a?proximately l inch, Allen indicated that 

he observed the the color of the axle which he indicated was not 

entirely covered by the wheel. In this regard, Bernard w. Koleck, 

Respondent'3 S-=nior 'Maintenance Engineer, indicated that some wear 

could be seen without taking off the wheel. Further, no witnesses 

contradicted Allen's description of the color of the axle at the 

time of the citation. I thus accept his testi1nony. 

~/ Although on cross-examination it was elicited that when calculated., 60 percent of tensile strength a9proxiiM.tes the Eig'-lre 

that Koleck arrived at Eor ma~imum principle stress. I can not 

conclude that Koleck too~ into account the fatigue or yield 

stress, as that is not explicitly referred to in his t~stimony or 

in his calculations (Respondent's Exhibit R-1). Nor was Koleck 

recalled to rebut Sawyer's tes ti:nony, al though Respondent was 

given the opportunity to call rebuttal witnesses. 

2281 
Sawyer opined that, in essence, should the axle fail, 

fatigue strength would be the governing mode, not yielding 

strength, and it would fail from fatigue in a sudden and brittle 

fashion. Also, Sawyer explained that, due to galling (see the 

ridges and bumpa on Exhibit J-5), caused by two metals rubbi.ng 

together, the fatigue 3trength can be reduced by up to 90 percent. 

According to Sawyer, the effect of the abrupt change in the 

diameter of the axle due to its wear (see the parallel lines in 

Exhibit J-5), was ignored by Koleck. Although this change was 

co•npensa ted for by Koleck, the effect of the c"hange "is very 

c r. i tical" in estimating fatigue strength (Tr. 3 99) • Sawyer also 

indicated that, according to current prudent engineering 

practice. a safety factor should not be less than 1.5. 

Although Patts and Koleck are engineers, and the former has a 

Bachelor's degree in metallurgy and has expertise in failure 

analysis, I find Sawyer, who is a 9rofessional engineer, to be 

the .no re t'el i able ex9ert witness. In this connection, I place 

considerable weight on Sawyer's educational background which 

includes Masters and Doctorate Degrees, with a specialty in 

fracture mechanics. I found his testimony to be well reasoned. 

For these reasons I accept his testimony. 

The Order in question alleges a violation herein of 30 C.F.R. 

§ 75.1725(a), which, in essence, requires that equipment be 

maintained in a safe condition, and that unsafe equipment shall 

be immediately removed. Webster's Third New International 

Dictionary, 1986 Edition, (Webster's) defines "safe" as "l. 

free Erom da1nage, danger, or injury, secure .••. " Webster's 

defines "free from" as "(a) lacking; without." "Danger" is 

defined in Webster's as "3. liability to injury, pain, or loss: 

PERIL, RISK •... " I find that the axle in question had worn 

from a diameter of 38.5 to 31 millimeter (Joint Exhibit 3). 

Considering this degree of wear, as well as the effect of 

galling, the abrupt change in the axle diameter caused by the 

wear, as well as the impact of Eatigue stress, as set forth in 

Sawyer's testimony that I accept, I find that there was a risk of 

the axle failing. As such, a9plying the common uses of the the 

term "safe," as defined in Webster's, infra, I conclude that the 

axle was not safe. Thus, I find that Respondent herein violated 

section 75.1725(a), supra. 

II. 

According to Allen, the axle had overheated as evidenced by 

its blue color, and was "a definite ignition source for coal dust 

(Tr. 61). Essentially he indicated that there was a 

"oossibility" (Tr. 61) of a fire, as it is normal ta have some 

c~al du.st an carciage '.)arts and the coal dust on the carriage was 

not wet. He indicated that should a fire occur, it would be 

2282 
dangerous to the miner ~ho normally works approximately 22 feet 

Erom the carriage. He also indicated that if the ~xle would 

break, it would cause a slldden stopping of the belt -;.vhich would 

callse the belt to break. According to Allen, in that event a 

~erson could be injured, from the whipping action of the belt or 

from mat.erial flying off the belt. In such an event a person 

walking alongside the belt, such as a preshift examiner or a belt 

cleaner, could be injured seriously or killed. In essence, Allen 

opined that in the event of the axle breaking, the belt would 

lockup. i\ccording to A.llen, the excessive wear on the top of the 

axle, which he observed, indicates that pressure was being 

ri.p9lied in an upward fashion. Thus, he indicated that if the 

axle would break, the carriage would be lifted upward. Allen 

indicated that he was "sure" that if the axle would break, the 

carriage would lockup (Tr. 149). In essence, according to Allen, 

if the rollers and belt locked up, it would "definitely" break 

the belt (Tr. 150). He explained that this would occur based on 

the fact that the belt was "relatively large, long, heavy," and 

was d.riven by two 250 horsepower motors. He also stated that if 

the axle would break, the carriage could drop, as it would be 

supported by only one axle at that point, and it could get wedged 

in the broken axle so as to cause the belt to lockup. He also 

stated that if the axle would break, a wheel could get stuck 

between two frames, also causing the belt to lockup. He opined 

that at a minimum, in the event of an axle breaking, thece would 

be friction between two pieces of metal, and that it would be 

impossible for the belt to operate. He indicated, essentially, 

that in the event of a lockup, extra stress or tension would be 

created on the belt, which could cause the motor to overload, 

creating heat which could create a fire hazard. 

In essence, he opined that with additional wear the axle 

would break, and not bend. He said that in the event that it 

would bend, it would apply more tension" to the cal'.'riage, which 

could possibly cause the system to overload allowing the carriage 

to loosen the belt, which would then slip into dl'.'ive, creating 

heat which could create a fire hazard. 

The record does not indicate that the testi:nony of Allen, 

with regard to the likelihood of a hazard occurring as a consequence of the worn axle, was b::ised upon either his observation or 

inveatigation oE incidences where similar ~xles have failed. 

Indeed he indicated on cross-examination that he did not know of 

'.:l.ny situation whe.re a brok:=n axle ha.s lead to a belt being broken. 

In ~valuatin9 the likelihood as to whether there was a rea.sonable 

li~elihood of the worn a~le contributing to the hazard of an 

injury, I relied more on the opinions of the engineers who testified, d;.ie to their expertise based on their ed11c,1.tional 

~ackground and work experience. 

Joint Exhibit 4, as explained by Respondent's witnesses, 

indicates that the carriage wheels of the tension unit rolled on 

I be~ms, and that movement of the \'/heel upward ::ind downward was 

2283 
limited by a frame, sh~ped as a reverse C, and whose lower horizontal member over-lapped the lip of the I beam. Accordingly, 

should the axle break, due to excessive wear, as explained by 

Respondent's witnesses, downward movement of the axle and wheel 

would be limited by a maximum of 5/8 of an inch, which is the 

distance the diagonally opposite axle and wheel would rise, until 

it would be caught by the upper horizontal member of the overlapping frame.~/ 

Koleck opined that if the axle would bend and not break, 

pressure would force the wheel upward to rub against the frame, 

but would not have any effect upon the operation of the carriage. 

Patts indicated that in such a situation, there would be an 

increase in friction which would "slightly" effect its 

efficiency, "but not the operation" (Tr. 345) •. In contrast, 

Allen opined that with bending, there would be friction of such a 

degree as to possibly create fire due to the presence of dust. 

However, his testimony did not establish the amount of such dust, 

and specifically its precise location in relation to the wheel 

and axle. Also, although the testimony of Allen was to the 

effect that the wear on the axle occurred in the area facing 

down, which would indicate that the axle was subject to pressure 

from above, all other expert witnesses, including Petitioner's 

expert Sawyer, indicated that the axle, while in normal 

operation, is subject to an upward pressure. Due to their 

expertise, and well-reasoned opinions, I accept their testimony 

in this regard. Thus, if the axle would bend, it would be pushed 

upward against the underside of the frame. ~he record does not 

establish specifically that coal dust 

!/~sawyer-opined that the carriage could possibly go higher than 

5/8 of an inch if the overlap would be compromised by the 

movement of other parts iA the system or other conditions. 

However, Sawyer indicated that he did not make a close inspection 

of belt tension units. He condeded that, with regard to "how the 

components work and shift together," he does not know the tension 

unit as well as Patts, Koleck or Henline (Tr. 402). Thus, his 

opinion with regard to the functioning of the unit is not 

accorded sufficient weight to offset the testimony of 

Respondent's witnesses. 

Similarly, the effect of the I beam in preventing further 

movement of the carriage, depends upon the distance the frame 

overlaps the I beam. Patts indic~ted on cross-examination that 

this distance is "approximately" 1 1/2 to 2 inch (Tr. 347>., and 

guessed that the minimum distance may be 1/2 inch. I find that 

there is insufficient evidence to conclude that there was a 

likelihood, in the event of the axle breaking, of the amount of 

the overlap being as small as a 1/2 inch. Also, there is 

insufficient evidence to establish that a 1/2 inch overlap would 

not suffice to capture the frame and prevent its further 

movement. 

2284 
was present in that area. Also, I find it significant that, as 

established by the uncontradicted testimony of Kenny Henline, 

Respondent's maintenance foreman, approximately 4 months after 

the belt tension unit in question was installed in July 1985, the 

axle, which was not welded to the frame, came loose, and a wheel 

dropped off. He indicated on cross-examination that there would 

have been more friction to the belt and it would have slowed 

down, but it is most significant to note that according to his 

testimony, the belt operated normally and nothing locked up or 

jammed. 

~aking into account all the above, I conclude that it is 

_2Q~sible, as outlined by Allen, that in the event of the axle 

bending, there could be friction to such a degree as to cause a 

Eire which could cause a hazard to an employee working 22 feet 

away. Also, it is clear that there was a possibility of the axle 

breaking, which could cause the belt to stop, causing injury as a 

result of material on the belt or the belt itself being thrown at 

persons in the vicinity and injuring them. However, due to the 

presence of vertical rollers, and especially, the maximum of 

5/8 of an inch clearance between the I beam and the frame, I find 

that it has not been established by the weight of the evidence 

that there was a reasonable likelihood that the hazard of the 

axle breaking or bending.would result in an injury of a 

reasonably serious nature. As such, it has not been established 

that the violation herein was significant and substantial. (See, 

Mathies Coal Company, 6 FMSHRC 1 (January 1984). 

III 

According Allen, it is difficult to determine the amount of 

time it took to wear the axle down to the point where it was 

observed by him. He indicated, however, that a representative of 

the miners, Nelson Starcher, told him that the condition had been 

in existence for 30 days. Allen said that Starcher said that 

the Company did not want to shut down the longwall to repair it. 

He said that Starcher and another miner, Richard Moats, had asked 

the Company to repair it. Henline, who was responsible for the 

operation of the belt line, indicated that about a week to 

10 days prior to the issuance of the Order in question, a 

greaser, who has the responsibility for weekly greasing the unit, 

in essence, informed him of the wear. Henline indicated 

essentially that he could only see "very slight" wear of the axle 

before taking off the washer, but with the washer off, he had 

observed that it was "worn" (Tr. 272), but he did not feel it 

would cause any safety problems. He indicated that he did not 

feel at that time that it was necessary to shut down production 

to replace the axle. Henline then ordered a new axle, two 

wheels, washers, and cotter pins which were delivered 2 days 

later, and were placed near the belt tension unit. 

2285 
In order to establish that the violation herein was the 

result of Respondent's unwarrantable failure, Petitioner must 

establish the existence of "aggravated conduct." {See, Emerv 

Mi~~~Corporation, 9 FMSHRC 1997 {1987)). In this connection, 

it is significant to note, as discussed above, infra, that 

Henline already had the experience of having a wheel fall off the 

unit in question, with the result that the belt had continued to 

operate in a normal fashion. Further, the existence of the 

vertical guide. tellers, as well as the frame which overlapped the 

I beam, would tend to mitigate to a significant degree, the 

consequences of a broken axle. Given these circumstances, I 

conclude that it has not been established that the violation 

herein was as a result of Respondent's unwarrantable failure. 

IV 

Respondent had on hand, in close proximity to the belt 

tension unit, replacement parts for a wheel and axle, for approximately a week prior to the issuance of the Order in question. I 

conclude that it acted with a moderately high degree of negligence in not replacing the worn axle which it had known about for 

at least a weeK prior to the Order. Primarily due to the presence 

of the vertical guard rollers, and the effect of the overlapping 

frame on the amount of movement that could reasonably be expected 

from the carriage in the event of an axle breaking, I conclude that 

the gravity of the violation herein was only moderately serious. 

Taking into account the other statutory factor, as stipulated to by 

the Parties, I conclude that a penalty herein of $800 is appropriate 

for the violation found herein. 

O'RDER 

It is ORD~RED that Order No. 3117715 issued August 29, 1988, 

be amended to a section 104{a) Citation, and be further amended 

to reflect the fact that the violation therein is not significant 

and substantial. It is further ORDERBD that Respondent shall, 

within 30 days of the Decision, pay a civil penalty of $800 for 

the violation found herein. 

12 I · 

~i~ ~dministrative Law Judge 

Distribution: 

~onald Gurka, Fsq., Office of the Solicitor, U. s. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, V~ 22203 

{Certified Mail) 

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

Washington Road, Pittsburgh, PA 15241 {Certified Mail) {Certified 

Mail) 

dcp 

2286 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 15 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JAi\1ES S • ·rERRY, 

Complainant 

v. 

TIMBERLINE ENERGY, INC. 

and 

Randy w. Burke, 

personally and as President 

of TIMBERLINE ENERGY, I~C., 

Respondents 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 89-105-D 

HOPE CD 89-02 

MudlicK N::>. 1 

Appearances: Charles M •. Jackaon, Esq., Office cf tl1e Solicitoc, 

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

for Complainant; 

Paulo. Clay, Jr., Esq., Conrad and Clay, 

Fayetteville, West Virginia, for Respondents. 

Before: Judge Maurer 

This case is before me upon the Complaint by the Secretary 

of Labor on behalf of James S. Terry under section 105(c)(2) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seq., the "Act", alleging that Mr. Terry was discharged by t11e 

respondents on October 27, 1988, in violation of section 105(c)(l) 

of the Act. The Secretary seeks reinstatement, back wages and 

interest for Mr. Terry dS ~ell as civil penalties against the 

respondents. Respondents maintain that Terry was not discharged 

in violation of the Act, but rather was discharged for his 

failure to adequately perform his duties as a section foreman. 

Pursuant to notice, an evidentiary hearing was held at 

Morgantown, West Virginia on May 4, 1989. Subsequently, both 

parties have filed post-hearing proposed findings of fact and 

conclusions oE law which I nave considered along with the entire 

cecord and considering the contentions of the parties, make this 

deci~3 ion. 

2287 
STIPULA'rIONS 

The complainant and respondents stipulated to tne following: 

1. Pursuant to Section 113 of the Act, 30 U.S.C. § 823, the 

Fed.er-al Mine Safety and Health Review Commission nas jurisd.i.-::tion 

over the subject matter of this case. 

2. At ali times rcle11ant herein, Complainant James S. Terry 

~orked at Respondent Timberline Energy, Inc.'s Mudlick No. 1 Mine 

and was a miner as defined in Section 3(g) of the Mine Safety and 

Healtb Act of 1977. 30 U.S.C. § 802(g). 

3. Timberline Energy, Inc., Respondent, is a corporation 

incorporated under the laws of the state of West Virginia, and is 

engaged in the operation of coal mine facilities and is therefore 

an "operator" as defined in Section 3Cd) of the Act 1 30 U.S.C. 

§ &02(d). 

4. The subject Mudlick No. 1 Mine, which is located near 

Bergoo, in Webster County, West Virginia, has product~ that enter 

c-::iinmercr= or bas operations or products that affect commerce, and 

therefore is a "mine" as defined in Section 3(h)(l) of the ~ct, 

30 u.s.c. § 802(h)(l). 

5. On or a.bout October- 28, 1988, Complainant ,James 3. Terry 

filed a complaint with the Secretary alleging discrimination. 

6. James S. Terry was 2mploy2d as a 1nir1el'." foe Timberline 

Ener.9y, Inc., from October 14, 1988, to Octobec 26, 1988. 

7. Randy W. Bur~e is, and wa3 at all pertinent times, 

President of ~imber-line Energy, Inc. 

8. Randy W. Burke owns, and at all per-tinent timed owned, 

fifty percent (50%) of Timberline Energy, Inc. 

9. Randy W. Burke is an operator as defined in Section 3(d) 

of the Act, 30 u.s.c. § 802(d). 

10. 

tile Acc., 

Randy w. Burke is a person as defined in Section 3(£) of 

30 u.s.c. § 802(t). 

11. ~he shareholders of Timberline Energy, Inc., are 

~andy W. Burl«=, who o••rn.s E if ty 9ercenc ( 50%) of the shares, and 

Eric Meador-, who owns fifty percent (50%) of the shares. 

12. Randy W. nur:(e ·,.;as the p8r3on froin Timberline Ener9y, 

Inc., who managed t~e Mudllck No. l min~ f~c Timb9rline Energy, 

1 L1C. 

2288 
13. Randy W. Burke played a role in ma~inJ decisions about 

business activities for Timberline Ener1y, Inc., at the Mudlick 

No. l rnine. 

14. Randy W. Burke had at least ·3ome reaponsibility for 

setting wage rates for Timberline Energy, Inc., at the Mudlick 

No. l .1nine 

15. Randy w. Burke-took part in the 'hiring of emplofees for 

Timberline Energy, Inc., at the Mudlick No. l mine. 

16. Randy W. Burke has, and at all pertinent t Lnes had, the 

authority to hire e1Hployee.s for 1'imberline Energy, Inc., at the 

Mudllc~ No. l mine. 

17. Randy W. Burke has, and at all pertinent times had, the 

authority to lay off employees for Timberline Energy, at the 

Mu~lick No. l mine~ 

18. Randy W. Burke has, and at all pertinent times had, the 

authority to reinstate employees for Timberline Energy, Inc., at 

the Mudlick No. 1 mine. 

19. Complainant Jame3 s. Terry earned a straight time salary 

of $2,800.00 per month while an employee of Timbe~line Energy, 

Inc. 

20. Complainant James S. Terry worked an average of 44 hours 

per week while .:in employee of 'rirnberl i.ne Energy, l'.1c. 

21. Complainant James W. Terrt was covered by a hospitalization plan while employed at Timberline Energy, Inc. 

22. Timberline Energy, Inc., produced approximately 44,775 

tons of coal at its Mudlick No. 1 mine during the period from 

June 1, 1988, to December 31, 1988. 

23. Timberline Energy, Inc., had approximately 18 emplo1ees 

at any one time during the period Erom June 1, 1988, ~o 

December 31, 1988. 

24. Order No. 2728486 and Citations Nos. 2728485 and 272&487 

were issued on October 27, 1988, by Mine Safety and Healtn Administration In3pector Paul E. Hess, and were served on Timbecline 

Energy, Inc., or it3 agent as ~equired by the Act. 

2289 
FINDINGS OF FAC'l' 

Having considered the record evidence in its enti~ety, I 

£ind that a prepondecance of the reliable, substantial and 

~robativ~ evidence establishes the follo~in3 findings of fact: 

1. ·rhe complainant, .James s. Terry, was emplofed for 

approximately twenty-eight years in and around coal mines prior 

to i1is employment with.Timberline Energy, Inc., on October 14, 

1988. 

2. Tecry was employed as a section foreman for Timberline 

Energy, Inc. from October 14, 1983, to October 26, 1988, on the 

evening shi.ft. 

3. Wnen Terry began wor~ing at Timberline, he felt the 

wor~ing conditions at the Mudlick No. 1 Mine were "good". His 

opinion changed, however, within the next few days as the 

condition of the top became adverse. 

4. On October 17, 1988, Terry encountered top at the No. 2 

e:itry which showed :>igns of bceaking along the c idge, making 

noises characteristic of bad top. He drilled test holes in the 

affected areas which did not show any separation of the top but 

rather showed that the top was soft. Terry "danger~d off" that 

particular area and recorded his action in his book on the 

surrace. 

5. On October 13, 1988, the top fell in the No. 2 entry. 

6. On October 25, 1988, Terry was supposed to keep his crew 

after the regular shift to change the oelts on the No. 2 conveyor 

belt. However, he did not change them because he noticed that 

the No. 3 entry had begun that day to sho~ the characteci~:ics of 

bad top. Accordingly, Terry instead tooK his bolt crew and, £or 

approximately four to five hours after their shift, set Eifty to 

si~ty additional six foot bolts to supplement the £our foot bolts 

that had already been 9laced in that area. 

7. Timberline took no adverse action against Terry [or hia 

decision to set additional roof bolts rather than change belt as 

he had been j_1ntructed to do, other than to question him a.s to 

why h~ ~ad made that decision. 

i3. When •rer.-ry :~rrived at the 1nine on Octob~r 26, 1988, he 

was told by the miners on the day shitt that they ~ere h~ving 

trouble ~it~ the top and ~0 be car2Eul. He went unJerground with 

his ~rew and found that the mine foreman, Randy Key, ~as alr2ady 

ander3round with one of tne men (3ubert Kay) Er~m the evening 

2290 
shift building cribs for additional support in the crosscut lefthanded off the No. 3 entry. -Terry was advi~ed by Randy Key that 

they had built crib~ in other areas of the mine, that they had 

used all of the crib blocks that were in the.mine, and that the 

miae was safe to work at that time in his opinion. While the men 

began moving the equipment into the face area, Terry and Randy 

Key ~ent down the No. 3 entry to talk. Randy Key advised him 

that there was additional support 1naterial outside being loaded 

onto the scoop by the outside man and that, when the scoop 

batteries were charged, the material would be brought down if he 

needed it. 

9. Within a few minutes after his discussion with Terry in 

the No. 3 entry on October 26, 1988, Randy Key ~ent outside. 

Shortly thereafter, the crew shut off theic equipment while 

moving it to the face area to get it in place to mine coal. In 

the silence, they heard the top "working" again. Terry then 

instructed nis crew to bring the equipment back out and called 

Randy Key on the suiface to advise him that the top was again 

causing trouble. 

10. There were insufficient crib blocks on hand at the mine 

site, inside or outside, to adequately support the roof. 

11. Timbering is in the opinion of some equivalent to 

placing cribs if you set the timbers in a cluster and there were 

sufficient timbers outside to do the job, although some or all of 

these timbers would have had to first be cut to size. Terry was 

of the opinion, ho~ever, that the only sure :nethod of making that 

roof sa~e to ~ark under that evening was to baild c~ibs and the 

material to build those cribs was not available chat night. 

12. When Terry returned to his crew after tal~ing to Randy 

Key, he told them that the outside man would be bringing i11 some 

roof support ~aterial when the scoop wa3 recharged. While 

~aiting, the crew listened to the roof "worKing" and decided 

among themselves to go out3ide. By this time, Randy Key had left 

the mine site. 

13. Terry then returned to the telephone to again attampt 

to talk to Randy Key, but was advised that he waa already gone. 

At this point, Tercy "dangered off" the area and with his crew, 

moved the mining equiptnent out of tne affected area and taking 

theic perdonal equipment, returned to che :;urface. 

14. Upon ceturnin~ to the 3urtace of ~he mine w1~n the 

evening crew on Occober 26, 1988, Terry called Randy Key's home 

and left a ffiedsage wit:1 Mrd. Key that Randy Key 3hould r2turn his 

~all as soon as ne drrived. Ba recorded in the mine book that 

the area i1ad been "dangered off" and wait3d in vain for the 

2291 
return telephone call from Randy Key. At 7 p.m., having heard 

nothing oac;'< from Randy Key, be let the c~ew 90 home. At 

approximately 9:00 p.m., Terry retucned below and preshift9d the 

mine for the night crew. The top was still working at that time. 

ae then returned to the surface, filled out tne pre~hift reports, 

and departed the mine site when the night crew arrived. 

15. MSHA Inspector Paul E. Hess arri~ed at the mine site 

and went under9round with the night crew at approximately 11 p.m. 

on October 26, 1988. At that time, he could not hear the top 

"working". However, he noticed numerous indications that the top 

had been «working" in the No. 3 entry and face, tne No. 3 to 2 

crosscut, the No. 3 to 4 crosscut, and the No. 4 entry ap coward 

the face, including cutters, slips, and loose, bro~en roof that 

had gapped down. He thareupon advised the foreman of the night 

crew that ~1e was is.suin9 an Im1ninent Danger Order an the a.Cfected 

sections and placed red tags at the No. 3 entry and the i\io. 4 

1~nt.cy. 

16. Open ceturning to the mi~9 on che evening of October 27, 

1988, Inspector Hess observed that approximately twenty cribs and t~ree or four headers had been placed in the araaa containing the 

bad top. The material to place this amount of additional roof 

support had not been available .. to Terry the previous evening. 

17. Randy Key had made the impression on Terry that the 

clear priority Ear the evening of October 26, 1988, was to mine 

coal in Nos. 2, 3 and 4 entries. Key, however, 6peciEically 

denies telling Terry that he must run coal 011 this shift or he 

and his men would be terminated. No ocher witnesses corroborated 

Terry's assertion that this statement WdS made and nobody was in 

fact Eicad, except Terry. My sense of what cranspiced is that 

Randy Key left no doubt in Terry'~ mind that he expected some 

coal ta be mined that night, but I do not belie~a that he specifically threatened Terry's job or the jobs of the til·::!n if it could 

not be tor some reason. 

l8. On October 25, 1988, Randy Key and Terry had discussed 

changing out some 500 feet of rubbec on the No. 2 belt. Terry 

was 3Upposed to keep his men after their regular shift to do the 

job. Inscead of changing che rubber out, however, Terry elacted 

to set additional roof bolts that particular evening because he 

felt the top needed more support. 

19. On October 26, 1988, Randy Key and Tec~y again spoke 

about the belt change. Key a3ked if the men could stay after 

that shift to do the job since it had not gotten done t~e night 

bef or.~. Tct· r y cepl ied that his tnen we ce ti red a.:; th·=Y had .3 tayed 

ovec <:he r1ight before, anci a:3ked if it could :iot be done the 

following ni9:1t instea.d. Key a9c:=.?~d. 

2292 
20. Subsequent to encountering bad top on October 26, 1988, 

Terry nevertheless did not have his crew change out the rubber on 

th9 belt line that night despite the fact that thete was no 

safety related reason that his crew could not have done so. The 

belt line was outside of the area of bad top. 

21. Randy W. Burke made the decision to terminate the 

Complainant, James 3. Terry, from his einployment with T imb,~:rline 

Energy, Inc. 

22. Terry was fired shortly after he arrived at the Mudlick 

No. 1 mine on October 27, 1988. He met with Randy Key and 

Randy W. Burke. When he walked into the office, Randy Key said 

to him, "I guess you know why you are cut off." When Terry asked 

why, Randy Burke gave the reply: "How does incompetence sound? 

It is obvious you don't know top; you can't make a judgment on 

top to worK men undec it." Burke then asked Terry why he did not 

put in the belt if-he was afraid of the top. Terry ceplied that 

he did not feel that he could make that kind of decision and that 

he believed that he was "going to get fired anyway •... " Burke 

testified that "I didn't really get any good answer out of hitn." 

DISCUSSION AND CONCLUSIONS 

In ordec to establish a prima facie case of discrimination 

under section 105(c) of the Mine Act, a complaining miner bears 

ti1e burden of production and proof to establish C 1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Fasula v. Consolidation Coal Company, 

2 FMSHRC 2760 (1980), rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F'.2d 1211 (3d Cir. 

1981); Secretary on behalf of Robinette v. United castle Coal 

Company, 3 E'MSrIRC 803 ( 19 81); Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporacion_, 6 FMSHRC 1842 (1984); Secretary 

on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 

2510-2511 (November 1981), rev'd. on other grounds sub nom. 

Donovan v. Phelps Dodge Coro., 709 F.2a 86 (D.C. Cir. 1983). The 

operatoc may r8but the prima facie ca3e by showing either that no 

protected activity occurred or that the adverse a~tion ~as in no 

way motivated by protected activity. If an operator cannot 

reb•Jt the pr ima f ac ie case in th is inanne.c i:. may never t.neless 

aEfirmativelj defend by proving tnat it was also motivated by the 

minec's unprotected dctivitics alone. The operator bears the 

burden of proof with regard to the afficmatiqe defense. Haro v. 

Magma Copper Company, 4 ~MSHRC 1935 (1982). The 11ltimate b!1rden 

of per3uasion does not shift from the complainant. Robinette, 

suora. See also Baich v. FMSHRC, 719 F.2d ~94 (6th Cir. 1983); 

and Donovan v. Starford Construction Comoany, No. 83-1556 o.c. 

Cir. (April 20, 1984) (speciEically-approving the Commi3sion's 

Pasula-Robinette test). See al3a NLRB v. Transportation 

2293 
" Management Corporation, 462 U.S. 393, 76 L~Ed.2d 667 (1983), 

where the Supreme Court approved the NLRB's virtually identical 

analysis for discrimination cases arising under the National 

Labor Relations Act. 

A miner's "work refusal" is protected under section 105(c) 

of the Act if the miner has a good Eaith, reasonable belief in 

the exist9nce of a haza~dous condition. Miller v. FMSHRC, 687 

F.2d 194 (7t11 Cir. 1982); Robinette, supra. Proper communicati::m 

of a percei•Jed hazard is also an integral component of a 

protected work refusal and the responsibility for the 

communication of a belief in a hazard underlying a wor~ refusal 

lies with the miner. See Dillard Smith v. Reco, Inc., 

9 FMSHRC 992 (1987). 

I find that Terry ~as engaged in protected activity when he 

and his men withdrew f rorn the mine because of hia concsrna about 

hazardous roof conditions. Terry's belief was reasonable and in 

good faith. The reasonableness of Terr1's concerns and his withdrawal from the mine is corroborated by the tact that a federal 

mi:-ie inspector shortly thereafb::c issued an Imminent Danger Wit~drawal Order under Section 107(a) of the Act. Terry also 

made every effort to communicate with his boss, Randy Key, to 

inform him 0£ what he was doing, and what he perceived to be a 

hazardous condition. 

Unquestionably, Terry's firing by Randy Bur~e, on the day 

following hi3 withdrawal, was motivated at lea3t in part by his 

l1aving wit~drawn from t~e mi~e, and therefore, I find that the 

complainant has made out a prima facie case of discri1nination 

tHH.ier the Mine Act. 1 also t Lnd that t:.•1e operator. is unable to 

rebut this prima facie case by showing that no protected activity occurr~d or that the adverse action was in no way motivated by 

the protected activity. The preponderance of the evidence is 

clearly to the effect that Terry engaged in protected activity 

and that his Eicing was ifi")tivated at le=i.st in part by that 

pcotected activity. 

crhe r.emainin.g que'3 ti on is the inos t <li c E icult. Respondents 

may af:cicmatively t'L~fend by showing that this was =i. "mixed 1Aoti~~s 11 case and that Terry's unprote~ted actiqity was in and of 

itself suEEicient motivation foe taking the adverse action ~gainst hi1n. The acgument 1oes that 8ven i£ Terry ~as juscitie6 

in ~itndrawing hims~l£ and his crew Crom the section because of t~e hazardous roof conditions ha encounter8d, he should have 

i:l.ccomplished some othec work in a non-hazacdous acea o:f th·~ mine 

cathec ti1a11 allow the entir .. =:! crew to siinply 30 home. Respond.=nt·~~ 

po~3ition i:~ that tllL; unprotected activity a.lone ;>c:>~rided the ~)c i_ 1nary a.nd a :3uff icient basi:.5 i:or Terry's discharJe. 

2294 
From the totality of the record herein, I find that there 

were a myriad of reasons that led to Terry's firing. To start 

wit~, Terry had been out of the mining industry for sometime and 

had been working for Timberline for less than two ~eeks ~hen he 

was terminated. Prior to the night of October 26, 1988, Key and 

Burke llad already beeri discussing Terry's termin::ltiou for 

unrelated matters which Ket felt had not been properly handled by 

Terry. On the pacticular night in question, Key and Burke were 

unhappy that Terry's crew didn't mine coal as they had expected, 

but were even more unhappy that he and his ere~ left the mine 

instead of supporting the roof. They believed, with some 

justification I think, that if in Terry's judgment, the roof 

needed additional support, he should have provided it. Moreover, 

it appears that Terry abdicated control of the situation and his 

crew, allowing tnem to go ho1ne when there was belt work he knew 

had to be accomplished that was outside of the area of bad top. 

Even if in his judgment, he believed that the proper materials to 

support the root were not available, he could have at the least 

had his crew accornpli3h the belt change. His only justification 

for not doing so seemingly was his belief that he was going to be 

fired in any event because Key had told him to run coal. 

As a management employee, Terry has to be charged with the 

exercise of soine degree of judgment and· supervisory ability in 

directing the work force. As a foreman, he has to be charged 

with the awareness that there is always "dead work" to be done 

when coal cannot be mined for some reason. In tnis case, he 

specifically knew of the belt that had to be moved. I find that 

tha operator' a termination of Terry could reasonably and justi-

::iably t1ave been done because of Terry's extrernely poor j11dgment 

in not directing his crew to perform any work whatsoever. More 

specifically, I ::ind that his failure to at lea:>!: ;nake the belt 

move that he had been askaJ to make after the shift that night, 

was unprotected activity and could reasonably ha11e served as a 

';o,nplet.~ly inde1)endent basis for. his dischar-ge. 

It appears to ine that Mr. '.rercy was placed in a position of 

authority and responsibility for whicl1 he was ill-equipped to de~l wi~h wne11 the rooi conditions b~came adverse. A tair 

reading of the entire record herein, particularly his own i:,~stirnony a:1:.l ti1at of Hubert Key indicates to .ne that Iv~ 

abandoned control 011er his •n•=n and the job ·..vhen l1e encountered 

the adverse roof conditioris described herain. When he could not 

get a~old of RanJt Key for further guidance, he completelj gave 

11p hi::; -'.iuthorii.:J and his e~~3pon.sibility. Notably, h~ did not 

direct his ~en to go home, they ~im~ly left. 

I concl..1cie t:1B.t alt'1ougl1 co1nplainant establi·;hed a orima 

iacie case or discriiniriati.:m, C.he operat:)c has 8.staolishea that 

tne adverse action wa3 substantially motiv~ted by an unprotected 

2295 
factor, namely, his failure to engage his crew in productive work 

activity after the roof conditions became too adverse to mine 

coal. It is certainly reasonable to e~pect your line 3Upecvisors 

to supervi3e and make decisions concerning the direction of. the 

wock force. I thus t~rthec conclude that the operator ~ight 

reasonably and justi~iably have taken the adv~rse ~ction · 

complain,=d of Eoc this unprotected factor alone. 

Therefore, complainant has failed to establi3h that 

respondents discriminated against him in violation of the 

provisions of section 105(c) of the Acc. 

ORDER 

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

it is ORDERED that the complaint of discri1nination be DISMISSED. 

Distcibution: 

! 

... , . . . "(:" ,: . 

Roy J .. Maur8r 

Admini~trative L~w Judge 

Ch~rles M. Jackson, Esq., Office of the Solicitor, U.S. Department of Labor, Room 516, 4015 Wilson Blvd., Arlington, V~ 22203 

(Cert i. Ci.ed Mai 1) 

Mr. James S. Terry, Route 3, Box 72, Webster Springs, WV 26288 

( Ce t· t L E i ed Mai 1 ) 

Paul 0. Clay, Jr., Esq., Conrad and Clay, 215 West ~aple Avenue, 

P.O. Box 953, Fayetteville, WV 25840 (Certified Mail) 

/ml 

2296 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 15 1989 

SECRETARY OF -LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

JOHN L. JONES, JR., 

Complainant 

v. 

VIRGINIA CARBON, INC.; 

DAVID CLEVENGER, Individually 

and as operator of Virginia 

Carbon, Inc.; _ 

EVERETT DELANEY, Individually 

and as operator of Virginia 

Carbon, Inc. ; 

MARSHALL KEEN, Individually 

and as agent of Virginia 

Carbon, Inc.; 

CARLOS KEEN, Individually 

and as agent of Virginia 

Carbon, Inc. , 

Respondents 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 89-227-D 

HOPF CD 89-07 

Mine No. 4 

DECISION APPROVING SETTLEMENT 

The Secretary brought this case in behalf of John L. Jones, 

Jr., under§ 105 (d) of the Federal Mine Safety and Health Act, 

3~ u.s~c. § 801 et seq., alleging a discriminatory discharge in 

violation of § 105(c) of the Act. 

The Secretary has moved for approval of a settlement 

agreement. I have considered the representations and 

documentation submitted and I conclude that the proffered 

settlement is consistent with the purpose of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1. The motion to approve the proffered settlement is 

GRANTED. 

2297 

-----------------------·-···--·----·------- ----- -- -- -· -·- ·------" .. ------------------------------
2. Respondent shall pay the agreed settlement amount within 

30 days of thi~ Decision and upon such payment this proceeding is 

DISMISSED. 

Distribution: 

~ J )/;f ~ ~(A.MV't-A_ ~iam Fauver 

Administrative Law Judg~ 

Robert s. Wilson, Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

Lawrence F. Morhous, Esq., Hudgins, Coulling, Brewster, Morhous 

and Carner on, 418 Bland Street, P.O. Box 5 2•9, Bluefield, WV 

24701-0529 (Certified Mail) 

iz 

2298 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 1 71989 

SECRE'rARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

v. 

BETH ENERGY MINES, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 89-40 

A.C. No. 36-00840-03665 

Cambria Slope No. 33 

Appearances: Paul D. Inglesby, Esq., Office of the Solicitor 

U.S. Department of Labor, Philadelphia, 

Pennsylvania for Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll 

Professional Corporation, Pittsburgh, 

Pennsylvania for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to 

section 105(d) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 801 et sea., the "Act," charging Beth 

Energy Mines, Inc., (Beth~ergy) with three violations of 

its Ventilation System and Methane and Dust Control Plan 

(Ventilation Plan) under 30 C.F.R. § 75.316. The general 

issue before me is whether Beth Energy violated the 

ventilation Plan as charged and, if so, the appropriate civil 

penalty to be assessed in accordance with section llOCi) of 

the Act. 

The three citations at bar allege similar violations of 

the operator's ventilation Plan. Citation No. 2887804 · 

alleges a "significant and substantial" violation and charges 

as follows: 

The approved ventilation system and methane and 

dust control plan was not complied with in that the 

air lock at the 7 Right between numbers 6 track and 

7 intake entries were not properly installed. Both 

doors would open outby away from each other and a 

proper air lock was not provided. 

2299 
Citation No. 2887805 charges a "significant and 

substantial" violation and charges as follows: 

The approved ventilation system and methane and 

dust control plan was not complied with in that the 

airlock doors at the 8 Right between the Nos. 6 

trac~ and 7 intake entries were not properly 

installed. Both doors would open outby away from 

each other and a proper air lock was not provided. 

Citation No. 2887807 charges a "significant and 

substantial" violation and charges as follows: 

The approved ventilation system and methane and 

dust control plan was not compled with in that the 

airlock doors used at the 8 Left supply station 

were not properly installed. Both doors would open 

outby away from each other and a proper air lock 

was not provided. 

In relevant part the Ventilation Plan provided as 

follows: 

Equipment doors •.•• shall be in pairs to form an 

air lock where permanent stoppings are replaced by 

doors separating return air entries from intake air 

entries. 

As explained at hearing the Secretary's theory of 

violations in these cases is that the cited doors did not 

provide an "air lock".~/ There is no disagreement that in 

order to constitute an "air lock" within the meaning of the 

Ventilation Plan the doors need only be "reasonably air 

tight". More particularly the Secretary argues that the 

paics of equipment doors here cited did not form an airlock 

because the opening of one set of doors caused the second set 

of doors to open automatically. 

!I Contrary to the Respondent's claims this theory was 

indeed set forth with sufficient particularity in the 

citations at bar. In any event Respondent declined the 

opportunity for continuance in trial to prepare any 

additional defense of the charges. No legal prejudice has 

been shown. 

2300 

--------------------------
Citation No. 2B87804 

According to the testimony of MSHA Inspector and 

Ventilation Specialist Michael Bondra an air lock was not 

provided at the double sets of doors at the 7 Right section 

between the Nos. 6 track and 7 intake entries on September 9, 

1988. According to Bondra when the doors adjacent to the 

track entry were opened one of the second set of doors also 

opened about 12 to 18 inches at the top because of the 

pressure differential. He accordingly issued Citation 

No. 2887804. 

Steve Olexo, a Beth Energy safety inspector, accompanied 

Bondra on his September 9, 1988, inspection. Olexa 

acknowledged that the door had problems--the rubber seal at 

the top was worn and the nail holding the seal had come 

loose. Olexa also conceded that the left side 0£ the door 

had a slight warp allowing the door to remain open some 6 to 

7 inches and allowing some air movement toward the No. 7 

entry. 

Within this framework it is apparent that the cited door 

was indeed not "reasonably air tight". It admittedly had a 

gap of at least 6 inches allowing air to pass toward the No~ 

7 entry and therefore could not form an "air lock" within the 

meaning of the Ventilation Plan. The violation is 

accordingly proven as charged.~/ 

In order to find that a violation is "significant and 

substantial" however, the Secretary has the burden of proving 

not only the existence of an underlying violation of a 

mandatory standard but also the existence of a discrete 

hazard Ca measure of danger to health or safety) contributed 

to by the violation, a reasonable likelihood that the hazard 

contributad to will result in an injury, and a reasonable 

likelihood that the injury in question will be of a 

reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1 

(1984). 

While Inspector Bondra acknowledged that he did not test 

for air movement or pressure differential at the cited 

doors, he testified that he "could feel it". According to 

~/ Beth Energy alleges in its post hearing brief that 

the Secretary failed to prove that the No. 7 intake was an 

escapeway. I disagcee. This may reasonably be inferred from 

the testimony of Inspector Bondra. 

2301 
Bondra if there had been any smoke emanating from the track 

entry, that smoke would therefore contaminate the in~ake 

escapeway upon -opening the track-side door. He thought it 

was ~very likely that the track-side door would be left open 

allowing the track air to pass into the escapeway through the 

gapped second door. He estimated that up to two work crews 

of eight miners each could have been affected. 

On cross-examination Bondra conceded however that 

neither of the potentially affected ~ections were then active 

and that apparently the only reason for the continued 

existence of the cited doors was to permit removal of some 

machinery left from active mining i.e. a battery charger and 

some longwall equipment. According to Mine Foreman William 

Radebach, at the time the doors were cited the 7 Right 

section was indeed inactive and the doors were only rarely 

used. It is also undisputed moreover that while there had 

been a fire on September 1, in the track entry contaminating 

the entire track entry the smoke from that fire never entered 

the No. 7 air course. 

Under all the circumstances I cannot find that the 

Secretary has sustained her burden of proving that the 

violation charged in Citation No. 2887804 was "significant 

and substantial" or of high gravity. I observe however that 

In.specter Bondras' finding of "moderate negligence" is not 

challenged by Beth Energy. 

Citation No. 2887805 

Bondra testified that the set of air lock doors at the 

8 Right section between the No. 6 track and No. 7 intaKe 

entries was also not properly installed and that similarly 

upon opening the first set of doors the second set of doors 

would also open about 6 to 8 inches allowing the air to pass 

from the track entry directly into the intake escapeway. 

Bondra also testified that no one accompanied him when he 

observed these conditions. He acknowledged however that he 

had been unable to locate his notes taken at the time he 

issued the citation. Mine Inspector Steve Olexa disagreed 

with Bondra and testified that he was in fact present when 

Bondra examined this set of doors. Olexo testified moreover 

that upon opening the first set of doors the second set did 

not open at all. I find the testimony of Olexa to be 

entitled to the greater weight. No deficiencies in Olexo's 

recollection were elicited at hearings and Inspector Bondra 

admitted that he was unable to locate his contemporaneous 

notes that would support his testimony. Under the 

circumstances I £ind that the Secretary has failed to sustain 

2302 
her burden of proving the violation charged in Citation No. 

2887805. The Citation must accordingly be vacated. 

Citation No. 2887807 

Inpector Bondra testified that he found that the set of 

air lock 6oors at the 8 Left supply station were not properly 

installed in that upon opening the first set of doors at the 

track entry side the second set of doors automatically opened 

about 8 inches. Bondra claims that he felt air flowing from 

the track entry into the intake escapeway. There is no 

evidence that the doors were otherwise defective. It is not 

disputed that no one was present with Inspector Bondra at the 

time of his observation of this condition. It is also 

undisputed that the 8 Left doors were used more frequently 

than the other doors cited in these cases in that supplies 

were moved through those doors onto the section. I find 

that the violation i3_ proven as charged. The undisputed 

evidence of a gap in the second set of doors of a inches upon 

the opening of the first set of doors is sufficient to show 

that the doors were not "reasonably air tight" and therefore 

did not form a proper "air lock." 

Bondra relied upon his testimony in regard to the prior 

violations in support of his "significant and substantial", 

gravity and negligence findings herein. For the reasons 

already stated I Eind that the instant violation was likewise 

not "significant and substantial" nor of high gravity. The 

unchallenged findings of "moderate negligence" are accepted. 

In determining the appropriate civil penalties in these 

cases I have also considered the stipulations concerning the 

operator's size, history of violations and good faith 

abatement. 

ORDER 

Citation No. 2887805 is vacated. Citations No. 2387804 

and 2887807 are affirmed as non-"significant and substantial" 

citations and Beth Energy Mines, Inc., is ~irected to pay 

civil penalties of $75 each within 30 daysi\,f the date o] 

this decision for the violations fharged tt~rein. 

~ f! •·! ...... 

Ii , fi I ··. 

;: /'~ .···.. I ·: 

l

u [).;~. ", ... ~~,.-- Gar:y Melick ~/ 

Adminis~rativ~ Law Judge 

( 7o_3) 7:>6-6261.\ 

t 

2303 
Distribution: 

Paul D. Inglesby, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll Professional Corp., 

USX Tower, 57th Floor, 600 Grant Street, Pittsburgh, PA 

15219 (Certified Mail) 

nt 

2304 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 1 71989 

SECRE·r ARY OF LABOR, 

MINE SAFE·ry AND HEALTH 

ADMINISTRATION, CMSHA), 

Petitioner 

v. 

BETH ENERGY MINES, INC., 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket.No. PENN 89-184 

A.C. No. 36-00840-03682 

Cambria Slope No. 33 

Appearances: Paul_D. Inglesby, Esq., U.S. Department of Labor, 

Office of the Solicitor, Philadelphia, Pennsylvania, • 

for Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh, 

Pennsylvania for Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil 

penalty filed by the Secretary of Labor pursuant to 

Section 105Cd) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq., the "Act," charging Beth 

Energy Mines, Inc., (Beth Energy) with two violations of 

regulatory standards. The general issues before me are 

whether Beth Energy violated the cited regulatory standards 

and, if so, the appropriate civil penalty to be assessed in 

accordance with Section llOCi) of the Act. 

At hearing the Secretary filed a Motion to Approve a 

Settlement Agreement with respect to Citation No. 2888987 

proposing a reduction in penalty from $329 to $255. I have 

considered the representations and documentation submitted in 

the case and conclude that the proffered settlement is 

appropriate under the criteria set forth in Section llOCi) of 

the Act. Accordingly an appropriate order will be 

incorporated as part of this decision setting forth the terms 

of payment for the noted penalty. 

The citation remaining at issue, No. 2887802, alleges a 

"significant and substantial" violation of the mine 

operator's Ventilation System and Methane and Dust Control 

Plan under 30 C.F.R. § 75.316 and charges as follows: 

The approved Ventilation System and Methane and 

Dust Control Plan was not complied with in that the 

airlock installed in the seven left chute 

2305 
• 

area, between the tractor trolley No. 6 Entry and 

intake escapeway No. 4 Entry was not properly 

installed. Both doors were installed to open outby 

away from each other and a proper airlock was not 

utilized. This citation was revealed during a mine 

tire accident that occurred in the seven left chute 

area on 9-1-88. 

At the conclusion of the Secretary's case-in-chief 

counsel for Beth Energy moved for an involuntary dismissal 

for insufficient evidence. The motion was granted in a bench 

decision. That decision is set forth below with only 

nonsubstantive corrections: 

All right. I must say it's a nice try by the 

Government but the evidence really is not 

sufficient to suppo~t the citation. The citation, 

of course, does state, and I will read from the 

citation: 

The approved ventilation plan system and 

methane and dust control plan was not 

complied with in that the air-lock 

installed in the number seven chute area 

between the track trolley, number six 

entry, and the intake escapeway, number 

four entry, was not properly installed. 

Both doors were installed to open outby 

away from each other and a proper 

air-lock was not utilized. 

The violation alleged was that the system of 

doors here cited did not provide a reasonably 

airtight air-lock as set forth in the ventilation 

plan, Exhibit G-2(A). The Government does concede 

through the testimony of Inspector Sondra that the 

ventilation plan does not require any particular 

construction for these doors, only that they must 

be reasonably airtight to form an air-lock. So 

the doors (and this is again conceded by the 

Government) need not have a latch, they need not 

close automatically and they need not in themselves 

open in cectain directions. That in itself is not 

a violation. The Government also acknowledges that 

when the doors here cited (the three and four and 

one and two doors that wece designated on Court 

Exhibit Number One) were closed, they were, in 

fact, admittedly reasonably airtight ~nd formed an 

air-lock. 

The Government also acknowledges that it did 

not test the cited doors number three and four when 

doors one and two were opened to determine whether, 

2306 
in fact, they would remain reasonably airtight upon 

the opening of doors one and two. The Government 

would have this Court infer from tests on other 

doors that the cited doors would open, that is, 

doors number three and four would open upon the 

opening of doors one and two. But there has not 

been sufficient evidence of the similarities 

between the previously tested doors and the 

untested doors here at issue for me to draw such an 

inference. · 

The evidence is clear that the ability of the 

doors to seal would vary depending on the contour 

of the roof and floor, the condition of the rubber 

belt edging contacting the floor and roof, etc. 

Thus the amount of air it would take to open the 

numbers three and four doors upon the opening of 

the numbers one and two doors could vary widely. 

So I cannot infer from tests on other doors, the 

conditions of which may vary considerably, that the 

same air velocity would also open the doors at 

is3ue here. Therefore, I cannot find that the 

government has met its burden of proving that the 

numbers three and four doors here would have opened 

upon the opening of the number one and two doors 

from the difference in air pressure alone. 

Now if the Government had in fact tested these 

doors and found that they did open that's a 

different case. But the tests were not performed 

here and without those tests there is simply not 

sufficient proof in my mind to support the 

allegations in the citation. Therefore, I'm going 

to vacate the citation and grant the motion to 

dismiss. 

ORDER 

Citation No. 2888987 is affirmed and Beth Energy Mines, 

Inc., is directed to pay a civil penalty of $255 within 30 

days of the date of this decision. Citatio No. 2887802 is 

vacated. 

Law Judge 

2307 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

BETH ENERGY MINES, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Petitioner 

NOV 171989 

. . CONTEST PROCEEDING 

Docket No. PENN 90-2-R 

Order No. 2892059; 9/27/89 

Cambria Slope Mine No. 33 

Mine ID 36-00840 

DECISION 

Appearances: Paul D. Inglesby, Esq., U.S. Department of Labor, 

Office of the Solicitor, Philadelphia, 

Pennsylvania, for Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll, 

Pittsburgh, Pennsylvania for Respondent. 

Before: Judge Melick 

This contest proceeding is before me upon expedited 

hearings pursuant to Section 105(d) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et~., the 

"Act," and Commission Rule 52, 29 C.F.R. § 2700.52, to 

challenge a withdrawal order issued by the Secretary of Labor 

against Beth Energy Mines, Inc., (Beth Energy). 

The Order at issue, No. 2892059, charges as follows: 

The approved ventilation and methane and dust 

control plan was not being complied with in the 

4 West Main 8 Right area of the mine in that an 

intake regulator had been constructed in,No. 3 

intake entry of 8 Right without prior approval of 

the District Manager. It was explained to this 

operator on several previous occasions that prior 

approval must be granted by the District Manager 

before installing an intake overcast. 

Following the presentation of the Secretary's case, 

counsel for Beth Energy filed a Motion to Vacate the order 

for lack of evidence. The motion was granted at hearing in 

a bench decision. That bench decision is set forth below 

with only nonsubstantive corrections: 

2308 
All right. Well I'm compelled to grant the 

motion to vacate. I don't have any choice. The 

Government's expa.rt, Mr. O'Rourke, has indeed 

testified that there is not sufficient information 

in the record presented to him {and indeed, the 

Government was even given an opportunity after it 

concluded its case-in-chief to present such 

information, but declined to do so) from which he 

could determine whether the device at issue here 

was indeed a regulator. Since the Government 

could not, in fact, prove that the device was a 

regulator, then, of course, it cannot be shown that 

the device was in any event such a device that 

required any kind of approval in the Ventilation, 

Methane and Dust Control Plan or in any of the 

attendant submissions required under 30 C.F.R. 

section 75~316. Therefore the Government's case 

must fail. The order must be vacated and the 

contest is granted. 

·ORDER 

Order No. 2892059 is vacated and this 

granted. 

1, 

G y MJJick 

Adi ini~t:.rative 

Distribution: 

{ 703) 7'.r· 6-6261 

R. Henry Moore, Esq., Buchanan Ingersoll, 600 Grant 

58th Floor, Pittsburgh, PA 15219 {Certified Mail) 

Street, 

Paul D. Inglesby, Esq., U.S. Department or Labor, Office of 

the Solicitor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA. 19104 {Certified Mail> 

nt 

2309 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 171989 

SECRE'rARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION, Docket No. SE 89-107-D 

on behalf of 

DAN NELSON OTC&! CD - 88-01(2) 

Complainant 

and Mine No. 7 

UNITED MINE WORKERS OF AMERICA: 

Intervenor 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

AMENDED DECISION 

Appearances: Colleen Geraghty, Esq., Office of the 

Solicitor, 

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

for Complainants; 

Patrick K. Nakamura, Esq., Longshore, Nakamura, 

and Quinn; Birmingham, Alabama, for United Mine 

Worker of America; 

David M. Smith, Esq., Maynard, Cooper, Frierson 

and Gale; Birmingham, Alabama, for Petitioner. 

Before: Judge Melick 

Pursuant to Commission Rule 65(c), 29 C.F.R. § 2700.65(c) 

the decision attached hereto is hereby subs ituted for the 

decision issued in this case on November 13, 1989, for 

purposes of clarification. 

; 

j 

Gary 

Admini (703)\ 

2310 

trative 

56-6261 

Judge 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

November 17, 1989 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION, Docket No. SE 89-107-D 

on behalf of 

DAN NELSON OTC&! CD - 88-01(2) 

Complainant 

and Mine No. 7 

UNI'l'ED MINE WORKERS OF AMERICA: 

Intervenor 

v. 

JIM WALTER RESOURCES, INC., 

Respondent 

DECISION APPROVING SETTLEMENT 

AND 

ORDER OFJ5ISMISSAL 

Appearances: Colleen Geraghty, Esq., Office of the Solicitor, 

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

for Complainants; 

Patrick K. Nakamura, Esq., Longshore, Nakamura, 

and Quinn; Birmingham, Alabama, for United Mine 

Worker of America; 

David M. Smith, Esq., Maynard, Cooper, Frierson 

and Gale; Birmingham, Alabama, for Petitioner. 

Before: Judge Melick 

At hearing Complainant requested approval of a 

settlement agreement in the captioned case proposing a 

penalty of $2,000. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the relevant 

criteria set forth in Section llO{i) of the Act. 

WHEREFORE, the settlement is approved and it 

that Respondent pay a penalty of $2,000 within 30 

this order. The case is accordingly dismissed. 

/ 

/ 

I 

2311 t 

J 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

L.E.L. CONSTRUCTION, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 88-274-M 

A.C. No. 05-04057-05505 K2M 

Gold King Mine 

Appearances: Robert J. Murphy, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Russell E. Yates, Esq., Yates & Davies, Durango, 

Colorado, 

for Respondent. 

Before: Judge Lasher 

This matter was commenced by th~ Petitioner's filing of a 

Proposal for Penalty on August 29, 1988, seeking assessment of 

civil penalties for two alleged violations CT. 91) described in 

two Citations (numbered 2636419 and 2636420) issued by MSHA 

Inspector Royal B. Williams on April 12, 1988. 

At the close of hearing on June 21, 1989, Petitioner moved 

to withdraw its prosecution of Citation No. 2636420 (alleging 

Respondent's alteration of a fatal roof-fall accident scene in 

violation of 30 CFR § 50.12) and such motion was granted on the 

record CT. 218-220). Accordingly, this Citation will be vacated 

by subsequent order herein. · 

The remaining Citation, No. 2636419, as modified, was 

issued pursuant to Section 104(d)(l) of the Federal Mine Safety 

and Health Amendments Act of 1977, 30 u.s.c. Section 801, et 

seq., and charges Respondent with an infraction of 30 CFR § 

57.3200, as follows: 

On March 13, 1987, a fatality occurred 

from a fall of ground in the Gold King No. 7 

drift. Shortly after this fatality two supervisors took a miner into the area for the sole 

purpose of retrieving a rock drill and jackleg 

2312 
to prevent it from being caved on. The supervisors were aware that the fatality hag occurred 

from a fall of ground. The roof where the rock 

drill and jackleg was, had not been barred down 

or supported after the fatality. Supervision 

knew that the condition created an imminent 

danger to themselves and the miner. This is an 

unwarrantable failure to comply with a mandatory 

standard. 

30 CFR § 57. 3 200, pertaining to "Correction of Hazardous 

Conditions," provides: 

Ground conditions that create a hazard to 

persons shall be taken down or supported before 

other work or travel is permitted in the affected 

area. Until corrective work is completed, the 

area shall be posted with a warning against entry 

and, when left unattended, a barrier shall be 

installed to impede unauthorized entry. 

BACKGROUND 

Shortly after the fatal accident, MSHA issued two enforcement documents to Respondent, Order No. 2634865 and 

Citation No. 2639864. These two violations were the subject 

of an earlier proceeding and a Decision approving the parties' 

settlement thereof - with penalties totalling $6,020.00 - was 

issued October 21, 1988, by another Judge (See Ex. C-1). The 

record indicates that during the original MSHA investigation 

following the accident there was no indication that anyone had 

re-entered the mine following the fatality CT. 50-53, 134; 

Ex. P-2). 

Thereafter, and some 9 or 10 months following the accident, 

MSHA initiated a second-special-investigation pursuant to 

Section llO(d) of the Act to determine if a wilful violation 

had been involved (T. 75). MSHA Special Investigator Benjamin 

M. Johnson conducted this investigation CT. 71, 74, 76). While 

Mr. Johnson was unable to interview Supervisor Boyd L. Hadden 

or miner Jody Booker CT. 76-80), he did conduct a tape-recorded 

interview and obtain the statement of Fred M. "Ted" Yates CT. 76). 

2313 
In this interview, apparently for the first time, Yates made -

according to Mr. Johnson - the following disclosure: 

A. In my interview with Mr. Yates, he 

disclosed to me that after the fatality 

had occurred, at approximately 1400 hours, 

that he and Boyd Hadden and Jody Booker 

had returned to the mine to remove the 

jackleg and drill that was at the accident 

site. 

(T. 76-77) 

Based on his Section 110 investigation, Special Investigator 

Johnson recommended the issuance (by Inspector Williams) of the 

two enforcement documents involved in this proceeding CT. 80, 

82, 89, 90). Since, as above noted, Mr. Johnson was unable to 

interview Mr. Hadden because of Mr. Hadden's refusal to be interviewed, and was unable to locate Jody Booker or to interview 

Mr. Larry Luzar, the owner of Respondent (T. 77-78), it thus 

appears that the determination to issue these two Citations was 

primarily based on information submitted by Mr. Yates approximately one year after the accident occurred CT. 76-80, 82, 83, 

9 5) • 

ISSUES AND CONTENTIONS 

Citation No. 2636419 charges that two supervisors 1/ took 

a miner 2/ into the area where a fatality (to miner Donald Goode) 

had occurred from a ground fall for the "sole purpose" of retrieving a rock drill and jackleg "to prevent it from being caved 

in on." The Ci tat ion also charges that the roof in this area had 

not been barred down or supported after the fatality and that 

supervision knew that the condition created an imminent danger 

to themselves and to the miner. 

11 Identified in the record as Fred M. "Ted" Yates, leadman 

on the shift preceding the accident, and Boyd L. Hadden, 

supervisor. It is subsequently concluded that only Yates, a 

supervisor went back in the mine with a miner. 

2/ Identified in the record as Jody Booker, a miner. Mr. Booker 

was not available to testify. 

2314 
Respondent contends in its post-hearing brief that an 

entry into the mine by Yates was contrary to the direct order 

of the mine owner, Larry Luzar, and thus unknown to management, 

thus raising the question whether a violation Cif one occurred) 

by shift boss Yates is attributable to Respondent. 

A second matter important to determination ·of this case is 

resolving a conflict of testimony between Yates and Hadden as 

to Hadden's participation in the alleged violation and assessing 

the degree of weight and reliability to be attributed to their 

accounts of critical happenings. 

FINDINGS 

On March 12, 1988, the day before the accident, Fred M. 

"Ted" Yates, who has a total of 3 2 years prior mining experience, 

was working as "lead miner" with two other miners, Grady Colby 

and Jody Booker on the 4 p.m. to midnight (swing) shift CT. 27, 

29-30, 210). After the shift, Mr. Yates left a note in the shop 

(a van truck) outside for the morning shift advising them to 

watch the left rib as it was peeling CT. 30, 31, 205). According 

to Yates, the condition was "bad" meaning the rib "was peeling, 

slabbing, some small rocks was falling" CT. 29-31, 35). 

The following day, March 13, 1988, the day of the accident 

at approximately 3:15 p.m. CT. 37) Yates and Jody Booker, a 

miner, stopped at the home of the mine owner, Larry Luzar, for 

the following stated purpose: 

"We was going to talk to him to see 

~hat he wanted to do, what we was going 

to do there that night, because we 

figured that we was -- didn't want to 

work there without timbering it or 

bolting it, or something to secure it." 

CT. 32) 

Luzar was not home and Mrs. Luzar advised Mr. Yates and 

Jody Booker that there had been an accident at the mine. Yates 

and Booker proceeded toward the mine where, approximately 

5 miles therefrom they encountered the ambulance to which Donnie 

Goode was being transferred CT. 36-37, 209-211). Mr. Goode was 

in a stretcher beside the ambulance and was being administered 

CPR by Mr. Luzar. Mr. Luzar and Grady Colby, one of the swing 

shift crew, then left together with Mr. Goode in the ambulance 

to proceed to Durango CT. 37-38). 

2315 
Yates' version of the Violation. Although Mr. Yates, as lead 

miner, was paid at the same rate as regular miners CT. 30), it 

nevertheless appears that he was in charge of the 4 p.m. to midnight shift, and that he made necessary management decisions and 

told the crew what to do CT. 30, 178, 205, 210-211). According 

to MSHA Investigator Johnson: 

"During the interview with Mr. Yates, 

he told me that he was in a lead 

miner position, and that he supervised 

individuals on the night shift. He had 

the responsibility of instructing them 

where to work and how to work, he had 

the responsibility to see that they put 

in a full shift." 

CT. 83) 

It is concluded that Mr. Yates, at material times, was a 

supervisor. 

According to Yates, and the subject of important disagreement in the record, he, Jody Booker - and Boyd Hadden - went 

back to the mine after the accident "to pick up the outsid.e man. 11 

CT. 38). The "outside man" was identified in the record as 

Jody Morris CT. 67). Mr. Yates testified that "All three of 

us decided to go in and look and see what happened. I wanted 

to go in and see what had happened." 3/ CT. 39). This was at 

approximately 5 p.m. 

Using Exhibit C-2, a drawing of the mine he rendered during 

the hearing to depict the accident scene, Mr .• Yates gave his 

version of what constituted the alleged violat"i6n: 

A. Yes, where the work was going on. Okay, and I seen 

that the rock that had killed Donnie was laying there, it 

was right approximately two feet from the left rib of the 

old drift. 

Q. Okay. 

A. The machine was laying approximately five feet back, 

laying down in the bottom of the drift. 

ll This appears to be Mr. Yates' motivation for the violative 

conduct. 

2316 
Q. Five feet back from the rock? 

A. Yes, from the rock. 

Q. And what machine was that? 

A. That was a jackleg. 

Q. Okay. And was there a drill nearby or a jack leg --

A. Of course it's all hooked together. The leg and the 

machine is all together, and the hoses are hooked to the 

machine. 

Q. Okay. 

A. And at that time Boyd picked the machine up and set 

it against the left rib, approximately five feet back. 

Q. So he picked up the machine? 

A. We never unhooked the hoses or nothing. And me and 

Jody Booker was right here, to the right rib of the 

of where the machine was, right there. 

Q. ·How close was the machine to where the actual spot 

where Mr. Goode was killed? 

A. It was three to four feet, it was right there. 

Q. And how close did you come to that spot? 

A. Probably 15 feet, me and Jody Booker stood right over 

here on the right rib. 

Q. You were on the right rib? 

A. Yes. 

Q. About 15 feet? 

A. Uh-huh. 

Q. And what did Mr. Hadden do? 

A. He moved the machine from -- picked it up out of the 

drift and set it up against the rib, back from -~ about 

five feet back. 

2317 
Q. Did he tell you why he was doing this? 

A. To keep from getting buried· right there. 

Q. Do you recall what he said to you? 

A. To keep it from getting hit. 

Q. Okay. Now, what did Mr. Hadden do then? 

A. We left the mine. 

Q. Okay. How long were you actually in the mine at that 

time? 

A. Just the time it took to walk 2,600 feet, and we was in 

there probably 10 to 15 minutes, and then went back out. 

Q. Did either you or Mr. Jody Booker lend any assistance 

in moving this machine? 

A. No,' we didn't. 

Q. Can this machine be moved by one person? 

A. Yes. It's a one-person machine. 

Q. All right. And approximately how many feet did he move 

the machine? 

A. I'd say five feet." 4/ CT. 40-42) 

Hadden's Version. Boyd Hadden, who was actually present in 

the capacity of supervisor CT. 165-167) when the ground fell 

on Mr. Goode, denied later returning to the accident scene with 

Mr. Yates and Jody Booker CT. 175, 190). 

After describing the accident itself in some detail CT. 167-

172), and the trip from the mine in a Suburban to the place in 

!/ See also T. 68-69. 

2318 
the road where Mr. Goode was transferred to the ambulance, 

Mr. Hadden gave this account of what happened: 

Q. Okay. Did Ted Yates appear on the scene? 

A. Yes, he did. 

Q. When did that happen? 

A. This was shortly after the ambulance showed up. 

Q. And did you have any discussion with Ted Yates, or did 

Mr. Luzar, in your presence? 

A. The only-thing I remember saying to Ted was he asked 

me what happened, and I said, "A rock fell on him." His 

partner jumped in the ambulance, he was -- he --

Q. Who was his partner? 

A. Grady Colby. 

Q. Okay. 

A. He offered -- he just volunteered himself without really 

speaking, he jumped in and went to work on Donn.ie Goode. 

Larry was still there working on him even after he was 

transported from the ground into the ambulance. 

They was working on him, but Larry had told Ted and 

Jody Booker to go shut down the fans, lock it up, and go 

home. Gary Woggen and I had the Suburban, and I was the 

number one driver of the Suburban. I took care of it, I 

was the mechanics on the job, I was also the bus driver, 

I drove the Suburban. 

Q. Were you present then when Larry Luzar gave that order? 

A. Yes, I was. 

Q. Okay. Now, what did you do after that -- I assume the 

ambulance left with Donnie Goode? 

A. Yes. 

2319 . 
Q. And then what did you do? 

A. I took Gary Woggen home in the Suburban. I dropped him 

off at his house, I turned around at his house, and headed 

across town, Doug Taylor stopped me at the Bengal Trailer 

Park, asked me what had happened, I said, "Donnie Goode got 

hit in the head with a rock." He said, "How bad?" And I 

said, "It didn't look very good." 

And I was upset, and I went straight home. 

Q. Did you go back to the mine? 

A. No, I didn't. 

Q. Did you move the jack leg? 

A. No, I didn't. 

Q. Did you order anyone else to go in the mine? 

A. No, I didn't. 

Q. Why did Ted Yates -- do you know why --

A. Ted Yates went in that mine on his own, him and Jody 

Booker, just to look to see the scene. What happened there, 

there, I don't know. 

Q. How do you know that? How do you know he went in there? 

A. He told me first off, he had told me that he had gone in 

and looked at it -- this was later he had told me that 

they had gone in and looked at it. 

Not only that, there was a loader outside that they 

had taken under and they had parked in the entryway of that 

new drift. That was one dry drift that didn't have a lot 

of copper qrsenic leaking in it, which eats still up the 

loaders, and that will eat them up. They took that loader 

and parked it in there. And whenever we come back the 

loader was right there." (Emphasis supplied) 

CT. 172-176) 

2320 
Credibility Resolutions. In determining whether Mr. Hadden 

returned to the accident scene with Mr. Yates and Jody Booker, 

it is to be noted that neither Mr. Booker, Gary Woggan (mentioned 

by Mr. Hadden in his testimony), or Jody Morris Ca part-time 

mechanic who was left at the mine after the accident) were available as witnesses at the hearing to break the deadlock between 

Mr. Hadden and Mr. Yates. Thus, determination of the issue 

rests on whether Mr. Yates' or Mr. Hadden's testimony should be 

given the greater weight. On this record, it is concluded that 

Mr. Hadden's testimony that he was not present when Mr. Yates 

and Booker went back in the mine should be credited. Mr. Yates' 

recollection of events is subject to some question since there 

was a significant inconsistency in his testimony. Thus, he 

denied speaking with owner Larry Luzar on the road when Mr. Goode 

was transferred to-the ambulance CT. 44-45). Yet, in the written 

statement given to Investigator Johnson (Ex. R-1), he indicated 

that Luzar told him, Booker and Hadden "to return to the mine, 

lock up the mine and bring the outside man, Jody Morris, down 

from the mine." (Ex. R-1; T. 44-46, 66-67, 214-215). 

Also, Mr. Yates, at the bottom of his written statement 

CR-1) saw fit to give a qualifying wrap to his rendition of the 

events constituting the violation: 

"It has been a long time since the 

accident happened and this is as close to 

the way I remember it. I am being truthful in this statement as I can rember (sic) 

it, I am not trying to cause any problems 

for anyone. 11 

On the other hand, Mr. Hadden's testimony is more convincing 

and emphatic, and is more consistent even though he was subjected 

to a higher degree of cross-examination at hearing CT. 189-201). 

Accordingly, it is concluded that only one supervisor (Mr. Yates) 

and Mr. Booker returned to the accident scene. The question next 

arises whether the ground conditions they traveled under created 

a hazard and whether such had been supported after the accident. 

Ground Condition. The accident occurred on a Friday. On the 

following Tuesday, March 17, 1987, Dennis J. Tobin, an experienced MSHA inspector, while making an inspection - and as he 

approached the accident site approximately 2,500 feet into the 

drift near the intersection of the old drift - encountered 

"a drastic change in ground conditions." (T. 126). He observed 

"several intersecting cracks" in the ground conditions and "there 

was considerable evidence of fractured ground, not only on the 

left-hand rib but overhead." CT. 127). The ground conditions 

2321 
were so dangerous that Inspector Tobin issued a withdrawal order 

which included not only the area of the accident scene but also 

included an additional area of 150 feet of ground up to the area 

in issue CT. 130-131, 133, 135, 140). 

In his accident report (Ex. P-2) Inspector Tobin described 

the subject area as follows: 

There was evidence of several ground failures the 

full length of the new drift. There was an estimated 

3-tons of loose piled rock in the vicinity where Goode 

was injured. The air and water hose to the jackleg 

drill also had been partially buried for a distance of 

about 10 feet. This area was still spalling rock when 

the investigation team was examining the scene. There 

was no evidence there had been any attempt to support 

the ground for the entire 150 feet of the new drift 

and fault area. Luzar stated that no one had been in 

the mine since the accident. 

With respect to the condition of the ground in the subject 

area, Mr. Yates testified that when he went back into the area 

shortly after the accident he was concerned that other ground 

might fall and that "it was dribbling a little." CT. 68). This, 

of course, follows on the heels of the fatal ground fall as well 

as Mr. Yates' considerable concern (described above} immediately 

before the accident that the conditions were "bad." 

Supervisor Hadden, also made the concession that in th~ 

4-6 hours following the accident, the ground conditions would 

not have improved: 

Q. And did you do anything to improve the ground 

conditions in that mine in the next four days? 

A. Absolutely not. 

Q. Okay. 

A. We wasn't working there. 

Q .. So the ground conditions were serious enough to kill 

Mr. Goode at approximately 2:45 on March 13, 1989; is 

that not correct? 

A. Yes, sir. 

2322 
Q. Okay. So you would agree with me then that those 

conditions are not going to improve in the next four to 

six to eight hours; is that not right? 

A. Absolutely not. 

Q. So in the event that Mr. Yates is telling the truth, 

and that people actually did go into that accident site, 

they went into an accident site where ground conditions 

were dangerous. 

If what he says is true, you would have to assume 

that, would you agree with me on that? 

A. I can't agree with you there, sir, because I don't 

agree with what Mr. Yates said to begin with. 

Q. I said "assume" that just for the purpose of my 

question. 

A. If Mr. Yates went in there then the conditions wasn't 

any better, I'll agree. 

(T. 182-184) 

CONCLUSIONS 

Occurrence. It is therefore concluded from the foregoing evidence that when Mr. Yates and Jody Booker entered the mine and 

went to the affected area after the fatal ground fall that, in 

terms of the standard, ground conditions were present there that 

created a ground fall hazard CT. 86) which had not been taken 

down or supported (T. 87). This constitutes a violation of the 

regulation cited. Respondent's contention (Respondent's Brief, 

Pgs. 4, 6, 7) that no violation occurred because Mr. Luzar was 

unaware that Mr. Yates and Booker went back in the mine and that 

such entry was contrary to his instructions is rejected as a 

defense. Mr. Yates is a supervisor and Respondent is bound by 

his actions, and in any event a mine operator is liable without 

regard to fault for the occurrence of a violation. Sec'y. v. 

Southern Ohio Coal Company, 4 FMSHRC 1459 (August 1982); Western 

Fuels Utah, Inc., 10 FMSHRC 256 (March 1988). 

Significant and Substantial. I further conclude that the violation was significant and substantial CS & S). 

A violation is properly designated S & s "if, based upon 

the particular facts surrounding the violation there exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

2323 
In Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission 

listed four elements of proof for S & S violations: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum the Secretary of Labor must prove: Cl) 

The underlying violation of a mandatory safety standard; 

(2) a discrete safety hazard--that is, a measure of danger 

to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result 

in an injury; and (4) a reasonable likelihood that the 

injury in question will be of a reasonably serious nature. 

In the United States Steel Mining Company, Inc., 7 FMSHRC 

1125, 1129 (1985) the Commission expounded thereon as follows: 

We have explained further that the third element of the 

Mathies formula "requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984). 

We have enphasized that, in accordance with the language 

of section 104(d)(l), it is the contribution of a violation to the cause and effect of a hazard that must be 

significant and substantial. U.S. Steel Mining Company, 

Inc., 6 FMSHRC 1866, 1968 (August 1984); U.S. Steel Mining 

Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

It has been previously found that a violation occurred. 

On the basis of prior findings I also conclude. that a measure of 

danger to safety was contributed to by the violation and there 

existed a reasonable likelihood that the hazard contributed to 

would result in a serious injury or fatality. Thus, not only was 

the inspector's opinion as to the "significant and substantial" 

nature of the violation CT. 85-87) left largely unrebutted, but 

the evidence demonstrates that the exposure of two miners to . 

the hazardous conditions present occurred within approximately 

2 hours of a fatal fall. Further, the unsafe conditions were 

shown to exist after the fall, and that there had been no barring 

down CT. 93, 112) or supporting the ground CT. 182) at the time 

of or before the exposure of these two miners, Yates and Booker, 

to serious injury or death CT. 86-87, 181). Finally, Mr. Hadden 

conceded that the conditions would not have been any better when 

Yates and Booker re-entered the area than they were when the 

fatal fall occurred CT. 183-184). The four prerequisite burdens 

of the Mathies formula are thus found to have been met by the 

Petitioner. 

2324 
Unwarrantable Failure. In connection with his op1n1on that the 

violation resulted from an "unwarrantable failure" of Respondent 

to comply with the standard, Inspector Johnson testified: 

"Your Honor, I designated this as an 

unwarrantable failure violation because 

information given to me proved that company 

officials knew -- had reason to know that 

a violation had existed, that a hazard was 

imminent, and they chose to ignore those 

conditions, thus endangering the lives of 

three more employees." CT. 87) 

In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), 

appeal dism'd per stip., No. 88-1019 (D.C. Cir. March 18, 1988), 

and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 

1987), the Commission held that "unwarrantable failure means 

aggravated conduct, constituting more than ordinary negligence, 

by a mine operator in relation to a violation of the Act." 

This conclusion was based on the ordinary meaning of the term 

"unwarrantable failure," the purpose of unwarrantable failure 

sanctions within the Mine Act, the Act's legislative history, 

and judicial precedent. Whereas negligence is conduct that is 

"inadvertent," "thoughtless," or "inattentive," unwarrantable 

failure is conduct that is "not justifiable" or is "inexcusable." 

From Mr. Yates testimony, we see quite clearly that although he was deeply concerned about the safety of the ground 

conditions before the fatal accident and that even though 

after the accident he had received instructions from the owner, 

Luzar, to lock up the mine and go home, he nevertheless either 

took or accompanied a rank-and-file miner, Booker, into the 

hazardous area. Further, knowing that the ground was dangerous 

and that a serious accident had just occurred, no precautions 

such as barring down or putting up support were taken. This 

conduct was inexcusable and I see no basis for not imputing 

to the mine operator this aggravated conduct of its supervisor, 

Yates. See Southern Ohio Coal Company, supra; Quinland Coals, 

Inc., 10 FMSHRC 705 (June 1988) (where mine foreman's awareness 

of dangerous roof conditions was chargeable to the mine operator). It is therefore concluded that the conduct of Mr. Yates 

was properly cited under Section 104(d)(l) as aggravated, and 

beyond mere negligence, and that Respondent's non-compliance 

with the standard was the result of this unwarrantable failure. 

2325 
PENALTY ASSESSMENT 

This small non-coal mine operator (Ex. C-1, T. 203) had 

a history of 2 violations (Ex. P-5) prior to the occurrence of 

the subject violation. Petitioner makes no contention that 

the violative condition (practice) was not immediately abated 

(T. 146) and Respondent makes no contention that payment of 

a penalty even at the level initially proposed by Petitioner 

($1000) would jeopardize its ability to continue in business 

(T. 146). 

I have previously found that this was a significant and 

substantial violation which resulted from an unwarrantable 

failure on the part of Respondent to comply with the standard 

cited. Therefrom it is concluded that this violation was of 

a relatively high degree of seriousness which resulted from a 

high degree of negligence (unwarrantable failure) on the part 

of Respondent's supervisor. In addition to the exposure of 

the supervisor himself to the hazard of serious injury or death 

from a ground fall, a rank-and-file miner was also exposed 

to such hazard, thus removing the so-called Nacco defense, 

3 FMSHRC 848 (April 1981) from applicability to this situation 

where the conduct of the supervisor (Yates) was unforseeable. 

Wilmot Mining Company, 9 FMSHRC 684 (April 1987); Southern 

Ohio Coal Company, supra, fn. 7. In mitigation of the amount 

of penalty to be found appropriate, the record indicates that 

this is a small mine, that the owner of the mine immediately 

after the accident directed that the mine be shut down, that 

the supervisorial employee for some reason disregarded such 

instruction, and that apparently all concerned were significantly shaken up by the trauma of the tragic event. It 

also appears that the culpability of the violation was less 

than originally gauged by the investigating agency. Thus, 

contrary to the. charge in the Citation, l supervisors did not 

take a miner into the area of hazard for the purpose, much 

less the sole purpose CT. 46, 61-62) of equipment retrieval. 

Respondent has previously paid significant penalties arising 

out of the fatal accident itself. In consideration of the 

foregoing, a penalty of $400.00 is found appropriate and here 

assessed. 

ORDER 

Citation No. 2636420 is VACATED. 

Citation No. 2636419, including the special findings 

of "unwarrantable failure" and "significant and substantial" 

designated thereon, is AFFIRMED except for the modifications 

noted in the "Penalty Assessment" section hereinabove. 

2326 
Respondent, within 30 days from the date hereof, shall 

pay to the Secretary of Labor the sum of $400.00 as and for a 

civil penalty for Citation No. 2636419. 

Distribution: 

~~~~ 4'. ~ /1 · 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 (Certified Mail) 

Russell E. Yates, Esq., L.E.L. Construction, P.O. Box 3522, 

Durango, CO 81302 (Certified Mail) 

/ot 

2327 
FEDERAL MINE SAFETY AND HEALTH REVIEW ~OMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

NOV 211989 FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFE'l'Y AND HEALTli 

ADMINISTRATION (MSHA) , . 

Petitioner 

v. 

HASKELL COUNTY GRAVEL 

CO. , INC. , 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-69-M 

A.C. No. 34-01287-05507 

Haskell County Pit & Plant 

Respondent ; 

DECISION APPROVING SETTLEMENT 

Appearance9,: Robert A. Fitz, Esq. , Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for 

the Secretary of Labor; Jerry Dick, Esq., 

Oklahoma City, Oklahoma, for Respondent. 

Before: Judge Broaerick 

Pursuant to notice, the above case was called for hearing 

in Tulsa, Oklahoma, on November 14, 1989. On the record, the 

Secretary reviewed her motion to approve a settlement in the 

amount of $5000, which I had denied by order issued October 30, 

1989. The record included a written statement from the owner 

of Haskell County Gravel, and copies of the company's income 

tax returns for 1986, 1987, and 1988. 

HasKeil County is a small operator. It employs 14 or 15 

persons and operates a single facility. Since it began 

business in 1983, it has operated as a loss. The tax returns 

for 1986 show a loss of $118,521; for 1987 a loss of $111,290; 

and for 1988 a loss of $171,516. The owner states that 

Respondent's performance will improve somewhat in 1989, -but 

it could still operate at a loss. The evidence submitted 

snows that the proposed penalty may have an adverse effect on 

Respondent's ability to continue in business. 

I have considered the motion in the light of the criteria 

in section llO(i) of the Act, and conclude that it should be 

approved. 

Accordingly, the settlement is APPROVED and, Respondent 

is ORDERED TO PAY the sum of $5000 within 30 days of the date 

of this oraer. 

. , J ,,. .. . ~ . • i . { .. ~· £_ 1tc{"u: '5 -~/J1-tG -v"c 

(/- James A. Broderick 

Administrative Law Judge 

2328 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.. NOV 211989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 88-287 

A~C. No. 36-05466-03654 

v. 

Emerald No. 1 Mine 

CYPRUS EMERALD RESOURCES 

CORPORATION, 

Appearances: 

Before: 

Respondent 

DECISION 

Susan M. Jordan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll, 

Pittsburgh, Pennsylvania, for the Respondent. 

Judge Koutras 

statement of the Case 

This proceeding concerns a proposal for assessment of civil 

penalty fi1ed by the petitioner against the respondent pursuant 

to section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 820(a), seeking a civil penalty assessment of 

$105 for an alleged violation of mandatory safety standard 

30 C.F.R. § 75.517, as stated in a section 104(a) "S&S" Citation 

No. 3096605, issued on May 27, 1988. The respondent filed a 

timely answer and notice of contest, and a hearing was held in 

Washington, Pennsylvania. The parties filed posthearing briefs, 

and I have considered their arguments in the course of my adjudication of this matter. 

Issues 

The issues presented in this proceeding are (1) whether the 

condition or practice cited by the inspector who issued the 

citation constitutes a violation of the cited mandatory safety 

standard, (2) the appropriate civil penalty assessment for the 

violation, taking into account the civil penalty·criteria found 

2329 
in section llO(i) of the Act, and (3) whether the violation was 

"significant and substantial" (S&S). An additional issue of 

interpretation raised by the respondent concerns the meaning of 

the phrase "shall be insulated adequately and fully protected" as 

stated in the cited standard section 30 C.F.R. § 75.517. 

1. 

Pub. L. 

2. 

3. 

4. 

Applicable Statutory and Regulatory Provisions 

The Federal Mine Safety and Health Act of 1977; 

95-164, 30 u.s.c. § 801 et seq. 

Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

30 C.F.R. § 75.517. 

Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated to the following (Tr. 4-7): 

1. The subject mine is owned and operated by the 

respondent, and it is subject to MSHA's jurisdiction. 

2. The presiding judge has jurisdiction to hear 

and decide this matter. 

3. The citation was properly served on the 

respondent by a duly authorized MSHA representative. 

4. The respondent's annual coal production is 

approximately 1.8 million tons, and the respondent is a 

large mine operator. 

5. The respondent's history of prior violations 

is stated in an MSHA computer print-out, (exhibit G-5). 

6. The proposed civil penalty assessment for the 

alleged violation will not adversely affect the respondent's ability to continue in business. 

7. The alleged violation was timely abated in 

good faith by the respondent within 5 minutes of the 

issuance of the citation. 

Petitioner's Testimony and Evidence 

MSHA Inspector Charles Pogue confirmed that he inspected the 

mine on May 21; 1988, and issued the citation citing a violation 

of section 75.517, because the power cable for the light switch 

block indicator was not protected at the point where the power 

cable crossed over the trolley wire. Mr. Pogue explained that 

2330 
the respondent had put a piece of conduit over the cable where it 

crossed the trolley wire, but for some unexplained reason the · 

conduit had slipped down the cable away from the trolley wire, 

thus resulting in a lack of protection for the.cable at the 

location where it crossed over the trolley wire. 

Mr. Pogue stated that the cable in question was located on 

the main track haulage used to transport crews into the mine 

working sections, and that supply trips, the safety department, 

and maintenance and ventilation jeeps also used the haulageway. 

The cable in question was used to supply power to the signal 

lights used to control vehicle traffic using the haulageway (Tr. 

13-16). 

Mr. Pogue described the cable as a four-conductor cable 

approximately one-half inch in diameter which was hung on insulators as it exited the non-metallic switch box and crossed over 

the trolley wire to the coal rib. He confirmed that the cable 

was protected by an outer insulating jacket, and that each power 

conductor'inside the cable was individually insulated. The outer 

insulating jacket was approximately one-sixteenth of an inch 

thick (Tr. 17). 

Mr. Pogue stated that he cited a violation of section 75.517 

because the conduit placed over the insulated cable was away from 

the point where the cable crossed over the trolley wire. He 

confirmed that the cable met MSHA's insulation specifications, 

but since the conduit which served as a guarding device had 

slipped away, he did not consider the cable to be "fully protected" as required by section 75.517. The citation was abated 

by simply rotating the conduit guarding so that it covered the 

cable where it crossed over the trolley wire (Tr. 18}. 

Mr. Pogue described the conduit guarding as plastic insulating material approximately 3 inches in diameter, and stated that 

it slid down the cable for a distance of 6 to 12 inches away from 

the point where the cable crossed the trolley wire (Tr. 19}. 

Mr. Pogue stated that section 75.517 requires the cable to 

be fully protected, and that MSHA's policy manuals require that 

power cables crossing a trolley wire has to have additional 

guarding over the cable to prevent damage to the outer jacket 

(Tr. 19, exhibits G-2 through G-4). He confirmed that the policy 

requirement has been in effect since he began inspecting mines in 

1975, and probably earlier '(Tr. 21). The purpose of this 

requirement is to provide additional protection to the cable and 

to prevent damage from equipment passing under it (Tr. 22). 

Mr. Pogue stated that he was concerned over a possible 

electric shock or electrocution hazard presented by contact with 

the energized power cable, and that these are the type of accidents or injuries that he would expect from the cited condition 

2331 
(Tr. 22). This could occur if a trolley pole on a piece of 

haulage equipment such as a transportation jeep passing under the 

cable came off the trolley wire and struck the cable and possibly 

cutting the outer cable insulation or conductors. If this 

occurred, and the damaged .cable fell on the energized trolley 

wire, it could cause the electrical light block circuit to become 

energized. Even though the light block had short circuit protection, if someone were performing maintenance work on the circuit 

control box he could come in contact with energized power wires 

as a result of the cable touching the trolley wire (Tr. 23-24). 

Mr. Pogue stated that the likelihood of an accident such as 

the one he described would be increased because the main haulageway is a highly traveled area, and the frequency of trolley poles 

hitting the cable would be increased. Mr. Pogue explained the 

various ways that a trolley pole could come off the wire and 

strike the cable. He described the equipment using the haulageway, and indicated that 7 out of 10 vehicles passing under the 

power cable in question would be equipped with trolley poles. 

Based on his experience, trolley poles frequently come off the 

trolley wire, and this could be caused by excessive vehicle 

speed, a bend in the trolley wire, or inadequate spring pressure 

on the pole. He confirmed that the trolley wire and power cable 

in question were both energized at the time he observed the cited 

condition (Tr. 25-29). 

On cross-examination, Mr. Pogue stated that the power cable 

crossed straight across the trolley wire, and that one would 

normally slow down in order to reach up and turn the light on or 

off. He confirmed that the distance from the mine floor to the 

roof was 8 feet, and that abatement was simply achieved by sliding the protective conduit back over the cable. The power cable 

was an MSHA approved cable, and there was no damage to the outer 

sheath (Tr. 31-32). 

Mr. Pogue stated that MSHA's policy only requires that a 

power cable be guarded above the trolley wire, and there is no 

policy guideline as to the distance that such a power cable must 

be protected on either side of the trolley wire (Tr. 34). He 

confirmed that the cable in question was provided with fuse 

protection, and that the outer cable insulated jacket, as well as 

the insulating material around the four interior cable conductors, would have to be damaged in order to present a shock 

hazard. Further, if this damage were-to occur, someone would 

have to reach up and over the trolley wire and grab the cable in 

order to be exposed to a shock hazard. If someone were working 

on the light, they may be able to see if the cable is touching 

the trolley.wire (Tr. 34-35). 

In response to a question as to whether the policy language 

which states "in some locations metal or non-metallic conduit may 

be necessary for additional protection against damage," indicates 

2332 
some discretion rather than an absolute requirement, Mr. Pogue 

responded "not on my part" (Tr. 40). 

Mr. Pogue confirmed that the conduit did not cover the 

entire length of the power cable from the trolley wire to the 

electrical light, and even though a trolley pole corning off the 

trolley wire could damage the cable between the electrical light 

box and the end of the protective conduit, he nonetheless in his 

judgment believed that the conduit which was on the cable sufficiently protected it (Tr. 41). 

Mr. Pogue stated that the hazards he described assumes that 

anyone working on the signal light will not notice the power 

cable in contact with the trolley wire, and that while working on 

the energized circuit, the person doing the work will not turn on 

the light switch to see whether it was energized or not (Tr. 42). 

He also confirmed that it is possible that a trolley pole will 

never come off the trolley wire while equipment is travelling 

along the entire haulagewa:ys, ·and that the area where the light 

was located was reasonably flat (Tr. 44). 

In response to further questions, Mr. Pogue stated that the 

power cable was approximately 6 inches above the trolley wire at 

the point where it crossed over the wire, and that the power 

cable voltage was 12 volts, and the trolley wire 300 volts (Tr. 

45) . 

Mr. Pogue believed that each of the examples stated in 

MSHA's policy with respect to protection for power cables crossing over trolley wires are mandatory and that he has no discretion to make individual judgments to determine whether or not any 

particular circumstances would require such additional guarding 

(Tr. 48--49) . 

Mr. Pogue surmised that the conduit slipped down the power 

cable because of equipment vibration or equipment striking the 

cable. He conceded that the cable was protected before the 

conduit slipped, and that the respondent made an effort to guard 

the cable (Tr. 54-56). 

Respondent's Testimony and Evidence 

Gary W. Bochna, respondent's safety representative, confirmed that he accompanied Inspector Pogue during his inspection. 

He stated that the distance from the mine floor to the roof at 

the cited location was 7-1/2 to 8 feet, and that the trolley wire 

was approximately 12 inches below the roof. He confirmed that he 

observed no damage or abrasions to the cable, and that the track 

haulage area in question was mostly level (Tr. 57-59). 

Mr. Bochna explained the function of the signal light and 

located it on the mine map. He. also explained the direction of 

2333 
the haulageways, and the haulage equipment passing through the 

location of the cited cable (exhibit R-1, Tr. 60-63). 

Mr. Bochna stated that it would be impossible for someone to 

contact the power cable "unless you reached up to it," and that 

someone would likely contact the trolley wire before reaching the 

power cable. He conceded that trolley poles occasionally come 

off the trolley wire, but believed that the pole would have to 

strike the cable "almost straight on" with a considerable amount 

of force in order to damage it to such an extent that the insulating wires inside the outer sheath would be penetrated. He did 

not believe that the pole would damage the cable by simply rolling over it (Tr. 64-65). 

On cross-examination, Mr. Bochna agreed that a trolley pole 

could cause an abrasion or minor damage to a cable, and that it 

was possible for a trolley pole to pull a power cable down if it 

jumped the trolley wire. He also agreed that if a power cable 

was damaged to th_e extent that the outer jacket and inner insulation were damaged, the cable could become energized through the 

live trolley wire if the cable were laying on the wire (Tr. 

67-68). He confirmed that the mine has a practice of providing 

additional protective conduit in the places where the cable 

passes over the trolley wire "because we've been cited on it 

before" and_"to k~ep from getting citations" (Tr. 68). 

In response to further questions, Mr. Bochna stated that if 

a trolley pole came off the trolley wire it could just as well 

strike the protective conduit guarding, and the pole could also 

hook the guarding as well as the cable. He stated that in his 

driving experience "I don't have that much problem of them coming 

off for me" (Tr. 71). 

Terry W. Coss, electrical engineer, stated that he has 

worked for the respondent in this capacity for 11 years, and that 

he is a certified electrician, and has a degree in electrical 

engineering from Ohio University, as well as MSHA certifications 

as a qualified electrician and electrical instructor. He also 

serves on an advisory committee for the Pennsylvania State 

Department of Environmental Resources, which includes the director of MSHA's Bruceton Research Center, an MSHA District Manager, 

and a representative from Penn State University, Consolidation 

Coal Company, the UMWA, and the Pennsylvania director of the 

Bureau of Deep Mine Safety. The purpose of the committee is to 

advise this bureau on electrical and non-electrical ~~oblems (Tr. 

78-80). -

Mr. Coss confirmed that he was familiar with the citation 

issued by Mr. Pogue, as well as the power cable in question, and 

he described the cable, its insulation features, and its functions. He confirmed that the cable is rated for 600 volts, and 

since it was only handling 300 volts, it was designed to handle 

2334 
more voltage than it was actually being used for. He also confirmed that the insulation on each of the individual cable conductors is rated for 600 volts, and that the outer cable jacket 

is approximately three-sixteenths of an inch thick. The jacket 

provides protection for the insulated conductors and it is constructed of a tough neoprene rubber compound (Tr. 80-83). 

Mr. Coss stated that the light switch in question has a 

3 amp fuse short circuit protection which provides more protection than MSHA' s 2.0 amp fuse protection requirement. He confirmed that the power cable is located 7 feet above the mine 

floor, and that one would have to reach up to contact it (Tr. 

84) . 

Mr. Coss stated that if the outer cable sheath were damaged 

and the individual inner wire conducter insulation was not, there 

would be no shock hazard to someone contacting the cable. Similarly, if the cable contacted the trolley wire, nothing would 

happen because the conductors are rated at 600 volts and the 

trolley wire is only 300 volts (Tr. 84-85). 

Mr. Coss confirmed that he has operated trolley vehicles 

underground, and that the height of the trolley wire would affect 

the force exerted on the pole striking the cable. If the cable 

is high, the trolley pole would strike it with lesser force than 

if it were lower (Tr. 86). He did not believe that it was likely 

that anyone on the ground would contact the cable above the 

trolley wire, and based on his experience, the outer cable sheath 

provides adequate protection for the power wires within the cable 

where it crosses over the trolley wire because it is a tough 

compound, and the likelihood of striking it is remote (Tr. 88). 

Mr. Coss stated that the additional conduit is not required 

to provide full protection to the cable where it crosses over the 

trolley wire, and that the reason conduit is provided at the mine 

is "to keep from getting wrote up" (Tr. 88). He confirmed that 

he has observed a conduit protected cable which was struck by a 

trolley pole, and that it pulled out the wires at the switch 

rather than cutting the cable (Tr. 89). 

Mr. Coss stated that the power cable safety ground wire is 

tied to the haulage track and the frame of the light switch. If 

any of the other wires were to touch the switch frame, it will 

ground and remove the power or blow the fuse (Tr. 89-90). 

On cross-examination, Mr. Coss stated that the trqlley poles 

are 5-1/2 to 6 feet long and are mounted on different places on 

the track equipment (Tr. 90). With respect to MSHA's position in 

this case, Mr. Coss stated as follows (Tr. 96): 

THE WITNESS: If you put conduit on here, there's less 

a chance of it getting damaged. Now, if you put a 

2335 
~our-inch I-beam across there, there's even less of a 

chance of getting damaged. But, you know, to what 

point do you go, and I don't feel that the extra protection that the conduit gives you is necessary, weighing the fact of the jacket and the possibility of it 

happening. 

JUDGE KOUTRAS: Do you think that particular jacket 

that's inherently a part of that cable as manufactured, 

protects it against physical damage that conceivably 

could happen where it's hung in the mine? 

THE WITNESS: Yes, sir. 

Discussion 

The contested section l04(a) "S&S" citation No. 3096605, 

issued by Inspector Pogue on May 27, 1988, citing an alleged 

violation of 30 C.F.R. § 75.517, states as follows (Exhibit G-1): 

"The light switch-power cable was not adequately protected where 

such cable passed over the energized trolley wire at the No. 1 

haulage Bohan Blvd. light switch." 

Mandatory safety standard 30 C.F.R. § 75.517, provides as 

follows: "Power wires and cables, except trolley wires, trolley 

feeder wires, and bare signal wires, shall be insulated adequately and fully protected." 

MSHA's policy interpretation and application for the insulation and protection of power wires and cables is stated in pertinent part in its underground manuals of March 9, 1978, June 1, 

1983, and July 1, 1988, (exhibits G-2 through G-4), as follows: 

Any ungrounded power conductor extending from the track 

entry for any purpose shall be insulated. In addition, 

power wires and cables shall be installed under. well 

supported roof and far enough away from any moving 

equipment to prevent damage; however, in some locations, metal or nonmetallic conduit may be necessary 

for additional protection against damage. Examples of 

these locations include: where power wires or cables 

other than trolley feeder wires cross the trolley wire; 

where power wires or cables pass through doors or 

stoppings; where power wires or cables are installed 

along supply storage areas; where power wires or cables 

are installed on tight corners with insufficient clearance;. or other areas where power wires or cables cannot 

be isolated sufficiently to afford protection. 

(Emphasis added) . 

The facts in this case establish that the cited light switch 

power cable was provided with an additional protective conduit 

2336 
which was installed over the outer jacket of the cable where it 

passed over the trolley wire. The conduit had slipped off to one 

side, and the citation was abated within 5 minutes when the 

conduit was rotated back and over the cable. 

Respondent's Arguments 

Respondent disputes the petitioner's contention that mandatory standard 30 C.F.R. § 75.517 requires additional power cable 

protection, such as a conduit, beyond that provided by the outer 

jacket of the cable. Respondent takes the position that on the 

facts of this case, no protection beyond that afforded by the 

outer jacket of the power cable is necessary. Respondent points 

out that section 75.517, does not specify the meaning of the term 

"fully protected," and that section 75.517-1 and 75.517-2, which 

help to define the term "adequate insulation," provide no guidance as to the meaning of "full protection." Respondent takes 

the position that since it is unclear whether a different level 

of protection is to be provided because of the use of the adjective "full" as opposed to "adequate, it may rely on the principle 

of statutory construction that one term may be defined by terms 

it is associated with, and that the use of "full" is equivalent 

to the use of "adequate." Respondent notes that if a different 

meaning of "full" is determined to be intended, it clearly would 

mean protection of the cable over its full length. In such an 

instance, respondent suggests that no violation would exist 

because there is no dispute that the cited power cable was protected along its entire length by the outer cable jacket provided 

by the manufacturer. 

In support of its case, the respondent cites the 

Commission's decisions in Homestake Mining Co., 4 FMSHRC 146 

(February 1982), and Climax Molybdenum, 4 FMSHRC 159 (February 

1982). The Homestake Mining case concerned an issue as to 

whether a metal/non-metal standard (57.12-82), could be construed 

to require additional insulation beyond that provided by the 

manufacturer. The standard required that "power lines shall be 

well separated or insulated from waterlines, telephone lines, and 

air lines." Despite the fact that an MSHA interpretative mem9 

had interpreted the standard to require insulation beyond the 

jacket provided by the manufacturer, the Commission held that a 

blanket requirement of additional insulation was not appropriate, 

and it stated as follows at 4 FMSHRC 148-149: 

We recognize that enforcement of the standard would be 

simpler if an inspector merely has to visually determine whether extra insulation has been added where 

power cables and pipelines meet. We fail to see, 

however, how this superficial examination bears any 

relationship to the purpose of the standard. Rather, 

in order to make a bona fide determination that insulation adequate to prevent the transmission of current to 

2337 

··------------
adjacent pipelines is present, the adequacy of the 

added insulation must be evaluated, and this determination must be based on the objectively determinable 

character of the powerline and the existing insulation. 

In order to achieve the purpose of the standard, 

enforcement should not turn on the subjective evaluation of an inspector, without the objective evaluation 

of whether a hazard is or may be present. Further, 

section 57.12-82 does not state that "additional insulation" must be placed between "powerlines" and pipelines; it merely requires separation or insulation. 

In the instant case, the respondent points out that Inspector Pogue issued the citation based solely upon his observation 

that the conduit previously installed over the power cable where 

it passes over the trolley wire had slipped off to one side of 

the trolley wire and upon his belief that MSHA's policy manuals 

imposed a mandatory duty on operators to provide additional . protection against physical damage to power lines which pass over 

trolley wires in all circumstances. Respondent maintains that 

the inspector's interpretation of the MSHA manuals as imposing a 

mandatory obligation to provide additional protection when power 

cables cross over trolley wires is incorrect. In support of its 

argument, respondent cites the following language found in MSHA's 

manual policy: "[IJn some locations metal or nonmetal conduit 

may be necessary for additional protection against damage." 

(Emphasis added) • 

Respondent argues that the cited policy language clearly 

does not describe a mandatory duty to have the additional protection of a conduit in all cases since the policy states that 

conduits may be necessary in some locations. Thus, respondent 

concludes that MSHA's official policy interpretation would appear 

to be similar to that expressed by the Commission in Homestake 

Mining and Climax Molybdenum. 

Respondent takes the position that there is no mandatory 

requirement under the Act that conduit be used in all cases, and 

since MSHA's policy manuals do not impose such a mandatory obligation, respondent argues that it was incumbent upon MSHA in this 

case to prove that the power cable was not fully or adequately 

protected. Respondent asserts that MSHA failed to put on any 

evidence to establish that the power cable was not adequately 

protected from physical damage. Instead, it relied solely upon 

Inspector Pogue's interpretation that the poiicy manuals require 

additional protection in all cases. Respondent notes that the 

inspector was not an electrical inspector and offered no testimony of a particular expertise or training in this area. 

Respondent maintains that it presented credible and 

unrebutted testimony that the cited power cable is adequately 

protected from physical damage by the manufacturer. It points 

2338 
out that the cable is enclosed in a Neoprene rubber outer jacket 

approximately three-sixteenths of an inch thick, and that 

Neoprene rubber is a tough compound. Respondent also cites the 

testimony of its electrical engineer, who has 11 years experience 

at the mine, who testified that bhe Neoprene outer jacket of the 

cable, as manufactured, protects the cable against physical 

damage ·that conceivably could occur where it is used in the mine. 

The respondent argues that in this case, because of the 

remote possibility that a trolley pole will come off the trolley 

wire where the power cable crosses it and cause some damage to 

the cable, there is no need for any additional cable protection 

other than the manufacturer's outer cable jacket. Respondent 

states that damage to the power cable by a trolley pole is 

unlikely because vehicles traveling on the tracks in this area 

must move slowly or stop in order to operate the light switch 

connected to the power cable making it less likely that the pole 

would come off the wire, the floor of the mine is relatively flat 

in this area, and trolley poles are less likely to come off the 

trolley wire in flat areas. Respondent further points out that 

there are no bends in the trolley track in this area, which again 

reduces the possibility of the trolley pole coming off the 

trolley wire, the roof is high in the area, which means there 

would be less tension on the trolley pole, which would result in 

a less severe impact if the pole were to jump off the trolley 

wire and strike the roof or the power cable. Respondent also 

points out that since the end of the trolley pole is blunt, it is 

unlikely that it would cut the neoprene outer jacket of the power 

cable if the pole should strike the cable. 

Additionally, respondent points out that the track in question· does not lead to active areas of the mine, and that traffic 

past the power cable is relatively light. Cdnsidering all of the 

aforementioned factors, including the fact that the outer jacket 

of the cable is designed by the manufacturer to provide protection from physical damage, the respondent concludes that it is 

obvious that additional protection from physical damage to the 

cable is not necessary. 

Respondent argues further that its position that the cable 

outer jacket is adequate to provide protection from physical 

damage is also supported by MSHA's policy manuals, which provide 

as follows: "The outer jacket of a cable is intended to protect 

the internal conductors from cuts, abrasion moisture, etc., and 

must be intact for the cable to be fully protected as required by 

Section 75.517." (G-3, p. 3, G-4, p. 4; Emphasis added.) 

Respondent concludes that the cited policy statement evidences MSHA's own interpretation that the "fully protected" 

requirement of section 75.517 can be satisfied by an undamaged 

outer jacket, and it points out that the outer jacket of the 

power cable in question was not damaged. 

2339 
Respondent finds further support for its position that the 

undamaged outer jacket of the power cable satisfies the requirement of full protection in MSHA's Underground Electrical Inspections Manual (Exhibit G-4), which explains when a violation 

should be cited under section 75.517. The manual states as 

follows: 

The outer jacket of a cable is intended to protect the 

internal conductors from cuts, abrasion, moisture, 

etc., and must be intact for the cable to be fully 

protected as required by Section 75.517. Therefore, if 

an inspector observes a cable with a damaged outer 

jacket, even though the insulation on the conductors 

has not been damaged, he should take appropriate action 

under Section 75.517 stating that the cable was not 

fully protected. · 

* * * * * * 

When Section 75.517 is cited, the inspector should 

specify one of the following in the citation: 

1. The insulation was not adequate (i.e., the 

insulation on the conductor is either damaged or 

missing) ; 

2. The cable was not fully protected (i.e., the 

outer jacket on the cable is either damaged or 

missing) ; or 

3. Both conditions exist on the cable. 

* 

Respondent maintains that the quoted manual policy statement 

clearly indicates that MSHA considers a power cable to be fully 

protected by the manufacturer's outer jacket if it is undamaged. 

Although recognizing the fact that MSHA's policy manuals do 

provide that additional protection may be required in some cases, 

the respondent argues that in this case the petitioner has failed 

to present evidence sufficient to establish that additional 

protection was required for the cited cable in question, and has 

therefore failed to establish a violation of section 75.517. 

Petitioner's Arguments 

Petitioner concedes that the cited light switch power cable 

was adequately insulated. However, it takes the position that 

the cable was not "fully protected" as required by the cited 

mandatory standard, 30 C.F.R. § 75.517, and MSHA's policy interpretations of this standard. · 

2340 
Petitioner argues that it has consistently interpreted 

section 75.517, to require protective conduit or guarding on 

power cables where it passes over trolley wires because cables in 

this position are subject to abuse from the different kinds of 

equipment travelling down the haulageway. Petitioner asserts 

that its primary concern is the prevention of damage from the 

trolley poles of equipment using the haulageway, and that the 

additional guarding requirement prevents damage to the cable from 

trolley poles which are known to jump off the trolley wire 

because of the spring tension on the pole. The guarding also 

provides protection against cable abuse which occurs over time 

through abrasions or the striking of the cable by trolley poles 

and other large pieces of equipment. 

Recognizing the fact that the express ianguage of a promulgated regulation would control over its inspection manual, petitioner nonetheless argues that its manual interpretation of 

"fully protected" is consistent with the broad language found in 

section 75.517, and absent other available guidance regarding the 

term "fully protected," it takes the position that its policy 

interpretation should be accorded deference and legal effect. 

Petitioner finds no merit in the respondent's argument that 

section 75.517, applies only to electrical and not physical 

protection. Petitioner argues that the obvious purpose of the 

standard is to protect miners against shock, electrocution, and 

fire that could result from inadequate insulation or protection 

of the power cable, and that in order to protect against these 

hazards, a cable must be protected electrically and physically. 

Petitioner points out that since the standard does not distinguish between electrical and physical protection, and since no 

other standard specifically addresses physical protection, it; 

applies to protection in general, including both physical and 

electrical protection. 

Recognizing the fact that the "may be necessary" language 

contained in its policy statements suggests discretion as to the 

location where additional conduit protection should be provided, 

and that Inspector Pogue testified that he believed he had no 

discretion insofar as the location examples listed in the policy 

are concerned, petitioner submits that the examples listed would 

also fall within the locations where "metal or nonmetallic conduit may be necessary." Petitioner concludes that the listed 

examples are clearly locations where power cables are more likely 

to be subject to abuse, and they are therefore strong statements 

that extra care needs to be taken in these locations to guard 

against cable damage and injuries to miners. Given the fact that 

the cited cable passed over trolley wire in a highly travelled 

haulageway used by miners and equipment going into and out of the 

working sections, petitioner submits that the cited location is 

one where cable conduit protection is necessary, rather than one 

where it "may be necessary." 

2341 
Findings and Conclusions 

Fact of Violation 

Inspector Pogue confirmed that the cited power cable was 

adequately insulated, met the requirements of MSHA's standards 

for such cables, and that it complied with the "adequate i'nsulation" requirement found in section 75.517. The parties are in 

agreement that this was the case. However, in view of the fact 

that the additional protective plastic conduit placed over the 

cable had slipped down and away from the cable at the point where 

it crossed over the track trolley wire, the inspector found that 

the cable was not "fully protected" as required by section 

75.517. Although the inspector's original description of the 

cited condition on the face of the citation stated that the cable 

was not "adequately protected," I find that his explanation as to 

why he issued the citation provides sufficient notice to the 

respondent to enable it to defend the citation, and the respondent has not suggested that the citation is deficient or otherwise unclear. 

The cited mandatory section 75.517, which is a statutory 

standard, does not explicitly require the use of any additional 

conduit protection over the protective outer cable jacket provided by the cable manufacturer. This additional requirement has 

been imposed by MSHA through its policy interpretations published 

in a general policy manual, as well as in the instructional 

policy guidelines found in the inspection manuals (Exhibits G-2, -

G-3, and G-4). Although the mandatory standards that follow 

section 75.517, sections 75.517-1 and 75.517-2, help to define 

the term "adequate insulation," they provide no guidance with 

respect to the meaning of "fully protected, and MSHA's policy 

guidelines are likewise devoid of any meaningful guidance. 

The respondent's assertion during the hearing that the 

requirement that power cables be "fully protected" refers only to 

ele.ctrical protection rather than protection from physical damage 

is rejected. I take note of the fact that section 75.517, does 

not distinguish between electrical and physical protection. It 

simply requires that power cables be adequately insulated and 

fully protected. In my view, the intent of the standard is to 

require protection for power cables in order to preclude those 

electrical hazards normally associated with inadequate cable 

insulation, i.g., shock, electrocution, and fires, as well as 

protection from these same hazards which may result from the 

exposure of such cables to potential physical damage or abuse by 

virtue of the location where such cables may be installed and 

used. In my view, although an adequately insulated power cable 

may afford protection against such hazards, and be_ in compliance 

with the "adequate insulation" requirement found in section 

75.517, if it is located in a mine area, or installed and used in 

2342 
such a manner as to expose it to potential damage and abuse from 

equipment, thereby destroying its insulating qualities, it may 

not be in compliance with the "fully protected" requirement found 

in section 75.517. 

I conclude and find that section 75.517, applies to power 

cable protection in general, including both electrical and 

physical protection. I further conclude and find that the 

standard imposes two requirements for the protection of power 

cables. The first requirement is that the cable be "adequately 

insulated" as that term is defined in sections 75.517-1, 

75.517-2, or as required by any other applicable power cable 

insulation standard. The second requirement is that a power 

cable be "fully protected" against any physical damage which may 

result in the course of the use of the cable at the particular 

location where it may be installed. 

If MSHA believes that additional cable protection is 

required at certain specified locations in an underground mine 

where the cable may be exposed to physical damage by equipment, 

it should promulgate an appropriate mandatory standard clearly 

defining those areas. In my view, the "examples" noted in the 

policy are intended to make an inspector aware of certain 

restricted and confined mine areas where the location of a power 

cable would most likely expose it to potential damage and abuse 

·by being struck by a piece of equipment. The policy also 

includes a statement which implies that additional conduit protection would not be necessary if the power cable were suff iciently isolated to afford it protection. Although the policy 

contains no explanation as to why the particular examples in 

question are cited, I assume that a power cable passing through 

doors or stoppings may expose the cable to chaffing or cutting, 

that a cable installed along supply storage areas will expose it 

to damage from the materials stored in such areas, and that 

cables installed on tight corners with insufficient clearance 

will expose it to damage passing through such areas. However, in 

each of these instances, I believe it is incumbent on MSHA to 

establish through credible and probative evidence that a cited 

power cable located in any of these locations is in fact exposed 

to physical damage and is not fully protected against such 

damage. 

I take note of the fact that MSHA's policy declarations 

found in the March 9, 1978, inspection manual, exhibit G-2, 

contain no explanation as to why a trolley wire location was 

included among the locations cited as examples where additional 

conduit protection may be required. The stated policy indicates 

that such additional conduit protection is required where a power 

cable crosses a trolley wire or where a power cable is installed 

within 12 inches of a trolley wire. The 11 12 inches" policy 

interpretation does not appear in MSHA's policy manual of July 1, 

1988, or in the inspection manual of June 1, 1983, exhibits G-3 

2343 
and G-4, and the interpretation simply refers to a power cable 

crossing a trolley wire. Although the inspection manuals contain 

rather detailed instructions to an inspector as to how to go 

about issuing citations for violations of section 75.517, because 

of inadequate insulated power cables, they contain no guidance 

concerning the question of "fully protected," and simply cite 

examples of locations where additional conduit protection may be 

required, with no explanations. 

Insofar as trolley wire locations are concerned, I find 

nothing unreasonable in MSHA's desire to insure that a power 

cable located in close proximity to a trolley wire is protected 

against any physical damage which may result from a trolley pole 

coming off the trolley wire and striking the cable. As a matter 

of fact, respondent's safety representative Bochna conceded that 

depending on the force exerted by a trolley pole in striking a 

power cable, it was possible to penetrate the outer protective 

sheath of the cable. He also confirmed that a trolley pole 

striking a cable could cause cable abrasions or "minor damage," 

and that in the event the cable was damaged to the extent that 

the outer jacket and inner insulation were damaged, the cable 

could become energized through the live trolley wire if the cable 

was in contact with the trolley wire. He also confirmed that a 

trolley pole could pull a power cable down if it jumped the 

trolley pole. Respondent's electrical engineer Coss confirmed 

that with the additional conduit protection, the chances of cable 

damage would be lessened, and he stated that he was aware of an 

incident where a power cable protected by conduit was struck by a 

trolley pole, and although the cable was not cut, the wires at 

the switch box were pulled out by the striking action of the pole 

against the cable. 

Although it may be true that a properly insulated power 

cable provided with a tough neoprene outer protective jacket may 

provide adequate protection against normal "wear and tear" and 

physical contact with equipment or other objects in an underground mining environment, it is not unusual for such cables to 

be subjected to cuts, scuffing, abrasions, etc., which may or may 

not be readily visible, or to internal damage which may not be 

readily observable by a cursory inspection. If such damage were 

to occur over time, and remained undetected, it could conceivably 

damage the integrity of the cable and render the insulation 

qualities of the outer neoprene protection jacket useless, 

thereby presenting a potential electrical hazard. ' In such a 

situation, I believe that one may reasonably conclude that the 

cable was not fully protected. However, in order to support a 

violation of section 75.517, it would be incumbent on MS~A to 

advance some credible and probative evidence to support such a 

finding, and it may not simply rely on the fact that an inspector 

found a power cable crossing over a trolley wire. 

2444 
Although I agree with the respondent's analytical analysis 

of the Commission's holdings in the cited Homestake Mining 

Company and Climax Molybdenum Company, decisions, supra, I take 

note of the fact that in the Homestake Mining Company case, the 

policy interpretation relied on by MSHA imposed a blanket mandatory requirement that additional powerline insulation other 

than that required by the cited standard in question be used. 

The policy included a finding by MSHA that the protective powerline jacket provided by the manufacturer was inadequate per se, 

and it also included MSHA's own policy definition of the additional insulation required for compliance, which the Commission 

found to be essentially meaningless. In the instant case, MSHA's 

policy statements are a veiled attempt to impose a mandatory 

blanket requirement for additional protective conduit in all 

cases where a power cable crosses over a trolley wire, and the 

inspector obviously construed the policy as a mandate to issue a 

citation for a violation of section 75.517, in all instances 

where he may find a power cable crossing over a trolley wire. I 

agree with the respondent's assertion that MSHA's policy statements that additional conduit may be necessary in some locations 

does not impose a mandatory obligation or duty to have the additional conduit protection in all cases. I find that this 

language is discretionary and permissive, rather than mandatory, 

and that the prevailing circumstances should dictate whether or 

not additional cable protection may be necessary to satisfy the 

"fully protected" requirement found in section 75.517. 

I conclude and find that in order to support any finding 

that a power cable is not fully protected in violation of section 

75.517, an inspector must, on a case-by-case basis, make an 

objective evaluation of all of the circumstances presented, 

including the use to which the power cable is being put, its 

condition, the location and distance from equipment or other 

physical objects which may reasonably expose it to physical 

damage, its proximity to miners who are required to work or 

travel in the area, and any other relevant factors which may 

support a reasonable conclusion that the cable is located and 

utilized in such a manner as to expose it to physical damage. 

Reliance by an inspector on the mere location of the cable listed 

among unexplained policy "location examples" is insufficient, in 

my view, to establish a violation. If an inspector followed the 

literal language of MSHA's policy, as the inspector did in this 

case, without any evaluation of all of the circumstances presented, he could issue a citation simply because the power cable 

crossed over a trolley wire, even though the cable passed any 

number of feet over the trolley wire and could never conceivably 

come into contact with the trolley wire. Such an interpretation 

and application does little to foster mine safety, and simply 

encourages litigation. 

The respondent is correct in its assertions that MSHA's own 

section 75.517 policy statements and interpretive guidance for 

2345 
its inspectors to follow clearly indicates that MSHA considers an 

undamaged power cable to be "fully protected" pursuant to this 

standard. However, the respondent's suggestion that a power 

cable is inherently fully protected by the manufacturer's outer 

protective tough neoprene jacket and meets the "fully protected" 

requirement of section 75.517, in all cases and in all circumstances where the cable may be located is rejected. As noted 

earlier, I have concluded that such cables are subject to damage 

and that any determination as to whether or not they are fully 

protected must be made on the basis of all of the facts presented 

and not simply the location of the cable. 

The petitioner takes the position that the cable at issue in 

this case passed over a trolley wire at a highly travelled 

haulageway used by miners and equipment going into and out of 

working sections, and that this fact makes the location one where 

conduit is necessary for additional protection, rather than a 

location where conduit may be necessary. Respondent takes the 

position that the inspector based the citation on his observation 

of the power cable passing over the trolley wire, and his belief 

that MSHA's policy manuals imposed a mandatory duty on him to 

issue a citation in all cases where such a cable is not protected 

by additional conduit. Respondent also takes the position that 

it has presented credible evidence that the facts and circumstances presented in this case support a finding that the cable 

was fully protected against any possible physical damage, and 

that MSHA's own policy interpretations of "fully protected" have 

been satisfied. 

The evidence in this case establishes that the inspector 

issued the citation because he believed he was compelled to do by 

MSHA's policy directives. He admitted that he believed that each 

of the location examples stated in the policy with respect to 

power cables passing over trolley wires were mandatory requirements obligating an operator to provide additional conduit protection in all cases at such locations in the mine and that he 

had no discretion to determine whether or not any particular 

circumstances would require such additional guarding. 

The inspector conceded that the power cable in question was 

in good condition and undamaged, and that it met all of MSHA's 

cable insulation requirements. He also agreed that the cable was 

hung on an insulator, and that the exterior of the cable was 

protected by an insulating jacket, and that each power conductor 

inside the cable was individually insulated. He agreed that the 

cable was provided with short circuit and fuse protection, that 

the outer and inner portions of the cable would have to be 

damaged in order to present any shock hazard, and that in the 

event such damage was present, a person would have to reach up 

and over the trolley wire and grab the cable in order to be 

exposed to a shock hazard._ He also agreed that in the event the 

cable was dislodged and lying across the trolley wire, anyone 

2346 
performing work on the light switch would be able to observe the 

cable in that position. 

The inspector expressed concern that a possible shock hazard 

would exist if a trolley pole from one of the vehicles passing 

under the cable came off the trolley wire and struck and damaged 

the cable. If such damage were to occur, and the cable were to 

fall on the energized trolley wire, the inspector believed that 

the electrical light block circuit would become energized and 

pose a shock hazard to anyone contacting the wire or cable. The 

evidence establishes that the inspector was not an electrical 

inspector and had no particular expertise in such matters. 

Although he confirmed that the conduit which was in place, but 

had slipped away from the cable location immediately over the 

trolley cable, would not protect the cable from damage if the 

trolley pole were to strike it in the unprotected area between 

the light switch box and the end of the protective conduit, he 

nonetheless concluded that the conduit in place over the cable 

would sufficiently protect the cable if it had not slipped. 

The inspector's belief that a trolley pole would likely come 

off the trolley wire and strike the cable in question was based 

on "his experience" that trolley poles frequently come off the 

trolley wire, and that the likelihood of this occurring would be 

increased by the fact that the haulageway in question was a 

highly traveled area which would increase the frequency of a 

trolley pole striking the cable. The inspector agreed that it 

was possible that a trolley pole would never come off the wire 

while travelling the haulageway and that the haulageway area in 

question was a reasonably flat area. Although the inspector 

believed that the reasons for a trolley pole "frequently" coming 

off the trolley wire included excessive vehicle speed, a bend in 

the trolley wire, or inadequate spring pressure on the pole, 

there is no evidence in this case that these conditions existed. 

The inspector confirmed that he did not visually inspect the 

cable in question, and he could not recall specifically looking 

for ~ny cable damage. He also confirmed that he observed no 

bends in the trolley wire (Tr. 32, 42, 45). 

The inspector confirmed that a vehicle approaching the area 

where the cable in question was located would have to slow down 

in order to activate the light switch (Tr. 30). Respondent's 

witness Bochna, who was familiar with the area, agreed that the 

area in question was congested, but he stated that the traffic is 

not heavy, and that a vehicle approaching the location of the 

light switch cable would have to slow down or stop in order to 

activate the traffic light switch in question before proceeding 

further, and that in his driving experience he has had no problem 

with a trolley pole coming off a trolley wire (Tr. 60-63, 71). 

The testimony in this case establishes that the height of 

the mine roof off the floor was approximately 8 feet. Mr. Bochna 

2347 
testified that the trolley wire.was located approximately 

12 inches from the mine roof, and the inspector testified that 

the power cable was located approximately 6 inches above the 

trolley wire. Respondent's witness. Coss, who is an electrical 

engineer and a qualified MSHA certified electrician and electrical instructor, and who regularly observed the equipment operating underground and has operated the equipment himself, 

testified that the trolley poles are approximately 5-1/2 to 

6 feet long, and that they are mounted at different locations on 

the equipment, at heights varying from 3 to 4 feet. He confirmed 

that there would be less tension on a trolley pole in a high roof 

area, and that in the event the pole came off the trolley wire in 

such an area, there would be less of an impact on the cable if 

the pole were to strike it (Tr. 85-86). Conceding that a trolley 

pole does occasionally come off the trolley wire in the mine, in 

view of the fact that the mine has approximately 10 miles of 

trolley wire, and the fact that a vehicle must slow down to 

activate the signal switch, he believed that the likelihood of a 

trolley pole coming off a trolley wire at the location of the 

cited cable would be remote. Even if this occurred, he further 

believed that a blunt trolley pole would not damage the cable by 

striking it while it was hanging up (Tr. 88). 

I conclude and find that there is no evidence in this case 

to establish the existence of any of the factors or conditions 

alluded to by the inspector to support his belief that trolley 

poles frequently come off a trolley wire. There is no evidence 

in this case of excessive vehicular speed, bends in the trolley 

cable, inadequate spring pressure or any of the trolley poles, or 

unusual haulage road conditions. Further, there is no evidence 

that the respondent has experienced any problems in the mine with 

trolley poles coming off a trolley wire and striking or damaging 

power cables. During the course of the hearing, and in response 

to my bench questions concerning 10 prior citations for violations of section 75.517, the respondent's counsel confirmed that 

three of the citations were issued for lack of adequate insulation or protection for power cables passing through stoppings, 

one of the locations listed in MSHA's policy "examples" where 

additional cable protection is required. Counsel confirmed that 

he "settled" these citations after the petitioner's solicitor who 

was handling the cases agreed to vacate the citations. The 

parties could offer no further information with respect to the 

facts and circumstances surrounding these violations, and they 

did not know whether or not the remaining citations concerned 

power cable crossing over trolley wires (Tr. 71-77). The respective posthearing briefs filed by the parties do not further 

address my bench inquiries concerning these prior citations. 

While it may be true that the petitioner has established 

that it is undisputed that MSHA has consistently interpreted 

section 75.517 to require protective conduit or guarding on power 

cables where they pass over trolley wires, I have rejected the 

2348 
petitioner's.position that such a policy may impose a mandatory 

blanket requirement that additional protective conduit be provided at all such locations "across the board" without any objective consideration of the prevailing facts and circumstances. I 

also reject any notion that MSHA may make such a broad sweeping 

unsupported policy determination that the lack of such additional 

conduit protection constitutes something less than the "fully 

protected" language found in section 75.517. 

On the facts of this case, and after careful consideration 

of all of the evidence presented, I conclude and find that the 

petitioner has failed to establish that the cited power cable in 

question was not fully protected as required by the cited mandatory safety standard 30 C.F.R. § 75.517. Accordingly, the 

contested citation IS VACATED. 

ORDER 

On the basis of the foregoing findings and conclusions, 

section 104(a) "S&S'' Citation No. 3096605, issued on May 27, 

1988, citing an alleged violation of 30 C.F.R. § 75.517, IS 

VACATED, and the petitioner's proposal for assessment of a civil 

penalty for the alleged violation IS DENIED AND DISMISSED. 

Distribution: 

Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, 58th Floor, 600 Grant 

Street, Pittsburgh, PA 15219 (Certified Mail) 

/fb 

2349 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

N 0 V .: ( : .:· S 9 

JEFFREY BROWN, . DISCRIMINATION PROCEEDING 

Complainant 

v. 

BETH ENERGY MINES, INC., 

Respondent 

Docket No. PENN 89-228-D 

MSHA Case No. PITT CD 89-17 

Livingston Portal 84 Complex 

ORDER OF DISMISSAL 

Before: Judge Koutras 

Complainant's motion received on November 20, 1989, to 

withdraw the complaint filed in this matter IS GRANTED, and this 

case IS DISMISSED. 

/~~£ ~~ ,{__ Koutras d;t;:-t?~ Administrative Law Judge 

Distribution: 

Mr. Jeffrey Brown, R.D. #1, Scenery Hill, PA 15360 

(Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll Professional 

Corporation, 58th Floor, 600 Grant Street, Pittsburgh, PA 15219 

(Certified Mail) 

Mr. Alfred Paterini, Safety Committeeman, Box 513, Ellsworth, PA 

15331 (Certified Mail) 

/fb 

2350 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSIGN 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ASARCO, INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION CMSHA), 

Respondent 

SECRE'rARY OF LABOR-, 

MINE SAFETY AND HEALTH 

ADMINISTRA'rION CMS HA), 

Petitioner 

v. 

ASARCO, INCORPORATED, 

Respondent 

NOV 21 1989 

. . 

CONTEST PROCEEDING 

Docket No. SE 88-82-RM 

Citation No. 3252969; 7/16/88 

Docket No. SE 88-83-RM 

Citation No. 3252970; 7/16/88 

Immel Mine 

Mine ID 40-00170 

CIVIL PENALTY PROCEEDING 

Docket No. SE 89-67-M 

A. C. No. 40-00170-05520 

Immel Mine 

ORDER OF DISMISSAL 

The procedural history of this case, with regard to discovery, has been set forth in previously issued Orders. 

On October 23, 1989, Petitioner filed a Response to the 

Order of October 16, 1989. In its Response, Petitioner stated, 

inter alia, that it continues to decline to produce certain documents which were required to be produced by previous orders. 

Petitioner further stated as follows: "Given the inefficacy of 

first complying with and then appealing from the Administrative 

Law Judge's Discovery Order, the proper procedure is for the 

Administrative Law Judge either to follow the procedure set forth 

in Commission Rule 74Ca>Cl) (29 C.F.R. 2700.74Ca)(l)) or to 

dismiss this action so that the Secretary may have this Order 

reviewed by the commission." (Emphasis added). 

On October 27, 1989, Respondent filed a Renewed Motion to 

Dismiss, requesting dismissal of this case based on Petitioner's 

refusal to comply with the Discovery Orders. 

Based on the history of this case, wherein Petitioner's 

position has been clearly stated, and particularity base~ upon 

the above language quoted from Petitioner's Response of 

2351 
October 23, 1989, I conclude that to issue ~ show cause order at 

this point, pursuant to 29 C.F.R. § 2700.63(a), would only serve 

to unduly delay a disposition of this case. I conclude, based on 

Petitioner's continued refusal to comply with the Discovery 

Orders previously issued, that dismissal of this case is warranted. Therefore, Respondent's Renewed Motion to Dismiss is 

GRAN·rED. 

It is ORDERED that the above case be DISMISSED. 

Distribution: 

-. 

, ~· 

,,, ~ , 

-Avram Weisberger 

Administrative Law Judge 

Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Henry Chajet, Esq., Mark N. Savit, Esq., Doyle and Savit, 

919 18th Street, NW, Suite 1000, Washington, DC 20006 (Certified 

Mail) 

dcp 

2352 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JOSEPH G. DELIS!O, 

Complainant 

v. 

MATHIES COAL COMPANY, 

Respondent 

·N•r·\1 '. . . :· '· . i,, · •. · ,. · I v ' ""' .... ,,-~ ·-..:· 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. PENN 89-8-D 

MSHA Case No. PITT CD 88-25 

Mathies Mine 

Appearances: Michael J. Healy, Esq., for the Complainant 

Richard R. Riese, Esq., for the Respondent 

Before: Judge Fauver 

• Complainant alleges a violation of § 105(c) of the Federal 

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

The issue is whether Respondent violated § 105(c) by 

refusing to compensate Complainant the difference between his 

regular daily wage of $126.52 and his statutory witness fee of 

$30 paid ~y MSHA for the day he appeared at a hearing. 

Complainant was subpoenaed by MSHA to testify against Respondent 

in a hearing before a Commission judge. 

The parties have stipulated the facts and submitted the 

case for decision without an evidentiary hearing. 

Respondent operates a coal mine where Com9lainant is a 

miner, the chairman of the local 11nion safety committee, and a 

"representative of miners" within the meaning of the Act. 

On July 21, 1988, in Mathies Coal Company, PENN 88-36~R, a 

hearing was held before a Commission judge to try a contest filed 

by Respondent concerning a citation issued at the mine, which 

charged a violation of a safety standard. 

M.SHA subpoenaed Complainant to appear at the hearing and 

paid him a statutory witness fee of $30. The United Mine Workers 

of America paid Complainant the difference between his daily 

miner's pay and the statutory witness fee paid by MSHA. 

The hearing was held in a courthouse, not at the mine. 

Complain~nt did not work at the mine on the day he testified. 

2353 
Respondent refused to pay Complainant the difference between 

the wages he would have earned at the mine that day, $126.52, and 

the witness fee of $30 paid by MSHA. However, Respondent called 

its own mine employee witnesses at the hearing on July 21, 1988, 

and compensated them at the pay rate they would have received had 

they worked at the mine that day. The witnesses called by 

Respondent were salaried employees, not hourly employees. 

DISCUSSION 

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

(1) 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 tither mine subject to this chapter because 

such miner, representative of miners or applicant for 

employ'Jlent has filed or made a complaint under or 

related to this chapter, including a complaint 

notifying the operator or the operator's agent, or the 

representa.tive of the miners at the coal or other mine 

of an alleged danger or safety or health violation in a 

coal or other mine, because such miner, representative 

of miners or applicant for einployment is the subject of 

medical evaluation and potential transfer under a 

standard published pursuant to section 811 of this 

title or because such miner, representative of miners 

or applicant for e1nployment has instituted or caused to 

be instituted any proceeding, under or related to this 

chapter 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 chapter. 

The issue here -- whether § 105(c) prohibits a mine operator 

from withholding wages from a miner witness who testifies against 

the operator at a Commission heacing while compensatin:r other 

employee witnesses who testify on behalf of the operator --

appears to be one of first impression. However, this isslle has 

been considered under other statutes. 

In Carpenter v. Miller, 325 S.E. 2d 123 (WV 1984>, the West 

Virginia Supreme Court of Appeals interpreted an 

anti-discri~ination law similar to§ 105(c). The state law 

provided in part: 

No person shall • • . in any • • • way 

discriminate against . • • any miner • . 

of the fact that he believes or knows that 

..• has testified or is about to testify 

2354 

by reason 

such miner 

in any 
proceeding resulting from the administration or 

enforcement of the provisions of this law. [West 

Virginia Code§ 22-l-2l(a) (3) (1981 Replacement 

Vol. ) • ] 

The UMWA and several miners brought a mandamus action 

against the west Virginia Department of Mines to prevent the 

practice of mine operators withholding compensation from miners 

who were subpoenaed to testify in hearings before the Department. 

The two operators named in the proceeding had paid the e1~loyee 

witnesses who testified on their behalf, but refused to pay their 

employees who testified against them. The court held that the 

withholding of compensation fro;n the miners who testified against 

the operators constituted discrimination in violation of the 

state statute. 

In UMWA v. Miller, 291 S.E. 2d 673 <WV 1982), the court held 

that withholding compensation from a miner who accompanied a 

state mine inspector during a mine safety inspection was 

discrimination in violation of the above state statute. 

In NLRB v. Western Clinical Laboratory, Inc., 571 F.2d 457 

(9th Cir-:-I'978), the court upheld an NLRB ruling that the 

employer violated§ 8(a}(4) of the National Labor Relations Act 

1/ by requiring an e.nployee to use vacation time for his 

attendance under subpoena at an NLRB hearing despite the 

employee's desire to take leave without pay for those days. 

In Electronic Research Co. [I], 187 NLRB 733 (1971), the 

Board held that an employee's denial of a perfect attendance 

award to an employee because he was absent from work while 

testifying against the employer in a Board hearing violated 

§ 8 (a) ( 4), where the e.nployer CJ ranted such an award to einployees 

who appeared at the same Board hearing at the employer's request. 

However, in Electronic Research Co. [II], 190 NLRB 773 (1971), 

the Board held that the employer did not violate the NLRA when it 

refused to pay for time lost from work by three e.nployees who had 

been subpoenaed by the union as witnesses at a Board hearing, 

even though it p.::i.id regular pay to employee witnesses called by 

the employer. The Board foilnd that the hearing. was an adversary 

hea~ing in which each side subpoenaed or called its own witnesses 

!/ Section 8(a}(4) provides: 

"(a} It ·ahall be an unfair labor practice for an employer --

"* * * 

" ( 4) to discharge or otherwise discri1nin3.te against an 

e1nployee because he has filed charges or gi,ren testLnony under 

this subchapter * * *." 

2355 
and compensated them for their ti1ne, and the union's witnesses 

were not monetarily disadvantaged since the union had paid union 

witness fees that exceeded.their wages. 

In a later case, General Electric Company, 230 NLRB 683 

(1977), a majority opinion of the Board'coinented on the opposite 

results in the two Electronic Research, Co. cases, supra. It 

stated that the.Board was "distinguishing between those 

situations where the employer's actions are directed at the 

einployment relationship, as in the perfect attendance award 

• , and those where they were not, as in the witness fee 

situation" (emphasis supplied). The majority opinion thus 

concluded: 

There is nothing unlawful in an employer using the 

wages of witnesses as the ineasure of his compensating 

them for witness fees while not also payin9 employees 

called by other parties ••• , since the employer's 

actions are not directed at the e~ployment relationship. 

[Fn. omitted.] However, if an employer distinguishes 

between its ernployees on the basis of whether they- were 

summoned as witnesses by it or by the opposition, it 

acts unlawfully. 

Then-Chairman of the NLRB Fanning dissented on the ground 

that the employer's denial of wages to opposition e.n9loyee 

witnesses "was disparate treatment based on whether the testimony 

was on behalf of or against Respondent's interest" - - and this 

was "discrimination within the meaning of Section 8(a)(4)." 

The distinction relied upon by the majority opinion in 

General Electric -- between Cl) discrimination as to a perfect 

attendance award or the use of vacation time and (2) 

discrimination as to wages -- appears to me to artificial and in 

any event distinguishable from Mine Act cases. The broad 

protection of § 105Cc> of the Mine Act prohibits "any manner" of 

discrimination. 

I conclude that Respondent violated § 105(c) of the Act by 

reL1sing to pay Co:nplainant the difference between his regular 

daily wages, $126.52, and the witness fee of $30 paid by MSHA. 

Because of Respondent's discriminatory tre3.tment of witnesses in 

a Mi!'le A.ct proceeding, i.e., refusing to pay wages to Complainant 

who was an opposition ~itness but paying the wages of the 

witnesses who appeared on its behalf, no further examination of 

discri.ninatory motive is necessary. 

CONCLUSION OF LAW 

1. The judge has jurisdiction over this proceeding. 

2356 
2. Respondent violated § 105(c) of the Act as found above. 

ORDER 

1. The parties are directed to confer within 15 days of 

this Decision in an effort to sti~ulate the amount of 

Complainant's back pay, with accrued interest computed according 

to the Commission's decisions, and Complainant's litigation 

eKpenses, including a reasonable attorney's fee. 

2. Within 30 days of this Decision, Complainant shall file 

either a stipulated proposed order awarding monetary relief 

signed by both parties ~/ or, if there is no stipulation, 

Complainant's proposed order awarding monetary relief. If there 

is no stipulation, Respondent shall have 10 days after the 

proposed order is filed to file a response. If appro~riate, a 

hearing will be scheduled to resolve any issues of f~ct as to 

monetary relief. 

3. This Decision shall not become final until an order is 

entered awarding rnonetary relief and declaring this Decision to 

be final. The judge will retain jurisdiction of this proceedin9 

until such an order is entered. 

LJ~ 1-~\l'V\- William Fauver 

Administrative Law Judge 

~/ Respondent's stipulation of a proposed order awarding 

monetary relief will not limit its right to seek review of a 

final Decision and Order entered in this proceeding. 

Distribution: 

Richard R. Riese, Esq., Thorp, Reed and Armstrong, One Riverfront 

Center, Pittsourgh, PA 15222 CCertiEied Mail) 

Michael J. Healey, Esq., Healey Whitehall, Law and Finance 

Building, 429 ~ourth Avenue, Pittso~rgh, PA 15219 (Certified 

Mail) 

iz 

2357 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 89-122-M 

A.C. No. 23-00746-05514 A 

Sullivan Plant 

WILLIAM D. LONG, Employed by 

K. R. WILSON CONTRACTING, 

INC., 

Respondent . . 

DECISION APPROVING SETTLEMENT 

Appearances: Oscar Hampton, Esq., Office of the Solicitor, 

U.S. Department of Labor, Kansas City, Missouri, 

for Petitioner; 

Frederick H. Schwetye, Esq., Union, Missouri, for 

Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section llOCc) of the Federal Mine Safety 

and Health Act of 1977 (the Act). At hearings Petitioner 

filed a motion to approve a settlement agreement and to 

dismiss the case. A reduction in penalty from $1,300 to 

$900 was proposed. I have considered the representations and 

documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the relevant 

criteria set forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlem.jnt is 

GRANTED, and it is ORDERED that Respondent pay a plnalty of 

$900 within 30 days· of this ord(;r ·,/ ; J 

I I i . I . \ , . { r / l \ .... /----\ : '\ <-"\ Gary Melick/'v · 1 

/ ~ Adrrvinist~a<.ive Law· Judge 

(703) 756-6261 ' / 

1· 

Distribution: 

r I 

Oscar Hampton, Esq., Offic~ of the bolicitor, u:s. Department 

of Labor, 911 Walnut Street, Room 2106, Kansas City, MO 

64106 (Certified Mail) 

Frederick H. Schwetye, Esq., 8a South Church Street, P.O. Box 

499, Union, MO 63084 (Certified Mail) 

nt 2358 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 7 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRA'rION CMSHA), 

Petitioner 

v. 

Docket No. CENT 89-27-M 

A.C. No. 23-00746-05512 

Sullivan Plant 

K. R. WILSON CONTRACTING, INC.: 

Respondent 

DECISION APPROVING SETTLEMENT 

Appearances: Oscar Hampton, Esq., Office of the Solicitor, 

U.S. Department of Labor, Kansas City, Missouri, 

for Petitioner; 

Frederick H. Schwetye, Esq., Union, Missouri, for 

Respondent. 

Before: Judge Melick 

This case is before me upon a peti~ion for assessment of 

civil penalty under Section 105Cd) of the Federal Mine Safety 

and Health Act of 1977 (the Act). At hearings Petitioner 

filed a motion to approve a settlement agreement and to 

dismiss the case. A reduction in penalty from $2,719 to 

$2,634 was proposed. I have considered the representations 

and documentation submitted in this case, and I conclude that 

the proffered settlement is appropriate under the cri eria 

set forth in Section llOCi) of the Act. i 

i 

settlement is 

' pay a pena ty of 

WHEREFORE, the motion for approval of 

GRANTED, and it is ORDERED that~Resp·'\dent $2,634 within 30 days of this o 'derl 

. I I t 

(~ A/'~~ ' /\>t-'-. -

Distribution: 

Gary Melick \\../ / 

Adrrvinistratfve Law Jud e 

(703) 756-6261 

\ ; 

I 

Oscar Hampton, Esq., Office of the So~icitor, U.S. Department 

of Labor, 911 Walnut Street, Room 2106, Kansas City, MO· 

64106 (Certified Mail) 

Frederick H. Schwetye, Esq., 8a South Church Street, P.O. Box 

49.9, Union, MO 63084 (Certified Mail) 

nt 

2359 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 7 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINIS'rRATION (MSHA), 

:i;>etitioner 

v. 

Docket No. CENT 89-126-M 

A.C. No. 23-00746-05516-A 

Sullivan Plant 

KENNETH R. WILSON, Employed by: 

K. R. WILSON CONTRACTING, 

INC., 

Respondent 

DECISION APPROVING SETTLEMENT 

Appearances: Oscar Hampton, Esq., Office of the Solicitor, 

U.S. Department of Labor, Kansas City, Missouri, 

for Petitioner; 

Frederick H. Schwetye, Esq., Union, Missouri, for 

Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment of 

civil penalty under Section llO(c) of the Federal Mine Safety 

and Health Act of 1977 (the Act).· At hearings -Petitioner 

filed a motion to approve a settlement agreement and to 

dismiss the case. A reduction in penalty from $1,600 to 

$1,100 was proposed. I have considered the representations 

and documentation submitted in this case, and I conclude that 

the proffered settlement is appropriate under the relevant 

criteria set forth in Section llO(i) of the Act. 

WHEREFORE, the motion for approval of settlem nt is 

GRANTED, and it is ORDERED that Respondent pay a p nalty of 

$900 within 30 days of this or~er., \ 1 

!/ I .' l '1 I I \__, ' i \ _ _;--"\ ' .A 

Ga;~y Melic~ ~... , 1 /L,.._...____\ Administra~ive Law J~dge/ 

no 3 > 1s6-6\2 61 ~ ; I i I 

Distribution: i · 

Oscar Hampton, Esq., Office of the Solicitor, U.S. De~artment of Labor, 911 Walnut Street, Room 210~, Kansas City, MO 

64106 (Certified Mail) ! 

Frederick H. Schwetye, Esq., 8a South Church Street, P.O. Box 

499, Union, MO 63084 (Certified Mail) 

nt 2360 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

VANDALIA SAND & GRAVEL, 

Respondent 

NOV 2 8 1989 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 89-36-M 

A. C. No. 11-01896-05503 

Vandalia Sand & Gravel 

Appearances: Maria P. Peterson, Esq., Office of the Solicitor, 

U. s. Department of Labor, Chicago, Illinois, for 

the Secretary~ · 

Mr. Mike Themig, Vandalia Sand & Gravel, Vandalia, 

Illinois, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this case, the Secretary (Petitioner) seeks a civil 

penalty Eor the alleged violation by the Operator (Respondent) of 

30 C.F.R. § 56.15001. Pursuant to notice, a Hearing has held in 

St. Louis, Missouri, on October 3, 1989. Jerry Spruell testified 

for Petitioner, and Respondent did not present any witnesses. 

At t.he Hearing, the Parties entered into the following 

stipulations: 

1. The Federal Mine Safety and Health Commission has 

jurisdiction over these proceedings. 

2. Respondent's wife owns and operates the sand and gravel 

pit at Vandalia known as Vandalia Sand and Gravel, and that 

Mr. Mike Themig is the manager of the same gravel and sand pit. 

3. The Respondents have worked 4,980 man-hours between 

December 23, 1987, through December 23, 1988. 

4. The Respondent does not have any prior violations with 

MSHA. 

2361 

------------------
Issues 

The issues before me are whether Re3pondent violated 

30 C.F.R. § ~6.15001, and the penalty to be imposed on Respondent 

if 3Uch a violation did occur. · 

Regulation 

30 C.F.R. § 56.15001, as pertinent, provides as follows: 

"Adequate first~aid materials, including stretchers and blankets, 

shall be provided at places convenient to all working areas." 

Findings oi Fact and Discussion 

. Inasmuch as Respondent did not present the testimony of any 

witnesses at the Hearing, the factual findings that I have made 

in this case were based upon the testimony of Jerry Spruell, an 

MSHA Inspector, who testified for Petitioner. 

On October 3, 1988, Spruell went to Respondenc's sand and 

gravel operation to perform a semiannual inspection. He met with 

Mike Themig and asked him if he had a stretcher, blankets, and 

first-aid materials at the property, and Themig indicated that he 

did not, but that "if someone got hurt he would merely call the 

hospital" (Tr. 14). On October 6, 1988, Spruell returned to the 

site, and at that time was shown a stretcher which was folded up. 

The side support braces of the stretcher were broken, and Spruell 

opined that due to its condition it would not be able to carry a 

person. He indicated that in his opinion, a stretcher is 

"adequate" if it is capable of transporting the largest person 

employed on the site. 

according to Webster's New Collegiate Dictionary (1979 

edition), (Webster's) a "stretcher" is defined as "a litter (a.s 

of canvas) £or carrying a disabled or dead person." Webster's 

defines "adequate" as" .•. lawfully, and reasonably sufficient." 

Inasmuch as the stretcher in question has support braces that 

were broken, I find that it was inadequate to carry disabled 

pers.ons. 

According to Spruell's notes made on October 7, 1988, on 

October 3, 1988, Th8mig had indicated that a blanket waa 

" ... in his truck." When Spruell was at the site on October 4, 

1988, the μickup truck was not at the site. On October 17, 1988, 

when Spruell again returne<l to the site, a blanket was tak~n trom 

a welding truck and placed in tne scale house. 

Based upon cne above, and cons iC:ler ing t;1a t Ras pond.en t did 

not contradict or rebut Themig's 3tatement to Spruell, on 

October 3, 1988, tnat he did not have a blan~et, I c0nclude that 

a blanket was not provided at any place convenient to the working 

areas on October 3 - 4, 1988. 

2362 
Respondent had on the site, two first-aid kits which had the 

following materials: ten 3/4 inch band-aids, 1.8 ounces 

first-aid cream, six antiseptic cleansing wipes, one roll of 

cloth tape, one roll of gauze, two burn cream packs, two nonstick 

pads, two extra large bandage strips, one pair sci5sors, and a 

first-aid guide. According to Spruell, the iirst-aid materials 

were inadequate as they did not conLain any splints. 

Inasmuch as the support braces for the stretcher were 

broken, and the evidence tends to indicate that a blan~et was not 

provided at the site on October 3 - 4, I find that Respondent 

did violate section 56.15001, supra. 

Spruell indicated that on October 4, 1988, Themig had told 

hi~ that i£ an employee would suffer a neck or back injury, the 

instructions were to call for emergency medical help from the 

hospital. A map submitted by Respondent indicates that an 

emergency vehicle from tne hospital can reach Respondent by going 

down 8th Street for 10 blocks, and then turning right on St. 

Louis Avenue out to Respondent's site. There is no evidence with 

regard to any hazard occasioned by the lack of having a blanket 

at the site. The first-aid kit was, as indicated by Spruell, 

adequate for very minor wounds. I find the violation to be of a 

low level of gravity. 

Respondent had not abated the condition by the date stipulated 

to on the citation, October 11, 1988. According to Spruell, 

Themig had indicated that in the past other MSHA Inspectors had 

accepted the stretcher, and there was no need for any splints as 

tile first-aid mate.c ials were adequate. Eventually after a 

discussion with Spruell, who had discussed the possibility of 

issuing a section 104(b) Order, the violative conditions were 

aoated by Themig, by nailing two 2 x 4s to a plywood board, and 

labeling it a stretcher, taking wooden lathes and marking them 

splints, and placing these in the scale house along with the 

blanket. Taking all the above into account I conclude that the 

penalty proposed by Petitioner, of $20, is appropriate for the 

violation found herein. 

ORDER 

It is ORDERED that, within 30 days of this Decision, 

Respondent pay $20 as a civil penalty for the violation found 

herein. 

LJ~~ Administrative Law Judge 

Distribution: 

Maria P. Peterson, Esq., Rafael Alvarez, Esq., Office of the 

Solicitor, u. S. Department of Labor, 230 South Dearborn Street, 

8th Floor, Chicago, IL 60604 (Certified Mail) 

Mr. Mike Themig, Vandalia Sand and Gravel, P. o. Box 391, 

Vandalia, IL 62471 (Certified Mail) 

dcp 2363 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 8 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINrs·rRATION CMSHA), 

Petitioner 

v. 

.JIM WALTER RESOURCES, 

INCORPORATED, 

Respondent 

. . 

Docket No. SE 89-93 

A. C. No. 01-01401-03748 

No 7 Mine 

DECISION 

Appearances: William Lawson, Esq., Office of the Solicitor, 

U. s. Department of Labor, Birmingham, Alabama, 

for the Secretary; 

R. Stanley Morrow, Esq., Jim Walter Resources, 

Incorporated, Birmingham, Alabama, for Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In the proceeding, the Secretary (Petitioner), pursuant to a 

Petition for an Assessment of Civil Penalty, filed on May 15, 

1989, seeks a civil penalty for an alleged violation by the 

Operator (Respondent) of 30 C.F.R. § 75.312. Respondent filed 

its Answer on May 19, 1989. Pursuant to a telephone conference 

call with counsel for both Parties, on September 5, 1989, the 

matter was set for hearing on September 13, 1989, in Birmingham, 

Alabama. At the hearing, Don Greer testified for Petitioner and 

Greg Franklin testified for Respondent. Post hearing Proposed 

Findings of Fact and Memorandum of Law were filed on October 6, 

1989. Respondent filed its Reply Brief on October 13, 1989, and 

Petitioner filed its Reply Brief on October 16, 1989. 

Stipulations 

1. Jim iJal ter ia the owner anu. operator of the No. 7 Coal 

Mine. 

2. ·rhe Commission has jurisdiction to hear this proceeding. 

3. Jim Walter Resources is a large-sized operator for purposes of the Act. 

2364 
4. Payffient of a penalty which may result out of this litigation would not affect its aoility to continue in the business. 

5. The violation alleged was abated in good faith. 

6. Tha history of violations Rt Respondent's No. 7 Mine is 

avecage for an operation of that size. 

Findings of Facts and Discussion 

The 92 longwall section, at Respondent's No. 7 Mine, is a 

longwall operation where~y coal is extracted by a shear which 

cuts the coal from the approxi~ately 850 foot wide coal face. 

The shear cuts from the tailgate to the headgate (Entry No. 4). 

The face is ventilated by ai~ from the adjacent No. 4 Entry an~ 

No. 3 Entry, with most of the air coming from the No. 3 Entry. 

In the longwall nining cycle, the working or coal face advances 

in an outoy direction, i.e., towards the entrance. 

On February 14, 1939, at approximately 12:45 a.m., the lonqwall panel w.::ts inspected by Don G~r:-eer, an MSHA Inspecto.r. At 

that time, he noted that the shear was cutting the working face out~y crosscut A, but that the face was being ventilated by air 

from Entry No. 3 w~ich passed through cros5cut A to the face. 

He indicated that the roof in croascut A was su99orted by bolts, 

and accordingly, it would not be a violation of the roof control 

plan for a. miner to be in crosscut A. However, he did not enter 

crosscut A as he "oerceived," (Tr. 33), that it was dangerous, 

inasmuch as a "tremendoua" amount of roe~ and ffiaterial, (Tr 39), 

as a result of the normal mining procedure, ~a3 being supporte1 

'oy shield3. He indicated, es3antially, tba t there also ,v;:;i,s a 

buil 1:l up of l:'ock in a gob area. This material was located 

ai;>pco:?Cimately 20 feet to the right of "l. coal 9illar, which 

ab:.itted crosscut A inoy. He indicated that he was concerned that 

this rnateci::i.l had created oressut"e on the roof oE crosacut J\. H~ 

indicated that the area to the right of crosscut A was 

1.rnsu9;;>orted e:'{cept f 0r the shield.3. According to Gree·':'.', as the 

.::3hields advanced outby, in the nocnal mininq proce-=3s, there ;.roul::l 

be increased pre~sure on the roof of crosscut A due to the nor~al 

falling of the roof. 

Gre~r issued a section 1J4(a) Cication, ~lleging a violation 

of 30 C.F.R. j 75.312, sunra, ~hich provides, as per~inent, ~h3t 

"Ale that has ?assed through an abandoned are"l. or area ~hich i3 in~cce5di~le or unsafe foe i~suection sh~ll not be used to ventilate any wor~ing place in any ~ine." Thus, ~n ceder to 9revail, ~etitioner ~ust establish that che air ventilating the face 

pa3s21 thcough e~ther an "a~a~jo~ed" area or one that is "unsafa 

Eor ins~ection."~/ 

~/ No ar~1.!cnent is made Of Petitioner that the area in que~•c1on 

was inaccessible. Nor does the evidence support s~ch a findin3. 

2365 
30 C.F.R. § 75.2(h) defines an abandoned area as an area 

that is ". . not ventilated and examined in a manner required 

for working places under subpart D of this part 75." The 

evidence is unequivocal that crosscut A was ventilated. According 

to a plain reading of section 75.2(h), suora, an area is abandoned 

if it is not ventilated and examined. Inasmuch as the 75.2(h), 

supra, uses these two conditions in the conjunctive, if one 

condition has not been met, i.e., if the area has been ventilated, 

as here, it can not be considered abandoned.'!:._/ 

Although Greer did not inspect the roof in crosscut A, I 

find that the record does not contradict his opinion, that the 

roof therein is subject to pressure from the falling roof as part 

of the normal ore mining process. Indeed Greer testified that he 

observed some crumbling from the pillar abutting crosscut A. 

Fran~lin also essentially agreed that the advance of the longwall 

extraction, which causes the roof to fall, does transmit pressure 

on the pillar abutting crosscut A. As such, I find based upon 

the testi1nony of Greer that crosscut A was unsafe for inspection. 

Accordingly, inasmuch as air passed througn crosscut A on its way 

to the face, Respondent herein did violate 30 C.F.R. § 75.312, 

supra •. ~/ 

Accocding to Greer, as the normal longwall mining process 

retreats outby, there is increased pressure on crosscut A due to 

the build up of materials in the gob areas adjacent to it. 

However, although a hazard of a roof fall in crosscut A is 

thereby created, Petitioner has not established the manner in 

which the violation herein, i.e., air passing through that area 

on the way to tne face, contributes to a hazard of the rib or 

roof falling in crosscut A. Greer also indicated that it is 

likely that there would be methane in the gob area as the seam 

"is a known gassy seam of coal" (Tr. 54). He testified that as 

the air passes 

2; I also find that it has not been established that the area in 

~uestion was not examined. Greer opined that he would not inspect 

crosscut A. His opinion is clearly not probative 0£ whether in 

fact that area was actually examined by Respondent in the manner 

required for working places. Testimony from Responde11t's witnesses 

similarly does not establish that the area was not examined. 

According to Greg Franklin, Respondent's ventilation engineer, he 

was told by Paul Phillips, a foreman, that on the date in question 

miners used crosscut A as a dinner hole, and that men traveled 

through that area. He indicated that crosscut A was to be 

inspect,=d. · 

3/ I reject Respondent's argument, as set forth in its Brief, 

~hat Petitioner must show that the air contained .25 oercent of 

methane to e3tablish a violation of section 75.312, s~ora. I 

£ind that the second sentence in section 75.312, supra, does not 

qualify or modify the first sentence. Inasmuch as the evidence 

establishes that the terms of the first sentence were violated, I 

find that Respondent was in violation of section 75.312, supra. 

2366 
through the gob, there is a potential for it to pick up methane 

and transport it to the face. Greer indicated that, on the day 

he was present, in the normal mining process the face would have 

retreated another 12 to 15 feet that shift, thus increasing the 

likelihood of methane arriving at the face. In this connection, 

he indicated that the night foreman had told him that, in 

general, it is his policy to let the following shift, the day 

shift, make any ventilation changes.4/ Greer indicated that 

methane reaching the face could cause an ignition or explosion, 

which could be initiated by problems with electrical equipment at 

the face, or by sparks generated by the tops of the bits of the 

shear. He indicated that in the event of a fire or explosion, he 

would expect miners present in the working section to suffer 

burns or fatalities in the severest of cases. However, He 

indicated, in cross-examination, that no gas was found in 

crosscut A, and that gas samples taken an hour after he issued 

the ~itation were within the legal limits. He also indicatedthat 

it was his "perception" that while an accident "could occur" he 

did not "foresee" it happening beiore the violation could be 

corrected (Tr. 60). Further, the evidence has not established 

that air traveling through crosscut A results in a greater 

likelihood of its passing through the gob area and picking up 

methane, as opposed to air traveling up the headgate entry and 

then on to the face. Hence, I conclude that it has not been 

established that there was ~ reasonable likelihood that the 

violation herein contributed to the hazard of fire or explosion. 

Accordingly, I find it has not been established that the 

violation herein was significant and substantial. (See, Mathies 

Coal Co., 6 FMSBRC 3-4 (1984)). 

In assessing a penalty herein, I adopt the stipulations of 

the Parties with regard to the factors set forth in section 

llO(i) of the Act. I further find that the violation herein was 

of a moderate degree of severity. The evidence herein is not 

very persuasive that there was a significant hazard occasioned by 

coursing the air through crosscut A as opposed to the hazard to 

one present in crosscut A occasioned by the condition of the roof 

and rib there. I find that Respondent herein was moderately 

negligent. Considering all of the above, I conclude that 

Respondent shall pay a penalty of $75 for the violation found 

herein. 

!I I place more weight on the stateinent of policy, given by the 

foreman of the night shift, the actual shift in question, rather 

than the general statement of Fran~lin that it is policy to make 

ventilation changes as they are needed. 

2367 
ORDER 

It is hereby ORDERED that Respondent shall, within 30 days 

of this Decision, pay $75 as a penalty foe the violation ·found 

herein. It is further ORDERED that Citation 3012364 be amended 

to reflect the fact that the violation therein is not signiiicant 

and substantial. 

/Avram 

~~ Weisberger 

Administrative Law Judge 

Distribution: 

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

of Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 

35203 (Certiiied Mail) 

R. Stanley Marrow, Esq., Jim Walter Resources, Incorporated, 

P. O. Box 830079, Birmingham, AL 35283-0079 (Certified Mail) 

dcp 

2368 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 2 8 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LEECO, INCORPORATED, 

Respondent 

DECISION 

Docket No. KENT 89-192 

A.C. No. 15-11548-03572 

No. 22 Mine 

Appearances: G. Elaine Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee 

for Petitioner; 

Martin J. Cunningham, III, Esq., Reece, Lang, 

Aker & Breeding, P.S.C., London, Kentucky for 

Respondent. 

Before: Judge Melick 

This case is before me upon the petition for civil for 

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 Leeco, 

Incorporated (Leeco) with one violation of its Roof Control 

Plan under the regulatory standard at 30 C.F.R. § 75.220 and 

seeking a civil penalty of $7,000. The general issue before 

me is whether Leeco violated the cited regulatory standard 

and, if so, the appropriate civil penalty to be assessed in 

accordance with Section llO(i) of the Act. 

At hearing Leeco filed a motion to dismiss which was 

granted at hearing in a bench decision. That decision is set 

forth below with only non-substantive corrections: 

I'm going to grant the motion. The motion is 

essentially one to dismiss for failure to charge a 

violation of law as charged in the citation. 

Ordinarily, such a motion should of course be made 

before trial, but under the circumstances here 

there·was some ambiguity in the citation itself as 

to what precise provisions of the Roof-Control Plan 

actually were alleged to have been violated. Under 

the circumstances the delay is understandable and I 

2369 
will allow the motion to be made at this time now 

that the specific charges are known. 

The citation before me, Citation No. 3030482 

3tates as follows: 

The temporary supports installed in the 

area of the accident were not in 

coillpliance with the approved Roof-Control 

Plan, in that the inby row of three had 

been installed eight to nine feet inby 

the first row of four. The approved plan 

requires temporary supports in ro'lls of 

four, not more than five feet apart. 

Now clearly that citation charges a viol~tion 

of the Roof-Control Plan and nothinq else, and as 

stated at hearing by the Secretary's Counsel the 

violation all~ged is that on Page 24 of the 

Roof-Control Plan which is Governinent Exhibit ~o. 1 

[attached hereto as Appendix I]. As clarified 

further at hearing the specific charge of a 

violation of the Roof-Control Plan appears to oe 

that the second row of tem9orary supports, that is, 

the temporary supports identified as ~o. 6 an1..l 7 on 

the diagraill, Government Exhibit 2, [attached hereto 

as Appendix II] were set in excess of 5 feet from 

the first row of supports. 

As an aside I also note that the specific 

testimony related to that allegation also differs 

significantly from the ~llegation of the citation. 

The testimony by the Inspector who wrote the 

citation is that the No. 6 temporary suppot"t was 

6 feet inby the nearest first row su9port, and the 

No. 7 temporary suμport was 6 1/2 feet from the 

nearest first row su99ort, whereas it is charged in 

the citation that these temporary supports were a 

to 9 feet inby the first row of supports. 

Be that ~s it may, as pointed out by 

Mr. Cunningha1n, counsel tor the operator, the Plan 

on its face does not require ~ore than one row of 

te1npor3.ry supports where the cut at i:3sue is less 

than 24 feet deep. It is conceded by the 

Government that the cut at issue was indeed less 

than 24 feet deep. It is also admitted by the 

G'.Jvern,.,ent that the second row of tem90.cary 

.'3U?~Jorts was not even req'.li r.ed by the Pl::in, but was 

in e{cess of the Plan's requicements. The fact 

2370 
that the second row o.f temporary support:,; does not 

comply with other provisions of the plan is 

therefore immaterial as far as I can see. As 

another aside here, they have not shown that having 

those additional second row of teinporary supports 

even though they perhaps illay have been on greater 

than 5 foot centers, were less safe than not having 

them at all. 

In any event, under the circumstances of this 

case, I cannot find that there has ~een a violation 

of the Roof-Control Plan. I do not agree with the 

Government's representations that the violation 

charged in this citation was also a violation of 

some other part of the standard at 30 C.F.R. § 

75.220. I believe the Government's representation 

was that the alleged violation in this case Rlso 

re~resented a failure on the part of tbe mine 

oper~tor to have taken additional precautions if 

there -.vere unusual hazards. It seems to me that 

even if that were ~harged the eact that the 

operator did erect additional temporary supports, 

even though perhaps in ex:cess of the 5 foot 

requi reinent, does show that some additional 

?rotection was provided. 

The Government also maintains th.at once ha·ving 

made the decision to install additional supports 

the mine operator must then comply with the 5 foot 

center re1uirement of th:: Plan. I cannot re=i.d any 

such requirement into the Plan and I therefore 

reject that contention. Under the circumstances, 

I'm going to grant the Motion to Dismiss and vacate 

the citation. 

ORDER 

Citation No. 3030432 is VACA:rEo and this Civil 

Proceeding is DISMISSED. 

Penalty 

/\ I I ,. \ ,\ 

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Gary Mel ic !c ~ ../ 

Ad~inistrative Law ~udge 

(703) 756-5251 

2371 

\ \ 

\ ; \ 

;\ 
·xoTE: Cuts exceedin~ :4' in depth shall have a double ~o~ c~ ~a~oorarv supports 

installed and advanced. One row on 24' or less deep c~cs. 

Areas where corners are rounded off additional roof belts to be installed 

as necessary. ROOM PLAN 

Temporary supports to be installed before first bolt and advanced as each row of 

roof bolts is installed. 

Temporary Supports A to be installed before roof bolting co~~ences. Temporarv 

Supports B, C, D and E installed as roof bolting progresses. Temporary supp~rts 

are on 5 1 centers. The remote controls of the continuous ~iner shall not advance 

in by the second row 0f roof bolts from the face. ~o person ~hall advance in bv 

the miner controls while miner is mining coal. Roof bolts en 4' centers maximu~. 

2372 
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(81- ll.oo.f Lo Ii~ .·~.d~//d .',.; -ff,.'<; -:.lei.:: Roof ,,Ee?/~ i 

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"' ol I -.- Te.lhpor::..r~ Su. r!a r-f~ I 

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-------------1.~------L _____ _Jj ~~~':rE':. 2373 - ··;_;- ·:-. . -.. _._ ··-· ;•·~ ... ·.:.. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lath FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOUNTAIN PARKWAY STONE, 

Incorporated 

Respondent 

NOV 2 8 1989 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 89-137-M 

A. C. No. 15-15676-05513 

Staton Mine 

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, 

U. S. Department of Labor, Nashville, Tennessee, 

for the Secretary; 

Jeffrey T. Staton, Mountain Parkway Stone, 

Incorporated, Stanton, Kentucky, for the 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

In this case the Secretary (Petitioner) see~s, by way of a 

Proposal for Assessment of Civil Penalty filed on May 15, 1989, 

civil penalties for alleged violations by the Operator 

(Respondent) of various mandatory safety standards found in 

Volume 30 of Code of Federal Regulations, and generally referred 

to in the Proposal. Respondent filed its. Answer on June 9, 1989. 

Subsequent to a telephone conference call with both Parties, 

initiated by the undersigned on August 22, 1989, the Parties 

agreed that this matter could be set for Hearing on August 31, 

1989. The case was heard in Richmond, Kentucky, on August 3~, 

1989. At the commencement of the Hearing, after the Parties were 

provided with time to discuss the alleged violations in issue, 

the Parties advised that Citation Nos. 3253524 and 3253525 were 

settled. Subsequently, during the course of the Hearing, the 

Parties indicated that a settlement had been reached in Citation 

Nos. 3253322 and 3253523. 

2374 
At the Hearing Gary Manwarring and Vernon Denton testified 

for Petitioner. Bobby Brewer and Charles Williams''testified for 

Respondent. 

Proposed Findings of Fact and Memorandum of Law were filed 

on October 27, 1989, by Petitioner, and on October 1, 1989, by 

Respondent. A Joint Motion for Approval of Settlement was filed 

on November 6, 1989. 

3tioulations 

The Parties have stipulated to the following: 

1. Mountain Parkway Stone, Inc. is a Kentucky corporation 

engaged in the extraction and preparation oi crushed and broken 

limestone for resale in interstate commerce. 

2. Mountain Par~way Stone, Inc. has operated an underground 

mine in Powell, Kentucky since July 11, 1986. 

3. Mountain Parkway Stone, Inc. is subject to the jurisdiction of tl'le Federal i>iine Safety and Health. Review Commi3sion and 

its Administrative Law Judges. 

4. Mountain Parkway Stone, Inc. produced 59,552.44 tons of 

limestone in 1987, 54,906.49 tons in 1988, and 14,227.43 tons 

from January through August 1989. 

Findings of Fact and Discussion 

I. Citaticn No. 3253320 

Reapondenc operates a limestone mine Known as the Staton 

Mine. On March 1, 1989, Gary Manwarring, an MSHA In3pector, 

inspected the subject underground mine. At that time a front-end 

loader waa present at che iace, loading roe~ onto a naul truck. 

Tnere was only one escapeway, at the portal, and there were no 

refuges. Respondent's operation was not involved in explocation 

at that time. 

Manwarcing issued a section l04(a) Citation alleging a violation of 3G C.F.R. ~ 57.ll050(a), which, in essence, provides that 

avery mine 3hall have at least two separate escapeways to the 

surface, but that a second escapeway is not required during 

explocation ". . or development oI an ore body." (Emphasis 

added). Tnus, the prime issue tor consideration is whether or 

not Re3f>Ondent. was involved in "development" when the citation 

was issued. 

2375 
Manwarring offered hi3 opinion that Respondent was in production, not development, as it was removing limestone, its product. 

Vernon Denton, a 3U~ervising inspector employed by MSHA, 

indicated essentially that in a limestone mine there is not any 

"development" inasmuch as soon aa the overburd~n is stripped 

away, access is obtained directly to limestone, and the mine is 

then in production. Neither of Respondent's witnesses, its 

employees Bobby Brewer and Charles Williams, offered any 

definition of.the term "development." 

The main drift of the mine, from the entrance to the point 

where the face existed on March 1, 1989, is somewhat circuitous 

(Joint Exhibit 1), but ia the only feasible way from the entrance 

to the point where the second portal or escapeway was eventually 

broken through. As such, it appears to be Respondent's position 

that the approximately 945 feet of the main drift, on March 1, 

1989, was "development," as the drift was proceeding by the only 

9ath possible to the point where the second portal would be 

broken out.l/ Respondent apparently also relies on the testimony 

of Brewer and Williams to the effect that on March 1, 1989, 

Denton indicated that he had told Jeffery Staton that, in 

essence, he would be allowed to go 1000 feet, without the neces3ity of a second escapeway, in orde~ to reach the point of a 

breakthrough to a seco~d escapeway.~/ 

Respondent did not rebut the testimony of Petitioner' a 

witnesses as to the meaning of the term "development." Nor did 

Respondent affirmatively present any evidence to establish a 

definition of that term different from that espoused by 

Petitioner's witnesses. Further, I note that the Dictionary of 

Mining, Mineral, and Related Terms, defines "development" as 

iollows: "a. To open up a coal 3eam or ore body as by sinking 

shafts and driving drifts, as well as installing the requisite 

equipment. b. Work 0£ driving openings to and in a proved oce 

body to prepare it for mining and transporting the ore ..•. " 

1/ Manwarcing indicated on cross-examination, that the main 

~rift was the only way to go from the en~rance portal to the 

eventual breakthrough. 

2; I do not find any merit in Respondent's position. In deteriining whether Respondent violated section 57.11050(a), ~uora, 

Respondent's mining operation must be analyzed. In this analysis 

it is not relevant to consider whether Respondent ~as proceeding 

in accord with statements made to it by Denton. This issue is 

discussed, infra, wher2in Respondent's negligence is discussed. 

2376 
On March 1, 1989, Manwarring observed Respondent loading limestone at the face, and the production reports, for 1987 through 

August 1989, indicated the various amounts of production tonnage 

for that period. Hence, Respondent was beyond the stage of 

opening up the ore body or preparing it for mining, as it was 

already engaged in mining. Respondent has not adduced any 

evidence which would tend to establish tnat its sole purpose in 

establisning the drift from the portal to the face was for development of the second escapeway, rather than for the production of 

limestone. Hence, I conclude that on March 1, 1989, there was no 

"development" of an ore body as the mine was·engaged in production. 

Inasmuch as the subject mine had only one escapeway on March 1, 

1989, I conclude that it has been established that Respondent 

herein violated section 57.11050. 

The citation in question all8ges that the violation herein 

is significant and substantial. Neither Manwarring nor Denton 

offered their opinion on this issue. According to Manwarring, in 

the event at the escapeway being blocked at the portal, the 

miners would be trapped. This could occur if there would be a 

fire, roof fall, gas, or water between the area where the miners 

would be working and the escapeway portal. He indicated that 

there were five trucks underground, either gas or diesel, and 

there was a possibility of the trucks igniting due the presence 

of flammable material. Denton indicated that if a truck would 

catch fire it would get so hot that it would be impossible to 

traverse the area, and that toxic gases would be emitted from 

burning tires and upholstery. He also opined that in the event 

of a Eire there would oe oxygen depletion. 

He described the trucks as old and in need of some maintenance work, and indicated that the electrical wiring was 

deteriorating due to the fact that it contained older materials. 

He indicated _that he saw wires with broKen insulation. However, 

neither Denton nor High indicated specifically what wires did not 

nave proper insulation, the length 0£ the improper installation, 

what truc~s these wires were located on, and their specific 

location. De~ton indicated that there was accu~ulation of fuel 

and grease pr~sent, ~ut ne did not describe its specific location 

or quantity. It is clear that the risk 0£ injury to miners at 

the illine as the consequence of a fire certainly is contributed to 

by the lack oi a second escapeway. However, although the evidence indicates that a fire could have occurred, there is 

insu(f icient evidence to conclude that there wa3 a reasonable 

likelihood of such occurring. It is clear that a bloc~age of the 

escapeway portal could have occurred, but tnere is insufficient 

evidence to·conclude that this event was reasonably li~ely to 

occur. ~ccordingly, it must be concluded that Petitioner has not 

establiahed that the violation herein was s1gniiicant and substantial. (See, Mathies Coal Co., 6 FMSHRC at 3-4 (1984)). 

2377 
According to Denton, there was a "sort of an agreement" 

(Tr. 73) that Respondent would be allowed to have the drift go 

from the entrance for about 100 feet, then go to the right 

between 400 to 500 feet, and then go to the right again for about 

100 feet until it broke out to the surface to create a second 

portal. He indicated that a second escapeway parallel to the 

main jrift was not ordered, as there was not enough room along 

the side of' the hill, where the main portal was located, to 

create another portal entrance. According to Denton, he indicated to Je£fe~y Staton that the drift to the surface was to be a 

main priority. He iridicated that in 1987, he visited the mine 

and advised Staton that, essentially, he was concerned with the 

number of headings off the main drift, and aaked Staton to 

consider mining from the surface down to the drift in order to 

create an escapeway. He indicated that Staton told him tnat he 

started at another point on the hill to open up a portal to go 

down to the drift. According to Denton, in February oc March 

1988, he returned to the mine and Staton advised him that he had 

not had enough time to complete the drift. Denton indicated that 

he told Staton to stop driving the other headings, and instead go 

out to the surface. He said that Staton had told llim that he 

felt he was entitled to a full 1000 feet of drift. 

Manwarring indicated that when he inspected the mine on 

November 2, 1988, there was a discussion with Staton witn regard 

to the £equirement of a second escapeway, and Staton indicated 

that he was in the process of driving a.heading to the outside to 

establish an escapeway. Manwarring indicated that he returned 

six more times, and on each visit he discussed the escapeway, and 

Staton indicated that he waa working towards it, and would be 

breaking out in a short period of time. Brewer and Williams both 

indicated tnat in a discussion on March 1, 1989, in essence, 

Staton asked of Denton whether he had previously allowed Staton 

1000 feet of drift, and Denton answered in the affirmative. 

Respondent did noc rebut Manwarring's testimony with regard 

to the numerous contacts, prior to March 1, 1989, that he had 

wich Staton with regard to the escapeway. Respondent did not 

proffer the testimony of any person in management responsible for 

decision1na~1ng with regard to any circumstances which would 

excuse Respondent from having failed to have a second escapeway 

or to maKe one. Accordingly, it is concluded that Respondent 

herein actea with a high degree of negligence in not having a 

second escapeway. 

I iind tnat the lack of a second escapeway, with three 

miners working underground, is a moderately serious violation. 

Further, Respondent herein acted with a nigh degree of negligence. 

Taking these factors into account, as well as tt1e remaining 

factors in seccion llO(i) ot the Act, as stipulated to by the 

Parties, I conclude that penalty herein of $200 is proper. 

2378 
II. Citation Nos. 3253522, 3253523, 

3253524, and 3253525 

On November 6, 1989, a Joint Motion for Approval of 

Settlement was filed concerning the above Citations. The Joint 

Mocion proposes a reduction in penalties from $199 to $145. I 

have considered the representations and documentation submitted 

in this ca3e, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section llO(i) of the 

Act. 

ORDER 

It is ORDERED that Citation No. 3253320 be amended to reflect 

chat the violation therein is not significant and substantial. It 

is further ORDERED that Respondent shall pay, within 30 days of 

this Decision, $345 as a civil penalty for the violations found 

nerein. 

Distribution: 

'l'homas A. Groo1ns, Esq., Office of the Solicitor, U. S. Department 

0£ Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Cer~iiied Mail) 

Jeffrey T. Staton, Vice President, Mountain Parkway Stone, Inc., 

RR #1, Box 309B, Stanton, KY 40380 (Certified Mail) 

dcp 

2379 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 29, 1989 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BLUE CIRCLE ATLANTIC, INC., 

Respondent 

Docket No. YORK 89-45-M 

A. C. No. 30-00006-05527 

Blue Circle Atlantic 

ORDER ACCEPTING SETTLEMENT MOTION 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This case is before me pursuant to the Commission's order 

dated November 20, 1989, to determine whether good cause exists 

to now accept the late filed settlement motion. 

In his motion to reopen filed November 14, 1989, operator's 

counsel advises that he and the Solicitor had been engaged in 

extensive settlement negotiations regarding this case. He also 

states that from November 3 to November 11 he had been engaged in 

litigation matters outside his office and away from Chicago and 

therefore did not become aware of the default order until November 11, 1989. In a telephone conference call on November 13, 

1989, operator's counsel and the Solicitor previously advised me 

of the foregoing circumstances and I told them that under the 

present state of Commission regulations I was without jurisdiction to determine whether relief from the default was warranted until the Commission treated the request for relief as an 

appeal and remanded the matter back to me. This has now occurred. In view of the ongoing settlement negotiations and the 

absence of operator's counsel from his office and city on other 

professional matters, I conclude that relief is warranted and 

that the filing of the settlement·motion should be accepted. 

The subject citation was issued for a violation of 30 C.F.R. 

§ 56.9003 because a haulage truck was not provided with adequate 

brakes. The penalty was originally assessed at $900 and the 

proposed settlement is for $600. The settlement motion represents that negligence is less than originally thought because the 

truck in issue had been inspected shortly before citation Aas 

2380 
issued. In ·light of this circumstance and because the proposed 

settlement remains a substantial amount, I conclude it should be 

approved. 

In light of the foregoing, it is ORDERED that late filing of 

the settlement be APPROVED. 

It is further ORDERED that the motion for settlement be 

APPROVED. 

It is further ORDERED that the operator PAY $600 within ·30 

days from the date of this decision. 

~\~ · Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Jane Snell Brunner, Esq., Office of the Solicitor, U. S. Department of Labor, 201 Varick Street, Room 707, New York, NY 10014 

(Certified Mail} 

Mark A. Lies, II, Esq., Seyfarth, Shaw, Fairweather & Geraldson, 

Blue Circle Atlantic Inc., Suite 4200, 55 East Monroe Street, 

Chicago, IL 60603 (Certified Mail} 

/gl 

2381 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV .3 0 1989 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

APMINISTRATION, (MSHA), 

Petitioner 

v. 

MALVERN MINERALS COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINSITRATION, (MSHA), 

Petitioner 

v. 

S E C 0 INCORPORATED, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GARRETT EXCAVATING, INC., 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 88-118-M 

A.C. No. 03-01551-05502 

Malvern Minerals South Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 88-129-M 

A.C. No. 03-01551-05501 D9M 

Malvern Minerals South Mine 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 88-130-M 

A.C. No. 03-01551-05501 W6C 

Malvern Minerals South Mine 

Appearances: Robert A. Fitz, Esq., Office of the Solicitor, 

u. s. Department of Labor, Dallas, Texas for 

Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll, 

Professional Corporation, Pittsburgh, 

Pennsylvania for Respondent Malvern 

Minerals Company; 

Mark Moll, Esq., Jones, Gilbreath, Jackson & 

Moll, Fort Smith, Arkansas for Respondent SECO, Inc., 

J.E. Sanders, Esq., Wooton, Glover, Sanders & 

Slagle, Hot Springs, Arkansas for Respondent Garrett 

Excavating, Inc. 

Before: Judge Melick 
These consolidated civil penalty proceedings are before 

me upora separate petitions filed by the Secretary of Labor 

against the named Respondents pursuant to section 105Cd) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq., the "Act." The petitions allege violations 

developed from an investigation by the Secretary of a fatal 

highwall failure at the Malvern Minerals Company (Malvern) 

South Mine on October 2, 1987. The general issue before me 

is whether there have been any violations of the cited 

regulatory standards and, if so, the appropriate civil 

penalties to be assessed in accordance with Section llO(i) of 

the Act. 

Background 

On October 2, 1987, at about 11:10 a.m., Phil Keeton, a 

backhoe operator employed by Garrett Excavating Inc. 

(Garrett), and Bill Williams, a self employed driller, were 

killed when a highwall collapsed. The evidence sttows that 

Keeton had been employed by Garrett for about 3 1/2 years as 

a backhoe operator and for the latter 1 1/2 years as a crew 

leader. He had a total of 40 years mining experience with 

about one year at the South Mine. Williams had 27 years 

mining experience with about 3 weeks experience at the South 

Mine. 

The Malvern South Mine is a novaculite quarry located 

near Hot Springs, Arkansas. Bill Williams was contracted by 

Malvern to perform the drilling, SECO, Inc., (SECO) waa 

contracted to load and detonate explosives in the drilled 

holes and Garrett was contracted to load and haul the broken 

ore and rock. Malvern directed the overall mining sequence. 

The mine operated intermi ttantly, producing for abo,ut 

4 months with a 2 month period during which the mill 

continued to process stockpiled ore. When the mine was 

producing it employed one Malvern employee and 6 contract 

employees on one shift of 10 hours a day 6 days a week. 

Mining was performed by drilling and blasting a highwall 

creating a single bench. The bench would then be removed as 

mining progressed. 

The South Mine contains three stratigraphic units 

sloping approximately 43° to the northwest. These units have 

been overturned and are, therefore, stratigraphically upside 

down. The· topmost unit, the Lower Novaculite, is a bed of 

hard, brittle novaculite. Underlying this is the Middle 

Novaculite unit--a shale unit containing about 3% graphite. 

The lowest unit, approximately 30 feet thick, is the Upper 

Novaculite. According to the record this unit consists of a 

soft tripolitic novaculite. 

2383 
Mining had initially progressed from the southwest end 

of the pit to the northeast to a depth of about 450 feet when 

the direction was reversed. In October 1987 mining 

operations were again be~ng conducted in the southwest end of 

the pit. The pit had been deepened to 80 feet at the time of 

tne accident. On the first pass a bench had been lowered 

about 50 feet by October 2nd along a distance of about 150 

feet. The highwall in the immediate accident area ranged 

from 80 to ~O feet high and was sloped Dack at an angle of 

about 63°. 

Docket No. CENT 88-118-M 

In this case the Secretary maintains that she has 

charged Malvern under Citation No. 2659481 with three 

violations of the regulatory standards. In proposing a civil 

penalty the Secretary separated the citation into three parts. 

Under Part A the Secretary purports to charge a violation of 

the standard at 30 C.F.R. § 56.3200 and seeks a penalty of 

$10,000. Under Part B the Secretary purports to charge a 

violation of 30 C.F.R. § 56.3130 and seeks a penalty of 

$4,000. Finally, under Part C the Secretary purports to 

charge a violation of 30 C.F.R. § 56.3401 and seeks a 

penalty of $1,000.~/ 

On the face of the subject citation the Secretary 

charges a violation of the standard at 30 C.F.R. § 56.3200 

and alleges as follow~: 

Two employees of contractors to Malvern Minerals 

were fatally injured when an unplanned slope 

failure occurred. Several thousand tons of large 

boulders and loose materials from the approximately 

70 foot pit highwall fell completely burying and 

crushing the operator of a track drill and the 

operator of a track mounted· backhoe. Management of 

Malvern Minerals and associated contractors and 

equipment operating personnel of the contractors 

had observed and were concerned about the highwall 

condition including a cap rock overhang (the large 

boulder3 mentioned above) which orotruded 

approximately 8 ieet out from th~ highwall and was 

approximatelt 16 feet thick by 100 feet long. 

1/Malvern presents persuasive arguments in its post 

heariiig brief that the citation herein failed to comport with 

the Section 104(a) particularity requirements and t~at the 

Secr2tary has improperlt proposed penalties in excess of 

$10,000 for what is arguaoly only one violation. In light of 

che disposition of the cication(s) herein there is no need to 

address these issues. · 

2384 
A tension crack varying from 3-7 inches wide exists 

back from the brow of the highwall running from the 

area of failure, angling NNE, back from the 

highwall for a distance of approximately 150-200 

feet to a point north-east of the area of failure 

35 feet back from the highwall. 

The cited standard provides as follows: 

Ground conditions that create a hazard to persons 

shall be taken down or supported before other work 

or travel is permitted in the affected area. Until 

corrective work is completed, the area shall be 

posted with a warning against entry and, when left 

unattended, a barrier shall be installed to impede 

unauthorized entry. 

The cited standard clearly presupposes that the ground 

conditions that create a hazard have manifested themselves so 

that they can be discovered by appropriate examination of the 

ground (as required by the standard at 30 C.F.R. § 56.3401) 

and so that they can be corrected. The purpose of the 

regulation is to require elimination of hazardous conditions. 

It is not to make the operator a guarantor protecting 

against unforeseeable or hidden hazards. If indeed an 

appropriate examination, performed as required under section 

56.3401 would not have revealed a hazardous ground condition 

it may reasonably inferred that there could be no violation 

of section 56.3200. 

Inasmuch as I have found, infra, that examination of 

ground conditions above the highwall was not required under 

30 C.F.R. § 56.3401 I cannot find that there was any 

violation of 30 C.F.R. § 56.3200. In sum, since I have 

found that Malvern performed the required examination of 

ground conditions by "persons experienced in examining and 

testing for loose ground" and those persons did not upon such 

examination discover any ground conditions that created a 

hazard "before other work or travel [was] permitted in the 

affected area", there was in any event no violation of the 

standard at 30 C.F.R. § 56.3200. 

The Secretary, in her post hearing brief, maintains in 

particular that a crack in the ground above the highwall 

existed for several weeks before October 2nd and that it 

should have been discovered and corrected. This argument is 

predicated however upon the inre~ence that because the crack 

existed after the highwall collapsed it also existed before 

the collapse. Any such inference must however be inherently 

reasonable and there must be a rational connection between 

the evidentiary facts and the ultimate fact inferred. Here 

the required nexus is absent. See Mid-Continent Resources, 6 

2385 
FMSHRC 1132 (1984), Garden creek Pocahontas, 11 FMSHRC 

November 21, 1989. 

In this regard I note that the crack in the ground above 

the highwall was not even discovered until October 5, three 

days after the highwall failure and a period of time during 

which additional ground movement could have been triggered by 

the initial failure. Moreover Irvin Garrett was in the 

iCILmediate vicinity of the failure area the day before the 

failure and testified credibly that he saw no sign of a crack. 

Even the Secretary's witnesses conceded that the crack could 

have developed at the time of the highwall failure. 

The persuasive expert testimony of Mssrs. Steuart and 

Blancke also convinces me that the Secretary's preferred 

inference that the crack existed before the highwall 

collapse is based on unreliable speculation. The preferred 

inference is accordingly rejected. For this additional 

reason the alleged violation has not been proven and Part A 

of Citation No. 2659481 must be vacated. 

Part B of Citation No. 2659481 purports to charge a 

violation of the standard at 30 C.F.R. § 56.3130 and alleges 

as follows: 

The slope failure was induced because the bench was 

removed from the area ot failure resulting in the 

highwall being too steep for the existing rock 

structures. The company failed to use safe mining 

practices including the proper use of benching 

which had been discontinued for economic concerns. 

The cited standard provides as follows: 

Mining methods shall be used that will maintain 

wall, bank, and slope stability in places where 

persons work or travel in performing their assigned 

tasks. When benching is necessary; the width and 

height shall be based on the type of equipment used 

for cleaning of benches or scaling of walls, banks 

and slopes. 

The Secretary charges in this part of the citation that 

Malvern failed to construct appropriate benches on the 

highwall. The cited standard requires benching however only 

when ''necessary". Since the determination of when benching 

is "necessary" within the meaning of the cited standard is 

subjective, the standard must appropriately be measured, in 

order to pass constitutional muster, against the standard of 

whether a reasonably prudent person familiar with the factual 

circumstances surrounding the allegely hazardous condition, 

including any facts particular to the mining industry, would 

2386 
recognize a hazard warranting corrective action within the 

purview of the regulation. Alabama By-Products Corporation, 

4 FMSHRC 2128 (1982); Canon Coal Co., 9 FMSHRC 667 (1987); 

Ozark-Mahoning Co., 8 FMSHRC 190(1986) 

In this case it is undisputed that before the rock fall 

here at issue the superintendent of the South Mine, Charles 

Steuart, sought approval from the District Office of the 

Federal Mine Safety and Health Administration (MSHA) in 

Little Rock, Arkansas to discontinue the practice of benching. 

Steuart submitted his proposal to Billy Richie, the MSHA 

District Manager having inspection authority over the South 

Mine, in 1979. According to the unchallenged testimony of 

Steuart, Richie verbally approved this method of mining for 

the South Mine. The evidence further shows that in spite of 

both State and Federal inspections since that date (until the 

citation at bar) Malvern had never been cited for failure to 

utilize benches at the South Mine although the practice of 

mining without benches was continuously followed. 

While in hindsight several of the Secretary's witnesses 

concluded at trial that the practice of benching should have 

been followed at the South Mine the evidence is clear that 

preceding the accident, all persons familiar with the 

conditions at the mine, including MSHA officials, had 

approved of the practice of mining without benching. I 

cannot therefore find that the standard as applied in this 

case did indeed require "benching" at the South Mine prior to 

the date of the accident. Accordingly there was no violation 

as alleged. Part B of Citation No. 2659481 must therefore 

also be vacated. 

Part C of the citation alleges a violation of the 

standard at 30 C.F.R. § 56.3401 and charges as follows: 

A contributing factor to the injuries 

resulting from the ground failure was the fact that 

supervisors or other designated persons had not 

examined the top of the pit highwall for hazardous 

ground conditions at least weekly. The absence of 

inspection and examination precluded the discovery 

of the tension crack existing in the ground behind 

the highwall. The pit had ceased operation in June 

1987 and reopened September 3, 1987. The last 

known examinaiion of the area behind the highwall 

occurred in June 1987 when survey flags were placed 

above· the brow. No cracks were observed during 

this examination. Hignwall failure occurrad along 

the line of survey stakes p~aced during the June 

examination. 

The cited standard, 30 C.F.R. § 56.3401, provides a3 

follows: 

2387 
Persons experienced in examining and testing for 

loose ground shall be designated by the mine 

operator. Appropriate supervisors or other 

designated persons shall examine and, where 

applicable, test ground conditions in areas where 

work is to be performed prior to work commencing, 

after blasting, and as ground conditions warrant 

during the workshift. Highwalls and banks 

adjoining travelways shall be examined weekly or 

more often if changing ground conditions warrant. 

At hearing the Secretary narrowed the charges to a 

failure by "appropriate supervisors or other designated 

persons" to have tested ground conditions in "areas where 

work is to be performed prior to work commencing". In 

particular the Secretary now maintains that the area above 

the pit highwall should have been included as part of the 

required examination. 

Because of the imprecision and subjectivity of 

the regulatory language requiring examinations in "areas 

where work is to be performed" this regulation too must 

appropriately be measured against the standard of whether a 

reasonably prudent person familiar with the factual 

circumstances surrounding the allegedly hazardous condition, 

including any facts particular to the mining industry, would 

recognize a hazard warranting corrective action within the 

purview of the applicable regulation. Alabama By-Products 

Corporation, supra. 

The Secretary offered no evidence in this case to show 

that in the mining industry an examination of the work area 

would ordinarily include the ground above the highwall. 

Indeed the MSHA inspector responsible for inspecting the 

South Mine before this accident acknowledged that he did not, 

as part of his inspections of th~ mine, examine the area 

above the highwall nor did he require such inspections by the 

mine operator. The practice was to examine the highwall by 

standing back from the base and visually observing the 

exposed face. 

Moreover the expert witnesses produced by Malvern, 

Dudley Blancke and Charles Steuart, testified that it was not 

the industry practice to examine the ground above the 

highwall. Within this framework of ~vidence I cannot 

conclude that the area above the highwall was an area subject 

to the testing of ground conditions under the cited 

regulatory provisions. ~ccocdingly that part of Citation 

No. 2659481 alleging a violation of 30 C.F.R. § 3401, must 

also be vacated. 

2388 
ORDER 

Citation No. 2659481 (A) (B} and (C} is hereby vacated 

and Civil Penalty Proceeding Docket No. CENT 88-118-M is 

dismissed. 

Docket No. CENT 88-129-M 

In this case the Secretary has charged SECO Incorporated 

(SECO} in Citation No. 3063001 with one violation of the 

standard at 30 _C.F.R. § 56.3401. ·rhe citation alleges as 

follows: 

On October 2, 1987 a massive highwall failure 

fatally injured one employee of each of two 

contractors other than SECO. The lone SECO 

employee assigned to this mine was not 

knowledgeable or experienced in examining and 

testing for loose ground conditions. This resulted 

in the abs~nce of any examination of ground 

conditions on top of the pit highwall. This 

employee narrowly escape being buried by the 

highwall failure. 

At hearing the Secretary charged that the only employee 

of SECO assigned to the mine was neither properly 

"designated" by the mine operator nor "knowledgeable or 

experienced in examining and testing for loose ground 

conditions" within the meaning of the cited standard. 

On the fa-ce of the citation however the Secretary did not 

allege that the SECO employee was not properly designated but 

only that he was·"not knowledgeable or experienced in 

examining and testing for loose ground conditions." She is 

accordingly limited to only those allegations charged in the 

citation. 

In addition the Secretary cites no evidence in her post 

hearing brief to support this charge and, to the contrary, 

the overwhelming uncontradicted evidence is that the lone 

SECO employee was indeed "knowledgeable" and "experienced" in 

examining and testing for loose ground. This employee, Glen 

"Buzz" Brown, had 3 years experience in the mining industry 

and was a certified blaster. He testified that on the date 

of the accident he followed his practice of visually 

examining the face of the highwall before commencing work and 

found no dangerous conditions. 

Moreover 3ince I have found that examination of ground 

conditions in the area above the highwall was not required by 

established MSHA and industry practices before this accident 

I cannot infer from the failure of Brown to have examined the, 

area above the highwall that he was not qualified to perform 

the examinations required. Under the circumstances the 

citation must be vacated. 

2389 
ORDER 

Citation No. 3063001 is vacated and Civil Penalty 

Proceeding Docket No. CENT 88-129-M is dismissed. 

Docket No. CENT 88-130-M 

The Secretary charges Garrett Excavating Inc. (Garrett) 

under Citation No. 2659482 with one violation of the 

regulatory standard at 30 C.F.R. § 56.3401 and charges as 

follows: 

The lead person of the crew of the contractor was 

fatality injured when a massive ground/slope 

failure occurred. This person was not properly 

experienced in testing and examining loose ground 

conditions, resulting in the absence of an 

examination of the top of the pit highwall. The 

lead person was designated to insure the safe 

working conditions surrounding the crew. 

The essence of the Secretary's allegations here is that 

because the designated person failed to examine the ground 

above the pit highwall that person was therefore not 

"properly experienced in testing and examining loose ground 

conditions". However for the reasons already cited in regard 

to the disposition of similar charges against Malvern 

Minerals and SECO in this decision I also vacate this 

citation. Lack of experience in testing cannot be infer.red 

from the failure to have examined above the pit highwall 

since the established industry and MSHA practice did not 

include such examinations. 

ORDER 

Citation No. 

Proceeding Docket 

2659482 is vacated and Civll Penalty 

No. CENT 38-13

1

0-MJ is dismi:\;ed. f'iJl_ . ~ . - \) l 

~fl)/~ '\μQXJ \ . cjary r-telick \ 

Admidistrative Gaw Judge 

(703~~756-6261 ' 

2390 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

N '.·''".!\' tJ V ,, ')01989 

KATHLEEN I. TARMANN 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. LAKE 89-56-DM 

INTERNATIONAL SALT COMPANY, 

Respondent 

MD 89-10 

Cleveland Mine 

ORDER OF DISMISSAL 

On November 6, 1989, Complainant's Attorney advised my 

Secretary that the matters in dispute in this case had been 

settled by the Parties. 

On November 15, 1989, a Show Cause Order was issued which 

provided as follows: 

Accordingly, Compainant shall, within 10 days 

of this Order, show cause why this case shall not be 

dismissed. Failure of Complainant to respond to this 

Order shall result in this case being dismissed 

pursuant to 30 C.F.R. § 2700.62(a). 

Complainant has not filed any response to the Show Cause 

Order. 

Accordingly, pursuant to 30 C.F.R. § 2700.62(a), it is 

ORDERED that this case be DISMISSED 

Avram 

~~ Weisberger 

Administrative Law Judge 

Distribution: 

Richard Valore, Esq., Valore, Moss & Kalk, 75 Public Square, 

Suite 300, Cleveland, OH 44113 (Federal Express) 

Keith A. Ashmus, Esq., Thompson, Hine and Flory, 1100 National 

City Bank Building, 629 Euclid Avenue, Cleveland, OH 44114-0370 

(Federal Express) 

dcp 

2391 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

FREDRICK J. BOUCHER, 

Complainant 

v. 

SVONAVEC COAL INC., 

Respondent 

Before: Judge Merlin 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

.November 30, 1989 

DISCRIMINATION PROCEEDING 

Docket No. PENN 89-248-D 

PITT CD 89-18 

Svonavec Strip Mine 

ORDER OF DISMISSAL 

On July 28, 1989, you filed with this Commission a complaint 

of discrimination under section 105(c) of the Federal Mine Safety 

and Health Act of 1977. On October 4, 1989, a show cause order 

was issued directing you to provide information regarding your 

complaint or show go.od reason for your failure to do so. You 

were specifically told that if you did not comply with the order 

your complaint would be dismissed. The show cause was mailed to 

you certified mail, return receipt requested and the file contains the receipt card indicating you received the show cause 

order. You have however, not responded and complied with the 

show cause order. 

Accordingly, this case is DISMISSED. 

= Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Mr. Frederick Boucher, R.D. #3, Rockwood, PA 15557 (Certified 

Mail) 

svonavec Coal Inc., 140 West Union Street, Somerset, PA 15501 

{Certified Mail) 

/gl 

2392 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280. 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

INDUSTRIAL CONSTRUCTORS 

CORPORATION, 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 89-86-M 

A.C. No. 05-03998-05513 NYO 

Summitville Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Morris 

This is a civil penalty proceeding initiated by the 

petitioner against respondent in accordance with the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~· 

The civil penalties sought here are for the violation of 

mandatory standards promulgated pursuant to the Act. 

Prior to a hearing the petitioner filed a motion seeking 

to settle the case. Correspondence filed with the settlement 

indicated respondent has been appraised of the proposal. The 

citations, the original assessments and the amended civil 

penalties, are as follows: 

Citation No. 

2876658 

2876656 

Assessment 

$9 8. 0 0 

20.00 

Disposition 

$20.00 

20. 0 0 

In support of their motion to approve the settlement the 

parties have submitted information relating to the statutory 

criteria for assessing penalties as contained in 30 u.s.c. 

§ 820(i). 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. tt should be approved. 

Accordingly, I enter the following: 

2393 
ORDER 

1. The settlement agreement is approved. 

2. The foregoing citations and civil penalties, as amended, 

are affirmed. 

3. Respondent has paid the $20 assessment for Citation 

No. 2876656. Accordingly, respondent is ordered to pay the 

petitioner the sum of $20 for the violation of Citation 2876658 

within 40 days of the date of this decision. 

Law Judge 

Distribution: 

Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 

80294 CCertif ied Mail) 

Mr. Dave Ohler, Washington Corporations, 101 International Way, 

P.O. Box 8182, Missoula, MT 59807 (Certified Mail) 

/ct 

2394 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

COLONNADE CENTER 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

November 3, 1989 

RICHARD R. MAYNES, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

PHELPS DODGE CORPORATION, 

Respondent 

Docket No. CENT 89-132-DM 

MD 89-35 

ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY DECISION 

Complainant, by written Response filed herein on November 1, 

1989, has responded to Respondent's Motion for Summary Decision 

which was filed on September 11, 1989. Complainant's response is 

found to have merit·and it and the exhibits attached thereto are 

incorporated herein as the initial portion of my decision on this 

issue. It is further noted that Respondent neither alleged or 

established that Complainant's initial delay in filing with 

MSHA prejudicially deprived it of a meaningful opportunity to 

defend itself in this matter. There is no allegation of specific 

prejudice or even of general prejudice. See Schulte v. Lizza 

Industries, Inc., 6 FMSHRC 8 (January, 1984). The delay of 

Complainant Maynes in filing with the Secretary - approximately 

27 days - is not of a duration where one might infer unavailability of or loss of memory of critical witnesses. 

It is also specifically held, absent further Commission 

precedent, that the time limitations of Section 105(c) of the Act 

insofar as such pertain to individual complainants are not jurisdictional. Secretary v. 4-A Coal Company, Inc., 8 FMSHRC 905 

(June, 1986); Buelke v. Thunder Basin Coal Company, 11 FMSHRC 240 

(February, 1989). To hold individual complainants to a higher 

standard of filing compliance than the Secretary of Labor would 

not seem logical or justified in view of the disparity in educational background, legal and business experience, and experience 

in and familiarity with mine safety processes and requirements. 

Accordingly, Respondent's motion for summary judgment is denied. 

The parties, and their counsel, are directed to forthwith 

comply with the requirements of my Prehearing Order of September 

27, 1989. 

.· ~#~~.,/ ~ rfi~\/ ff~ ·~ichael ~. ~asher, ~r. 

Administrative Law Judge 

2395 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

2 K LEASING, 

Respondent 

November 16, 1989 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-103 

A.C. No. 46-07310-03501 AUJ 

Logan County No. 1 Mine 

ORDER DENYING .MOTION TO APPROVE SETTLEMENT 

On November 13, 1989, the Secretary filed a motion to 

approve a settlement in this case. The docket involves a 

single alleged violation originally assessed at $2000. The 

motion proposes that it be reduced to $1000. 

The citation involved herein alleges a violation of 

30 C.F.R. § 77.1605(b) because a coal haulage truck was not 

provided with adequate brakes. The motion states that the 

brake defect was a partial cause of a coal haulage accident 

which resulted in the truck driver being fatally injured. 

The motion states that the reduction in the penalty is 

justified because Respondent's business is very small and 

"the penalty threatened to reduce its ability to continue 

in business." No factual justification for this conclusion 

was provided. The size of Respondent's business and its 

favorable history of prior violations were presumably 

considered in assessing the penalty originally. The effect 

of a penalty on its ability to continue in business, if 

relied upon to reduce the penalty, must be supported by 

factual data. 

Accordingly, the motion to approve the settlement 

agreement is DENIED. 

IT IS FURTHER ORDERED that unless additional factual 

support for a renewed motion is submitted, the parties shall 

respond by December 8, 1989, to paragraph 2 of the Prehearing 

Order of July 25, 1989, and advise me of any dates in 

January or February 1990 which would pose scheduling difficulties. 

11~ ~,#/Wcl~- ) ~ames A. Broderick 

Administrative Law Judge 

2396 
Distribution: 

Mark Malecki, Esq., u .. s. Department of Labor, Office of the 

Solicitor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203 

(Certified Mail) 

Vaughn Groves, Esq., P.O. Box ?53, Charleston, WV 25322 

(Certified Hail) 

slk 

~u.s. G.P.O. 1989-261-102:04762 2397